Opinions of the Attorney General 1969

OPINIONS of
THE ATTORNEY GENERAL
1969
ARTHUR K. BOLTON ATTORNEY GENERAL
ATLANTA THE HARRISON COMPANY
PUBLISHERS

1969 TABLE OF CONTENTS
OPINIONS ......................................... .1 TABLE OF CONSTITUTIONAL PROVISIONS
CITED .........................................729
TABLE OF GEORGIA LAWS CITED ...................731
TABLE OF GEORGIA CODE ANNOTATED SECTIONS CITED .........................................745
INDEX ...........................................767

ATTORNEYS GENERAL OF GEORGIA

HENRY P. FARRER . . . . . . . . . . . . . . . . . . . . 1868-1872

N.J. HAMMOND . . . . . . . . . . . . . . . . . . . . . . 1871-1877

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

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

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

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

J. M. TERRELL . .

. . _. . .

.1892-1902

BOYKIN WRIGHT

. . . . . .

.1902-1902

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

HEWLETT A. HALL . . . . . . . . . . . . . . . . . . . . 1910-1911

THOMAS S. FELDER .

1911-1914

WARREN GRICE . . . . . . . . . . . . . . . . . . . . . . 1914-1915

CLIFFORD WALKER . . . . . . . . . . . . . . . . . . . 1915-1920

R. A. DENNY . . . . . . . .

1920-1921

GEORGE M. NAPIER . . .

1921-1932

LAWRENCE S. CAMP . . . . . . . . . . . . . . . . . . . 1932-1932

M. J. YEOMANS . . . . . . . . . . . . . . . . . . . . . . 1933-1939

ELLIS G. ARNALL . . . . . . . . . . . . . . . . . . . . . 1939-1943

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

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

ARTHUR K. BOLTON . . . . . . . . . . . . . . . . . . . 1965-

ARTHUR K. BOLTON The Attorney General

LEGAL STAFF OF DEPARTMENT OF LAW DURING CALENDAR YEAR 1969

NAME
Bolton, Arthur K. Hill, Harold N., Jr. Beasley, Dorothy T. Bomar, Robert S. Brown, William B. Bryan, W. Wheeler Castellani, Robert J. Chambers, Richard L. Childers, William R., Jr. Coleman; J. Robert Crumbley, R. Alex, Jr. Evans, Alfred L., Jr. Evans, Larry H. Gordon, Marion 0. Harper, William L. Hartman, Don L. Hinchey, John W. Jones, Carl C., III McDonald, Louis F. Michael, H. Perry Nardone, A. Joseph, Jr. Odom, Donn L. Perry, James Lee Reeves, RobertS. Richardson, Curtis R. Robins, Mathew Ruskaup, Larry D. Sherrill, Robert E. Simpson, George Lee Sligh, John A., Jr. Stanton, Courtney W. Sweeney, Timothy J. Talley, James B. Walden, John C. Williams, Joel C., Jr.

TITLE
Attorney General Executive Assistant Attorney General Deputy Assistant Attorney General Attorney Attorney Assistant Attorney General
Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Attorney Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Law Clerk Assistant Attorney General Assistant Attorney General Assistant Attorney General Attorney Assistant Attorney General Attorney Deputy Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Law Clerk Assistant Attorney General Assistant Attorney General Attorney Assistant Attorney General Deputy Assistant Attorney General Assistant Attorney General

FOREWORD
It is the duty of the Attorney General, when required to do so 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 its departments. Ga. Code Ann. 40-1602 Par.l.
To avoid requiring the Governor to endorse requests 'for opinions originating with the departments of the State, the Attorney General receives such requests directly from the department heads.
Opinions rendered to the Governor and to the heads of departments are classified as "official opinions."
In addition to "official opinions," the office of the Attorney General renders "unofficial opinions" to other state officers (e.g. legislators, district attorneys) and to county and municipal attorneys on questions involving the general laws of the State.
Each "unofficial opinion" bears the following notation: "The views expressed herein are the completely unofficial views of the writer only, and should be considered as information only."

OPINIONS of
THE ATTORNEY GENERAL
1969

1

OPINION 69-1

To: Supervisor of Purchases

January 1, 1969

Re: In "F.O.B. destination" contract, seller bears increase in freight rates.

You have requested my opinion and advice in the following matter: One of your vendors has several purchase orders pending for delivery of crushed stone to the State Highway Department. The crushed stone was to be shipped by rail, but the railroads have increased their freight rates effective December 15, 1968, and the vendor now wishes to pass along this increase in freight rates to the State. You wish my advice on whether an adjustment in the purchase orders to provide for the increased freight rates is allowed.
As I understand the purchasing process for this type of material, you receive a requisition issued by a State agency and you then advertise for bids in various ways. One of the methods of advertising for bids is to send a "request for quotation" to known vendors of the material. The "request" states the terms, items, and quantity needed and invites bids thereon. By appropriate language the "request" makes it clear that it is not an order, but only an invitation to bid. The vendor submits his bid by setting out his prices and filling in the appropriate blanks in the "request" and returning the "request" to you as a sealed bid to be opened at a specified time. The "request" must be signed by the bidder and it expressly states immediately above the signature of the bidder " ... upon proper acceptance of any or all items by the Purchasing Department, a contract shall hereby be created." When the bids have been opened and examined and the successful bidder has been determined, a purchase order is issued by the Supervisor of Purchases awarding the bid and accepting the terms of the successful bidder.
You have forwarded me a copy of the "request for quotation" which contains the terms, items, and quantity of crushed stone and which request was sent to prospective vendors for this bid request. You have also forwarded a copy of the final purchase order issued by the Supervisor of Purchases for the purchase of this crushed stone together with a blank set of purchase order forms which are used in all similar purchases.
The law governing the above transaction is the Uniform Commercial Code (Ga. Code Ann. 109A-2-102). In the.instant case, the "request for quotation" issued by the Supervisor of

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Purchases stated that the crushed stone was to be delivered F.O.B. destination, Statesboro, Georgia. This same term was agreed to by the bidder since he signed the "request" thereby incorporating its terms as the terms of his bid. By issuing the purchase order for this bid, the Supervisor of Purchases accepted the bidder's terms and a contract was created. Ga. Code Ann. 109A-2-204, 109A-2-206(1)(a), 109A-2-207. Indeed, the purchase order also states that the crushed stone is to be shipped F.O.B. destination, Statesboro, Georgia. Unless otherwise agreed, the term "F.O.B. the place of destination" requires that the seller at his own risk and expense transport the goods to that place. In my opinion, it is the seller who must bear the risk and expense of increased freight rates after the contract is made, absent some contrary agreement. Ga. Code Ann. 109A-2-319(1)(b); see G. Kock, Georgia Commercial Practice, pp. 100-101, 4-3, (1964).
The Constitution of Georgia prohibits the grant by the State of any donation or gratuity except in certain cases not here relevant. Georgia Constitution, Art. VII, Sec. I, Par. II; Atlanta Chamber of Commerce v. McRae, 174 Ga. 590 (1932) (Construing the same language in the previous Georgia Constitution). Since I have determined that under the law the seller must bear this shipping expense and there is no obligation on the State as purchaser to assume this burden, any attempt by the State to do so would be, in effect, a gratuity and very possibly unconstitutional. I have found no decision by a Georgia court on this point and in the absence of such a decision, I must assume that the clear prohibition of the Georgia Constitution controls in this instance.
Based on the information you forwarded, as set out in this opinion, it is my advice that you refuse to adjust the outstanding purchase orders to assume the increased freight rates and your question is therefore answered in the negative.

OPINION 69-2 (Unofficial)

To: Private Inquirer

January 2, 1969

Re: Group life insurance, assignability of conversion privilege.

You have requested my unofficial opinion on whether the Insurance Code of Georgia prohibits an assignment of a conversion privilege under a policy of group life insurance. After a review of the Insurance Code of Georgia, I have been unable to fmd any provision which would prohibit such an assignment. As you know,

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the Insurance Code generally allows assignment of insurance policies unless the policy itself by its own terms prohibits assignment. Ga. Code Ann. 56-2423.
OPINION 69-3 (Unofficial)

To: Private Inquirer

January 2, 1969

Re: Farm incorporated for business reasons with stock owned by man and wife is not subject to a homestead exemption.

This is in response to your letter of December 18, 1968, to the Honorable John R. Wall, Tax Commissioner of Schley County, wherein you request an opinion as to whether or not, when a farm has been incorporated for business reasons and all of the stock is owned by a man and his wife, they are entitled to a homestead exemption.
Ga. Code Ann. 92-232 defmes homestead as:

..... real property owned by the applicant on January 1st of the taxable year and who is in possession thereof and upon which said applicant resides... and to which he or she has a right to said possession under bona fide claim of ownership."

Ga. Code Ann. 92-234 defines the word "applicant," but it does not include a corporation as one of the home owners being entitled to a homestead exemption.
As neither the man nor his wife is the owner of the farm, neither of them would be entitled to said exemption.
Therefore, it is my unofficial opinion that when a faf!TI has been incorporated there can be no homestead exemption either to the corporation or the owner of the stock.

OPINION 69-4 (Unofficial)

To: Private Inquirer

January 2, 1969

Re: It is unlawful, without license, to have handgun in one's manual possession on public road; transporting handgun not in contact with one's person is permissible.

This is in reply to your request for an opinion dated December 23, 1968, in which you ask whether or not you may transport a

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handgun through the State of Georgia in a travel trailer while en route to the State of Florida.
This is to advise you that you may not have a handgun in your manual possession on the public roads of this State unless you have obtained a license from the State of Georgia to carry the weapon. Ga. Code Ann. 26-5103;Fox v. State, 33 Ga. App. 676 (1925); Cheney v. State, 10 Ga. App. 451 (1911). The Georgia licensing statute does not contemplate issuance of a license to a resident of a foreign state. Ga. Code Ann. 26-5103. It is permissible, however, to transport a pistol in a conveyance upon the public roads without a license so long as the weapon does not come into contact with one's hands or other parts of his person. Hayes v. State, 28 Ga. App. 67 (1922).

OPINION 69-5 (Unofficial)

To: Ocean Science Center of the Atlantic Commission

January 2, 1969

Re: Prison labor may be used to construct public roads; contracts must be negotiated with governmental unit having custody of prisoners pursuant to rules promulgated by Board of Corrections.

This is in reply to your request for an opinion in which you pose the following questions:

"1. The State Highway Department is in process of building roads on Skidaway Island. They wish to use prison labor and, first, is there any problem in using prison labor on State-owned land for this purpose? "2. They propose driving the prisoners in a bus onto our barge at the docks on the mainland, conveying the prisoners to State-owned docks on Skidaway Island, driving them to the work site and at the end of the working day, reversing this process. Any legal problems here? "3. If this is a workable arrangement, who must OSCA negotiate ::tn agreement with? The State Highway Department? Chatham County? Or the Prisons System? Or whoever else? "

Prison labor may be utilized to construct roads on land owned by the State of Georgia. Ga. Code Ann. 77-318(a). Your first question is therefore answered in the negative.

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I perceive no legal problem in transporting prisoners by barge to a job site. Your second question is answered in the negative.
As the State Highway Department is constructing the roads on Skidaway Island, any agreement for the use of prison labor in constucting those roads must be negotiated by the State Highway Department and the governmental unit having custody of the prisoners. The contract must be negotiated pursuant to rules promulgated by the State Board of Corrections. Ga. Code Ann. 77-318(a).

OPINION 69-6

To: Adjutant General

January 3, 1969

Re: Personnel hired by State to perform services required under federally funded contracts with State Department of Defense are State employees.

Please refer to your letter GA-TAG dated December 4, 1968,

wherein you request my official opinion regarding the status of

certain personnel hired by your office to perform services required

under federally funded contracts for maintenance of Army and

Air National Guard facilities within Georgia. Specifically, you

inquire whether these personnel are State employees, and, if so,

whether they can be classified under the State Merit System of

Personnel Administration in order to be eligible for participation

in State Employees' Retirement.



You further explain that the United States, as the contracting

agency, contracts with the State Department of Defense, as

contractor, charging the State with the responsibility of

performing all terms of the contract, including employment and

administration of all personnel necessary to perform services

required by the contract. I am informed by General Camp that the

salaries of these personnel, as well as various other costs of

personnel services and benefits, are reimbursed to the State on

either a 75% or 100% basis, depending on the contract.

OPINION It is my official opinion that said personnel are State employees and are eligible for coverage under State Employees' Retirement.

DISCUSSION In the instant situation it is my understanding that the State Department of Defense has retained the services of some

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sixty-seven laborers and technicians to perform functions required pursuant to federal contract. The United States requires definite results in conformity to contract, while the State assumes the right to control time, manner, and method of executing the work, together with the express right to exercise all functions of personnel administration. Where such a relationship exists, the State is an independent contractor, and those servants retained by it, and over whom the State has the right of control, are employees of the State. See in this regard Webb v. Wright, 103 Ga. App. 776 (1961); Morris v. Constitution Publishing Company, 84 Ga. App. 816 (1951).
Ga. Laws 1950, page 180 (Ga. Code Ann. 40-2221) provided Merit System coverage for all employees of the State Military Department with the exception of three policy-making positions. In 1955 the State Military Department was combined with the State Civil Defense Agency to form the Department of Defense of the State of Georgia. Ga. Laws 1955, pp. 10, 23 (Ga. Code Ann. 86-201). Subsequently, under authority of Ga. Laws 1952, p. 221 (Ga. Code Ann. 40-2242), the Governor provided by executive order that all employees of the Civil Defense Division of the Department of Defense were also to be included under the Merit System effective January 1,-1961.
When a Department has employees included under the State Merit System, all of its employees are included as members of the Employees' Retirement System whether or not the individual employee is himself classified by the Merit System. Ga. Laws 1949, pp. 138, 139 (Ga. Code Ann. 40-2501). Regardless, it would seem that the employees in question should be assigned allocations under the Merit System since they are not listed as exceptions under Ga. Laws 1950, p. 180, and since they are employees of the Military Division of the State Department of Defense, said Division having been designated by the General Assembly as the proper agency to administer programs involving maintenance of such facilities. Ga. Laws 1955, pp. 10, 94.
Therefore, it is my official opinion that said personnel are State employees and are eligible for coverage under State Employees' Retirement.

OPINION 69-7 (Unofficial)

To: Ordinary, Ben Hill County

January 6, 1969

Re: County surveyor; ordinary of county must call special election to fill office.

7
You have requested our advice on how to fill the office of county surveyor when no one offered for the office in the recent general election.
The Georgia Election Code provides that in the event the general election fails to fill a particular office or whenever any person elected to that office dies or withdraws prior to taking office, then the authority with whom candidates for such office filed their notices of candidacy shall call a special election to fill such office. Ga. Code Ann. 34-1515. Since the ordinary is the person with whom the candidates for county surireyor file their notices of candidacy, the ordinary should call the special election. Ga. Code Ann. 34-lOOl(b). For the procedure to be followed in the conduct of a special election, see Ga. Code Ann. 34-806.
In the meantime, I believe that the ordinary may appoint someone to serve as a temporary county surveyor until the special election is held. Ga. Code Ann. 23-1102.
It is therefore my unofficial opinion that a special election must be held to fill the vacancy in the office when there is a failure to fill the office in a general election.
OPINION 69-8
To: Joint-Secretary, State Examining Boards January 6, 1969
Re: Construction of 1968 amendment to Georgia Real Estate Commission Act.
You have requested my construction of the latest amendment to the Georgia Real Estate Commission Act, Ga. Laws 1968, p. 277, asking in particular whether Section 2:
( 1) Allows experience accumulated prior to the passage of this Act to count toward the new three-year requirement; and (2) Permits a salesman whose license has been reinstated after passage of this Act to qualify for examination with 12 months experience.
OPINION ( 1) Any time during which a person has held a valid salesman's license and been engaged "in the real estate

8
business," whether before or after passage of the 1968 Act, would count toward the three-year qualification. (2) Only those persons whose salesman's license has been reinstated on or before March 11, 1968, and is otherwise "current and valid" on this date would be eligible to take an examination after holding such license for the prescribed total of 12 months.
DISCUSSION Ga. Laws 1968, pp. 277, 281, Section 2, extended the time during which a person must have held a salesman's license and engaged in the real estate business from 12 months to 3 years. It provides in relevant part:
"Before any individual may be granted a broker's license, he must have had a real estate salesman's license in this State for at least 3 years, and miist have engaged in the real estate business for such period of time...."
The ordinary signification of these words would seem to mean an accumulated total, not an additional 3 years. Therefore, it would not matter whether the necessary 3 years were acquired before or after the effective date of this Act.
The effective date is significant, however, with regard to a proviso/in section 2, declaring:
" ... any person holding a current and valid salesman's license on the date this Act is approved by the Governor [March 11, 1968 ], or it otherwise becomes law, shall be eligible to stand an examination for a broker's license after holding a salesman's license for 12 months...."
The key words here are "current and valid... on the date this Act is approved...." Thus, any person holding a "current and valid" salesman's license on March 11, 1968, whether by reinstatement provided for in Ga. Code Ann. 84-4109, or otherwise, would be eligible to take an examination after holding such license for the prescribed 12-month period. Reinstatement after March 11, 1968, would imply that the license was .not "current and valid" on this date. This provision refers also to the total months accumulated either before or after passage of the Act.

9

OPINION 69-9 (Unofficial)

To: Superintendent of Banks

January 6, 1969

Re: County hospital authority, power to make loans.

You have requested my unofficial opinion on the following questions:

Would the Telfair County Hospital Authority, whose members are appointed by the sole Commissioner of Roads and Revenue, and approved by the Grand Jury, come under the provisions of Article VII, Section VII, Paragraph IV of the Constitution of the State of Georgia? Could they make a term loan or would they be limited to a temporary loan?

The Constitutional section you cite provides in part as follows:

"In addition to the obligations hereinbefore allowed, each county, municipality, political subdivision of the State authorized to levy taxes, and county board of education, is given the authority to make temporary loans ...."Georgia Constitution, Art. VII, Sec. VII, Par. IV, (Ga. Code Ann. 2-6004).

A county hospital authority is created by the Hospital Authorities Law (Ga. Code Ann. Ch. 88-18) and is described as a "public body corporate and politic." Ga. Code Ann. 88-1803. The authority has no power to tax. Ga. Code Ann. 88-1812.
It is therefore my opinion that a county hospital authority is not either a county, municipality, political subdivision of the State authorized to levy taxes, or county board of education so as to come within the provisions of Georgia Constitution, Art. VII, Sec. VII, Par. IV (Ga. Code Ann. 2-6004).
You next request my opinion on whether a county hospital authority could make a term loan or whether it is limited to a temporary loan. As pointed out above, these authorities are governed by the Hospital Authorities Law which provides that each authority, in part, has the power to make and execute all contracts and other instruments necessary to exercise the ,powers of the authority, to provide construction, reconstruction, improvement, alteration, and repair of any project undertaken by it, to exchange, transfer, assign, pledge, mortgage, or dispose of

10

any real or personal property or interest therein and to mortgage, pledge, or assign any revenue, income, tolls, charges, or fees received by the authority, provided such certificates shall not extend beyond a period of 40 years beyond the date of issuance. See Ga. Code Ann. 88-1805 for a complete listing of these powers. The authority is also authorized to issue revenue anticipation certificates for the purpose of paying all or any part of its cost of the acquisition, construction, alteration, repair, modernization, and other charges incident thereto in connection with any of its facilities or projects and the authority may further pay off or refinance any outstanding debt or obligation of any nature owed by it and it may likewise issue refunding certificates. Ga. Code Ann. 88-1807.
In my opinion the above specific powers, together with the remaining powers set out in Ga. Code Ann. Ch. 88-18, are sufficient to authorize a county hospital authority to make term loans. Your question is answered in the affirmative.

OPINION 69-10 (Unofficial)

To: Ordinary, Gordon County

January 7, 1969

Re: Provisions expanding the jurisdiction of the Court of Ordinary do not contemplate the creation of another court; and other matters.

Please accept my sincere apologies for the delay in replying to your letter in which you ask what type of court may be created by an ordinary for the trial of traffic offenses and whether or not such court has bailiffs and a clerk, and if so, what the compensation of those employees would be. Georgia Constitution Art. VI, Sec. VI, Par. II (Ga. Code Ann. 2-4102) and the provisions of Ga. Code Ann. Ch. 92A-S extend the jurisdiction of the court of ordinary to include the trial of certain traffic offenses. It is my opinion that the Constitution and statutes do not contemplate the creation of a court, but rather that they have enlarged the jurisdiction of the court of ordinary.
An ordinary is, by virtue of his office, the clerk of his own court. He may, however, at his own expense appoint one or more clerks. Ga. Code Ann. 24-1801. There are some "population acts" which authorize ordinaries in counties within a specified population range to employ clerks at county expense with the approval of the grand jury and county governing authorities. For

11

example, see Ga. Laws 1964, p. 332. I do not find a population act applicable to Gordon County which would authorize the employment of a clerk at county expense.
Insofar as bailiffs for the court of ordinary are concerned, I do not find any provision for bailiffs in the court of ordinary. For your information, sheriffs are required "to attend, by themselves or deputies, upon all sessions of the superior court of the county, and the Court of Ordinary whenever required by the Ordinary...." Ga. Code Ann. 24-2813(2).

OPINION 69-11 (Unofficial)

To: Private Inquirer

January 7, 1969

Re: Property valuation and equalization loan must be paid in equal installments within seven years.

This is in response to your letter of December 18, 1968, to Mr. John A. Blackmon, Deputy Commissioner, Department of Revenue, State of Georgia pertaining to the equalization loan from your bank to Emanuel County.
It appears that in the summer of 1967 the county entered into a contract with R. F. Link Associates to evaluate the taxable properties located within the county for $112,075.00. A short time later your bank agreed to lend the $112,075.00 to the county. In September the commercial loan agreement was executed by the parties and approved by the Revenue Commissioner. A portion of the program has been completed and your bank has paid out some $75,000.00 on the loan agreement. The first payment of $18,671.17 will become due on January 14, 1969.
You now request advice as to whether or not the January 14, 1969, payment from the county to your bank can be handled by the county paying one-fifth of the amount due, plus interest, on January 14, 1969, and signing a renewed note for $14,936.92 with four equal annual payments of $3,734.23 begining January 14, 1970.
The constitutional provision which deals with limitations on county and municipal debts requires that such loans made for property valuation and equalization programs must be "payable in one or more equal installments, one of which shall fall due at least each year, but which may fall due each month, the last of which shall mature not more than seven years from the date of creation."

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Georgia Constitution, Art. VII, Sec. VII, Par. I (Ga. Code Ann. 2-6001).
Therefore, if the facts are as stated it is my unofficial opinion that the Constitution would not permit the repayment as set forth in your letter.

OPINION 69-12 (Unofficial)

To: State Highway Utilities Engineer

January 7, 1969

Re: Highways-Payments for Utility Relocation.

This is in reply to your letter of recent date, wherein you request an unofficial opinion containing information sufficient to answer a request from the Chief Counsel of the Bureau of Public Roads concerning clarification of the conclusion reached in our letter to you dated June 19, 1968. The Chief Counsel, Howard A. Heffron, citing the opinions of the Attorney General, dated January 23, 1967 [Op. Atty. Gen. 67-21] and September 22, 1967 [Op. Atty. Gen. 67-339], and the unofficial opinion to you dated June 19, 1968 [Op. Atty. Gen. 68-252], wherein the conclusion is reached that the State Highway Department, on payments made to utilities for relocation work which were made prior to January 23, 1967, should not now seek to collect payments made before that date, states: "The legal rationale for these conclusions is not fully explained, nor are authorities cited." He further states that his office would "appreciate a clarification of the State's position on payments made where the relocation work was performed and paid for prior to January 23, 1967."
The State's right to recover from the utilities to whom payments were made before January 23, 1967, for relocating their utilities would necessarily involve a suit by the State against the utility to recover money previously paid by the State Highway Department of Georgia to the various utilities involved. The theory for recovering these payments is that the Attorney General, by the official opinions dated January 23, 1967 [Op. Atty. Gen. 67-21] and September 22, 1967 [Op. Atty. Gen. 67-339], has, in effect, held that contracts for payment or reimbursement to utilities for adjustments to their facilities installed on streets or roads crossed by interstate and limited-access highways would constitute an illegal use of the tax funds of the State of Georgia. Therefore, the theory of the State in seeking recovery from the utilities would necessarily be that the State Highway Department

13
and the utilities, when the contracts were entered into and the payments made thereunder, were acting under a mistake of law.
Under this theory, the State's remedy, if any, would be a suit in equity for money had and received. Construing the authorities found by the undersigned, a suit for money had and received, where it is against equity and good conscience for the one receiving it, is not based on a contract or a statute. Owens v. Floyd County, 94 Ga. App. 532 (1956); Culbreath v. Culbreath, 7 Ga. 64, 70 (1849). Money had and received lies to recover money which ex equo et bono the Defendant ought to pay.. Whenever the Plaintiff could recover in a court of equity he can recover in an action for money had and received. Culbreath v. Culbreath, supra; Phillips, Administratrix v. Crews, 65 Ga. 277 (1880).
The actions against the utilities would necessarily be for money had and received based upon a mistake of law because the contracts between the utility companies and the Highway Department, entered into before January 23, 1967, were fully executed, contractual commitments, consonant with prior legal interpretations. Therefore, the interpretations made in the official opinions of January 23, 1967 [Op. Atty. Gen 67-21] and September 22, 1967 [Op. Atty. Gen 67-339] would tend to show that the contracts and payments made thereunder were made under a mistake of law. A mistake of law is defined in Ga. Code Ann. 37-204, as follows:
"37-204. Mistake of law by parties.- An honest mistake of the law as to the effect of an instrument on the part of both contracting parties, when such mistake operates as a gross injustice to one, and gives an unconscionable advantage to the other, may be relieved in equity."
This Code section has been elaborated upon in numerous cases, the oldest of which is Culbreath v. Culbreath, supra. In this case, the Court pronounced the principle that money paid through mistake of law, with full knowledge of all the facts, cannot be recovered back unless it is made to appear that the person to whom it was paid cannot in good conscience retain it. For further cases following this principle, see Whitehurst v. Mason. Administratrix, 140 Ga. 148 (3)(1913); Dolvin v. American Harrow Company, 125 Ga. 699(3)(1906);Porter v. Wright, 145 Ga. 787 (1916); Owens v. Floyd County, 94 Ga. App. 532 (1956); and Graves v. Carter, 208 Ga. 5(2) (1951).
From the afore-mentioned cases, it is clearly seen that the Georgia courts will hold that where money has been paid under

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mistake of law, it is recoverable in cases where the other party cannot in good conscience retain the money.
In Stern v. Howell, 33 Ga. App. 693(2) (1925), the Court had the following to say about what is meant by equity and good conscience:
"The expression, 'in equity and good conscience,' ... , refers only to the acts and intentions of the person receiving the money as affecting the other party to the transaction. If he has acted in good faith and in good conscience with the person paying the money, he is entitled to retain it, even if his actions and intentions may not have been in good faith and in good conscience as regards other persons not connected with the transaction."
See also Whitehurst v. Mason, and Dolvin v. American Harrow Company, supra.
From the above citations and principles of law cited, it can clearly be seen that although there was a mistake of law between the Highway Department and the utility companies as to the effect of the contracts in question, the Highway Department may recover if the utility companies did not act in good faith and in good conscience with the Highway Department.
In reviewing the facts surrounding the contracts and payments made thereunder it must be concluded that the Highway Department, pursuant to its authority under Georgia law, selected proposed routes for highways. As soon as these routes were selected and the project was programmed and approved by the Bureau of Public Roads, the Highway Department contacted the utilities whose facilities were in conflict with proposed highway construction and informed them of the work required of them regarding the removal of their facilities for the construction of the proposed highway.
The utilities were asked to prepare plans and estimates of the costs of' removal of their facilities in conflict with construction. The plans and estimates were sent to the Highway Department and from these, a formal agreement was prepared by the Department and submitted to the utility for the proper signatures. These formal agreements, where Federal money was involved, were either concurred in by the Bureau of Public Roads prepared pursuant to the Policy and Procedure Memorandums issued by the Bureau of Public Roads. After the utility companies executed the agreements, they were returned to the Highway Department for the proper signatures. After this was completed, the utility

15

companies were given notice to proceed with the necessary work. Payments to the utilities were made pursuant to the agreements as work proceeded according to the work schedules.
Therefore, construing these facts which are representative of the contracts between the Highway Department and the utilities, it is apparent that the utility companies acted in good faith and in good conscience with the Highway Department. The contracts entered into before January 23, 1967 were good faith, fully executed, contractual commitments, consonant with prior legal interpretations.
Should the Highway Department proceed against the utility companies for recovery of this money, the utility companies, in addition to the defense outlined as to_ mistake of law, could apply other equitable defenses as outlined in Ga. Code Ann. Title 37.
Therefore, it is my unofficial opinion that the conclusions reached in my letter to you dated June 18, 1968, are correct, and that the State Highway Department of Georgia should not now seek to collect payments made to the utilities before January 23, 1967.

OPINION 69-13

To: State Auditor

January 8,1969

Re: Fees collected by Secretary of State.
This will acknowledge your letter dated September 23, 1968 wherein you inquired as to whether certain fees collected by the Office of the Secretary of State of Georgia are State revenues which must be remitted to the State Treasury or whether said funds may be retained by the Office of the Secretary of State as reimbursement of expenses to that office.
Attached to your heretofore-mentioned letter, were remittance sheets showing various funds collected by the Office of the Secretary of State. The items covered by said remittance sheets were as follows:

Date July 24, 1967

Name of Commission or Board
Securities Commission (Ga. Code Ann. Title ~7).

Nature of Fees
Examination fees or Securities Salesmen.

Total Remittance
$540.00

16

June 5, 1968 May 16, 1968 June 12, 1968 May 9, 1968 May 15, 1968

Real Estate (Ga. Code Ann. Ch. 84-14)
Ga. State Board of Cosmetology (Ga. Code Ann., Ch. 84-44).
Ga. State Board of Medical Examiners (Ga. Code Ann., Ch. 84-9)
Ga. State Board of Barbers (Ga. Code Ann., Ch. 84-4).
Registered Nurses (Ga. Code Ann., Ch. 84-10).

June 30, 1967

State Board of Cosmetology (Ga. Code Ann., Ch. 84-44).

August 16, 1967

Real Estate (Ga. Code Ann., Ch. 84-14).

Change of Address at $5.00 each
Duplicate'for 1968 Master Licenses at $2.00each
Certification Fees

190.00
2.00 40.00

1968 Manicurist

License (Duplicate)

at $2.00 each

2.00

55 Endorsements at $3.00 each= $165.00 11 Duplicate Licenses at $1.00 each = $11.00
Reinstatement Charges for 1967 Masters Licenses 2 Duplicates for 1967 Masters Licenses at $4.00 each
Transfer Fees at $5.00 each.

176.00
49.00 155.00

In Ga. Code Ann. 92-3501, the following statutory provision is found in regard to State revenue:
The sources from which the state does, or may derive revenue, other than by taxation, are as follows: ... 8. Fees which the secretaries of the Governor, the Secretary of State, the Treasurer, the Comptroller General, and the Librarian, or other State officers receive for official duties.

17
Additionally, by Ga. Code Ann., 92-3502, the following provision is found:
All the receipts from the sources mentioned in the preceding section, all fees not specifically awarded to any particular officer, all fines and forfeitures not otherwise disposed of, all monies collected from any source or on any account, to which the state is entitled, not otherwise directed, shall be paid into the State Treasury.
You will note that all of the above-listed charges initiated with some Board under Ga. Code Ann., Ch. 84, containing the State Examining Boards, with the exception of the charges for the license of Security Salesmen. In Ga. Code Ann., 84-101, among the duties of the Joint Secretary of the State Examining Boards is the duty to:
. . . collect all fees required by law in connection with licensing of professions, businesses, and trades, and to remit the same to the State Treasurer. (Emphasis added.)
From an examination of the statutes concerning the Secretary of State as the Commissioner of Securities, no specific provision is made as to the disposition of the fees collected in the administration of statutes setting forth his responsibilities as the Commissioner of Securities. Therefore, your attention is called to the above-cited sections and it is my official opinion that the fees collected by the Secreatry of State as the Commissioner of Securities must be, since same are not specifically awarded to any particular officer, paid into the State Treasury and said fees may not be retained by the Office of Secretary of State as reimbursements for the expenses of that office.
In regard to the two remittance sheets from the Georgia Real Estate Commission, although the specific statute establishing the Georgia Real Estate Commission (Ga. Code Ann., Ch. 84-14), does not provide for the disposition of the fees collected pursuant to said statute, provision for such disposi~ion is made in the above-cited Ga. Code Ann. 84-101, which provides that among the duties of the Joint Secretary of the State Examining Boards is the duty to " . . . collect all fees required by law in connection with the licensing of professions, businesses, and trades, and to remit the same to the State Treasurer."
Therefore, it is my official opinion that the fees collected pursuant to the Chapter establishing the Georgia Real Estate

18
Commission must be transmitted by the Joint Secretary of the State Examining Boards to the State Treasurer and said fees may not be retained by the Office of Secretary of State as reimbursement of expenses of that Office.
In regard to the fees charged under the Chapter establishing the Georgia State Board of Cosmetology (Ga. Code Ann., Ch. 84-44), your attention is called to Ga. Code Ann., 84-4405 which provides, in part, as follows:
All fees collected under this Chapter shall be remitted to the State Treasurer and all salaries and expenses of inspectors and other expenses of said board shall be paid from moneys appropriated to the Joint-Secretary but shall not exceed the amount of fees collected hereunder.
See also Ga. Code Ann., 84-4407.
Therefore, it is my official opinion that the fees collected pursuant to the Chapter establishing the Georgia State Board of Cosmetology must be remitted to the State Treasurer and said fees may not be retained by the Office of Secretary of State as reimbursement of expenses of that Office.
In regard to the fees collected pursuant to the Chapter establishing the State Board of Medical Examiners (Ga. Code Ann., Ch. 84-9), your attention is called to the hereinabove-cited Ga. Code Ann. 84-101 pursuant to which it is my official opinion that said fees must be forwarded by tlie Joint Secretary to the State Treasurer and may not be retained by the Office of Secretary of State as reimbursement of expenses of that Office.
As to the fees charged by the Georgia State Board of Barbers (Ga. Code Ann., Ch. 84-4), it is my official opinion that pursuant to the provisions of the heretofore-cited Ga. Code Ann. 84-101 said fees must be forwarded to the State Treasurer and same may not be retained by the Office of Secretary. of State as reimbursement for expenses of that Office.
Finally, in regard to the charges listed for the Registered Nurses Board (Ga. Code Ann., Ch. 84-10), it is my official opinion that the fees collected pursuant to said Chapter must be forwarded to the State Treasurer as required by Ga: Code Ann. 84-101 and may not be retained by the Office of Secretary of State as reimbursements of expenses of said Office.

19

OPINION 69-14 (Unofficial)

To: County Attorney, Hancock County

January 10, 1969

Re: Duty of sheriff in keeping county jail.
This is in response to your letter of December 13, 1968, in which you requested an opinion as to certain questions raised in a previous letter to this office from the Sheriff of Hancock County. The question he posed was: "The immediate problem concerns the legal requirements as to keeping someone on duty at the jail house at all times and any liability that I might incur by detaining someone in this jail without some deputy or other official being on duty at the jail."
In a 1967 case, Irwin v. Arrendale, the Court of Appeals stated that:

"A jailer or other officer owes to a prisoner in his care the duty to exercise ordinary diligence to keep him safe and free from harm, to render him medical aid when necessary, and to treat him humanely and refrain from oppressing him; and where the officer is negligent in the care and custody of his prisoner or fails in the performance of his duty to him, and as a result the prisoner is injured or meets his death, the officer is personally liable." Irwin v. Arrendale, 117 Ga. App. 1, 3 (1967). See Kendrick v. Adamson, 51 Ga. App. 402 (1935) and Thomas v. Williams, 105 Ga. App. 321 (1962).

Sheriffs are, by virtue of their offices, jailers of the counties. Ga. Code Ann., 24-2812. Sheriffs are liable for the misconduct of the jailers, as they are liable for their deputies. Ga. Code Ann., 24-2812. The misconduct of jailers for which sheriffs are liable is a breach of some duty arising out of official capacity. Tate v. National Security Corporation, 58 Ga. App. 874, 875 (1938).
In view of the foregoing authorities, it is my unofficial opinion that the sheriff of a county is responsible for the county jail and that, under certain circumstances, he can be liable for the acts or omissions of himself or his jailer with reference to the treatment of prisoners incarcerated in the jail. Although I do not find any specific requirement that the sheriff keep someone on duty at the jail at all times, it is my unofficial opinion that failure to do so could result in liability based on neglect.

20

OPINION 69-15

To: State Medical Education Board

January 13, 1969

Re: Construction of Constitutional Amendment concerning State Medical Education Board.

This letter is in response to your request for my opinion on the following questions concerning Constitutional Amendment No. 10, ratified on November 5, 1968, which increased the limits of scholarship loans available to medical students from $5,000 to $1 0,000 and changed the provisions allowing repayment credits for such loans.
Question. "May a physician who was granted a scholarship prior to the passage of the above Amendment, and who has not yet begun repayment of his scholarship, repay such scholarship by practicing in a community with a population of 10,000 or less? "
Question. "May a student now in medical school who has been granted a scholarship based on a maximum of $5,000 for four years ($1 ,250 per year) and who has signed a contract which is governed by previous constitutional amendments, receive an increased amount of scholarship funds as provided under the new Amendment for the remaining years of his medical education...? "

OPINION The answer to both of these questions is "yes." Even though persons have received benefits or otherwise been affected by the provisions of a prior law, they may continue to receive benefits or be affected by the provisions of an amendment to that law. There is a general rule of construction that an amendment becomes a part of the original law as if it had always been contained therein, except that it normally applies only to acts or events occurring after its effective date. See generally, 82 C.J.S. "Statutes" 384, p. 902; Annotation "Statutes-Retroactive Effect," 98 A.L.R. 2d 1106, 1108; Story v. Kimbrough, 33 Ga. 21 (1861); Vickery v. Foster, 74 Ga. App. 167, 172 (1946). Applying these principles to the above questions, a physician who was granted a scholarship prior to the passage of Constitutional Amendment No. 10 may, after the effective date of such Amendment (December 2, 1968), repay such scholarship by practicing in a community with a population of 10,000 or less. Similarly, a student in medical school who has received a scholarship governed by the $5,000 limits of previous Constitutional provisions may, as of the

21
effective date, receieve additional scholarship loans "not to exceed $10,000."
Question. "May a physician who was granted a scholarship prior to the adoption of the above amendment, and has chosen to repay such scholarship by cash but has made no cash payment to date, and who is practicing in a community with a population above 5,000 but less than 10,000 be permitted to repay his scholarship by practice? If your opinion on this question is in the affirmative, what date should be used for the beginning date of such practicethe actual date practice was begun (before November 5, 1968),"the date the Amendment was passed (November 5, 1968), the date the Amendment was proclaimed by the Governor, or some other date?"
OPINION Such a physician may repay his scholarshlp loan by practicing in a community with a population of more than 5,000, but not exceeding 10,000, only after the effective date of Constitutional Amendment No. 10 which is December 2, 1968, the date of proclamation by Governor. Allowing a physician to receive loan credits for such practice prior to the effective date of the Amendment would violate the general rule against giving retroactive effect to any law by creating or enlarging rights as to acts done prior to its passage. See, 82 C.J.S. "Statutes" 414 et seq.; Annotation, supra, 98 A.L.R. 2d 1106, 1110; Ga. Code Ann. 102-104; Williams Bros. Lumber Co. v. Anderson, 210 Ga. 198 (1954). This principle of construction is applicable to constitutional amendments as well as statutes, Whittle v. Jones, 198 Ga. 538, 543 (1944), and will control unless there is a clearly shown intention to the contrary. National Surety Corp. v. Gatlin, 192 Ga. 293, 299 (1941). The legislative intent not to apply the community practice provision retroactively is indicated in this case by the retroactive effect given specifically and exclusively to the State institutional practice provision. It provides:
"Credit for practice ... at any facility operated by or under the jurisdiction of State Department of Public Health or [other State institutions] shall be retroactive and shall apply to any applicants engaging in such practice at any time."
Since this explicit retroactive feature is not found in the community practice provision, a presumption would arise that the legislative intent was not to give retroactive credit under the new Amendment for community practice in communities of more than

22
5 ,000 but not exceeding 10,000 in population. See, e.g., Thompson v. Talmadge, 201 Ga. 867, 883 (1947); Focht v. American Cas. Co., 103 Ga. App. 138, 140 (1961). Rather, such credit for community practice could only be received after the effective date of the Amendment.
Question. "If a physician practicing in a community of 10,000 or less population has paid a portion of his scholarship in cash, would he be permitted to repay the balance due on his scholarship by services? "
OPINION Yes, provided that he practices in such community for three years after December 2, 1968. Although the Amendment provides that:
"one-fifth of the loan or scholarship, together with interest thereon, shall be credited to the applicant for each year of practicing his profession in a community of 10,000 or less ... ,"
there is a subsequent qualifying provision which seems to require a minimum of three years practice before the balance of any loan may be paid in cash. It provides:
"After the third full year of practice or services within this State as herein provided, but not before, the said applicant shall be privileged, entirely at the discretion of the Board to pay off the balance of the scholarship or loan, together with accrued interest thereon, and upon such payment shall be relieved from further obligations under his contract for loan or scholarship." (Emphasis added.)
This provision taken together with the entire constitutional amendatory scheme can only mean that a minimum of three years practice in a qualifying community or State institution is required before any credit may be given, or "the balance" of the scholarship loan can be paid pff in cash. Thus, those physicians who have practiced in a community of 10,000 population or less for at least three years after December 2, 1968, may receive credit for "one-fifth of [their] loan or scholarship, together with interest thereon ... for each year [of such practice]."

23

OPINION 69-16 (Unofficial)

To: Clarke County Investigator

January 14, 1969

Re: Transportation and possession of taxpaid liquors in wet county.

This is in reply to your request for advice concerning the transportation and possession of Georgia taxpaid liquors in Clarke
County, Georgia. Clarke County has elected to tax and control alcoholic liquors but has not yet issued any licenses. Specific reference is made to a case involving the transportation of a large amount of taxpaid liquor including two cases of liquor in unopened sealed cases.
The Court of Appeals of Georgia held in the case of Johnson v. Kinard, 102 Ga. App. 835,838 (1960):

" ... the only penalty against the illegal possession of taxpaid whisky in a wet county is that the law makes the whisky contraband and subject to confiscation."

Georgia law does not prohibit the possession of more than two quarts of taxpaid whisky at any given time within a wet county, nor does it prohibit the transportation of such whisky when it was lawfully acquired. The act regulating the sale of alcoholic beverages does forbid the sale at retail of more than two quarts per day per person and declares any whisky sold in violation thereof to be contraband. Ga. Code Ann. 58-1080. See also, Martin v. Cook, 72 Ga. App. 741 (1945). Liquors which were sold contrary to the provisions of the beverage control act are contraband, Redwine v. Berry, 210 Ga. 567 (1954), and when seized must be turned over to the State Revenue Commissioner. Ga. Code Ann. 58-1065.
Georgia law prohibits the transportation of untaxed liquors in wet counties (Ga. Code Ann. 58-1013), but prior to 1964 it was not a violation of law to transport liquor in a wet county-taxpaid or not. Clements v. State, 85 Ga. App. 614 (1952).
Neither the driver of the vehicle referred to in your letter nor his passenger are guilty of violating any law in Clarke County and the vehicle used by them to transport the taxpaid liquor is not subject to seizure. The liquor appears to be contraband as it was not purchased two quarts per day and it should be delivered to the State Revenue Commissioner.

24

OPINION 69-17 (Unofficial)

To: Private Inquirer

January 15, 1969

Re: Homestead exemption; net income for persons 65 years or older-personal exemptions and credits not considered.

This is in response to your letter of January 11, 1969, wherein you requested an unofficial opinion as to whether or not you qualify for the new homestead exemption for persons over 65 years of age adopted as a Constitutional Amendment this past general election.
The pertinent part of this amendment states:

" 'Each person who is sixty-five (65) years of age or over is hereby granted an exemption from all State and county ad valorem taxes in the amount of $4,000.00 on a homestead owned and occupied by him as a residence if his net income, together with the net income of his spouse who also occupies and resides at such homestead, as net income is defined by Georgia law, from all sources, including any federal old-age, survivor or disability insurance benefits or benefits received from any retirement or pension fund when such benefits are based on contributions made thereto by such person or his spouse, does not exceed $4,000.00 for the immediately preceding taxable year for income tax purposes.' "

Ga. Code Ann. 92-3108 defines net income as "the gross income of a taxpayer less deductions allowed by this law."
Ga. Code Ann. 92-3109 sets out the deductions allowed by law. These are business expenses, interest paid, taxes, bad debts, contributions or gifts, medical and dental care, etc.
Ga. Code Ann. 92-3106 sets out personal exemptions and credits. These are to be subtracted from net income in determining the net taxable income.
From the above Code sections it can be seen that the personal exemptions and credits are not considered in arriving at net income.
You state that your income for last year was:

"Retirement System Social Security Interest on Savings
Total

$ 2,735.64 $ 2,300.80 $ 271.26 $ 5,307.70"

25

Assuming that your wife had no income last year, you would determine whether or not you were entitled to the new homestead exemption for persons over 65 years of age by subtracting from your gross income all deductions allowed by law; if your income then does not exceed $4,000.00 you would be entitled to the exemption.

OPINION 69- 18 (Unofficial)

To: Private Inquirer

January 16, 1969

Re: Killing Wildlife to Protect Private Property.

This is in response to your inquiry on the above. Specifically, you have asked whether an orchardist may legally employ persons to kill deer found damaging his fruit trees.
All wildlife belongs to the State and any killing thereof is a privilege to be exercised only in accordance with the laws granting such privilege. Ga. Laws 1968, pp. 497, 501.
The Georgia law provides that deer may be taken only by persons observing the relevant seasonal, bag, and licensure requirements. Any person hiring another to kill wildlife is deemed to have killed such wildlife himself and is subject to the penalties provided by the applicable laws and regulations. Ga. Laws 1955, pp. 483,517.
I am unaware of any statutory or regulatory exemption which would authorize the killing of deer in defense of property.
As stated by the Court of Appeals of New York in Barrett v. State, 220 N.Y. 423, 116 N.E. 99, 100 (1917):

" 'The protection and preservation of game has been secured by law in all civilized countries, and may be justified on many grounds .... The measures best adapted to this end are for the Legislature to determine, and courts cannot review its discretion. If the regulations operate, in any respect, unjustly or oppressively, the proper remedy must be applied by that body.' Phelps v. Racey, 60 N.Y. 10, 14, 19 Am. Rep. 140.
"Wherever protection is accorded, harm may be done to the individual. Deer or moose may browse on his crops; mink or skunks kill his chickens; robins eat his cherries. In certain cases the Legislature may be mistaken in its belief that more good than harm is occasioned. But this is clearly a matter which is confided to its discretion. It exercises a

26

governmental function and no one can complain of the incidental injuries that may result." Accord, Corron v. State, 10 N.Y.S. 2d 960, 170Misc. 811 (1939);Bishop v. U.S., 126 F. Supp. 449 (1954), cert. denied, 349 U.S. 955 (1955).

Therefore, I am reluctantly forced to conclude that your question must be answered in the negative.

OPINION 69- 19

To: Revenue Commissioner

January 16, 1.9-6-.9

Re: City-owned gas facility; services rendered and property located out of its county are subject to ta:lat1on as privately owned and operated utilities.

This is in response to your letter of January 15, 1969, wherein you requested an opinion as to the liability of the City of Warner Robins in Houston County for Twiggs County ad valorem taxes where the city owns a gas facility which serves customers both in Houston and Bibb Counties and has a gas transmission line a part of which is located in Twiggs County.
The answer to this question is to be found in Art. VII, Sec. VII, Par. V of the Constitution of the State of Georgia (Ga. Code Ann. 2-6005). The pertinent part of this provision states that:

" ... if municipalities, counties or other political subdivisions shall purchase, construct, or operate such electric or gas utility plants from the proceeds of said revenue certificates, and extend their services beyond the limits of the county in which the municipality or political subdivision is located, then its services rendered and property located outside said county shall be subject to taxation and regulation as are privately owned and operated utilities." (Emphasis added.)

From the above it is clear that if the City of Warner Robins has extended services beyond the limits of Houston County its property located outside of Houston County is subject to taxation just as are privately owned and operated utilities.
Therefore, it is my official opinion that the City of Warner Robins is subject to Twiggs County ad valorem taxes on the part of the gas transmission line located in Twiggs County.

27

OPINION 69- 20 (Unofficial)

To: Constable, Georgia Military District 1644 January 17, 1969

Re: Assessment and refund of costs for peace warrants.

The Code section providing for assessment and refund of costs for peace warrants reads as follows:

"Judicial officers, so authorized, shall not be required to issue the warrant provided for in this Section until the person requesting the warrant be issued shall deposit with such judicial officer a sum not to exceed $12 to be applied against the total cost in said proceeding. At the termination of the proceedings, if there be any or all of such deposit remaining because of dismissal or because the costs are assessed against another party, such remaining sum shall be refunded to the depositor." Ga. Laws 1962, pp. 121, 122 (Ga. Code Ann. 76-201).

The provision thus anticipates that the depositor shall receive a refund of his deposit in two events, i.e., (1) the action is dismissed, or (2) costs are assessed against another party. The depositor should be charged for costs only to the extent that costs are assessed against him and should not be required to pay costs charged against another party. Thus, the extent of the refund is determined by who is required to pay the costs.

OPINION 69- 21

To: Director, State Board of Corrections

January 17, 1969

Re: Prisoner may be paid for blood with warden's approval.

This is in reply to your letter in which you ask whether or not a hospital may pay an inmate of the Georgia Correctional System a fee for blood. Ga. Laws 1961, p. 45 (Ga. Code Ann. 77-327) prohibits trading or trafficking with any convict without the knowledge and consent of the warden or deputy warden in charge of the prisoner. So long as the appropriate warden or deputy warden is aware of the blood collection program carried on by the hospital and approves the payment of fees to inmate donors, it is my opinion that the hospital may collect blood from an inmate and pay him a fee for it. Your question is answered in the affirmative.

28

OPINION 69-22 (Unofficial)

To: District Attorney, Fulton County

January 20, 1969

Re: Chief Prosecuting Officer of Criminal Court of Fulton County is not a District Attorney.

This is in reply to your letter in which you ask whether or not

the constitutional amendment ratified November 5, 1968, (Ga.

Laws 1968, p. 1567) changes the title of the Prosecutor of the

Criminal Court of Fulton County from "Solicitor General" to

"District Attorney."

The Prosecutor of the Criminal Court of Fulton County is

referred to as "Solicitor General" in the Act creating the court.

Ga. Laws 1890-91, Vol. II, pp. 935,937.

Section 1 of the 1968 constitutional amendment amended the

Georgia Constitution, Art. VI, Sec. II, Par. IX (Ga. Code Ann.

2-3709) by striking the words "Solicitor General" and substituting

in lieu thereof the words "District Attorney." Ga. Laws 1968, p.

1567. The substituted words form the phrase "District Attorney

of the judicial circuit" (Ga. Laws 1958, pp. 1567, 1568) and

plainly refer to the prosecutors of the superior courts.

Section 2 of the 1968 amendment strikes Art. VI, Sec. XI, Pars.

I and II (Ga. Code Ann. 2-4601 and 2-4602) and inserts three

new paragraphs. The first and second new paragraphs of the

Georgia Constitution, Art. VI, Sec. XI are virtually identical to

their predecessors except for the use of the phrase "District

Attorney" instead of the phrase "Solicitor General." Georgia

Constitution, Art. VI, Sec. XI, Pars. I and II refer to the

prosecutors of judicial circuits. Clearly, the reference is to

prosecutors representing the State in the superior courts.

Sections 3 and 4 of the 1968 amendment deal with the office of

District Attorney in a manner that leads inescapably to the

conclusion that the office referred to is that of the prosecutor of a

judicial circuit.

With the foregoing provisions in mind, I turn now to Georgia

Constitution, Art. VI, Sec. XI, Par. III (Ga. Laws 1968, pp. 1567,

1569) which provides: "Wherever the words 'Solicitor General' are

used in any statute they shall be held and taken to mean the

District Attorney." If the title of the Prosecutor of the Criminal

Court of Fulton County has been changed from "Solicitor

General" to "District Attorney," it must be by virtue of the

quoted language of Art. VI, Sec. XI, Par. III. The question must be

resolved by determining to whom the phrase "Solicitor General,"

as used in Art. VI, Sec. XI, J>ar. III refers.

'

:>.)0.

29

The cardinal rule in the construction of a legislative Act is to determine the true intention of the General Assembly. Gazan v. Heery, 183 Ga. 30 (1936). The court has further held that "Perhaps the most important matter to be considered in the construction of any statute is the purpose for which it was enacted, if such can be ascertained." Trust Company of Georgia v. Mortgage-Bond Company of New York, 203 Ga. 461,474 (1948). It .is my opinion that the purpose of the 1968 amendment was to change the name of the prosecutors of the various judicial circuits throughout the State from "Solicitor General" to "District Attorney." It is my further opinion that the intended change related to the title of those officers who represent the State in the superior courts. In legislation having Statewide application and in the Constitution it appears that the phrase "Solicitor General" has been universally understood to mean the prosecutor appearing on behalf of the State in the superior court and representing the State in a particular judicial circuit. The "words used in a statute, are always to be understood as having a regard to the subject matter thereof. . . . Words and phrases, the meaning of which has been ascertained in a statute, are, when used in a subsequent statute, or in subsequent parts of the same statute, to be understood in the same sense." Lane v. Morris, 10 Ga. 162, 173 (1851 ). Based upon the foregoing, it is my opinion that the phrase "Solicitor General" as used in Georgia Constitution, Art. VI, Sec. IX, Par. Ill, refers solely to prosecutors of the superior courts. Therefore, it is my opinion that the 1968 amendment does not change the title of the Solicitor General of the Criminal Court of Fulton County.

OPINION 69-23

To: Director, State Board of Corrections

January 20, 1969

Re: Warrant charging an inmate with an offense does not constitute filing a detainer.

This is in reply to your written request, and will serve as confirmation of my previous oral advice to you, concerning attempts to file detainers with the State Board of Corrections . supported by warrants only.
A detainer has been legislatively defined as "A written instrument executed by the prosecuting officer of a court . . . requesting that the State Board of Corrections retain custody of an inmate . . . to which is attached a copy of the indictment, accusation or information which constitutes the basis of the request." Ga. Laws 1968, pp. 1110, 1111. It is my opinion ~hat a
5 ~.111,~..~ ... ..._:).. 'Q....' '*._61

30

request for the retention of an inmate supported by warrant only does not constitute the filing of a detainer within the meaning of the 1968 Act.

OPINION 69-24

To: Director, Department of Public Safety

January 20, 1969

Re: Powers of arrest cannot be vested upon an individual by an agency of the State.

This is in reply to your letter in which you ask whether or not the Department of Public Safety or some other branch of State government may authorize a retired military officer and certain other officers of a horse rangers' group to make arrests throughout the State of Georgia.
Powers of arrest have been specifically conferred upon various individuals and classes of persons by legislative enactments. Ga. Code Ann., Ch. 27-2. None of these acts grant arrest powers to retired military officers or to any other person who may have assembled a group of horse rangers. A law enforcement officer who has been legislatively authorized to make arrests may not delegate his arrest powers to another. Robinson v. The State, 93 Ga. 77 (1893). It is my opinion that neither the Department of Public Safety nor any other agency of State government may delegate its arrest powers to the officers of this horse rangers' group.

OPINION 69-25 (Unofficial)

To: Chairman, Board of Tax Assessors, Laurens County

January 20, 1969

Re: Employment of personnel to assist county officers.

This is in reply to your request for advice concerning the employment of personnel to assist the county maintain the county tax digest. I understand that the county has recently completed a tax reevaluation and equalization program supervised by the State Revenue Department and the. personnel referred to in your letter will assist in maintaining this program.
You mentioned in your letter that someone has objected to the

31

employment of maintenance personnel and has cited the case of Bagwell Comm., et a!. v. Cash, et a!., 207 Ga. 222 (1950) as authority for the proposition that such can not legally be done. That case held that the county could not pay again for the specific services which are the duties of the tax assessors. The court held in that case that if the tax assessors want to employ others to perform services which the law requires them to perform they must appeal to the legislature for laws authorizing such expenditures. The Bagwell case is thus distinguished from the question you pose as the employees here are to aid and assist the tax commissioner and the tax assessors, not perform the duties specifically imposed on them by law.
The recent case of Whatley, et al. v. Taylor County, et al., 224 Ga. 669, 671 ( 1968) held that under a statute enacted in 1968 (Ga. Laws 1968,p.447)

" ... county commissioners are now expressly empowered to expend county funds to employ personnel to assist any ~ounty officer in the discharge of his duties, ..."

. The county is therefore authorized to employ personnel to assist the tax assessors in maintaining the tax digest and the tax equalization program in your county.

OPINION 69-26 (Unofficial)

To: Constable

January 20, 1969

Re: A constable may exercise his powers while on duty as a city policeman.

This will acknowledge receipt of and reply to your letter in which you ask whether or not a constable may execute his powers as a constable while on duty as a city police officer dressed in a police officer's uniform and equipped with a city patrol car. As a general proposition, I know of nothing that would prevent a constable from acting as such while on duty as a city police officer. I express no opinion, however, as to the propriety of spending city funds in connection with the execution of duties not required of a city police officer.

32

OPINION 69-27

To: Georgia Public Service Commission

January 21, 1969

Re: Jurisdiction of Public Service Commission over resale of electric energy.

You have requested my opinion on whether the Georgia Public Service Commission has jurisdiction over the rates charged by a trailer park owner who receives electric energy from an electric membership corporation and then resells this energy to tenants occupying space in his trailer park. I understand that this service is restricted to tenants of the trailer park and the owner is not offering this service to the general public in that area of Georgia.
Georgia law extends the authority of the Public .Service Commission

''. . . to gas and electric light and power companies, corporations, or persons owning, leasing, or operating public gas plants or electric light or power plants furnishing service to the public." Ga. Code Ann. 93-304.

The threshold problem is whethyr the resale of electric energy to tenants of a trailer park under the stated circumstances constitutes such "service to the public" as contemplated by Ga. Code Ann. 93-304.
My research has not uncovered any Georgia authority on this problem. Generally, whether a business operation renders such "service to the public" as to become a public utility is controlled by the facts of each particular case and the question depends on such factors as the extent of the service, whether the operation holds itself out as ready to serve the public generally-at least within a certain area-and whether, perhaps, in other ways it has conducted itself as a public utility. Clark v. Olson, 1.77 Wash. 237, 31 P.2d 534 (1934); see also 35A Words & Phrases, Public Utility, pp. 86-89, 91-99 (1963).
I have reviewed a large number of cases decided by our sister states and in the great majority of cases, the courts have held that, under statutes similar to Georgia's, the sale of water or electric energy to one's tenants, whether they be tenants of one's houses, office buildings or otherwise, was not such service to the public as to require compliance with the state laws on public utilities. Klatt v. Railroad Commission, 192 Cal. 689, 221 P. 926 (1923); Richardson v. Railroad Commission, 191 Cal. 916, 218 P. 418

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(1923); State ex rei Danciger & Co. v. Public Service Commission, 275 Mo. 483, 205 S.W. 36 (1918); State v. Public Service Commission of Missouri, 178 SW2d 788 (Mo. Ct. App. 1944); Junction Water Co. v. Riddle, 108 N.J.Eq. 523, 155 A. 887 (1931); Jones v. Swetland Co., 119 Ohio St. 12, 162 N.E. 45 (1928); Overlook Development Co. v. Public Service Commission, 306 Pa. 43, 158 A. 869 (1932), affirming opinion of lower court found in 101 Pa. Super. Ct. 217 (1930); Clark v. Olson, 177 Wash. 237,31 P.2d 534 (1934);Holdred Collieries v. Boone County Coal Corp., 97 W.Va. 109, 124 S.E. 493 (1924).
In the absence of any indication to the contrary, I must assume that Georgia would follow the clear majority view in the United States. Therefore, it is my opinion that under the present law, the Georgia Public Service Commission does not have jurisdiction over the rates charged by a trailer park owner to his tenants occupying space in his trailer park.

OPINION 69-28 (Unofficial)

To: County Attorney, Hart County

January 22, 1969

Re: Home Rule for Counties; and other matters.

This will acknowledge your letter dated November 18, 1968, wherein you inquired as to the authority for increasing the salary of the employees in the office of the Tax Commissioner of Hart County, Georgia, the employment of a third deputy sheriff for Hart County, and the purchase of a third automobile for the sherifrs office, all without amendment by the General Assembly of Georgia of the statutes relating to Hart County.
Your attention is called to Ga. Laws 1963, pp. 2315-17, which provides that the Tax Commissioner of Hart County is

... hereby authorized and empowered to appoint one assistant, who shall be compensated in the amount of two hundred fifty ($250.00) dollars per month from the funds of Hart County. Said assistant shall assist the tax commissioner in the performance of his duties and shall serve at the pleasure of the tax commissioner. The tax commissioner is further authorized and empowered to employ clerical assistance to be compensated from the funds of Hart County as hereinafter set forth. Any such person employed to perform and render clerical assistance shall be compensated

34
in an amount no greater than that paid the assistant appointed by the tax commissioner for an equal time of employment and the total sum allowed to be paid from the funds of Hart County for such clerical assistance shall not exceed one thousand ($1 ,000) dollars per annum. Except as herein provided, all other persons employed by the tax commissioner to assist him in the performance of the duties of his office shall be compensated by the tax commissioner out of the salary herein provided for such tax commissioner.
As you know the provisions of a statute enacted by the General Assembly of Georgia cannot be altered except through an amendment passed by the General Assembly. Therefore, it is my unofficial opinion that the salaries of the employees of the Hart County Tax Commissioner cannot be increased without the enactment of an amendment to the above-mentioned statute by the General Assembly of Georgia.
A question might arise as to whether the change which you seek could be accomplished pursuant to the Georgia constitutional provision on home rule for counties (Ga. Code Ann. 2-8402 to 2-8406). However, since the Tax Commissioner of Hart County is an elected county officer (Ga. Laws 1935, pp. 687-88), it is my unofficial opinion that action under the county home rule provision is prevented by Ga. Code Ann. 2-8402(c) which provides that:
The power granted to counties in subparagraphs (a) and (b) above shall not be construed to extend to the following matters or any other matters which the General Assembly by general law has preempted or may hereafter preempt, but such matters shall be the subject of general law, or the subject of local Acts of the General Assembly to the extent that the enactment of such local Acts is otherwise permitted under this Constitution: 1. Action affecting any elective county office, the salaries thereof, or the personnel thereof, except the personnel subject to the jurisdiction of the county governing authority.
In your letter you stated that the sheriff's office presently has two automobiles and two deputies and you inquired as to the possibility of the sheriff employing another deputy sheriff and purchasing another automobile.
By Ga. Laws 1965, pp. 3119 at p. 3122, provision is made that the Sheriff of Hart County " .. .is hereby authorized to appoint

35
two (2) deputy sheriffs ...."For the same reason as above stated, it is my unofficial opinion that the home rule for counties provision does not permit the addition of a third deputy sheriff.
Finally, by Ga. Laws 1965, at p. 3122, provision is made that "The board of finance of Hart County is hereby authorized to purchase two (2) automobiles ...." In regard to the purchase of an additional automobile for the sheriff's office, you may wish to consider whether such a purchase could be effectuated through the use of the home rule for counties provision of the constitution, or whether an amendment to the above-cited statute would be necessary or desirable.
OPINION 69-29
To: Joint-Secretary, State Examining Boards January 23, 1969
Re: License fees of used car dealers.
This is my official opinion as to the proper method of computing license fees to be paid by applicants to the State Board of Registration of Used Car Dealers under Ga. Laws 1960, p. 801 [Ga. Code Ann. 84-3908(c)J.
OPINION I. For new applicants:
A. Present calendar year. The first step in applying this Section to the present calendar year (January 1-December 31), is to determine whether the applicant has already begun to do business after January 1. If the new applicant has already begun to do business in the present calendar year prior to the time he applies for a new license, he would owe: 1. $75.00 for each principal place of business; and 2. $55.00 for a supplemental license covering each used car lot not adjacent to his principal place of business. If the new applicant has not begun to do business in the present calendar year, he would owe: 1. $25.00 for each principal place of business; and 2. $5.00 for each supplemental license. B. Previous years. This section also requires that license fees for all prior years since April 1, 1958, during which the applicant was covered by the Act and doing business must be paid. Thus, the next step is to determine:

36
1. Whether the applicant was covered by the Act in prior years, and if so, for how many years. [On February 20, 1968, all dealers came under the Act; prior to this date only those dealers in counties with population of 50,000 (1950 census) or over or within the 14,500-14,900 population bracket (1960 census) were covered.] 2. Whether the applicant was doing business without a license in any prior year in which he was covered by the Act. If the new applicant was covered by the Act and doing business without a license in. any prior year since April 1, 1968, he would owe for each such prior year: 1. $75.00 for each principal place of business; and 2. $55.00 for each supplemental license.
II. For renewal applicants. The section provides that all licenses expire on December 31 of each year, but allows for renewal without penalty if: 1. Fees are paid by March 31 of the following year; and 2. The renewal applicant has not already begun to do business during this time. Thus, if the renewal applicant applies before March 31 of the following year and has not begun to do business, the renewal license fee would be: 1. $25.00 for each principal place of business; and 2. $5.00 for each supplemental license. If the renewal applicant applies after March 31, or has already begun to do business, the renewal license fee would be: 1. $75.00 for each principal place of business; and 2. $55.00 for each supplemental license. Also, if the renewal applicant was covered by the Act and has not been licensed in prior years, he must pay back fees as explained in paragraphs I (b).
The section does not make clear whether the fees for prior years must be paid before a license for the current year can be obtained. However, such prior payment is probably the intent of the Act and should be made clear by rule.

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OPINION 69-30 (Unofficial)

To: Private Inquirer

January 23, 1969

Re: Motor Fuel Tax Assessment-State Revenue Commissioner has authority to waive penalty and interest under certain circumstances.

This is in reply to your letter concerning a motor fuel tax controversy wherein you inquired as to the State Revenue Commissioner's authority to compromise or settle a claim for less than the amount due in the event the Commissioner feels that equity and justice would require such a settlement.
From your letter it is my understanding that the present status of the controversy is that the Revenue Department has determined that your client owes the State additional motor fuel taxes, penalties and interest and that an assessment has been or will be made.
You are aware, of course, that a public official has only such authority as conferred by law upon him. There is a provision authorizing the Commissioner to waive penalties and interest under certain circumstances. Ga. Laws 1960, p. 990, provides, in part, as follows:

"Section 1. The State Revenue Commissioner is authorized to waive the collection of any amount due the State as a penalty under any revenue law of this State, in whole or in part, whenever, or to the extent that, he may determine that the default giving rise to such penalty was due to reasonable cause and not due to gross or willful neglect or disregard of the law, regulations or instructions pertaining thereto.

"Section 2. The State Revenue Commissioner is authorized to waive the collection of any interest due the State on any unpaid taxes, in whole or in part, whenever, or to the extent that, he may determine that the delay in payment of such taxes was attributable to the action or inaction of the Revenue Department."

I know of no provision authorizing the commtsswner to compromise or settle the principal amount of tax in dispute in the above situation where there is no dispute as to the facts and the commissioner finds that the assessment is correct in all respects.

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OPINION 69-31 (Unofficial)
To: District Attorney Ocmulgee Judicial Circuit January 23, 1969
Re: 1968 Amendments to Uniform Act Regulating Traffic on Highways.
Your four questions in reference to Ga. Laws 1968, vol. 1, p. 448, were:
1. Who must make reports to the Department of Public Safety as required by Section 3 of this statute which read8 as follows: "All convictions and pleas of nolo contendere for violations of this law on second and subsequent offenses in any court of this State shall be promptly reported by said court to the Georgia Department of Public Safety. Any person who willfully fails to make such reports shall be guilty of a misdemeanor."?
It is my unofficial opinion that the clerk of court has this reporting responsibility.. Ga. Code Ann. 92A-430 and 92A-9908.
2. How should the clerk, in order to avoid liability, determine when a conviction or plea of nolo contendere must be reported?
It is my unofficial opinion that the clerk's duty to report is based on prior convictions or nolo contendere pleas reported in his court. Only when a conviction or plea of nolo contendere is the second or subsequent appearance of the defendent in this particular court does the clerk subject himself to liability for willful failure to report.
3. Is the minimum fine of $1 00 still in effect?
No. Former Ga. Code Ann. 68-9927 has been repealed by Ga. Laws 1968, vol. 1, p. 448, which is now reported as Ga. Code Ann. 68-9927.
4. If an offender forfeits cash bond, how is his drivers .iice.!lse suspended?

39

It is my unofficial opinion that in this event the license will be revoked by the Department of Public Safety. Ga. Code Ann. 92A-608.

OPINION 69-32 (Unofficial)

To: Private Inquirer

January 23, 1969

Re: County Commissioner may designate solvent banks as depositories for county funds.

You have requested our unofficial opinion on whether or not the County Commissioner of Chattooga County can designate more than one bank as a depository for county funds provided each bank meets the requirements set out by law.
On March 16, 1933, the Governor approved an Act which covers every public officer in Georgia who by any law is required to collect public funds and to account for these funds to the State or any of its political subdivisions. Ga. Laws 1933, p. 78; Ga. Code Ann. Ch. 89-8. The Act specifically included county authorities and further provided that such authorities shall designate "one or more solvent banks as depositories of all county moneys and money belonging to the school funds of the county. . . ." (Emphasis added.) Ga. Laws 1933, pp. 78, 83; Ga. Code Ann. 89-811.
On the same day, March 16, 1933, the Governor also approved a local Act entitled "Chattooga Treasury - Depository" which abolished the office of county treasurer and provided that the Commissioner of Chattooga County shall "designate some solvent chartered bank in said county as a depository of all county funds of said county ...." (Emphasis added.) Ga. Laws 1933, p. 446.
Since the special law limits it to one bank and the general law provides for one or more banks, there is an irreconcilable conflict and our problem is to determine which of the two (2) laws controls. The Georgia Constitution provides that no special law may be enacted in any case for which provision has been made by an existing general law. Georgia Constitution, Art. I, Sec. IV, Par. I (Ga. Code Ann. 2-401); Civil Service Board of Fulton County v. MacNeil, 201 Ga. 643 (1946). If the special Act was approved after the general Act, then the special Act must yield to the general Act. If we assume that the special Act was approved first, then the subsequent general Act which is in irreconcilable conflict would be the latest expression of the Legislature's intent and

40

would repeal any prior inconsistent legislation: Leonard v. State of Georgia, 204 Ga. 465 (1948).
It is therefore my unofficial opinion that the County Commissioner of Chattooga County may designate one or more banks as depositories of county funds provided each bank complies with the requirements set forth by law.

OPINION 69-33 (Unofficial)

To: City Clerk, City of Covington

January 23, 1969

Re: Traffic control devices; Municipal tort liability-use of speed breakers.

This is in reply to your letter dated January 7, 1969, in which you ask for our comments concerning a municipality's potential tort liability in accident cases involving speed breakers constructed on residential streets within the city.
Tort liability turns upon the facts in each case. Therefore, it is impossible to deal with every conceivable set of circumstances which might indicate liability in an accident case involving a speed breaker erected by a municipality. I wish to call your attention to Town of Fort Oglethorpe v. Phillips, 224 Ga. 834 (1968) which holds as a general proposition that a municipality may be liable for damages it causes to third parties from the operation or maintenance of a nuisance regardless of whether the municipality exercised a governmental or ministerial function. In Town of Fort Oglethorpe v. Phillips, supra, a traffic control device maintained by the municipality played a principal role in the litigation.
Although you have assumed that a municipality may construct and maintain speed breakers, I feel it is my duty to advise you that speed breakers are not authorized traffic control devices. The authority for the City of Covington to regulate traffic is derived from its charter (Ga. Laws 1962, p. 2003, as amended by Ga. Laws 1966, p. 2437) and Ga. Code Ann. 68-1611.
The State manual mentioned in Ga. Code Ann. 68-1611 is the "Georgia Manual on Uniform Traffic Control Devices for Streets and Highways" which is published by the State Highway Department. This manual does not include a description or other treatment of speed breakers. Inasmuch as Ga. Code Ann. 68-1611 requires all traffic control devices to conform to the State manual, and inasmuch as that manual does not treat speed breakers, it is my opinion that a speed breaker is not an authorized traffic control device which may be constructed and maintained by a municipality.

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OPINION 69-34 (Unofficial)

To: Justice of the Peace

January 24, 1969

Re: Justice of the Peace Courts; Furnishing Quarters and Materials.

This will acknowledge receipt of your letter to the Honorable Ben W. Fortson, Jr., Secretary of State, which by subsequent letter Mr. Fortson forwarded to this office for answering.
In your letter you inquire as to possible statutes of the State of Georgia regarding the supplying of office space and equipment to justices of the peace by the various counties of the State.
In answer to your question, your attention is called to Ga. Code Ann. 24-905 which provides as follows:

The commissioners of roads and revenues or other authority upon whom such duties fall in the various counties shall have the power in their discretion to provide from time to time and pay for suitable quarters for the holding in any militia district in the various counties of justice of the peace courts, and to keep the same in repair, and to furnish and keep in repair the necessary furniture and other materials necessary for the conduct of such courts, and pay for the same out of the county funds.

Therefore, in answer to your question, it is my unofficial opinion that the furnishing of accomodations for the holding of justice of the peace courts is a matter within the discretion of either the commission of roads and revenues of the various counties, or such other county authority upon whom the duties normally designated to the commission of roads and revenues fall.

OPINION 69-35 (Unofficial)
To: Assistant Director State Crime Laboratory January 24, 1969
Re: The results of chemical tests taken under the Implied Consent Law must be reported to Department of Public Safety.
You have written Mr. Bolton requesting an opinion as to

42
whether the furnishing of the results of the chemical tests to the Department of Public Safety pursuant to the Implied Consent Law is mandatory or discretionary. You requested also that if the furnishing of the test results were found to be mandatory, what steps could the Department of Public Safety employ to compel compliance with Section 570-9-.06 (13) of its Rules and Regulations.
On November 27, 1968, the Department of Public Safety promulgated certain Rules and Regulations under the Implied Consent Law (Ga. Laws 1968, p. 448; Ga. Code Ann. 68-1625, 68-1625.1 ), which included the following language at 570-9-.06 (13):
"(13) Except as forbidden by law, a report of every chemical test, including alcohol screening tests, shall be made. These reports shall be submitted in the appropriate, approved forms supplied by the Department of Public Safety.
Distribution of these reports shall be:
(a) Original to Revocation Unit, Department of Public Safety, Box 1456, Atlanta, Georgia, 30301;
(b) Copy to the arresting officer;
(c) Copy to the court of the county or city having jurisdiction;
(d) Copy to be retained by individual administering test."
The language in this Regulation clearly makes the furnishing of the chemical test results mandatory and not discretionary upon the law enforcement agency where the test is performed.
The Implied Consent Law contains language which could be utilized .by the Department to compel compliance with this Regulation. Ga. Code Ann. 68-1625 (6)(c) provides, in part, that the blood or breath test must be performed by a person possessing a valid permit issued by the State Crime Laboratory for this purpose, these permits being "subject to termination or revocation at the discretion of the State Crime Laboratory." Therefore, the Department could revoke the permits of such individual or individuals who refuse to comply with the Regulations

43

promulgated under this Law if the Department had established a Regulation which set forth the procedures by which and conditions upon which such permits would be revoked. Without a Regulation providing the permit holder with notice of what acts on his part might result in the revocation of his permit, the general power contained in the Implied Consent Law could not be implemented.
Therefore, it is my opinion that while the Department has the power to revoke permits under the Implied Consent Law, such revocation would be unlawful unless and until the Department adopted regulations prescribing the conditions and procedures for permit revocation. This in no way alters my opinion concerning the mandatory nature of reporting the results of the blood and breath tests, but without penalties for non-compliance, this requirement might be rendered meaningless.

OPINION 69-36 (Unofficial)

To: Assistant Director, Chattahoochee-Flint Area Planning

and Development Commission

January 27, 1969

Re: Sales to a municipal or county Planning Commission not subject to the Georgia Sales and Use Tax.

The question raised by your letter of December 26, 1968, has been litigated in the Superior Court of Richmond County in an appeal from a sales and use tax assessment brought by the Augusta-Richmond County Planning Commission. The court ruled that the Augusta-Richmond County Planning Commission is an agent of the city and county governing authorities, and as such, is exempt from the sales and use tax under section 3(c)2(d) of the Georgia Retailers' and Consumers' Sales & Use Tax Act. Ga. Code Ann. 92-3403a(C)(2)(d). (Ga. Laws 1960, p. 153). This ruling was not appealed.
The Augusta-Richmond County Planning Commission was created by an ordinance of the City Council of Augusta and by a resolution of the Board of Commissioners of Roads and Revenues of Richmond County, the governing authorities of the City of Augusta and of Richmond County, respectively, pursuant to an act by the General Assembly authorizing the creation of planning and zoning commissions by cities and counties. (Ga. Laws 1957, pp. 420, 443). Ga. Code Ann. 69-12, et seq.

44

Assuming that the Chattachoochee-Flint Area Planning and Development Commission was created pursuant to the enabling act by the local governing authority or authorities, as the case may be, its relationship with the local government is essentially the same as that between the Augusta-Richmond County Planning Commission and Richmond County and the City of Augusta, and, therefore, it is my unofficial opinion that it is an arm or agent of the local government and sales to it are exempt from the Georgia Sales and Use Tax Act.

OPINION 69-37 (Unofficial)

To: Private Inquirer

January 27, 1969

Re: A raffle is a form of lottery and a violation of Georgia law.

This is in response to your letter of January 20, 1969, wherein you requested an unofficial opinion as to whether or not it would be permissible for the Parent-Teachers Association of a private school to conduct a raffle as a project for raising money to buy equipment.
It is my understanding that a raffle is a form of lottery. Ga. Code Ann. 26-6501 and 26-6502 prohibit lotteries or gift enterprise schemes in this State.
Therefore, it is my unofficial opinion that the conducting of a raffle in this State would be in violation of Georgia law regardless of how worthy the cause.

OPINION 69-38 (Unofficial)

To: School Board Attorney

January 27, 1969

Re: Term of Chattooga County School Board Members.

Your letter of January 22, 1969, requests information on three points. You inquire first into our policy respecting the issuance of unofficial opinions to local school board attorneys. You then request, in the event our policies permit, unofficial opinions on (1) the use of a bank in which a board member is a stockholder as a depository for certain school funds, and (2) the term of office under constitutional amendments of local application of members of the Chattooga County Board of Education. My response to each of the three matters is as follows.

45
(1) Policy. While the ever increasing workload of our litigation and general representation of the State causes the expenditure of time to furnish unofficial legal opinions to county and municipal attorneys or officials to be increasingly difficult, we do, to the extent we are able, try to be of some assistance. In connection with school law we ordinarily try to confine ourselves to questions involving statutes of general and statewide applicability and to avoid time-consuming research into local law problems which can more expeditiously be handled by local counsel. It must also be understood that litigation and representation of the State necessarily takes priority over legal opinions to county and municipal officials and that the response is frequently delayed, sometimes (depending on the complexity of the matter and time available for research) for a period of several months.
(2) Depositories for school funds. I am enclosing herewith a copy of an official opinion of this office to the State School Superintendent dated March 20, 1967 [Op. Atty. Gen. 67-103]. In the absence of any local law to the contrary, it would appear to answer your inquiry respecting depositories and conflict of interest.
(3) Term .of School Board Members under Constitutional Amendments of local application. While the local constitutional amendment ratified in 1960 (i.e. Ga. Laws 1959, p. 453) provided for 4-year terms for each of the school board members from the five "education districts" in Chattooga County, the subsequent 1968 amendment unambiguously declares:
"Notwithstanding any other provision of the Constitution, at the election for members of the Board of Education of Chattooga County held in 1968, the members from Education District one and five shall each be elected for a term of four (4) years . . . . The members from Education Districts two, three, and four shall each be elected for a term of two (2) years ...."
Inasmuch as the 1968 amendment is the most recent expression of the people, it controls as to the terms of the various members.

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OPINION 69-39 (Unofficial)

To: District Attorney, Walton County

January 28, 1969

Re: Habeas Corpus is a civil proceeding; the defense is the obligation of governmental unit having physical custody.

This will acknowledge receipt of and reply to your letter dated

January 16, 1969, in which you state that a habeas corpus petition

has been filed in the Superior Court of Clarke County against the

Sheriff of that County. You have asked this Department to

determine whose responsibility it is to represent the Sheriff of

Clarke County on the appeal of this case to the Supreme Court of

Georgia.

~

Ga. Code Ann. 77-309(e) provides in part that: "It shall be

the responsibility of the governmental unit ... having the physical

custody of a prisoner to maintain such prisoner, furnishing food,

clothing, and any needed medical and hospital attention therefor,

defending any habeas corpus or other proceedings instituted by or

on behalf of such prisoner ...."

The preceding Code section makes it clear that the

governmental unit having physical custody of a prisoner is

required to defend any habeas corpus proceeding, including an

appeal therefrom. Inasmuch as it is the responsibility of Clarke

County, acting through the Sheriff of that County, to defend the

habeas corpus case, which is purely a civil proceeding, it is my

opinion that it is the responsibility of the attorney representing

Clarke County to defend the appeal in the Supreme Court of

Georgia.

OPINION 69-40 (Unofficial)

To: Department of Public Safety

January 28, 1969

Re: Owner's permission terminates when the driver converts the vehicle to his own use.

This will acknowledge your recent inquiry wherein you ask this Department to review the file and decision arising out of the subject accident.
Harper, a driver for Fowler, a gravel contractor, was ordered by an agent of Fowler to take a truckload of gravel from the gravel

47
pit to a specified location so that Harper could meet with Jolley and follow Jolley to the place of construction where the gravel would be unloaded. Jolley arrived at the point of meeting prior to Harper and telephoned the agent and advised her that the truck had not arrived and that he (Jolley) was going to leave the place of meeting for a few minutes and would return very shortly. During the absence of Jolley, Harper arrived at the meeting point and called the agent to advise her that Jolley was not there. The agent advised Harper to remain at the meeting point q.s Jolley would return in just a few minutes. Later in the day the agent was called by the Atlanta Police to come and retrieve the gravel which had spilled when the truck in question overturned in downtown Atlanta. Subsequent to that event, Fowler (the owner of the truck) learned that his truck had been involved in an automobile collision prior to and several miles from the point at which it overturned in downtown Atlanta.
Of particular significance are the following additional facts:
(1) The gravel pit is located twenty to twenty-five miles from downtown Atlanta and about ten miles from the meeting point with Jolley which was approximately twenty miles from downtown Atlanta. (2) The construction site where the gravel was to be delivered is approximately one mile from the meeting point. (3) From the construction site to the point of the accident is approximately seventeen miles, and additionally, the route which Harper would be presumed to follow from the gravel pit to the construction site via the meeting point would not take Harper within seventeen miles of the point of the accident.
Pursuant to Ga. Laws 1951, p. 565, as amended, (Ga. Code Ann. 92A-605[a]) the Director suspended the license and all registration certificates of the owner of the truck whPn he failed to furnish security "sufficient in the judgment of the Director to satisfy any judgments for damages or injuries resulting from the accident as may be recovered against the ... owner...."Ga. Laws 1951, p. 565, as amended, (Ga. Code Ann. 92A-605[a]). Fowler requested a hearing before the Department of Public Safety, [Ga. Laws 1951, p. 565, as amended, (Ga. Code Ann. 92A-602)1, during which he sought to show to the hearing officer that he came within one of the exceptions of Ga. Laws 1951, p. 565 (Ga. Code Ann. 92A-606) and more specifically Ga. Laws 19 51, pp. 565, 570 (Ga. Code Ann. 92A-606[3 J) which provides that "The requirement as to security and suspension in 92A-605 shall not

48
apply: To the owner of a motor vehicle if at the time of the accident the vehicle was being operated without his permission, express or implied or was parked by a person who had been operating such motor vehicle without such permission." A hearing was held and it was determined that Harper, the truck driver, was operating the vehicle at the time of the accident with the permission of the owner, inasmuch as Harper was authorized to drive the truck, although not on personal business. It is this determination that you have asked this Department to review.
In a case construing an insurance contract the Georgia Court of Appeals rejected the "first instance permission" rule, by which permission granted to use a vehicle at the time of delivery to another extends to any and all use made of it by the bailee until it is returned to the owner. Ditmyer v. American Liberty Insurance Company, 117 Ga. App. 512, 518 (1968). The facts in the Ditmyer case are quite similar to the facts being considered here. In the Ditmyer case, "Henderson had been forbidden to use the truck on a personal mission, and that when he returned it to Miller at his home as he had first been instructed, Miller then gave further instructions that he should deliver the truck directly to Nichols Service Station and leave it there. He was to take it nowhere else." Ditmyer v. American Liberty Insurance Company, ld. The Court of Appeals in the Ditmyer case made the following comments, to wit:
"Obviously, then, when he disobeyed the instruction and took the truck some ten miles off the route to a drive-in beer hall where he remained from about mid-afternoon until he started to leave and collided with the Ditmyers, he was on a personal mission (and he so testified), and was not within the permission given him by Miller to take the truck to Nichols Service Station." "Nor could there be any implied permission or consent when the use of the truck was at a time and in a manner beyond the scope of employment or of the permission granted, when the departure therefrom was complete. (citing)" Id. at 519-520. "The undisputed evidence requires a finding that Henderson had left the ambit of the permission granted or the direction given and at the time of the collision had not returned to or reentered its sphere. The deviation was neither slight nor inconsequential; it was complete - even in defiance of the forbidden." ld. at 520. ''Unauthorized use is a conversion, and conversion is inconsistent with permissive use." Ditmyer v. American Liberty Insurance Company, Ibid.

49

I conclude, therefore, that under the facts elicited at the revocation hearing before the Department of Public Safety as applied to the propositions of law set out in Ditmyer v. American Liberty Insurance Company, supra, that Fowler has offered sufficient evidence to substantiate the position that his vehicle was being operated without his permission, express or implied, and that he, thus, comes within the exceptions of Ga. Laws 1951, pp. 565, 570 (Ga. Code Ann. 92A-606[3]).
The case of Frankel v. Cone, 214 Ga. 733 (1959) was persuasive in arriving at the above conclusion. In the Frankel case, supra, the Georgia Supreme Court held that a statute (Ga. Laws 1955, pp. 454, 455; Ga. Code Ann. 68-301) which makes the owner of a motor vehicle responsible for injury resulting from negligence in its operation if the vehicle is being operated for the benefit of the owner, even though without his knowledge, was unconstitutional as violative of the due process clauses of the State and Federal constitutions. Although the aforementioned Frankel case is one dealing with a civil suit involving damages, it is clear that the Georgia Supreme Court took a dim view of a law which made the owner of a vehicle absolutely liable if some person driving the owner's vehicle, other than the owner, caused death or injury to person or property while driving the owner's vehicle. To construe Ga. Laws 1951, p. 565, 570 (Ga. Code Ann. 92A-606[3]) to mean that when an owner gives permission to another to drive the owner's vehicle, he assumes all the consequences of the driver's acts would be to render without meaning the phrase relating to "permission, express or implied," for there must be some point when permission to drive an automobile ceases being express or implied.
OPINION 69:::_41

To: State Treasurer

January 28, 1969

Re: Newly-elected members of the General Assembly must become members of the Georgia Legislative Retirement System.

This responds to your letter of January 24, 1969, requesting my official opinion on the following question:

" ... whether it is mandatory for all the newly elected members of the general assembly to automatically come under the Legislative Retirement System? "

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The amended Act creating the Georgia Legislative Retirement System provides, in relevant part:

"All persons who are members of the General Assembly on the date of establishment of the system shall become members of the system as of such date, except that within six months from such date any such person may irrevocably elect not to be a member of the system. All other persons shall become members of the system on their taking office as members of the General Assembly." Ga. Code Ann. 47-1404.

I am of the opinion, based upon the foregoing provision, that it was the intention of the General Assembly that persons newly elected to the 1969 session of the General Assembly must become members of the Georgia Legislative Retirement System. In accord: official opinion to Honorable W. Frank DeLamar, dated November 26, 1968 [Op. Atty. Gen. 68-475], with reference to a similar provision in the Trial Judges and Solicitors Retirement Fund.

OPINION 69-42 (Unofficial)

Note: This opinion reversed by Opinion 69-220.

To: Private Inquirer

January 28, 1969

Re: Powers and Duties of a County Coroner.

This letter is in response to your question of whether a county coroner may legally perform an autopsy and testify as to the results of that autopsy during an inquest conducted by himself.

OPINION A county coroner may legally perform an autopsy and testify as to the results of that autopsy during an inquest conducted by himself, provided:

( 1) The coroner is a licem.ed physician or pathologist, duly appointed by the Director of the State Crime Laboratory and the Director of the Department of Public Health as a "medical examiner" pursuant to the provisions of the Georgia Post Mortem Examination Act, as amended (Ga. Code Ann. Ch. 21-2), and (2) The autopsy is otherwise authorized under the provisions

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of th~ Georgia Post Mortem Examination Act (Ga. Cod, Ann. Ch. ?.1-2).
DISCUSSION The Georgia law regulating post mortem examinatiom and autopsies anticipates that the duties of a coroner anri medical examiner will be performed by tw':> different persons. Ga. Code Ann. Ch. 21-2. However, there is no reason why a coroner could not also hold the position of medical examiner, provided: (1) he meets the statutory qualifications for both po;;itions; (2) there is no prohibitory Constitutional or statutory provision; and (3) the two positions are not incompatible. Assuming that the statutory qualifications for both positions have been met, the next question is whether there is a Constitutional or statutory provision prohibiting one person from holding the two positions in question. The only relevant provision in this regard is Ga. Code Ann. 89-103, forbidding any person from holding "at one time, more than one county office ...." Since the office of coroner is unquestionably a "county office," McBrien v. Starkweather, 43 Ga. App. 818 (4) (1931 ), this Code section raises the question of whether the position of medical examiner is also a "county office.'' There are two provisions of law stipulating the qualifications for ''county officers" or a "county office.'' The Constitution of Georgia in Art. XI, Sec. II, Par. I (Ga. Code Ann. 2-7901) provides:
"The county officers shall be elected by the qualified voters of their respective counties or distrkts, and shall hold their office for four years, ... and no person shall be eligible for any of the offices referred to in this paragraph unless he shall have been a resident of the county for two years and is a qualified voter."
Ga. Code Ann. 89-101(7) provides, in relevant part:
"No person shall be eligible to hold any county office in any county unless he shall have been bona fide a citizen of the county in which he shall be elected or appointed at least two years prior to his dection or appointment, and is a qualified voter entitled to vote...."
A few cases have held that even though a person was not "elected by the qualified voters of their respective counties," etc., and was therefore not a "Constitutional" county officer within

52
the meaning of Art. XI, Sec. II, Par. I, above, he could nevertheless be a "county officer." See discussion and cases cited in Employees Retirement System v. Lewis, 109 Ga. App. 476, 479 (1964). However, it has been conclusively held, without dispute or contradiction, that
"No person can hold any county office in any county of this State, unless he possesses the qualifications named [in 89-101(7) above]." Culbreth v. Cannady, 168 Ga. 444, 447 (1929). (Emphasis added.)
Thus, it appears that Section 89-101(7) establishes the minimum qualifications for all "county officers" whether Constitutional or otherwise. Culbreth v. Cannady, supra.
The position of medical examiner, as defined by the Georgia Post Mortem Examination Act, would not qualify under either of these provisions as a "county office." Medical examiners are appointed, not elected to office, so they would not be "Constitutional" county officers under Art. XI, Sec. II, Par. I. Medical examiners are not elected or appointed in the counties; they are appointed by and report to the Director of the State Crime Laboratory-a State officer. Moreover, medical examiners are not necessarily citizens or residents of the county in which they perform their duties. They are appointed "at convenient locations throughout the State" to serve in any county in which they may be called upon by the coroner. See Ga. Code Ann. 21-202 to 21-203. Therefore, it would seem that the position of medical examiner does not qualify as a "county office" within the meaning of either the Constitution or Ga. Code Ann. 89-101 (7). See, however, Ga. Laws 1964, p. 1070, which made the position of medical examiner a "Constitutional" county office in Cobb County, Georgia, by amendment to Georgia Constitution, Art. XI, Sec. II, Par. I, ratified November 3, 1964.
The third and last question posed is whether the positions of coroner and medical examiner are incompatible. When there is no specific statutory prohibition, the key factor in determining whether a person may hold two public offices is incompatibility. See 67 C.J.S. Officers 23, 87 and cases cited in Ga. Digest, "Officers" 30.1. It appears from an examination of practice in other states, as well as Georgia, that there is no basic incompatibility between the position of coroner and medical examiner. In fact, some states even require their coroners to be licensed physicians. See, e.g., 18 Am. Jur.2d Coroners, 2, ff. 12, 13; 18 C.J.S. Coroners 4, p. 289, fn. 17.

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In Cobb County, Georgia, the position of medical examiner was established as a county office in lieu of coroner "with all the powers, duties, liabilities and obligations of the office of coroner,'' tending to show that Georgia finds no basic incompatibility between the two positions. This was accomplished by amendment to the constitutional provision quoted above which provides for the election, term and removal of county officers. Ga. Laws 1964, p. 1070. The most likely reason for this amendment was to establish the position of medical examiner as a constitutional county officer on a par with coroner, rather than to avoid a prohibited conflict of interest. If the primary concern had been incompatibility between the two positions, a statutory rather than Constitutional amendment would have been more easily accomplished. Even if the amendment had a dual purpose of avoiding incompatibility as well as establishing a county office under Georgia Consititution Art. XI, Sec. II, Par. I, it is difficult to find the source of this incompatibility either in the Constitution or laws.
Although there is some division of authority between other states, 97 C.J.S. Witnesses 105, the rule in Georgia apparently allows a judicial officer, and by implication a coroner, to testify in proceedings conducted by him, provided that he has no direct interest. in the outcome. See, Justices of Inferior Court of Talbot County v. House, 20 Ga. 328, 335 (1856); and Rogers v. Mandeville, 20 Ga. 627, 630 ( 1856). Since the verdict of a coroner's jury is merely advisory to the District Attorney; has no probative effect as evidence; can prejudice the right of no one and is not subject to review, Smalls v. State, 101 Ga. 570 (1897), the possibility of a coroner's having prejudicial interest in a case would seem remote.

OPINION 69-43 (Unofficial)

To: Coordinator of Highway Safety

January 28, 1969

Re: Political subdivisions; joint planning commissions as not constituting.

Under the Provisions of the National Highway Safety Act of 1966, forty per centum of Federal funds apportioned to this State must be expended by political subdivisions of the State. Because of this requirement, you have requested my opinion as to

54
whether a joint planning commission organized and existing under the general enabling legislation of 1957 is a political subdivision of this State.
Upon a review of the authorities, I can find no sure definitil'n delineating the outer limits of the concept of the political subdivision. I am unable to adhere to the opinion of my predecessor to the effect that a political subdivision of the State is necessarily of such a nature that the aggregate of such subdivisions from the standpoint of geographical jurisdiction constitute the entire State. Op. Atty. Gen. 1958-59, p. 329 (June 19, 1959). See Spence v. Rowell, 213 Ga. 145 (1957) wherein the Supreme Court has held, contrary to the opinion in question, that a municipal corporation is a political subdivision of this ~tate.
Further, the decision in Thornberg v. Richmond County Board of Education, 110 Ga. A.pp. 676 (1964), when read against the backdrop of City of Albany v. Lipsey, 199 Ga. 437 (1945), is necessarily destructive of the theory of ?.ggregate geographic coextensiveness set forth in the opinion. Consequently, the aforecited opinion is withdrawn and rescinded.
Certain characteristics have been recognized as being generally inherent in the concept of a political subdivision. A political subdivision normally possesses the power to set and enforce a tax levy. Board of Education of Wilcox County v. Board of Commissioners of Wilcox County, 201 Ga. 815, 818 (1947); Richmond County llos/)ital Authority v. Mclain, 112 Ga. App. 209, 210-11 (1965). It is characteristic of a political subdivision that it is entitled to incur a bonded indebtedness independently of county bonded obligations. Pinion v. Walker County School District, 203 Ga. 99, 102 (1947); Ty Ty Consol. School Dis't. v. Colquitt Lumber Co., 153 Ga. 426 (1922). An examination of the general enabling legislation relative to joint planning commissions, Ga. Laws 1957, pp. 420, as amended, fails to reveal any of these inherent characteristics. Based upon this examination, it is my opinion that joint planning commissions operating and existing pursuant to the general enabling legislation are merely functional arms of the political subdivisions which are empowered by the legislation to create such commissions.

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OPINION 69--44 (Unofficial)

To: Coordinator of Highway Safety

January 29, 1969

Re: Joint planning commissions; ability to contract limited to unencumbered, free appropriations.

The provisions of the National Highway Safety Act of 1966 provide that forty per centum of the Federal Funds apportioned to this State must be expended by political subdivisions of the State. In an earlier opinion I indicated that joint planning commissions organized and existing under the general enabling legislation of 1957 were functional arms of the political subdivisions creating them. In light of this, you now request my opinion as to the authority of such commissions to contract with your office to spend county and Federal matching funds in the performance of highway-safety projects.
An examination of the general enabling legislation reveals that the commissions are without power to raise revenue in order to fund their operations. The governing authorities of the creating political subdivisions are empowered by law to determine, agree upon, and appropriate funds for the payment of the expenses of the planning commission. See Ga. Code Ann. 69-1202. In addition, the statute allows the commissions to accept gifts and the receipts of contracts. Nothing in the statute confers any form of agency upon the commission to bind the governing authorities ofthe creating subdivisions to appropriate funds.
It is therefore my opinion that joint planning commissions may only contract to obligate free, present and unexpended appropriations as matching funds under Federal-grant legislation.

OPINION 69-45 (Unofficial)

To: Solicitor, City Court of Lyons

January 29, 1969

Re: Legality of monthly service charges on a merchant's trade accounts.

You have requested my unofficial opinion on the legality of a merchant charging a monthly service charge on his open trade accounts which exceeds the rate of interest set out in the Georgia Code chapter on interest and usury. Ga. Code Ann. Ch. 57-1.

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Generally, a rate of interest in excess of 8% per annum is illegal and usurious. Ga. Code Ann. 57-101. However, the General Assembly has carved out certain exceptions to this general rule and the laws must be carefully checked to see if a particular situation is covered by an exception to the above rule. Several exceptions which instantly come to mind are the Georgia Industrial Loan Act (Ga. Laws 1955, p. 431; Ga. Code Ann. Ch. 25-3), the Retail Installment and Home Solicitation Sales Act (Ga. Laws 1967, p. 659; Ga. Code Ann. Ch. 96-9), the Motor Vehicle Sales Finance Act (Ga. Laws 1967, p. 674; Ga. Code Ann. Ch. 96-l 0), the Georgia law regulating charges and interest on secondary security deeds (Ga. Laws 1966, p. 574; Ga. Code Ann. Ch. 57-2) and the general provision allowing profit corporations to pay any rate of interest on loans in excess of $2500 (Ga. Laws 1961, p. 300; Ga. Code Ann. 57-118). Undoubtedly, there are also further exceptions to the general rule.
Of the above exceptions, the one most probably relevant to your question is the Retail Installment and Home Solicitation Sales Act. ld. The Act sets up an account known as a "revolving account" (ld., sections 2(a)(8) and 4; Ga. Code Ann. 96-902(a)(8) and 96-204) and then allows the seller under a revolving account to collect a certain time price differential which shall not exceed fifteen cents (.15) per ten dollars ($10.00) per month computed on all amounts unpaid thereunder from month to month and it further provides for certain other rates in particular instances. ld., section 4(c); Ga. Code Ann. 96-904(c). This charge is allowed "notwithstanding the provisions of any other law" (Id., section 4(c); Ga. Code Ann. 96-904(c)) and therefore can probably be charged despite the above-quoted Ga. Code Ann. 57-101. Since you did not forward me the complete particulars of any one charge plan, I am not in a position to unofficially state whether or not that plan complies with the conditions necessary under the Act to set up a legitimate revolving account. Since the Act is fairly explicit, I am certain that you will have little difficulty in applying it to cases as they are presented to you. However, should you require assistance in any particular, we will be happy to render what assistance we can.
If the charge plan you are investigating does not come within any specific exception set out by Georgia law, then a charge of 1 to 1 1/2% per month of the unpaid balance would probably be usurious.
"While it is lawful and not usurious to charge one price for property sold for cash and a higher price for the same

57

property if sold on credit, still, if the contract is that the property is to be sold at a cash valuation, and that certain payments are to be deferred, in consideration that a greater rate of interest than that allowed by law is to be paid by the purchaser, then the contract is usurious." Plastics Development Corp. v. Flexible Products Co., 112 Ga. App. 460 (1965) and the cases cited therein, especially E. Tris Napier Co. v. Trawick, 164 Ga. 781 (1927).

In the above case, goods were sold at a cash price and the terms of the purchase allowed interest of 1 1/2% per month of the unpaid balance. The Court held such a contract to be usurious, although the dicta in the case indicates that a seller could sell goods for $100 cash immediately or $200 cash payable in 30 days because the higher price was for goods on credit.

OPINION 69-46 (Unofficial)

To: Catoosa County Attorney

January 30, 1969

Re: Compensation of Catoosa Tax Commissioner for collecting school taxes.

This is in reply to your request for an opinion concerning the compensation of the Tax Commissioner of Catoosa County, and whether he would be entitled to a ten percent commission on school taxes he collected which exceed ninety percent of such taxes on the digest.
Generally, a tax commissioner is entitled to receive a
Constitution of this State (Ga. Code Ann. 32-1106). While tax levied under the authority of Art. VIII, Sec. XII, Par. I of the Constitution of this State (Ga. Code Ann. 32-1106). While tax commissioners are usually entitled to ten percent of all taxes collected in excess of ninety percent of his net tax digest, this additional compensation does not apply to the collection of school taxes. Op. Atty. Gen. 1960-61, p. 562.
The Tax Commissioner of Catoosa County has been placed on a fixed salary. The most recent legislative enactment provides with respect to commissions:

". . . Said tax commissioner shall be entitled to the commissions now allowed tax collectors on all state,
professional and special taxes collected by him, but all

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commissions due to said tax commiSSIOner for intangible taxes, school taxes, and any and all other taxes not hereinabove specifically mentioned shall be paid into the county treasury...."

The Tax Commissioner of Catoosa County is not, in my opinion, entitled to any commissions for school taxes collected.

OPINION 69-47 (Unofficial)

To: Private Inquirer

January 30, 1969

Re: Church organization automobiles not exempt from payment of ad valorem taxes.

This is in response to your letter of January 10, 1969, wherein you requested information as to whether or not automobiles owned by and registered in the name of church organizations would be subject to ad valorem taxes.
Art. VII, Sec. I, Par. IV of the Constitution of the State of Georgia (Ga. Code Ann. 2-5404) states in part:

"The General Assembly may, by law, exempt from taxation all public property, places of religious worship and burial and all property owned by religious groups used only for residential purposes from which no income is derived; ...."

Ga. Laws 1878-79, p. 33, as amended, is almost identical in wording as the above part of the Constitution.
As can be seen there is no provision for the exemption for automobiles owned by and registered in the name of church organizations.
I do not have and have not seen a copy of the letter from Mr. Jack L. Camp, Tax Commissioner of Fulton County, but I suspect that the opinion that he referred to was the one written on February 6, 1967 [unreported], to Mr. Harold Sheats, Fulton County Attorney. As I read the opinion it dealt with whether or not automobiles owned by charitable institutions were subject to the payment of an ad valorem tax prior to purchase of license tags for such automobiles.
The opinion states:

"Based upon these authorities it is my opinion that the 1966 act requiring the payment of ad valorem taxes prior to the

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purchase of license plates did not change the law with respect to exemptions from taxation. Exemptions from taxation are dealt with in the State Constitution in Article VII, Section I, Paragraph IV (Ga. Code Ann., Section 2-5404), and the question of exemption will necessarily be decided by an examinati0n of this provision Jf our Constitution."

This is not to say that all automobiles owned by and registered in the r1ame of church organizations are exempt from ad valorem taxes.
Therefore, it is my unofficial opinion that the automobiles in question are not exempt from ad valorem tax because they are owned by and registered in the name of a church organization.

OPINION 69-48

To: Public Service Commission

January 30, 1969

Re: Georgia law does not comply with the Natural Gas Pipeline Safety Act of 1968.

The Federal Government has enacted the Natural Gas Pipeline Safety Act of 1968 (P.L. 90-481; 82 Stat. 727; 49 U.S.C.A. 1671 et seq.) which provides, among other things, that if a state wishes to avoid Federal regulatory jurisdiction over gas pipeline safety, it must be able to certify that the laws of that state make provision for the enforcement of certain safety standards by way of injunctive and monetary sanctions substantially the same as are provided under the Natural Gas Pipeline Safety Act of 1968. ld.
S(a); 49 U.S.C.A. 1674(a). The monetary sanction is a civil penalty of $1 ,000 for each violation for each day that the violation persists, with a maximum of $200,000 for any related series of violations. ld. 9; 49 U.S.C.A. 1678. The injunctive sanction provides that the appropriate authority may proceed to restrain violations of the Act or to enforce its standards. ld. 10; 49 U.S.C.A. 1679.
You wish my opinion on whether the Public Service Commission may enforce its rules by both monetary and injunctive sanctions substantially the same as provided under the Natural Gas Pipeline Safety Act of 1968. At present, the Georgia Public Service Commission has the authority to recover a penalty in the amount of $5,000 for each violation of any of its rules, crders and regulations and the law further provides that, in the case of a continuing violation, every day the violation continues shall he deemed a ~eparate and distinct offense. The law does not

60

provide for a limit on the amount of the penalty. Ga. Code Ann. 93-416 and 93-417. However, I have not been able to find any provision of law which would allow the Georgia Public Service Commission to restrain any violations of its rules, orders or regulations by an application for injunctive relief.
It is therefore my opinion that the Public Service Commission at the present has the authority substantially similar to the Federal legislation to enforce its rules, orders and regulations by monetary sanctions, but not by injunction. Since I have determined that the Georgia law does not comply with the requirements under the Natural Gas Pipeline Safety Act of 1968, you request that I prepare a draft of appropriate legislation and forward it to you. Attached is that draft for your information. If you have any further questions, please do not hesitate to call upon me.

OPINION 69-49

To: Director, Georgia Department of Public Health

January 30, 1969

Re: Proposed Section 88-502.18 of 1969 Hospitalization of the Mentally Ill Act.

This is in answer to your letter of January 29, 1969 in which you request an opinion as to whether proposed Code section 88-502.18 of H. B. No. 1 would protect a peace officer who in good faith accompanies an unwilling individual to an Emergency Receiving Facility (pursuant to the Act's provisions for emergency admission of certain categories of suspected mentally ill persons). My opinion and the reasons therefor are as follows:

OPINION It is my opinion that the courts would construe proposed Code section 88-502.18 as evidencing a legislative intent to shield peace officers from liability in those situations where their action was taken in good faith and where there were reasonable grounds to believe first that the individual arrested was suffering from mental illness, and second that imminent danger existed (a) that he would harm himself or others if not immediately hospitalized, or (b) that he was incapable of caring for his physical health and safety.

DISCUSSION One of the many significant departures from the present law in H. B. No. 1 is its authorization in certain instances of the arrest and temporary commitment without court order of persons

61
suspected of mental illness to initial evaluation centers which the proposed Act terms "Emergency Receiving Facilities." Compare present Ga. Code Ann. 88-506 with proposed Code sections 88-504.1 to 88-504.4. Such non-judicial arrest and temporary commitment is designed for and restricted to those situations where there is reason to believe not only that the arrested individual is mentally ill, but that in addition:
" ... there is reason to believe that there is imminent danger (a) that he may harm himself or others if not immediately hospitalized or (b) that he is incapable of caring for his physical health and safety." See proposed section 88-504.1.
In such situations the individual suspected of mental illness can be committed not only by an ex parte order of the Court of Ordinary, see proposed section 88-504.3(a), but also upon certificate of any physician, see proposed section 88-504.3(c), or by any peace officer where the person arrested appears to meet the above quoted criteria. See proposed section 88-504.3(b).
As to immunity for good faith, non-negligent actions of peace officers in the premises, proposed Code section 88-502.18 provides in pertinent part:
"Any physician, peace officer, health officer ... who acts in good faith in compliance with the provisions of this Chapter, shall be immune from civil or criminal liability for his action in connection with the admission of a patient to a facility ..."
It would seem to me that this section evidences an intent of the General Assembly to immunize those actions of a peace officer which are authorized by H. B. No. 1 and taken in good faith, upon reasonable grounds, and in a non-negligent manner.
In rendering this opinion I must emphasize that I have limited my consideration to statutory interpretation. Any major alteration of law obviously opens the door to constitutional challenge and in any law providing for arrest and confinement of an individual (whether mentally ill or otherwise), it can reasonably be anticipated that constitutional attacks will in fact be made under the "equal protection" and "due process" clauses of the Federal and State constitutions.

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OPINION 69-50 (Unofficial)

To: Private Inquirer

January 30, 1969

Re: Eminent Domain-Circuity of travel is not a separate and independent item of damages in a condemnation case.

This letter is written to you to confirm the position of the State Highway Department and State Law Department in relation to the proposed condemnation of the property of your client, Kinnett Dairies, Inc., for the building of Project F-074-1 (12), Muscogee County. Also, this will acknowledge your recent letter asking for citations on the legal question discussed at a meeting in early January, 1969, in the office of Mr. J. E. Brown, Right-of-Way Engineer, State Highway Department of Georgia. At this meeting you stated that the position of your client, Kinnett Dairies, Inc., was that after the proposed taking of your client's property adjacent to the Columbus-Manchester Highway, the dairy trucks owned by Kinnett would have to travel several thousand extra feet to gain entrance to the dairy plant by way of the frontage road to be constructed by the State Highway Department of Georgia.
As best I can understand, it was your position that under the case of Bowers v. Fulton County, 221 Ga. 731 ( 1966), Kinnett Dairies, Inc., is entitled to a separate and independent item of damages, other than market value and consequential damages to the remaining land, for the circuity of travel caused by the taking of this property and the proposed construction in connection therewith.
The Constitution of Georgia, Art. I, Sec. III, Par. I (Ga. Code Ann. 2-301), provides in part:

" ... Private property shall not be taken, or damaged, for public purposes, without just and adequate c0mpensation being first paid, except that when private property is taken or damaged for public road and street purposes by the State and the counties and the municipalities of the State, just and adequate compensation therefor need not be paid until the same has been finally fixed and determined as provided by law ...."

As a general rule, there are two elements to be considered in the measurement of damages to land as a result of condemnation. These elements are first, the market value of the property actually taken, and second, the consequential damages which naturally and proximately arise to the remainder of the owner's property from

63
the taking of that part which is taken and devoted to public purposes. Central Georgia Power Co. v. Mays, 137 Ga. 120 (3) (1911).
While we realize that the case of Bowers v. Fulton County, supra, holds that the condemnee is entitled to be compensated for all damages to his property and expense caused by the condemnation proceedings, we think that the general measure of damages as stated in the Mays case, supra, is adequate in the case of your client, Kinnett Daries, Inc.
The Court of Appeals in the case of Combs, et al. v. State Highway Department, 111 Ga. App. 132 (1965), held that a condition or circumstance which amounts to nothing more than "mere inconvenience" is not an element of damage which can be considered. See also Campbell v. Metropolitan Street R. Co., 82 Ga. 320 (2) (1889);Atlantic &c. R. Co. v. McKnight, 125 Ga. 328 (5) (1906);' Chattahoochee Valley R. Co. v. Bass, 9 Ga. App. 83 (5) (1911).
The Court of Appeals in the case of Southwell v. State Highway Department, 104 Ga. App. 479 (1961), in effect, approved a charge which stated that the condemnee cannot recover for the mere inconvenience to himself or other occupant3 of the dwelling located on his property resulting from the lawful use of the land taken by the Highway Department, except insofar as these inconveniences may be shown by the evidence to adversely affect the value of the condemnee's remaining property. See in this connection Central Georgia Power Co. v. Stone, 139 Ga. 416 (1913), and State Highway Department v. Irvin, 100 Ga. App. 624 (1959).
Judge Franklin, speaking for the Court of Appeals in the case of State Highway Department v. Hollywood Baptist Church of
Rome, 112 Ga. App. 857 ( 1965), stated that inconveniences such as noise, dust, smoke, and the like may be considered as an element of damages if shown by the evidence to adversely affect the value of the condemnee's remaining property. This is correct if these factors are a continuous and permanent incident of the improvement, and they adversely affect the market value of the condemnee's remaining property.
The Supreme Court of Georgia in the case of Tift County v. Smith, 219 Ga. 68 (1963), hus c!early enunciated the principle that inconvenience and circuity of travel occasioned to the owner of property does not co:1stitute a taking or damaging of private property so as to require compensation. In this connection it should be noted that Kinnett Dairies, Inc., shares an inconvenience with other businesses and other members of the public who will

64
use the frontage road in front of the Kinnett Dairies' property. Thus, their damage is different from that of the general public in degree only, and not in kind. See in this connection Campbell v. Metropolitan Street R. Co., supra, and Ward v. Georgia Terminal Co., 143 Ga. 80 (1915). I also call your attention to the quoted portion on pages 72 and 73 of the Smith case, supra, where the Supreme Court quotes favorably from Warren v. State Highway Commission, 250 Iowa 473,480, 93 N.W. 2d 60.
For a case directly in point with your client's contentions, see State Highway Department v. Bell, 113 Ga. App. 768 (1966). In the Bell case, the Court of Appeals held that a lessee was not entitled to recover damages which the owner himself would not be entitled to recover. The Court went on to say on page 770 that:
"It is clear here that the award of damages to the lessee was based upon the inconvenience and circuity of travel occasioned by the construction of this highway."
Further on the same page, the Court stated:
"It is clear from the record that the leaseholder's access to the road upon which the leased premises abutted was not interfered with, and under the facts set forth here, this case is clearly controlled by Tift County v. Smith, 219 Ga. 68, supra."
It is clear from the aforementioned cases that a landowner is not entitled to an award of damages based upon mere inconvenience and circuity of travel. If the inconvenience adversely affects the market value of the remaining property, and such inconvenience is continuous and a permanent incident of the highway, then such damages may be considered, but only as such inconveniences affect the market value of the remaining property and not as a separate and independent item of damages.
This office has checked with the appraiser employed to make the appraisal of the Kinnett Dairies' property and it is clear that in arriving at a value of the property after the taking, he considered whether the circuitous route necessary after the taking reduced the market value of the remaining property.
Therefore, from what has been stated hereinbefore, circuity of travel is not a separate and independent item of damages to be considered in a condemnation case. Also, the amount of extra travel has been considered as to whether or not the remaining property has been reduced in market value.

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OPINION 69-51

To: Governor

January 31, 1969

Re: Use of the Governor's Emergency Fund to Benefit Municipalities.

This is in reply to two requests from your office concerning the allocation of money from the Emergency Fund. Since both requests dealt with the same topic, I have taken the liberty of combining them and paraphrasing the questions as follows:

1. Can an allocation from the E_mergency Fund be made directly to a municipality? 2. If not, can such funds be made available to a State agency for subsequent use in providing: a. a municipal planning study? b. an extension of a municipal water main?

Under Art. VII, Sec. II, Par. VI of the Georgia Constitution (Ga. Code Ann. 2-5506), the General Assembly is empowered to provide by law for direct grants to municipalities. It has implemented this constitutional provision by authorizing the State Treasurer to grant funds directly to municipalities based upon population formulae set forth in Ga. Code Ann. 69-1603.
Use of the Governor's Emergency Fund is controlled by Ga. Laws 1962, pp. 17, 25 (Ga. Code Ann. 40-408) which provides:

"To the end that emergency needs of the State agencies not ascertamable 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." (Emphasis added.)

I am of the opinion, based on the above-quoted provison, that monies from the Governor's Emergency Fund may only be allocated to State agencies.
In answer to your second question, a State agency may, at the Governor's discretion, receive and expend an allocation from the Emergency Fund for any purpose consistent with the agency's enumerated powers for which no continuing State obligation is created.
With specific reference to a municipal planning study. I find

66
that, as the successor in function to the State Planning Commission, the State Planning an.d Programing Bureau is authorized to provide "planning assistance (including surveys, land-use studies, urban renewal plans, technical services and other planning work)" to a municipality without charge. See Ga. Laws 1967, pp. 446, 448 (Ga. Code Ann. 40-2124(3)) and Ga. Laws 1967, pp. 252, 258 (Ga. Code Ann. 40-2906).
Being thus empowered to perform these services for municipalities, it follows that the State Planning and Programing Bureau can achieve the same end (i.e., the furnishing of the aforesaid services to municipalities) by purchasing the services from third parties (such as planning consultants). See, e.g., 73 C.J.S. Public Administrative Bodies & Procedure 50, 57. Therefore, it is my official opinion that the State Planning and Programing Bureau could use money from the Emergency Fund to prepare a municipal planning study itself or, in the alternative, contract with a third party, such as a planning consultant, for preparation of the study by the latter.
However, I am unaware of any State agency authorized to extend a municipal water main and, therefore, must conclude that an allocation from the Emergency Fund may not be made to a State agency for this purpm~e.
OPINION 69-52
To: State Board of Workmen's Compensation January 31, 1969
Re: Efficacy of memorandum order dated February 2, 1945, and issued by Governor Ellis Arnall in his capacity as Budget Director.
Please refer to your letter of December 19, 1968, wherein you request my official opinion regarding the current efficacy of the above-referenced order, which_ required a hearing and an award by the State Board of Workmen's Compensation before any compensation could be paid to employees of the various departments of the State under the Workmen's Compensation Act, Ga. Code Ann. Title 114, as amended.
This memorandum order was issued by Governor Arnall as Director of the Budget and was a valid exercise of his administrative power in that capacity to secure uniformity and accuracy of accounts and efficient conduct of fiscal affairs of State agencies. See Ga. Code Ann. 40-409 (since superseded by Ga. Laws 1962, p. 17). I am informed that this order was never entered in the official executive minutes and that neither the

67

original memorandum nor any official record thereof is extant today. Nevertheless, since the General Assembly has not as yet made any appropriation for the payment of contingent claims against the State under Workmen's Compensation, the only
method of paying such claims is under the Budget Bureau's rules and regulations, and the policy initiated in this regard by Governor Arnall through the subject memorandum is still followed by the Budget Bureau.
Therefore, it is my official opinion that, although the Budget Bureau may in its discretion alter its policies regarding expenditure control, the informal 1945 order continues in force and effect.

OPINION 69-53 (Unofficial)

To: Senator, 35th District

January 31, 1969

Re: Home loans insured and guaranteed by FHA and VA which exceed the legal interest rate are usurious.

The maximum interest rate which a lender is allowed to charge on home loans insured and guaranteed by the Federal Housing Administration and Veterans Administration has been increased to 7 I/2%. As it is the present policy of all lending institutions to collect points (also known as loan discount) from the seller to bring their net yield to a par with the yield of the bond market, there is a strong question in the minds of many lenders as to whether or not the new 7 I /2% interest rate, when coupled with loan discount, brokerage fees, survey cost, credit report and other standard charges, would constitute usury under the existing Georgia law.
You have requested my unofficial opinion on this matter. Georgia law provides:

" ... [I] n no event shall any person, company or corporation reserve, charge, or take for any loan or advance of money, or forbearance to enforce the collection of any sum of money, any rate of interest greater than eight per centum per annum, either directly or indirectly by way of commission for advances, discount, exchange, or by any contract or contrivance or device whatever." Ga. Code Ann. 57-101.

Usury is the reserving and taking, or contracting to reserve and take, either directly or by indirection, a greater sum for the use of

68

money than the lawful interest. Ga. Code Ann. 57-102. You will note from the above two Code sections that usury is
not the taking of interest from the borrower at an unlawful rate, but rather it is receiving from any source a greater sum for the use of money than the lawful interest. Harrison v. Arrendale, 113 Ga. App. 118 (1966). Therefore, if a lender charges a borrower 7 1/2% as an interest rate and then receives points or a loan discount from the seller which increase the total interest rate received to beyond the lega11imit, such a transaction, in my unofficial opinion, would be usurious.
Brokerage fees, survey cost, credit report and other standard charges are not included in a computation of the actual charges for the money used if such charges are expended in a bona fide way as consideration for the service rendered. If such charges are a mere scheme or artifice to exact a higher interest rate than allowed by law, then they will be so recognized by the courts. Franco v. Bank of Forest Park, 118 Ga. App. 700 (1968); Lewis v. Citizens Bank, 53 Ga. App. 545 (1936); Taylor v. Consolidated Loan & Savings Co., 44 Ga. App. 512 (1931).
.You are, of course, aware of the 1961 Georgia law which permits profit corporations to contract for any interest rate they wish to pay on a loan exceeding $2,500. Ga. Laws 1961, p. 300; Ga. Code Ann. 57-118. However, I have not found any authority which would exempt a loan from the usury laws of Georgia merely because it was insured and guaranteed by the FHA or the VA.
It is therefore ~y unofficial opinion that if ilie interest rate charged the borrower coupled with the points or loan discount collected from the seller exceed the legal limit, such a loan is usurious. The standard charges in a loan transaction would not be included in this computation if the charges are expended in a bona fide manner.
OPINION 69-54 (Unofficial)

To: Right-of-Way Engineer

February 3, 1969

Re: Property rights when pavement is beyond right-of-way lines.

This is in reply to your request for my unofficial opinion on the property rights which may be claimed by the State Highway Department to a certain portion of a service road which lies outside the existing right-of-way limits. The factual situation as I understand it is that there is presently in existence a service road

69

which parallels 1-85 in Gwinnett County. A recent survey shows that the pavement itself is approximately one foot outside of the right-of-way limits at a point where it crosses the south property line of a certain rental corporation. Also, immediately south of this property line, the pavement is approximately four feet outside of the right-of-way limits and extends for a distance of approximately one hundred feet along the frontage of a tract of property owned by a certain apartment company. From the information which you have provided us, it is our understanding that the present property owners were not the original grantors for this right-of-way. It is understood that this project was completed in July, 1958, and that this service road has been in existence since that time.
As it was stated in an unofficial opinion to your office dated December 5, 1968 [Op. Atty. Gen. 68-484], it is my judgment that 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 and actual enjoyment of the public easement. It is felt that the citations of authority contained therein regarding implied dedication are applicable in this situation.
It is my conclusion, based on these citations of authority and applying this law to the facts at hand, that there has, in effect, been an implied dedication of this portion of each landowner's property to the use of the general public. Therefore, the State Highway Department may claim a property interest in that land which is presently pai~. However, 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 through condemnation proceedings. See R. G. Foster & Co. v. Fountain, 216 Ga. 113, at 119 (1960).

OPINION 69-55 (Unofficial)

To: Department of Public Safety

February 3, 1969

Re: Motor Vehicle Safety Responsibility Law; additional security after a judgment-suspension of judgment debtor's license if he fails to satisfy the judgment.

This will acknowledge your recent inquiry concerning the above

70
subject. Attached to your inquiry was a carbon copy of a letter from a local attorney who apparently obtained a judgment considerably in excess of the amount of security that had been posted with the Department of Public Safety pursuant to Ga. Laws 1951, p. 565, as amended (Ga. Code Ann. 92A-605(a)). The attorney is desirous of having the Department require the judgment debtor to post additional security with the Department so that the judgment creditor~ represented by the attorney, can withdraw same against his judgment.
Your inquiry is:
"If security has been deposited with this Department and judgment is rendered for an amount over the security deposited, is this Department required to request an additional amount of security."
In a previous unpublished opinion, the writer took the position that the Department was not required to make a judgment debtor post additional security up to the limits provided by law or up to the amount of the judgment should that amount be less than the limits provided by law. Primarily, the writer was motivated in arriving at the above conclusion by a desire to relieve the Department of Public Safety from placing itself in the position of being a "collection agency." However, such conclusion is not inconsistent with the requirements of the Motor Vehicle Safety Responsibility Law.
Ga. Laws 1951, p. 565, as amended (Ga. Code Ann. :~ 92A-605[a]) requires security of an operator or owner where an aggrieved party claims he has been damaged as a result of an accident. Such security is to satisfy any judgments for damages or injuries resulting from the accident as may be recovered against the operator or owner. Ga. Laws 1951, p. 565, as amended (Ga. Code Ann. 92A-6l0) provides that the Director may increase the amount of security where subsequent information indicates that the original amount of security would not be sufficient in his judgment to satisfy any judgment or judgments for damages as may be recovered against each operator or owner. The writer has construed this provision to mean that where the aggrieved party swears that he has been damaged and where the Director has required the operator or owner of the other vehicle or vt-hicles to post the necessary security, and the aggrieved party submits a subsequent affidavit as to damages, then the Director may again

71

seek an increase in the amount of security in an effort to satisfy any judgments "as may be recovered against each operator or owner." Ga. Laws 1951, p. 565, as amended (Ga. Code Ann. 92A-610).
Pursuant to the provisions of Ga. Laws 1951, p. 565, as amended (Ga. Code Ann. 92A-605(e)(l) and 92A-605(e)(2)(a)), the Director may suspend the license and registration of a judgment debtor where he has failed to satisfy the judgment under the conditions provided by law.

OPINION 69-56 (Unofficial)

To: Representative, District 88

February 3, 1969

Re: Construction of 1968 law re county supplements to salaries of District Attorneys.

This is in response to your recent request for an unofficial opinion on the above. Specifically you have asked:

1. "Must there be a 'local act' of the General Assembly subsequent to April 8, 1968, to permit a County Commission legally to supplement the salary of a District Attorney? " 2. "If your answer is in the affirmative, may such 'local act' simply provide a 'floor' for local supplement, leaving any additional amount to the enlightened judgment of the Commission from time to time?"

I must preface my remarks by stating that this opinion applies only to county supplements paid pursuant to the Compensation of the Solicitors General Act, Ga. Laws 1968, p. 992, and has no application to any supplements which are presently paid under other provisions of law. As you know, although the Act was approved on April 8, 1968, it provided for a delayed effective date of "June 30th following the expiration of the term of each Solicitor General." Therefore, no District Attorney is presently compensated under this Act, and the present authority of any county to supplement the salary of a District Attorney is similarly unaffected.
Turning, then, to your first question, I find that Section 4 of the Act provides as follows:

72
"Nothing contained within this Act shall be construed so as to prohibit any county or combination of counties from supplementing the salary provided for in section 1 of this Act for the Solicitor General in such amount as shall be hereafter fixed by the provisions for any local law pertaining thereto." (Emphasis added.)
In my opinion the clear import of this section is to require additional legislation before a county would be authorized to supplement the salary of a District Attorney. Therefore, your first question is answered in the affirmative.
In response to your second question, Art. VI, Sec. XII, Par. I of the Georgia Constitution (Ga. Code Ann. 2-4701) provides in pertinent part that it is:
" . . . the right of the General Assembly to authorize any county to supplement the salary of a ... district attorney of the judicial circuit in which the county lies out of county funds ...."(Emphasis added.)
If by "floor" you refer to a minimum amount which the county would be compelled to add as a supplement, the answer to your question is no; for under this constitutional provision the General Assembly may authorize, but not require, the payment of salary supplements by the county. Houlihan v. Atkinson, 205 Ga. 720 (1949). It has been held that the intent of this provision is to require the concurrence of both the General Assembly and the county fiscal authorities in any salary supplement. Houlihan v. Ryan, 205 Ga. 734 (1949).
Similarly, if by "floor" you mean the discretionary authorization to supplement not less than a specific amount, I am of the opinion that your second question must still be answered in the negative.
Section 4 of the Act requires that the supplement be "fixed" by local act. It not appearing that "fixed" is used as a word of art, it must be accorded its ordinary signification. Ga. Code Ann. 102-1 02(1 ). As ordinarily used with regard to the payment of a salary, the word "fixed" precludes the idea of variableness and implies a settled, definite sum. See Calberson v. Watkins, 156 Ga. 185 (1923).
This requirement that the supplement be "fixed," having been imposed by general act, cannot be amended or modified by a local

73

act. Stewart v. Anderson, 140 Ga. 31 (1913). Therefore, in the absence of amendatory legislation, any authorization to supplement the salary of a District Attorney by local act must be for a specific amount, not subject to further enhancement at the discretion of the. county.

OPINION 69-57

To: Joint Secretary, Georgia Real Estate Commission

February 4, 1969

Re: Money in escrow is subject to an intangible tax.

This is in response to your letter wherein you requested an opinion as to whether or not escrow money held by a broker in a bank for safe keeping until a transaction is completed is subject to an intangible tax.
Ga. Code Ann. 92-116 states:

"Money, how taxed. -A property tax is levied for the year 1938 and annually thereafter at the rate of 10 cents on each $1 ,000 of the fair market value of all money as of the first day of January, without deduction of any indebtedness or liability of the taxpayer." Ga. Laws 1937-38, Extra Sess., pp. 156, 159. "Georgia is among the states which hold that money or an instrument evidencing indebtedness may be the subject of an escrow, and that a real estate broker under these circumstances is an escrow agent." (Williams v. Northside Realty Assoc., 116 Ga. App. 253 at 254 (1967)). "The general rule that title remains in the depositor has been applied to personal property generally, bonds, negotiable paper money and in certain instances, the rule has been applied to leases, and stock certificates." 30A C.J.S., Escrows 9, p. 994 (1965). Also see 28 Am. Jr. 2d Escrow 10, p. 16 (1966).

Therefore it is my official opinion that money, without deduction of any indebtedness or liability of the taxpayer, is subject to an intangible tax, and that the person who deposits the money in escrow is the owner of the money in escrow so long as the condition precedent has not been met and is subject to that
tax.

74

OPINION 69-58 (Unofficial)

To: Private Inquirer

February 4, 1969

Re: The sale, procuring for or furnishing of lottery or gift enterprise tickets, not the purchasing .Jr receiving of them, is prohibited.

This is in response to your letter of January 24, 1969, wherein you ask several questions pertaining to the Georgia laws concerning lotteries and gift enterprise schemes.
The essential elements of a lottery are consideration, chance and prize. A gift enterprise is a promotional scheme in the nature of a lottery. The elements of a gift enterprise are the same as a lottery except no consideration is needed.
If in the magazine contest which you refer to in your letter, the winner of a prize is selected by chance, it is a gift enterprise.
The Acts forbid the sale, procuring for or furnishing of the tickets, not the purchase or receiving of them.
Therefore it is my unofficial opinion that if you sign your name to an entry blank with a number on it and return it to the magazine that you would not be in violation of our lottery or gift enterprise scheme statutes.
Enclosed please find a copy of the opinion rendered on October 28, 1968 [Op. Atty. Gen. 68-442], by the Attorney General on the subject. This should answer all other questions.

OPINION 69-59

To: Secretary of State

February 5, 1969

Re: Elections; Georgia Election Code requires special election to fill vacant offices.

You have requested my opinion on whether it is possible to appoint a justice of the peace or constable where there was no one elected in the November general election and where a special election was called and no one qualified to run in the special election from that district.
You are, of course, aware of the two unofficial opinions dated December 16, 1968 [Op. Atty. Ge)1. 68-504], and December 18, 1968 [Op. Atty. Gen. 68-508] rendered by the Department of Law in which the view was stated that the appointment provisions

75
of Ga. Code Ann. 24-408, 24-806, which allowed for appointment of justices of the peace and constables respectively upon failure of election, had been superseded by Georgia Election Code 34-1515.
The Georgia Election Code provides:
"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... 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." (Emphasis added.) Ga. Election Code 34-15 I 5.
The Georgia Election Code 34-103(e) further defines "election" to include any general or special election. Applying this definition to Georgia Election Code 34-1515, it appears the law would require that the office be filled by an election rather than by appointment.
You state that no one has qualified for the special election. I assume you mean that, in addition to no one qualifying under Georgia Election Code Ch. 34-10, no one has expressed an interest to offer as a write-in candidate in the special election. However, it would not be possible to ascertain if anyone is, in fact, elected to the office until after the special election is held because of the possiblity that a write-in candidate may be elected. I am aware of the 1966 constitutional amendment which requires that a write-in candidate give notice of his intention of candidacy as follows:
"In a State general election, to the Secretary of State and by publication in a paper of general circulation in the State; 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; in a municipal general election, to the mayor or similar officer thereof and by publication in the official gazette of the municipality holding the election." (Emphasis added.) Georgia Constitution Art. II, Sec. VII, Par. I; Ga. Code Ann. 2-1201A.
As you will note, there is no provision for notice to be given in a special election. Under the well-established rule of statutory construction that a law which is a barrier to eligibility for public office must be strictly construed, it is my opinion that notice of intention need not be given in advance by a write-in candidate in a

76

special election. Morgan v. Crow, 183 Ga. 147 (1936); Avery v. Bower, 170 Ga. 202 (1930).
Since no advance notice of intention must be given by write-in candidates in a special election, it is difficult to imagine a special election at which no one is elected. However, if such an eventuality occurs, it is my opinion that the offices of justice of the peace and constable must be filled by election rather than appointment and your question is answered in the negative.

OPINION 69-60 (Unofficial)

To: Floyd County Attorney

February 5, 1969

Re: Homestead Exemption; special exemption granted to those over 65 not fully available when property is jointly owned with one under 65.

In your letter of January 27, 1969, to this office; you asked for an opinion on the following question:

"If a husband and wife jointly own the homestead property, the husband being over 65 and the wife under 65, can the applicant (husband) apply for and receive the $4,000.00 homestead exemption contemplated by this act, if their combined income does not exceed the $4,000.00 as provided in the act? "

The pertinent language of the 1968 Amendment to Art. VII,

Sec. I, Par. IV of the Constitution of Georgia of 1945 (Ga. Code

Ann. 2-5404) grants a homestead exemption to "each person

who is 65 years of age or over... on a homestead owned and

occupied by him as a residence if his net income, together with the

net income of his spouse who also occupies and resides at such

homestead ... does not exceed $4,000.00 for the immediately

preceding taxable year for income tax purposes." (Ga. Laws 1968,

p. 1690).

-

A "homestead" is defined by statute as "real property owned

by the applicant on January 1st of the taxable year and who is in

possession thereof and upon which said applicant resides and the

land immediately surrounding said residence and to which he or

she has a right to said possession under bona fide claim of

ownership." Ga. Code Ann. 92-232. (Ga. Laws 1937-38, Extra.

Sess., pp. 145, 147; Ga. Laws 1939, p. 99).

As distinguished from a homestead, an exemption under the

homestead law is a personal right of the applicant. In re Trammell,

77

5 F. 2d 326 (D.C. N.D. Ga., 1925). Thus, the 1968 Constitutional Amendment provides for a right personal to the applicant.
The homestead statute further defines "homestead" to mean the following:

"(J) Where property is owned and occupied jointly be two or more persons all of whom occupy the property as a home and if otherwise entitled to a homestead such homestead may be claimed in the names of such joint owners residing in said home." Ga. Code Ann. 92-233. (Ga. Laws 1939, pp. 99, 100).

An applicant is defined as:

"(a) A married person living with husband or wife." Ga. Code Ann. 92-234. (Ga. Laws 1937-38, Extra. Sess., pp. 145, 149).

The foregoing definitions of 'exemption,' of 'homestead' and of 'applicant,' lead to the conclusion that the exemption allowed to persons 65 years of age or over by the 1968 constitutional amendment is a personal right of only those persons 65 or over where the income limitation is met. It also follows that where there is joint ownership of the homestead property, each owner may assert his claim as an applicant for an exemption based upon the interest he holds in the property. See the opinion of Attorney General Eugene Cook dated March 29, 1961, explaining the homestead exemption for disabled veterans. [Op. Atty. Gen., 1960-61, p. 492].
It is, therefore, my unofficial opinion that the husband, in the
foregoing question, can apply for the $4,000.00 exemption but he is entitled to only that portion of such exemption commensurate with his interest in the homestead. If he owns a half interest then he would be entitled to half of the exemption, or $2,000.00. His wife would then be entitled to that portion of the regular $2,000.00 exemption based upon her interest, or a $1,000.00 exemption~
OPINION 69-61

To: Special Counsel to the Governor

February 6, 1969

Re: Municipalities; Ratification of local Constitutional Amendments

You have requested my advice on whether the Governor should proclaim a proposed amendment to be a part of the Constitution

78
of the State of Georgia in the following situation: A proposed constitutional amendment authorizes the General Assembly by local acts to consolidate the various governments located "within the limits" of the county. In the subsequent election to determine ratification, the issue of ratification was not separately submitted to the residents of a municipality, the limits of which extended beyond the county line into an adjoining county. The issue was voted on by the electors in that municipality who resided in the county and their votes were included in the total returns for the county. However, no separate return was made for that municipality.
The Georgia Constitution requires a local constitutional amendment to be submitted to the people of the political subdivision or subdivisions directly affected by the amendment. Georgia Constitution, Art. XIII, Sec. I, Par. I; Ga. Code Ann. 2-8101.
The issue is whether a municipality located partly in one county and partly in an adjoining county is "directly affected" by an amendment which affects those municipalities located "within the limits of" one of the counties.
"Directly affected" 11.1eans straightway, immediately, without delay; in a direct manner or way; without anything intervening. McCullers v. Williamson, 221 Ga. 358, 363 (1965).
Although I have found no Georgia appellate court case directly on the point, I believe the majority and better-reasoned view in the United States is that, when used in this type of statute, "within" means wholly within the boundary prescribed. In a leading case decided by the Supreme Court of Missouri, a town, 90% of whose area and population was within the geographical boundaries of a special road district, was not "within" the district for the purposes of a statute providing for the manner of selecting members of the board of commissioners. Town of Alexandria v. Clark County, Mo., 231 S.W. 2d 622 (1950). Another important and persuasive case is State ex rei. County Court of Wood County v. State Road Commission, 147 W.Va. 623, 129 S.E. 2d 626 {1963) where the Supreme Court of West Virginia held that
"within" as used in astatute prescribing who has jurisdiction over
bridges "within municipalities" means that the bridge must be located wholly within the boundary prescribed before it complies with the statute. See also Jones v. Pollock, 208 P. 2d 1031 (Cal. App. 1949) which holds that "within" means "not beyond."
Since the municipality with which we are concerned does not lie wholly within the county, I believe the Georgia courts would decide that the municipality does not come under the terms of the local amendment. If this is true, then that municipality, according to the McCullers case, would not be "directly affected" by the

79

local amendment and it would not be necessary for the municipality to separately ratify the amendment.
Based on the above facts and reasoning, it is my advice that the Governor may proclaim the local amendment to be a part of the Constitution of the State of Georgia.

OPINION 69-62 (Unofficial)

To: Department of Public Safety

February 6, 1969

Re: Suspension or revocation of drivers' licenses.

This will acknowledge your recent inquiry which was accompanied by a letter from W. C. Little, Judge, City Court of Brunswick, Georgia, wherein Judge Little asked whether Ga. Laws 1968, pp. 448, 451(g) (Ga. Code Ann. 68-9927) places the responsibility of suspending driver's licenses of those convicted for driving under the influence of intoxicating liquor or of drugs upon the sentencing court or upon the Department of Public Safety.
Ga. Laws 1968, pp. 448, 449, Section l(a) (Ga. Code Ann. 68-1625) clearly expresses the intent of the legislature to make it a crime for a person to drive or operate a vehicle while he is under the influence of intoxicating liquors and, further, to provide punishment therefor. This is further evidenced by Ga. Laws 1968, pp. 448, 45l(g) (Ga. Code Ann. 68-9927) which provides "every person who shall be convicted of a violation of this section shall be guilty of a misdemeanor and . . . shall be punished as for a misdemeanor."
The Department of Public Safety does not have authority to mete out punishment for violation of the laws of this State. It may, however, revoke or suspend the privilege of driving where consistent with the law. For instance, Ga. Laws 1951, p. 565, as amended (Ga. Code Ann. 92A-605[a]) authorizes the Director to suspend one's license if he fails to furnish security after the Director receives notice that another party in an accident was damaged thereby. Also, the Director may revoke an operator's license upon conviction or plea of guilty or forfeiture of bond of certain enumerated offenses, one of which is "driving a motor vehicle while under the influence of intoxicating liquor or drugs." Ga. Laws 1951, p. 565, as amended (Ga. Code Ann. 92A-608).
[The examples just stated are illustrative only and not meant to be exclusive of any other authority that the Director may have for suspending or revoking driver's licenses.] See also Murphy v. Dominy, 211 Ga. 70 (1964); Op. Atty. Gen., August 30, 1957 [unreported].

80

Therefore, I conclude that it is the function of the court having jurisdiction of the subject matter to invoke the punishment provisions of this particular law in question, i.e., Ga. Laws 1968, pp. 448, 45l(g) (Ga. Code Ann. 68-9927) and the Department of Public Safety does not have the authority to do so under this particular law.

OPINION 69- 63 (Unofficial)

To: Chairman, Lamar County Commissioners

February 6, 1969

Re: Counties with a population of 10,000 may have five tax assessors.
This is in response to your letter to Mr. Ben Fortson, Secretary of State, dated January 22, 1969, wherein you ask whether Georgia law permits a county with a population of 10,000 to have five tax assessors.
It is my unofficial opinion that a county with a population of 10,000 may have five tax assessors since a statute, Ga. Laws 1951, pp. 715, 716 (Ga. Code Ann. 92-6903), expressly provides:

". . . that in all counties of this State which shall have a population of less than 25,000, according to the United States census of 1950 or any future census of the United States, the boards of tax assessors in those counties shall consist of not less than three nor more than five members...."

OPINION 69- 64 (Unofficial)

To: Wayne Memorial Hospital Authority

February 6, 1969

Re: State Employee serving on Hospital Authority.

This is in response to your recent letter addressed to Arthur K. Bolton, Attorney General, in which you requested an opinion on the following question: Is there any provision of law which would make it illegal for an employee of the state to serve on the County Hospital Authority?
I am not aware of any provision in the law of Georgia which would render service by an employee of the State on a county hospital authority illegal.
Therefore, it is my unofficial opinion that your question, as posed above, should be answered in the negative.

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OPINION 69-65 (Unofficial)

To: Private Inquirer

February 6, 1969

Re: Court of Ordinary has jurisdiction to try certain criminal offenses, when there is no city or county court.

This will acknowledge receipt of and reply to your letter dated January 31, 1969, to Mr. John F. Cooney, Jr., in which you ask whether or not the Court of Ordinary in Morgan County, Georgia, has the authority to conduct criminal trials.
Limited criminal jurisdiction is conferred upon the Court of Ordinary by the following language of the Constitution: "The Court of Ordinary shall have jurisdiction to issue warrants, try cases, and impose sentences thereon in all misdemeanor cases arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws, and in all cases arising under the Compulsory School Attendance law in counties of this State in which there is no city or county court, provided the defendant waives a jury trial. . . ." Art. VI, Sec. VI, Par. II of the Constitution (Ga. Code Ann. 2-4102).
My research indicates that the City Court of Madison, the same being the type of court contemplated by the phrase "city or county court" in the previously quoted paragraph of the Constitution, was created in 1910 (Ga. Laws 1910, p. 179) and abolished in 1925 (Ga. Laws 1925, p. 472). The phrase "city or county court" as used in Art. VI, Sec. VI, Par. I of the Constitution does not include municipal or police courts. Jurisdiction to try traffic and school attendance cases is conferred upon police and municipal courts under a separate constitutional provision. As there is no city or county court, within the meaning of the Constitution, in existence in Morgan County, it is my opinion that the Court of Ordinary in Morgan County has jurisdiction to try traffic offense and school attendance cases if the defendant waives a jury trial.
Language similar to that of the Constitution, relating to the jurisdiction of the Court of Ordinary in criminal cases, may be found in Ga. Code Ann., Ch. 92A-5. Ga. Code Ann. 92A-504 provides that the Court of Ordinary shall not have the power to dispose of misdemeanor cases unless "the defendant shall first waive in writing a trial by jury. If defendant shall wish a trial by jury, he shall notify the court, and if reasonable cause exists he shall be immediately bound over to the court in such county having jurisdiction to try the offense wherein a jury may be

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impaneled." In view of the constitutional and statutory provisions quoted
herein, it is my opinion that the Court of Ordinary in Morgan County has jurisdiction to try criminal offenses arising under the laws herein specified. In view of the constitutional provision which vests jurisdiction in the Ordinary "provided the defendant waives a. jury trial" (Art. VI, Sec. VI, Par. I of the Constitution), as amplified by the statutory requirement that the defendant waive jury trial in writing (Ga. Code Ann. 92A-504) and the statutory provision limiting the Ordinary's jurisdicticn to cases arising within his county, but outside the territorial limits of municipalities (Ga. Code Ann. 92A-511), I cannot express an opinion as to whether or not the court had jurisdiction in the particular case in which you are interested, as I have not been advised of all of the facts surrounding this arrest.
OPINION 69-66
To: Employees' Retirement System of Georgia February 6, 1969
Re: Retired employee should continue to receive involuntary separation benefits though working for the State as an independent contractor.
This responds to your letter of January 20, 1969, asking for my official opinion as to whether or not the involuntary separation retirement benefits of a retired member should be suspended during the time covered by an agreement pursuant to which he occupies with reference to the State the status of independent contractor.
Ga. Code Ann. 40-2505(1)(c) provides a rather elaborate set of criteria pursuant to which a determination must be madtl whether or not the right of a retired member to receive retirement benefits should be suspended for the duration of any "employment" he accepts from any department or agency of the State. The word "employment," as used in that section, is nowhere defined in the amended Act governing this retirement system and, accordingly, is subject to judicial construction. As you doubtless are aware, the claimant is entitled to have the subject provision liberally construed in his favor. Griffin v. Bass, 96 Ga. App. 892 (1958);Burks v. Board of Trustees, 214 Ga. 251 (1958).
The word "employment," liberally construed in favor of the claimant, would exclude the status of independent contractor. The appellate courts of Georgia repeatedly have ruled that the status

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described in your requesting letter is that of independent contractor, rather than employee, the legal distinction being that an independent contractor does the work according to his own methods without being subject to the employer's control except as to the results to be attained. Employers Mutual Liability Insurance Company of Wausau v. Johnson, 104 Ga. App. 617 (1961).
I am of the opinion that the involuntary retirement benefits of the claimant described in your requesting letter should not be suspended during the period covered by his contract with the subject department of the State.
The opinion stated above assumes Ga. Code Ann. 40-2505( 1)(c) is applicable to retired members recemng involuntary retirement benefits. The phraseology of the last clause of that section might lead a court to believe that it was the intention of the General Assembly to exclude from the suspension of benefits provisions all retirements other than age 65 service retirements, whereas it might have been the intention to include forms of retirement of age 65 to receive pension and salary if their salary is below certain limitations. Further, the section as presently cast might be held to create an unconstitutional
discrimination between classes of retired members. With reference to the problem of classifications which have no reasonable relationship to the purpose of the legislature, see, for instance, Geele v. State, 202 Ga. 381 (1947); Ledger-Enquirer Company v. Brown, 213 Ga. 538 (1957).

OPINION 69-67

To: Secretary of State

February 7, 1969

Re: An absentee elector who is in the county on election day during the time the polls are open is disqualified from voting by absentee ballot.

You have requested my opinion on whether an absentee ballot may be challenged on the ground that the absentee elector was in the county on election day during the time the polls were open.
An absentee elector is defined as an elector of the State of Georgia:

(1) who is required to be absent from the county of his residence during the time of the primary or election he desires to vote in; or

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(2) who will be a poll officer in an election district other than the one of his residence in the election he desires to vote in; or (3) who because of a physical disability will be unable to be present at the polls on the day of such primary or election. Ga. Code Ann. 34-1401.
The Code further provides for the manner of applying for an absentee ballot, voting the ballot and returning it to the board of registrars. Ga. Code Ann. Ch. 34-14.
After the close of the polls on election day, a registrar delivers the absentee ballots to the managers in charge of the polling place of the election district containing the county courthouse. The managers examine the affidavit and jurat of each envelope.
"If the managers are satisfied that the affidavit and jurat are sufficient and that the absentee elector is otherwise qualified to vote. .."(Emphasis added.)
then an opportunity is given to any person present to challenge in a like manner and for the same cause as the elector could have been challenged had he tried to vote other than by official absentee ballot. Ga.Code Ann. 34-1407(b).
It is important to note that the Code requires the managers to satisfy themselves that the absentee elector is qualified to vote. Remembering the definition of "absentee elector" cited above, I believe that an elector is not qualified to vote as an absentee elector if he is present in the county on election day during the time the polls are open. I am reinforced in this opinion by the further provisions of the Code requiring an elector to cancel his absentee ballot and vote in person if he is present in the county during the time the polls are open (Ga. Code Ann. 34-1409) and authorizing criminal prosecution against any person who votes by absentee ballot if he is not qualified to do so (Ga. Code Ann. 34-1932).
In view of the above proyisions of the Code, it is clear to me that the General Assembly did not intend to allow an elector to vote an absentee ballot if he is present in the county during the time the polls are open. If the managers are certain that the absentee elector is thus disqualified, then the Code authorizes them to reject the ballot. Ga. Code Ann. 34-1407(c). However, if there is any doubt in their minds, then I believe the better course would be to treat the ballot as challenged and so mark it as

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in other instances of challenge. See Ga. Code Ann. 34-1407(d). The managers, as in other instances, need n9t have personal knowledge of the facts constituting disqualification and they may rely on sworn testimony given by others. Ga. Code Ann. 34-507. To challenge the ballot rather than reject it would still make it possible to identify the ballot should it become necessary to investigate further into the challenge for the purposes of a recount or for presentation of the ballot to the District Attorney or the grand jury. At the same time, it would not deprive a person of the precious right to have his vote counted.
It is therefore my opinion that an absentee elector who is in the county on election day during the time the polls are open is disqualified from voting by absentee ballot and your question is answered in the affirmative.

OPINION 69-68 (Unofficial)

To: County Attorney, Telfair County

February 7, 1969

Re: County governing authority may fix the salary of its employees, but may not affect the salary of any elective office or its personnel.

You have requested our unofficial opm10n on whether the county governing authority can increase the salaries of various secretaries, assistants and deputies to the several county officers without any further local legislation being introduced in the General Assembly.
The Home Rule for Counties Amendment to the Georgia Constitution proposed by Ga. Laws 1965, p. 752, and ratified November 8, 1966, is contained in Art. XV, Sec. II of the Constitution (Ga. Code Ann. 2-8402 et seq.).
The county governing authority may fix the salary, compensation and expenses of those employed by the governing authority. (Georgia Constitution, Art. XV, Sec. II, Par. II; Ga. Code Ann. 2-8403). However, the legislative power delegated to the governing authority of each county may not be construed to extend to:

"Action affecting any elective county office, the salaries thereof, or the personnel thereof, except the personnel subject to the jurisdiction of the county governing authority." Georgia Constitution, Art. XV, Sec. II, Par. l(c)(l); Ga. Code Ann. 2-8402(c)(l).

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Thus, in my unofficial opinion, the governing authority may increase the salary of the personnel employed by the governing authority, but not the personnel of any other county elective office.

OPINION 69-69 (Unofficial)

To: Recorder and Town Attorney

February 10, 1969

Re: The Mayor of Thunderbolt may vote for a successor to the office of alderman.

Mr. Bolton has requested that I directly respond to your recent inquiry because of the limited amount of time left before your meeting with the town council on February 12.
You advise that recently one of your aldermen passed away after having been duly elected and sworn in to the office. You wish our unofficial opinion on whether the Mayor of Thunderbolt may vote for a successor to this office in view of two particular sections of Thunderbolt's charter.
The pertinent sections of the Thunderbolt charter are Sections 5 and 14 (Ga. Laws 1921, pp. 1122 et seq.).
Section 5 specifically provides that the Mayor shall vote when electing a successor to the office of alderman. Section 14 provides that the Mayor shall have the right to vote "in elections for officers" and the restriction placed upon him to vote only when there is a tie vote applies, as I interpret it, to "all other questions before said body." I therefore do not believe that there is a conflict between the two sections since a vote to select an alderman is a vote in an "election for an officer" and therefore the Mayor need not wait until a tie vote.
Moreover, as you know, where there is an apparent conflict between different sections of the same statute, the sections should be reconciled, if possible, so as to make them consistent and harmonious with one another. Williams v. Bear's Den, Inc., 214 Ga. 240, 242 (1958). Since Section 5 specifically allows the Mayor to vote in an election for a successor to the post of alderman, Section 14 should be construed so as not to prohibit the Mayor from so voting.
Since the deceased alderman had already been properly elected

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and sworn in, there is no need to call a special election under Ga. Code Ann. 34A-1409. It is therefore my unofficial opinion that the Mayor, together with the remaining aldermen, may vote for a successor to the office of alderman.

OPINION 69-70

To: Insurance Commissioner

February 10, 1969

Re: Petition for Incorporation of ... Surety Company.

You have forwarded a copy of the petition for incorporation of the ... Surety Company and you have requested that we review it and give our legal opinion as to whether or not the petition will enable the company to comply with the applicable insurance laws of Georgia.
In an official opinion to you as Insurance Commissioner dated March 21, 1966 [Op. Atty. Gen. 6645], the Attorney General concluded that "dummy incorporators," i.e., incorporators who are used merely to sign the petition for incorporation and have no genuine interest in the formation and organization of the insurance company, cannot be used to satisfy the requirements as to age, moral character and residence in Georgia. Ga. Code Ann. 56-1504(2).
In the above petition, the incorporators ostensibly meet the requirements as to age, moral character and residence in Georgia. However, in reviewing the petition, I note that four of the incorporators have subscribed for 74,975 shares of stock each. Of these four incorporators, two are Georgia residents and two are not. The two remaining Georgia incorporators have merely subscribed for 50 shares of common stock. In addition, neither of these two Georgia incorporators is to serve on the board of directors or as an officer in the Company.
I call your attention to the above facts in order that you can be aware of the full situation before you make your determination pursuant to Ga. Code Ann. 56-1 505(4) on whether the charter will enable the insured to comply with the applicable insurance laws of Georgia.
Aside from the above comments, I find no legal objections to the petition for incorporation as forwarded by you.

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OPINION 69-71 (Unofficial)

To: Baker County Board of Registrars

February 11, 1969

Re: Voter registration purge; notice must be sent to purged elector by 1st class mail to last known address.

You advise us that your county is in the process of purging the
voter registration records and removing the names of those electors who have failed to vote within the prescribed time. Ga. Code Ann. 34-620(a)(b). You wish to know whether it is the Board of Registrars' duty to mail notice of your intent to purge to the elector's last known address. After authorizing the suspension of electors who have not voted in a general primary or general election in three years, the Ga. Code Ann. continues as follows:

". . .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: ... 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." Ga. Code Ann. 34-620(b).

My research has not uncovered any exceptions to the above requirement and, therefore, it is my unofficial opinion that when purging the voter registration records of electors who have failed to vote within the three-year period prescribed by the Georgia Election Code, the Board of Registrars must give notice of their intention to so purge the elector by sending such notice by first class mail to each elector's last known address.

OPINION 69-72 (Unofficial)

To: Associate Director, State Board of Corrections

February 11, 1969

Re: The State Board of Corrections may transfer minor inmates to the Youth Development Center, whereupon the inmate becomes subject to the policies, rules and regulations of the Department of Family and Children Services and the Board of Corrections ceases

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to have control and custody of the inmate.
This will acknowledge your recent inquiry with its accompanying papers from the Youth Development Center, Milledgeville, Georgia, concerning the subject inmate.
The inmate, a thirteen-year-old, was sentenced to six years imprisonment and after being assigned to the Georgia Industrial Institute (a facility operated by the Board of Corrections), he was subsequently transferred to the Youth Development Center (a facility of the Division for Children and Youth, State Department of Family and Children Services). Approximately a year later he was released from the Youth Development Center and returned to his parents where he now remains under the supervision of a court service worker until such time as his six-year sentence would ordinarily expire. You ask of this Department, "If the Department of Family and Children Services [has] the authority to release subjects in this matter, [and] what disposition should [be made] of his case?"
An official opinion of this Department, dated January 23, 1967 [Op. Atty. Gen. 67-19], to Mrs. Bruce Schaefer, Director of the State Department of Family and Children Services (a copy of which was forwarded to the writer with your inquiry), aptly states the aims and purposes of the Division for Children and Youth of the State Department of Family and Children Services. Their primary function is not penal in nature but, rather, is the rehabilitation of those in its custody. Thus, when the Board of Corrections chooses to turn over one of its minor inmates to the Youth Development Center, the Department of Corrections then relinquishes its custody and control of the minor and he then becomes subject to the "policies, rules and regulations governing the operation of all training schools and facilities under the jurisdiction and control of the [State Board of Children and Youth]." Op. Atty. Gen. 67-19. In this particular instance, when the Youth Development Center released this inmate to return to his parents, it must be presumed that he had shown sufficient rehabilitation as not to require further supervision at the Center in Milledgeville.
For all intents and purposes, your custody and supervision of him terminated when you relinquished custody in favor of the Division for Children and Youth and, thus, in response to your inquiry, I would suggest that you adjust your records accordingly and consider his file in the same light as you would any other inmate who is no longer in the custody and control of the State Board of Corrections.

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OPINION 69-73

To: Department of Family and Children Services

February 11, 1969

Re: Legal status of a juvenile at the Augusta Youth Development Center.

This will acknowledge your letter dated November 21, 1968, wherein you inquired as to the legal status of a certain juvenile who is now confined to the Augusta Youth Development Center which is under the control of the Division for Children and Youth, State Department of Family and Children Services.
According to the information contained in your letter, this juvenile was committed to the Division for Children and Youth on January 17, 1968, by Judge A. A. Nathan of the Juvenile Court of Glynn County, Georgia. The juvenile was placed in the Augusta Youth Development Center and subsequent to said admission the subject youth ran away from the Center and was arrested, pleaded guilty and was sentenced by the Superior Court of Richmond County to five years for larceny of an automobile. According to the sentence, a copy of which you enclosed with your request letter, provision was made in said sentence that same be served on probation outside the confines of a penitentiary on certain conditions. One condition placed upon the juvenile was as follows: "On the further condition that he shall remain at the Youth Development Center during said sentence." The above mentioned sentence was signed by the Honorable J. Frederick Kennedy, Judge of the Richmond Superior Court, on April 4, 1968.
In your letter you also stated that the State Board for Children and Youth has adopted a policy that "no child shall be admitted to the Youth Development Center except as provided in Section 13 of the Children and Youth Act and as specified in previous procedures adopted by the Board."
In view of the above facts, you have requested my opinion as to the legal status of this juvenile.
First, your attention is called to Ga. Code Ann. 99-213 which provides, in part, as follows:

When any child or youth is adjudged to be in a state of delinquency under provisions of Georgia statutes and the court does not release such child or youth unconditionally, or place him on probation, or in a suitable public or private institution or agency, the court may commit him to the division: ...

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As you will note from the above-captioned provlSlon, commitment to the Division for Children and Youth is predicated upon a c:1v1t adjudging a juvenile to be in a state of "delinquency." To the best of my knowledge, no provision is made within Georgia statutes for a court to adjudge a juvenile to be in a state of "delinquency" except as is provided by the Juvenile Court Act of 1951, as amended (Ga. Code Ann. 24-2401, et. seq., and Ga. Laws 1968, p. 1013).
As to the legal status of the juvenile in question, it is my official opinion that said juvenile is being detained by the Division for Children and Youth pursuant to the order of Judge A. A. Nathan, Judg~, Juvenile Court of Glynn County, dated January 17, 1968, notwithstanding the intervening action of the Superior Court of Richmond County.
Pursuant to said commitment, the Division for Children and Youth has the full authority to treat the juvenile in question in accordance with the provisions of Ga. Code Ann. 99-213 (d).
In closing, I would suggest that the file of the juvenile in question b"e marked so that prior to the time that said juvenile is released frorri the ClJStody of the Division for Children and Youth, the Richmond Superior Court may be consulted in regard to the sentence imposed on said juvenile by said Court. Conceivably, the juvenile in question could be, upon the release from the Augusta Youth Development Center, considered to be in violation of the terms of probation and subject to the treatment by said Richmond Superior Court as a violator of probation. In order that such a situation may be avoided, a conference with the Richmond Superior Court prior to the release of the juvenile would appear advisable.

OPINION 69-74 (Unofficial)

To: Georgia State Patrol

February 13, 1969

Re: Acquisition of real property by Department of Public Safety.

The Department of Public Safety must acquire all real property through the State Properties Acquisition Commission, created under the authority of Ga. Laws 1965, pp. 396, 397. This Commission is composed of the Governor, acting as Chairman; the State Auditor, acting as Secretary of the Commission; and the Attorney General. These three members must unanimously approve the purchase.

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You advise by letter that Chatham County is desirous of transferring the premises now occupied by the Georgia State Patrol on Dean Forest Road in Chatham County near Savannah. When your Department is satisfied that the site is fully ready to be transferred to the State, it will be in order for the Director of Public Safety to direct a request by letter to the Governor, the State Auditor, and the Attorney General in their capacity as the State Properties Acquisition Commission requesting the Commission to acquire the real property upon the behalf of your Department.
This request should contain or have attached the best available description of the real property in question. Further, it should set forth the use which your Department intends to make of the property to be acquired. The request should contain or have attached to it a copy of the agreement, if any, with Chatham County dealing with the acquisition from the County of this property.

OPINION 69-75 (Unofficial)

To: Sheriff, Clayton County

February 13, 1969

Re: Sheriffs; Authority and Responsibility

This in reply to your request in which you ask whether or not you are authorized to appoint persons to the office of deputy sheriff. You also asked for our comments concerning the authority and powers of special deputies.
A public office may be created only by the "Constitution, by some statute, or by municipal ordinance passed in pursuance of legislative authority." Morris v. Peters, 203 Ga. 350, 356 (1948). My research indicates that the sheriffs of certain counties are authorized to appoint special deputy sheriffs to investigate the collection of taxes. Ga. Laws 1945, p. 1152. The 1945 statute is a "population act" and is not applicable to Clayton County. There is no constitutional provision and no statutory provision of general application, except for the 1945 statute which relates solely to certain counties, creating an office of Special Deputy Sheriff. Therefore, it is my opinion that the office of special deputy sheriff does not exist in any county other than those counties encompassed by the 1945 act.

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That the office of special deputy sheriff does not exist in Georgia except in the limited instances referred to in the preceding paragraph, is not to be confused with the appointment of deputy sheriffs, or with the selection and summonsing of individuals to aid the sheriff in the performance of a duty.
Sheriffs are specifically authorized to appoint one or more deputies. Ga. Code Ann. 24-2811. A deputy sheriff appointed pursuant to Ga. Code Ann. 24-2811 is the "general agent of the high sheriff, to do and perform all acts which by law appertain to his office." American Surety Company v. Smith, 55 Ga. App. 633, 644 (1937). Whether or not a special deputy sheriff is in reality a deputy sheriff appointed pursuant to the authority granted in Ga. Code Ann. 24-2811 is a question of fact which would have to be decided in each individual case. Suffice it to say, however, that a bona fide deputy sheriff appointed pursuant to the foregoing Code section is authorized generally to execute the duties of the office of sheriff.
A sheriff is bound to execute penal warrants and to that end "he may summon to his assistance, either in writing or verbally, any of the citizens of the neighborhood or county." Ga. Code Ann. 27-206. A person summoned to aid a sheriff pursuant to Ga. Code Ann. 27-206 is a member of a posse comitatus and as such "may do any act to promote or accomplish the arrest which he could lawfully do were he himself the sheriff." Robinson v. The State, 93 Ga. 77,83 (1893).
Based upon the foregoing, it is my opinion that a regularly appointed deputy sheriff and persons lawfully performing the duties incumbent upon a posse comitatus may perform such acts as may lawfully be performed by a sheriff. Whether or not the "special deputy sheriff" is in reality a deputy sheriff appointed pursuant to Ga. Code Ann. 24-2811 or a member of a posse comitatus summoned pursuant to Ga. Code Ann. 27-206 is a question of fact which would have to be determined in each individual case. The office of special deputy sheriff does not exist in Georgia except within those counties falling within the purview of Ga. Laws 1945, p. 1152. That the office of special deputy sheriff does not generally exist in Georgia would not necessarily mean that such persons are not deputy sheriffs or members of a posse comitatus. Those are questions of fact, not of law, and would have to be determined in light of the facts in each particular case.

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OPINION 69-16 (Unofficial)

To: Tax Receiver, Toombs County

February 13, 1969

Re: Veterans, whose disability is not obvious to a layman, should obtain a letter from the Veterans Administration setting forth the nature and extent of their disability in order to show whether they qualify for the disabled veteran homestead exemption.

This is in response to your question whether a service connected man with an injured back who must wear a back brace, but no leg braces, and who can drive an automobile, is entitled to the $10,000 disabled veterans homestead exemption.
Art. VII, Sec. I, Par. IV of the Constitution of Georgia of 1945 (Ga. Code Ann. 2-5404) providing for the pertinent exemption defines the term "disabled veteran" as follows:

". . . a disabled American veteran of any war or armed conflict in which any branch of the armed forces of the United States engaged, whether under United States command or otherwise, and who is disabled, as a result of such service in the armed forces, by paraplegia or permanent paralysis of both legs and lower parts of the body resulting from traumatic injury to the spinal cord or brain, or paraplegia or such permanent paralysis resulting from multiple schlerosis, or by total blindness, or by the amputation of both legs or both arms."

Under the facts given, I cannot render a definite opinion that the veteran described does or does not suffer from such disability as would allow him the exemption. From my own experience, I know that one can drive a car without using his legs.
It is, therefore, my unofficial opinion that .the question, whether the veteran you describe has such disability, or paraplegia, as would allow him the exemption, cannot be answered except by a medical expert sine~ his paraplegia, if any, is not obvious to a layman. For this reason, the veteran should,procure a letter from the Veterans Administration explaining the riature and extent of his disability.

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OPINION 69-77

To: State Revenue Commissioner

February 14, 1969

Re: Right to file consolidated income tax returns, not granted by Ga. Code Ann. 92-3202 .

.This is in reply to your recent letter requesting my opinion as to whether the 1941 amendment (Ga. Laws 1941, pp. 210, 219) to Ga. Code Ann. 92-3202 confers the right to file a "consolidated income tax return" on corporations affiliated by common ownership or control.
If by a "consolidated income tax return" is meant one prepared on the basis that each member of a group of corporations owned or controlled by the same interests is not a taxable entity but is merely a part of a taxable entity, then, in my opinion, neither the 1941 amendment nor any other provision of the Georgia Income Tax Act (Ga. Code Ann. Chs. 92-30, 92-31, 92-32, 93-33), for that matter, creates such a right. Such a right would result in a reduction of the aggregate liability of the group in years in which some, but not all, of its members sustained a net loss, for each member sustaining a net loss would, in effect, be allowed to offset its net loss against the net income of those members having net income. If the General Assembly had intended such a result, it would have made provision for it in clear and unmistakable language, for it is said that a statute levying a tax will not be extended by implication beyond the clear import of its terms. Gould v. Gould, 245 U.S. 151,153,62 L. Ed. 211,213,38 S. Ct. 53(1917).
It should be noted that the only change the act of 1941 (Ga. Laws 1941, pp. 210, 219) made in Ga. Code Ann. 92-3202 was to add the words "except with the expressed consent of the Commissioner" to the second sentence of that Section. Prior to 1941, the second sentence read, "The income of two or more corporations shall not be included in a single return."
In arriving at the conclusions expressed herein, I have not been unmindful of the fact that, for federal income tax purposes, Congress has granted the right of filing a consolidated return to certain afflliated corporations. I. R. C. (1954) 1501 to 1505. However, in 1941, that right did not extend to corporations generally, it having been limited to railroad corporations in 1934. 8A Mertens, Law of Federal Income Taxation, 46.02, p. 9. Although it was extended to corporations generally for purposes of the excess profits tax in 1940, it was not until 1942, after the

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1941 amendment, that it was restored to corporations generally for Federal income tax purposes. ld. at 10.
Moreover, assuming arguendo that the General Assembly, by amending Ga. Code Ann. 92-3202, intended to grant the right to file a consolidated return to certain corporate taxpayers, to which corporations did it grant the right? Nowhere in the Code, in 92-3 202 or in any other section relating to income taxation, can anything be found which attempts to answer this question. Certainly, the General Assembly did not intend that just any group of corporations, no matter what the relationship between its members, should have the right. Congress expressly limited the right to an affiliated group of corporations, I. R. C. (1954) 1501, and then undertook to define "an affiliated group" I. R. C. (1954) 1504. Congress, furthermore, directed the Secretary of the Treasury or his delegate to prescribe regulations governing the filing of a consolidated return and the manner of computing the affiliated group's liability. I. R. C. (1954) 1504.
To understand the import of the amendment to Ga. Code Ann. 92-3202, one must consider it together with Ga. Code Ann. 92-3113(6), which was also added by the act of 1941. The obvious purpose of Ga. Code Ann. 92-3113(6) is to provide the State Revenue Commissioner with the means of preventing tax evasion by contracts or other arrangements between a parent and a subsidiary or between other corporations affiliated by stock ownership or control which do not act at arms length in dealing with one another.
A common method of evasion employed by such taxpayers is for one member of the group subject to taxation in a particular state to shift or divert a part of its income to some other member which does no business in the state and is, consequently, not. subject to taxation by that state. For example, a corporation is organized to engage in manufacturing in a state that either has no income tax law or has low rates. The goods manufactured by it are then distributed by one or more affiliated corpor-ations, created for that purpose, in states that tax net income or tax it at a higher rate than the state of manufacture. By arranging for the selling corporations to buy from the manufacturing corporation at artificially high prices, those owning or controlling the affiliated group are able to bleed off some of the income that, if the parties were acting at arms length, would be either subject to taxation or subject to taxation at high rates. For a collection of cases dealing with the effect of transactions between affiliated corporations in this context, see 130 A. L. R. 1183, 1217.
Although the State Revenue Commissioner might have sufficient authority to prevent evasion without the benefit of Ga.

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Code Ann. 92-3113(6) and 92-3209, both of which have the same broad purpose of preventing tax evasion, these Sections were apparently adopted to remove any doubt about the matter. Therefore, considering the amendment to Ga. Code Ann. 92-3202 against this backdrop, it seems certain that the General Assembly, by adopting this amendment, has not given to corporate taxpayers for Georgia income tax purposes the right which Congress has given them, through enactment of I. R. C. (1954) 1501 to 1505, for federal income tax purposes. What it has done is to make certain that the Commissioner can require corporate taxpayers to furnish him, in consolidated form if he should deem that helpful, any information that would enable him to discharge his duty of determining the true net income of each corporation belonging to a group owned or controlled by the same interest. See Burroughs Adding Machine Co. v. Wisconsin Tax Commission, 237 Wis. 423, 297 N. W. 574 (1941); Curtis Companies, Inc. v. Wisconsin Tax Commission, 214 Wis. 85, 251 N. W. 497, 92 A. L. R. 1065 (1933).
On the basis of the foregoing, your question is answered in the negative.

OPINION 69-78 (Unofficial)

To: Chief of Police

February 14, 1969

Re: A driver's license may be suspended by Recorders Court for a period within the discretion of the court; the clerk must file a certified copy of the judgment of conviction with the Department of Public Safety.

This will acknowledge your recent inquiry wherein you asked if the City Recorder "has authority to suspend and/or revoke driver's licenses for all traffic offenses, such as speeding, reckless driving or repeated offenses and for what period of time? And, if the Recorder does have such authority, what procedure does he follow in revoking this license, and what forms are necessary to be filed with the State? ".
A Recorder's Court, under the conditions set out to you in my letter of December 12, 1968, has authority to suspend and/or revoke driver's licenses for driving under the influence of intoxicating liquor or drugs, driving a vehicle without a driver's license and/or a revoked, suspended or cancelled driver's license, driving a vehicle without a State inspection sticker and/or expired State inspection sticker, driving a vehicle without a State license

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plate and/or an illegal or expired State license plate, and other traffic offenses occurring on the public roads of the municipality. Opinion of May 3, 1967 [Op. Atty. Gen. 67-158]. See also Ga. Laws 1937, p. 322, 348, as amended (Ga. Code Ann. 92A-9908), attached.
The period of time for such suspension or revocation is discretionary with the court. See Ga. Laws 1937, p. 322, 348, as amended (Ga. Code Ann. 92A-9908).
The procedure to be followed in revoking a license would be the same as in entering any other judgment of the court. However, I should like to emphasize one sentence of Ga. Code Ann. 92A-9908, to wit:

"It shall be the duty of the clerk of the court trying the case to immediately transmit a certified copy of the sentence and judgment to the Department of Public Safety."

The only form necessary to be filed with the State would be a certified copy of the sentence and judgment of the court. Ga. Laws 1937, p. 322, 348,. as amended (Ga. Code Ann. 92A-9908).
OPINION 69-79 (Unofficial)

To: Judge, Court of Ordinary

February 17, 1969

Re: With proper authorization the sheriff of Whitfield County and his deputies may accept cash bond in misdemeanor traffic cases; the sheriff may also approve appearance bonds made to a court that has jurisdiction.

By letter dated January 30, 1969, you asked who may approve
appearance bonds in traffic cases. You also asked if these appearance bonds should be made to the court of ordinary or the superior court. In addition, you stated that the sheriff of Whitfield County and his deputies now accept cash bonds in traffic cases by authorization of the court of ordinary.
The City Court of Dalton has concurrent jurisdiction with the Superior Court of Whitfield County to try misdemeanor violations of traffic laws committed within the boundaries of the county. Ga. Laws 1953, p. 2128. Only these two courts have such jurisdiction. Therefore, by order of the judge of either of these

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courts, the sheriff of Whitfield County or his deputies may accept cash bonds from persons arrested for a violation of these traffic laws, committed outside of the corporate limits of a municipality. Ga. Code Ann. 27-508.
The sheriff is also authorized by statute to accept and approve appearance bonds from any person or persons charged with a misdemeanor. Ga. Code Ann. 27-902. This, of course, includes misdemeanor violations of traffic laws. The appearance bond should be made to a court that has jurisdiction to try the offense. In Whitfield County these courts are City Court of Dalton and the Superior Court.
It is my unofficial opinion that with proper authorization the sheriff of Whitfield County and his deputies may accept cash bond in misdemeanor traffic cases; also the sheriff may approve appearance bonds which should be made to a court that has jurisdiction to try the offense.
If there were no city court or county court in Whitfield County, then the court of ordinary would have concurrent jurisdiction with the superior court to try misdemeanor traffic violations committed within the boundaries of the county but outside of the corporate limits of any municipality. Georgia Constitution, Art. VI, Sec. VI, Par. II (1945); Ga. Code Ann. 92A-511; Allen v. State, 85 Ga. App. 887 (1952).

OPINION 69-80

To: Secretary of State

February 18, 1969

Re: Registration of shares of beneficial interest under the Georgia Securities Act of 1957, as amended.

This will acknowledge your letter dated February 12, 1969, wherein you advised that an application had been filed with you as the Securities Commissioner for the registration of shares of beneficial interest in Security Mortgage Investors, a real estate investment trust established under the laws of the State of Massachusetts. In view of this filing, you requested advice as to whether said shares are registerable since the Declaration of Trust creating said Security Mortgage Investors has previously been held not to be recordable under the Georgia statutes concerning "Deeds to Beneficial Interests" (Ga. Code Ann. 108-601, et seq.).
By letter dated November 18, 1968, I advised you in an opinion that Security Mortgage Investors (previously North American

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Mortgage Investors) by the Declaration of Trust establishing same created " ...a trust to be controlled by the laws foreign to the State of Georgia and, thus, as to the State of Georgia and her laws, said trust is a foreign real estate investment trust." Furthermore, in that opinion I advised you that it was my official opinion that . " ...the provisions of Ga. Code Ann. Ch. 108-6 (the Georgia statutes providing for the filing of certain deeds evidencing an interest in property) are inapplicable to a foreign real estate investment trust," such as Security Mortgage Investors. Finally, in that opinion I expressed a doubt as to whether the Declaration of 1 rust establishing Security Mortgage Investors complied with the " ... requirements of Ga. Code Ann. 108-609(a) as to a showing of an intention to be subject to the provisions of Ga. Code Ann. 108-601, et seq."
It would appear that the shares of beneficial interest in Security Mortgage Investors are securities within the definitions of the Georgia Securities Act of 1957, as amended (Ga. Code Ann. 97-lOl(i)).
For the purpose of this opinion, I am assuming, but not expressing an opinion upon, the following: ( 1) that said shares are not securities exempted from registration by Ga. Code Ann. 97-106; and (2) that said ~hares are not involved in a transaction exempted from registration by Ga. Code Ann. 97-107.
With these assumptions in mind, your attention is called to Ga. Code Ann. 97-104, concerning the registration of securities, which provides as follows:
It shall be unlawful to sell or offer to sell any security within this State, except those exempted under section 97-106 or those sold in transactions exempted under section 97-107, until registration of such securities shall have become effective by notification under subsection (a) or by qualification under subsection (b) of this section. (Emphasis added.)
Therefore, it is my official opinion that the shares of beneficial interest in Security Mortgage Investors may be registered under the Georgia Securities Act of 1957, as amended. The fact that the Declaration of Trust establishing said Security Mortgage Investors establishes a foreign real estate investment trust and that same is not qualified for recordation under the Georgia Statutes concerning the recording of "Deeds to Beneficial Interest," is, in my official opinion, immaterial to the registration of said shares as

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securities. In my opinion, the situation involving the registration of the shares of beneficial interest in Security Mortgage Investors somewhat parallels the registration of the shares of a corporation, e.g. a corporation chartered under the laws of Delaware, which has its principal place of business in Georgia.

OPINION 69-81 (Unofficial)

To: City Attorney

February 18, 1969

Re: Neither State Highway Board nor the Director of the State Highway Department has authority to- consent to annexation of a State-aid road to a Municipality.

Your letter of February 10, 1969; to the State Highway Department of Georgia has been referred to the undersigned for reply. In your letter you request the signature of the proper authority of the State Highway Department for the annexation of a portion of U. S. 41 within the city limits of Barnesville. Your letter also encloses a plat showing the section of U. S. 41 proposed for annexation.
In answer to your request, I must advise that in my unofficial opinion neither the State Highway Board nor the Director of State Highway Department has authority to consent for the annexation of a portion of U. S. 41 to the City of Barnesville.
As you are probably aware, the case of City ofAdel v. Georgia Power Company, 224 Ga. 231 (1969), decided by the Supreme Court of Georgia early this year, seems to imply that for annexation under Ga. Laws 1962, p. 119 (Ga. Code Ann., 69-902, 69-903), it is necessary for the owner of the road to sign or consent to the petition for annexation. However, in my unofficial opinion neither the State Highway Board nor the Director of State Highway Department has authority to consent for such annexation.
For your information and benefit, I am enclosing a copy of an unofficial opinion written by a member of this office to Mr. Mark M. Johnson, Field Division Engineer, State Highway Department of Georgia, dated May 27, 1968 [Op. Atty. Gen. 68-217], which discusses in detail the City ofAdel case.

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OPINION 69-82 (Unofficial)

To: Chief of Police

February 18, 1969

Re: No city may use VASCAR for clocking speeders.

This will acknowledge your recent inquiry wherein you asked for an opinion concerning VASCAR for clocking speeders.

The law of Georgia relating to timing devices reads thusly:

"No law enforcement officers in the State of Georgia shall be allowed the use of timing devices or radar equipment to enforce safety regulations on highways and roads in Georgia. The provision in this section shall not apply to members of the Georgia State Highway Patrol." Ga. Laws 1961, pp. 161, 162, as amended, (Ga. Code Ann. 68-1682.)

In an official opinion to Colonel R. H. Burson, Director of the Department of Public Safety, dated March 1, 1968, it was determined that VASCAR was to be considered a timing device. Op. Atty. Gen. 68-87. Thus, I would conclude that cities may not use VASCAR for clocking speeders under existing law.

OPINION 69-83 (Unofficial)

To: Private Inquirer

February 18, 1969

Re: Taxing power can be used only for public purposes.

This is in reply to your request for an opinion concerning the use of tax money to secure or assist private industry. Generally tax money can not be used to assist private industry. The Supreme Court of the United States in the case of Carmichael v. Southern Coal Co., 301 U.S. 495, held "under the 14th Amendment the State taxing power can be exerted only to effect a public purpose and does not embrace the raising of revenue for private purposes." See also Beazley v. DeKalb County, 210 Ga. 41 (1953). The states have wide latitude in determining just what a public purpose is as opposed to a private purpose. The relief of unemployment is a public purpose for which such funds may generally be used. Smith v. State, 217 Ga. 94 (1961).

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The Georgia Constitution provides that counties may not levy a tax except for certain listed purposes. Art. VII, Sec. IV, Par. I and II (Ga. Code Ann. 2-5701 and 2-5702). Other county funds are not limited to any particular use and may be applied to any public purpose. Stewart v. Davis, 175 Ga. 545 (1932). See also Humber, eta!. v. Dixon, eta!., 147 Ga. 480 (1917).

OPINION 69-84 (Unofficial)

To: Solicitor, City Court of Douglas

February 19, 1969

Re: The Recorder's Court of the City of Douglas does not have jurisdiction to try misdemeanor violations of traffic laws.

By letter dated February 11, 1969, you asked if the judge of the Recorder's Court of the City of Douglas could suspend driver's licenses of arrestees charged with speeding, drag racing, or driving under the influence of intoxicating liquor. These traffic law violations are misdemeanors. Ga. Code Ann. 68-9926.
The only courts in Coffee County that have jurisdiction to try misdemeanor violations of traffic laws are the City Court of Douglas and the superior court. Ga. Laws 1919, p. 464; Georgia Constitution Art. VI, Sec. VI, Par. II (1945), Ga. Code Ann. Ch. 92A-5.
It is my unofficial opinion that the Recorder's Court of the City of Douglas does not have jurisdiction to try misdemeanor violations of traffic laws committed anywhere within Coffee County.

OPINION 69---85

To: Joint Secretary

February 19, 1969

Re: Dispensing of drugs by machine in hospitals.

This is in response to your request for an opinion as to the legality of drug dispensing by machine in hospitals. You have particular reference to a procedure known as the "Brewer System," the operation of which you describe as follows:
A registered pharmacist "loads" the Brewer System by prepackaging drugs. The "medication box" is filled in the pharmacy with a predetermined number of tablets, capsules or ampules, representing an average three day dosage. When the box

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has been filled, a label is affixed, giving the name of the drug, strength and quantity. The "medication box," after being filled in the pharmacy is taken to the "drug station" on the floor of the hospital. The "drug station" is stocked by the pharmacist by locking the "medication box" in the station.
When medication is ordered or prescribed for a patient, the nurse takes said order and fills the "drug cart" from the "drug station." The "drug cart" contains a series of drawers in the middle, each of which bears a patient's name, room number, bed position, and so on. The nurse takes the "drug cart" to the "drug station," and unlocks a panel on the "drug station" which contains individual plastic plates for each of the 96 different drugs and/or different strengths that can be stored in the "drug station." The nurse consults the prescription or chart on which the physician has prescribed a certain drug for a patient, and selects the plate which corresponds to the drug which has been ordered or prescribed for that patient. The nurse takes that plate and inserts same into the machine along with her own private identification plate and the patient's charge plate. When this is done, the proper drug in the proper strength comes from the machine; with the drug comes a snap-out form on which is imprinted all the information on the patient, drug, and nurse's plastic plates. The label part of the snap-out form is detached by the nurse, who compares the label with that on the prepackaged box. If the two appear to be identical, the nurse attaches the patient label to the box and places it in the patient's drawer in the "drug cart."
Following this process, the nurse makes her rounds with the "drug cart."
1964 Opinion My predecessor, Honorable Eugene Cook, rendered an opinion on this question in 1964. Op. Atty. Gen. 1964, p. 555. That opinion concluded that the "Brewer System" was illegal under the laws of Georgia pertaining to pharmacy and the rules and regulations of the State Board of Pharmacy. Ga. Laws 1967, pp. 296 et seq. (Ga. Code Ann., Title 79A) repealed each of the Code sections cited in Op. Atty. Gen. 1964, p. 555 and enacted an entirely new law relating to Pharmacists, Pharmacy and Drugs. Therefore a further examination of the "Brewer System" as hereinabove described is warranted.
Dispensing Of Drugs Under Title 79A Ga. Laws 1967, pp. 296 et. seq. (Ga. Code Ann., Title 79A) is an

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exhaustive legislative enactment on the subject of pharmacists, pharmacy and drugs. Eleven different chapters are included, and the general subjects dealt with are the Georgia State Board of Pharmacy, drug inspectors, pharmacists, pharmacies, poisons, dangerous drugs, Uniform Narcotic Drug Act, Georgia Drug Abuse Control Act, and the Georgia Drug and Cosmetic Act.
A thorough and diligent examination of each of the subjects dealt with in Ga. Code Ann., Title 79A reveals that the substances regulated by said Title, which for convenience shall be hereinafter referred to as "drugs," may be compounded, mixed, or dispensed only by a registered pharmacist, a pharmacy intern under the supervision of a registered pharmacist, or a practitioner of the healing arts. Ga. Code Ann. 79A-407, 79A-410(a), 79A-410(c), 79A-410(d), and 79A-506. The only definition of "dispense" in Title 79A is found in Ga. Code Ann. 79A-802(17) (Uniform Narcotic Drug Act): "(17) 'Dispense' includes distribute, leave with, give away, dispose of, deliver."
Although Ga. Code Ann., Title 79A provides for the "administration" of a drug by a person other than a pharmacist, pharmacy intern, or practitioner of the healing arts (See Ga. Code Ann. 79A-704, 79A-808(1)(3), 79A-907(8), and 79A-1101), the "dispensing" of drugs is specifically proscribed and made illegal unless done by a registered pharmacist, pharmacy intern under the supervision of a registered pharmacist, or a practitioner of the healing arts.
Drugs in Hospitals Under Title 79A Appropriate for discussion at this point is the matter of what Ga. Code Ann., Title 79A provides with reference to drugs in hospitals. It is provided that a wholesaler may sell and dispense drugs to a person in charge of a hospital (Ga. Code Ann. 79A-806(c)); that a person in charge of a hospital who obtains drugs shall not administer, nor dispense, nor otherwise use such drugs "except within the scope of his employment or official duty, and then only for scientific or medicinal purposes and subject to the provisions of the Chapter" (Ga. Code Ann. 79A-806(5)); that depressant or stimulant drugs may be made available to hospitals for dispensing by registered pharmacists upon prescriptions or under the supervision of practitioners licensed to administer such drugs in the course of their professional practice (Ga. Code Ann. 79A-907(a)(l)(A)). These provisions refer to the legality of a hospital obtaining drugs, but appear to place the disposition of the drugs in the hospital on the

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same footing with the other general provisions of the Title regarding the "dispensing" of drugs.
Dispensing of Drugs In Hospitals In the interest of clarity, it is repeated that the question posed refers to the legality of dispensing drugs by machine in a hospital, particularly by a procedure known as the "Brewer System." As indicated by the foregoing discussion, Ga. Code Ann., Title 79A, dealing with pharmacists, pharmacy and drugs, is silent on the question of dispensing drugs in a hospital. As hereinabove set out at great length, the law provides for the dispensing of drugs by a registered pharmacist, a pharmacy intern under the supervision of a registered pharmacist, or a practitioner of the healing arts. Certain other persons are authorized to "administer" drugs under certain circumstances, but no exception is made to the often repeated sanction imposed for the "dispensing" of drugs by person other than those designated by Ga. Code Ann., Title 79A. At the same time it is noted that another provision refers to drugs being delivered to a person in charge of a hospital, who
"shall not administer, nor dispense, nor otherwise use such drugs within this State, except within the scope of his employment or official duty, and then only for scientific or medicinal purposes and subject to the provisions of this Chapter." Ga. Code Ann., 79A-806(5). (Emphasis added.)
The "provisions of this Chapter" referred to in Ga. Code Ann., 79A-806(5) are non-existent with reference to the dispensing of drugs by the person in charge of a hospital. A literal reading of each of the eleven chapters of Title 79A indicates that no person may legally dispense drugs except a registered pharmacist, a pharmacy intern under the supervision of a registered pharmacist, or a practitioner of the healing arts.
But it is clear that most of the provisions of Title 79A relate to the dispensing of drugs in places other than hospitals; whether those provisions can practically be applied to a hospital is a question which lends itself to the expertise of the Georgia State Board of Pharmacy. For while the "Brewer System" does involve the dispensing of drugs, nothing appears in the law or the rules and regulations of the Board of Pharmacy with which the method can be compared or against which it can be judged. It could be that, because of facts peculiarly within the knowledge of those engaged in the pharmacy profession, the "Brewer System" would be within

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the framework of the law if operated in a hospital and not within that framework if operated elsewhere. Perhaps a pharmacist is required to be on duty at a hospital at all times and personally dispense each drug used, or perhaps a physician at the hospital must hand the drug to the person who administers it. No opinion on these matters is expressed herein, because they are matters which should be dealt with by the Georgia State Board of Pharmacy. Nothing appears in the present rules and regulations of the Board relative to the dispensing of drugs in hospitals.

Conclusion And Opinion The Georgia State Board of Pharmacy is authorized to adopt, enact, establish and make such rules and regulations not inconsistent with the laws and constitution of this State and the United States as shall in its judgment be necessary for the carrying out of the purposes of Ga. Code Ann., Title 79A and other laws of this State insofar as they relate to the Georgia Board of Pharmacy, pharmacists, pharmacies, drugs and cosmetics. Ga. Code Ann., 79A-208(i). This rule making power may be used to set forth regulations for the dispensing of drugs in hospitals, particularly
since there is no express statutory provision for same. Finally, Op. Atty. Gen. 1964, p. 555, is hereby overruled to the
extent that it holds that the "Brewer System" is illegal under the laws of Georgia. This is not to say that an opposite opinion is given herein, but only that the laws upon which said opinion was based are no longer in effect and said opinion should no longer be regarded as a viable ruling of the Attorney General.
In summation, it is my opinion that the dispensing of drugs in hospitals by machine or otherwise is a matter which the legislature has left to the Georgia State Board of Pharmacy to regulate through its rule making power. The legality or illegality of the "Brewer System" will have to be tested against such rules and regulations after their promulgation as provided by law.

OPINION 69-86

To: Department of Public Safety

February 20, 1969

Re: Reports of convictions and pleas of nolo contendere in certain cases must be made to the Department of Public Safety.

This is in reply to your letter received in the Department of Law on February 12, 1969, in which you ask for our comments

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on section 3 of Ga. Laws 1968, p. 448 and section 6 of Ga. Laws 1968, p. 430. Your letter indicates an apprehension of a possible conflict between the Teporting requirements of the two Acts.
Section 3 of Ga. Laws 1968, pp. 448, 452 provides "All convictions and pleas of nolo contendere for violations of this law on second and subsequent offenses in any court of this State shall be promptly reported by said court to the Georgia Department of Public Safety. Any person who willfully fails to make such reports shall be guilty of a misdemeanor."
As you know, Ga. Laws 1968, p. 448 is the Act which prohibits driving a motor vehicle under the influence of intoxicating liquors or drugs. Section 3 of that Act is explicit in stating that the reports must be made for "violations of this law on second and subsequent offenses."
Section 6(b) of Ga. Laws 1968, p. 430 provides:
"Within thirty days of the last day of the month in which a conviction occurred, a plea of guilty of nolo contendere was entered, or bail was forfeited to a charge of violating any law or ordinance regulating the operation of vehicles upon the public highways and streets, every judge or clerk of the court in which such conviction occurred, plea was entered or bail was forfeited shall prepare and immediately forward to the Department of Public Safety an abstract of the record of said court covering such case which abstract must be certified by the person so required to prepare the same to be true and correct. A report need not be made of any conviction involving illegal parking or standing of a vehicle."
These reports must be submitted by every judge in this State who has jurisdiction over and tries traffic offenses, except judges of juvenile courts. Ga. Laws 1968, p. 430, section 6(a). The reporting requirements of Ga. Laws 1968, p. 430 attach without regard tO' the number of times the defendant has been convicted or entered a plea. That is to say, the reporting requirements of this Act encompass first offenders as well as a defendant who appears before a court many times.
Each Act requires reports. The intention of the legislature was clearly expressed in each Act. It is my opinion that the reporting requirements of the two Acts are not in irreconcilable conflict. Therefore, it is my opinion that appropriate reports must be submitted to the Department of Public Safety pursuant to the requirements of each Act.

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OPINION 69~7

To: Revenue Department

February 20, 1969

Re: Bibb Transit Company not required to file property tax return with State Revenue Commissioner.

This is in reply to your request for an opinion concerning the proper place for filing an ad valorem tax return by Bibb Transit Company.
The Bibb Transit Company is a Georgia corporation chartered in 1949 to engage in the business of a common carrier of passengers for hire (Charter, Par. 2). The charter refers to a franchise granted by the City of Macon and while said franchise was originally a street railway franchise, it was amended in 1948 so as to substitute motor bus transportation in lieu of street railway transportation. (Ordinance City of Macon adopted December 21, 1948). Bibb Transit Company is therefore a common carrier of passengers by motor bus and not a street railway company. Undercofler v. Colonial Pipeline Company, 114 Ga. App. 739 (1966).
Common carriers are not generally required to file their tax returns with the State Revenue Commissioner but must file with the Tax Commissioner where the property is located. Collins v. Mills, 198 Ga. 18 (1944); St. Simons Transit Co. v. Mayor and Council ofBrunswick, 141 Ga. 477 (1917).

To: Private Inquirer

OPINION 69-88 (Unofficial)

February 21, 1969

Re: Renewal of the Charter of BANK OF TIGNALL.

This will acknowledge your letter dated February 13, 1969, whereby you requested an opinion as to whether the charter of the BANK OF TIGNALL can be renewed using the name THE BANK OF TIGNALL in view of a previous renewal of the charter under the name of THE BANK OF TIGNALL.
According to the records in the office of the Secretary of State, a charter was granted on July 5, 1909, providing for the formation of a banking corporation under the name BANK OF TIGNALL. In the petition for incorporation, it was stated that "The name and

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style of the proposed corporation shall be BANK OF TIGNALL." Also, according to the records of the Secretary of State, the
Charter of the BANK OF TIGNALL was amended on June 25, 1920, so as to increase the capital stock of said corporation from $25,000 to $50,000. The petition was made in the name of BANK OF TIGNALL and the "Charter Amendment" Certificate of the Secretary of State was granted in the name of BANK OF TIGNALL.
On March 14, 1930, a petition to amend the charter of BANK OF TIGNALL was filed for the purpose of decreasing the capital stock from $50,000 to $25,000. The petition to amend was made in the name of THE BANK OF TIGNALL rather than the correct corporate name of BANK OF TIGNALL. In the notice to the stockholders of the special stockholders meeting, the reduction of the capital stock was the only purpose stated. In said notice, the bank was referred to both as THE BANK OF TIGNALL and BANK OF TIGNALL. Finally, the "Charter Amendment" Certificate was issued by the Honorable George H. Carswell, who was then the Secretary of State, in the name of THE BANK OF TIGNALL.
In 1939, a petition was filed requesting that the bank charter be renewed and extended for a period of thirty years. The petition was made in the name of THE BANK OF TIGNALL. In the notice to the stockholders concerning the stockholders meeting, the only purpose stated for the stockholders meeting was the consideration of the renewal of the charter. The notice to the stockholders, as well as the certificate of the Honorable John B. Wilson, then the Secretary of State, which renewed and extended the charter of the bank for thirty years, referred to the bank as THE BANK OF TIGNALL.
As you will notice, at no time during the life of the BANK OF TIGNALL has an amendment been made so as to change the name of the bank from BANK OF TIGNALL of THE BANK OF TIGNALL. By Ga. Code Ann. 13-901(1), "the name by which such bank is to be known" is required to be stated in an application for a charter for a banking corporation. As previously indicated, the application for the formation of the BANK OF TIGNALL stated in said application that "The name and style of the proposed corporation shall be BANK OF TIGNALL."
Furthermore, Ga. Code Ann. 13-1001 provides, in part, as follows in regard to amendments to the charters of banking corporations:
Any bank ... may have its charter amended so as to change its corporate name, ...

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Finally, your attention is called to Ga. Code Ann. 13-1101 regarding the application for a renewal of a charter of a banking corporation which provides, in part, as follows:

Any bank ... may have its charter renewed and its corporate existence extended for a period of 30 years by filing with the Secretary of State at any time within six months prior to the expiration of its charter an apphcation in triplicate, signed with its corporate name and under its corporate seal, in which it shall state the name of ihe bank, and when and how incorporated, giving the date of its original charter and all amendments thereto, and pray for a renewal of its charter, ...
(Emphasis added.)

Thus, it is my unofficial opinion that the change of the name of a banking corporation from that name used in its original charter cannot be accomplished except pursuant to the provisions of Ga. Code Ann. 13-1 001 to 13-1 009, the provisions of the Georgia statutes providing for the amendment of the charter of a banking corporation. Also, it is my unofficial opinion that the renewal of a charter of a banking corporation must be made in the name of the bank as provided by its charter. Therefore, the BANK OF
TIGNALL can be issued a renewal certificate only in that name since its name has not been changed by amendment.
As a suggestion, since the BANK OF TIGNALL has until July 5, 1969, to renew its charter, a petition to amend the charter so as to change the name of the bank from BANK OF TIGNALL to THE BANK OF TIGNALL could be filed prior to the renewal of the charter. Of course, a new application for renewal woald have to be filed subsequent to said amendment using the correct name of the bank, i.e. THE BANK OF TIGNALL. Or, as a second alternative, the renewal application now pending could be granted using the name of BANK OF TIGNALL and then an amendment could be filed to change the name of the bank to THE BANK OF TIGNALL.

OPINION 69-89

To: State Board of Corrections

February 21, 1969

Re: The State of Georgia does not have title to the buildings that were attached to the land conveyed by the State to Telfair County by deed dated May 27, 1959.

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A deed to land includes all buildings and other things permanently attached to the land even though such attachments are not specifically described in the deed unless such buildings and other permanent attachments are specifically excluded from the conveyance. Opelousas v. Causey, 188 So. 654; Sawyer Coal and Ice Company v. Kinnett-Odom Company, 192 Ga. 166(5) (1941); Currin v. Milhollin, 53 ,Ga. App. 270 (1936); see Ga. Code Ann. 85-201, Adcock v. Berry, 194 Ga. 243 (1942).
At page 170 in the Sawyer case, the Supreme Court of Georgia said:

"The proposition is not questioned, nor can it be that :r deed
to land includes all buildings and other things permanently attached to the land conveyed."

It is my opinion that the State of Georgia does not have title to the buildings that were attached to the land which was conveyed by the State to Telfair County by deed dated May 27, 1959; Telfair County has title to these buildings because the deed conveyed title to the land and the buildings permanently attached thereto even though the description of the property conveyed did not specifically mention the buildings.

OPINION 69-90 (Unofficial)

To: State Highway Right-of-Way Engineer February 21, 1969

Re: Personalty attached to realty becomes a part of the property conveyed.

This is in reply to your request for my unofficial opinion on whether the items on the following list are to be considered as personalty or as fixtures which are a part of the realty:

1 Adding machine 2 Cash registers 1 Drink box 1 7 1/2 ton built-in air conditioner
with duct work 1 Cakebox counter 1 Upright cooler 1 Electric clock

1 15-foot 3-drawer cabinet 1 Electric water cooler 1 Window air conditioner 2 Refrigerators with double
doors 1 Steam table 1 Grill with gas burners
with built-in venthood

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1 4-foot-x-8-foot steel shelving 2 "Built-in vent pans 1 .Vired burglar alarm system 1 Outdoor painted sign 2 Outdoor neon signs 8 Restaurant tables 30 Restaurant chairs 4 Kitchen work tables 1 6-foot built-in counter 1 50-foot built-in bar 23 Bar stools 1 10-foot beer cooler under

bar 1 10-foot draft beer cooler
to hold beer kegs
1 Electric stove 1 Portable popcorn machine 1 Stainless steel sink with
drain board 1 10-foot counter 6 Neon light fixtures 7 Flood lights 3 Neon signs attached to
front of building

Also you request my unofficial opinion as to what extent the relocation moving expenses can be paid by the State under Ga. Laws 1966, p. 588, with reference to the above items.
1. It is my unofficial opinion that although many of the chattels listed above partake both of the nature of personalty and realty, all of the above mentioned items, with the exception of the adding machine, the cash registers, the electric clock, and the portable popcorn machine, are to be considered as fixtures and as part of the realty.
2. The above conclusion must be prefaced by an exception, however. That is, the above named items are to be considered as fixtures unless there has been an express agreement or an extrinsic and collateral agreement between the condemnee and the condemnor providing that the above named items are to be considered as personalty or that the condemnee, prior to the conveyance of title, has not severed these fixtures and thereby converted them to mere personal property.
3. Pursuant to Ga. Laws 1966, p. 588, and the State Highway Department of Georgia Regulations promulgated under this law, the State Highway Department may only pay for the moving expenses of personal property. Therefore, the State Highway Department can only pay for the moving expenses of the above named items which are considered personalty.
Ga. Code Ann. 85-201 declares:

"Realty or real estate includes all lands and the buildings thereon, and all things permanently attached to either, or any interest therein or issuing out of or dependent thereon...."

Ga. Code Ann. 85-105 defines a fixture as:

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"Any thing intended to remain permanently in its place, though not actually attached to the land, such as a rail fence, is a part of the realty and passes with it. Machinery, not actually attached, but movable at pleasure, is not a part of the realty. Anything detached from the realty becomes personalty instantly on being so detached."
It is a general principle of Georgia law that when land is conveyed, whatever fixtures are annexed to the realty at the time of the conveyance passes with the estate to the vendee, unless there exists some express provision to the contrary. See Cunningham v. Cureton, 96 Ga. 489, at 492 (1895). Also, in the absence of an agreement to the. contrary, this rule applies to fixtures which are either actually or constructively annexed to the realty. See Wolff v. Sampson, 123 Ga. 400, 51 S.E. 335 (1905). "In general any actual annexation is sufficient for the requirements of a fixture, and although there are general statements to the effect that actual annexation is required, as a general rule it is not absolutely essential." See 36A C.J.S. Fixtures, 5, p. 607. "Constructive annexation, as when an article is severed for a temporary purpose, or when the article is an accessory or essential part of an article or structure which is actually annexed, may be sufficient to constitute an article a fixture." See 36A C.J.S. Fixtures, 6, p. 613. Furthermore, in Georgia, whether an article of personalty connected with or attached to realty becomes part of the realty, and therefore such a fixture that it cannot be removed therefrom depends upon the circumstances under which the article was placed on the realty, the use to which it is adapted, and the parties who are at issue as to whether such article is realty or detachable personalty. See Wright v. DuBignon, 114 Ga. 765, 40 S.E. 745 (1901); Consolidated Warehouse Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937).
Keeping in mind the above principles of law and applying these principles to the situation at hand, it can readily be seen that those chattels which are actually attached to the building and land in question are to be considered as fixtures and part of the realty. However, we must insert the exception to the rule that if these chattels have been severed from the building prior to the conveyance of title, or if there is in existence an express agreement or extrinsic and collateral agreement dealing with the ownership of these particular chattels, then this general rule would not apply. However, assuming that there are no existing agreements and that the condemnee had not severed any of the listed chattels, it is my

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unofficial opmwn that the built-in air conditioner with the accompanying ducts, the electric water cooler, the window air conditioner, the built-in vent and hood for the grill, the built-in vent pans, the burglar alarm system, the outdoor painted sign, the outdoor neon signs, the neon light fixtures, the flood lights and the neon signs attached to the front of the building are to be considered as fixtures and as part of the realty.
Several of the articles listed above are to be considered as fixtures on the basis that these chattels were placed in this bar and grill to carry out the obvious purpose for which the building was erected. This principle that a chattel which is placed in a building to carry out the obvious purpose for which the building was erected thereby becoming a part of the realty even though such chattel is movable without injury, was espoused in the case of Brigham v. Overstreet, 128 Ga. 447, 57 S.E. 484 (1907). In this case the court held:
"When one who erected on his land a storehouse, placed therein shelving nailed and fastened to the walls, large and cumbersome counters, tables, and a large meat-box, to carry out the obvious purpose for which the building was erected, to increase its value for such purpose, and to be permanently used in connection with it, they became part of the realty, even though they might have been moved from such house without being injured and without injury to the building."
These remaining articles to be considered are placed in a category which in legal terminology are referred to as "trade fixtures." These are those chattels which were installed by the condemnee in his place of trade and which were adapted specifically to the purpose for which the building was constructed. These articles were placed by the condemnee in the building to carry out the obvious purpose for which it was erected or to permanently increase its value for use as a bar and grill and were not intended to be moved about from place to place, but to be permanently used with the building. Therefore, in the eyes of the law, these articles become a part of the realty even though these articles may be removable without injury to said articles or to the building. See Cunningham v. Cureton, supra; Consolidated Warehouse Co. v. Smith, supra.
Furthermore, it should be noted that some of these articles are not physically attached to the building. However, in this case the law considers that there has been a constructive annexation. A

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constructive annexation exists when under certain circumstances, articles are severed for a temporary purpose or articles which, although not themselves actually annexed to the realty, are parts of or accessories to articles or structures which are annexed. This occurs frequently when an article is annexed to the land and is of such a character that it is regarded as a fixture to the land and in turn, a tool or appliance which is, in effect, an essential part of such article that is physically annexed, is also regarded as a fixture. See Brooks v. John Hancock Mut. Life Ins. Co., 36 Ga. App. 261, 136 S.E. 166 (1926); 36A C.J.S. Fixtures, 6, pp. 613, 614.
Therefore, unless there has been a severance of the particular articles by the condemnee or there exists a collateral agreement with reference to these articles, then the following listed articles are to be considered as fixtures:

Drink box Cakebox Counter Upright cooler 15-Foot 3-drawer cabinet 2 Refrigerators with
double doors Steam table Grill with gas burners 4-Foot-x-8-Foot steel shelving

Restaurant tables Kitchen work tables 6-Foot built-in counter 50-Foot built-in bar 10-Foot beer keg cooler Electric stove Stainless steel sink with
attached drainboard 10-Foot counter

Furthermore, the restaurant chairs and the bar stools would be considered as fixtures. These items are considered as fixtures under the principle that these articles are essential parts of the
tables and built-in bar, which have already been designated as
fixtures. With reference to your second question, it is my unofficial
opinion that the condemnee may be paid the reasonable and necessary moving expenses for those items which were listed above as personalty. The General Assembly under Ga. Laws 1966, p. 588, made provisons for the moving expenses of persons displaced by Federal-aid highway projects. It is my understanding that the property in question is being condemned and the owner is being required to move as a result of a Federal-aid Highway Project. Therefore, the provisions of Section 2 of Ga. Laws 1966, p. 588, at 589, would be applicable:

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"The relocation assistance to be made available is for the purpose of compensating eligible persons for their reasonable and necessary moving expenses caused by their displacement from real property acquired for such projects...."
However, it should be pointed out that this relocation assistance is available only to a property owner for the moving expenses of personalty. Therefore, the reasonable and necessary moving expenses for those items which have been listed as personalty would be due and payable to the property owner, but unless there has been some previous agreement before the conveyance of title to this realty, or unless the property owner has prior to the conveyance severed any of the above fixtures thereby converting them to personalty, then none of the above articles which have been designated as fixtures could be considered in determining the amount to be paid for moving expenses.

OPINION 69-91 (Unofficial)

To: County Attorney

February 21, 1969

Re: Revenue Commissioner does not pay premium on the bond payable to the State under Code 92-4801.

This is in response to your letter wherein you requested an unofficial opinion as to whether or not the payment of the premimum on the bond that is payable to the State under Ga. Code Ann. 92-4801 is the obligation of the Revenue Commissioner as it is when the Tax Collector is in the capacity as a salesman of auto license plates.
Ga. Code Ann. 68-247 provides for the bond to cover the State's authorized agents to receive applications for the registration of motor vehicles. This section also provides that the premium for said bond shall be paid by the Department of Revenue. Ga. Code Ann. 92-4801 does not so provide.
Therefore, it is my unofficial opinion that the Revenue Commissioner does not pay the premium on the bond that is payable to the State under Ga. Code Ann. 92-4801.

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OPINION 69-92

To: State Board of Corrections

February 21, 1969

Re: Sentencing; verdict of guilty without recommendation of mercy requires death sentence.

By letter your Department has inquired as to the date upon which to compute parole eligibility in the case of Roy Dale Chatterton, A-71907. You append thereto a sentence of life imprisonment imposed by the Superior Court of Chattooga County and dated August 16, 1968. The sentence in question shows on its face that it was based upon a jury verdict finding Chatterton guilty of the offense of murder without a recommendation to the mercy of the court.
It appears that Chatterton was tried in January, 1965, by a jury from which veniremen were excluded for cause based solely on their announced conscientious objection to the imposition of capital punishment. Subsequently, the Supreme Court of the United States held that a sentence of death imposed by a jury from which such veniremen had been excluded for cause could not be legally carried out. Witherspoon v. Illinois, 391 U.S. 510 (1968). Approximately one month following the announcement of the United States Supreme Court's decison in Witherspoon, supra, the District Attorney charged with the prosecution of Chatterton petitioned the Superior Court of Chattooga County for a writ of habeas corpus to compel the return of Chatterton to Chattooga County for resentencing. On August 5, 1968, an order directing that Chatterton be returned to Chattooga County was entered. Warden Smith complied with the order. On August 16, 1968, and following Chatterton's return to Chattooga County, the sentence in question was imposed. Chatterton was committed to your custody in accordance with Ga. Laws 1964, p. 489.
On September 16, 1968, J. Donald Bennett, Esq., contacted the State Board of Pardons and Paroles on behalf of Chatterton to .complain of the parole eligibility date computed by your Department based on the August 16, 1968 sentence. It was Mr. Bennett's contention that the parole-eligibility date should have been computed from the date on which the original sentence of execution was imposed. According to Mr. Bennett, Chatterton
would be eligible for parole in 1971 vice 1975. The inquiry was forwarded by the Board of Pardons and Paroles to your Department for determination. As I am of the opinion that the

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sentence of life imprisonment imposed on August 16, 1968 is, on the basis of subsequent decisions of the Supreme Court of Georgia, without legal efficacy, an opinion on the parole-eligibility date based thereupon need not be rendered.
On October 10, 1968, the Supreme Court of Georgia considered the effect of Witherspoon within the context of Georgia sentencing law. The court there held that the statute defining the punishment for the offense of rape made no provisons for any punishment other than death upon a jury verdict of guilty, unless the jury recommended mercy. Miller v. State, 224 Ga. 627, 635-36 ( 1968). The court went on to note that without a recommendation of mercy a trial court was without authority to enter a sentence other than death. The court directed that the trial court concerned impanel a jury selected as in a capital case for the submission to it of the sole question whether the defendant should be recommended to the mercy of the court. In the companion case of Dixon v. State, 224 Ga. 636 (1968), the court applied the Miller rule to Witherspoon-infected death sentences imposed for the offense of murder. It is my opinion that the joint effect of these decisions is that a sentence of life imprisonment upon a jury verdict finding the accused guilty of the offense of murder can only be based upon a jury recommendation of mercy. In the absence- of such a recommendation, the trial court in such a situation is without authority to enter any sentence other than legal execution.
By statute, your Department is authorized to accept custody of persons sentenced upon conviction to serve time in any penal institution in this State. You are further authorized to accept custody of persons under a sentence of legal execution for the sole purpose of carrying out the sentence of the court. Ga. Code Ann. 27-2514. While it is my opinion that a sentence of death which may not be carried out because of Witherspoon necessarily includes a sentence of imprisonment for life justifying the retention in custody by authorities of this State and its political subdivisions of persons so affected, it is apparent from the Supreme Court's decisons in Miller and subsequent cases that until the matter of sentencing is properly concluded by appropriate jury action the original trial proceedings are not final. Ga. Code Ann. 77-309(c){d). Consequently, it is my opinion that the proper authority to hold custody of Chatterton pending completion a11d disposition of the trial proceedings is to be found in Chattooga County.

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OPINION 69-93 (Unofficial)

To: Commissioner, Department of Industry

and Trade

February 24, 1969

Re: Person holding any position of profit or trust with United States government is prohibited from holding any office of State government.

This is in response to your recent request for my opinion as to your eligibility to serve as Honorary Consul in Atlanta for the government of Japan while simultaneously holding the position of Vice Chairman of Board 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 of profit 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 1. "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.
"The positions 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,

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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. Me Williams v. Neal, 130 Ga. 733 (1908).
OPINION 69-94
To: Joint Secretary, State Examining Boards February 25, 1969
Re: An escrow agent is not the taxpayer of the intangible tax on escrow funds.
This is in response to your letter of February 19, 1969, wherein you requested a clarification of the official opinion dated February 4, 1969 [Op. Atty. Gen. 69-57], dealing with intangible tax on money in escrow.
The question you now desire answered is whether or not a real estate broker acting as escrow agent for a depositing party to a sales contract is the taxpayer of an intangible tax on those funds either held by him or deposited in his special escrow bank account.
In the conclusion of the prior opinion when the words " ... that the person who deposits the money in escrow is the owner of the money in escrow so long as the condition precedent has not been met and is subject to that (intangible) tax" were used, they referred to that party to the sales contract who is to put (deposit) the money in escrow and not the real estate broker who is acting as escrow agent and may deposit the money in his special escrow bank account.
Therefore, it is my official opinion that the real estate agent while acting as escrow agent is not the taxpayer of the intangible tax on funds held by him or deposited in his special escrow bank account.

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OPINION 69-95 (Unofficial)

To: District Attorney

February 25, 1969

Re: The Georgia Detainer Act is not an ex post facto or retroactive law.

You have asked whether the provisions of the Georgia Detainer Act violate Art. I, Sec. III, Par. II of the Georgia Constitution (Ga. Code Ann. 2-302) as being an ex post facto or retroactive law in that it invalidates detainers which were filed prior to the Act, which do not meet the requirements set forth in that Act.
This provision of the Georgia Constitution has most often been applied in two circumstances: (1) the term "ex post facto" has been limited to criminal statutes, Williams v. State, 213 Ga. 221, 222 (1957); Wilder v. Lumpkin, 4 Ga. 208 (1848); Welborn v. Akin, 44 Ga. 420,425 (1871);Bussey v. Bishop, 169 Ga. 251,256 (1929); and (2) in cases where the person involved has been deprived of a "vested right" by the statute in question, Fulton Bag & Cotton Mills v. Williams, 212 Ga. 783,785 (1956);Phillips v. J. L. Peed Company, 78 Ga. App. 471 (1949). In Phillips, supra, at page 475, the Georgia Court of Appeals held that:

"This Court has definitely settled the law to be that our Constitution forbids the passage of only those retroactive, or rather retrospective, laws which injuriously affect the vested rights of citizens. Bullard v. Holman, 184 Ga. 788, 792 (193 S.E. 586, 113 A.L.R. 763); Darby v. Cook, 201 Ga. 309 (39 S.E.2d 665)."

The final determination that needs to be reached is whether the provisions of the Georgia Detainer Act deprive anyone of a vested right, it being apparent that the same is not a "criminal statute." Vested rights have been held not to exist in situations involving zoning ordinances, Gay v. Mayor & Council of Lyons, Et al., 212 Ga. 438 (1956); Morgan v. Thomas, 207 Ga. 660 (1951); Income Tax Statutes, Fulton Bag & Cotton Mills v. Williams, supra; and ordinances or statutes passed pursuant to the police powers of this State or its subdivisons, Bullard v. Holman, 184 Ga. 788, 791 (1937). The language contained in the previously-cited cases would indicate that the courts have limited the definition of "vested rights" to those instances in which an individual possesses some right considered basic under common law or the

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constitution. In purely administrative instances, where if a right existed at all it was granted by statute, that right could be taken away in the same manner. See Fulton Bag & Cotton Mills v. Williams, supra, at page 786.
The provision of the Georgia Detainer Act in question prescribes new administrative procedures for the content, filing, and dismissal of detainers in Georgia. This statute is clearly administrative and in no way deprives the person who filed a
detainer of some vested right. Therefore, the writer is of the opinion that the Georgia Detainer
Act does not violate Art. I, Sec. Ill, Par. II of the Georgia Constitution (Ga. Code Ann. 2-302).

OPINION 69-96

To: Revenue Commissioner

February 26, 1969

Re: Deposits in credit unions are not capital for tax purposes.

This is in response to your inquiry whether deposits in a credit union made by members of the credit union should be considered as capital of the credit union for the purposes of taxation.
The taxation of credit unions is limited by the statute creating such unions and controlling their operation. The statute provides:

"25-123. Taxes to which subject. -Credit unions shall not be subject to any tax except the ad valorem tax upon property imposed by the Constitution of this State unless made subject thereto by express provision of law specifically naming credit unions and making them subject thereto. All ad valorem taxes against credit unions shall be assessed upon the full market value of their shares, including surplus and undivided profits, and not upon their assets, other than real estate, and the rate of such taxation shall not exceed the rate of taxation now imposed on banking corporations under provisions of section 92-2406." Ga. Code Ann. 25-123 (Ga. Laws 1943, pp. 279, 281).

This section has been deemed a provision classifying property of the credit union for tax purposes rather than an exemption provision. [Op. Atty. Gen., 1952-53, pp. 46, 47].
An examination of other portions of the Act reveals that deposits and shares are treated as being entirely dissimilar. Ga. Code Ann. 25-105 (Ga. Laws 1968, pp. 465, 466), which

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enumerates the powers of credit unions provides, in part, as follows:
"A credit union shall have, in addition to all the powers common to all corporations under the laws of the State, the following powers: "(1) It may receive the funds and savings of its members in payment for shares or for deposit. "(2) It may receive deposits from nonmembers ..."
Ga. Code Ann. 25-111 (Ga. Laws 1925, p. 175) provides:
"Shares may be issued and deposits received in the name of a minor and in trust..."
Ga. Code Ann. 25-110 (Ga. Laws 1925, p. 174) provides in part:
"The capital of the credit union shall consist of the payments that have been made to it by the several members therein on shares."
By a provision added by a 1967 amendment to the Act, (Ga. Laws 1967, pp. 597, 598) Ga. Code Ann. 25-130, a procedure for the voluntary liquidation of credit unions is set forth. Under sub-paragraph (3) thereof it is provided:
"If the Superintendent of Banks shall be satisfied that provision has been made by the credit union for the payment of all its obligations, including obligations to depositors and other creditors, he shall issue a permit authorizing the liquidation of the credit union and its dissolution."
Subparagraph (7) provides:
"(7) When the assets of the credit union are reduced to cash, as hereinbefore provided, the liquidating committee shall pay the depositors, member depositors and nonmember depositors in full. After the reasonable expenses of liquidation, to be approved by the Superintendent of Banks, have been paid or provided for, the liquidating committee shall pay all other creditors of the credit union in full. The remainder of the funds and assets of the credit union shall then be distributed pro rata to the shareholders of the credit union in liquidation of their shares."

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It should be noted, however, that deposits are not withdrawable upon demand. Ga. Code Ann. 25-109 (Ga. Laws 1925, p. 176).
In order to determine whether deposits in credit unions are to be considered capital for tax purposes, it is necessary to ascertain the true nature of such deposits. A deposit is a chose in action, or right to money, and it is a debt owing by the depository and collectible by the person to whom owed. People ex rel Housing Authority of City of East St. Louis v. Hursey, 7 111.2d 537, 1:31 N.E.2d 483 (1956); In re Thourez' Estate, 166 So.2d 476, 478 (Fla. App., 1964). A deposit is neither a loan nor a bailment, but ordinarily it simply creates the relationship of debtor and creditor between the bank and the depositor. Arnold v. Citizens Bank of Americus, 117 Ga. App. 182, 160 S.E.2d 463 (1968); In re Olsons' Estate, 206 Iowa 706, 219 N.W. 401 (1928).
However, where money is deposited for a fixed time, that is, it is not returnable upon demand, it is a loan rather than a deposit. City of Aberdeen v. National Surety Co., 151 Wash. 55, 275 P.62 (1929); First American Bank & Trust Co. v. Town ofPalm Beach, 96 Fla. 247,117 So. 900 (1928); 65 A.L.R. 794. Furthermore, according to these authorities, a deposit is primarily for the benefit of the depositor, while a loan is primarily for the benefit of the depositary, the borrower.
Unquestionably, the statute provides that all deposits are to be held by the credit union for a fixed period of at least 60 days since 60 days notice is required before deposits may be withdrawn. Ga. Code Ann. 25-109. The statute also authorizes interest to be paid on deposits (by members or non-members) and contemplates that interest will, in fact, be paid. Ga. Code Ann. 25-109, 25-113. Therefore, in my opinion, deposits left in a credit union, whether by members or by non-members, are not merely deposits but loans to the credit union.
We now reach the narrow question whether the deposits, which are really loans, should be considered part of the capital of the credit union for tax purposes. The capital of a bank is the fund paid by its shareholders on their capital stock. United States v. Bank of Montreal, 21 Fed. 236, 239 (N.D. Ill., 1884). "Capital has a settled meaning when used with respect to the property of a corporation, and applies only to the property or amounts contributed by the stockholders as the fund or basis of the enterprise for which the corporation was formed." Malley v. Old Colony Trust Co., 299 Fed. 523, 528 (1st Cir., 1924). Capital is further defmed as "the funds intended to be subject to the risks of the business, the fund contributed to meet the obligations of the business, and to be repaid to the contributors only after all of the other obligations should have been satisfied." In re Desnoyers

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Shoe Co., 224 Fed. 372, 377 (7th Cir., 1915). See also State v. Jones, 51 Ohio St. 492,37 N.E. 945 (1894).
In addition to money or property contributed by shareholders
through stock subscriptions, there may be contributions to capital for which no stock is issued. Such capital contributions, like capital stock, becomes part of "the financial basis for the prosecution of the business of the corporation. . .irrevocably devoted to the satisfaction of all of the obligations of the corporation..." and they "do not create a debt liability from the corporation to the contributor but they do create a right of the contributor to some stated interest or right in the management of the corporation, in its surplus profits, and, on the winding up of the corporation, to a rateable share in the distribution of its assets after the claims of creditors have been satisfied." United Grocers, Ltd., v. United States, 186 Fed. Supp. 724, 729, (D.C. Cal., 1960).
Thus, it will be seen that those who hold capital stock and otherwise contribute to the capital of a corporation have a proprietary interest in the corporation. No debt arises from the corporation to the contributor or shareholder. Their interests are subordinate to all creditors of the corporation.
The credit union statute itself is consistent with the foregoing authorities that deposits and loans, and capital shares are separate and distinct in character. In case of voluntary liquidation, depositors are to be paid first ahead of other creditors while shareholders are paid last.
Capital is defined as contributions made on shares. Although deposits are not withdrawable upon demand, this does not make them contributions to capital.
It is, therefore, my official opinion that funds deposited with credit unions by members and by non-members are not part of the capital of the credit union, nor are they capital contributions, but are loans to the credit union and, as such, are not subject to the tax on credit unions.

OPINION 69 -97

To: Revenue Commissioner

February 26, 1969

Re: Atlantic Towing Company should file its annual property tax return with county tax officials and not with State Revenue Commissioner.

This is in reply to your letter wherein you asked whether the Atlantic Towing Company should file its property tax return with your office or with the county tax officials.

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Your letter and the attachments thereto show that in the past the Company was authorized by its broad charter powers to do business as a navigation company and, as a result, filed its annual tax return with your office under the provisions of Section 9 of the General Tax Act of 1935 (Ga. Laws 1935, pp. 11, 64). This Act requires a corporation with charter powers to do business as a navigation company to file its return with the State Revenue Commissioner although it may not be conducting such a business. Southland Steamship Company v, Dixon, 151 Ga. 216 (1920); Undercofler v. Colonial Pipeline Company, 114 Ga. App. 739 (1966). The Company has now amended its charter and contends that its property tax return should be filed with the county tax officials and not with your office.
The corporate purpose clause of the Company's charter, as amended, now provides:
"THIRD: The nature of the business, or objects, or purposes proposed to be transacted, promoted or carried on are: "Specifically, to own, lease, charter, manage and control tugs and through the use of same to assist vessels and other watercraft. Also to construct and repair tugs and to engage in dredging and/or dragging for the purpose of maintaining or creating river depths. Further, to engage in any lawful act or activity which corporations organized under the laws of the State of Delaware may perform and to do any or all things incident thereto."
Ga. Code Ann. 17-212, relating to the powers of a navigation company, was in effect when the Act was passed requiring such companies to flle their property tax returns with the State Revenue Commissioner. This Code section provides, in part, as follows:
"2. To convey persons, vessels, and other property, by the use of steam, sail, or other means, and to receive compensation therefor; and to do all other things incident to a general navigation business, including the right to tow, assist, and rescue vessels." Ga. Code Ann. 17-212.
As noted above, Atlantic Towing Company previously had charter powers to do a general navigation business but has now amended the charter limiting its powers drastically. While assisting vessels is incidental to a navigation business, it is apparently not a navigation business as contemplated by the Georgia statutes.

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Considering all these factors, it must be concluded that the General Assembly did not intend for a company with the limited charter powers set forth above to file its property tax return with the State Revenue Commissioner as a navigation company.
Therefore, it is my opinion that Atlantic Towing Company is not required to file its annual property tax return with the State Revenue Commissioner under the provisions of Ga. Laws 1935, pp. 11, 64, but should file its return with the county tax officials.

OPINION 69-98 (Unofficial)

To: Representative, District 58

February 28, 1969

Re: A man may have two residences at the same time.

You have :tequested my unofficial opinion on whether an elected county officer fulfills the residence requirements of his office if he marries a woman who continues to live in a district different from the one from which he was elected. The officer continues to maintain a furnished house in his original district and receives his mail there, but at the present time he spends his nights with his wife (which is as it should be).
Although you do not state what particular office is in question or what particular law sets forth the requirement of residence, I assume that it is the usual requirement that a man "reside" in the district from which he is elected.
Residence is the mere fact of dwelling in some place for some period of time. A man may have several residences. Worsham v. Ligon, 144 Ga. 711 (1916). Residence is not to be confused with domicile since the terms are not synonymous and domicile requires both actual residence and the intention to remain. Avery v. Bower, 170 Ga. 202 (1930). From the above facts, it would appear that the officer at the present time is maintaining two residences and I find nothing in these facts which would disqualify him from his present office. Even if the law were construed to require a man to be domiciled in the district from which he was elected, the A very case, supra, states that domicile is a matter of actual residence plus intent, and if the additional facts in this case would indicate that the officer intended to be domiciled in his original district, that certainly would overcome the fact of his wife's residence in another district.
It is therefore my unofficial opinion, based on the above facts, that the already elected officer in question can fulfill the residence requirements.

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OPINION 69-99 (Unofficial)

To: Clerk, Superior Court

February 28, 1969

Re: A filing fee of $15.00 is required at the time of filing a divorce case.

You have requested my unofficial opm10n on what is the correct advance costs deposit to be charged a party filing a divorce proceeding. You further wish to know whether it is legal for a party to only pay a $1 0.00 advance costs deposit when service of the suit is acknowledged by the defendant and it is not necessary to require service by the sheriff.
The Georgia Code provides that clerks of the superior courts are not required to file any divorce case or proceeding until a deposit of $15.00 is made with the clerk on account of costs. If the total costs incurred in the case are less than $15.00, the remaining sum is to be repaid after the case is concluded. Ga. Code Ann. 24-3406.
It is clear from the above Code section that a deposit of $15.00 is required in divorce cases. If the fees for the proceeding go beyond $15.00, then the balance of the costs would be collected as in other civil cases. See Ga, Code Ann. 24-3409.
It is therefore my unofficial opinion that a clerk may not be required to file any divorce case until a deposit of $15.00 is made.

OPINION 69-100 (Unofficial)

To: Judge, Court of Ordinary

February 28, 1969

Re: Deputies' bonds should be conditioned as and for the same amount as their principals' bonds.

You have requested my unofficial opinion on the correct amount of a deputy sheriff's bond.
The Georgia Code provides that deputies shall give bonds conditioned as, and for the same amount as, their principals' bonds. Ga. Code Ann. 89-426. Sheriffs are required to give bond in the amount of $10,000.00, which amount may be increased in any county by a local Act. Ga. Code Ann. 24-2805.
Based upon the above Code sections, it is my unofficial opinon that a deputy sheriff should give bond in the same amount as his principal, that is, $10,000.00 unless the amount is increased by

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local Act. This unofficial opinion is conditioned upon there being no contrary local Act which would control such officers in Cherokee County. The county attorney would be the proper person to advise you in this regard.

OPINION 69-!01

To: Revenue Commissioner

March 3, 1969

Re: Motor Fuel Taxes-A consumer who has both highway and non-highway uses for motor fuel (of a type other than gasoline) is not entitled to a refund on such fuel purchased and used for non-highway purposes before he was licensed as a distributor.

This is in reply to your letter requesting an official opinion on the following:

"In order for a person who has both highway and non-highway uses of motor fuel to purchase such fuel tax exempt he must become licensed as a distributor. Is such a dual-user who becomes licensed as a distributor entitled to a refund on motor fuel purchased and used for non-highway purposes prior to the time he became licensed as a distributor? "

Under the provisions of the "Motor Fuel Tax Law" an excise tax is imposed on all distributors of motor fuel as follows:

"( 1) Upon the sale or use of motor fuel by them within this State at the rate of 6 1/2 cents per gallon."

Unless there is a specific exemption from the tax no refund can be made.
Ga. Code Ann. 92-1403 (E), as amended, (Ga. Laws 1966, pp. 61, 65) provides exemptions for motor fuel when sold to consumers who have no highway use at the time of sale and when used by licensed distributors for non-highway purposes. Each of these exemptions is then treated in sub-paragraphs (1) and (2) of paragraph (E).
There is no exemption for motor fuel purchased and used by consumers who have both highway and non-highway uses unless such persons are licensed as distributors. In fact, subparagraph ( 1) of Ga. Code Ann. 92-1403(E), in part, provides:

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"In order for such persons to purchase or use such fuel tax exempt, they must become licensed as a distributor of such fuel under subparagraph (B) of section 92-1403 of this chapter."

All exemptions from taxation must be strictly construed in favor of the taxing authorities and against the taxpayer. Presbyterian Center, Inc. v. Henson, 221 Ga. 750, 753 (1966). To
construe the above provisions as meaning that a consumer who has both highway and non-highway uses of fuel could purchase and use motor fuel for a non-highway purpose and later become licensed as a distributor and claim a tax refund would defeat the basic record keeping safe guards contai:Qed in the Act as well as the spirit thereof.
Consumers who have both highway and non-highway uses may claim an exemption for motor fuel purchased before they were licensed as a distributor if subsequently used for non-highway purposes. Of course, in this situation, the motor fuel would be used by a licensed distributor for non-highway purposes. It should be noted that the General Assembly provided that only the user (consumer) could claim the exemption under these circumstances and obtain the refund therefor, whereas under other provisions of the Act certain dealers may apply for refunds. The provision limiting this exemption to "users only" is found in the introductory paragraph of Ga. Code Ann. 92-1403 (E).
Considering th~ "Motor Fuel Tax Law" in its entirety, it is clear that in order for motor fuel used for non-highway purposes to be exempt, the fuel must be used by a licensed distributor or by a consumer who at the time of sale had no highway use for such fuel.
Therefore, it is my opinion that a consumer who has both highway and non-highway uses for motor fuel (of a type other than gasoline) is not entitled to a refund on such fuel purchased and used for non-highway purposes prior to the time he became licensed as a distributor.

OPINION 69--!02 (Unofficial)

To: Private Inquirer

March 3, 1969

Re: A New York license to sell certain securities is not valid in Georgia.

This will acknowledge your letter dated January 9, 1969,

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whereby you stated that you are a licensed representative of the B. C. Morton Organization, Inc. of Boston, Massachusetts, pursuant to a license issued by the New York Department of Law. You further stated that said license allows you to represent said Morton
Organization in the sale of mutual funds and in the placing of savings and loan money and certificates of deposit.
By your letter, you requested information as to whether said license would be honored by Georgia should you change your residency to the State of Georgia.
In answer to your question, your attention is called to Ga.
Code Ann. 97-105 which provides as follows:

No dealer, limited dealer, salesman or limited salesman shall sale or sell any securities within or from this State, except in transactions exempt under Section 6, unless he is registered as a dealer, limited dealer, salesman or limited salesman pursuant to the provisions of this section.

Thus, it is my unofficial opinion that in view of the above-cited provision, your New York license would not authorize you to engage in the sale or the offering for sale in Georgia of securities, as same are defined in the Georgia Securities Act of 1957 (Ga. Code Ann. 97-102(i)).

OPINION 69-103

To: Insurance Commissioner

March 3, 1969

Re: Married person, eighteen years of age or older, may make contracts to settle claim under life insurance policy.

You have requested my opinion on whether or not a married person, eighteen years of age or older, can make a demand for and receive in a lump sum the full proceeds due under a life insurance policy even though the amount is in excess of $3,000.00.
The 1960 Georgia Insurance Code authorized minors who are at least eighteen years of age to give acquittance and discharge for a payment or payments not exceeding $3,000.00 per year made by any one insurer under a maturity, death or settlement provision of a life insurance policy or annuity contract. Ga. Code Ann. 56-2425.
In 1966, the General Assembly provided that the contracts, promissory notes, conditional sales contracts and any other consensual transactions of a minor who is eighteen years of age of older and married shall be as effective as though such minor were

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of the age of majority. Ga. Code Ann. 20-201; Ga. Laws 1966, p. 291. Georgia law further provides that a married person eighteen years of age or older may maintain an action and contract to settle claims in his own name. Ga. Code Ann. 3-115.
Upon reviewing the above Code sections, it is apparent that Georgia law distinguishes between an eighteen-year-old minor and an eighteen-year-old married minor. In my opinion, the limitation of $3,000.00 per year set out in Ga. Code Ann. 56-2425 applies only to eighteen-year-old minors who are not married since the subsequent law makes it clear that a married eighteen-year-old's contracts are as effective as though he had reached majority.
It is therefore my opinion that a married person, eighteen years of age or older, may make a demand for and receive in a lump sum the full proceeds due under a life insurance policy even though the amount is in excess of $3,000.00 and your question is answered in the affirmative.

OPINION 69-104 (Unofficial)

To: State Board of Corrections

March 4, 1969

Re: Acquittal of escape charge does not vitiate Board of Corrections' duty to forfeit inmate's good-time allowance.

This will acknowledge your recent inquiry with its accompanying letters wherein you inquired whether or not a "Not Guilty" verdict to a charge of escape alters the status of the
inmate insofar as his good-time allowances are concerned. More specifically, the inmate's attorney has suggested to the
Department of Corrections that the inmate was coerced in accompanying another escapee and, thus, the subject inmate should not lose his good-time allowances in view of the fact that he was adjudged not guilty for his participation in the escape. The accompanying materials with your letter reflect that your own investigation reveals that the subject inmate was not forced to leave the prison under duress and this was verified by communication from the district attorney who prosecuted this subject inmate.
A similar factual situation previously has been inquired into by the State Board of Corrections and was answered by an official opinion of the Attorney General dated June 27, 1967 [Op. Atty. Gen. 67-234], to the former Director of the State Board of Corrections (copy enclosed). In the Attorney General's opinion of June 27, 1967, it was concluded that "it was mandatory under

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the provlSlons of [Ga. Code Ann. 77-320(c)] that the State Board of Corrections should cause the extra good time allowance of the prisoner-escapee to be forfeited for such escape." Op. Atty. Gen. 67-234.
If the Department of Corrections is satisfied from its own independent investigation of the facts surrounding the subject inmate's escape that he was not coerced to escape, then I would
urge the course of action set out in the Attorney General's official opinion of June 27, 1967 [Op. Atty. Gen. 67-234].

OPINION 69-105 (Unofficial)

To: Clerk, Town of Kite

March 4, 1969

Re: Whether a councilman who is also a bailiff can be a part-time policeman in the same town.

You have requested my unofficial opm10n on whether a councilman of a certain town who is an elected bailiff for a particular district can also be a policeman in that same town. I have not been able to find any statute which would expressly prohibit such an employment.
Although I have found no express statutory prohibition against holding these positions, there may be other considerations affecting this problem. At common law, 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 an occasion may arise when a councilman would have to discipline or decide on the conduct of a town policeman, there is a possibility that a court would decide that the positions are incompatible and there would be a conflict of interests which would prohibit holding these positions.
I assume there are no provisions in the town charter which would .specifically prohibit holding the several offices set out above. The town attorney would be the proper person to advise you in this regard.

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OPINION 69-106 (Unofficial)

To: State Highway Right-of-Way Engineer

March 4, 1969

Re: The Highway Department may be liable under Laws and Constitution for damages to private property caused by public improvements.

This is in reply to your request for an unofficial opinion as to
whether or not the State Highway Department of Georgia is liable for damages to a pond owned by Mr. A. J. Hale.
During construction of Project 1-285-1 (22) Fulton-Cobb, a pond owned by Mr. Hale suffered considerable damage due to flooding and silting. After an investigation into the matter, you state that the State Highway Department admits that the road construction was responsible for the pond damage. Bids have been secured for correcting the situation with the low bid being $3,750.00. The Bureau of Public Roads has been requested to approve this amount as a participating cost for settlement of Mr. Hale's claim. Before the Bureau will agree upon a settlement, it has requested a statement from the Attorney General's Office regarding the liability of the State Highway Department in this case. This unofficial opinion is being written to you to furnish the necessary information for you to answer the request of the Bureau of Public Roads.
In order to fully assess the liability and damages in this matter, the undersigned has reviewed correspondence from the property owner, the State Highway Department, and the Contractor responsible for the building of the project. In addition, an on-the-site inspection of the premises was made in the company of engineers and employees of the Right-of-Way Division of the State Highway Department of Georgia. In writing this opinion, this office will not disagree with the engineering determination reached by the Department, i.e., that the damages suffered by Mr. A. J. Hale were a direct result of the construction of the above captioned project.
Even though no part of Mr. A. J. Hale's property was actually

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taken in connection with this highway construction project, Art. I, Sec. III, Par. I of the Constitution of Georgia (Ga. Code Ann. 2-301) provides that:
"Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid ..."(Emphasis added).
In the case of Dougherty County v. Hornsby, 213 Ga. 114, 116 (1957), the Supreme Court of Georgia, in elaborating upon this constitutional provision, stated the following:
"Accordingly, if property is damaged, even by the prudent and proper exercise of a power conferred by statute, the owner is entitled to just compensation in an amount represented by the difference between the market value of the property before and after the procedure taken for public purposes."
It does not matter that Mr. Hale's property does not adjoin or abut the highway improvement if the construction of the improvement resulted in physical damages to his property. In Tift County v. Smith, 107 Ga. App. 140 (1962) (reversed on other grounds, 219 Ga. 68 (1963)), plaintiffs' land did not abut or adjoin the highway improvement but was damaged from water caused by the highway improvement to flow and pond upon it, and as to that it was held by the court that the plaintiffs had a cause of action. This same result has been reached in other cases where plaintiff's property did not adjoin or abut upon the improvement. See in this connection Dougherty County v. Long, 93 Ga. App. 212, 213 (1956); Clarke County School District v. Madden, 99 Ga. App. 670 (1) (1959); Sheehan v. Richmond County, 100 Ga. App. 496 (1959); and statement in Austin v. Augusta Terminal Railroad Company, 108 Ga. 671, 678 (1899).
The Court of Appeals in the case of Gwinnett County v. Allen, 56 Ga. App. 753, 754 (1937), further elaborated on the constitutional provision hereinbefore mentioned as follows:
"The constitutional provision ... is all inclusive, and covers taking or damaging of private property whether brought about by action involving proper and diligent construction or taking, or negligent damaging or taking. Bates v. Madison County, 32 Ga. App. 370 (123 S.E. 158). In either event the citizen's constitutional right is violated and he is entitled to just and adequate compensation."

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Therefore, construing the constitutional amendment and cases hereinbefore mentioned, . and assuming the engineering determination as to responsiblity for damages is correct, it is my unofficial opinion that the State Highway Department of Georgia is liable under the laws of the State of Georgia for the damages suffered by Mr. A. J. Hale as a result of the flooding and silting of his pond.
OPINION 69-107 (Unofficial)

To: Private Inquirer

March 5, 1969

Re: Credit union may lend money to members at reasonable rates of interest which shall not exceed 1% per month.

You advise us that you represent a credit union incorporated and governed by the laws of Alabama and several members of your credit union reside in Georgia. The credit union proposes to begin a new type of personal loan service which in effect will be a "line of credit" type situation wherein the member may draw against a maximum availability of $750. You advise that in Alabama, credit unions by special statutes are allowed to charge interest not to exceed 1% a month of the unpaid balance. Section 296 of Title 28, Code of Alabama, 1940. You wish our unofficial comments on whether the interest you propose to charge would be in conflict with the interest laws of Georgia.
Georgia allows credit unions to lend money to their members at reasonable rates of interest which shall not exceed 1% per month for such purposes and upon such security as may be approved by the credit committee. Ga. Code Ann. 25-116.
It is therefore my unofficial opinion that an interest rate of 1% a month on the unpaid balance would not be in conflict with Georgia's interest laws.

OPINION 69-108 (Unofficial)

To: Ordinary, Gilmer County

March 6, 1969

Re: A person may hold a county office and a city office at the same time.

This is in response to your request for an opinion as to whether

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a person can legally hold a county office and a city office at the same time.
While there are statutory prohibitions against the simultaneous holding of two county offices, Ga. Code Ann. 89-103, and the simultaneous holding of the office of city councilman and other municipal office, Ga. Code Ann. 69-201, I am not aware of any express statutory prohibitions against the simultaneous holding of a county office and municipal office.
Therefore, it is my unofficial opinion that there is no express statutory prohibition against the simultaneous holding of a county office and a municipal office.

OPINION 69-109 (Unofficial)

To: City Attorney

March 6, 1969

Re: City Councilman being employed by the City as a policeman.

This is in response to your recent request for an opinion as to whether a member of the city council may simultaneously serve in the capacity of police officer employed by the city.
Although I do not know of any statutory provision expressly prohibiting a member of a city council from simultaneously being employed by the city as a policeman, certain common law principles could raise problems. At common law, public officers were consistently prohibited from holding two incompatible positions at the same time because of the conflict of interest presented by being both the master and servant. 67 C.J .S. Officers, 23. Since an occasion may arise when a councilman would have to discipline or decide on the conduct of a town policeman, there is a possibility that a court would decide that the positions are incompatible and there would be a conflict of interest which would prohibit holding the two positions at the same time.
Therefore, it is my unofficial opinion that, although there is no specific statutory provision which prohibits a member of a city council from simultaneously being employed by the city as a policeman, there is a distinct possibility that a court would consider the two positions incompatible on the basis that the common law principle referred to above had been offended. See Op. Atty. Gen. 69-105.

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OPINION 69-110 (Unofficial)

To: Justice of the Peace

March 6, 1969

Re: Municipal Employment of Councilman for other jobs.

Your recent letter to the Honorable Ben W. Fortson, Jr., Secretary of State, has been forwarded to the office of the Attorney General. In said letter, you requested an opinion on the following questions:

1. Can a person serve as a member of the city council and also serve as policeman? 2. Can a person serve as a member of the city council and at the same time occupy the position of Justice of the Peace? 3. Can a person serve as a member of the city council and simultaneously work for the city as a plumber?

With reference to questions numbered 1 and 3 above, I am enclosing herewith a copy of an unofficial opinion rendered to Mr. Sol Altman, City Attorney, Boston, Georgia [Op. Atty. Gen. 69-109], which answers the same question relative to a member of the city council simultaneously serving as city policeman. That opinion answers the same question which you have asked and which is numbered 1 above, and the reasoning contained in said opinion also would apply to your question numbered 3 above.
With reference to your question numbered 2 above, the office of Justice of the Peace has been held by the courts to be a State office. Overton v. Gandy, 170 Ga. 562 ( 1930). I am not aware of any statutory provision prohibiting the holding of a State office and the simultaneous holding of a municipal office.
Therefore, it is my unofficial opinion that your questions numbered 1 and 3 above are answered by the enclosed opinion, and that your question numbered 2 above should be answered as hereinabove indicated.

OPINION 69-lll (Unofficial)

To: Clerk, Superior Court

March 6, 1969

Re: Advance Court Costs in Divorce Cases.

The Georgia Code provides that the clerk of the superior court shall not be required to file any divorce case or proceeding until a

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cost deposit of $15.00 has been made. Ga. Code Ann. 24-3406. The Georgia Code further provides that the several officers of court are prohibited from demanding costs in any civil case, or any part thereof, until after judgment except as provided in the case of nonresident plaintiffs and attorneys, and in suits for divorce. Ga. Code Ann. 24-3409.
As I understand your question, the local attorneys would like a flat fee for ftling a divorce unless it was an unusual case. If this is so, I can see nothing wrong with your advising the local attorneys what the usual costs of a divorce case are and allowing them to pay the entire amount when they ftle a divorce. However, I do not believe that you can demand these costs before you allow the divorce proceeding to be ftled. If the local attorneys volunteer to pay the entire costs in advance, then of course you are not prohibited from accepting such advance costs.
It is therefore my unofficial opinion that a clerk of the superior court may not demand more than $15.00 advance costs deposit for the filing of a divorce proceeding although he may accept such additional costs as the party volunteers to pay towards the total anticipated court costs of the proceeding.

OPINION 69-112 (Unofficial)

To: County Attorney, Miller County

March 6, 1969

Re: Homestead Exemption - Social Security Benefits must be considered in determining whether a person meets income requirements for special homestead exemption.

This is in reply to your letter concerning the 1968 Constitutional Amendment (Ga. Laws 1968, p. 1690) relating to increased homestead exemptions for certain persons over 65 years of age.
You ask whether or not social security benefits must be included in the computation in determining whether or not such persons have met the net income requirement so as to be eligible for the increased exemption.
The Amendment to Art. VII, Sec. I, Par. IV of the Constitution of Georgia (Ga. Laws 1968, p. 1690) provides, in part, as follows:

" 'Each person who is sixty-five (65) years of age or over is hereby granted an exemption from all State and county ad valorem taxes in the amount of $4,000.00 on a homestead

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owned and occupied by him as a residence if his net income, together with the net income of his spouse who also occupies and resides at such homestead, as net income is defined by Georgia law, from all sources, including any federal old-age, survivor or disability insurance benefits or benefits received from any retirement or pension fund when such benefits are based on contributions made thereto by such person or his spouse, does not exceed $4,000.00 for the immediately preceding taxable year for income tax purposes.' "

In your letter you indicate that there appears to be an inconsistency in the above provision in that you do not believe social security benefits are included in net income as net income is defined by Georgia law. You are correct in that the Income Tax Unit of the State Revenue Department does not construe social security benefits as being included in gross income under the provisions of Ga. Code Ann. 92-3107 and thus not taxable. However, a reading of the Constitutional Amendment shows that the General Assembly did not intend to exclude social security benefits and certain other benefits from the computation in determining whether such persons had income in excess of $4,000.
Therefore, it is my opinion that social security benefits must be included in the computation in determining whether or not a person over 65 and his spouse has met the income requirements for the increased homestead exemption.

OPINION 69-ll3

To: State Superintendent of Schools

March 7, 1969

Re: Board of Education may distribute funds appropriated to relieve hardships caused by Minimum Foundation Program of Education Act.

This in response to your letter of February 25, 1969, requesting my official opinion on the above matter.
Section 23 of the Minimum Foundation Program of Education Act (Ga. Laws 1964, pp. 3, 24) provides, in relevant part:

"In addition to the foregoing provisions of this Act, the State Board of Education shall or may, as the case may be, allot additional funds to local units of administration for purposes provided for in subsequent Sections of this Act to the extent that funds may be appropriated by the General Assembly for such purposes."

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Section 28 of the Act authorizes the State Board of Education

"to set up a contingency fund for the purpose of relieving hardships which may be caused by operation of provisions of this Act and to take care of any unusual or unforeseen circumstances."

I am of the opinion, based upon the foregoing provisions, that the State Board of Education is authorized to distribute among local units of school administration any funds appropriated by the General Assembly for the relief of hardships experienced by local units as a result of the operation of the provisions of the Minimum Foundation Program of Education Act.

Section 23 of the Act further provides:

"When additional funds are allotted to local units for purposes hereafter provided for, local units of administration shall provide local funds to match the State allotment of funds to the extent and in the manner provided in the subsequent Sections of this Act."

Neither Section 28 of the Act nor any other section subsequent to Section 23 provides that local units shall provide matching funds in order to be entitled to receive funds appropriated by the General Assembly for tP.e purpose of relieving hardships which may be caused by the operation of provisions of the Act. Hence, I am of the opinion that local units are entitled to receive such State funds without being required to raise and expend any local effort matching funds.

OPINION 69-114

To: Chief of Field Operations, Revenue Department

March 10, 1969

Re: Tax fi. fa. not recorded until six years and eleven months is effective as a lien for seven years from the date of recording.

This is in response to your inquiry concerning the recording of a tax fi. fa. after six years and eleven months from the date of its issuance, and the effect of a subsequent nulla bona entry.
You state that one of your levying officers, Mr. Keller, was advised by the Clerk of the Superior Court of Muscogee County, Mr. Bloodworth, as follows:

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'1. . .that if we hold an unrecorded fi. fa. for six years and eleven months and then record same that under the law the execution is good for seven years from that date. Then, a nulla bona entry on such fi. fa. would not be necessary before seven years have elapsed."
As will be shown, the advice of Mr. Bloodworth is essentially correct, yet I feel some explanation of the law on this question is in order, particularly in view of the special treatment given by Georgia law to tax executions and the recording thereof as opposed to the treatment given to executions issuing from , ordinary judgments and the effect of their recording.
Ga. Code Ann. 39-701, a amended by Ga. Laws 1955, pp. 425, 426, requires the clerk of the superior court of each county to keep a general execution docket and provides that money judgments obtained in any State court or Federal court within Georgia shall be effective as a lien as against bona fide purchasers for value without notice upon the property of the defendant only if the execution issuing from the judgment is entered for record upon the general execution docket, and, that the lien shall date from such entry.
Ga. Code Ann. 92-7701, (as amended by Ga. Laws 1965, pp. 316, 317), provides:
"All State, county, city, or other tax executions, before or after legal transfer and record, shall be enforced within seven years from the date of their issue; or within seven years from the time of the last entry upon the tax execution by the officer authorized to execute and return the same if said execution and entry is properly entered or reentered upon the execution docket and books in which executions and entries are required to be entered or reentered, or both, in cases of executions and entries thereon issued on judgments."
Thus, a lien for tax and an execution thereon are treated somewhat differently from the lien and execution arising from an ordinary judgment. It has been held that the statute providing for the revival of a dormant judgment by scire facias or by suit thereon within three years from the time it becomes dormant, (Ga. Code Ann. 110-10 et seq.), does not apply to tax executions. Oxford v. Generator Exchange, Inc., 99 Ga. App. 290, 108 S.E.2d 714 (1959); Op. Atty. Gen., 1935-1936, pp. 33, 34. In Darby v. DeLoach, 190 Ga. 499, 9 S.E.2d 626 ( 1940), the

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Supreme Court of Georgia held, notwithstanding language in Ga. Code Ann. 92-7701 to the effect that the tax executions shall be enforced within seven years from the date of their issue, without regard to the time of their legal transfer and record, or within seven years from the time of the last entry upon the tax execution by the proper officer, (Emphasis added), that Ga. Code Ann. 92-7702, which provides: "All laws in reference to a period of limitation as to ordinary executions for any purpose, or to the length of time or circumstances under which they lose their lien in whole or in part, are applicable to tax executions," incorporated the provisions of Ga. Code Ann. 110-1001, (as amended by Ga. Laws 1955, pp. 417, 418), which applies to ordinary executions (i.e., non-tax executions) and that under the last provision, mere entry of the tax execution itself on the general execution docket within the seven year period, as in the case of non-tax executions, was sufficient to prevent dormancy.
It is, therefore, important that the differences and the similarities between ordinary or non-tax executions, and tax executions be kept in mind.
Ga. Code Ann. 92-7602 provides for the transfer of tax executions to persons, other than the person against whom the execution issued, upon payment and request by such persons, and that "said transferee shall have the same rights as to enforcing said execution and priority of payment as might have been exercised or claimed before said transfer: Provided said transferee shall have said execution entered upon the general execution docket of the superior court of the county in which the same issued and if the person against whom the same was issued, resides in a different county, then also in the county of such person's residence, within 30 days from said transfer, and in default thereof such executions shall lose their lien upon any property which has been transferred bona fide and for valuable consideration before the record and without notice of the existence of such execution." This provision parallels Ga. Code Ann. 39-701, (as amended by Ga. Laws 1955, pp. 425', 426), relating to the recording of ordinary judgments upon the general execution docket so as to become effective as liens as against everyone including innocent bona fide purchasers for value of defendant's property. See Tanner v. Wilson, 184 Ga. 628, 632, 192 S.E. 425 (1937). It follows that an execution for taxes under Ga. Code Ann. 92-7701 operates for seven years as an effective lien against the property of the defendant in fi. fa. from the date of its issuance, as does an ordinary judgment (Ga. Code Ann. 11 0-507), but, like a judgment lien, it does not operate as a lien as against bona fide purchasers for value who take

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without notice of the lien, unless and until it is entered upon the general execution docket. See Federal Land Bank of Columbia v. Farmers & Merchants Bank, 177 Ga. 505 (2), 170 S.E. 504 (1933); Thompson v. Adams, 157 Ga. 42, 120 S.E. 429 (1923); Tanner v. Wilson, supra.
Therefore, under the ruling in Darby v. DeLoach, supra., a tax execution may be revived by entry upon the execution docket within seven years from its issuance. Also, under Ga. Code Ann. 92-7701, a tax lien may be revived prior to the expiration of the seven year period by an entry upon the execution, such as a nulla bona entry, by the proper officer, providing such entry is entered or reentered upon the execution docket and other books as required by this section.
It is, therefore, my official opinion that a tax lien is created by the issuance of a tax execution, or fi. fa., and such lien exists for
seven years but not against innocent bona fide purchases for value while the execution is un-recorded, and that entry of the execution upon the general execution docket revives the lien for an additional seven year period and is effective against all subsequent purchasers, dating from such entry or recording and, finally, that a nulla bona entry made prior to the expiration of the seven year period on such execution would revive the lien but only if such entry is also entered or reentered, as the case may be, upon the execution docket or other books upon which executions and entries are required to be entered or reentered.

OPINION 69-!15 (Unofficial)

To: Department of Public Safety

March 10, 1969

Re: Security deposit return.

This will acknowledge your recent inquiry with its accompanying papers concerning the subject accident case. You ask for this Department's unofficial opinion as to the Department of Public Safety's position concerning the deposit of the security now on file with the treasurer.
The facts appear to be as follows: A truck owned by F. C. Company was involved in a collision in which W. W. and W. R., as drivers of separate vehicles, were injured. As a result of said accident, W. W. filed an affidavit with the Department of Public Safety swearing to property damages in the amount of $185.60.

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W. W. also filed an accident report as required by law. W. R. filed an affidavit swearing to nearly $4000.00 worth of damages, but did not accompany his affidavit with an accident report. Pursuant to W. W.'s affidavit, the Department of Public Safety requested the F. C. Company deposit security in the amount of $185.60 and such amount was deposited. The Department did not ask the F. C. Company to post the nearly $4000.00 security as requested by W. R. inasmuch as he had failed to submit an accident report authenticating the accident from which he claims damages.
Subsequently, W. R. obtained a judgment against the F. C. Company which, apparently, was fully satisfied as evidenced by a copy of a certification by the Deputy Clerk of the City Court of Savannah. The F. C. Company, through its attorney, seeks the return of the $185.60 security posted in response to W. W.'s affidavit. The attorney for F. C. Company states as his reasons in support of the return of the security that the judgment by W. R. against the F. C. Company and the satisfaction thereof is
tantamount to "a full and complete release as [W. W.j could ever
execute himself." (Emphasis added.) I do not agree with the above conclusion by F. C. Company's
counsel inasmuch as there is nothing before me that indicates W. W. was a party to the suit against F. C. Company. W. W. not being a party to W. R.'s suit against F. C. Company, the judgment is not conclusive as toW. W.'s claim, Ga. Code Ann. 110-501, and W. W. may still bring an action against F. C. Company for his damages. Ga. Code Ann. 3-1002.
However, the security may be returned to the F. C. Company when the conditions of Ga. Code Ann. 92A-611 are met. Ga. Code Ann. 92A-611 provides for the return of security under certain conditions and one of the conditions is that the "deposit ... shall be returned to the depositor . . . whenever, after the expiration of two years from the date of accident ... the Director shall be given reasonable evidence that there is no such action pending ...." Ga. Code Ann. 92A-611. The records before me indicate that the accident was January 30, 1967, and thus, the depositor may qualify for the return of his deposit by meeting the conditions set out above or any of the other conditions in Ga. Code Ann. 92A-611.

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OPINION 69-116 (Unofficial)

To: State Budget Officer

March 11, 1969

Re: The payment of fees as required by Ga. Code Ann. 24-2904.

I am pleased to reply to your request as to what amount should be paid to the District Attorney of Fulton County in Case Nos. 24484 and 24744 in the Supreme Court of Georgia under Ga. Code Ann. 24-2904. The two cases in question involve "possession of obscene matter - constitutional from Fulton County" (Case No. 24484) and "shoplifting- constitutional from Fulton County" (Case No. 24744).
Ga. Code Ann. 24-2904 provides that a District Attorney's fee for services in the Supreme Court of Georgia shall be $50.00 in capital felony cases, $30.00 in other felony cases, and $15.00 in all other cases. Because the offenses involved are apparently not capital felonies, the only issue remaining is whether they fall within the second or third category.
The offense of shoplifting is defined by Ga. Code Ann. 26-2642 and may be punished both as a felony and misdemeanor, depending upon the value of the article stolen; if the article is worth $50.00 or more, the offense is a felony, if less, a misdemeanor. I have reviewed the files of the Georgia Supreme Court and have discovered that in this instance the offense was a felony. Therefore, the fee due for this representation is $30.00.
Possession of obscene matter is defined in Ga. Code Ann. 26-6301 and constitutes a felony, unless reduced by the jury to a misdemeanor. Therefore, the compensation due in this case would be $30.00.

OPINION 69-117

To: Revenue Commissioner

March 12, 1969

Re: The Commissioner of Revenue must process or certify intangible tax returns even when total tax does not exceed $5 .00.

This is in response to your letter of February 10, 1969, wherein you requested an opinion as to whether or not you may "administratively eliminate and not process or certify Intangible

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Tax Returns on which the total tax does not exceed $5" when you have determined that it costs the Department of Revenue approximately $5.20 to process each Intangible Tax Return.
To administratively eliminate and not process or certify intangible tax returns on which the total tax does not exceed $5.00 would in essence amount to an administrative exemption. As an intangible tax is a constitutionally imposed tax any exemption must be specifically authorized by the constitution.
Therefore, it is my official opinion that you may not administratively eliminate and not process or certify intangible tax returns on which the total tax does not exceed $5.00 even though you have determined that it costs the Department of Revenue approximately $5.20 to process each intangible tax return.

OPINION 69-ll8 (Unofficial)

To: U.S. Army Claims Service

March 12, 1969

Re: Tort Claims under the National Guard Claims Act.

You have requested our assistance in gathering pertinent information on the present treatment of claims for damages caused by State employees in Georgia.
The State of Georgia has never renounced its sovereign immunity from liability for the negligent or other tortious acts or conduct of its officers, agents or employees and the State has not consented to be sued therefor.
As an alternative, the General Assembly of Georgia has established a Claims Advisory Board which handles all claims for compensation against the State based on tort. The procedure is to file a notice of claim with the Board on or before the 5th day of November immediately preceding the session of the General Assembly at which the claim is to be considered. The person to
contact in this regard is:

Secretary to Claims Advisory Board Office of the Secretary of State 214 State Capitol Atlanta, Georgia 30334.

The Board provides the necessary forms and shall inform the person filing a notice of such further information as it will require.

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After filing a claim, the injured party must get a resolution introduced in the Georgia House of Representatives. When the resolution is introduced, a copy is transmitted to the Chairman of the Claims Advisory Board at which time the Board will set a time for acting on the claim and set a date for a full hearing if a hearing is deemed necessary. The Board will then send its report to the Appropriations Committee which proceeds to act as it would on any other resolution. For a full description of the procedure, see Ga. Code Ann. 47-504 to 47-510.
To my knowledge, neither the State of Georgia nor the Georgia Army National Guard carries insurance covering damage resulting from the tortious acts of any of its employees. I am not aware of any State court decision on the extent to which Georgia is responsible for the actions of National Guard personnel entitled to pay under 32 U.S.C. 316, 502-505 or 37 U.S.C. 206 or employed under 32 U.S.C. 709 (Caretakers).

OPINION 69-119 (Unofficial)

To: Tax Commissioner, Jackson County

March 13, 1969

Re: Assignments of property made to avoid payment of ad valorem taxes are null and void.

This is in reply to your letter of March 7, 1969, concerning the sale of motor vehicle license plates without the payment of ad valorem taxes where a Georgia automobile dealer transfers, on December 31, 1968, the vehicle in question to an out of state resident and then subsequent to the January 1 tax assessment date re-acquires the vehicle in question.
It appears that the conveyance by [A] Chevrolet to [B] Auto Sales on December 31, 1968 was an assignment of property made to avoid the payment of taxes, particularly in view of the fact that within two weeks [B] Auto Sales conveyed the same vehicle back to [A] Chevrolet Company.
We have previously issued an opinion [Op. Atty. Gen. 67-24] concerning transactions of this type and I am enclosing a copy of that opinion. It would appear that the vehicle in question would be subject to taxation under the circumstances outlined above. (Ga. Code Ann. 92-5710 and 92-5711). See also, Ga. Code Ann. 92-6216.

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OPINION 69-120 (Unofficial)

To: County Attorney

March 13, 1969

Re: Commission payable for collection of school taxes: 2 1/2% only.

This is in reply to your letter of March 6, 1969, concerning the compensation to be paid the Tax Collector of Irwin County as commissions on the collection of school taxes. You have asked particularly whether or not the Tax Collector would be entitled to receive as commissions 10% of taxes collected in excess of 90% of the total tax digest and an additional 10% on taxes collected in excess of 80% of the total digest should an appropriate resolution be passed to that effect.
Ga. Code Ann. 92-5301 provides for the compensation of each tax receiver and tax collector for the collection of state and county taxes. Ga. Code Ann. 92-5304 provides that, in addition to the fees provided for in Ga. Code Ann. 92-5301, the tax collector would be entitled to 10% of taxes collected in excess of 90%, and should the Board of Commissioners of Roads and Revenues adopt an appropriate resolution the tax collector would be entitled to 10% of all taxes collected in excess of 80% of taxes due according to the net tax digest. These commission provisions apply only to state and county taxes and they do not apply to the collection of school taxes. [Op. Atty. Gen. 1960-61, p. 562].
A tax commissioner is entitled to receive a commission of two and one-half percent of all county school taxes levied under the authority of Art. VIII, Sec. XII, Par. I of the Constitution of this State (Ga. Code Ann. 32-1106).
The Tax Collector of Irwin County is, in my opinion, entitled to a commission of two and one-half percent on school taxes collected and no more regardless of what percentage of the taxes he may collect. The additional compensation provided for in Ga. Code Ann. 92-5301 applies only to state and county taxes.

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OPINION 69-121

To: Georgia State Board of Pharmacy

March 13, 1969

Re: Use of the mails to sell, distribute and deliver drugs which require a prescription.

This is in response to a request on your behalf by Mr. Joe Welby, Chief Drug Inspector, for an opinion as to whether the State Board of Pharmacy has any recourse:

1. When a pharmacy licensed by the State Board of Pharmacy permits a pharmacist in its employ regularly to receive prescriptions by mail, fill same, and return said prescriptions to the patients by mail; or 2. When a firm located outside the State of Georgia and not licensed by the Board of Pharmacy, receives prescriptions by mail, fills same, and returns said prescriptions to patients in the State of Georgia.

DISCUSSION AND OPINION AS TO QUESTION 1 Except for practitioners of the healing arts putting up their own prescriptions, drugs, medicines and poisons may be sold at retail in Georgia only in a pharmacy licensed by the State Board of Pharmacy. Ga. Code Ann., 79A-517(a)(b). Such drugs, medicines and poisons may be dispensed in a licensed pharmacy only by a pharmacist licensed by the State Board of Pharmacy or a pharmacy intern under his immediate supervision, and it is violative of the law for the holder of a pharmacy license to allow any one other than the aforesaid persons to dispense drugs, medicines and poisons in the pharmacy. Ga. Code Ann., 79A-506; 79A-519. The law is clear with reference to a licensed pharmacist receiving prescriptions by mail, filling and returning same by mail to the recipient. Ga. Code Ann., 79A-408(8) provides that the State Pharmacy Board may suspend or revoke the license of a pharmacist who shall have "regularly employed the mails to sell, distribute, and deliver a drug which requires a prescription when the prescription for such articles has been received by mail." The grounds for the suspension or revocation of a license as a pharmacy, although not referring explicitly to the use of the mails to dispense drugs, does provide, at Ga. Code Ann., 79A-513(1) that:

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"The State Board of Pharmacy shall have the power to suspend or revoke any license issued under . . . this Chapter, or to reprimand the holder thereof, when such holder, or any agent, servant or employee of such holder, when acting within the scope of his employment, shall: 1. Have failed to comply with any provision of this Chapter or any laws of this State ... having to do with the control of pharmacists, pharmacies or drugs." (Emphasis added).
Since the holder of a license as a pharmacy cannot allow any person other than a registered pharmacist or a pharmacy intern under the direct supervision of a registered pharmacist to dispense any drugs, medicines or poisons, Ga. Code Ann., 79A-506, and a registered pharmacist could have his license revoked by regularly employing the mills to deliver a drug which requires a prescription when the prescription for the drug has been received by mail, Ga. Code Ann., 79A-408(8), a fortiori the holder of a license as a pharmacy could not permit its agent or employee, acting in the scope of his employment, regularly to employ the mails for the prohibited purpose indicated above. If an agent or employee of the holder of a pharmacy license so violated the provisions of Ga. Code Ann., 79A-408(8), said license as a pharmacy could be subject to suspension or revocation under Ga. Code Ann., 79A-513.
Therefore, my opinion as to your first question is that, given the facts recited in said question, the recourse of the State Board of Pharmacy would be to institute proceedings for the suspension or revocation of the license of the pharmacy.
DISCUSSION AND OPINION AS TO QUESTION 2 Your second question refers to firms not licensed as pharmacies in Georgia and not located in this State, but which fill prescriptions received from persons within Georgia and mail same back to the customer in Georgia. The jurisdiction of the State Board of Pharmacy with reference to persons not licensed by said Board relate to the institution of criminal proceedings (See e.g. Ga. Code Ann., 79A-208(f), 79A-302, 79A-515, 79A-818, 79A-820, 79A-905, 79A-908, 79A-1006) and the institution of civil proceedings seeking an injunction (See e.g. Ga. Code Ann., 79A-516, 79A-910, 79A-1004). Neither of these remedies is available, however, when the person or firm allegedly violating the terms of Ga. Code Ann., Title 79A is not within the jurisdiction of the courts of this State.

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Therefore, it is my opinion that, when the alleged violator is without the jurisdicton above defined, the recourse of the State Board of Pharmacy would lie in the notification of the Federal authorities charged with the enforcement of Federal laws in the area of nonmailable items and the regulation of drugs, medicines and poisons.

OPINION 69-122 (Unofficial)

To: State Highway Right-of-Way Engineer

March 13, 1969

Re: Fixtures: Personalty attached to Realty which is owned by a lessee; trade fixtures removable by lessee.

This is in response to several inquiries that have been made regarding the unofficial opinion to your office dated February 21, 1969 [Op. Atty. Gen. 69-90], dealing with the question of whether personalty attached to realty becomes a part of the realty and thus the land owner is disallowed relocation moving expenses for such fixtures. This is to supplement that opinion with regard to the question of whether fixtures which are installed by a lessee are to be considered as part of the realty and not removable by the lessee in cases where the leasehold is condemned.
My previous unofficial opinion dealt only with the question of the rights of the Condemnee with regard to fixtures when the Condemnee is the land owner. That opinion was not intended to discuss the rights of a lessee with regard to fixtures.
Ga. Code Ann. 61-109 prohibits a tenant from removing permanent fixtures from the leasehold. Therefore, it is the general rule of common law that articles which were attached to the realty by a tenant became a part thereof. See Consolidated Warehouse Co. v. Smith, 55 Ga. App. 216 (1937). There is one exception, however. This exception exists in the case of trade fixtures. A trade fixture is an article which is attached to the realty either physically or constructively which aids and assists the tenant in the carrying on of its business and is an incident thereto. See Armour & Co. v. Block, 147 Ga. 639 (1918); Carr v. Georgia R. R., 74 Ga. 73 (1884).
A tenant's right to removal of trade fixtures is established by the provisions of Ga. Code Ann. 61-110:

"Removal of trade fixtures by tenant - A tenant during the term or a continuation thereof, or while he if> in possession

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under the landlord, may remove trade fixtures erected by him. After the term and possession are ended, they are regarded as abandoned to the use of the landlord and become the latter's property. (68 Ga. 630, 633. 114 Ga. 765, 770 (40 S. E. 747).)"
Thus, it can be seen that ordinarily a tenant is not allowed to remove fixtures which are considered part of the realty, the only exception being with regard to those tenants who are engaged in a trade or business and have erected or constructed fixtures which are physically or constructively attached to the land an<l which are incident to the carrying on of the particular trade or business of the tenant.
The law of eminent domain in Georgia is well established with regard to the rights of::~ lessee in condemnation proceedings. The holder of a lease is entitled to compensation for its injury. See Ga. Power Co. v. Brooks, 207 Ga. 406, at 409 (1950). See also 18 Am. Jur. 865, S 232; Comer v. Newman, 95 Ga. 434 (1895); Pause v. City of Atlanta, 98 Ga. 92 (1896). However, the courts have also held that a lessee is not entitled to recover damages which the owner himself, the landlord, would not be entitled to recover. See State Highway Department v. Bell, 113 Ga. App. 768, 770 (1966).
Therefore, it is my unofficial opinion th::Jt in a condemnation proceeding in which there exists a landlord-tenant relationship, those fixtures which are physically or constructively made a part of the realty, even those which were placed there by the tenant, are to be considered as a part of the realty imd property of the land owner. Therefore, the tenant would not be allowed compensation for such fixtures unless the tenant had, by previous agreement, entered into a written agreement with the landlord that these fixtures were to be considered as personalty of the tenant. The only exception to this rule would be in those cases in which the tenant was engaged in some trade or business and the fixtures in question were used as part of the tenant's business or trade and could be considered as trade fixtures. With regarrl to trade fixtures then, it is my unofficial opinion that these trade fixtures should be considered as property of the tenant. Therefore, in any condemnation proceeding, the tenant would be eligible for relocation moving expenses for these trade fixtures.
With particular regard to the situation at hand in the matter of the R & W Bar & Grill, it is my unofficial opinion that those articles which were listed in your original letter which were used by .the tenant as a part of his business in the bar and grill and which were an incident thereto should be considered in the

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determination of relocation moving expenses.

OPINION 69-123

To: Director, Sales Tax Unit

March 14, 1969

Re: Taxation of bank association with members which are exempt from State taxation - Exemption not transferred.

This is in response to your inquiry whether c;;:outheast Bankcard Association, Inc. is exempt from the Georgia Retailers' & Consumers' Sales & Use Tax Act. According to the information you furnished, the Association is a Georgia corporation organized for the purpose of sharing the expenses of its members, Georgia
state banks and national banks, in processing credit card transactions.
State banks are exempt from the tax to the same extent that National Banks are immune from the tax, Ga. Code Ann. 92-3403a C(2)(h), (Ga. Laws 1953, p. 182). Sales to the United States of America, which include sales to Federal agencies or instrumentalities, are exempt. Ga. Code Ann. 92-3403a C(2)(d), (Ga. Laws 1960, p. 153); Parsons v. National Newark & Essex Banking Co. ofNewark, 31 N.J. Super. 246, 106 A.2d 358 (1954); McCullough v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819). By regulation of the Revenue Department of Georgia, the tax "does not apply to purchases of tangible personal property by national or state banks when such are used exclusively for banking operations." Rev. Reg. No. 560-12-2.111. Thus, the immunity from the tax granted to National Banks is restricted to the operation of the bank doing banking business and does not include non-banking operations. Op. Atty. Gen., 1950-1951, p. 396, citing Graves v. Texas, 298 U.S. 393, 56 S.C. 818, 80 L.Ed. 1236 (1936).
The full extent of the power of a State and the exclusive manner by which a State may tax a national bank is that prescribed by Congress under 12 U.S.C. 548. First Agricultural National Bank of Berkshire Co. v. State Tax Com., 392 U.S. 339, 88 S.C. 2173, 20 L.Ed.2d 1138 (1968); reversing First Agricultural National Bank of Berkshire County v. State Tax Com., 229 N.E.2d 245 (Mass., l967);Bank of California National Assoc. v. Richardson, 248 U.S. 476, 39 S.C. 165, 63 L.Ed. 372 (1919); Northwestern National Bank of Sioux Falls v. Gillis, 148 N.W.2d 293 (S.D., 1967). Under 12 U.S.C. 548 a state may tax either the shares or the net income, and real property of national

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banks located within its limits. There is no provision in this Act allowing a tax upon the purchases and rentals of tangible personal property.
The principle of intergovernmental tax immunity, upheld in the foregoing cases, received a blistering attack by the Supreme Judicial Court of Massachusetts in First Agricultrual National Bank of Berkshire County v. State Tax Com., supra, wherein it was held that a national bank was not an agency of the United States within the meaning of the Massachusetts Sales & Use Tax Act and was subject to the tax. This decision was reversed by the Supreme Court of the United States in First Agricultural National Bank of Berkshire County v. State Tax Com., supra, in a 5-3 decision with Justice Fortas not participating.
Apparently the traditional immunity of national banks from State taxation was discarded in the course of the Supreme Court's ruling. The majority opinion, no doubt, recognized the inherent weaknesses in the doctrine of the constitutional immunity of national banks as federal instrumentalities as it relied instead upon the history of congressional action to show that by legislation ( 12 U.S.C. 548) Congress "intended to prescribe the only ways in which the States can tax national banks." 20 L.Ed.2d 1138, at 1140-42.
It suffices to note here that the trend followed by the courts today is toward an ever increasing restriction upon governmental immunity from taxing power. This trend is consistent with the fact that today most national banks are solely owned and operated by private interests for private profit and perform no significant function of the federal government. For a striking comparison between functions performed by the banks in question in McCullough v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819); Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204 (1824); and, Owensboro Nat. Bank v. Owensboro, 173 U.S. 664, 19 S.C. 537, 43 L.Ed. 850 (1899), the decisions ~pon which the doctrine of constitutional governmental immunity was based, and those performed by present-day national banks, see the dissenting opinion by Justices Marshall, Harlan, and Stewart, (20 L.Ed.2d 1144) and the opinions by the Supreme Judicial Court of Massachusetts in First Agricultural National Bank of Berkshire County v. State Tax Com., supra, and by the Court of Appeals of New York in Liberty National Bank and Trust Co. v. Buscaglia, 21 N.Y.2d 357, 235 N.E. 2d 101 (1967), appeal to the United States Supreme Court dismissed on November 1, 1968, under Rule 60 in light of the reversal of the Massachusetts Court in the First Agricultural National Bank of Berkshire County case, 393 U.S. 957, 89 S.C. 289, 21 L.Ed.2d 371.

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It is upon this background that I tum now to what I consider the vital issue, whether the association is, from the standpoint of this State's power to tax national banks, an entity separate and apart from those banks which were instrumental in its creation and which comprise its membership, and, therefore, not entitled to the same immunity enjoyed by such banks.
According to its charter petition, Southeast Bankcard Association, Inc. referred to herein as the Association, is a Georgia corporation which operates on a non-profit basis. The sole purpose for its existence is to share expenses of its member banks in processing credit card transactions of the member banks. It is empowered to do this by its charter. It is also granted powers to purchase, lease, mortgage and pledge, all types of property necessary or useful for carrying out its purposes, to incur indebtedness, issue notes, bonds and other obligations and to secure the same by mortgage, pledge, deed of trust, or otherwise, to enter into and perform contracts of every kind, plus all necessary and convenient powers to carry out its purposes along with all the rights, powers, privileges and immunities available to non-profit corporations. The Association has no shareholders and no capital stock. No individual including directors and incorporators shall have any interest in the earnings or income of the Association. It is to be governed and managed by a Board of Directors to be elected by the individual incorporators. Upon winding up and dissolution, any assets of the Association remaining after the payment of its obligations shall be distributed to a non-profit fund, foundation or corporation.
In my opinion, the Association is a 'non-conductor' of the immunity of its member national banks. In Irvine v. Spaeth, 299 N.W. 204 (Minn., 1941), the Supreme Court of Minnesota held that the State of Minnesota could tax the dividends paid by a holding company which owned and controlled a large system of state and national banks. In finding that the holding company was ". . .a complete 'non-conductor' of the qualified immunity from state taxation enjoyed by national banks," the court stressed that the holding company could reinvest the dividends it received from its member banks "in any manner within corporate powers of the owner," at page 205. The court distinguished Bank of California v. Richardson, 248 U. S. 476, 39 S.C. 165, 63 L.Ed. 372 (1919), which held that California could not validly include the value of shares of a national bank owned by a State Bank in computing the value of the shares of the latter bank in levying an ad valorem tax upon the stockholders of the State Bank. In comparing the Bank of California case the Minnesota Court stated:

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" ...here, when dividends of national banks become earnings of this local corporation, they lose their character as national bank dividends. They are converted into working capital of a private enterprise, the use of which is subject only to restrictions of local law and the corporate powers of the local owner," at page 206.
Even more persuasive is the holding in Arizona Stato Tax Comm. v. First Bank Building Corporation, 5 Ariz. App. 494, 429 P. 2d 481 ( 1967), that the State of Arizona could validly impose its transaction privilege tax upon the business engaged in by a wholly-owned-subsidiary of a national bank. The tax was upon the rental proceeds of several properties, office buildings which included storage and parking facilities, owned by the subsidiary corporation. Office space was leased to the parent corporation, the First National Bank of Arizona, as well as to other tenants. All of the capital stock of the subsidiary was owned by the parent national bank; the executive committee of the bank also served as the board of directors of the subsidiary and all of its officers were officers of the bank. The subsidiary had no employees and its books were kept by bank employees. The court rejected contentions that ownership of the properties was soley for the benefit and convenience of the national bank and that each of the properties had a direct relationship to the transacting of business by the bank. It based its ruling upon the view that the subsidiary " ...having been created as a separate entity enjoying the benefits of a corporate existence including, among . others, real estate holdings and tax advantages, and although performing functions of importance as a subsidiary of a national bank, the taxing by the commissioner of the business in which it is engaged herein is not such as to impair the operation of said banks as to make it exempt from state taxation within the meaning of the laws giving it the claimed immunity under 12 U.S.C. 548." at page 486.
Here, unlike the holding company in Irvine v. Spaeth, supra, the Association is a non-profit corporation. Yet even though the holding company owned all of the state and national banks in a large system, it was considered a separate and distinct entity from the banks within the context of the power of a State to tax national banks.
The subsidiary corporation, wholly-owned by a national bank, in the Arizona case, was also engaged in business for profit. The executive committee of the bank serves as the board of directors of the subsidiary and all of its officers are also officers of the

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parent bank. Apparently, the authority to manage and control the subsidiary is invested in the same individuals who manage and control the bank. For practical purposes, the subsidiary would act merely as an arm or extension of the parent bank whose officers, wearing different hats, have authority and control over its operation. At best, the subsidiary is a separate entity in name only.
If the subsidiary corporation in the Arizona case is an entity separate and distinct from the parent national bank, surely the Association here, even though engaged in a nonprofit business, is such a separate and distinct entity from its member banks within the context of the power of this State to levy and collect sales and use taxes upon its purchases and rentals of tangible personal property. Such tax would not impair the efficiency of the member national banks in performing their governmental functions which functions have been drastically reduced since the time of the McCullough v. Maryland, supra, decision in 1819. National Bank v. Commonwealth, 76 U.S. 353, 19 L.Ed. 701 (1869).
Because of the foregoing conclusion, it is not necessary to determine whether processing credit card transactions is within the powers of national banks in carrying out banking business.
It is, therefore; my official opinion that the Association is subject to the Georgia Retailers' and Consumers' Sales and Use Tax Act on purchases and rentals of tangible personal property not otherwise exempted by law.

OPINION 69-124

To: Director, State Highway Department

March 14, 1969

Re: Regular wages for accumulated sick and annual leave may be paid during periods compensable under Workmen's Compensation Act.

Please refer to your letter of January 17, 1969, wherein you request my official opinion whether an employee of the State Highway Department who has been extended coverage under the State Merit System of Personnel Administration may be paid workmen's compensation benefits while being paid regular wages for either accumulated sick or annual leave.
It is my official opinion that he may not be paid such benefits while being paid such regular wages, subject to certain exceptions, for the reasons hereinafter discussed.

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DISCUSSION Such an employee may utilize his sick leave upon approval of the appointing authority for absence due to an injury which is compensable under the Workmen's Compensation Act. However, by so. utilizing his sick leave, he is conclusively presumed to have elected to have such sick leave credited on a day for day basis against any award of the Workmen's Compensation Board. Paragraph B.302 of the Rules and Regulations of the State Personnel Board provides in pertinent part:
" .... In case of accidental injury or occupational disease where compensation is payable under the Georgia Workmen's Compensation Act, it shall be conclusively presumed that the employee has elected to utilize accured (sic) sick leave during the period of incapacity, to be credited on a day for day basis as compensation against any award by the State Board of Workmen's Compensation for such incapacity, until the injured employee elects in writing to forego his sick leave privilege and to accept only those benefits authorized by award."
Accumulated annual leave is granted by the appointing authority at such time as will least interfere with the efficient operation of the department, Par. B.201 Rules and Regulations of the State Personnel Board, and the granting of annual leave during a period in which an employee is already incapacitated would seem to be to the advantage of the employer. But, once again, leave taken by the employee and for which regular wages are paid must be credited on a day for day basis against any compensable period determined by an award of the State Board of Workmen's Compensation. This result is mandated by a directive of Governor Ellis Arnall dated February 2, 1945, and issued in his capacity as Budget Director, which directive continues to state the policy of the Budget Bureau that no workmen's compensation shall be paid to an employee for any time for which he has received his regular compensation from the State.
An exception to the foregoing policy would necessarily be made in the case of an employee who sustains a specific member loss under Ga. Code Ann. 114-406, as amended, and who returns to work during such time as he is being paid compensation for that particular industrial handicap. The compensation so provided is not to assuage economic incapacity, but is in the nature of a settlement for permanent and total or permanent partial loss of sight or hearing or of the use of any member covered by that section.

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Should an employee retire, resign, or be involuntarily separated, he is entitled to all accrued annual leave, not in excess of thirty workdays, and, if his termination date is fixed as being prior to the granting of such leave, he is entitled to payment therefor computed on the saine workday basis as a permanent employee remaining in State service. Par. B.202 Rules and Regulations of the State Personnel Board. In that case, and certainly where payment for leave is made to the estate of a deceased employee, the employee is not receiving his regular wages but is being compensated in lump sum as a then vested fringe benefit of prior service.

CONCLUSION Therefore, it is my official opinion that unless an employee is separated from State service or suffers a specific industrial handicap as defmed by Ga. Code Ann. 114-406, as amended, he cannot draw workmen's compensation benefits in addition to . regular wages for sick or annual leave, but instead may utilize his leave to be credited on a day for day basis against any award of the State Board of Workmen's Compensation.

OPINION 69-125 (Unofficial)

To: U.S. House of Representatives, Committee

on Education and Labor

March 17, 1969

Re: Constitution of Georgia precludes a public, elementary or secondary school from contracting with a non-public sectarian school agency for goods or services.

This responds to your letter of March 6, 1969, respecting the above matter.
In Bennett v. City of Lagrange, 153, Ga. 428 (1922), the Supreme Court of Georgia held that a contract for services between the City Council of Lagrange, Georgia and the Salvation Army would take money from a public treasury in aid of a sectarian institution in violation of Art. I, Sec. I, Par. XIV of the Constitution of Georgia (Ga. Code Ann. 2-114) which provides:

"No money shall ever be taken from the public Treasury, directly, or indirectly, in aid of any church, sect, or denomination of religionists, or of any sectarian institution."

In light of the Bennett case, I would anticipate that the Supreme

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Court of Georgia would consider unconstitutional a contract for goods or services between a public elementary or secondary school and a non-public sectarian school. In accord: Op. Atty. Gen. 1962, p. 174.

OPINION 69-126

To: Director, Sales & Use Tax Unit

March 17, 1969

Re: The cost of automobile repair parts purchased under a certificate for re-sale but withdrawn from stock for use in repairing and restoring damaged vehicles is subject to the Georgia Sales & Use Tax Act.

This is in response to your inquiry whether your advice to a taxpayer that the cost of repair parts which are used by a retail motor vehicle dealer to repair and restore damaged vehicles to their original condition is subject to the Georgia Sales & Use Tax Act is correct.
Section 8 of the Georgia Retailers' and Consumers' Sales & Use Tax Act (Ga. Laws 1951, pp. 360, 371; Ga. Laws 1968, pp. 496, 497), (Ga. Code Ann. 92-3410a), provides by its first sentence as follows:

"If a purchaser who gives a certificate makes any use of the property other than retention, demonstration, or display while holding it for sale in the regular course of business, the use shall be deemed a retail sale by the purchaser as of the time the property is first used by him, and the cost of the property to him shall be deemed the gross receipts from such retail sale."

Under the language of this section, the advice you gave is correct. In Merriwether v. State, 252 Ala. 590, 42 So.2d 465 ( 1949), a decision from our sister State of Alabama, the court held that automobile repair parts, sold ostensibly under a wholesale agreement but used to repair automobiles later sold by the purchaser-dealer, were subject to the Alabama sales tax as a retail sale. See also 11 A.L.R.2d 918 for an annotation and review of similar cases.
These authorities support construction of the foregoing section as imposing the sales tax upon the cost of automobile repair parts purchased under a certificate for re-sale but withdraw from stock for use in repairing and restoring otherwise new vehicles damaged in transit or manufacture. Clearly, such a use of the repair parts is

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a use " ...other than retention, demonstration, or display..." within the meaning of the section.
It is, therefore, my official opinion that the advice you rendered to the taxpayer was and still is correct.

OPINION 69 -127

To: State Treasurer

March 17, 1969

Re: Judges: Widows benefits.

This is in response to your letter of March 5, 1969, requesting my official opinion on the above matter.
The 1968 amendment expressly provides that any Judge who elects widow's benefits

" ... 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.

If a Judge makes the election provided for in the 1968 amendment, and complies with all provisions thereof, his widow will be entitled to benefits if, at the time of his death, the Judge was

" . . (1) serving as a Judge Emeritus, or (2) eligible for appointment as Judge Emeritus." Ga. Laws 1968, pp. 275, 277.

I am of the opinion, based upon the foregoing sections, that the widow of a Judge who was not eligible for disability benefits and who had not attained age sixty would not be entitled to the benefits established by Ga. Laws 1968, p. 275.
Your attention is called to Op. Atty. Gen. 68-338. (Official Opinion to Honorable Jack B. Ray, dated August 9, 1968) and Op. Atty. Gen. 68-331 (Unofficial Opinion to
Honorable Sam Phillips McKenzie, dated August 5, 1968) which should assist you with the processing of the pending claim.

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OPINION 69-128

To: Director, Sales Tax Unit

March 18, 1969

Re: Use of bank computers by customers for a consideration, where customers have complete control over operation for an allotted time, is a lease or rental of computers and is subject to the Georgia Retailers' and Consumers' Sales and Use Tax Act.

This is in response to your inquiry whether the use of bank computers by bank customers and by others constitutes a lease or rental of such computers within the Georgia Retailers' and Consumers' Sales and Use Tax Act.
According to information from you, there are at least two different factual situations surrounding the use of the computers. In the first, the bank permits others to 'use' the computers for a consideration, but retains complete control and possession of its computers. Bank employees operate the computers and the customers merely supply the records and information necessary for the job.
In the second, the bank allows others to use its computers for a consideration and the customer, or his employees and servants, are given complete control over the operation of the computers for the allotted time for which the customer pays.
Section 2 of the Georgia Retailers' and Consumers' Sales and Use Tax Act imposes a tax on the sale and the rental of tangible personal property, Ga. Laws 1960, pp. 153, 154, (Ga. Code Ann. 92-3403a). Under Section 3(b) of said Act, Ga. Laws 1951, pp. 360, 363, as amended, (Ga. Code Ann. 92-3403a (B)), a sale is defined as a " ... lease or rental. .. of tangible personal property for a consideration." Section 3(C)3(c) of said Act, as amended, (Ga. Code Ann. 92-3403a (G)), defines lease or rental as " ... the leasing or renting of tangible personal property and the possession or use thereof by the lessee or rentee for a consideration, without transfer of the title of such property."
In the first situation, it is clear that the customers never obtain possession or use of the computers within the meaning of the Sales and Use Tax Act. The customers turn over their records to the bank for processing by the computers. The bank's employees are the only persons who physically use the computers. In carrying out such a job, they might use any or all of the computers and they are not limited to the use of a specified computer under the arrangement with the customer. It is, therefore, my opinon that the bank performs a service in this, the first situation as outlined,

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and does not rent or lease the computers to its customers. In the second situation, the customers obtain possession of the
computer or computers under the arrangement with the bank within the meaning of the Act. The customer, or his employees, have complete control in physically operating the computer or computers for an allotted time period. It has been said that where one has control of tangible personal property for the purpose and with the intent of using it in the manner which, by its nature, it is intended to be used, he has possession of the property. Brown, The Law of Personal Property, 2nd Ed., 10, pp. 21,22 (1936). Here, the customers have such control over the computers.
It is, therefore, my opinion that there is a lease or rental of the computers in only the second situation as mentioned above and this lease is subject to the Georgia Retailers' and Consumers' Sales and Use Tax Act.

OPINON 69-129 (Unofficial)

To: Georgia Historical Commission

March 19, 1969

Re: Historical Society: Federal Dept. of Interior Requirement that Review Board have an Architect as a member.

This is in response to your letter dated March 6, 1969, in which you related that the Georgia Historical Commission can serve as a review board in connection with the evaluation of historical properties in the state of Georgia under the National Historic Preservation Act of 1966. It appears that you have been appointed state liaison officer to wotk with the National Parks Service in this connection, and that the Georgia Historical Commission can serve as the review board for Georgia if it can meet certain requirements of the Department of Interior.
Specifically, your concern involves the fact that the Department of Interior requires that the Review Board have an architect among its membership or available as a consultant. It appears that the current composition of the Georgia Historical Commission does not include an architect and that no new appointments to the Commission will be made in the near future. You relate that the Honorable Ben W. Fortson, Jr., Secretary of State, has indicated that he will be happy to appoint an architect to serve in any capacity which the commission desires, but a question has been raised as to whether such a person could legally be paid on an honorary basis.

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The Georgia Historical Commission is composed of nine individuals appointed by the Secretary of State. Ga. Code Ann. 40-802a. The board is given the authority to employ such assistance, technical, clerical, or otherwise, and such other employees as it deems necessary or proper to the effectual discharge of its duties. Ga. Code Ann. 40-808a.
It appears that the Secretary of State could not legally appoint a tenth member to the Board of Commissioners. However, under the provisions of Ga. Code Ann. 40-808a, it appears that the board is authorized to employ such persons as it deems necessary to the effectual discharge of its duties. Therefore I do not believe that it would be necessary or proper for the Secretary of State to appoint an architect to work with the board, but it does appear that the board has the authority under the law to make whatever arrangements it deems necessary to have an architect available as a consultant at its meetings or for such other purposes as the board may consider appropriate.
Ga. Code Ann. 40-811a (c) provides that the board shall have the power "to coordinate any of its objectives, efforts or functions with those of any 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 commission and to cooperate, counsel and advise with them." In view of this, it appears that the Georgia Historical Commission's cooperating with the Department of Interior would be authorized by law if the objective of such cooperation were designed toward the furtherance of those powers and duties enumerated by law for the Georgia Historical Commission.
In your letter, you did not set out in detail the Federal Program to which you have reference or the objectives of such program as related to the State. However, assuming that the activity embraced in such program and the Historical Commission's cooperation in connection therewith is in keeping with the powers and duties of the Georgia Historical Commission as set out in Ga. Code Ann. 40-811 a, there should be no objection to the Historical Commission making whatever arrangements it sees fit with reference to having an architect assist the board. As aforesaid, such architect will not be a member of the board of commissioners unless appointed by the Secretary of State to fill a vacancy. The question of whether his consultation with the board meets the requirements of the Department of Interior is a question which will address itself to that department.

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OPINION 69-130

To: Director, Sales Tax Unit

March 21, 1969

Re: Transfer of tariff books and mileage guides to a carrier for consideration is a sale of tangible personal property and is subject to Georgia Retailers' and Consumers' Sales and Use Tax Act.

This is in response to your inquiry whether purchases of tariff books and mileage guides by a common carrier are, in fact, purchases of tangible personal property or merely service transactions within the meaning of the Georgia Retailers' and Consumers' Sales and Use Tax Act.
The Act, which imposes a tax upon the sale of tangible personal property, defines a sale in Section 2(c)2(a) thereof, as not including " ... personal service transactions which involve sales as inconsequential elements for which no separate charges are made..." Ga. Laws 1951, pp. 360, 365, (Ga. Code Ann. 92-3402a C(2)(a)).
From the information furnished by you, the following material facts appear: Title to and possession of the tariff books and mileage guides passes to the carrier; the information contained in these materials is not confidential; the carrier distributes the books and guides to its various branches and agents; the books and guides have value for only a year when they are discarded by the carrier and replaced by new ones from the distributor.
In Superior Type, Inc. v. Williams, 98 Ga. App. 89, 105 S.E.2d 14 (1958), the court in construing Ga. Code Ann. 92-3403a C(2)(a), supra, held that where a commercial printer obtains metal type known as "make-up" from a typesetter who has performed skilled labor upon the type to reproduce copy for the printer's customers and the "make-up" has no value except for the particular job and customer, the transaction was for personal services and was not a sale of tangible personal property. The court stressed that the type was useful to the printer"... for the single purpose of printing a customer's order ..." and it was thereafter reduced to scrap, at p. 94. The court further held that metal plates used in lithoplating photoengraving by the printer was sold to his customers as the latter had the right to possession of the plates, and, therefore, the transaction was not merely for personal services. Here, the tariff books and mileage guides provide information not only useful to the carrier in question but useful to other carriers as well. These materials are not custom made for the carrier for a single particular purpose. Moreover, title and

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possession of these books and guides is transferred to the carrier. The importance of title along with other considerations was
noted by the Court of Appeals of New York in Dun & Bradstreet, Inc. v. City of New York, 276 N.Y. 198, 11 N.E.2d 728 (1937), wherein it was held that the transfer of reference books to subscribers of Dun & Bradstreet was not a sale of tangible personal property but the rendering of a service. The court emphasized that title to the books remained in Dun & Bradstreet, that the information contained in the books was confidential as the subscribers were expressly forbidden to let anyone else see or use the books; that the subscribers were cautioned not to rely upon the ratings given in the books but to consult detailed reports in possession of Dun & Bradstreet, that no charge is made for use of the reference books separate and apart from the charge for services rendered and the books cannot be obtained any other way. In still another case involving the transfer of informational books and materials, Community Telecasting Service, d/b/a WABI Television v. Johnson, 220 A.2d 500 (Me., 1966), it was held that the transfer of booklets containing information as to television viewing and audience composition to a television broadcaster was not a sale of tangible personal property but a service transaction. As in Dun & Bradstreet, Inc. v. City of New York, supra, the information provided was confidential. The market for the reports was extremely limited and had "intrinsic value only for a limited time and only to merchandisers by television in the geographical area covered." at p. 506. The Maine court pointed out that the price for the transaction was in four figures and that it would be absurd to view it as a sale of the booklets for $50.00 each in the case of one television market surveyor and $994.50 each in the case of the other surveyor.
The transfer of the mileage guides and tariff books is materially distinguishable from the transaction in the two previously mentioned cases. Unlike the transactions in either case, the information provided is not confidential.
Furthermore, the books and guides and information therein are not valuable only as to the particular customer or as to one particular job or transaction as were the "make-ups" in Superior Type Co. v. Williams, supra.
For the foregoing reasons, it is my official opinion that the transfer of tariff books and mileage guides to a carrier, for a consideration, is a sale of tangible personal property subject to the tax imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act.

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OPINION 69-131 (Unofficial)

To: Commissioner of Roads & Revenue Telfair County

March 21, 1969

Re: Duties of deputy sheriffs and special deputy sheriffs; counties' liability for their negligent acts.

This is in reply to your letter dated March 4, 1969, in which you asked five questions relative to deputy sheriffs and special deputy sheriffs.
The Sheriff of Telfair County has authority to appoint deputy sheriffs and special deputy sheriffs. Ga. Code Ann. 24-2811, Ga. Laws 1965,p.2923,Ga.Laws 1945,p. 1152.
A deputy sheriff appointed pursuant to Ga. Code Ann. 24-2811 is the "general agent of the high sheriff, to do and perform all acts which by law appertain to his office." American Surety Company v. Smith, 55 Ga. App. 633,644 (1937). In other words, a bona fide deputy sheriff appointed pursuant to this code section is authorized generally to execute the duties of the office of sheriff.
A special deputy sheriff appointed pursuant to Ga. Laws 1945, p. 1152 is authorized to "devote his entire time to making investigations, and assembling information concerning the returning, paying and collection of taxes due the county." Id. at 1153.
A county may purchase liability insurance to cover damages on there is a law which in terms or by implication so declares. County of Monroe v. Flint, 80 Ga. 489 (1888); Mills v. Chatham County, 27 Ga. App. 223 (1921).
A County may purchase liability insurance to cover damages on account of bodily injury or death to any person or damages to property of any person arising by reason of ownership, maintenance, operation or use of any motor vehicle by such county. In the event of purchasing such insurance, the governmental immunity of the county shall be waived to the extent of the amount of insurance so purchased. Georgia Constitution Art. VII, Sec. VI, Par. III, (Ga. Code Ann. 2-5902,) Ga. Code Ann. 56-2437.
It is my unofficial opinion that a regularly appointed deputy sheriff may perform such acts as may lawfully be performed by a sheriff. A special deputy sheriff appointed pursuant to Ga. Laws 1945, p. 1152 is authorized to investigate the collection of taxes.

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If Telfair County has purchased liability insurance pursuant to Ga. Const. Art. VII, Sec. VI, Par. III, then the county is liable as provided to the extent of this insurance coverage. Otherwise, unless provided by statute, the county is not liable for the negligent acts of its servants. My research indicates there are no other statutes that make the county liable for the negligent acts of deputy sheriffs or special deputy sheriffs.

OPINION 69-132

To: Director, Sales & Use Tax Unit

March 24, 1969

Re: Taxation: Resident subsidiary does not cause non-resident mail order subsidiary of same parent corporation to be subject to Retailers' and Consumers' Sales and Use Tax Act.

This is in response to your inquiry whether a non-resident, foreign corporation, which engages in a mail order business on a national scale, including Georgia, would be liable for collection of the tax under the Georgia Retailers' and Consumers' Sales and Use Tax Act on mail orders to Georgia purchasers.
From the information you have supplied, the mail order corporation is a wholly owned subsidiary of a non-resident parent corporation. The parent corporation contemplates establishing retail stores in Georgia to be owned and operated by a second wholly owned subsidiary corporation organized under Georgia law. These stores will not perform any services to or for the benefit of the mail order firm. Solicitation of mail order sales is accomplished primarily through catalogs mailed to Georgia residents and through advertisements in national magazines.
Section 4 of the Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. Laws 1953, pp. 191, 192, provides that taxes imposed by the Act shall be collectible from dealers and defines the term dealer to mean and include:

". . . every person who solicits business either by representatives or by the distribution of catalogs or other advertising matter and by reason thereof receives and accepts orders from consumers in the State of Georgia..."Ga. Code Ann. 92-3403a(8).

The controlling issue raised by the foregoing question is whether the mail order corporation, the first subsidiary, would become a "dealer" under this provision by reason of the activities

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of the second subsidiary's stores located in Georgia. In a series of decisions by the United States Supreme Court beginning with Felt & Tarrant Mfg. Co. v. Gallagher, 306 U.S. 62, 59 S.C. 376, 83 L.Ed. 488 (1939), and culminating with Scripta, Inc. v. Carson, 362 U.S. 207, 80 S.C. 619, 4 L.Ed.2d 660 (1960), the court validated the power of states to collect use taxes, under their sales and use tax statutes, from non-resident sellers. The transactions were taxable where a "minimum contact" between the seller and the taxing state existed. In Scripta, Inc. v. Carspn, supra, it was held that solicitation of sales in Florida for a non-resident corporation by brokers or jobbers, even though they were not strictly agents or employees of the non-resident corporation, was a sufficient minimum contact to subject the corporation to the Florida taxing statute.
Whether the mail order corporation would be liable as a dealer depends upon the nature of the activities of the stores of the second subsidiary, with specific regard to their role, if any, in soliciting business for the mail order corporation.
In my official opinion, if these stores do not perform any services directly to or for the benefit of the mail order corporation, nor act as an agent or instrumentality thereof, the latter corporation would not be liable as a dealer for collection of the tax under the Georgia Retailers' and Consumers' Sales and Use Tax Act.

OPINION 69-133 (Unofficial)

To: County Attorney for Taliaferro County

March 24, 1969

Re: Vacancy in Office of Commissioner of Taliaferro County.

You advise that one of the Commissioners on the three-man Board of Commissioners of Taliaferro County died and there now exists a vacancy on the Board which must be filled. A local law passed in 1945 provides that the remaining members of the Board shall elect someone to fill the vacancy for the unexpired term or until the next general election, whichever occurs first. Ga. Laws 1945, pp. 804, 805. Apparently, the two remaining members of the Board are hopelessly deadlocked and cannot agree at this time on an appointee. You wish to know whether the application of Ga. Code Ann. 23-922 can resolve this impasse.

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Unfortunately, Ga. Code Ann. Ch. 23-9 and its various sections only apply to those counties which have adopted the county manager form of county government. Ga. Code Ann. 23-924. For the procedure to be followed in establishing such a government, see Ga. Code Ann. 23-924, 23-925. If Taliaferro County has adopted the county manager form, then it can apply Ga. Code Ann. 23-922. Otherwise, it may not. I further doubt that Ga. Code Ann. 23-80 1 can be applied since it is limited by its own terms to those counties in which the special Act creating the Board makes no provision for succession to fill such vacancy whereas Taliaferro County's Act has such a provision, although you are at the present experiencing difficulty in applying it.

OPINION 69-134 (Unofficial)

To: Clerk, Bulloch Superior Court

March 24, 1969

Re: A filing officer must hold termination statements at least one year after the filing of the statements.

You wish an unofficial ruling on the length of time you must hold a termination statement given pursuant to the Uniform Commercial Code.
The Uniform Commercial Code provides that unless a filing officer has notice of an action pending relative to a termination statement, he may remove from the files and destroy the statement one year or more after its filing so long as he neither removes from the files nor destroys any index of such statement. Ga. Code Ann. 109A-9--408(b).
It is my unofficial opinion that the above law requires that a filing officer must hold the termination statement at least one year after its filing.

OPINION 69-135

To: Traffic and Safety Engineer

March 24, 1969

Re: Establishment of speed zone.

This is in reply to your letter of February 10, 1969, asking what steps can be taken concerning the raising of the speed limit on State Route 54 through Lake City. As I understand the problem,

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the State Highway Department has made an engineering study of the speed zones on State Route 54 in Lake City and has requested that the city adopt an ordinance that will implement the suggested speed limits. It is my understanding that the existing speed limits within the municipality are lower than those requested by the State Highway Department.
After careful study of the problem and the applicable statutes involved, it appears that the Director of Public Safety and the State Highway Board have been given the power, under Ga. Code Ann. 68-1627, to lower but not raise a lawfully existing speed limit established within a municipality. The applicable part of the statute states that "Whenever the Director of Public Safety and the State Highway Board . . . upon their own initiative, shall determine ... that any lawful speed limit ... is greater than is reasonable or safe under the conditions found to exist on any State Highway or upon any extension thereof within a municipality, . . . said director may determine and declare a reasonable and safe lawful speed limit thereon ..."The silence of this statute in respect to delegating the power to raise a speed limit would seem to indicate that the legislature did not intend to grant this power to the Director of Public Safety and the State Highway Board.
The municipal authority itself may determine that a certain speed limit within its jurisdiction is greater or less than is reasonable or safe under the conditions found to exist on the basis of an engineering and traffic investigation. In such case, the local authority may declare a reasonable and safe lawful speed limit under Ga. Code Ann. 68-1628(a).
It appears that the only other method for raising a speed limit established by a municipal authority is to follow the procedure established by Ga. Code Ann. 68-1628(b).
From that section it appears that complaint must first be made to the Governor that the speed limit is either arbitrary, unreasonable, or is being enforced primarily for the collection of revenue rather than for purposes of public safety. The Governor then has discretion as to whether or not to direct an investigation. If he does direct an investigation and a recommendation is made that the power to enforce speed limits be restricted, then a hearing is held and the Governor can then issue his executive order suspending the power of the local authority to enforce speed limits on state highways within its jurisdiction. In such event, the Governor must then direct the Director of Public Safety to enforce the speed limits on such highways.

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OPINION 69-136 (Unofficial)

To: County Attorney

March 25, 1969

Re: A Contract between a county and the Y.M.C.A. to furnish recreational facilities would violate the Constitution of Georgia.

This will acknowledge receipt of your letter whereby you requested an opinion on the legality of a county contracting with the Y.M.C.A. to provide recreational facilities and programs for the children of a particular county.
In your letter you stated that the Y.M.C.A. would charge a nominal membership fee to cover the cost of administrative record keeping and that the county would supplement the revenues thus obtained by the Y.M.C.A. primarily from the resources of the United Fund.
In your letter you noted the provisions of Ga. Code Ann. 2-114 (Art. I, Sec. I, Par. XIV, Constitution of Georgia) as possibly causing the Y.M.C.A. to be an inappropriate party to such a contract. As you know said constitutional provision provides:

No money shall ever be taken from the public Treasury, directly, or indirectly, in aid of any churc~, sect, or denomination of religionists, or any sectarian institution.

In 1922, the Georgia Supreme Court held in Bennett v. City of LaGrange, 153 Ga. 428 (1922), that a contract for services between the City Council of LaGrange, Georgia, and the Salvation Army would take money from a public Treasury in aid of a sectarian institution in violation of the above-quoted constitutional provision.
In an unofficial opinion of the Honorable Arthur K. Bolton, Attorney General of Georgia, dated March 17, 1969 [Op. Atty. Gen. 69~125 j, Mr. Bolton advised a United States Representative that:

In light of the Bennett case, I would anticipate that the Supreme Court of Georgia would consider unconstitutional a contract for goods or services between a public elementary or secondary school and a non-public sectarian school. In accord: Op. Atty. Gen. 1962, p. 174.

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Thus, in conclusion, it is my unofficial opm10n that the Y.M.C.A. would be an inappropriate party to such a contract as you have described since the Y.M.C.A. is probably a sectarian institution within the hereinabove quoted constitutional provision and the taking of funds from the public Treasury of the county either directly or indirectly to make payments pursuant to such a contract would violate said constitutional provision.

OPINION 69-137

To: Surface Mined Land Use Board

March 25, 1969

Re: Applicability of Surface Mining Act of 1968 to counties and municipalities.

Please refer to your letter of March 17, 1969, wherein you request my official opinion regarding the applicability of the Surface Mining Act of 1968, Ga. Laws 1968, pp. 9 to 19, to counties and municipal corporations of the State.
The State is not bound by the passage of a law unless named therein, or unless the words of the Act should be so plain, clear and unmistakable as to leave no doubt as to the intention of the legislature. Ga. Code Ann. 102-109. This rule extends to counties and municipal corporations as political divisions of the State exercising a portion of her sovereignty. Lingo v. Harris, 73 Ga. 28 (1884).
The Surface Mining Act of 1968 applies only to ". . . any person, firm, partnership, association or corporation engaged in and controlling one or more surface mining operations." Section 3 U), Ga. Laws 1968, pp. 9, 12. For purposes of the Act, "surface mining" is defined as the "mining of ores or mineral solids for sale or for processing or consumption in the regular operation of a business . . . ." Section 3(a), Ga. Laws 1968, pp. 9, 11. The foregoing language is susceptible of the construction that only private, nongovernmental corporations are to be bound thereby, and such language therefore does not manifest a plain, clear and unmistakable intent of the legislature to apply the Act to political divisions of the State. See e.g., Georgia Public Serv. Com. v. Albany, 180 Ga. 355, 364 (1934). Although the Act does specifically exempt certain activities of the State Highway Department from the provisions thereof (Ga. Laws 1968, pp. 9, 19, section 12), any implication of this exclusion is insufficient to

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remove all doubts regarding whether the General Assembly desired that the Act apply to other departments and divisions of the State.
Therefore, it is my official opinion that the provisions of the Georgia Surface Mining Act of 1968 do not apply to counties and municipalities of the State.

OPINION 69-138 (Unofficial)

To: Society of Real Estate Appraisers

March 25, 1969

Re: Measure of damages in condemnation case is market value of the property actually taken and consequential damages to remainder offset by specific benefits, if any; in appropriate cases where property has special and unique value, other items, such as loss of profits and moving expenses, may be considered.

Your recent letter addressed to the Attorney General has been forwarded to the undersigned for reply. In your letter you request the legal basis for just and adequate compensation under the eminent domain laws of the State of Georgia.
The general rule in this State is that the measure of damages for property taken under the eminent domain laws is the market value of the same. See State Highway Department v. Stewart, 104 Ga. App. 178, at 183 (1961). It is stated in the case of Central Georgia Power Company v. Mays, 137 Ga. 120, 123 (1911) that:

" ... The market value of property is the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who is under no necessity of having it...."

However, it is recognized in this State that there may be circumstances in which market value will not afford just and adequate compensation, i.e.; the property may have some special and unique economic value to the owner alone. If this be the case, the jury may consider such value in arriving at what is just and adequate compensation for the land taken. See Housing Authority of Savannah v. Savannah Iron & Wire Works, Inc., 91 Ga. App. 881 (1955);Housing Authority of the City of Atlanta v. Troncalli, 111 Ga. App. 515 (1965). To authorize the jury to consider such a

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special or unique value to the owner, however, it must appear from the evidence not only that the property is peculiar or unique, but that the relationship of the owner thereto is peculiar or unique, i.e.; that it is property having value peculiar or unique to the owner only, without possible like value to others who might acquire it. See City of Gainesville v. Chambers, 118 Ga. App. 25 (1968); and City of Gainesville v. Appleby, 118 Ga. App. 25 (1968).
In other words, the determination of what is just and adequate compensation with regard to the land actually taken is not in all cases limited to the property's value as a mere piece of realty or improved realty, e.g.; the taking of a piece of realty may carry with it an established business in a unique location, the loss of which will be attended with a loss of profits, loss of business and moving expenses. Thus, in an appropriate case, just and adequate compensation for land actually taken may include its market value at the time of the taking plus additional items. See Bowers v. Fulton County, 221 Ga. 731 (1966). The measure of consequential damages to the remainder is a diminution, ifany, of the market value of the remainder in its circumstances just prior to the time of taking compared with its market value in its new circumstances just after the time of the taking, less specific benefits from the public improvement which may be offset against consequential damages to the remainder. Central Georgia Power Company v. Mays, supra; and Stansell & Rape Brothers v. City of McDonough, 50 Ga. App. 234 (1934).

OPINION 69-139

To: Sales and Use Tax Unit

March 26, 1969

Re: A manufacturer of personal property for sale is subject to Georgia sales tax on his use of such manufactured goods based on fair market value of goods at time of use.

This is in reply to your request for an official opinion as to the sales tax consequence of a manufacturer of asphalt, who is engaged in the business of manufacturing asphalt for sale, using such goods as a consumer-contractor.
The Georgia Sales Tax Act was amended in 1968 by adding to the Act the following:

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"(a) If a person who engages in the business of processing, manufacturing or converting industrial materials into articles of tangible personal property for sale, whether as custom made or stock items, makes any use of such an article other than retaining, demonstrating or displaying it for sale, such use shall be deemed a retail sale as of the time such article is first used by him and its fair market value at such time shall be deemed the sales price of such article. If the sole use of such article other than retaining, demonstrating or displaying it for sale is the rental of such article while holding it for sale, the processor, manufacturer or converter may elect to treat the amount of the rental charged rather than the fair market value of such article as its sales price." (Ga. Laws 1968, p. 496; Ga. Code Ann. 92-3410a(a)).
You have referred to an asphalt dealer-user in your request for the opinion and you have advised that the Revenue Department regards asphalt as a manufactured product.
Generally, a person or company engaged in building permanent pavements, such as driveways, streets or parking areas, is not a manufacturer. In re Koss Const. Co., 241 N. W. 495, 214 Iowa 125, 497. The 1968 amendment clearly applies only to those who manufacture personal property for sale and a company engaged in building pavements is not engaged in making personal property for sale. The production of plant mix which usually is made by mixing asphalt with sand and gravel is the manufacture of tangible personal property. City of Wauwatosa v. Strudel/, 6 Wis. 2d 450, 95 N. W. 2d 257. Should a manufacturer of plant mix engage in the business of selling such products, then any other use made by the manufacturer of the plant mix would be subject to the Georgia sales tax based on the fair market value of the product at the time ofits use.
You will note that the manufacturer must be engaged in the business of selling the product manufactured.
A manufacturer who makes only a casual or isolated sale is not engaged in the business of 'manufacturing such product for sale. There must be an element of continuity or habitual practice. Novak v. Redwine, 89 Ga. App. 755 (1954).

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OPINION 69-140 (Unofficial)

To: Private Inquirer

March 26, 1969

Re: Registration of Physician's Investment Digest With Georgia Commissioner of Securities.

This will acknowledge your recent letter whereby you stated that you plan to publish a consensus type stock market magazine for physicians entitled "Physician's Investment Digest" which will be published in New Jersey and circulated nation-wide. Also, you stated that you have registered the magazine with the United States Securities Exchange Commission under the Investment Advisors Act of 1940. By said letter, you inquired as to whether it would be necessary to register the magazine in Georgia.
By later correspondence, you furnished additional information concerning the registration of your magazine whereby you stated that:

This publication will offer no investment advice! It will merely contain a digest of current stock market statistics and information. It should, therefore, be treated no differently than: Forbes, The Wall Street Report, Financial World, the Dow Digest, Investors Intelligence, and other similar investment magazines.

The Georgia Securities Act of 1957, as amended, is found in Ga. Code Ann. 97-101 to 97-116, and 97-9901.
Under the present Georgia Securities Act, no provision is made for the registration of securities and stock market publications. Additionally, at present, no rules, regulations or policies of the Georgia Commissioner of Securities require the registration of stock market publications such as that described in your correspondence with this office. Therefore, it is my unofficial opinion that under the present Georgia Securities Act, as well as the rules, regulations and policies of the Georgia Commissioner of Securities presently in force, no registration of the magazine which you plan to publish is required under the laws of Georgia concerning securities.

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OPINION 69-141

To: State Planning Officer

March 28, 1969

Re: Counties and certain municipalities may enter into cooperative agreements for purchase and use of riot control equipment, but such joint programs may not be administered by area planning and development commissions.

This is in response to your recent request for an opinion as to whether counties and municipalities may enter into cooperative agreements with each other for the purchase and use of equipment to be employed in jointly administered riot control programs. Additionally, you have asked, should this question be answered in the affirmative, whether an area planning and development commission could coordinate and administer such programs.
Art. VII, Sec. VI, Par. I of the Georgia Constitution (Ga. Code Ann. 2-5901) permits counties and municipalities to contract with one another for a period not exceeding 50 years for purposes authorized by law for each to undertake. Op. Atty. Gen. 1963 -
June 14, 1965,p. 273. Pursuant to Art. VII, Sec. IV, Par. II of the Georgia
Constitution (Ga. Code Ann. 2-5702), each county is authorized to establish and maintain a police department. In my opinion the purchase of riot control equipment would be considered by the courts to be incidental to the maintenance of a police department. Inasmuch as such equipment is a facility within the meaning of Ga. Code Ann. 2-5901, it is my opinion that counties may contract freely with one another for its joint purchase and use for any period up to 50 years.
However, I am unaware of any provision of general law permitting municipalities to establish and maintain police departments. If a particular municipality has this power, it is solely by virtue of a specific grant contained in its municipal charter, either as passed by the General Assembly or as amended by the municipal governing authority under "The Municipal Home Rule Act of 1965," Ga. Laws 1965, p. 298.
Therefore, in answer to your first question, it is my official opinion that all counties and those municipalities having the requisite charter authority may enter into cooperative agreements with one another for the purchase and use of equipment to be employed in jointly administered riot control programs.
I am unaware of any law which would empower an area planning and development commission to coordinate and

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administer such programs. Generally speaking, commissions of this type have no powers beyond those granted by express constitutional or statutory provision or necessary implication. See Ga. Code Ann. 2-7801 and 81 C.J.S. States 58. I am of the opinion, therefore, that your second question must be answered in the negative.

OPINION 69-142 (Unofficial)

To: Lawyers Title Insurance Corporation

March 28, 1969

Re: The general repealer clause of an Act of the General Assembly does not vary the effective date of the Act.

You have requested an informal opinion of the Department of Law on a question which has arisen affecting the practice of title attorneys in Georgia. Numerous bills have already been passed this year which changed the real property law of Georgia. Although these bills do not specify a different effective date from the date fixed by law, Ga. Laws 1968, p. 1364 (Ga. Code Ann. 102-111), you wish to know whether the general repealer clause of these real property bills would operate to make these bills immediately effective.
Georgia law now provides that unless a different effective date is specified in an Act, any Act becoming law on or after the first day of January and prior to the first day of July shall become effective on the first of July and any Act becoming law after the first day of July and prior to the first day of January of the succeeding calendar year shall become effective on the first day of January. Ga. Laws 1968, p. 1364 (Ga. Code Ann. 102-111). The standard general repealer clause of a bill provides as follows:

"All laws and parts of laws in conflict with this Act are hereby repealed."

When construing a statute, the construction must square with common sense and sound reasoning. Blalock v. State, 166 Ga. 465, 470 (1928). I've seen very, very few Acts passed by the General Assembly in recent years which do not contain the above repealer language or language substantially similar to it. If I should construe the repealer language as necessitating an immediate effective date, this construction would render nugatory the 1968 Act on effective dates.

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In addition, since the repealer clause is part of the Act, the repealer clause itself does not become effective until the effective date provided in the 1968 Act. This would seem to resolve the apparent inconsistency you have noted in the language since no one doubts that upon an Act becoming effective, the repealer language does repeal all prior inconsistent legislation.
You point out that someone may question whether one legislature can impose limitations on the powers of a later legislature. I do not view the 1968 Act as a limitation since any future legislature can, of course, repeal or change the 1968 Act if it so desires. You note that others may contend that such a provision must be embodied in the State constitution rather than in a legislative Act. I agree that someone may well argue these points, but that I would not be swayed by these arguments unless a court declares an opposite result in a final judgment.
It is therefore my unofficial opinion that the general repealer clause of an Act of the General Assembly does not vary the effective date of the Act as provided by the 1968 Act discussed above.

OPINION 69-143 (Unofficial)

To: Senator, 46th District

March 28, 1969

Re: In absence of contrary Constitutional provision, a bill calling for a referendum may require 50% of the people to vote before referendum is valid.

You requested my unofficial opinion on whether it is legal to put a requirement in a bill calling for a referendum in a county that at least 50% of the people must vote before the referendum is valid.
While I have found no Georgia authority directly on this point, I have come upon a case, Grant v. Houston, 170 Ga. 414 (1930), in which the Supreme Court had under consideration an Act similar to the one you propose. This act provided for a referendum in which a majority of the qualified voters of the county were required to participate before the referendum would be valid. While the Georgia Supreme Court did not directly pass on the legality of this section, the Court did construe this section and made no mention that such a provision was contrary to law. I have found no other Georgia authority which would prohibit such a requirement in a bill calling for a referendum.

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Further, my research has not uncovered any state in the Union which would invalidate such a requirement as you propose. In a special proceeding where the Supreme Court renders opinions to the Governor, Rhode Island decided that where the subject matter of the referendum is not otherwise controlled, either expressly or by necessary implication, by a constitutional provision, the general assembly may provide in the Act calling the referendum the precise kind of majority which is necessary for approval. In re Opinion to the Governor, 74 R.I. 745, 58 A.2d 559 (1948). Florida has also upheld an Act requiring ratification by the majority of freeholders who were qualified electors residing in a particular city. State v. City of Port St. Joe, Fla. 47 So.2d 584 (Fla. 1950).
This discussion, of necessity, has been general in nature and it is possible that a particular instance would change the result because of an intervening fact or Constitutional provision. Further, if you contemplate initiating such legislation, I would suggest that you further define the word "people" since some of the cases I read criticized the legislation because it was too vague and did not provide exactly what was meant by "people," i.e. whether the total population, those citizens over eighteen years of age, those citizens qualified to vote, etc.
However, generally it is my unofficial opinion that in the absence of any contary Constitutional provision, a bill calling for a referendum may require at least 50% of the "people" to vote before the referendum is valid.

OPINION 69-144 (Unofficial)

To: Private Inquirer

April 2, 1969

Re: A judgment in an action on a contract whereby a person promised to pay a claim for tort damages is not sufficient to authorize the release of a security deposit under Ga. Code Ann. 92A-611.

The law provides that the operator and owner of a motor vehicle coming within the safety responsibility laws is to furnish security sufficient to satisfy any judgments for damages or injuries resulting from the accident as may be recovered on behalf of any person aggrieved. Ga. Code Ann. 92A-605(a). The applicable law further provides that the security deposited shall be applied only to the payment of a judgment rendered against the person on

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whose behalf the deposit was made for damages [arising out of the accident] in question in an action at law. Ga. Code Ann. 92A-611. Construing the pertinent sections to~gether, it is the writer's unofficial opinion that the Department is authorized to accept and disburse security for the purpose of paying judgments which might be rendered, or which had been rendered, against the person on whose behalf the deposit was made for personal-injuries and property damages directly resulting from the motor-vehicle incident.
The cause of action which may arise out of a motor-vehicle incident within the reach of the safety-responsibility laws necessarily arises or accrues at the time liability is thereupon fixed. In said cases, it is difficult to conceive of a situation in which damages ex contractu could arise out of liability incurred at the time of the motor-vehicle incident.
An examination of the contract forming the basis of the judgment presented to the Department reveals that the contract is a separate and distinct liability undertaken by the obligors at a time subsequent to their having incurred liability based on the motor-vehicle incident. The contract is not a release extinguishing the initial liability. Therefore, the judgment based upon the contract does not constitute a judgment adjudicating liability on a motor-vehicle incident. It is the writer's unofficial opinion that a judgment based upon such an instrument is not a judgment for damages arising out of the accident in an action at law so as to form a basis for disbursement under Ga. Code Ann. 92A-611.
It is the writer's unofficial opinion that a release extinguishing liability so as to preclude judgments for damages arising out of the accident coupled with an authorization duly executed by the person or persons on whose behalf the deposit to the Department was made will authorize the Department to disburse these funds.

OPINION 69-145

To: State Highway Department

April2, 1969

Re: A conveyance of property as a right of way by Urban Renewal of a city to the State Highway Department is not subject to the Georgia Real Estate Transfer Tax.

This is in response to your letter of March 25, 1969, wherein you requested an opinion as to whether or not when certain properties are acquired by Urban Renewal, an agency of the City of Athens, and later a portion of said properties are transferred to

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the State Highway Department as a right of way by the City of Athens, the conveyance is subject to the Georgia Real Estate Transfer Tax?
Ga. Code Ann. 92-803 exempts certain instruments. The pertinent part of said section states:

"The tax imposed by section 92-801 shall not apply ...to any deed of gift or 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: Provided, however, this exemption shall not apply to any profit-making public corporation and in order to exercise the exemption the total consideration of the transfer shall be shown: ...."

Therefore, it is my official opinion that the above conveyance would not be subject to the Georgia Real Estate Transfer Tax.

OPINION 69-146

To: Director, Sales & Use Tax Unit

April 2, 1969

Re: Sales tax-Sale and lease of property located or to be used outside of the State still subject to tax.

This is in response to your request for my review and advice concerning an audit of a manufacturing company and a brief filed on behalf of said company attacking, on several grounds, the position of your Department that sales and rental transactions, hereinafter set forth, are subject to the Georgia Retailers' and Consumers' Sales and Use Tax Act.
(a) With regard to that portion of the audit based upon sales of materials by the manufacturing company to the buyer, a construction company, to be used at job sites located outside Georgia, it appears that delivery of the materials is accomplished by placing them on barges pushed by tug boats which transport them to the out-of-state job sites where they are put to use.
It is contended that the manufacturing company retained control and possession of the tugs and their crews, as well as title to the materials and equipment until they reached the out-of-state job sites. However, the audit revealed rental invoices in which the manufacturing company billed the construction company for rent for a named tug boat for a stated month and year within the

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proposed taxable periods. Other records show that the manufacturing company billed the construction company for compensation for the crews of the tugs. Virtually all of the barges used in delivering the materials were either owned by the construction company or leased by that company from another firm. If the tugs, as shown by the rental invoices, were leased or rented, they were under the control of and in the possession of the construction company and would be instrumentalities of that company in accepting and making delivery of the material and equipment to the out-of-state locations. Section 3(C)3(c) of the Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. Laws 1951, pp. 360, 367 (Ga. Code Ann. 92-3403a(G)), defining a lease or rental; Brown, The Law of Personal Property, 2nd Ed., 1936, 10, pp. 20, 22; Employer's Liability Assurance Corp. v. Smith, 86 Ga~ App. 230, 71 S.E.2d 289 (1952). That the crews were in the regular employ of the manufacturing company is immaterial si:t;tce. a loaned servant becomes the servant of the person to whom lent, in this case, the construction company. Liberty Mutual Insurance Co. v. Neal, 55 Ga. App. 790, 191 S.E. 393 (1937).
The F.O.B. job site language used in connection with the shipments raises but a presumption of an out-of-state delivery which is rebuttable by conduct and dealings of the parties indicating a contrary intention. California Vegetable Growers v. U S., 194 F.2d 929 (9th Cir., 1952); 2 Williston on Sales 280a, p. 101. The records of the parties show that they intended to establish a lessor-lessee relationship which is contrary to the F.O.B. language as the lessee would have possession and control of the tugs and their crews who would act as agents of the lessee accepting delivery in Georgia.
(b) There appear to be three different kinds of rental arrangements subject to the audit as follows:
(1) The rental contracts are signed and completed in the offices of the parties in Savannah, Georgia, but the property rented is located outside Georgia, is tranferred to the rentee outside Georgia, and is used exclusively outside Georgia.
These rental agreements are taxable transactions under the Georgia Retailers' and Consumers' Sales and Use Tax Act. In construing Section 2 of the Act imposing a tax on the rental or leasing of tangible personal property, Ga. Laws 1960, pp. 153, 155 (Ga. Code Ann. 92~3402a (c)), the Court of Appeals stated:
"When used with reference to tangible personal property the word 'lease' means a contract by which one owning such

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property grants to another the right to possess, use and enjoy it for a specified period of time in exchange for the periodic payment of a stipulated price, referred to as rent. It is unquestionably in this sense that the term is used in the Georgia Retailers' and Consumers' Sales and Use Tax Act, and it is undoubtedly in this sense that it was used in the contract in question." Undercofler v. Whiteway Neon Ad, Inc., 114 Ga. App. 644, 645(2), 152 S.E.2d 616 (1966).
Although physical possession of the rented equipment is delivered outside Georgia, the rental contracts which grant to the lessee or rentee "the right to possess, use and enjoy" it were completed fully within Georgia. It is the grant of such right which is a taxable event under the Act.
The fact that the property is used outside of Georgia, or even in interstate commerce, is immaterial to the taxability of the lease agreements under the Act. Oxford v. Blankenship, 196 Ga. App. 546, 127 S.E.2d 706 (1962).
(2) Rental contracts for a period of one year are executed in Georgia, the property is delivered to the lessee or rentee in Georgia, but used outside Georgia, and the contracts contain the following provision:
"The lessor may recall any or all equipment upon thirty (30) days' written notice to the lessee, and the lessee may return any or all equipment upon a like notice to the lessor."
The above notice provision does not affect the taxability of the lease. This provision is merely a device by which either party to the lease may terminate the lease contract. Until the lease is terminated by this means, or otherwise, the lease continues and the rental proceeds are subject to the tax as provided by the Act.
(3) Rental contracts are executed in Georgia, the property is transferred in Georgia, but it is used outside Georgia. Without question, these contracts are subject to the tax. Oxford v. Blankenship, supra.
It is, therefore, my official opinion that where property is delivered pursuant to sales to out-of-state locations by tugs and barges leased or rented by the buyer, the sales occur in Georgia and are taxable under the Georgia Retailers' and Consumers' Sales and Use Tax Act. It is furthermore my official opinion that the completion of leases or rental contracts in Georgia are taxable transactions under the aforesaid Act.

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OPINION 69-147

To: Chief of Field Operations Sales and Use Tax Unit

April 3, 1969

Re: Auction sales of tangible personal property in Georgia are subject to the tax imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act.

This is in response to your inquiry whether auction sales of construction equipment which is delivered by common carriers procured by the auctioneer firm to the out-of-state residences of the buyers are taxable under the Georgia Retailers' and Consumers' Sales and Use Tax Act.
The Act which imposes a tax on retail sales of tangible personal property defines "sale" in Ga. Laws 1951, pp. 360, 363, section 3(b) (Ga. Code Ann. 92-3403a(B)) as:

". . . any transfer of title or possession, or both, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatsoever of tangible personal property for a consideration...."

By regulation of the State Revenue Department sales made to nonresidents of Georgia are excluded from the tax where the property is delivered to and possession acquired at the out-of-state address of the buyer. A certificate and an affidavit attesting to the facts of the transaction are required where delivery is made by means other than by common carrier or United States mail. Rev. Reg. No. 560-12-1.007 (Form ST-6).
A brochure of the auctioneer company contains the following statements:

"Every item positively sells on sale day to highest bidder without reservation, confirmation or minimum price.... "Each item must be paid for in full on sale day either by the finance contract method or by cash, cashier's check, personal or company check if accompanied by letter of credit and identification from your bank. Immediate possession of equipment upon proper settlement. All sales subject to state and local tax laws unless an exemption waiver is signed by buyer.... "After an item has been sold it becomes the sole responsibility of the purchaser. No equipment is to be

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removed until complete settlement has been made. "Settlement can be made at anytime during the sale; however, settlement must be made sale day!!! An invoice will be supplied to the purchaser at the time of settlement. This invoice, properly authenticated by the cashier, will be requested in order to remove equipment from the lot.... "Everything sold 'as is'--- 'where is'!"

Assuming these statements are truly descriptive of the sales transactions in question, the sales are fully completed at the auction site on the sale day and are taxable transactions under the Act. See Oxford v. BlankenShip, 106 Ga. App. 546, 548, 127 S.E.2d 706 (1962). Both possession and title are transferred on sale day. That the equipment is subsequently transported by a common carrier procured by the auctioneer company to the buyer's residence out of state is wholly immaterial.
It is, therefore, my official opinion that where auction sales are conducted on the basis shown above they are subject to the Georgia Retailers' and Consumers' Sales and Use Tax Act.

OPINION 69-148 (Unofficial)

To: Fannin County Attorney

April3, 1969

Re: Tax collection: Collectors are ex officio sheriffs for purpose of collecting State or county taxes.

This is in response to your letter of April 1, 1969, wherein you requested an opinion as to whether or not the Act dealing with the appointment in certain counties of tax collectors as ex-officio sheriffs for the purpose of levy and sale of a tax fi. fa. (Ga. Laws 1877, p. 284) is still in effect and if so whether or not it is mandatory on the part of the tax collector.
The pertinent parts of the above Act state:

"That from and after the passage of this Act, the Tax Collectors of. . .Fannin [and other]. . .counties, shall be ex-officio sheriffs, in so far as to enable them to collect the taxes due the State and county, by levy and sale, under tax executions. And said Tax Collectors shall not be required to turn over any tax executions to the sheriffs, or to any other levying officers of said counties, but said Tax Collectors, by virtue of their office, shall have full power and authority to

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levy all tax executions heretofore, or hereafter to be issued in said counties of. . .Fannin [and others j. . . . And the compensation of said Tax Collectors shall not exceed fifty cents for issuing each fi. fa., and for levying the same fee as is now by law allowed to bailiffs for levying, and said Tax Collectors shall have full power to bring property to sale, and sales made by them shall be valid, and shall convey the title to property as fully and completely as if made by sheriffs of said counties."

From the above it would seem clear that this Act gives the Tax Collector of Fannin County the power and authority to collect the taxes due the State and county by levy and sale under tax executions but it does not make it mandatory that he do so.
I have carefully Shepardized this Act and I can find no indication that it has been either repealed or amended.
Therefore, it is my unofficial opinion that the Act does .not make it mandatory that the Tax Collector collect the taxes due the State and county by levy and sale under tax executions and
that the Act is still in effect.

OPINION 69-149 (Unofficial)

To: Regional Attorney, United States Department

of Agriculture

April 3, 1969

Re: Person convicted of a crime and presently on parole may enter into contracts or own real property.

This is in reply to your letter dated March 27, 1969, in which you state that an individual who has been convicted of a crime in Georgia and who is presently on parole has applied to the Farmers Home Administration of the United States Pepartment of Agriculture for a rural housing loan to purchase a home. You have asked whether there is any legal impediment which would prevent a person convicted of a crime and presently on parole from owning real estate or entering into a contract.
I am aware of no statutory provision which would prevent an individual who has been convicted of a crime in Georgia and who is presently under parole supervision from entering into a contract or from owning real property. While I consider it unlikely that the State Board of Pardons and Paroles imposed any provision which would bear upon this question, I suggest that you have the parolee produce a copy of the parole agreement, reflecting its conditions, for your examination.

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OPINION 69-150 (Unofficial)

To: Representative, District 58

April 3, 1969

Re: Appointment of physician with D.O. degree to hospital staff.

This is in reply to your letter of February 24, 1969, in which you ask whether there is any law of the State of Georgia which prohibits the appointment of a physician and surgeon holding the D.O. as opposed to M.D. degree to the medical staff of a Hill-Burton Hospital.
I am unaware of any law of the State of Georgia which would prohibit appointment of a physician and surgeon holding the D.O. degree (i.e. a doctor of osteopathic medicine) to the medical staff of a Hill-Burton Hospital. It may appropriately be noted that with respect to the right to practice in publicly supported hospitals, at
least one state court has held that an attempt by hospital regulation to discriminate in favor of allopathic physicians (i.e. M.Ds.) and against osteopathic physicians (D.Os.) was "illegal, unreasonable, discriminatory, void and of no force and effect." See Stribling et al v. Jolley et al, 241 Mo. App. 1123, 253 S.W. 2d 519 (1953). Also, in People v. Schaeffer, 310 Ill. 574, 142 N.E. 248 (1924), it was held that an attempt to discriminate against doctors of osteopathy respecting the practice of surgery was violative of the "equal protection" and "due process" clause of the Fourteenth Amendment to the United States Constitution.

OPINION 69-151

To: State Board of Corrections

April4, 1969

Re: An inmate may not be detained beyond the length of his sentence.

This is in reply to your request dated March 25, 1969, in which you ask whether the wardens of institutions housing State prisoners may detain an inmate for any period of time on the date of his release, or thereafter, for delivery to a representative of a county probation department.
Your request indicates that the Department of Corrections notifies a probation department of the pending release of an inmate approximately thirty days prior to the date of release. I understand that one of the county probation departments does not wish to permit an inmate to voluntarily report for probation supervision, but that the Department takes custody of the inmate

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upon release for the purpose of returning him to the county seat for interviews prior to actual release on probation. In order to effectuate its desires, this county probation department has undertaken to notify the wardens of the various institutions to hold the inmate pending the arrival of a deputy sheriff or probation officer.
Prisoners are committed by the sentencing courts to the custody of the Director of Corrections. Ga. Code Ann. 77-309(b). The term of penal servitude is prescribed by the court and in the absence of a lawful order of the court may be modified only by the statutory provisions relating to credits for good time and extra good time allowances. Ga. Code Ann. 77-320. A prisoner may not be detained beyond the period of his lawful sentence, as "A prisoner shall be released at the expiration of his term of sentence less the time deducted for statutory and extra good time allowances." Ga. Code Ann. 77-320(d). (Emphasis added). Persons having custody of an inmate are under a positive and mandatory duty to release a prisoner upon the expiration of his sentence.
It is my opinion that requests from a county probation department for the retention of custody of an inmate pending the arrival of a deputy sheriff or a probation officer must be disregarded by the wardens. Such a request is in reality one seeking to have you and the wardens impose an unlawful restraint upon the inmate.
Undoubtedly, arrangements could be made by the county involved to interview the inmate on the day preceding his release, thereby accomplishing the legitimate purpose to effectuate probationary supervision.

OPINION 69-152

To: State Game and Fish Commission

Apri14, 1969

Re: Persons fishing for shad by means other than pole and line or bow net must possess a valid shad license.

This is in response to your recent inquiry as to whether or not a person possessing only a sport fishing license may legally fish for shad by means other than pole and line or bow net.
Official Compilation, Rules and Regualtions of the State of Georgia 260-3-.11 provides in pertinent part:

''SHAD LICENSE. AMENDED. A valid state sport fishing license is required for the taking of shad by pole and line

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fishermen, and such a license will authorize the use of not more than two (2) poles and lines. No person shall take shad from the waters of this state by any means other than pole and line [ no more than two (2)] or bow nets without first obtaining from the State Game and Fish Commission a shad license. "(Emphasis added.)

Therefore, it is my official opinion that your inquiry must be answered in the negative.

OPINION 69-153 (Unofficial)

To: Private Inquirer

April 7, 1969

Re: Charters granted by the General Assembly Prior To January 1,
1863, have perpetual existence, unless limited by subsequent amendments.

This will acknowledge receipt of your letter to the Honorable Ben W. Fortson, Jr., Secretary of State, whereby you inquired as to the procedure for the revival of the charter of the Macon Presbyterian Church, as well as a letter to the Honorable Arthur K. Bolton, to my attention, by which you furnished additional information concerning said Church.
According to the information in your letters, the Macon Presbyterian Church was granted a charter by the Georgia General Assembly (Ga. Laws 1826, pp. 78-79) on December 26, 1826. As you will notice from the legislation granting the charter to the Macon Presbyterian Church, no provision was made in said legislation for the expiration date of the charter. Additionally, you will note that in said legislation, no provision was made whereby the General Assembly of Georgia reserved to itself the power to withdraw the franchise thus granted by the incorporation of the Macon Presbyterian Church by the General Assembly.
As you stated in your letter, the Georgia Supreme Court in 1873 decided in West End and Atlanta Street Railroad Company v. Atlanta Street Railroad Company, 49 Ga. 151(1) (1873) that:

Where a charter, granted by the General Assembly to a private corporation, is silent as to the time of its continuance, it will expire thirty years from its date.

Under the holding of the West End case, you have indicated a view that the charter of the Macon Presbyterian Church expired in

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1856 and have inquired as to the possible revival procedures. You will note that the basis for the decision in the West End case was Section 1677 of the Code of Georgia of 1860. 49 Ga. 151 at 154. At the time of the decision in the West End case in 1873, Section 1677 of the Code of Georgia of 1860 (which became effective January 1, 1863, pursuant to Ga. Laws 1861, p. 21) provided that:
Corporations have continuous succession during the time limited by their charter, notwithstanding the death of their members. Should any charter granted in the future by the General Assembly to a private corporation be silent as to its continuance, such charter shall expire at the end of thirty years from the date of its grant.
Thus, since the above-mentioned Section 1677 was not in existence at the time of the incorporation of the Macon Presbyterian Church and since said Section 1677 refers to charters "granted in the future," it is my unofficial opinion that the holding of the above-mentioned West End case is not applicable to the charter of the Macon Presbyterian Church. This view would be modified should said Church have, subsequent to January 1, 1863, accepted an amendment to its charter or in some other manner indicated an agreement to exchange its perpetual existence as granted in 1826 for the privilege of having applicable to the charter of said Church the provisions of a later corporation law of the State of Georgia and by doing so accepted the thirty-year limitation begun in 1863. See: The State of Georgia v. The Atlantic and Gulf Railroad Company, 60 Ga. 268 (1878) and 11 Ga. Bar J., p. 156 (November, 1948).
In your letter, you referred to Ga. Laws 1939, p. 250 (Ga. Code Ann. 22-516). By Ga. Laws 1968, pp. 565, 826, the 1968 General Assembly of Georgia in the New Corporation Code repealed said Ga. Code Ann. 22-516. However, since, as you stated in your letter, the Macon Presbyterian Church has never had a corporate organization providing for stockholders, a Board of Directors, or officers, as said Ga. Code Ann. 22-516 seems to have required, said Section would not appear to have been of any use to the Macon Presbyterian Church.
Your letter also referred to Ga. Code Ann. 22-603, which provides for the revival of the charters of library, church, educational or charitable corporations whose charters have expired. You will note from the provisions of that Section that a ten-year limitation is placed upon a corporation which has ceased to exist and a twenty-five-year limitation is placed upon a

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corporation which has continued in operation in ignorance of the expiration of its charter. Under the unofficial opinion heretofore rendered providing that the charter of the Macon Presbyterian Church has perpetual existence, Ga. Code Ann. 22-603 would not appear to be applicable to the situation concerning the Macon Presbyterian Church.
For your information, your attention is called to Title 22, Part II, of the new Georgia Corporation Code concerning non-profit corporations (Ga. Code Ann. 22-2101 to 22-3602). Particularly, your attention is called to 22-2103(b)(4).
Since under the Georgia Corporation laws existing prior to April 1, 1969, a non-profit corporation had an existence of only thirty-five years'(Ga. Code Ann. 22-1802[e]), should the Macon Presbyterian Church have amended its charter so as to come within the general corporation law of Georgia, it would have assumed that limitation of its existence. However, providing that such amendment did not occur more than thirty-five years prior to April 1, 1969, Ga. Code Ann. 22-2103(b) of the new Corporation Code caused said new Code to apply to the Macon Presbyterian Church and thus under the provisions of Ga. Code Ann. 22-2202(a)(2), said Church now has perpetual existence. Since I do not have sufficient information at my disposal as to any amendments to the charter of the Macon Presbyterian Church, either by Acts of the General Assembly or by Orders of the Superior Courts of this State, I would not want to comment further on the actual present status of the charter of said Church. However, I believe that a review of the corporate activities of the Church keeping in mind the information contained herein concerning the initial perpetual status of the Church's charter will enable you to determine the present status of the charter of the Macon Presbyterian Church.

OPINION 69-154 (Unofficial)

To: Deputy Assistant Attorney General (Highways)

April 8, 1969

Re: Condemnation-when taking an established business the measure of damages may possibly include loss of business and moving or relocation expenses.

I am writing this unofficial opinion in response to your telephone call on Tuesday, April 1, 1969, regarding the captioned condemnation case. It is my understanding that this case involves a taking of a building which houses a grocery store; therefore, a

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possible claim as to loss of business and expenses for relocation of the business.
Prior to 1966 the Georgia law in the field of eminent domain clearly indicated that there were only two elements of damages to be considered in condemnation cases. First, the market value of the property actually taken and second, the consequential damages to the remainder of the property which is measured by the diminution in the fair market value of the remainder. Central Georgia Power Company v. Mays, 137 Ga. 120 (1911); State Highway Department v. Stewart, 104 Ga. App. 178 ( 1961 ).
However, it is recognized in this state that there may be circumstances in which market value will not afford just and adequate compensation, i.e.; the property may have some special and unique economic value to the owner alone. If this be the case, the jury may consider such value in arriving at what is just and adequate compensation for the land taken. See Housing Authority of Savannah v. Savannah Iron & Wire Works, Inc., 91 Ga. App. 881 (1955);Housing Authority of the City ofAtlanta v. Troncalli, 111 Ga. App. 515 (1965). To authorize the jury to consider such a special or unique value to the owner, however, it must appear from the evidence that not only is the property peculiar or unique, but that the relationship of the owner thereto is peculiar or unique, i.e.; that it is property having value peculiar or unique to the owner only, without possible like value to others who might acquire it. See City of Gainesville v. Chambers, 118 Ga. App. 25 (1968) and- Czty of Gainesville v. Appleby, 118 Ga. App. 25 (1968).
The Supreme Court of Georgia in Bowers v. Fulton County, 221 Ga. 731 (1966), a case involving the condemnation of an entire tract of land upon which was located an office building in which Bowers carried on a bookkeeping and tax service and also sold all forms of insurance, held in headnote 2 as follows:
"Art. I, Sec. Ill, Par. I of the Constitution (Code Ann. 2-301) is susceptible to no construction except the condemnee is entitled to be compensated for all damage done to his property and expenses caused by the condemnation proceedings. Such damages and expenses are separate and distinct items from the amount which he is entitled to recover as the actual value of his building."
The word "expenses" as used in the above-quoted section from the opinion apparently means expenses incurred incident to the removal of a business. Thus the Bowers case limits "expenses" to those incurred incident to the removal of a business and should

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not be applied in any other situation and this only when the business has a unique location and involved a total taking, the loss of which will be attended with the loss of profits, loss of business, and moving expenses. Therefore, in an appropriate case just and adequate compensation for land actually taken will include its market value at the time of taking plus additional items. State Highway Department v. Hood, 118 Ga. App. 720 (1968).
It should be noted that neither the General Assembly of Georgia nor the Appellate Courts of this State have set forth any strict "rules" or "guide lines" as to the application of the Bowers case. Hence, we must face other situations, case by case and item by item.
The Jernigan case may possibly involve an application of the Bowers case. Therefore, there are certain items which may help you in the preparation and presentation of the case on behalf of the State Highway Department of Georgia. These items are as follows:
1. Before the issue of expenses may be introduced into the case, it must be raised by the pleadings or other evidence offered by the condemnee. (As to which party offers evidence as to expenses is still in doubt in view of the fact that the burden of proof and going forward with the evidence would appear to be on the condemnor, State Highway Department.) 2. When and if items such as loss of business, loss of profits, and moving expenses are offered in evidence, objection should be made on the grounds that the evidence is too remote, speculative, and conjectural to form a basis of recovery under Georgia law. See Harrison, et al, v. Regents of the University System, 105 Ga. App. 817 (1962). 3. In cases where it is suspected that the condemnee will claim expense items contemplated by the Bowers decision, interrogatories, depositions, and other pretrial discovery methods should be employed to ascertain names of witnesses, items of damages claimed, business records as to profits and loss and records as to costs of moving expenses. 4. A suggested method of rebuttal evidence would be to have the appraiser for the State Highway Department locate comparable property in the area which would be suitable for relocation of the condemnee's grocery store. It would be beneficial if the property is available for sale. The appraiser should be familiar with sales prices of other available property in the immediate area. 5. It should be clearly brought out that the condemnee will

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still have his business, i.e., goodwill, stock, management, etc., and the only thing taken would be the building in which the business is located. Also, I feel that the condemnee must make an effort to minimize his damages, especially in a case involving loss of business. 6. As to the cost of moving expenses, it would appear that the best method would be to take the actual cost of moving as supported by the evidence. However, this amount should not include any of the usual or necessary costs or expenses of operating the business which would have been incurred directly or indirectly if the business had continued to be operated on the property condemned. The appraiser should be familiar with moving expenses in order to rebut an exaggerated cost figure introduced by the condemnee.

A case which may be of help to you is the Vermont case of Fisk v. State Highway Board, 197 A.2d 290, which interprets a loss of business statute of Vermont. As you can gather from the reading of this case and others, most states allow loss of business and exepnses of relocation to be recovered only when authorized by statute.

OPINION 69-155 (Unofficial)

To: District Attorney

April9, 1969

Re: District attorneys not authorized to continue private practice under annual retainerships after July 1, 1969.
By letter you inquire as to the effect of the law establishing a uniform system of compensation for the district attorneys of this State upon several continuing representations. Specifically, you inquire as to whether you may continue to serve as City Attorney of the City of Cuthbert and as attorney for a local bank for the remainder of the calendar year after July 1, 1969, the date upon which the statutory prohibition against district attorneys' engaging in the private practice of the law becomes effective. You indicate that the two representations in question are normal counsel retainerships coextensive with the calendar year.
Reaching first your subsidiary inquiry as to whether the positions in question constitute practicing law, it is the writer's unofficial opinion that they do. There is no doubt in the writer's mind that counsel for municipal corporations are engaged in the practice of law. Further, there is a similar lack of doubt with respect to the legal counseling of a banking corporation. Both of

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these relationships constitute the practice of law within the meaning of the statute.
A more difficult problem is posed by your inquiry as to whether the statutory authorization "to complete pending matters acquired by him [the district attorney] prior to receiving said annual salary" embraces a legal relationship evidenced by an annual retainer. A research of the various authorities, including Words and Phrases, reveals no case law dispositive of this issue. The word "matter" and "matters" inevitably take their specific meanings from the context of the statute within which they are used. See by way of illustration Carter v. Durham, 177 Pac. 533, 534 (Kan., 1919), construing the term within the context of an attorney's lien law, and Keeffe v. Third Nat'! Bank of Syracuse, 69 N.E. 593, 594 (N.Y., 1904), construing the same term within the context of a law providing for the disqualification of judges.
In the absence of authority, resort to the general rule of statutory interpretation is in order. This rule is codified. Ga. Code Ann. 102-102(9) (1933). It is the obvious legislative intention that the district attorneys be compensated in such a manner that they can devote their full time to the discharge of the office. At the same time, the "pending matters" exception was clearly intended to avoid disruptive interference with attorney-client relationships as to individual items of practice then pending. We do not believe that this exception was intended to embrace a continual retainership but was rather intended to permit the private practice of law to complete pending items of litigation and specific questions of representation. Consequently, it is the writer's unofficial opinion that your question must be answered in the negative.

OPINION 69-156 (Unofficial)

To: Private Inquirer

AprillO, 1969

Re: Georgia resident operating a truck based in Tennessee is required to have Tennessee registration plates.

This is in reply to your letter concerning the problem you are having with your motor vehicle license plates and operator permits because of your business located in Tennessee and residence located in Georgia.
Georgia has a reciprocity agreement with the State of Tennessee concerning motor vehicle license plates and based upon the information contained in your letter your motor vehicles are

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apparently based in Tennessee. You are, therefore, authorized to operate those vehicles with your Tennessee plates in interstate commerce, i.e., you may operate them between points in Georgia and points in Tennessee. You are, of course, required to have Tennessee plates because the vehicles are located in Tennessee and used in connection with your business in Tennessee. Should you use these vehicles, or any of them, between two points in Georgia you would be required to purchase Georgia license plates in addition to your Tennessee license plates.
This office has discussed your operator's permit problem with Lt. Quarels of the Georgia State Patrol who is in charge of motor vehicle operator's permits or licenses and I believe that he will get \n touch with you concerning this problem within the next few d~ys. Ga. Code Ann. 68-221 provides:

". . .no resident shall be allowed to operate a motor vehicle within this State under a license issued by another State."

The license referred to in this Code section is the operator's permit or license which is issued by the Georgia State Patrol.

OPINION 69-157

To: Joint Secretary, State Examining Boards

April 10, 1969

Re: Opening school of cosmetology-20 students registered with examining board required for license or certificate of registration.

This letter is in response to your request for an official opinion as to whether an applicant to open a new school of cosmetology must have twenty (20) bona fide students registered with the Board of Cosmetology prior to receiving a license or certificate of registration.

OPINION An applicant to open a new school of cosmetology must have twenty (20) bona fide students registered with the Board of Cosmetology prior to receiving a license or certificate of registration.

DISCUSSION The Georgia Cosmetology Act provides that:

"All beauty schools, colleges or schools of cosmetology upon

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opening shall cause to be registered with. the Board twenty (20) bona fide students who have not held a student license any time during the twelve months next preceeding the date of their paid registration in such beauty school or college of cosmetology...." Ga. Laws 1966, pp. 195, 200 (Ga. Code Ann. 84-4412).

A subsequent provision in the same Section requires that any qualified person "desiring to operate or conduct a beauty school, college or school of cosmetology, upon opening, shall first secure a permit to do so...."(Emphasis added.)
A reading of these two provisions in the same Section with nothing to the contrary in the Chapter indicates an apparent legislative intent to require the registration of twenty (20) bona fide students as a condition precedent to the issuance of a school "permit," license or certificate of registration. To place such a "permit," license or certificate of registration in the new school applicant's hands prior to his obtaining twenty (20) students would give him color of authority to operate a school, when in fact the applicant has not met all statutory requirements for "opening" a school.
The problem posed by the new school applicants in obtaining students before the school has received a license could be met in at least two ways: (1) The Board could recognize a conditional contract between the prospective student and the school owner, based on the contingency of the school being able to qualify for a license and begin operation within a certain period of time; (2) the Board could issue a statement to the school owner, certifying that all requirements for licensing have been met except for the registration of twenty (20) bona fide students. This statement would give some assurance to the prospective students that the new school was otherwise qualified to begin operation.

OPINION 69-158 (Unofficial)

To: State Highway Maintenance Engineer

AprillO, 1969

Re: Prison labor may be used on private property if the sole benefit flows to the State: State may not be surety in contract between municipality and private party.

This is in reply to your request for my unofficial opinion as to whether or not the State Highway Department can agree with a

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county to remove and reset existing farm fences by prison labor or by State maintenance forces upon private property when the owner of said property has donated right-of-way to the county which is to be used by the State Highway Department in the widening of a present existing State highway.
It is my understanding that the factual situation which is the basis for this request is as follows: The State Highway Department wishes to resurface a State route in a certain Georgia county. This highway is presently only 60 feet in width. The County Commissioners of this county propose to furnish the State with an additional 10 feet of right~of-way on each side in order for the State Highway Department to properly build and maintain slopes and shoulders. As part of the agreement for the furnishing of this right-of-way, the county requests that the State remove and reset existing farm fences by prison labor and/or State maintenance forces without expense to the county.
It is my unofficial opinion that: ( 1) The use of convict labor on private property is permissible in situations where the sole benefit flows to the State. (2) However, the State cannot enter into a contract whereby it becomes a surety and thereby lends its credit to any party. It is my opinion that the proposed agreement is, in effect, a guaranty suretyship agreement; in other words, the county is able to assure the landowner that the fence will be relocated and looks then to the State Highway Department to carry out this agreement. The State Highway Department, in effect, lends its credit to the county and later upon acquiring the right-of-way, the county makes its conveyances to the State Highway Department. The use of prison labor is controlled by the provisions of Ga. Code Ann. 77-318 (a), which prohibits the hiring out of prisoners to private persons or corporations or the utilization of prison labor for a profit. However, it was the ruling of this office in an opinion to R. H. Burson, Director, Department of Corrections, May 25, 1966, that the use of convict labor on private property is permissible in situations where the sole benefit flows to the State. See also opinion to Asa D. Kelley, Jr., Director, Department of Corrections, December 20, 1967 [Op. Atty. Gen. 67-452] in which it was stated that the real test was whether,"... the transaction was for a good faith purpose rather than a subterfuge designed to benefit the private owner." See also Op. Atty. Gen., 1958-1959, p. 248, in which this office stated that the use of convict labor on private land is authorized upon the consideration that the land is to be used rent free by a prison branch for a term of years. In this opinion this office concluded

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that such an agreement was not illegal so long as it was entered into in good faith for the purpose of procuring the use of land for the State rather than as a guise whereby the private landowner is enabled to receive a gratuity from the State which is prohibited by the Constitution of Georgia, Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402).
However, this proposed agreement would be in conflict with the provisions of the Constitution of Georgia, Art. VII, Sec. III, Par.
IV (Ga. Code Ann. 2-5604), in which the State is forbidden to extend its credit to any individual, corporation or association. In this proposed agreement between the county and the State, the State is called upon to guarantee to the private individuals with whom the county will enter into a separate agreement that the State will remove and reset any existing fences by returning said fences to the individual's property from the granted right-of-way. It is proposed that the State will fmance this either by use of prison labor under the State Highway Department's supervision or by the State maintenance forces.
Therefore, it is concluded that the State Highway Department, for the State of Georgia, could contract with the private property owners to use prison labor or State maintenance forces to remove and reset these fences upon the private property since the utilization of this prison labor would be to the benefit of the State. However, the State Highway Department cannot guarantee to the county that it would perform these acts or expend this money if the county in turn entered into such an agreement with the private landowners which guaranteed to private landowners that the State would perform such acts.

OPINION 69-159 (Unofficial)

To: Private Inquirer

Aprilll, 1969

Re: Motor vehicles are not exempt from ad valorem taxation because they are owned by a religious institution.

This is in reply to your letter addressed to the State Revenue Commissioner, which was forwarded to this office for reply.
The Constitution of the State of Georgia provides for exemptions from ad valorem taxation which are available in this State, and it does not provide for the exemption of motor vehicles owned by religious institutions. The Supreme Court of Georgia in a recent decision held that the only properties which are exempt

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from ad valorem taxation because they are owned by religious institutions are places of of religious worship or burial, single family residences from which no income is derived, and certain intangible personal property. Presbyterian Center v. Henson, 221 Ga. 750 (1966).

OPINION 69-160 (Unofficial)

To: Regional Counsel, Sixth National Bank Region

April 11, 1969

Re: Municipalities incurring debts-approval by election required.

This is in response to your inquiry whether a county or other political subdivision in Georgia may incur ordinary indebtedness, secured or unsecured, for periods exceeding one year.
Art. VII, Sec. VII, Par. I of the Georgia Constitution (Ga. Code Ann. 2-6001) provides in relevant part:

"The debt hereafter incurred by any county, municipal corporation or political division of this State except as in this Constitution provided for, shall never exceed seven per centum of the assessed value of all the taxable property therein, and no such county, municipality or division shall incur any new debt except for a temporary loan or loans, to supply casual deficiencies of revenue, not to exceed one-fifth of one per centum of the assessed value of the taxable property therein, without the assent of a majority of the qualified voters of the county, municipality or other political subdivision voting in an election for that purpose to be held as prescribed by law;"

In the case of City Council of Dawson v. Waterworks Co., 106 Ga. 696, 713 (1899), the Georgia Supreme Court laid down a comprehensive definition of the word "debt" (construing the same language as above quoted in the previous State Constitution).
The constitutional plan, as interpreted by the Supreme Court of Georgia, was to pay current expenses each year from funds belonging to that year. Many opinions have been handed down by the high court declaring that a contract entered into by a political subdivision of the State for longer than one year without an election creates a "debt" prohibited by the Constitution. See City Council of Dawson v. Waterworks Co., supra; Town of Wadley v. Lancaster, 124 Ga. 354 (1905); McCrary Company v. City of

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Glennville, 149 Ga. 431 (1919). In Butts County v. Jackson Banking Co., 129 Ga. 801 (1907),
the court went so far as to hold that while a county with an empty treasury may incur a liability for a current expense and discharge this liability from funds raised by taxation during the current year, it may not contract for a loan of money to pay such liability.
However, under Art. VII, Sec. VII, Par IV, of the Georgia Constitution (Ga. Code Ann. 2-6004), a county, municipality, political subdivision or county board of education may now make temporary loans between January 1st and December 31st in each year to pay expenses for such year, provided such loans are made payable on or before December 31st of the calendar year in which said loans are made.
Thus, it would be my opinion that. except in cases not relevant here a county or other political subdivision may not legally incur ordinary indebtedness, secured or unsecured, for periods exceeding one year, without the assent of a majority of the qualified voters of the county or other political subdivision voting in an election for that purpose to be held as prescribed by law.
In light of the information you forwarded indicating your specific concern over school board loans, I call to your attention provisions of Ga. Code Ann. 32-921 and 32-923, providing county school boards with authority to borrow money to pay for the operation of the public schools of their counties.
In Board of Education of Monroe County et al v. Thurmond et al, 162 Ga. 58, 64 (1926), the Board of Education of Monroe County had incurred debts for money loaned under the above quoted Code sections to pay teachers and operate the public schools of the county, such debts having accumulated from year to year until the fall of 1924. The question in the case was whether the board of education could use funds derived from the levy of a local tax in the fall of 1924 for operating the schools to pay these past debts. The Court, noting that the petition in this case did not allege that any of the money borrowed from the bank was illegally borrowed, held in relevant part:
"The above-quoted laws, while authorizing the borrowing of money fori the purposes above indicated and the manner in which contracts for the borrowing of money shall be made, do not limit the power of the board of education in the matter of repayment. On the contrary, under section 97 the money should not be borrowed 'for any longer time than is necessary,' and it should be 'paid back out of any funds coming into the hands of the county school superintendent that can be legally applied to the payment of the

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same'.... Repayment of money borrowed for the purposes should be made out of the revenues appropriated to the schools for the year in which the borrowed money is to be used, but the statute does not limit repayment to the funds so appropriated.... The proper construction of the statute is that it authorized repayment out of any funds that should be appropriated to the board of education at any time for the payment of teachers and operating the schools. . . . So construing the law, it was in this case in the power of the board of education to apply money collected and to be collected from the local tax levy made in 1924 for the purpose of maintaining the schools during the term commencing on September 1, 1924, to payment of debts for the loan of money for payment of teachers and support of the schools which had accumulated prior to the year 1924."
It must be carefully noted, however, that plaintiff in Thurmond failed to raise the constitutional issue (i.e., whether the debt had been legally incurred).
In Board of Education of Houston County et al v. Board of Trustees of Fort Valley Consolidated School District, 170 Ga. 509 (1930), the court was asked by plaintiffs to review and overrule Thurmond. Counsel for plaintiffs insisted that if the decision in Thurmond was adhered to, then the above quoted borrowing sections of the Georgia school code are unconstitutional in that they violate the provision which prohibits any county, municipality, or political division of this State, except as in the Constitution provides, from incurring any new debt. The constitutional issue had not been raised in the trial court, however, and the Supreme Court declined to consider it.
It follows that neither Thurmond nor Board of Education of Houston County can properly be construed as upholding the constitutionality of school obligations not to be discharged within the year in which they are .incurred. I am, therefore, of the opinion that the interpretations given to the debt limitation provisions of the Constitution in Dawson, etc. are fully applicable to school boards.

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OPINION 69-161

To: Ocean Science Center of the Atlantic Commission

Aprilll, 1969

Re: A Suit against the State cannot be maintained without its statutory consent.

This is in reply to your recent request for an opinion concerning the extent of liability which might be incurred by the Ocean Science Center of the Atlantic Commission in connection with allowing visiting marine scientists to occupy agency-owned houses on Skidaway Island.
It is well established in Georgia .that suit against the State cannot be maintained without its consent, nor can such an action be maintained against an officer or employee of the State in his official capacity. See Roberts v. Barwick, 187 Ga. 691 (1939).
The Act creating the Ocean Science Center of the Atlantic Commission (Ga. Laws 1967, p. 12) contains no waiver of the State's immunity from suit, and therefore the agency cannot incur liability as a result of accidents which might occur during the activities you have described.
However, the sovereign immunity of the State does not extend to public officers or employees in their individual capacity, and such employees are personally liable for their tortious acts.

OPINION 69-162 (Unofficial)

To: County Attorney, Fulton County

Aprill4, 1969

Re: Boundaries of 40th Senatorial District.

A vacancy has arisen in the 40th Senatorial District and you have requested my unofficial opinion on the boundaries of that District for the purpose of holding a special election to fill the vacancy.
The State Senate is presently apportioned under the provisions of Ga. Laws 1967, p. 159, as amended by Ga. Laws 1968, p. 36, codified as Ga. Code Ann. 47-102. The 1968 amendment changes none of the boundaries relevant to this discussion and our attention must therefore be focused on the 1967 Act.

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The 1967 Act provides:
"On the convening day of the session of the General Assembly .of Georgia on the second Monday in January of 1969 and thereafter except as herein provided, and after amendment of Article III, Section II, Paragraph I of the Constitution so as to authorize the Senate to consist of 56 members, there shall be 56 Senatorial Districts of the State of Georgia, each to be represented by one Senator, and such Districts shall be composed of one or more counties, or composed of a portion of one county as follows:" (Ga. Laws 1967, pp. 159-160).
and the Act then sets out the boundaries of the senatorial districts fr6m which the present senators were elected. Next, the Act states:
"The members elected from the above Districts shall take office on the convening day of the session of the General Assembly of Georgia on the second Monday in January of 1969, and shall hold office for one term and until their successors are elected and take the oath of office for the next succeeding term. "After the said amendment of Article III, Section II, Paragraph I of the Constitution, the members elected to succeed those members taking office in January of 1969 shall be elected from the Districts hereinabove provided, except that Districts 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 55 and 56 shall be composed as follows:" (Emphasis added.) (Ga. Laws 1967, pp. 159, 176).
after which language the boundaries of certain districts, including the 40th, are revised. It is important to note that the first senators to be elected from the revised districts are the senators "elected to succeed those members taking office in January of 1969."
The Act further provides:
"Until such times as hereinabove provided, the Senatorial Districts which exist or existed prior to the above Districts shall continue in full force and effect, and the members of the Senate elected from such Districts shall continue to serve throughout the terms for which they were elected." (Ga. Laws 1967, pp. 159, 186).

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The special election is for the purpose of filling a vacancy in the present term of office, the term beginning on the second Monday in January of 1969. Ga. Code Ann. 34-805. The general election to select a member to succeed the member taking office in January of 1969 will not be held until November of 1970. To my mind, the distinction between filling a vacancy in the present term and electing a successor after the expiration of the present term is the controlling factor in answering your question. It is clear to me that the General Assembly intended to apply the revised district only when electing successors to the present term, which election should take place in the regular course of events on the Tuesday next following the first Monday in November of 1970. Ga. Code Ann. 34-1 03(m). If the Act was interpreted to require this special election to be controlled by the revised boundaries, some senators would be representing districts whose boundaries would be at odds with and in conflict with the member elected at this special election. Such an interpretation would be against common sense and sound reasoning, those two faculties on which the courts of Georgia so often rely when interpreting statutes. Blalock v. State, 166 Ga. 465 (1928).
It is therefore my unofficial opinion that the boundaries of the 40th Senatorial District for the purpose of filling the vacancy in that District remain the same as those used in the general election of 1968.

OPINION 69-163

To: Director, Sales & Use Tax Unit

April 14, 1969

Re: Good faith under 5, 6 of Georgia Retailers' and Consumers' Sales and Use Tax Act.

This is in response to your request for advice concerning the taxability of sales to dealers under certificates of exemption for the purposes of resale where some of the products sold, oxygen in storage tanks, are used by the dealers.
Apparently, the nature of the business of the retailers, shown on the certificates, was such to indicate that the oxygen was being purchased for use rather than for resale.
Sections 5 and 6 of the Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. Laws 1951, pp. 360,370 (Ga. Code Ann. 92-3407a and 92-3408a) provide:

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"Section 5. Be it further enacted, by the authority aforesaid, that all gross sales of a retailer are subject to the tax until the contrary is established. The burden of proving that a sale of tangible personal property is not a sale at retail is upon the person who makes the sale unless he takes from the purchaser a certificate to the effect that the property is purchased for resale. "Section 6. The certificate relieves the seller from the burden of proof only if taken in good faith from a person who is engaged in the business of selling tangible personal property and who holds the permit provided for in this Act and who, at the time of purchasing the tangible personal property, intends to sell it in the regular course of business or is unable to ascertain at the time of purchase whether the property will be sold or will be used for some other purpose."
It is contended by the wholesale dealer, a corporation, that it acted in good faith in accepting the certificates since it had no actual knowledge they were false or fraudulent.
"Good faith" ordinarily means " ...that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation." A. l Gage Plumbing Supp. Co. v. Local 300, Intern. Hod Carriers, Bldg. etc., 202 Cal. App. 2d 197,20 Cal. Rptr. 860, 866 (1962). The opposite of good faith, bad faith, is defined as "generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive." Edwards-Warren Tire Co., Inc., v. Coble, 102 Ga. App. 106, 115, 115 S.E. 2d 852 (1960), citing Black's Law Dictionary. It has been held that for a fiduciary to act in good faith as required by a statute in distributing the assets of an estate, he must recognize not only those claims of which he has actual knowledge, but also " ...those of which he must be deemed to have knowledge because of information possessed by him which should reasonably lead him to knowledge of the claim." In re Swaabs Estate, 40 Misc.2d 767, 244 N.Y.S.2d 83 (1963). So good faith means more than acting from the lack of actual knowledge where the truth could be ascertained by reasonable effort. Ga. Code Ann. 37-116 provides:
"Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards

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found such inquiry might have led. Ignorance of a fact, due to negligence, shall be equivalent to knowledge, in fixing the rights of the parties."

Under this equity section of the Georgia Code, one has a duty to investigate what the facts are where the notice given would put a reasonably prudent man upon inquiry. Ector v. Ector, 25 Ga. 274, 284 (1858). To act in good faith demands this same duty to inquire.
It is, therefore, my official opinion that if the nature of the businesses of the purchasers is such to put a reasonably prudent man upon notice to investigate to determine whether the oxygen tanks are resold or used, the dealer must make a reasonably diligent inquiry in order to discover the facts and to act in good faith within sections 5 and 6 of the Georgia Retailers' and Consumers' Sales and Use Tax Act.

OPINION 69-. 164 (Unofficial)

To: Director, Truck Weighing Division

April 16, 1969

Re: Issuance of permits for overlength vehicles.

This is in reply to your request for my unofficial opinion as to whether or not your office may issue a permit for an overlength empty tractor"trailer other than a special single-trip permit as is provided in Ga. Laws 1968, pp. 30, 34, section 1 (d), par. (5) (d).
It is my unofficial opinion that: (1) A special permit for a 12-month longevity issued for an overlength load of piping pursuant to the provisions of Ga. Laws 1968, pp. 30, 31, section l(a), would not cover an overlength empty tractor-trailer. (2) The question of whether an overlength vehicle cannot be "readily dismantled" is a question of fact to be decided by your office as part of its administrative powers. (3) If your office decides that the vehicle in question cannot be "readily dismantled," then a permit as is provided for in section 1, subsection (d), paragraph (3) (a), relating to single-trip permits for oversize equipment would be in order. It is my understanding that the factual situation out of which these questions arose is as follows: A certain trucking concern has a contract with a particular pipeline company to transport pipes

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from the pipeline company's assembly plant to the pipeline company's right-of-way at which the pipes are to be installed. The pipeline company proposes to assemble two 40-foot pipes at its assembly plant and will require the trucking concern to transport pipes 80 feet in length. In order to transport these extra length pipes, the trucking concern has devised a specially equipped trailer which enables the trailer to maneuver corners and curves without becoming a traffic hazzard. The trucking concern proposes to carry the overlength pipe to the installation area and then return the tractor and trailer to the assembly plant for further loads. The entire operation will require approximately 600 round trips. The empty tractor and specially equipped trailer will exceed the length provisions as are set forth in Ga. Laws 1968, pp. 30, 31, section 1 (a), dealing with load and size limitations of motor vehicles. Due to the construction of this specially equipped trailer, there is some question as to whether the trailer can be telescoped to a shorter length in order to comply with the length provisions of the above cited law.
With regard to the question of the loaded tractor and trailer, Ga. Laws 1968, pp. 30, 31, section 1 (a) provides that:
". . . loads of ... piping ... may exceed the length herein fixed without requiring a special permit, but a special permit shall be required if the total length of vehicle and loads exceeds seventy-five (75) feet."
Ga. Laws 1968, pp. 30, 33, 34, section 1 (d), sets forth the charges for the issuance of special permits for those situations in which the vehicle exceeds the length or load limit of this law. Paragraph (3) sets out charges for single-trip permits for heavy equipment and paragraph (4) sets out the charges for a 12-month permit on such heavy equipment. In this particular case and under this particular factual situation, it would be assumed that the trucking concern would make application for the transportation of this pipe through a 12-month permit on overlength heavy equipment. The charge for such permits is found in section 1, subsection (d), paragraph (4) (b).
It is my unofficial opinion, however, that the issuance of a permit for the loads of piping would not extend the license to the trucking company allowing it to proceed with this overlength empty tractor-trailer from the installation point back to the pipe assembly plant. It is a general principle of statutory construction that ordinary signification shall be applied to all words except words of art or words connected with a particular trade or subject

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matter. See Ga. Code Ann. 102-102; Thacker v. Morris, 196 Ga. 167, 173 ( 1943). Close scrutiny of section 1 (a) of this law reveals that the General Assembly has established a blanket prohibition against vehicles which exceed a total length of 55 feet. However, the General Assembly proceeds in the same section to make certain specific exceptions. One of these exceptions is the section quoted hereinabove allowing loads of piping which do not exceed 75 feet; this exception, however, includes the provision that for loads of pipe exceeding 75 feet, a special permit must be obtained. It is my unofficial opinion that the legislaiive intent was that the special permit would only extend to a situation in which a load of pipe exceeded the prohibited length. The use of the word "loads" supports this conclusion. Therefore, once a tractor-trailer becomes unloaded, it would be necessary for the trucking concern to comply with the length provisions of this law or, in the alternative, the trucking concern must attempt to come within one of the exceptions to these overlength provisions.
The only possible exception within which an overlength vehicle might fall would be the provision of section 1 (a) of this law which states:
" . 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 a fee determined by the scale in Subsection
(d)...."
The determination of whether this particular trucking concern's specially equipped tractor-trailer could be readily dismantled is a factual question to be decided by your office as part of its administrative duties. My legal research does not disclose any judicial definition of what is to be considered as "readily dismantled." However, other jurisdictions have been faced with the question of what legal significance should be given to the adverb "readily." The term "readily" has been legally defined to mean in a ready manner; with facility; quickly; properly; easily. The word "readily" also has been held to mean speedily; easily; at hand; immediately available; convenient; handily; with promptness or ease. See People v. Boxer, 24 N.Y. 2d 628, 632; Fesler v. Commissioner of Internal Revenue, 38 F. 2d 155, 157; Western Coal & Mining Co. v. Berberich, 94 F. 329, 334.
Therefore, it is concluded that it is the duty of your

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Department to determine first of all, whether or not the vehicles in question can be quickly or conveniently dismantled by the trucking conern in order to comply with length provisions of this law. Thus, if it is your determination that this empty tractor-trailer cannot be readily dismantled, then it is my opinon that the provisions of this law require that the trucking concern obtain a permit for each trip made by this empty tractor-trailer and that each permit shall be paid for as is provided in Ga. Laws 1968, p. 34, section 1 (d), par. (3) (a).
In all interpretation&. of statutes, the courts must look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil and the remedy. City of Columbus v. Muscogee Mfg. Co., 165 Ga. 259 (1927). Also 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 law makers. See Harris v. State, 221 Ga. 398 (1965). In looking at this exception established by the Legislature for vehicles which cannot be "readily dismantled," it should be understood that the Legislature has explicitly provided for the issuance of special permits for single-trip movements and expressly states that these special permits shall be issued "for such purpose." There are two paragraphs in Subsection (d) which refer to the charges that are to be made for issuance of special permits and which deal particularly with single permits. These two paragraphs are those which are numbered (3) and (5). Paragraph (3) (a) deals with heavy equipment and provides a charge for, "Over on only one of the following limitations, weight, length, height, width." Paragraph (5) (d) termed "Miscellaneous (single-trip permits only)" reads, "Other oversized equipment not herein specified."
The courts of other jurisdictions have determined that the term "equipment" means the implements used in an operation or activity or everything except personnel which is needed for the operation or the service. See Holtz v. Babock, 389 P.2d 869, 874. Therefore, it is my opinion that the tractor-trailer in question would come within the scope of the term "heavy equipment."
In this case, since the empty tractor-trailer only exceeds the length provisons of this law, then it is my unofficial opinion that the charges should be made under paragraph (3) (a) dealing with single-trip permits for overlength heavy equipment. The provisions under paragraph (5) dealing with single-trip permits for miscellaneous sized equipment not specified within this law would not be applicable since this situation is covered by paragraph (3)
(a).

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The assumption cannot be made that the Legislature intended that carriers of piping could use an annual permit for the transportation of their loads but then would be stranded upon the depositing of their loads. Obviously, the Legislature was aware that, in the past, it has been the practice of carriers of piping to telescope their trailers after unloading in order to reduce the overall size of the vehicle to comply with the 55-foot provisions of this law. However, in this particular case, the factual situation as set forth above introduces two unique factors. First, the pipeline company, in order to diminish the number of joints that are to be welded in place at the installation area, has initiated a program whereby two separate 40-foot pipes are assembled at an assembly area. Therefore, the trucking company, in order to perform its obligations, has devised a specially equipped trailer which by the use of cables turns corners in a method similar to the hook and ladder trucks used by our fire departments. These empty vehicles, however, violate the length provisions of this law.
This is not a case in which a legislative enactment has created an untenable situation, nor can it be said that this law, in effect, discriminates against any particular class of individuals or corporations. The solution to this problem is quite evident. Your department cannot extend or vary the terms of an act of the General Assembly to accommodate proposed innovations by these individual corporations.

OPINION 69-165

To: Employees Retirement System of Georgia

April 18, 1969

Re: Retirement System--Prior service credits not created by Alabama National Guard summer camp unless employee proves the service is "Active service in the Armed Forces of the United States."

This is in response to your request for my official opinion as to whether or not active duty for training with the Alabama National Guard may be counted towards a member's prior service credits.
The relevant provision of the amended act governing the Retirement System is as follows:

" . . . any member, if othei'Wise eligible for prior service credits, who, prior to his membership in this System, was inducted into active service in the Armed Forces of the United States, shall be entitled to creditable service for such active

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service, exclusive of reserve service, and not to exceed the limitations as elsewhere provided . . . ." Ga. Code Ann. 40-2504(4).

The question posed, in essence, is whether summer camp active duty for training with the Alabama National Guard constitutes "active service in the Armed Forces of the United States" within the meaning of that section. Certificates presented by the claimant
state that the summer camp duty was "active duty for training" but do not prove that it is "active service in the Armed Forces of the United States," as required by the Act.
A claimant's rights to retirement benefits depend upon the terms of the act governing the retirement system. In applying this principle, the Georgia Supreme Court has held that the words "while receiving this pension" may not be construed to mean "while eligible to receive a pension." Burks v. Board of Trustees, 214 Ga. 251,254 (1958).
Based upon the foregoing, I am of the opinion that the claimant
must satisfy the Board of Trustees that the subject active duty for training constitutes active service in the Armed Forces of the United States before being entitled to receive prior service credits based upon such military service.

OPINION 69-166 (Unofficial)

To: Representative, District 82

April 18, 1969

Re: Public School Employees Retirement System.

This is in response to your letter of April 16, 1969, requesting my opinion as to whether or not a certain school lunchroom worker has any rights under the Act creating the Public School Employees Retirement System. H.B. No. 141, 1969 Session of the Georgia General Assembly.
Section 23 of the Act provides that no public school employee shall be obligated to make employee contributions to the retirement system until after the General Assembly has appropriated funds for the employer contributions provided for in the Act. Section 24 provides that no credit shall be given to any member for prior service until the General Assembly appropriates funds to amortize the prior service liability created by the Act. I have been informed that the General Assembly has not appropriated funds to cover the employer contributions and the

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prior service liability provided for in the Act. Based upon the foregoing, I am of the opinion that the school
lunchroom worker to whom you have referred presently is not entitled to accruals of creditable service under the Act.
Please note the difference of wording in sections 23 and 24. Under section 24, it is clear that no employee receives prior service credit until the General Assembly funds such credit. But section 23 does not speak in terms of when membership service credit shall commence to accumulate after January 1, 1970. It merely says that the employee shall not be obligated to make contributions until the General Assembly funds the employer contribution. It appears to me that this difference in language raises a legal question. Does contingent membership service credit begin to accumulate after January 1, 1970, becoming vested later when the General Assembly appropriates for the employer contribution and the employee pays his share, or does membership service credit begin to accumulate when the General Assembly appropriates for the employer's share and the employee pays his share? I am of the opinion that this question either must be answered by the Courts or the Act clarified by amendment.

OPINION 69-167

To: Director, Motor Vehicle Unit, Revenue Department

April 22, 1969

Re: Failure to register under the Used Car Dealers Registration Act does not entitle taxpayer to a refund of the occupational tax.

This is in response to your request for an opinion as to whether or not a person who has paid the $25.00 occupational tax as a used car dealer but then does not register under the Used Car Dealers Registration Act is entitled to a refund of the $25.00.
On July 1, 1964, this office rendered an unofficial opinion on this subject. That opinion states in part:

"Even though the dealer may thus be prohibited from receiving and using the tags [because he did not register under the Used Car Dealers Registration Act], the dealer is nevertheless liable for the occupation tax of $25 and must pay the same irrespective of the fact that he cannot use the dealer tags."

This is true regardless of whether the person decides not to go into the used car business and does not attempt to register under

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the Used Car Dealers Registration Act or whether he attempts to register but does not qualify under the Act. (See Williams v. The City Council of West Point, 68 Ga. 816 (1882) and Ga. Code Ann. 20-1007, Voluntary Payments; Recovery Back.)
Therefore, it is my official opinion that a person who has paid the occupational tax as a used car dealer but who is prohibited from receiving and using the "dealer tags" because he did not register under the Used Car Dealers Registration Act is not entitled to a refund of the occupational tax.

OPINION 69-168 (Unofficial)

To: Clerk, Bartow Superior Court

April 22, 1969

Re: Clerks of the superior courts and their staffs may not elect to come under the Employees Retirement System.

This is in response to your inquiry whether clerks of superior courts and their staffs can elect to come under the Employees Retirement System of Georgia by virtue of H. B. No. 561 (i.e. Ga. Code Ann. Ch. 92-8).
Section 4 of H. B. No. 561 (Ga. Code Ann. 92-804) states:

"The clerks of the superior courts of the several counties of this State are hereby designated and made agents of the State Revenue Commissioner for the purpose of collecting the tax provided in this Act. . . . In the performance of the duties imposed by the provisions of this Act, said clerks of the superior courts shall be entitled to a fee in addition to all other fees now or hereafter provided by law of twenty-five cents ( .25) for each deed, instrument or other writing requiring tax to be paid thereon as provided in this Act and filed for record and recorded in the county wherein any such clerk of the superior court holds office. Said fee shall be paid by the State Revenue Commissioner from the funds remitted to the State Revenue Commissioner from the funds received from the tax collected as provided in this Act or from the funds appropriated to or otherwise made available of the Department of Revenue of the State of Georgia. The said fees received by said clerks of the superior courts shall be distributed as follows:
(a) In the event the clerk of the superior court receiving such fee is compensated on a salary basis, the amount of said

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fees so received shall be paid into the treasury of the county, and
(b) In the event the clerk is not compensated on a salary basis, the amount of fees so received by any such clerk of the superior court shall be retained by said clerk."
The paramount issue, of course, is whether clerks of the superior court can be considered employees of the State Revenue Department by virtue of H. B. No. 561 and thus be eligible for membership in the Employees Retirement System of Georgia.
Ga. Code Ann. 92-8413 authorizes the State Revenue Commissioner to employ personnel for office and field staff and goes on to say in relevant part:
". . .All employees engaged directly or indirectly in the assessment, investigation, or collection of tax under this Chapter shall be employed upon a fixed salary basis and not upon a commission or contingent fee basis. . . " (Emphasis added.)
Under H. B. No. 561 (Ga. Code Ann. 92-804), the clerks of the superior courts are entitled to a fee for the performance of their tax-collecting duties imposed by the provisions of said Act. In light of this and that portion of Ga. Code Ann. 92-8413 quoted previously, it is my belief that the Legislature did not contemplate the creation of an employer-employee relationship between the State Revenue Department and clerks of the superior courts of Georgia when it passed House Bill No. 561.
Even assuming arguendo that clerks of the superior courts are employees of the State Revenue Department by virtue of H. B. No. 561, Ga. Code Ann. 40-2501(5) would seem to exclude said clerks from the retirement system by defining "member" for purposes of the Act as:
". . .any employee included in the membership of the retirement system as provided in section 40-2503. No person shall become a member on and after July 1, 1967, unless the position in which he is serving is his primary occupation and such position requires the actual performance of duties for at least a number of hours specified in regulations adopted by the board of trustees but in no case shall such number of hours be less than 30 hours per week during at least nine months of a year." (Emphasis added.)

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Therefore, it is my opinion that clerks of the superior courts and their staffs may not elect to come under the Employees Retirement System of Georgia by virtue of H. B. No. 561.

OPINION 69-169 (Unofficial)

To: Deputy State Auditor

April24, 1969

Re: County board of education cannot ordinarily enter into a contract or execute notes creating a fiscal obligation extending beyond the current fiscal year.

This is in reply to your letter of April 22, 1969, in which you request an opinion as to the legality of two transactions of a county board of education. Both transactions involve notes payable over a period of years which the board executed in connection with certain real property acquisitions, and while your question is broadly directed towards the legality of the transactions in general, I proceed on the assumption that your more precise concern is the term of the school board's fiscal obligations (i.e. in excess of one year) 1 In answering this question, I must, in the absence of information to the contrary, proceed upon the further assumption that the notes in question were not assented to by the voters of the county in an election held for that purpose (e.g. a bond election), and that the county
school board's action was not taken pursuant to any special or local constitutional amendment which would remove the board from the operation of the general "debt" provisions of the Constitution of the State of Georgia of 1945.
Based strictly upon these factual assumptions, my opinion, along with the reasons therefor, is as follows:
The county board of education was without legal authority to enter into either of the transactions in question. Art. VII, Sec. VII, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-6001), with certain exceptions which are not here relevant, prohibits any political subdivision of the State from incurring a debt without the assent of a majority of the qualified voters of the subdivision voting in an election for that purpose as prescribed by law (e.g. the statutes relating to bond elections). It is

1. It would, of course, be an almost impossible task to state whether the transactions are legal in each and every respect. This would involve factual investigation as to genuineness of signatures, proper authorization, presence of fraud, etc.

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well settled that the term "debt," as used in the constitutional provisions, refers to any pecuniary obligation which is not payable during the year in which it is incurred, either from funds then in the treasury or from sums to be raised by taxation during the year. E.g. City Council of Dawson v. Dawson Waterworks Co., 106 Ga. 696, 713 (1899). Contracts and notes which would have fiscally obligated the executing political subdivision for a term extending beyond the year in which they were incurred have uniformly been held to be void and unenforceable under this constitutional provision. E.g., Richmond County v. McElmurray, 223 Ga. 440, 443 (1967); Barwick v. Roberts, 188 Ga~ 655, 658 (1939); Butts County v. Jackson Banking Co., 129 Ga. 801,804 (1908). The constitutional requirement of paying "current expenses each year from funds belonging to that year," Renfroe v. City of Atlanta, 140 Ga. 81, 86 (1913), is also contained in the school laws pertaining to expenditures by boards of education. Ga. Code Ann. 32-928 provides in relevant part:
"It shall be unlawful for any board of education to make any contract involving the expenditure of funds in excess of the total appropriation for the current fiscal year..."
Accord: Op. Atty. Gen., 1963, p. 221; 1962, p. 186. It is noted, on the other hand, that with respect to the initial
transaction referred to by your letter, the issue may well be academic due to the fact that the long term (and hence unlawful) note has been- completely paid off. This being so, it is unlikely that the board of education would have any legal remedy to recover the principal or interest paid. Where the consideration for a contract is found to be illegal under the constitutional provision, the approach of the courts in the past has been to leave the parties exactly where it finds them. See, e.g., City ofEastman v. Georgia Power Company, 69 Ga. App. 182, 190. (1943); City of Jeffersonville v. Cotton States Belting & Supply Co., 30 Ga. App. 470, 472(7) (1923). It may also be noted that even where the contract is repudiated prior to execution, the party dealing with the city, while having no action on the contract, has been allowed to recover through actions in the nature of suits for monies had and received (in order to prevent "unjust enrichment" of the political subdivision). See, e.g., Barwick v. Roberts, 188 Ga. 65 5, 658 (1939); Butts County v. Jackson Banking Co., 129 Ga. 801, 807 (1908); City of Eastman v. Georgia Power Co., 69 Ga. App. 182, 192 (1943).

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OPINION 69-170

To: Director, Employees Retirement System

April24, 1969

Re: Solicitor Pro Tern. of City Court of Soperton is not subject to Act creating Trial Judges and Solicitors Retirement Fund.

Please refer to your letter of February 20, 1969, wherein you request my official opinion as to the membership status of a particular individual in the Trial Judges and Solicitors Retirement Fund.
According to the information you furnished, said individual took the oath of solicitor pro tempore of the City Court of Soperton on January 2, 1969. His term expires upon the election of a solicitor for said court.
Ga. Code Ann. 78-1308, which stipulates who shall be members of the Trial Judges and Solicitors Retirement Fund, states in relevant part:

"(a) Any person, except as otherwise provided in subsection (c) of this section, becoming a superior court judge or solicitor general for the first time, or a judge or solicitor of an inferior court, after June 30, 1968, shall be a member of the Trial Judges and Solicitors Retirement Fund, and shall begin making employee contributions into said fund as provided for hereinafter."

Section 3 of an Act amending an Act creating the City Court of Soperton, Ga. Laws 1937, pp. 1210, 1211, provides in relevant part:

"Section 3. . . .If for any reason the solicitor is disqualified or is absent when his services as solicitor are required, the judge of said court shall appoint a solicitor pro tern., who shall, for the time or cases appointed, discharge the duties of solicitor. For services rendered as solicitor pro tern., the solicitor of said court shall pay from his salary; and in event the solicitor and solicitor pro tern. cannot agree on the compensation for such services, it shall be the duty of the judge to fix the same, and when so fixed the solicitor shall be liable therefor and shall pay same." (Emphasis added.)

In my view, the issue is whether the solicitor pro tern. of the City of Soperton is considered a solicitor for purposes of the Trial

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Judges and Solicitors Retirement Fund Act. It should be noted at the onset that the Act creating the Trial Judges and Solicitors Retirement Fund fails to define "solicitor" as used in said Act. However, it is persuasive to note that the Act establishing the City Court of Soperton, as amended, provides that the office of solicitor of said court shall be an elective office to be held for the same term as that of the judge of said court (see Ga. Laws 1927, pp. 464, 465); whereas, as noted above, the office of solicitor pro tern. is an appointive office to be held only for the time or cases appointed. Hence, it is clear that the office of solicitor and solicitor pro tern. are separate and distinct.
Consequently, based on the proposition that the words of a statute are to be taken according to their ordinary signification, see Ga. Code Ann. 102-102, it is my official opinion that failure to expressly include the solicitor pro tern. of the City Court of Soperton within the purview of the Act creating the Trial Judges and Solicitors Retirement Fund evidences a legislative intendment that he not be included. Accord, Burks v. Board of Trustees of the Fireman's Pension Fund of the City of Atlanta, 214 Ga. 251, 254 (1958).

OPINION 69-171 (Unofficial)

To: Private Inquirer

Apri124, 1969

Re: Movement of domicile a question of fact to be determined administratively by the State Revenue Commissioner.

This is in reply to your letter dated Aprill4, 1969, inquiring as to whether a person is liable for Georgia income taxes for a period of approximately four years during which such person resided in other states as the result of a series of transfers by his employer.
According to your letter, the person involved resided in Georgia both before being transferred and after his retirement at the end of the four year period. The letter implies that such person was a legal resident or domiciliary of Georgia at the time he was transferred from Georgia.
Ga. Code Ann. 92-3101 imposes a tax upon the entire net income of every resident of Georgia. After providing that every natural person who is a legal resident of Georgia on December 31 of the calendar year shall be a resident for Georgia income tax purposes, Ga. Code Ann. 92-3002(i) provides that every person who becomes a resident of Georgia for income tax purposes by reason of being a legal resident on December 31 "shall be deemed

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to continue to be a resident of Georgia until such person shows to the satisfaction of the State Revenue Commissioner that he has become a legal resident or domiciliary of another state."
To become a legal resident or domiciliary of another state one must not only reside there but must do so with the intention of giving up his legal residence or domicile in Georgia. Bush v. State, 10 Ga. App. 544, 546 (1911). In other words, the act of residing in another state must be accompanied by the requisite intent. Ibid. One without the other is not sufficient.
Intent, of course, is a question of fact which, in case of conflicting evidence, must be resolved by a jury. Harkins v. Arnold, 46 Ga. 656 (2) (1872); Forlaw v. Augusta Naval Stores Co., 124 Ga. 261 (1905); Lamar v. Mahony, 1 Ga. 400 (1832). In resolving the question, the jury is not bound by the declarations of the person whose legal residence or domicile is under scrutiny. Lamar v. Mahony, 1 Ga. 400 (183 2). In fact, one's acts usually speak louder than his words in determining his domicile. E. I. DuPont De Nemours & Co. v. Byrnes, 101 F.2d 14 (2nd Dist., 1939); Canadian Pac. Ry. Co. v. Wenham, 146 F. 207 (C.C.S.D.N.Y., 1906).
Incidentally, it should be noted that even though a person remains a legal resident of Georgia and is thereby subject to the Georgia Income Tax Act, Ga. Code Ann. Chs. 92-30, 92-31, 92-32--although residing in another state-that person is entitled to a credit against his Georgia income tax liability for income taxes paid to the other state on income earned as a result of employment in such state, subject to the limitation that the credit shall not exceed the tax which would be due Georgia upon a like amount of taxable income. Ga. Code Ann. 92-3111. Thus, if the taxes paid another state under such circumstances should equal or exceed that which would otherwise be due Georgia, there would be no liability to Georgia.
Since the question you pose depends upon intent and intent is a question of fact, I am of the opinion that it should be resolved administratively by the State Revenue Commissioner after giving consideration to the presumption contained in Ga. Code Ann. 92-3002(i) and the evidence, if any, bearing on the question of intent.

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OPINION 69-172 (Unofficial)

To: Regents of the University System of Georgia

April24, 1969

Re: Searches and seizures must be made in conformity with the provisions of Ga. Code Ann., Ch. 27-3.

This is in response to your request for an opinion concerning the conditions under which an automobile may be searched the grounds of institutions in the University System by campus security officers.
Only unreasonable searches are constitutionally prohibited, but "The test of reasonableness cannot be stated in rigid and absolute terms." Watts v. Cannon, 224 Ga. 797, 798 ( 1968). The reasonableness of each search must be decided with reference to the specific facts and circumstances surrounding the search.
A search may be lawfully conducted and items lawfully seized under the following circumstances: (1) when permission to search has been obtained, (2) when a warrant to search and seize has been obtained, and (3) when the search is conducted without a warrant but as an incidental adjunct of a lawful arrest.
An officer may lawfully search for and seize items when permission to conduct the search has been freely and voluntarily granted by the person for whose benefit the constitutional prohibition exists. Ferguson v. State, 219 Ga. 33 (1963), cert. denied, 375 U.S. 913, 84 S.Ct. 210, 11 L.Ed.2d 152. As a general proposition, permission to search a vehicle which has been freely and voluntarily given by the driver is sufficient. There may be instances, however, in which consent of the driver would be insufficient; for example, where a student is operating a machine subject to the control and direction of the owner who is also present in the automobile.
Items which are subject to seizure and which are plainly exposed to public view in an automobile may be seized without a warrant and without consent. For example, a weapon lying on the seat of an automobile and observable merely by looking through the windows is not the object of a "search" within the meaning of the Constitution.
Vehicles may be searched by virtue of the authority granted by a search warrant issued pursuant to Ga. Code Ann., Ch. 27-3. I am enclosing a copy of this chapter of the Annotated Code with this opinion. As the statutory provisions relating to the issuance and

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use of search warrants are clear, I shall not elaborate upon the specific provisions. Although the statute does not specifically state that the judicial officer to whom application for the warrant is made must be a judge in the county in which the search is to be conducted, application for the warrant may properly be addressed only to a judicial officer in the county in which the search is to be conducted. Although the statute does not prescribe that information submitted to the judicial officer for the procurement of the warrant be submitted within a given number of days after development of the information, this Department recommends that information submitted to the judicial officer as probable cause for the issuance of a search warrant be not more than ten days old.
A search may be. conducted without a warrant and without permission provided the search is conducted as an incidental adjunct to a lawful arrest. Abrams v. State, 223 Ga. 216 (1967). A warrantless search of an automobile must be conducted pursuant to the provisions of Ga. Code Ann. 27-301. Rowland v. State, 117 Ga. App. 577 (1968). As a copy of the entire chapter relating to searches and seizures is appended to this opinion, I shall not restate the provisions of Ga. Code Ann. 27-301 in this opinion. I wish to direct your attention to the provisions in Ga. Code Ann. 27-301 which require that the items seized be related to the crime for which the person is arrested. The vehicle of a driver who has been stopped solely because of a traffic offense may not be searched for items which have no relationship to the crime for which the driver has been arrested. Rowland v. State, supra. In summary, a warrantless search may be conducted only as an incidental part of and contemporaneously with a lawful arrest.
Ga. Code Ann., Ch. 27-3 authorizes "peace officers" and officers "of the State or its political subdivisions charged with the duty of enforcing the criminal laws" to conduct searches. Ga. Code Ann. 27-301 and 27-303. It is my opinion that the individuals who have been granted arrest powers on premises under the jurisdiction of the Board of Regents, pursuant to Ga. Laws 1966, p. 370, would be authorized to conduct searches pursuant to Ga. Code Ann., Ch. 27-3.
Searches and seizures must be conducted with the greatest circumspection and precisely in the manner authorized by the Code. Failure to conduct a search in the proper manner will cause the items seized to be inadmissible as evidence. Additionally, officers who do not properly execute police powers are subject to suit.

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OPINION 69-173

To: Secretary of State

April25, 1969

Re: Justices Of The Peace, Constables And Notaries Public Ex-Officio Justices Of The Peace may act in a hold-over capacity and discharge the duties of their offices until their successors are commissioned and qualified.

You have requested my official opinion on the following questions:

1. Where there is no justice of the peace or constable elected in the November general election and there is an incumbent in office, does the incumbent act in a hold-over capacity until his successor has been elected and commissioned? 2. If the Grand Jury fails to make recommendation for appointment of a notary public ex-officio justice of the peace at the proper term of court, does the incumbent act in a hold-over capacity until his successor has been appointed and commissioned?

Georgia law requires all officers of this State to discharge the duties of their offices until their successors are commissioned and qualified. Ga. Code Ann. 89-105. For the application of this Code Section to the offices of justice of the peace and notaries public ex-officio justices of the peace, see Op. Atty. Gen. 195 7, p. 54, and 1958-59, p. 54, respectively. I am not aware of any rule of law which would require an interpretation in the instance of a constable different from the official opinions set out above.
It is therefore my opinion that justices of the peace, constables and notaries public ex-officio justices of the peace act in a hold-over capacity and discharge the duties of their offices until their successors are commissioned and qualified and both of your questions are answered in the affirmative.

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OPINION 69-174

To: State Auditor

April25, 1969

Re: Public official will be excused from carrying out official duty upon failure of legislature to appropriate funds for performance.

This is in answer to your letter of April 16, 1969, in which you raise the question of a public official's responsibility for performance of a statutory duty when he lacks funds necessary to carry out the same. Your letter indicates that your particular dilemma stems from Ga. Code Ann. 92-7008 to 92-7013. These statutory provisions direct you to establish an equalized adjusted school property tax digest for each county of the State and for the State as a whole, and require you to furnish the same to the State Board of Education on or before February 1, 1965, and each year thereafter. 1 It appears from your letter that a special $350,000 appropriation originally contained in the 1969 appropriation bill for this undertaking has been stricken, and that you do not have the funds necessary to carry out this official duty. 2 You request an opinion as to your proper course of action.
My opinion and the reasons therefor are as follows:

OPINION While Georgia law on the subject is by no means clear, it would appear that a public official of this State will be excused from carrying out an official duty upon failure of the General Assembly to appropriate funds for performance, if, but only if, he is able to show that the resulting lack of funds, together with an inability to obtain the same, make performance impossible. Failure of the General Assembly to appropriate monies for a specific official duty might not justify a failure to perform where the official has received a general appropriation and could divert a portion thereof to carry out his statutory or official duty.

1. The State Board of Education utilizes the tax digest to calculate the ability of local school systems to raise local funds in support of the Minimum Foundation Program of Education Act and the consequential level of State support. See Ga. Code Ann. 32-622.
2. Pursuant to Ga. Laws 1968, p. 283, the State Auditor was excused from preparing and furnishing the digest during 1968, but this one year suspension of the duty has now passed.

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DISCUSSION The legal context in which questions of the failure of public officials to perform their official duties ordinarily arise are mandamus suits to compel performance. In Georgia, this remedy is provided by statute. Ga. Code Ann. 64-101 declares:
"All official duties should be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure or improper performance, the writ of mandamus may issue to compel a due performance, if there shall be no other specific legal remedy for the legal rights."
The action is readily available to any citizen seeking to have the laws executed and public officials perform their official duties; no special interest need be shown. See Ga. Code Ann. 64-104.
Impossibility of performance, on the other hand, is universally recognized as a defense in mandamus proceedings. See e.g. Hollis v. Jones, 187 Ga. 14, 19 (1938); 55 C.J.S. Mandamus 14. Ga. Code Ann. 64-106 states:
"Mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless...."
The precise question at hand is the extent to which a public official may rely upon a failure of the Legislature to appropriate funds for his.carrying out of an official duty (and a consequential lack of funds with which to proceed) in making out an "impossibility of performance" defense.
In most jurisdictions, it would appear that a showing of a want of funds, coupled with a lack of means of obtaining them, is sufficient reason for denial of the writ. See 34 Am. Jur. Mandamus 39; 55 C.J.S. Mandamus 14. In reference to official duties respecting public works and improvements, it has been generally stated that:
"Public officials may not be compelled to act if they have no funds with which to proceed,"
and that where an administrative board:
" ... is charged with the duty of performing several acts involving expenditures, and there are no funds available sufficient to permit the performance of all, courts will not ordinarily by mandamus direct the board which act to perform and which to leave unperformed." 55 C.J .S. Mandamus 174.

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There is no question but that Georgia adheres to this general rule in situations where the official duty in question is the paying out of public funds. It is indeed required to do so by its Constitution. Art. III, Sec. VII, Par. XI of the 1945 Constitution (Ga. Code Ann. 2-1911) provides:
"No money shall be drawn from the Treasury except by appropriation made at Law."
It was early settled that the State Treasurer would not be compelled to pay out monies from the Treasury unless and until there was an appropriation of the same by the General Assembly. See Gurnee, Jr. & Co. v. Speer, Treasurer, 68 Ga. 711 (1882); Park, Treasurer v. Candler, Governor, 113 Ga. 647 (1901). Hence in Maynard v. Thrasher, 77 Ga. App. 316 (1948) [cert. denied], where plaintiff sought a declaratory judgment against the State Auditor and State Revenue Commissioner respecting his statutory right to a 2% dealer's refund of motor fuel taxes, the Court of Appeals upheld an opinion of the Attorney General (i.e. Op. Atty. Gen. 1945--47, p. 580) to the effect that State officials could not lawfully comply with the statutory refund provision unless and until the funds required for performance were appropriated by the General Assembly.
With respect to statutory duties other than the disbursement of public funds the answers are less clear. Because of a paucity of relevant decisions by the Georgia courts, for example, one cannot definitively declare the level or degree of evidence which the Georgia courts will require to show that absence of legislative appropriation and resulting inadequacy of funds was tantamount to impossibility of performance. In contrast to the apparent majority rule that a showing of ( 1) a lack of funds available and (2) means to obtain the same will suffice, 34 Am. Jur. Mandamus 39; 55 C.J.S. Mandamus 14, some states have placed an extraordinarily heavy burden of proof on a public official seeking to equate absence or inadequacy of funds with impossibility of performance. An example of the strict approach is seen in Commonwealth v. Griest, 196 Pa. 396, 46 A. 505 (1900). There the Secretary of the Commonwealth of Pennsylvania bore the official duty of causing a proposed constitutional amendment to be advertised in newspapers throughout the State. His defense in a mandamus action to compel performance of such duty was the failure of the legislature to appropriate funds to defray publication expenses. In rejecting the Secretary's contention the Pennsylvania Court explained:

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"Two other questions arose.... The first of them is that, as no appropriation was made of monies from the public treasury to defray the cost of publication in the newspapers, the secretary of the commonwealth could not lawfully make the publication. We do not consider that this question is of any serious force, because, in the first place, it does not appear, and is not averred, that any newspapers have refused to make the publication without being paid or secured for the cost, or even that any of them have been asked to make the publication. The secretary is not, therefore, able to say that he cannot make the publication for the reasons stated, and hence such inability cannot be set up as a bar to the enforcement of the Act proposing the amendments. It was at least his duty to try and make publication, before he could be heard to say that it could not be done. But, in the next place, the mandate of the Constitution is upon him, and he must obey it in terms. If it is utterly impossible for him to obey it literally, he can make that clear to the Court, stating the reasons; and then it would be for the Court to determine, in a proper proceeding, whether the publication can be made or not." (Commonwealth v. Griest, supra 196 Pa. 396, 46 A. 505, 510.)
A similarly stringent view was taken by the Supreme Court of Florida in State v. Milam, 113 Fla. 491, 153 So. 125 (1933), where defendants, as members of a public board, were required by statute to prepare and publish county tax lists. In response to a mandamus petition to compel their performance of such duty, the officials answered that because of the State Treasurer's refusal to honor warrants, they were wholly without funds needed for postage, clerical help, office expenses, administrative costs. Citing Griest and noting that the Board was (1) empowered to borrow money temporarily, (2) had failed to allege any effort to have any of the necessary work done, and (3) failed to allege any refusal of anyone approached to do any work or perform any act or duty. unless the funds for paying for such service were in hand, the Court held that the officials were required to prepare the required tax lists, notwithstanding the fact that funds might not be readily available to cover the expenses of the undertaking.
There is at least some indication that in cases other than those where the official duty in question is the disbursement of public funds, the Supreme Court of Georgia leans toward the stricter view. In Savannah & Ogeechee Canal Co. v. Shuman, 91 Ga. 400, 402-403 (1883 ), the Court, in rejecting a private corporation's

232
mandamus defense that it lacked, and had no means of obtaining, the funds necessary to carry out its Charter duty of maintaining a canal in navigable condition, declared:
"As to the validity of the other reason alleged for failing to put the canal in a navigable condition, viz: that the company is without funds, and without means of obtaining funds, the question is by no means so clear.... While it is quite certain that if the company has no funds now, nor any means of obtaining them, and remains permanently in this condition, compliance with the judge's final order will be impossible ... there may be a change in the present condition of things, and the officers of the company may be able tu find some way to raise the money in order to obey the mandate of the Court. At any rate, they should make a bona fide effort to do so. If, because of the want of means, they cannot comply with the writ, and if, after due diligence, they remain unable to procure the necessary means for this purpose, and make these things appear to the Court in any proceedings for contempt which may be instituted against them, we apprehend the presiding judge would take great care to see that no injustice or hardship was imposed upon them, and certainly would not inflict punishment for a failure to do a thing impossible of accomplishment."
Savannah & Ogeechee Canal Co. was followed more recently in Crow v. McCallum, 215 Ga. 692, 697 (1960), where a mandamus defense based upon lack of funds in the city treasury and lack of authority to levy taxes was disallowed. In the words of the Court:
"While lack of means may avail as a reason for not inflicting punishment for disobedience of the writ, it does not afford a conclusive reason for not granting it."
In light of Savannah & Ogeechee Canal Co. v. Shuman and Crow v. McCallum, 3 it would seem that with respect to official duties other than the disbursement of public funds, a public official of Georgia, in order to be held by the courts to be excused
3. But cf.Hollis v. Jones, 187 Ga. 14, 19 (1938).

233
from performance, would, generally speaking,4 probably be required to make a clear and convincing showing that the resulting lack of funds, coupled with an inability to obtain the same, caused performance to be factually impossible. If, for example, he had received a general appropriation, a portion of which could lawfully be diverted and used to carry out the official duty in question as well as his other responsibilities, he might very well be compelled to perform even where performance would hinder or curtail performance of other of his official duties and responsibilities.
With respect to your specific problem of complying with the mandate of Ga. Code Ann. 92-7008 to 92-7013 to establish equalized adjusted school property tax digests and furnish the same to the State Board of Education, I am, of course, not in a position to say whether the striking of the special $350,000 appropriation required to properly establish the digest renders your compliance with the cited code sections a factual impossibility. This would be a matter of proof, probably depending in large measure upon what other funds you have available for the undertaking, the extent to which prior calculations and studies could be utilized, and what steps, if any, could be taken under your present budget. Whether the "final word of the General Assembly" argument suggested in footnote 4 would avail is, of course, wholly speculative.
Considering the rather unsettled state of the law in Georgia on the subject, it would seem that the prudent course of action would be for you to use your best efforts to prepare the equalized adjusted school property tax digests and furnish the same to the State Board of Education. If, notwithstanding your best efforts, it should subsequently prove to be impossible to establish the same,
4. Differing factual settings might prove to be quite decisive. Where an official receiving a general appropriation for his overall operation is directed by the Legislature to perform a duty additional to those already borne and no additional appropriation is given, it may be inferred that it is the legislative intent that he shall use his existing appropriation to carry out the new duty. Where he receives a line item appropriation and there is no line item to cover a new and additional duty, a different inference might be drawn. Here it might be argued that the General Assembly desired performance only as funds might become available in the future. Finally, where a specific or special appropriation to perform an existing duty is expressly stricken by the General Assembly, it is arguable that this the last word of the General Assembly is that the public official refrain from carrying out its earlier mandate (i.e. the statutory duty).

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you would then be in a most favorable position possible to offer clear and convincing proof to a court as to the precise reasons why the lack of funds has in fact rendered performance impossible.

OPINION 69-175

To: Secretary of State

April 28, 1969

Re: Constable may arrest a sheriff.

You have requested my opinion on whether Georgia law allows a constable in his district to arrest a sheriff.
The Georgia law specifically provides certain instances where persons are privileged from arrest, but nowhere have I found an exemption from arrest on behalf of a sheriff. See, e.g., Ga. Code Ann. 27-202, 27-203, 27-204, 34-607. Unless the law has carved out an exemption, it is the general rule that no one is immune from arrest. 5 Am. Jur. 2d., Arrest 102. Of course, the grounds for arrest must be the same as would allow the constable to arrest in any other circumstance.
It is therefore my opinion that Georgia law allows a constable in his district to arrest a sheriff under the same circumstances as the constable could arrest other persons.

OPINION 69-176

To: State Highway Department of Georgia

April 28, 1969

Re: Appropriations.

This is in reply to your letter of April 22, 1969, in which you request my official opinion as to how the State Highway Department may propose a budget and expend funds in fiscal 1969--70 due to an apparent error in the Appropriations Bill.
The problem will be best understood by quoting from your letter in which you state:

"House Bill No. 77, which is the General Appropration Act adopted by the recent session of the General Assembly, requires a decrease in the State Highway Department budget as recommended by the Governor of $30,100,000. An explanation of the difference between the Governor's recommended budget and the budget passed by the General Assembly, with the decrease of $30,100,000. is as follows:

235

1969-70 GOVERNOR'S RECOMMENDATION

AS PASSED BY GENERAL ASSEMBLY

DIFFERENCE

"General Operations $ 9,325,000. $ 9,325,000.

"Authority Lease Payments

19,900,000. 19,900,000.

"Maintenance & Betterments

43,436,344. 43,436,344.

"Planning & Construction

85,422,393. 55,322,393. 30,100,000 $158,083,737. $127,983,737. $30,100,000

"The following is a comparison between the budget passed by the General Assembly and the budget submitted by the State Highway Department to the Budget Bureau eliminating the $30,100,000.

1969-70

AS SUBMITTED

AS PASSED BY

BY STATE

GENERAL ASSEMBLY HIGHWAY DEPT.

DIFFERENCE

"General Operations $ 9,325,000. $ 9,325,000. $

"Authority Lease Payments

19,900,000. 19,900,000.

"Maintenance & Betterments

43,436,344. 27,094,528. +16,341,816

"Planning $ Construction

55,322,393. 71,664,209.-16,341,816 $127,983,737. $127,983,737. $ 0,000

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"The Appropriation Bill adopted by the General Assembly, however, in Section 50-C, through error or inadvertence, is as follows:
"Maintenance and Betterments

1969-70

$ 43,436,344.00

1970-71

$ 43,436,344.00

"Planning and Construction

1969-70

$ 55,322,393.00

1970-71

$ 55,322,393.00

"There is a cross of $16,341,816. between the appropriation for Maintenance and Betterments and the appropriation for Planning and Construction. There is no difference in the total appropriation.

"Section 52-C of the Appropriations Bill provides in part:

" . . . Provided, however, that funds shall be allocated to matching all Federal aid funds prior to the allocation of any funds for other works, ...."(Emphasis added.)

"It is estimated for the next fiscal year that this will amount to $39,926,598. Georgia Code, Section 95-1609 (J), provides, among other things, that in no event shall less than 15% of the total of all State Highway funds be set aside for the purposes specified in this law. This will amount to $19,197,561.
"The total for matching Federal-aid and the funds to be spent for the last mentioned purpose amounts to $59,124,159. The problem is that there is only $55,322,393. available for matching Federal-aid and setting aside at least 15% as provided by law.
"Unless the Highway Department can operate with a total in the Budget for Planning and Construction of $71,664,209 ., we will be without the necessary funds to pay the salaries and expenses of all personnel assigned to our six Division Offices,

237
Field Surveys, Preparation of Plans, Research and Analysis, and Highway Planning for work performed on projects, tests, etc., that are not a part of the Federal Aid Programs."
You then ask the question "How may State Highway Department propose a budget and expend funds in fiscall969-70, keeping in mind the Appropriations Bill with the apparent error and the laws requiring the expenditure of funds for specified purposes? ".
Please refer to Art. VII, Sec. II, Par. III (Ga. Code Ann. 2-5503), Art. III, Sec. VII, Par. XI (Ga. Code Ann. 2-1911), and Art. VII, Sec. IX, Par. IV of the Constitution of Georgia (Ga. Code Ann. 2-6204).
This last-cited constitutional provision is clear and unambiguous in directing the General Assembly, in the enactment of the General Appropriation Act, to appropriate the amounts under the formula provided therein, and just as clearly provides the condition under which such funds shall be expended for highway purposes. The condition attached to the expenditure of such appropriations made by the General Assembly is that such amounts are subject to all laws, rules, regulations and restrictions imposed on expenditure of appropriations by the provisions of the State Constitution and other laws enacted by the General Assembly. The amendment does not in any manner appropriate funds to the Highway Department.
This simply means that this amendment directs the General Assembly, in the enactment of a General Appropriation Act, to appropriate certain funds conditioned upon the expenditure thereof on the same basis and procedure provided under the constitutional and statutory budget laws for the expenditure of appropriations by all other State agencies.
Art. VII, Sec. IX, Par. II, of the Constitution of Georgia (Ga. Code Ann.. 2-6202) provides:
"Paragraph II (a) Each General Appropriation Act, now of force or hereafter adopted with such amendments as are adopted from time to time, shall continue in force and effect for the next two ensuing fiscal years after adoption and it shall then expire except for the mandatory appropriations required by this Constitution and those required to meet contractual obligations authorized by this Constitution and the continued appropriation of Federal grants."
The provisions continued in force and effect is the General Appropriations Act which you have referred to as House Bill No. 77 (not yet codified).

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An appropriation is made by the General Assembly on the assumption of anticipated income or revenue to the State during the existence of the Appropriations Act. It is not based upon money or revenue actually in the State Treasury.
Therefore, certain safeguards, in the form of a State Budget Bureau, were created by the General Assembly to supervise expenditure or disbqrsement of funds actually in the State Treasury during the existence of an Appropriations Act, and to keep such expenditures and disbursements within the bounds of anticipated income.
Ga. Code Ann. Ch. 404 established in the Executive Department a Budget Bureau for the purpose of promoting economy and efficiency in the management of the State's finances. See particularly Ga. Code Ann. 40402, 40405, 40-413,40-414,40415,40416, and 40417.
Obviously, a department of the State Government is entitled to disburse or expend the total amount appropriated to such agency, as contained in the General Appropriations Act, if such funds were actually in the State Treasury. The only control by which an agency or department of State can be prevented from making expenditures in excess of the funds actually on hand is through the controls authorized by the general budget laws of this State, as continued in force under constitutional and statutory authority.
Under the above-cited authorities, regardless of the amount of appropriation made in the General Appropriations Act, it is not available for expenditure by any agency of the State until it is approved by the Budget Bureau on the quarterly budget and the amount so approved is the limitation that is expendable by State agencies.
After thorough analysis of the constitutional and statutory authorities applicable to the question under consideration, it is my official opinion that your department may submit a budget as though $71,664,209.00 had actually been appropriated for planning and construction and you may thus operate with the approval of the Budget Bureau so that the Governor, as head of the Budget Bureau, may execute his warrant on the treasury for funds requested by the Budget unit which, in this case, is State Highway Department; the only. limitation being, after Budget Bureau approval, the department could draw and spend under planning and construction not more than $55,322,393.00.
It is my hope that the next session of the General Assembly will eliminate this problem by appropriate legislation. I understand that there are enough funds appropriated under planning and construction to carry out the purposes specified under the laws and your department's budget proposal to last eight or nine

239

months. Consequently, the next General Assembly will, in all probability, correct the situation by amending the Appropriations Bill to conform to your requested or submitted distribution requirements.
OPINION 69-177

To: Sales and Use Tax Unit, Department of Revenue

April28, 1969

Re: Transfer for consideration of architectural renderings and three dimensional models are sales of tangible personal property and subject to the tax imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act.

This is in response to your inquiry whether the transfer, for a consideration, of architectural renderings and models, drawn and constructed by a craftsman, to architects, constitutes sales of tangible personal property subject to the Georgia Sales and Use Tax Act.
It appears that an architectural rendering is a full-color perspective presentation of a proposed building and site drawn to scale directly from the architect's blueprints. They are made by the craftsman from specifications and dimensions in blueprints provided by the architect. An architectural model is essentially the same as a rendering except that it is three dimensional. They serve to demonstrate realistically how the architect's project will appear when completed.
In Green v. Squrovsky, 133 So. 2d 663 (Fla. App., 1961 ), the court held that the transfer to architects for consideration of renderings consisting of bristol board representations from sketches and plans furnished by the architect was a taxable sale of tangible personal property under the Florida Sales and Use Tax Law. The Florida Act, as does Section 3(c)2(a) of the Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. Laws 1951, pp. 360, 365 (Ga. Code Ann. 92-3403a C(2)(a)), exempts " ... professional . . . or personal service transactions which involve sales as inconsequential elements for which no separate charges are made. . . ." The Florida Court held this exemption was not applicable, stating:

"Unquestionably personal services of the artist or craftsman furnish or bring about the main value of the product. But it is the product which is sold, and the renderer's services without the product would not be of any value to the architect. The

240

sale can not be said to be 'inconsequential.' It is comparable to an artist's preparation and sale of a portrait to a customer. The customer buys the resultant portrait. It is the product which represents the value, after the services have been performed which bring it into being." (at page 667)

See also Albers v. State Board of Equalization, 237 Cal. App. 2d 494, 47 Cal. Rptr. 69 (1965); Glushak v. City of New York, 6 App. Div. 2d 381, 178 N.Y.S.2d 33 (1958).
It is, therefore, my official opinion that the transfer for consideration of renderings and three dimensional models, both made from blueprints and designs furnished by architects, to such architects are sales of tangible personal property subject to the tax.imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act.

OPINION 69-l78 (Unofficial)

To: Georgia Association of Justices of the Peace and Constables

April 28, 1969

Re: Justice of the peace is authorized to perform marriage ceremony at any place a judge, city recorder or minister of the gospel might perform such ceremony.

You have requested my unofficial opinion on whether a justice of the peace commissioned in "A" county has the legal authority to perform a marriage ceremony in "B" county.
I am attaching a copy of an opinion rendered on December 23, 1963 which cites Ga. Code Ann.$ 53-201 and holds that a justice of the peace is authorized to perform a marriage ceremony at any place that a judge, city recorder or minister of the gospel might perform such ceremony. Op. Atty. Gen. 1963, p. 329.

OPINION 69-179

To: Secretary of State

April 29, 1969

Re: Where there is a failure of election to fill a particular office in a general election, the Georgia Election Code requires a special election to fill the office.

You have requested my opinion on the following questions:

241
1. If a constable may not be appointed to office, does this mean that other constitutional vacancies may not be filled by appointment or does this apply only to the position of constable? 2. If constables are appointed, are they illegally performing their duties?
In response to your first question, you will recall that in an official opinion to you dated February 5, 1969 [Op. Atty. Gen. 69-59] the Department of Law determined that where there is a failure of election to fill a particular office in a general election, the Georgia Election Code requires a special election to fill the office. This opinion was limited to those instances where there was a failure of election in a general election and it was not intended to require that all vacancies be filled by a special election. There are instances when a vacancy occurs during a term of office and in such instances, the Constitution or the laws of the State of Georgia provide the method for filling such vacancies. For example, Georgia Constitution Art. V, Sec. I, Par. XIII (Ga. Code Ann. 2-3013). However, in those instances when there is a failure of election to fill the office in a general election, in the absence of some specific provision of law to the contrary, the Georgia Election Code does require a special election to fill the office.
Your second question concerns the legality of the appointed constables performing their dutes. If the constables were appointed contrary to law, then they are probably holding their offices illegally. However, Georgia law provides that when one performs the duties of a public office under cover of some appointment and it is later found that there was a deficiency in the manner of appointment or election, the law will usually uphold the previous acts of the officer as acts done by a de facto officer. Tarpley v. Carr, 204 Ga. 721 (1949); Usry v. Hadden, 65 Ga. App. 227, 229 (1941); McBrien v. Starkweather, 43 Ga. App. 818 (5) (1931 ). Thus, although the constables may have been appointed contrary to law, their previous acts are probably valid as acts of a de facto officer. I also wish to point out that House Bill No. 689 has been approved by the Governor and will become effective on July 1, 1969. Under this bill, all constables will be appointed by the justice of the peace and "hold their offices for four years until removed."

242

OPINION 69-180 (Unofficial)

To: Justice of the Peace, 1589th District

April 29, 1969

Re: Justice of the peace may accept real estate as security for an appearance bond; practice and procedure in justice of the peace courts.

You have requested an unofficial opinion on several matters concerning justice of the peace courts. I will restate each question and then set out my answer for each one.

( 1) May a justice of the peace accept as security for an appearance bond in a criminal hearing, real estate which is not completely paid for so long as the equity exceeds the amount of the bond?

In my unofficial opinion, except in capital cases which are bailable only before a judge of the superior court, matters of bail are left to the sound discretion of the committing court so long as any person charged with a misdemeanor is not refused bail. Ga. Code Ann. 27-901. It is therefore in your discretion to accept such security for an appearance bond in a criminal proceeding.

(2) Does the law require the furniture of a tenant who has been served with a dispossessory warrant to be placed in a covered place of storage?

So far as I can determine, there is no requirement that the furniture of a tenant who has been dispossessed under a dispossessory warrant be placed in a covered place of storage. Ga. Code Ann. Ch. 61-3, especially 61-302. However, certainly the officer should exercise reasonable care and diligence in handling the property of the tenant.

(3) Does the accused person in a criminal case have the right to insist on an immediate hearing upon his arrest even if it is inconvenient for the complaining witness?

The Georgia Code requires that an officer arresting under a warrant must exercise reasonable diligence in bringing the person arrested before the person authorized to examine, commit, or

243

receive bail and at any event to present the person arrested before a committing officer within 72 hours after arrest. Ga. Code Ann. 27-210. In instances of an arrest without a warrant, the arresting person shall without delay convey the offender before the most convenient officer authorized to receive an affidavit and issue a warrant. No imprisonment shall be legal beyond a reasonable time allowed for this purpose and any person who is not conveyed before such officer within 48 hours shall be released. Ga. Code Ann. 27-212.

(4) Does a distress warrant give the constable the right to auction the possessions of the debtor for satisfaction of past due rent? Also, how is the auction to be held?

In response to these last questions, I refer you to Ga. Code Ann. 61-402, a copy of which is attached to this letter.

OPINION 69-181 (Unofficial)

To: County Attorney, Clinch County

April 30, 1969

Re: Funds collected by sheriff of Clinch County are held in trust

for the County.

,

The Sheriff of Clinch County, as all sheriffs In Georgia, now

receives an annual salary in lieu of the fee system. You have

requested an unofficial opinion on whether the general State law

changes the applicable local law on how the sheriff disposes 'of the

funds which he collects.

Generally, all county funds are to be paid to the county

treasurer except such funds as may be specially excepted by law

on and these funds must be collected as specially directed. Ga. Code
Ann. 23-1016. Georgia's general law placing all sheriffs a

salary basis makes no provision as to how the sheriff should

dispose of the funds he collects. Ga. Laws 1964, p. 310 (Ga. Code

Ann. 24-2826).

, '_ '

However, the 1965 local law setting the salary of the Clinch

County Sheriff does provide that the sheriff must diligently and

faithfully collect all funds formerly allowed as compensation and

hold these funds in trust for the county and pay them to the

county as directed by the board of commissioners on or before the

tenth day of each month next following the month in which they

are collected. Ga. Laws 1965, pp. 2897, 2899. To our knowle,dge,

244

the above is the latest expression of legislative intent in this area and our opinion is based on this assumption.
We have found no contrary general law which would prevail over your local law and it is our unofficial opinion that the sheriff should pay the funds as directed by the applicable local law found in Ga. Laws 1965, p.2897.

OPINION 69-182 (Unofficial)

To: Athens City Attorney

April30, 1969

Re: City of Athens may levy a payroll or income tax.

This is in reply to your letter concerning the type of taxes the City of Athens may levy pursuant to the provisions of a local constitutional amendment (Ga. Laws 1968, p. 1822) which was ratified at the last General Election.
The constitutional amendment referred to above amended Art. XII, Sec. I, Par. III of the Constitution of Georgia and provides, in part, as follows:

" 'The governing authorities of Clarke County and the City of Athens, subject to the procedure prescribed hereinafter, are hereby authorized to levy, within their respective jurisdictions, any tax in Clarke County and the City of Athens which is not expressly prohibited by the Constitution or general laws of Georgia....'"(Emphasis added.)

Since the above amendment clearly authorizes the City of Athens to levy any taxes not expressly prohibited by the Constitution or general laws of Georgia, each type of tax must be considered separately in order to ascertain whether or not such taxes are expressly prohibited. This opinion does not purport to cover each type of tax that the City of Athens may or may not levy under the above amendment.
As noted in your letter, Ga. Code Ann. 92~3446a (Ga. Laws 1951, p. 360, as amended), expressly prohibits a muniCipality from levying a gross receipts, sales and use tax, or tax on certain amusement devices and services. Consequently, under the provisions of the above amendment the City of Athens could not levy any of the tax prohibited by Ga. Code Ann. 92~3446a, a general law. City of Columbus v. Atlanta Cigar Company, Inc., 111 Ga. App. 744 (1965).

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In your letter you also inquired about a local income or payroll tax and raised the question as to whether the Georgia Income Tax Act of 1931, (Ga. Code Ann. Chs. 92-30, 92-31, 92-32), has pre-empted the field in this area. In my opinion you do not have to reach the question of pre-emption because under the above constitutional amendment the City of Athens has constitutional authority to levy any taxes except those expressly prohibited.
In R..oberts v. Suttles, supra, the court in upholding the constitutionality of an Act, which applied only to Atlanta and Fulton County, pointed out that every provision of the act was expressly authorized by a constitutional amendment. Compare Dobson v. Brown, 225 Ga. 73, 80 (1969) where the court held that an act, relating only to the City of Augusta and Richmond County, violated Art. I, Sec. IV, Par. I of the Constitution of Georgia of 1945 (Ga. Code Ann. 2-401) providing 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. In the Dobson case the court specifically pointed out that the provisions of the act under attack were not authorized by a constitutional amendment whereas in the Suttles case there was such constitutional authority.
There is no provision of the Constitution or of the general laws, including the Georgia Income Tax Act of 1931, that expressly prohibits the City of Athens from levying an income or payroll tax. Therefore, it is my opinion that the City of Athens may levy a payroll or income tax pursuant to the amendment to Art. XII, Sec. I, Par. III of the Constitution of Georgia (Ga. Laws 1968, p. 1822).

OPINION 69-183 (Unofficial)

To: Glynn County Attorney

May 1, 1969

Re: Tax Assessors having previously assessed property may not later make an additional assessment as to such property.

This is in reply to your letter concerning the authority for the county tax assessors to place unreturned property of a previous year upon the tax return of a taxpayer in a subsequent year.
In the statement of facts attached to your letter it is stated that the tax assessors prepared a 1968 return for the taxpayer covering a house and lot and added to the 1968 return an assessment against the house for the years 1967 and 1966 without giving

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notice to the taxpayer. Further, it is stated that the taxpayer purchased the property on January 10, 1967.
The liability for ad valorem taxes attaches as of January 1. Ga. Code Ann. 92-6202. Under the above facts the taxpayer in question did not own the property on January 1, 1966, or January 1, 1967 and was not required to file a return for these years nor was he liable for the ad valorem taxes on the property. However, any taxes due for these years may be a lien on the property in question as well as on the other property of the persons owning the house and lot on January 1, 1966 and 1967. In view of these factors the tax assessors were in error in adding the value of the house for 1966 and 1967 on this taxpayer's 1968 return.
As stated in your letter the tax assessors assessed the property both in 1966 and in 1967 but apparently were not aware of the fact that a house had been built on the lot. In determining whether or not the tax assessors can make an additional assessment for prior years where they have previously passed upon the assessment of this same property for the years involved, see the case of Garr v. E. W. Banks Company, 206 Ga. 831 (1950). While it might be argued that a house and lot are separate items of property, the general rule is to the contrary. Ga. Code Ann. 85-201. Assuming that they are one item, real estate, it seems that the tax assessors are precluded from making an additional assessment on property for prior years where they have previously acted pursuant to Ga. Code Ann. 92-6911 and assessed the same property for the years involved.
In conclusion it is my unofficial opinion that the tax assessors are precluded from again assessing the real estate as they have previously assessed the real estate under Ga. Code Ann. 92-6911 although they were mistaken as to its value at that time.

OPINION 69-184

To: State Superintendent of Schools

May 1, 1969

Re: Public official will be excused from carrying out official duty upon failure of legislature to appropriate funds for performance.

Please refer to your letter of January 9, 1969, wherein you request my official opinion regarding the creation by statute of an interdepartmental council with designated powers and responsiblities. Specifically, you inquire whether the council is required to carry out the responsibilities designated in said legislation if no funds are made available by the General Assembly.

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According to the information you furnished, neither the council nor agencies represented on the council have funds available for the implementation of said Act and no funds were appropriated by the General Assembly for implementation.
My research has uncovered very little Georgia authority on this problem. As you may already know, a writ of mandamus is available to compel the performance of official duties. Ga. Code Ann. 64-101. However, Ga. Code Ann. 64-106 states that:
"Mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless; nor will it be granted on a mere suspicion or fear before a refusal to act or a wrongful act done."
In the case of Savannah & Ogeechee Canal Co. v. Shuman, relator, 91 Ga. 400 (1883), the charter of the Savannah & Ogeechee Canal Company required the company to keep its canal in a navigable condition. A private citizen made application for a writ of mandamus to compel the canal company to perform this duty. The company answered that it had no funds nor any means of obtaining such to perform said duty. The Supreme Court stated on pages 402-403:
"As to the validity of the other reason alleged for failing to put the canal in a navigable condition, viz: that the company is without funds, and without means of obtaining funds, the question is by no means so clear.... While it is quite certain that if the company has no funds now, nor any means of obtaining them, and remains permanently in this condition, compliance with the judge's final order will be impossible, so far as the corporation itself is concerned, there may be a change in the present condition of things, and the officers of the company may be able to find some way to raise money in order to obey the mandate of the court. At any rate, they should make a bona fide effort to do so. If, because of the want of means, they cannot comply with the writ, and if, after due diligence, they remain unable to procure the necessary means for this purpose, and make these things appear to the court in any proceeding for contempt which may be instituted against them, we apprehend the presiding judge would take great care to see that no injustice or hardship was imposed upon them, and certainly would not inflict punishment for a failure to do a thing impossible of accomplishment."

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It is clear from the above-quoted language that the Court did not consider a want of funds to necessarily be grounds for the denial of the mandate, and the mandate would issue in spite of such fact, since the respondent would be allowed to set up in contempt proceedings for refusal to comply therewith the want of the necessary funds and inability to procure them after due diligence. 34 Am. Jur. Mandamus, 39, p. 833 (1941). It should be carefully noted, however, that:
(1) the Court was there dealing with a public service corporation, not a governmental agency or department, and (2) a failure by the State Legislature to appropriate funds to implement its own mandate was not in issue.
The Court's position in Savannah & Ogeechee Canal Co., supra, was more recently followed in Crow v. McCallum, 215 Ga. 692, 697 ( 1960), where a mandamus defense based upon lack of funds in the city treasury and lack of ~uthority to levy taxes was disallowed. In the words of the Court:
"While lack of means may avail as a reason for not inflicting punishment for disobedience of the writ, it does not afford a conclusive reason for not granting it."
I have reviewed a large number of cases decided by our sister states and in the great majority of cases, the courts have held that where compliance with a mandate would require expenditure of funds, a want of funds and the means of obtaining them is ground for a denial of a writ of mandamus, as its issuance would be unavailing. Harrison v. Riddle, 44 Ariz. 331, 36 P.2d 984 (1934); State ex rei. Burr v. Tavarse & G. R. Co., 78 Fla. 329, 82 So. 833 (1919); Pardue v. County Ct., 105 W.Va. 235, 141 S.E. 874 (1928); Benton Harbor v. St. Joseph & B. H. Street R. Co., 102 Mich. 386, 60 N.W. 758 (1894); State ex ret. Redenius v. Waggenson, 140 Wis. 265, 122 N.W. 726 (1909).
There is no question but that Georgia would go along with the above view in situations where the official duty in question is the paying out of public funds. In Maynard v. Thrasher, 77 Ga. App. 316 (1948), [cert. denied], the Court of Appeals upheld an opinion of the Attorney General (i.e. Op. Atty. Gen. 1945-47, p. 58) to the effect that state officials could not lawfully comply with the statutory refund provision (i.e. a 2% dealer's refund of motor fuel taxes) unless and until the funds required for performance were appropriated by the General Assembly.

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However, because of a scarcity of relevant decisions by the Georgia courts with respect to statutory duties other than the disbursement of public funds, the answers are less clear.
In Justice v. Logan, Twp., 71 N.J.L. 107, 58 A. 74 (1904), the Court concluded that it must be shown that the party sought to be commanded has funds on hand or under his control to repair the highway before a writ of mandamus would issue.
Reaching an opposite result, however, is the case of Com. ex. rei. Atty. Gen. v. Griest, 196 Pa. 396, 46 A. 505 (1900). There one section of the state constitution provided that if an amendment to the state constitution proposed in the senate or house, passed both houses, the state secretary must cause the same to be published in at least two newspapers in every county and if the next general assembly concurs, the secretary must make a second publication. In mandamus against the secretary of the commonwealth to compel publication of a proposed constitutional amendment as required by the state constitution, the secretary alleged as a defense that no appropriation was made by the legislature to defray the expense of publication. The Court stated in relevant part:
"Two other questions arose upon the hearing in the Court below, and they are brought before us by the appeal. The first of them is that, as no appropriation was made of moneys from the public treasury to defray the cost of publication in the newspapers, the secretary of the commonwealth could not lawfully make the publication. We do not consider that this question is of any serious force, because, in the first place, it does not appear, and is not averred, that any newspapers have refused to make the publication without being paid or secured for the cost, or even that any of them have been asked to make the publication. The secretary is not, therefore, able to say that he cannot make the publication for the reason stated, and hence such inability cannot be set up as a bar to the enforcement of the act proposing the amendments. It was at least his duty to try to make the publication, before he could be heard to say that it could not be done. But, in the next place, the mandate of the constitution is upon him, and he must obey it in terms. If it is utterly impossible for him to obey it literally, he can make that clear to the court, stating the reasons; and then it would be for the court to determine, in a proper proceeding, whether the publication can be made or not. In the third place, it is not to be assumed that the state will not pay, or

250
cannot be made to pay by judicial decree, the necessary cost of carrying out a preemptory order which has been officially promulgated by the state legislature in strict conformity with the requirements of the state constitution. Indeed, it is not possible to conceive that the state legislature would be so derelict to its manifest duty as to refuse to make the necessary appropriation to pay for the execution of its own order. Or, even if it did so refuse, can it be seriously doubted that a way would be found, by means of a judicial proceeding, to enforce the clear monetary liability of the commonwealth to defray the necessary expense in question. "(Emphasis added.)
The Court in Griest dismissed the lack of funds argument on the following grounds:
(1) the secretary of state in his answer to the petition for writ of mandamus failed to aver that any newspaper had been asked or that any newspaper had refused to make the publication. (2) the mandate of the constitution must be obeyed, and (3) if necessary, a way would be found to force the state to pay the cost of publication through judicial proceedings.
As emphasized above, the Court did remark that if it was utterly impossible to obey the constitutional mandate literally, the Court would have the power to determine whether the publication could be made or not.
In the case of State ex rel. Shevill, et al. v. Milam, et al., 113 Fla. 491, 153 So. 125 (1933), the Board of Commissioners of Everglades Drainage District was required by an Act of the Florida Legislature to make up the lists of lands upon which tax is levied and assessed, and certify to the tax assessors of the several counties embraced in the district, to be entered on their respective tax rolls. The Board of Commissioners failed to comply with said Act and a mandamus proceeding was instituted. In its answer to the mandamus petition, the Board alleged its inability to perform said duties for the reason that the Board of Commissioners of Everglades Drainage District was without funds to do so; that all monies of the Board were paid to the Treasurer of the State of Florida who now refused to honor any warrants drawn on him as custodian of the funds of Everglades Drainage District as a result of a Federal district court ruling; and that the Board was wholly without money which could be used for postage, clerical help,

251
office expenses, administration costs, expenses of materials, legal services, and tax assessor fees for extending the taxes on the county tax rolls. The Court, in an exhaustive opinion, cited Griest in holding that the Board must prepare the tax lists notwithstanding the fact that funds might not be readily available to cover the expenses of said undertaking.
The highlights of the Court's opinion are summarized as follows:
( 1) There was nothing in the Act to manifest any legislative intent that the monies be in hand, for all the purposes mentioned by the Board, before the preparation of drainage tax lists. If funds were necessary to take care of preliminary steps, the Board was empowered to borrow money temporarily, said loans to be backed by, and paid from, the proceeds of acreage taxes collected after the preparation of tax lists. (2) Even if the law contemplated that monies be in hand before the preparation of drainage tax lists, the Board failed to allege any effort to have any of the necessary work done. Nor had they alleged any demand for any employee, official, or newspaper for compensation in advance or assurance of funds in hand for such compensation, nor any refusal of anyone approached to do any work or perform any act or duty unless the funds for paying for such service were in hand. (3) The Act only required the Board to prepare lists of lands embraced in the Everglades Drainage District lying in each county and insert the amount of drainage tax per acre, fixed by the Legislature. The Board was not required under the Act to publish the lists in newspapers, or mail notices to land owners. Therefore, while the members of the Board served without any compensation being provided, it would seem that, even if unable to secure clerical assistance, they were required to prepare these lists under the provisions of the statute.
It is, therefore, clear to see that in some of our sister states the courts have placed an extraordinarily heavy burd~n of proof on a public official seeking to avoid the performance of a legislative mandate and have refused to accept, as a reason for denying a writ of mandamus, the non-availability of funds per se. Based upon the two Georgia decisions cited, it is my belief that the Georgia courts would follow this strict view and that only upon a clear and

252

convincing showing that the resulting lack of funds, coupled with an inability to obtain the same, caused performance to be factually impossible, would the Georgia courts excuse performance. 1
Therefore, based on the above-cited cases and the factual information you forwarded, it is my officlal opinion that an interdepartmental council created by an Act of the General Assembly would be excused from carrying out its official duties upon failure of the General Assembly to appropriate funds for performance of said duties, if, but only if, this resulting lack of funds rendered performance impossible. [See Op. Atty. Gen. 69-174.] The Court would have the power to determine whether the mandatory duties of the Council could be performed or not.
It would seem that the wise course of action would be for you to use your best efforts to carry out the responsibilities designated in said legislation. If, after exerting every effort, the responsibilities remain factually impossible to perform, you would be in the most favorable position possible to offer a court the high degree of proof required to show that the lack of funds has in fact rendered performance impossible.

OPINION 69-185 (Unofficial)

To: Judge, City Court of Athens

May 1, 1969

Re: Judge of City Court of Athens may try criminal cases without the intervention of a jury.

This will acknowledge receipt of and reply to your request to the Attorney General dated April 16, 1969, in which you ask whether the Act creating the City Court of Athens, as amended, authorizes the Judge of the Court to try criminal cases without the intervention of a jury. You have cited to me the relevant parts of three Acts related to the trial of criminal cases without the intervention of a jury in the City Court of Athens. I have examined these three Acts for the purpose of formulating an opinion.

l.Where an official receives a line item appropriation and there is no line item to cover a new and additional duty, the Georgia courts might well consider the performance of said duty to be factually impossible.

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Ga. Laws 1878--79, pp. 291,297, provides that the judge "shall have power to try all criminal cases within the jurisdiction of said city court, and dispose of the same without a jury in all cases in which the defendant shall not demand a jury to try his case, in such case the defendant may demand and have a jury to try his case, provided he shall do so in writing, signed by himself or his counsel, before the introduction of any evidence in the case...."
The 1879 Act was amended by Ga. Laws 1895, p. 357, which provides "that all cases, civil and criminal, in said court shall be tried by the court without a jury, and jury trial in said court shall be held waived unless a trial by jury be demanded by either party in a civil case, or by the defendant in a criminal case, and any and all demands for jury trial in said court, both in civil and criminal cases, must be in writing, signed by the party or his counsel, and be filed and entered of record on the minutes of said court on or before the first day of the term of said court at which said case or cause stands ready for call for trial by law, whether regular quarterly term or special session of the court...."
The 1879 and 1895 Acts were amended by Ga. Laws 1899, p. 353, which provides "that all cases civil and criminal in said court may be tried by the court without a jury, and jury trial in said court shall be held waived, unless a trial by jury be demanded by either party in a civil case, or by the defendant in a criminal case, and any and all demands for jury trial in said court, both in civil and criminal cases, must be in writing, signed by the party or his counsel, and be filed and entered of record on the minutes of said court, at the time said case or cause is called for trial by law, whether regular quarterly term or special session of court...."
Based upon my examination of these statutes, it is my opinion that the Judge of the City Court of Athens is authorized, in his discretion, to try criminal cases without the intervention of a jury, provided no demand is made for jury trial.
As a cautionary note, I wish to call to your attention that the Federal courts will not presume the waiver of a fundamental right from a silent record. The right to a jury trial is a fundamental right. Therefore, it would be my suggestion to you not to rely upon the statutory automatic waiver of a jury trial in the absence of a written demand.

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OPINION 69-186

To: Chief of Field Operations

May 1,1969

Re: A company which purchases franchise agreements and one which purchases the business property of a retail dealer may be held liable as successors for unpaid sales tax, interest, and penalty thereon.

This is in response to your inquiry whether a company which purchases the franchise agreements of a retail dealer and a company which purchases the business property of such dealer may be held liable as successors for sales tax due and unpaid by the dealer.
Section 15 of the Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. Laws 1951, pp. 360, 375; Ga. Laws 1960, pp. 153, 157 (Ga. Code Ann. 92-3422a) provides:

"If any dealer liable for any tax, interest or penalty levied hereunder shall sell out his business or stock of goods, or shall quit the business, he shall make a final return and payment within 15 days after the date of selling or quitting the business. His successor, successors, or assigns, if any, shall withhold sufficient of the purchase money to cover the amount of such taxes, interest, and penalties due and unpaid until such former owner shall produce a receipt from the Commissioner showing that they have been paid, or a certificate stating that no taxes, interest, or penalties are due. If the purchaser of a business or stock of goods shall fail to withhold the purchase money as above provided, he shall be personally liable for the payment of the taxes, interest, and penalties accruing and unpaid on account of the taxable sales made by any former owner, owners or assignors."

The purchase of the franchise agreements is, in essence, a purchase of the contractual rights and obligations between the dealer and a third party authorizing the operation of the business. It is a purchase of a "business" within the meaning of section 15 'of the Act.
The company which purchased the business property became an assignee of the retail dealer within the meaning of section 15.
It is, therefore, my official opinion that a company which purchases franchise agreements of a retail dealer and a company which purchases the business property are both liable for any sales

255

tax, interest, and penalty thereon which became due by reason of taxable sales made by the retail dealer, the former owner, and are unpaid, under section 15 of the Georgia Retailers' and Consumers' Sales and Use Tax Act.

OPINION 69-187 (Unofficial)

To: City Clerk, St. Marys

May 2, 1969

Re: City may impose occupation or business license tax on fraternal benefit society.

The General Assembly of Georgia adopted in 1960 a comprehensive Insurance Code. (Ga. Laws 1960, p. 289, et seq.). This Code provided for the regulation, taxation and authority of insurance companies including fraternal benefit societies. (Ga. Code Ann. Ch. 56-19). This Code chapter provides for the annual licensing of such organizations by the Insurance Commissioner and authorizes them to do business where so licensed. (Ga. Code Ann. 56-1925). Such insurance companies are entitled to a specific exemption from taxation only as to their funds. (Ga. Code Ann. 56-1941 ).
The Georgia Insurance Code does not prohibit the imposition of a reasonable occupation tax on fraternal benefit societies actually doing business in the municipality.
A municipal business tax is not void on the ground that the State licensed such business. Mayor & Aldermen of Savannah v. Cooper, 131 Ga. 670 (1908).

OPINION 69-188 (Unofficial)

To: Justice of the Peace

May 2, 1969

Re: Capital offenses are bailable only before a judge of superior court while all other cases are bailable by committing court; sheriffs and constables may fix bail for persons charged with misdemeanors.

You have requested our unofficial opinion on who has the right to fix the amount of bond if bail is given. Ga. Code Ann. 27-901 provides:

256

"Capital offenses are bailable only before a judge of the superior court; and this is, in every case, a matter of sound discretion. All other cases are bailable by the committing court. At no time, either before the commitment court, when indicted, after a motion for a new trial is made, or while a bill of exceptions is pending, shall any person charged with a misdemeanor be refused bail." (Acts 1878-9, p. 55; 1922, p. 51.)

Ga. Code Ann. 27-902 provides in relevant part:

"The sheriffs and constables shall accept bail in such reasonable amount as may be just and fair for any person or persons charged with the offense of a misdemeanor, provided that the sureties tendered and offered on said bond are approved by a sheriff of any county."

Construing these two Code sections together, it is my unofficial opinion that capital offenses are bailable only before a judge of the superior court while all other cases are bailable by the committing court. Sheriffs and constables may fix the amount of bail in such a reasonable amount as may be just and fair for a person charged with a misdemeanor provided that the sureties tendered and offered on the bond are approved by a sheriff of any county.

OPINION 69-189 (Unofficial)

To: Private Inquirer

May 2, 1969

Re: Registration under the Georgia Securities Act is not required for the bona fide sale of fee simple title to square foot parcels of land.

In your letter you stated that you represent Northern Canada

Land Souvenirs Limited, the owner of land in Northern Canada

which has been divided into square foot parcels for sale. You

further stated that said parcels were to be sold and that a deed

would be issued to the purchasers of said square foot parcels as a

souvenir. Finally, you inquired as to whether such sales would

violate the provisions of the Georgia securities legislation or any

other legislation.

.

Since the latter question, as to whether such sales would violate

257
any other Georgia legislation, is so general and since you only indicated the general nature of your proposed sales without any specific details, this unofficial opinion will concern only problems under the Georgia Securities Act of 1957, as amended.
In your letter you inquired as to whether the sale of such parcels would violate the Georgia securities legislation. Your attention is called to section 3 of said Act (Ga. Code Ann. 97-104) which provides 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 97-107, until registration of such securities shall have become effective by notification under subsection (a) or by qualification under subsection (b)." As you will note, not only is the sale of unregistered securities prohibited, but also the offer to sell such securities is prohibited.
Assuming that the above-mentioned company is going to make a bona fide sale of real estate whereby a fee simple interest in land will be sold by the company and the company' in tum, will give to the purchaser a valid deed conveying said parcel, it would not appear that said sale, or offer to sell, comes within any of the
various definitions of a "security" under section l(i) (Ga. Code Ann. 97-102(i)) of the Georgia Securities Act.
However, should the proposed transaction entail any reservation of or limited conveyance to any rights, especially those relating to natural resources, e.g., oil, gas or other minerals, a security under the Georgia Securities Act could be involved. Cf. S.E. C. v. C. M. Joiner Leasing Corp., 320 U.S. 344 (1943).
Also, should the transaction actually consist of a venture or endeavor on the part of Northern Canada Land Souvenir Limited whereby said company, or some third party, will make use of the various parcels of land whereby the purported purchasers stand to gain a profit or sustain a loss, or be called upon to make further investments, or said company or some third party stand to realize a profit, a security could possibly be involved under the Georgia Securities Act. Cf. S.E.C. v. W. J. Howey Company, 328 U.S. 293 (1946).
Thus, in view of the limited information supplied to this office concerning the transaction proposed, this unofficial opinion must extend only to the absence of the necessity of registration of transactions consisting of merely the bona fide sale of a fee simple interest to real estate.

258

OPINION 69-190

To: State Revenue Commissioner

May 2, 1969

Re: Amounts paid to State officials for expenses are part of such official's gross income and taxable to the extent they are not used for such business purposes.

This is in response to your request received April28, 1969, for an official opinion concerning the taxation of amounts received by State officials for expenses incurred in the conduct of their office or duties.
Such expense items have been paid over the years to various State officers without any duty to account for such funds. See, for example, the reference to contingent expense allowances in the Act approved March 12, 1953, Ga. Laws 1953, Jan.-Feb. Sess., p. 613; the appropriation for operation of the Executive Mansion, Ga. Laws 1965, pp. 44, 60; and the reference to allowances for Solicitors-General, Ga. Laws 1965, pp. 44, 48. See, also, the opinion of the Attorney General, dated August 25, 1952, addressed to Governor Talmadge.
The Georgia Income Tax Act provides that the gross income of a taxpayer includes:

". . . gains or profits and income derived from any source whatever and in whatever form paid." Ga. Code Ann., 92-3107:

The Federal Income Tax Law is quite similar to Georgia law in defining gross income. Both Acts use a definition based upon the economic nature of income.
The contingent expense allowance paid to Georgia Superior Court Judges has been held to be a part of gross income. Walter I. Geer v. Commissioner, 28 T. C. 994, C.C.H. Decs. 22,530 (1958). A State official receiving such an allowance may, of course, deduct from gross income his actual business expenses as deductions. Ga. Code Ann. 92-3109(a). Amounts paid by an employer, including the State, which are used for personal, family or living expenses are compensatory in nature and may not be deducted from gross income.
Amounts paid to State officials for expenses are part of such official's gross income and, in my opinion, are taxable to the extent that they are not used for such official business purposes.

259

OPINION 69-191

To: Director, Merit System of Personnel Administration

May 5, 1969

Re: Separation Pay-extra pay not given for work on legal holiday.

Please refer to your letter of April 17, 1969, wherein you request my official opinion regarding whether a salaried Merit System employee of the State of Georgia who hasworked during a public and legal holiday and is separated or resigns before the Executive authorizes a compensatory non-work day is entitled to an extra day's pay.
Although certain days of the year have been designated by the General Assembly as legal and public holidays, Ga. Laws 1943, pp. 331, 332, as amended (Ga. Code Ann. 14-1809), and although it is true that on these days certain things may be specifically prohibited by statute, there is, to my knowledge, no authority that precludes the normal day-to-day operation of State agencies, absent a directive from the Governor to the contrary.
Since I am advised that the Governor has not as yet proclaimed a non-work day as compensatory for the holiday worked by the former employee, and is in no way bound so to do, it is improper to speculate that he will in fact authorize a non-work day. Furthermore, the Rules and Regulations of the State Merit System of Personnel Administration provide in Paragraph B.202(A):

". . . When a separation date has once been fixed administratively so as to permit the employee to take his accrued annual leave, the pay status of the employee may not be extended for the purpose of granting any other form of leave of absence with pay or for the purpose of granting unanticipated non-work days occurring during the period of terminal leave ...."

For the above and foregoing reasons it is my official opinion that a salaried employee of the State of Georgia, classified under the State Merit System, who has worked during a legal and public holiday and is separated or resigns before the Executive authorizes a compensatory non-work day, is not entitled to an extra day's pay.

260

OPINION 69-192

To: Joint Secretary, State Examining Boards

May 5, 1969

Re: Chiropractors licensed in other states and applying for a license by reciprocity must have qualifications required for Georgia license.

Thts letter is in response to your request for an official opinion on the following question:

Whether the Georgia Board of Chiropractic Examiners may interpret Ga. Code Ann. 84-510 to require that chiropractors licensed in other states and applying for a license in Georgia by reciprocity must have the qualifications specified in Ga. Code Ann. 84-507, as amended, i.e., two years general college, four years chiropractic school, etc.?

OPINION and DISCUSSION Yes. This question has been affirmatively answered by the Georgia Supreme Court in Rose, et al. v. Grow, 210 Ga. 664 (1954).... This decision necessarily superseded two former opinions of the Attorney General to the contrary in Op. Atty. Gen. 1939--41, pp. 442, 444; 1948-49, p. 321, and is representative of typical reciprocity provisions in other states as well. See, e.g., A kopian tz v. Board of Medical Examiners, 190 Cal. App. 81 , 11 Cal. Rptr. 810, 815 (1961); Sutto v. Board ofMedical Registration and Examiners, 242 Ind. 556, 180 N.E.2d 533 (1962); Kihneman v. Board of Optometry Examiners, 96 So. 2d 402, 405 (La., 1957); and Ashley v. Board of Medical Examiners, 142 S. W. 2d 371 (Tex. 1940). Therefore, it is my official opinion that the qualifications of the applicant for a reciprocity license, rather than the licensing state of origin requirements, must be equal to those of Georgia before such person may be issued a license to practice chiropractic in this State without taking an examination under Ga. Code Ann. 84-510.

261

OPINION 69-193 (Unofficial)

To: Veterans Administration Regional Office

May 6, 1969

Re: Act Of Congress to return to the State of Georgia concurrent jurisdiction within the Veterans Administration Hospital (Lenwood Division), Augusta, Richmond County, Georgia.

This will acknowledge your letter dated March 19, 1969, whereby you inquired as to whether this office could foresee any objections on the part of the State of Georgia to the passage of an Act of Congress as above-explained.
According to the information in your letter, the United States Veterans Administration acquired the lands upon which is located the Lenwood Division Hospital during 1919 to 1921 at which time the State ceded to the United States exclusive jurisdiction within said lands, except the right to serve criminal and civil processes therein.
Additionally, you stated that the return to Georgia of concurrent jurisdiction within said area would require concurrence of the Administrator of Veterans Affairs, as well as the approval of Congress by way of the passage of an Act of Congress. You also observed that the Lenwood Division Hospital is the only V.A. hospital site in Georgia wherein the United States has exclusive jurisdiction. Finally, you stated that the Director of the Lenwood Hospital is of the view that it would be both feasible and desirable for the United States to return to Georgia concurrent criminal and civil jurisdiction within the hospital site.
In regard to jurisdiction in and over land acquired in Georgia by the United States, Ga. Laws 1927, p. 352, section 2, provides, in part, that " . . . the exclusive jurisdiction in and over any land so acquired [as authorized in section 1 of said Act by purchase, condemnation, or other wise] by the United States shall be and the same is hereby ceded to the United States for all purposes, except that the State retains the right to serve thereon all civil and criminal processes issued under authority of the State; ...."
By the Code of Georgia of 1933, the above-quoted statute was codified as Ga. Code Ann. 15-302 and modified so as to provide, in part, that:

"Exclusive jurisdiction in and over any lands so acquired [pursuant to Ga. Code Ann. 15-301] by the United States is

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hereby ceded to the United States for all purposes except service upon such lands of all civil and criminal process of the courts of this State; but the jurisdiction so cedeq shall continue no longer than said United States shall own such lands. The State retains its civil and criminal jurisdiction over persons and citizens in said ceded territory, as over other persons and citizens in this State...."
Therefore, it would appear that the present Georgia law provides that when the United States acquires land in Georgia, the State of Georgia cedes concurrent jurisdiction to the United States, and not exclusive jurisdiction over such acquired land.
Thus, the action you have proposed would return to the State of Georgia ". . . civil and criminal jurisdiction over persons and citizens in said ceded territory, as over other persons and citizens in this State, . . ." whereas now the United States has exclusive jurisdiction over said hospital site. Such return of concurrent jurisdiction to the State of Georgia would cause the jurisdiction over said hospital site to be the same as now provided by Georgia law.
Actually, the primary results of the return of concurrent jurisdiction to the State of Georgia would be that the State of Georgia would have the power to try, and punish if convicted, persons accused of crimes committed in the territory on which said hospital is located, in addition to exercising civil jurisdiction in said area.
Since the proper authorities of the City of Augusta and Richmond County would actually be the authorities most directly concerned with the actual duties incurred by the return of concurrent jurisdiction to the State of Georgia, I suggest that their views be solicited. Therefore, I am forwarding by a carbon copy of this letter the information contained herein to said City and County authorities and by said carbon copies suggesting that they advise you if they differ with the conclusion herein reached.
Therefore, unless objections are raised by the City of Augusta or by Richmond County, it would appear that there should be no objections on the part of the State of Georgia to such return to Georgia of concurrent civil and criminal jurisdiction over the Lenwood Hospital site. This view is expressed since presently Georgia law provides that upon the United States acquiring land in Georgia that Georgia retains concurrent jurisdiction over said territory rather than ceding exclusive jurisdiction to the United States.

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OPINION 69-194 (Unofficial)

To: Director, Department of Public Safety

May 6, 1969

Re: Mini-bikes, Go-carts-Operators license, registration, and certain equipment is required.

Ga. Code Ann. 68-1502(1 )(b) defines a motor vehicle as: "Every vehicle which is self-propelled ...." A vehicle is defined as: "Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway ...."Ga. Code Ann. 68-1502( 1)(a). A go-cart is a motor vehicle.
Persons who operate motor vehicles must have a driver's license unless they are in one of the four exempt classes of persons. Ga. Code Ann. 92A-401 and 92A-402.
All motor vehicles before being operated within this State must be registered. Ga. Code Ann. 68-201. The law also requires that all registered motor vehicles be inspected annually. Ga. Code Ann. 68-1726.
Motor vehicles driven on the streets or highways of this State must be equipped with headlights, stop lights, and turn signals. Ga. Code Ann. 68-1701,68-1704 and 68-1708.
It is my official opinion that a go-cart is a motor vehicle; the operator of a go-cart must be licensed; the go-cart must be registered, inspected annually, equipped with headlights, stop lights, and turn signals.
The Georgia law defines a motor driven cycle as: "Every motorcycle, including every motorscooter, with a motor which produces not to exceed five horsepower, and every bicycle with motor attached." Ga. Code Ann. 68-1502(1 )(d). We are informed that mini-bike motors produce five horsepower or less. A mini-bike equipped with a motor that produces five horsepower or less is a motor driven cycle.
Persons who operate motor driven cycles must have a driver's license. Ga. Code Ann. 92A-442. There is no requirement in the laws of Georgia that a motor driven cycle be registered, inspected annually, or that it be equipped with turn signals. Ga. Code Ann. 68-201, 68-1726, and 68-1708(b). However, the law does require that motor driven cycles be equipped with headlights and stop lights. Ga. Code Ann. 68-1704(a) and 68-1708(a).
It is my official opinion that a mini-bike is a motor driven cycle; the operator of a mini-bike must be licensed; the mini-bike must
be equipped with headlights and stop lights but it need not be registered, inspected annually, nor be equipped with turn signals.

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OPINION 69-195

To: Director, State Highway Department

May 7, 1969

Re: (1) Ordinary-No restriction on place of signing official documents. (2) Disability of Ordinary-Judge of city or county court shall exercise jurisdiction of ordinary.

This is in response to your request for an opinion as to (1 ), whether the County Ordinary may sign official documents at his home, a hospital, or otherwise while he is away from his office, assuming that he is fully aware of his actions and is laboring under no mental disability; and (2), who may act for him in the event he is physically unable to assume any of his duties.
With respect to your first question, this presupposes the situation where the Ordinary is fully aware of his actions and is laboring under no mental disability. In other words, this officer possesses all the capabilities of faithfully executing the duties of his office, except for the fact that he is unable to transact business in his office. I am unaware of any provision in the Constitution or Code of Georgia which would require this officer to sign official documents in his office.
Furthermore, both the Supreme Court of Georgia and the Court of Appeals have recognized that:

"It is a well settled principle of law that all public officers are presumed to have performed their official duties at the proper time and in the proper manner." Night v. Gilliard, 215 Ga. 152, 153 (1959);Massey Stores, Inc. v. Reeves, 111 Ga. App. 227, 229 (1965).

Therefore, it is my official opinion that the Ordinary may sign official documents at his home, a hospital, or otherwise while he is away from his office, assuming that he is fully aware of his actions and is laboring under no mental disability.
You have also inquired as to who may act for the Ordinary in the event he is physically unable to assume any of his duties. This is not, as I understand it, the situation where the office can be declared vacant, but rather envisions the case where the Ordinary is prevented from discharging his duties for some period of time. In this situation, it is anticipated that this officer will be able to discharge his duties at some point in the future. Ga. Code Ann. 24-1 710 would be applicable to this factual situation. That Section provides in pertinent part:

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"Whenever an ordinary is disqualified to act in any cause or because of sickness, absence, or for any other reason is unable to act in any cause, the judge of the city court or the county court, as the case may be, shall exercise all the jurisdiction of the ordinary in such cause.,,

Therefore, it is my official opinion that in the event the ordinary is physically unable to assume any of his duties, the judge of the city court or the county court, as the case may be, shall exercise all the jurisdiction of the ordinary.

OPINION 69-196

To: Director, Surface Mined Land Use Board

May 7, 1969

Re: Landowner who sells topsoil, fill dirt or sand to the public in the regular operation of business is engaged in surface mining.

Please refer to your letter of April 15, 1969, wherein you request my official opinion regarding whether a landowner who operates a borrow pit area and sells topsoil, fill dirt, or sand to the public in the regular operation of his business is engaged in surface mining within the terms of the Georgia Surface Mining Act of 1968 (Ga. Laws 1968, pp. 9-19), when such landowner either uses his own equipment or allows the vendee to load and haul these materials.
The Act provides in Section 3(a), Ga. Laws 1968, pp. 9, 11:

"Surface Mining means the mining of ores or mineral solids for sale or for processing or consumption in the regular operation of a business by removing the overburden lying above natural deposits thereof and mining directly from the natural deposits thereby exposed, or by mining directly from deposits lying exposed in their natural state ...."

Section 3 further provides in paragraph G), Ga. Laws 1968, pp. 9, 12:

"Operator means any person, firm, partnership, association or corporation engaged in and controlling one or more surface mining operations."

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Clearly, whether or not the landowner in each instance accomplishes the loading and hauling with his own equipment, he is engaged in and controls a surface mining operation within the purview of the Georgia Surface Mining Act of 1968.

OPINION 69-197

To: Director, Surface Mined Land Use Board

May 7, 1969

Re: A landowner who retains continuous possession of borrow area and sells minerals loaded therefrom by the vendee is engaged in surface mining.

Please refer to your letter of April 15, 1969 wherein you request my official opinion whether a landowner who sells fill dirt from his property but himself does no excavation, loading, or hauling of same is engaged in surface mining within the terms of the Georgia Surface Mining Act of 1968, Ga. Laws 1968, pp. 9-19. I understand that such a landowner may allow numerous parties access to periodically remove sand or soil on a flat charge for each load.
Although the landowner himself does not remove these mineral solids, the transaction and sale are not complete until after the severance and loading of same, and no interest in the land itself or the minerals in situ is conveyed. Since the landowner retains possession of the borrow area, it is my official opinion that, by virtue of such possession and in consideration of the nature of the transaction, any such landowner is engaged in surface mining within the terms of the Act.

OPINION 69-198 (Unofficial)

To: Justice of the Peace

May 8, 1969

Re: Any judge of superior, city or county court, or justice of the peace, or any municipal officer clothed by law with the powers of a justice of the peace may issue warrant for arrest of any offender of the penal laws of Georgia.

You have requested my unofficial opinion on who may issue arrest warrants and whether certain named officials of your city can legally issue arrest warrants.

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Ga. Code Ann. 27-102 provides as follows:

"Any judge of a superior, city, or county court, or justice of the peace, or any municipal officer clothed by law with the powers of a justice of the peace, may issue his warrant for the arrest of any offender against the penal laws, based either on his own knowledge or the information of others given to him under oath."

To determine which municipal officers are clothed by law with the powers of a justice of the peace, the local laws relevant to your area must be examined. The proper person to advise you in this regard is the city attorney although I note that the Supreme Court of Georgia has held that both a judge of the small claims court created under a special Act and a mayor who has the duty of seeing that the ordinances of the town are faithfully executed have the power to issue warrants for arrest. Bush v. Wilcox, 223 Ga. 89 (1967); Williams v. Sewell, 121 Ga. 665 (1905).

OPINION 69-199 (Unofficial)

To: Judge, Dougherty Judicial Circuit

May 8, 1969

Re: A Juvenile Court Judge who is not an attorney at law is eligible for reappointment providing he was serving as a judge for an established Juvenile Court on December 31, 1967.

This will acknowledge your letter dated May 2, 1969, whereby you requested my opinion as to the eligibility for reappointment of Judge Hudson Malone, the present Dougherty County Juvenile Court Judge.
In your letter you stated that Judge Malone is not an Attorney at Law. You further stated that Judge Malone was appointed Judge of the Dougherty County Juvenile Court on October 1, 1957, for a six (6) year term. Finally, you advised that Judge Malone continued to serve until February 1, 1964, when he was reappointed for a six (6) year term which will expire on January 31, 1970.
As you stated in your letter, Ga. Code Ann. 24-2402(2) (Ga. Laws 1968, pp. 1013, 1017-18) provides, in part, that "the judge of the juvenile court shall be an attorney at law who has practiced for three (3) or more years...."
However, as you also stated, Ga. Code Ann. 24-2402 further provides, in part, that:

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"Provided, that those judges who were serving in established juvenile courts as of December 31, 1967, shall continue to serve as judges of the said courts until the expiration of the term of office to which they were appointed under the Juvenile Court Act of 1951 or amendments thereto, after the expiration of their terms, and shall be eligible for reappointment." (Emphasis added.)

Therefore, it is my unofficial opinion that Judge Malone is eligible for reappointment since he was serving on December 31, 1967, as the Judge of an established Juvenile Court pursuant to the Juvenile Court Act of 1951, as amended.

OPINION 69-200

To: Safety Fire Commissioner

May 8, 1969

Re: Rules adopted for manufacture of movable homes may be enforced against all those selling movable homes in Georgia.

You have requested my opinion on whether you may require compliance with your rules adopted under the Uniform Standards Code for Factory Manufactured Movable Homes Act (Ga. Laws 1968, p. 415; Ga. Code Ann. Ch. 84-48) as to factory manufactured movable homes which are manufacturedin Georgia to be sold outside of Georgia.
Section 5 of the Uniform Standards Code for Factory Manufactured Movable Homes Act provides in relevant part as follows:

"(a) Every manufacturer and every dealer who sells new factory manufactured movable homes within the State of Georgia shall apply for and obtain license within six months after the effective date of this Act to sell to licensed dealers or to the public of this State and shall certify in the application that the applicant will comply with the Construction Standards set forth under rules and regulations provided in section 3 herein.... "(d) Every manufacturer or dealer who first sells a new factory manufactured movable home in this State, beginning six months after the effective date of this Act shall, before such sale, pay to the Commissioner a fee of three ($3.00) dollars per each factory manufactured movable home in such manner as the Commissioner may by rule require to cover the

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costs of inspection and certificate, seal or other evidence of compliance." (Ga. Laws 1968, pp. 415, 418; Ga. Code Ann. 84-4805).

The above law is clear that the application of the Act should only extend to new factory manufactured movable homes sold in Georgia by manufacturers or dealers to licensed dealers or to the public of this State and in my opinion, the Act does not apply to units which, although manufactured in Georgia, are sold outside of Georgia. Your question is therefore answered in the negative.

OPINION 69-201

To: State Superintendent of Schools

May 8, 1969

Re: Ga. Code Ann. 32-628 (a hardship contingency provision not currently funded) cannot be the object of a budget transfer under existing laws and appropriation acts.

Please refer to your letter of January 6, 1969, wherein you request my official opinion with reference to the following questions:

(1) Can the fiscal affairs subcommittees of the General Assembly legally transfer unused funds, appropriated to the State Board of Education under various line items, to fund Ga. Code Ann. 32-628 (a hardship contingency provision not currently funded) so as to make available funds to reimburse local school systems penalized by mistakes in computing the uniform tax digest under Senate Bill 191, Ga. Laws 1964, p. 706 (Ga. Code Ann. 92-7008, et seq.)? (2) Can the State Board of Education use the certified corrections from the State Auditor as a formula or basis for distribution of these funds if they can be transferred? (3) Can funds be made available by the fiscal affairs subcommittees to make such corrections or must they be appropriated by the General Assembly?

DISCUSSION AND OPINION AS TO QUESTION 1 Ga. Code Ann. 47-516 states:

"The fiscal affairs subcommittees shall meet jointly as one committee at least once each quarter, or oftener, at the call of the Governor for the purpose of reviewing and approving

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budget object transfers recommended by the Governor which shall not be made without the approval of at least 11 members of such committees sitting jointly: and Provided, further, that no funds whatsoever shall be transferred for use in initiating or commencing any new program or activity not currently having an appropriation or which would require operating funds or capital outlay funds beyond the biennium in which such transfer is made." (Emphasis added.)

Under the terms of the above-quoted Code section, a budget object transfer can be made if, but only if, it is recommended by the Governor and approved by at least 11 members of the fiscal affairs subcommittees sitting jointly. Furthermore, the funds so transferred must be designated to programs or activities currently having an appropriation. It is my understanding that Ga. Code Ann. 32-628, which might otherwise be utilized to reimburse local school systems penalized by mistakes in computing the uniform tax digest, is not currently funded.
Consequently, based on the proposition that the words of a statute are to be taken according to their ordinary signification, see Ga. Code Ann. 102-102, it is my official opinion that Ga. Code Ann. 32-628 cannot be the object of a budget transfer under existing laws and appropriation acts.
Inasmuch as unused funds appropriated to the State Board of Education under various line items cannot at this time be transferred to fund Ga. Code Ann. 32-628, any opinion with reference to questions 2 or 3 would necessarily be in the abstract since it would not rest upon existing facts or rights.

OPINION 69-202

To: Commissioner, Department of Agriculture

May 8, 1969

Re: Department of Agriculture may not deny a permit for importation of milk into Georgia where denial is based solely upon protection of markets for local production.

This is in reply to your letter of April 30, 1969, wherein you requested my opinion as to whether the Georgia Department of Agriculture may refuse to issue a permit to a distributor to import Grade A milk into this State when there is an adequate supply of locally produced milk which such distributor may purchase.

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In your letter you stated that the milk in question has satisfactorily met the sanitary requirements of Georgia law and regulations. I am also advised that in actual practice, permits for importation of milk have been granted or denied on a day by day basis depending upon whether or not on such days there existed an available supply of Georgia produced milk. Therefore, this opinion assumes that denial of such permits is based solely upon an interest in securing the optimum market for locally produced milk by eliminating foreign competition.
My opinion and the reasons therefor are as follows:
OPINION Permits for the importation into Georgia of milk or milk products may be denied by the Commissioner of Agriculture only when the applicant for such permit is unable to show that the sanitary standards for the product in force in the area of its production and processing are no less adequate than such standards in this State, or when an actual inspection of the proposed shipment discloses that it does not conform to the sanitary standards of this State. Such permits may not be denied solely for the purpose of protecting domestic producers from foreign competition.
DISCUSSION While I am well aware of the economic hazards peculiar to the milk industry, and recognize the interest of the State in this vital area, it is my opinion that your authority over the importation of milk products into this State is limited to considerations of public health. Persons desiring to ship milk into Georgia from any other state are required by Ga. Code Ann. 42-612(a) to ftrst secure the authorization of the Commissioner of Agriculture for such shipment. The statute provides that the applicant must furnish you with certifted copies of all laws, rules and regulations pertaining to the sanitary standards for the product in force in the area where such product is produced, processed, handled, and sold, together with copies of all licenses, permits, test results, etc., pertaining to the product. If the Commissioner ftnds that such standards are no less adequate than those of Georgia, he may issue authorization for shipment. Although the portion of the statute discussed above is couched in permissive terms with regard to issuance of the authorization, the section further provides in paragraph (b) that in the event the applicant cannot comply with the requirements of paragraph (a)

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he may request an inspection of the product at his own expense, which inspection the Commissioner shall cause to be made. If, upon inspection, the requirements of the Act and the rules and regulations promulgated thereunder are found to be met, the Commissioner shall authorize the shipment.
The language of the latter portion of the section is mandatory, and it is my opinion that the effect of the section taken as a whole is that you may issue a permit upon being satisfied that the general sanitary standards in the area of production are adequate, but if not satisfied as to such standards you may require an actual inspection of the product at the applicant's expense as a condition to granting the permit. If the actual inspection of the product discloses that the sanitary requirements of this State are met, the authorization for shipment must be granted.
The law pertaining to milk and milk products, Ga. Laws 1961, p. 501, imposes no restrictions upon milk other than those based upon considerations of sanitation and public health.
The Georgia Supreme Court held in Department of Agriculture v. Quality Food Products, Inc., 224 Ga. 585 (1968), that the scope of the Act could not be enlarged by regulation. In that case the Court said, at page 591:
"The obvious purpose of that Act is to fix standards of sanitation in the production, handling, distribution and marketing of milk and milk products, to protect the health of the consumers of milk and milk products, and to prevent fraud and deception in the marketing of such products by assuring that labels affixed to or printed on containers truthfully reveal the exact nature of the product contained therein."
The Court then held that a regulation of the Department of Agriculture which prohibited Jhe sale of "filled milk" exceeded the authority of the Commissioner under the Act.
Although the foregoing discussion answers your inquiry, since the denial of permits on the ground in question is not authorized by statute, there is an additional reason why the opinion set out herein must be reached.
That is, that any State law which did purport to grant authority to deny entry of foreign products for the purpose of protecting domestic production would unquestionably be declared void, to that extent, as imposing a burden on interstate commerce in violation of the Commerce Clause of the United States Constitution;
A recent decision of the United States Supreme Court which is

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directly in point is Polar Ice Cream & C. Co. v. Andrews, 375 U.S. 361 (1964). In that case Florida had, by statute and regulation, imposed regulatory controls over milk which had the effect of requiring distributors to exhaust.the locally produced milk supply before they could tum to out-of-state sources.
In holding these provisions invalid the Supreme Court stated:

"The exclusion of foreign milk from a major portion of the Florida market cannot be justified as an economic measure to protect the welfare of Florida dairy farmers or as a health measure designed to insure the existence of a wholesome supply of milk.
"Florida has no power to prohibit the introduction into her territory of milk of wholesome quality acquired in another state, whether at high prices or low ones; the State may not, in the sole interest of promoting the economic welfare of its dairy farmers, insulate the Florida milk industry from competition from other states."

As the Polar Ice Cream case illustrates, the police power of the states has been held to extend to reasonable regulation of goods moving in interstate commerce where the purpose is the protection of the health and welfare of the public, but the exclusion of foreign goods for economic reasons is not within the permissible sphere of State action.

OPINION 69-203 (Unofficial)

To: Georgia Department of Industry and Trade

May 9, 1969

Re: Monies from the Governor's Emergency Fund may be allocated only to State agencies.

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

(1) Can the Governor contribute money from the Emergency Fund to Tallulah Productions, Inc., a private non-profit corporation, to build an amphitheater on ground leased from the Georgia Power Company? (2) If not, can such funds be administered by or flow through the Department of Industry and Trade for this purpose?

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Use of the Governor's Emergency Fund is controlled by Ga. Laws 1962, pp. 17, 25 (Ga. Code Ann. 40-408) which provides:

"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." (Emphasis added.)

In an official opinion to Governor Maddox, dated January 31, 1969 [Op. Atty. Gen. 69-51] the Attorney General ruled that monies from the Emergency Fund may be allocated only to State agencies. Therefore, your first question must be answered in the negative.
In answer to your second question, a State agency may, at the Governor's discretion, receive and expend an allocation from the Emergency Fund for any purpose consistent with the agency's enumerated powers for which no continuing State obligation is created.
However, under Art. VII, Sec. I, Par. II, of the Georgia Constitution (Ga. Code Ann. 2-5402), the General Assembly is prohibited from granting a donation or gratuity to any person, corporation or association. Since the authority of the creature is no greater than that of the creator, the Department of Industry and Trade, as a creation of the General Assembly, is similarly prohibited. See Jenkins v. Jones, 209 Ga. 758, 763 (1953).
In essence, this means that the Department could not donate funds to Tallulah Productions, Inc.; nor could it, regardless of the reason, build an amplihheater on the site in question since to do so would be tantamount to making a gift to the landowner, Georgia Power Company. See Op. Atty. Gen., 1960-61 p. 386, and Ga. Code Ann. 91-117.
Therefore, I am of the opinion that your second question must also be answered in the negative.

OPINION 69-204 (Unofficial)

To: County Attorney, Bibb County

May 9, 1969

Re: The chief legal officer or other appropriate official of a political subdivision may initiate the necessary proceedings to seek approval of a local law under the Voting Rights Act of 1965.

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You advise us that at the 1969 session of the General Assembly a bill was passed providing for the creation of a. Board of Elections to handle elections for the City of Macon and the County of Bibb. The bill was patterned somewhat after the bill which is in effect in Fulton County and you have requested our advice on how you may obtain approval of the bill under the Voting Rights Act of 1965. (79 Stat. 436, 42 U.S.C. 1973 et seq.)
Section 5 of the Voting Rights Act requires certain states or political subdivisions to either seek a declaratory judgment from the United States District Court of the District of Columbia or approval by the Attorney General of the United States before the state or political subdivision seeks to administer any voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting different from that in force or effect on November 1, 1964. For your further information I am enclosing a copy of Section 5 of the Voting Rights Act.
In our opinion, approval of local laws must be sought by the chief legal officer or other appropriate official of the political subdivision or subdivisions affected by the law. Since you indicate that your bill is patterned after the Act in effect for Fulton County, I would suggest that you contact the County Attorney for Fulton County to assist you in your submission. Of course, we will be happy to render whatever assistance we can and if you have any specific questions, please let us know.

OPINION 69-205

To: Executive Director, Georgia Higher Education Assistance Corporation

May 9, 1969

Re: Amendment To 6 Of An Act creating The Georgia Higher Education Assistance Corporation is presumed to be constitutional.

This letter is in response to your request for an official opinion on the following question:

Whether a recent amendment to Section 6 of an act creating the Georgia Higher Education Assistance Corporation, Ga. Laws 1965, p. 217, 222 (Ga. Code Ann. 32-3306), which authorizes the Corporation to guarantee educational loans made by "accredited non-profit institutions of higher education, ..."is constitutional?

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OPINION This amendment must be presumed to be constitutional,
"since all presumptions are in favor of the validity of an act of the General Assembly [citations], ... [and] there can be no ruling to the contrary 'until a clear, definite and specific attack is made upon the constitutionality of the act as a whole, or upon the constitutionality of a specifically pointed out part or parts of it.' [Citations] ...."(Emphasis added.) Liner v. City of Rossville, 212 Ga. 664, 665, 94 S.E.2d 862 (1956).
There has not, of course, been a constitutional attack on this particular amendment, and in the absence of such an attack we must presume that the amendment is constitutional. See, Estes v. Jones, 203 Ga. 686, 687, 48 S.E.2d 99 (1948); Franklin v. Harper, 205 Ga. 779, 790, 55 S.E.2d 221 (1949). There is always a strong presumption of the constitutionality of legislation, and courts have indulged in every rational reading of which a statute is susceptible in order to sustain its validity. See, e.g., Huiet v. Schwab Mfg. Co., 196 Ga. 855, 860, 27 S.E.2d 743 (1943); DeJarnette v. Hospital Authority of Albany, 195 Ga. 189,206, 23 S.E.2d 716 (1942); Culsinger v. Atlanta, 142 Ga. 555, 572, 83 S.E. 263 (1914), and others cited in 16 Am. Jur. 2d Constitutional Law 137. Particularly is this so when, as here, the legislature is attempting to meet a felt need occasioned by changing conditions of society. See, Collins v. Mills, 198 Ga. 18, 30 S.E.2d 927 (1944), and 16 Am. Jur. 2d, supra, 61.
Therefore, it is my official opinion that the recent amendment to Section 6 of an act creating the Georgia Higher Education Assistance Corporation, Ga. Laws 1965, pp. 217, 222 (Ga. Code Ann. 32-3306), which authorizes the Corporation to guarantee educational loans made by "accredited non-profit institutions of higher education, ..."must be presumed to be constitutional.

OPINION 69-206

To: State Treasurer

May 12, 1969

Re: Fees abolished by Act placing District Attorneys on a salary basis include fees which were formerly payable under Uniform Reciprocal Enforcement of Support Act.

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This refers to your letter of the 5th, instant, in which you ask for an official opinion on:
(1) Whether the fees currently paid to District Attorneys under the Uniform Reciprocal Enforcement of Support Act (U.R.E.S.A.) will continue to be received by District Attorneys after they are placed on a salary pursuant to Ga. Laws(l968)p.992? (2) Whether, in the event payment of such fees to District Attorneys is terminated by Ga. Laws (1968) p. 992, the District Attorneys will be entitled to receive fees for those cases filed prior to such date but concluded subsequent thereto?
My official opinion is in the negative as to question 1 and in the affirmative as to question 2.
District Attorneys, required by law to represent plaintiffs in U.R.E.S.A. cases, currently receive "the sum of $50 for each petition handled" Ga. Code Ann. 99-199a. This fee is paid by the State Treasurer upon approval of the District Attorney's order for payment by the Attorney General, who is designated as the State information agency in Georgia. See Ga. Code Ann. 99-916a and 99-932a.
Ga. Laws 1968, p. 992, however, abolishes the fee system of compensation for District Attorneys, placing each on a salary basis effective June 30th following termination of his then existing (i.e. in April, 1968) term of office. Respecting the abolition of fees, section 3 of the Act provides:
"At such time as is provided for in section 1, all fees, fines, forfeitures, costs and commissions formerly allowed Solicitors General (now district attorneys) for their services as a Solicitor General or as a solicitor of any other court shall become the property of that county in which the services of the Solicitor General were rendered...."(Emphasis added.)
The term "all fees" would clearly appear to include U.R.E.S.A. fees and thus the answer in the negative to your initial question. Such fees, commencing with the effective date of the Act, must be paid to the county rather than the District Attorney.
Your second question would seem to require an affirmative answer under section 3 of the Act, the final sentence of which reads:
"However, any such fees, fines, forfeitures, costs,

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comm1sswns and emoluments collected after the time provided in section 1 for services rendered prior to such time shall be the property of the Solicitor General [now district attorney] and shall be paid to him." (Emphasis added.)

Inasmuch as the act for which the fee is paid under U.R.E.S.A. is the handling of the petition, it is my official opinion that where the case is filed prior to the date he goes onto a salary basis, a District Attorney would be entitled to the $50 U.R.E.S.A. fee notwithstanding the fact that the case may not be concluded until after such date.

OPINION 69-207 (Unofficial)

To: Executive Secretary, Georgia Historical Commission

May 12, 1969

Re: Georgia Historical Commission does not have authority to accept gift from private foundation for archaeological excavation when the site will not be marked and made available to the public.

This is in response to your request for an opinion relative to whether the Georgia Historical Commission may accept a gift or grant from a private foundation and use same to conduct an archaeological excavation on property of the foundation. You relate that no State employees or State equipment will be utilized in this undertaking, and that the Commission will simply accept the gift or grant and employ someone to perform the work.
Pursuant to Ga. Code Ann. 40-812a, the Georgia Historical Commission has authority to accept grants and gifts from a private organization, but such grants or gifts must be held and administered subject to the provisions of Ga. Code Ann. Ch. 40-8A.
The powers of the Georgia Historical Commission are enumerated in Ga. Code Ann. 40-8lla, which provides, inter alia, that the Commission shall have the power:

"(a) To promote and increase knowledge and understanding of the history of this State from the earliest times to the present, including the archaelogical [sic], Indian, Spanish, Colonial, and American eras, by adopting and executing general plans, methods, and policies for permanently preserving and marking objects, sites, areas, structures, and ruins of historic or legendary significance...."

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If the Georgia Historical Commission were contemplating an archaeological excavation for the purpose of permanently preserving and marking the site, same being on State owned property or property open to the public for the enjoyment of the citizens of Georgia, a different question would be presented. But in this instance it appears that the Commission will accept a gift or grant on the condition that said gift or grant will be used for a specific purpose (archaeological excavation) on a specific site (property of the donor). This brings into focus other considerations, as the Commission in effect will be in a position of administering a trust.
Ga. Code Ann. 108-210 provides that all gifts to the United States or to any State or to any subdivision thereof for any public purpose shall be charitable. As a general rule, counties, towns, townships, school districts, a state, or the United States may accept and administer a trust, at least where it is for a public and charitable purpose. 54Am.Jur. Trusts, 119,p.l05. The Georgia Historical Commission is given specific statutory authority to accept such a gift, Ga. Code Ann. 40-812a, but such a gift would become the subject of a charitable trust if the donor placed thereon a condition as to the specific use to which it must be applied.
A trust is not valid as a charitable trust if created for the benefit of one individual or for a class of individuals definitely ascertained; one of the essential requisites to the creation of a valid charity is the indefiniteness of the ultimate number of beneficiaries. If the beneficiaries are not indefinite, then the trust is private. Redfearn, Wills and Administration in Georgia, Vol. 1, 220, p. 625.
In view of the foregoing citations of law, it is apparent that the gift to the Georgia Historical Commission which contains the condition that said gift be used to defray the cost of a project on property of the donor would not be valid as a charitable trust. Although the Georgia Historical Commission has statutory authority to accept gifts, such gifts must be charitable in nature if accepted by the Commission. The ultimate beneficiaries of such a gift would have to be the citizens of Georgia. The Commission would not have authority to administer such funds for a purpose not directly traceable to the ultimate benefit of the citizens of this State.
Therefore, it is my unofficial opinion that the Georgia Historical Commission could not accept a gift on the condition that the money be used to undertake an archaeological excavation on the private property of the donor. The gift being necessarily

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charitable by nature, it could not constitute the corpus of an operative charitable trust in the absence of more indefinite beneficiaries. If the Commission could permanently preserve and mark the site involved for the benefit of all of the citizens of Georgia, a different question would be presented. However, based upon the facts stated in your request, it is my conclusion and opinion that the Georgia Historical Commission does not have authority to undertake the project in the absence of authority to permanently mark and preserve the site and make same available to the public.

OPINION 69-208 (Unofficial)

To: Private Inquirer

May 13, 1969

Re: Purchases by a corporation operating a golfing facility on a municipally owned course are subject to Georgia sales tax.

In my opinion, the Country Club is a separate entity apart from the City of Gainesville and, therefore, sales to the Club are not exempt under the provisions of the Georgia Sales and Use Tax Act which exempts sales to Georgia municipalities (Ga. Code Ann. 92-3403a(2)(d)). It appears that by a contract between the Club and the City, the Club manages and operates the golf course owned by the City. A bank account is kept in the name of the Club, although funds cannot be withdrawn by Club officers and employees, except with the consent of a member of the City Council. An exception to this is that the Club's professional may withdraw up to $50.00 from the account by any one check. He is employed by the Club. Even under these circumstances, I feel that the Club would not be considered an arm or instrumentality of the City by the courts of this State for sales tax purposes.
Purchases by the Corporation are not for resale and are, therefore, taxable unless specifically exempted. The purchase of lawn mowers and repair parts, automobiles and pipes for irrigation are not expressly exempted by any provision of the Georgia Sales and Use Tax Act. The purchase of gasoline is also taxable since it is expressly included by the Act. (Ga. Code Ann. 92-3403a C(l)(a)). Purchases of seeds and fertilizer are expressly exempted where they are "used directly in tilling the soil or animal husbandry." (Ga. Code Ann. 92-3403a C(2)(b)). In my opinion, the use of seeds and fertilizer to maintain a golf course is not a use authorizing the exemption. Revenue Regulation No. 560-12-2.149 is consistent with my view.

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OPINION 69-209

To: Secretary of State

May 13, 1969

Re: A candidate may offer for both the office of justice of the peace and the office of constable; the superintendent has the duty to cause all ballots to be accurately printed.

You have forwarded me a narrative from an ordinary and requested my advice on the questions he has posed. Apparently, the ordinary conducted a special election to fill several offices for justices of the peace and constables in his county. In at least one instance a write-in candidate, although he did not receive a majority of the votes, received the highest number of votes for both the office of justice of the peace and the office of constable. The ordinary wishes advice on how to solve this problem. He further complains that he is experiencing difficulty in ascertaining, for the purpose of the preparation of the ballot, the real names of several of the write-in candidates who are eligible in the runoff.
To my knowledge, there is no legal prohibition against a candidate, otherwise eligible as a runoff candidate, offering for both the office of justice of the peace and the office of constable
in a runoff election. See Ga. Code Ann. 34-lOOl(f) and 34-1514; Avery v. Bower, 170 Ga. 202 (1930). If there is any incompatibility between the two offices, it would not, in my opinion, prohibit a candidate from running for both offices, but rather it would prohibit him from holding both offices. If the candidate is elected to both offices, and he does not disclaim either prior to being sworn, then, at that time, the decision must be made whether any further action should be taken. For your information I attach an unofficial opinion dated October 31, 1968, which deals with the problem of holding both of the named offices.
While I can certainly sympathize with the ordinary's problems in ascertaining the proper names of the write-in candidates for the purpose of preparing the ballot, the only advice I can give at this time is for the ordinary to do everything in his power to ascertain the proper names of the candidates. As you are aware, the Georgia Election Code places the duty of causing all ballots to be accurately printed on the election superintendent who is in this instance the ordinary. Ga. Code Ann. 34-1109. When a mistake or omission has occurred in the printing of ballots and is discovered prior to the conclusion of an election, the Election Code does provide a remedy. Ga. Code Ann. 34-1110. As to the

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proper remedy if a mistake is discovered after the election, any opinion on my part before the mistake occurs would only be speculative since my opinion would, of necessity, depend wholly on the particular facts of the case.
Accordingly, it is my opinion that a candidate, otherwise eligible as a runoff candidate, may offer for both the office of justice of the peace and the office of constable in a runoff election.

OPINION 69-210

To: Sheriff, Jackson County

May 14, 1969

Re: The terms of Jackson Superior Court.

You have requested ari unofficial opinion on when the next term of court in Jackson County, Piedmont Judicial Circuit, will be.
Apparently, two separate Acts were passed by the General Assembly and approved by the Governor concerning the terms of the Superior Courts of the Piedmont Judicial Circuit. H. B. No. 462 was approved by the Governor on March 4, 1969, and became Act No. 73. H. B. No. 981 was approved by the Governor on April 28, 1969, and became Act No. 648. We must therefore decide which Act controls the terms of the Superior Courts of the Piedmont Judicial Circuit.
On January 24, 1969, H. B. No. 3 was approved by the Governor and became Act No. I of the 1969 regular session of the General Assembly. This Act provides that the 1968 Act providing the dates on which laws shall become effective (Ga. Laws 1968, p. 1364) does not apply to local legislation. Therefore, local legislation becomes effective after promulgation, which is when the Act passes both houses and is approved by the Governor. Ga. Code Ann. 102-1 OS; Epstin v. Levenson & Company, 179 Ga.
718 (1887). When two Acts of the Legislature are inconsistent, the last Act passed contains the controlling expression of the legislative intent. Cairo Banking Company v. Ponder, 131 Ga. 708, 710 (1908).
It is therefore my unofficial opinion that the controlling Act is Act No. 648 which provides that the terms of the Superior Court of Jackson County shall commence on the first and second Monday in March and the second and third Monday in September.

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OPINION 69-211 (Unofficial)

To: County Attorney Telfair County

May 14, 1969

Re: A county does not have clear power to guarantee a county hospital authority's contributions to a retirement system.

A local county hospital authority has requested the county to guarantee the authority's employer contributions to a retirement system on behalf of the authority's employees. You have requested our unofficial opinion on whether a county may legally do so.
For the purposes of this discussion I assume that your request is whether a county may legally execute a binding guaranty contract with the retirement system guaranteeing payment of the authority's contributions to the retirement system. The reason for this assumption will become clear in the course of this discussion.
The Georgia Constitution empowers a county to exercise the power of taxation for any public purpose as authorized by general law or by the Constitution. Georgia Constitution Art. VII, Sec. IV, Par. I (Ga. Code Ann. 2-5701). Counties may contract with any public authority for the use by the county or the residents thereof
of any facilities or services of the authority provided the contracts shall deal with such activities and transactions as counties are by law authorized to undertake. Georgia Constitution, Art. VII, Sec. VI, Par.l(a) (Ga. Code Ann. 2-5901(a)).
One of the authorized activities is the care, maintenance and hospitalization of a county's indigent sick and as a part of such contract a county may obligate itself to pay for the cost of acquisition, construction, modernization or repairs of the necessary buildings and facilities by the authority and provide for the payment of such services and cost to such authority of the acquisition, construction, modernization or repair of the buildings and the facilities from revenues realized by the county from the taxes authorized by the constitution or revenues derived from any other sources. Georgia Constitution, Art. VII, Sec. VI, Par. l(c) (Ga. Code Ann. 2-5901(c)). Further, under the Hospital Authorities Law counties are authorized to enter into contracts with a hospital authority as shall be necessary to provide for the continued maintenance and use of the facilities of an authority. The sums due and payable under the contract shall be determined from year to year during the period of the contract and the county is authorized to pay such sums as shall be necessary to

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provide adequate and necessary facilities for medical care and hospitalization of indigent sick, including reasonable reserves necessary for expansion and necessary for the payment of the cost of facilities of the project. Ga. Code Ann. 88-1813(a).
After a thorough review of the Georgia Constitutional Section authorizing contracts for the use of public facilities (Georgia Constitution, Art. VII, Sec. IV (Ga. Code Ann. Ch. 2-59)) and the Hospital Authorities Laws (Ga. Code Ann. Ch. 88-18), I believe a county and a county hospital authority may include the costs of the authority's contribution to a retirement system as part of the costs necessary to provide for the maintenance and use of the hospital facilities of the authority, which cost is permitted to be
paid by the county in its contract with the authority. However, I have not been able to find any provision of the general law or the Constitution which clearly empowers a county to execute a guaranty contract for the payment of the primary obligation of a county hospital authority.
Out of an abundance of caution and in the absence of any clear power to do so, it is my unofficial opinion that a county should not execute a guaranty contract guaranteeing the primary obligation of a county hospital authority to contribute to a retirement system for its employees. However, by appropriate contract with the authority, it is my unofficial opinion that a county may compute such contributions in arriving at the costs
necessary to provide for the continued maintenance and use of the
facilities of the authority and this sum could be paid by the county to the county hospital authority under the law of Georgia.

OPINION 69-212

To: Director, State Board of Corrections

May 14, 1969

Re: The State Board of Corrections cannot legally release a prisoner four or five days prior to his scheduled discharge date.

By letter dated May 1, 1969, you asked if the State Board of Corrections could legally release a prisoner four or five days prior to his scheduled discharge date to a party who had filed a detainer against the prisoner.
Upon court ,order initiated by a prisoner or the State, the State Board of Corrections may release custody of a prisoner to the sheriff or deputy sheriff of the county in which the prisoner is to be tried on the charges evidenced by the detainer. Ga. Code Ann.

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77-333, as amended, Act 442, S. B. 174 (1969), Ga. Code Ann.
38-2001. Absent a court order demanding a prisoner's release for trial, a
prisoner should be held by the State Board of Corrections until his scheduled discharge date. Ga. Code Ann. 77-320(d).
It is also provided by statute that: " ... Neither the Director nor the Board shall have authority to assign male or female prisoners to serve in any manner in a county jail." Ga. Code Ann. 77-309(1). Therefore, it would not be proper for the State Board of Corrections to simply transfer a prisoner to a county jail even for a few days.
It is my official opinion that the State Board of Corrections cannot legally release custody of a prisoner four or five days prior to his scheduled discharge date even though the party requesting custody has filed a detainer, unless ordered to do so by the court in which the prisoner is to be tried.

OPINION 69-213 (Unofficial)

To: Judge, Fulton County Court of Ordinary

May 15, 1969

Re: Procedure for admitting mental patients.

This is in response to your inquiry whether the provisions of sections 88-502.15 to 88-502.16 of House Bill No. 1 (i.e., an Act passed by the 1969 session of the General Assembly amending Code Title 88 known as the "Georgia Health Code") will affect the present procedures for admitting patients as of June 1, 1969, or whether their implementation takes effect only on January 1, 1970.
In my view, the issue is whether the legislature intended that present procedures for admitting patients to facilities utilized for the treatment of mental illness under Code Title 88 be continued until January 1, 1970. Section 5 of House Bill No. 1 reads:

"The provisions of Sections 88-502.1 through 88-502.18, relating to the rights of patients of Section 1 of this Act and Section 4, relating to repealing Code Section 49-612, shall become effective on June 1, 1969. All other provisions of this Act shall become effective on January 1, 1970."

But while this provision on its face would appear to resolve the

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question in favor of 1969, other factors appear which make the answer more difficult than would appear on the surface. To start with, it is important to note that the provisions of sections 88-502.1 through 88-502.18 deal almost exclusively with the "substantive" rights of mental patients whereas the remaining portions of said Act deal primarily with procedural steps and safeguards. It thus seems obvious that the legislature's overall plan was to give immediate effect (i.e., June 1, 1969) to the "substantive" portions of the Act while delaying operation of the procedural portions for six additional months in order to provide a period for orderly transition.
Notwithstanding this apparent legislative design, however, there are several places where the substantive and procedural provisions. overh:p. For example, see sections 88-502.15(a), (e), and 88-502.16.
Although the Act, as already indicated, appears on its face to provide that sections 88-502.15 and 88-502.16 take effect on June 1, 1969, it is significant to note that all statements relating to required procedures in the cited sections are preceded by such words as "rendered in a proceeding under this Chapter" or "pursuant to the provisions of this Chapter" etc. It would appear that the words "this Chapter" refer to Code chapter 88-5 as amended by this Act. Assuming this to be correct, it follows that since there are no proceedings under "this Chapter" until January 1, 1970 (when the "all other provisions" relating to proceedings come into effect), those portions of 88-502.15 and 88-502.16 which relate to procedure in connection with such proceedings likewise cannot come into effect until 1970.
Based on the rules of construction announced in Gazan v. Heery, 183 Ga. 30 (1936), it is my opinion that if a court were called upon to construe this Act, it would probably ascertain the true intention of the legislature to be that all provisions in the Act relating to procedural matters, including those contained in sections 88-502.15 and 88-502.16, shall take effect as of January
1' 1970.

OPINION 69-214

To: Judge, Justice Court of Washington County

May 15, 1969

Re: A constable may use a marked automobile that is equipped with a colored light and a siren.

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By letter dated May 9, 1969, you asked the following questions:
1. Is it legal for a constable to have a blue or red light mounted on the cab of his automobile? 2. May a constable legally have a siren on his automobile? 3. Must a constable have the word "constable" printed on both sides of his automobik? 4. Must a constable have the name of his county of residence printed on his automobile?
Anyone who is lawfully entitled to own a vehicle for law enforcement purposes may mark said vehicle and equip it with a flashing or revolving colored light. Ga. Code Ann. 68-1707.
Any authorized emergency vehicle may be equipped with a siren to be used when in pursuit of an actual or suspected violator of the law. Ga. Code Ann. 68-1716(d). A constable must have a warrant in order to make arrests for offenses arising from violations of traffic laws or laws regulating the use, ownership, and control of motor vehicles or for offenses committed upon the highways of this State. Act 634, H.B. 907 (1969). It necessarily follows that a constable will be using his vehicle less in pursuit of law violators than before H.B. 907 was enacted. Therefore, now a constable will have fewer occasions to use a siren.
Any motor vehicle which is used on official business by any person authorized to make arrests for traffic violations in this State shall be distinctly marked on each side and the back with the name of the State, county or city responsible therefor. Ga. Code Ann. 68-1707.
Constables shall not hold themselves out to the public as State police or county police or use the name "State Police" or "County Police" on their automobile. Act. 634, H.B. 907 (1969).
A constable who uses a marked automobile that is equipped with a colored light mounted on the cab and a siren may be holding himself out to the public as being a county policeman. The law specifically prohibits this. Act 634, H.B. 907 ( 1969).
Since a constable's duties are such as to permit him to use a marked automobile equipped with a colored light mounted on the cab and a siren, it is lawful for him to do so. Ga. Code Ann. 24-817, Act 634, H.B. 907 (1969) (Ga. Code Ann. 68-1707 and 68-1716(d)). However, it is lawful only if he can do this without holding himself out to the public as a State or c<!mnty policeman.
It is my unofficial opinion that a constable may use a marked

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automobile that is equipped with a colored light mounted on the cab and a siren, if he can do so without holding himself out to the public as a county policeman.

OPINION 69-215

To: Executive Director, Georgia Higher Education

Assistance Corporation

May 15, 1969

Re: Investments by Georgia Higher Education Assistance Corporation.

This letter is in response to your request for an official opinion on the following question:

May the Georgia Higher Education Assistance Corporation invest default reserve funds consisting of:

( 1) funds appropriated to the Corporation by the State of Georgia; (2) funds allocated to the Corporation by the federal government; (3) insurance premiums charged to lenders by the Corporation for the guarantee of student loans; and (4) investment income of the Corporation resulting from investment of the three foregoing classifications of funds and from reinvestment of prior investment-earned income: with federal savings and loan associations and state building and loan associations?

OPINION The Georgia Higher Education Assistance Corporation may invest the four specified classes of default reserve funds with federal savings and loan associations and State-chartered associations which are insured by the Federal Savings and Loan Insurance Corporation.

DISCUSSION The Georgia Higher Education Assistance Corporation is a "nonprofit corporation," authorized by constitutional amendment and created by the General Assembly with broad authority to administer a program of guaranteed student loans. Georgia Constitution, Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402

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(11)); Ga. Laws 1966, p. 726 (Ga. Code Ann. 32-3301 and 32-3302). General authority is granted

"to take, hold and administer, on behalf of the corporation... moneys ... and the income therefrom, either absolutely or in trust, for any purposes of the corporation, ..."

and to otherwise

"perform such other acts as may be necessary or appropriate to carry out effectively the objectives and purposes of the corporation as provided in this Act." Ga. Laws 1965, pp. 217,221-22, as amended (Ga. Code Ann. 32-3305(2) (13)).

Since the Corporation must necessarily hold substantial sums of money for indefinite periods of time, it would appear to be "necessary or appropriate" within the meaning of this authority to invest any surplus funds. Yet because the act creating the Corporation gives no indication of just how or where these funds
or "moneys," however obtained, are to be invested, the safer course of action would be to restrict investments to what are considered "legal" investments. However, even without this limitation, Ga. Laws 1964, pp. 194, 195 (Ga. Code Ann. 16-437) makes it clear that the Corporation may invest in Federally insured savings and loan associations.
Therefore, without limiting the range of other possible investments, it is my official opinion that the Corporation may invest the four specified classes of default reserve funds with federal savings and loan associations and State-chartered associations which are insured by the Federal Savings and Loan Insurance Corporation.

OPINION 69-216

To: Georgia Department of Public Health

May 15, 1969

Re: Department of Public Health has the authority to prescribe the form to which a notice from a county governing authority under Ga. Code Ann. 88-508.9 must conform.

Please refer to your letter of January 6, 1969, wherein you request my official opinion with reference to the following questions:

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( 1) What is the responsibility of the Georgia Department of Public Health in insuring that the provisions of Section 88-508.9 of the "Georgia Health Code" (i.e., Code Title 88), effective January 1, 1970, are complied with? (2) Does a resolution adopted by the Board of Commissioners of Roads and Revenues of Seminole County, Georgia, simply giving the Department notice that the judicial admission provisions of Chapter 88-5 shall constitute the applicable method of hospitalization in said County, comply with the requirements of this section? (3) What procedure should the Department follow in case a resolution received from the governing authority of any county may appear to be deficient in compliance with the provisions of 88-508.9?
DISCUSSION AND OPINION Please refer to Ga. Code Ann. 88-508.9 effective January 1, 1970. Under the terms of Ga. Code Ann. 88-508.9, if a county elects to utilize only the judicial admission procedures as provided in Ga. Code Ann. 88-507.2 to 88-507.3, notice of such election must be given to the Georgia Department of Public Health by the governing authority of that county. Ga. Code Ann. 88-508.9 fails to spell out what form the notice shall take or what responsibility the Georgia Department of Public Health bears in insuring that its provisions are complied with. Ga. Code Ann. 88-508.1 quoted above, however, gives the Georgia Department of Public Health authority "to issue and enforce regulations to implement the provisions of this Chapter in accordance with the intent of this Chapter to safeguard the rights of the mentally ill." Under this Section, the Department may prescribe any forms required or used under all provisions of Ga. Code Ann. Ch. 88-5 as well as the information to be contained therein and may make effective such procedures and orders as may be appropriate to carry out the provisions of said Chapter. Although obviously it is not mandatory that the Department prescribe the form to which a notice from a county governing authority must conform and the information which must be contained therein, it is my official opinion that Ga. Code Ann. 88-508.1 gives the Department discretionary authority to take such action. If the Department does not promulgate guidelines for giving notice under Ga. Code Ann. 88-508.9, then it would appear that the only responsibility the Department assumes under this Section is to see that any notice received from a county

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governing authority is properly filed. Any question arising as to the sufficiency of the notice would then be one for judicial determination.
The above opinion would seem to make any opinion with regard to Question 2 inappropriate.
With regard to Question 3, if the Department does prescribe the form or content for a notice from a county governing authority, and the county authority fails to conform, then a reasonable procedure to follow, at least at the outset, would appear to be to return said notice to the authority with a brief explanation as to why it is inadequate.

OPINION 69-217

To: District Attorney

May 16, 1969

Re: A constable may not mark his vehicle with such phrases as "State Police" or "County Police", or in any manner hold himself out as a member of State or county police forces; constable may not make arrests without a warrant for traffic offenses.

This is in reply to your letter dated March 19, 1969, in which you ask whether or not a constable may use such phrases as "State Police" and "Local State Police" on his vehicle while engaged in traffic control.
By letter dated April 10, 1969, I advised you that H.B. 907 ( 1969 Session) was pending and that the Bill, if it became law, would have a significant effect on this opinion. Accordingly, I advised you that a reply to your request would be deferred until such time as the Bill either became law or was vetoed. We have determined that H.B. 907 has become a part of the law of this State.
House Bill 907 ( 1969 Session) provides that constables shall not exercise the power of arrest without a warrant for offenses arising out of traffic law violations or for offenses committed upon highways. The Act also provides that constables "shall not hold themselves out to the public as State Police or county police or use the name 'State Police' or 'County Police' on their automobiles or any other property."
A constable is authorized to execute warrants (Ga. Code Ann. 24-817(5)), including warrants for the arrest of individuals who have committed traffic law violations.
Ga. Code Ann. 68-1707 requires that any motor vehicle used on official business by any person authorized to make arrests for

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traffic violations "shall be distinctly marked on each side and the back with the name of the agency responsible therefor in letters not less than six inches in height." That Code section is applicable in "cases where vehicles are used in patrolling traffic or in making arrests for traffic violations." Clayton v. Taylor, 223 Ga. 346, 348 (1967).
It is my opinion that constables may not use such phrases as "State Police" or "County Police", or in any other manner hold themselves out as members of State or county police forces. A constable may not make an arrest without a warrant for traffic law violations or for any other offense committed upon the highways of this State. Inasmuch as constables are authorized to execute criminal warrants, including warrants for the arrest of persons who have committed violations of the traffic laws or other offenses on the highways of this State, they must mark vehicles used to execute warrants for the arrest of traffic law violators in the manner prescribed by Ga. Code Ann. 68-1707.

OPINION 69-218

To: State Board of Corrections

May 19, 1969

Re: Court may in its discretion tax costs against prevailing respondent in habeas-corpus case.

You have asked my official opm10n as to whether your Department can pay costs in certain habeas-corpus cases brought in the City Court of Reidsville, Georgia. Attached to the request is an eight-page "bill of costs" certified by the Clerk, Superior Court of Tattnall County, Georgia, and City Court of Reidsville. This document is certified as being a true and correct bill of costs in some twenty-seven cases filed in the Superior Court of Tattnall County and the City Court of Reidsville through December 31, 1968.
An examination of the document reveals that four of the twenty-seven cases were, as of December 31, 1968, pending either in the Superior Court of Tattnall County or in the Supreme Court of Georgia on appeal from the Superior Court of Tattnall County. The itemized cost in these four cases is for costs on appeal incurred in the trial court.
Ten cases were successfully defended on behalf of the Warden, Georgia State Prison, and there is no order on record assessing costs against the respondent. Each of these judgments was sustained on appeal. The costs in these cases are not taxable

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against the respondent, and it is my opinion that your Department is not authorized to pay such costs. Ga. Code Ann. 24-3401.
Thirteen cases were taken on appeal to the Supreme Court of Georgia from the City Court of Reidsville. In each case, the Warden, Georgia State Prison, was the prevailing party and the appellee or defendant-in-error in the Supreme Court. In each of these cases, the presiding judge, in the trial court in the order from which the appeal was taken, ordered costs taxed against the respondent. Such an order was proper in that a judge hearing the return to a writ of habeas corpus may, in his discretion, award the costs of the proceeding against either party, and may order execution to issue therefor by the clerk. Ga. Code Ann. 50-1253. I am informed by your office that your Department, upon the behalf of the Warden, Georgia State Prison, the prevailing respondent against whom such costs were taxed, has paid the costs upon the return in the trial court. Subsequent to these payments, and in each case, the prisoner perfected an appeal to the Supreme Court of Georgia. The Clerk of the City Court of Reidsville has now made demand on your Department for payment of these costs of appeal in the trial court. Since the action of the Supreme Court of Georgia left standing the judgment of the City Court in each case and in all respects, including the award of costs against the respondent, it is my opinion that the Clerk, City Court of Reidsville is upon proper application entitled to a payment of these costs.
It is my opinion that the payment by your Department of costs in habeas-corpus cases brought against the wardens of the various institutions should only be done upon compliance by the clerk of the taxing court with the statutory provisions. Such compliance is not established by the rendering of a statement of account. As a minimum, it is my opinion that you should require an itemized bill of costs attached to a copy of the order or judgment finally disposing of the case with evidence of the entry upon the record of the case in the trial court of such order or judgment. Ga. Code Ann. 24-2410. Shown thereupon, should be an itemization of all payments on said bill of costs made prior to the final disposition of the matter.
Your attention is called to the fact that when an appeal is taken all costs in the trial court must normally be paid by the appellant, or an affidavit made by him to the effect that he is unable to pay such costs, before the clerk of the trial court transmits the record to the appellate court. Vezzani v. Vezzani, 222 Ga. 853 (1967). The filing of a pauper's affidavit in such a case does not extinguish the debt owed to the clerk for the costs in the trial court,

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including the cost therein on appeal; it merely delays the time of final reckoning. It is my opinion that the proper procedure when an appeal is filed from a habeas corpus case in which the judgment . of the trial court taxed costs against the respondent is to carry these costs with the case through the appeal for collection upon entry of the order of remittitur, if the decision appealed is affirmed, and upon final judgment, if the decision is reversed.
The thirteen cases in which costs are payable upon presentation of proper endorsements are those enumerated in the letter of my office dated February 3, 1969.

OPINION 69-219

To: Secretary of State

May 19, 1969

Re: The resignation affidavit of a corporate registered agent should be given by a duly authorized corporate officer.

This will acknowledge your letter dated May 6, 1969, whereby you requested my official opinion as to who should give the affidavit required by Ga. Code Ann. 22-402(d) and 22-1409(c) when the registered agent i~ a corporation.
As you stated in your request letter, the 1968 General Assembly of Georgia enacted a new Georgia Corporation Code (Ga. Laws 1968, p. 565, et seq.) and provided that same would become effective April 1, 1969. Furthermore, as you stated, the 1969 General Assembly of Georgia amended said Corporation Code by the provisions contained in H. B. No. 593, Act No. 173, which was approved by the Governor of Georgia on March 28, 1969.
By section 8 of said H. B. No. 593, section 22-402(d) of the new Corporation Code was amended as follows:

Said Act is further amended by adding in subsection (d) of Section 22-402, after the words "an affidavit of such agent" the following: ", if an individual, or of an officer thereof, if a corporation,", so that when so amended, subsection (d) shall read as follows: (d) Any registered agent of a corporation may resign as such agent upon filing a written notice thereof with the Secretary of State. The appointment of such agent shall terminate upon the expiration of 30 days after receipt of such notice by the Secretary of State. There shall be attached to such notice an

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affidavit of such agent, if an individual, or of an officer thereof, if a corporation, that at least 10 days prior to the date of filing such notice a written notice of the agent's intention to resign was mailed or delivered to a representative or agent of the corporation for which such agent was acting other than the resigning registered agent.
Then, by section 84 of said H. B. No. 593, the same section 22-402(d) was again amended as follows:
Said Act is further amended by striking subsection (d) of Section 22-402 in its entirety and by substituting in lieu thereof a new subsection (d) to read as follows: "(d) Any registered agent of a corporation may resign as such agent upon filing a written notice thereof with the Secretary of State. The appointment of such agent shall terminate upon the expiration of 30 days after receipt of such notice by the Secretary of State. There shall be attached to such notice an affidavit of such agent that at least 10 days prior to the date of filing such notice a written notice of the agent's intention to resign was mailed or delivered to the president, secretary or treasurer of the corporation for which such agent is acting."
As you will note, section 8 provided that the affidavit of a registered agent of a corporation who desired to resign should be given by the individual agent, if said agent was an individual, or by an officer of a corporation, if said registered agent was a corporation. However, by the above-cited section 84, the provision as added by section 8 regarding the persons to give an affidavit was deleted.
Additionally, by section 45 of said H. B. No. 593, section 22-1409(c) of the new Corporation Code was amended so as to provide that upon the resignation of a registered agent of a foreign corporation, said agent would attach to the written notice of said resignation to be given to the Secretary of State an affidavit given by an individual, if the agent was an individual, or an officer of the corporation, if the registered agent was a corporation. However, by section 93 of said H. B. No. 593, section 22-1409(c) was again amended and in doing so, the above-explained provision as to the person giving the affidavit was deleted.
Thus, essentially, the same situation occurred regarding section 22-1409(c) as occurred in connection with the above-quoted section 22-402(d).

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By Section 7 of H. B. 593, the 1969 General Assembly of Georgia amended Ga. Code Ann. 22-401(a)(2) so as to specifically authorize a registered agent of a domestic Georgia corporation to be a corporation. Additionally, by Section 78 of said H. B. No. 593, the 1969 General Assembly of Georgia amended Ga. Code Ann. 22-1408(a)(2) so as to authorize a registered agent of a foreign corporation to also be a corporation.
Therefore, it is my official opinion that since the General Assembly of Georgia has specifically authorized a registered agent of a domestic Georgia corporation, as well as a foreign corporation, to be a corporation, that the affidavit of said corporate agent, since a corporation can act only through its agents, would necessarily have to be executed by a duly qualified officer of said corporate agent.
In researching the question which you posed in your request letter, another problem concerning sections 8, 84, 45 and 93 was discovered. As you will note, sections 8 and 45, as to Georgia corporations and foreign corporations, respectively, provide that the affidavit of the resigning registered agent must state that a written notice of said agent's intention to resign was " ...mailed or delivered to a representative or agent of the corporation for which such agent was acting other than the resigning registered agent."
However, as you will also note, sections 84 and 93, again as to Georgia corporations and foreign corporations, respectively, provide that said affidavit must state that a written notice of said agent's intention to resign was ". . .mailed or delivered to the president, secretary or treasurer of the corporation for which such agent is acting."
Thus, a question could arise as to which sections the courts will hold applicable as to whom the notice of intention to resign should be given.
In considering this problem, it is my official opinion that the better procedure for a resigning registered agent to follow would be for the agent to give written notice of his intention to resign to the president, secretary or treasurer, since certainly such officers are "representatives" of the corporation.

OPINION 69-220 (Unofficial)

Note: This opinion reverses Opinion 69-42.

To: Private Inquirer

May 19, 1969

Re: Powers and duties of a county coroner.

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Several months ago you requested this Office to answer the question of whether a county coroner may legally perform an autopsy and testify as to the results of that autopsy during an inquest conducted by him. This question was assigned to me for reply, and on January 28, 1969 [Op. Atty. Gen. 69-42] I gave you my unofficial opinion that the offices of coroner and medical examiner were not intrinsically incompatible and that I could see no compelling reason why a coroner could not be duly appointed as a medical examiner, perform an authorized autopsy and testify as to the results in an inquest conducted by him. Since this date it has been pointed out that there is a 1953 official opinion by the
former Attorney General to the contrary, see enclosed opinion, Op. Atty. Gen. 1953, p. 295, and the question has arisen as to which one is controlling.
The answer very clearly is that the 1953 official opinion still stands as the only official expression of opinion by the Attorney General's Office on this question. As in this case, an unofficial opinion by another attorney in the State Law Department should be considered as information only, certainly not as a mandatory or necessarily even a permissible guideline for officers, agencies or departments of State government. Moreover, this unofficial opinion carried the typical statement that "The views expressed herein are the completely unofficial views of the writer only...."
The question concerning the compatibility of the office of coroner and medical examiner is a close one, not clearly answered by either statute or judicial decision in Georgia. As alluded to in my unofficial opinion, the trend of thinking in quite a few other states is toward combining the two offices, and opinions among lawyers and laymen alike will naturally differ as to what is the best policy. However, insofar as this Office is concerned, the only official expression of opinion is and remains until rescinded or modified, the April 21, 1953, official opinion of the Attorney General found in Op. Atty. Gen. 1953, p. 295.

OPINION 69-221

To: Director, StSJ.te Board of Corrections

May 21, 1969

Re: Inmates in the Georgia Penal System may present educational programs to civic clubs.

This is in reply to your request for an opinion dated May 9, 1969, in which you ask whether inmates in the Georgia Penal

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System may enter upon private property for the purpose of presenting an educational program to civic clubs.
Ga. Code Ann. 77-318(a) forbids hiring out prisoners to private persons or corporations. The philosophy behind this legislation is to prevent peonage and to preclude the use of prison labor for the improvement of private property when such improvements are of no benefit to the State. There is no statutory provision which would prohibit inmates from presenting educational programs to civic clubs even though the program may be staged on private property.
It is my opinion that inmates in the Georgia Prison System may, at the discretion of appropriate prison officials, present educational programs to civic clubs, even though the presentation may be in a privately owned facility.

OPINION 69-222 (Unofficial)

To: State Highway Right-of-Way Engineer

May 21, 1969

Re: Executive Orders-Effect of Order to sell State property by auction not abrogated by failure to consummate sale on first letting of bids.

This is in reply to your request for my unofficial optmon regarding the sale of the State Highway Department's East Point Warehouse property which was authorized to be sold under the provisions of Ga. Laws 1961, p. 291, and Ga. Laws 1966, p. 367, and by an Executive Order dated September 1, 1967. It is my understanding that your questions are as follows:

(1) Can the State Highway Department use the authorization of the Executive Order dated September 1, 1967, for purposes of accepting bid proposals for a second time after a failure to consummate a sale on the first opening for bids or must another Executive Order be executed? (2) Must the State Highway Department again offer this property to the City of East Point before it can advertise for the acceptance of bid proposals for this second opening for bids?

It is my unofficial opinion that: (1) The State Highway Department may use the authorization of the original Executive Order dated September 1, 1967, to

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derive its powers for the advertising for bid proposals and for consummating the sale of this property. The authorizations and power conferred by this Executive Order are still effective for this purpose.
(2) The condition contained within Ga. Laws 1967, p. 367, which required the State Highway Department to offer the property to the City of East Point before letting this property at public auction has already been complied with prior to the first opening for public bids. Therefore, the State Highway Department is not required to again perform this condition.
Before discussing the above opinions, a short summary of the events which resulted in these questions is necessary. The General Assembly, by a resolution, Ga. Laws 1961, p. 291, as amended, Ga. Laws 1966, p. 367, authorized the sale of the above property by an Executive Order which was .subsequently executed on September 1, 1967. The Honorable Lester G. Maddox, Governor of Georgia, ordered the property sold by the sealed bid process. However, the General Assembly included in its resolution a condition precedent to this sale:
"Be it further resolved that the State Highway Department of Georgia be directed to negotiate with the City of East Point, Georgia, for the sale of this property to the City of East Point, Georgia, and authorize to negotiate a fair price for the purchase of said property by the said City." See Ga. Laws 1966, p. 367, at 368.
Prior to the advertisement for public bids, it is my understanding that your Department attempted to negotiate with the City of East Point for the sale of this property to the City with the result that the City of East Point refused to purchase the property. Therefore, your Department performed the condition precedent contained in this Resolution which prevented the operation of this authorization for sale. Subsequently, this property was advertised as required by the Executive Order and an auction by the sealed bid process was held on October 11, 1967. This first attempted sale of this property failed to result in the consummation of a contract of sale. The legal questions involved in this first sale and statements of opinions as to its legal effect were discussed in the official opinion of this office to the Honorable Jim L. Gillis, Director, State Highway Department, dated March 13, 1968 [Op. Atty. Gen. 68-109], and an unofficial opinion of the Attorney General to Mr. J. E. Brown, Right-of-Way Engineer, dated September 19, 1968 [Op. Atty. Gen. 68-400]. Your attention is directed to these opinions for the purpose of

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refreshing your recollection and for the purpose of using these opinions as the foundation for the present opinion.
With reference to your first question, it is concluded that the Executive Order dated September 1, 1967, is legally sufficient as an authorization to your Department to carry out a public sale of this property by the sealed bid process. Close scrutiny of this Executive Order does not reveal any provision which would terminate the authorizations contained therein. This Executive Order, in effect, orders the State Highway Department to sell this property by the sealed bid process without any further conditions attached thereto.
As previously discussed in the unofficial opinion to Mr. J. E. Brown, Right-of-Way Engineer, dated September 19, 1968, the Governor's authority for authorization of this sale is derived from the above cited Resolution and from the statutes dealing with public property. Under the provisions of Ga. Code Ann. 91-804, the Legislature sets forth the method in which unserviceable property should be sold:
"When any public property shall become unserviceable, it may be sold or otherwise disposed of, by order of the proper authority, and an entry of the same shall be made in said book, and the money received therefrom shall be paid into the treasury."
The provisions of Ga. Code Ann. 91-805 defines the term "proper authority" as it is used in the above cited provisions of Ga. Code Ann. 91-804:
"The 'proper authority' referred to in this Chapter is the Governor, for all officers of the State; and the county commissioners or other officers having charge of county matters, for all officers of the county."
"[T]he power to act or to make rules and regulations to carry out the provisions or expressed purpose of a statute is not an exclusively legislative power, but is administrative in nature, and may be exercised by executive officers...." 16 C.J .S. Statutes, 169, p. 852. Therefore, it can be concluded that, in effect, this Executive Order under consideration is the result of the exercise by the Executive Department of its administrative duties. The only limitation on the exercise by the Executive Department of its administrative duties, which are carried out pursuant to the statute, is that the power conferred to make regulations carrying a

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statute into effect must be exercised within the powers delegated. In other words, the administrative order must be "confined to details for regulating the mode of proceeding to carry into effect the law as it has been enacted and it cannot be extended to amending or adding to the requirements of the statute itself." See 16 C.J.S. Constitutional Law, 169, p. 853. (Emphasis added.)
After careful review of both the resolution authorizing the sale of this property and the Executive Order executed pursuant to this resolution, it is concluded that the State Highway Department has been granted the power to sell this property without any conditions attached thereto as to the length of time or as to the number of public auctions that are required before a sale is consummated.
With regard to your second question, as it has been stated previously, the provision contained in the Resolution of the General Assembly that the State Highway Department must first offer this property to the City of East Point is a condition upon the authority of the State Highway Department to sell this property at public auction. This condition contained within this Resolution does not invalidate the Resolution; in effect, it merely establishes a contingency upon which the operation of the Resolution will take effect. "On the passage of a valid statute, which by its terms is to go into effect on the happening of a certain contingency, or on compliance with certain conditions, its language must be strictly followed; and it will take effect only from the happening of the contingency or the performance of the conditions." See C.J.S. Statutes, 410, at pp. 978 and 979.
The Supreme Court of Georgia has also considered the question of the validity of a statute which establishes a contingency to the operation of this statute. The Court held in the case of Telford v. City of Gainesville, 208 Ga. 56,63 (1951), that:
"The operation of a statute complete within itself may be made dependent upon the existence of some contingency fixed therein. . . . And it is well understood that, while a legislature may not delegate the power to make laws, it may nevertheless delegate the power 'to determine some fact or state of things on which the law may depend.' "
In this particular situation, the State Highway Department was required to attempt to negotiate a sale of this property to the City of East Point for a fair price. This office is informed that an attempt to negotiate this sale with the City of East Point was unsuccessful. The attempt by your Department to sell this

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property to the City of East Point thus satisfies the conditions contained within the Resolution upon which its operation takes effect. Pursuant to this fruitless attempt to negotiate a sale with the City of East Point, your Department then proceeded to advertise this property for sale by the sealed bid process.
In support of this conclusion, it should be pointed out that a second attempt to sell this property by the sealed bid process is not, in effect, a new and separate legal act. Instead, this second advertisement for the invitation of sealed bids on this property could be viewed as a continuation of a public auction. See Corbin on Contracts, 108.
Therefore, it is concluded that this second advertisement for the invitation of sealed bids is merely a continuation of the original sale that has been authorized and was contemplated by the resolutions and Executive Order discussed hereinabove.

OPINION 69-223

To: Lyons City Attorney

May 26, 1969

Re: A voter's eligibility to vote in the special election concerning the corporate limits of the City of Lyons is determined by the provisions of the Georgia Election Code.

You advise us that on April 23, 1969, the Governor approved two separate Acts of the General Assembly, Act No. 391 (H. B. No. 631) and Act No. 392 (H. B. No. 632). Each Act amended the corporate limits of the City of Lyons to include an additional area subject to certain conditions set out in the Act. The area sought to be included in the City is different in each Act.
Section 2 of both Acts provides the procedure to be followed in ratifying the change in the city limits. Under both Acts, the Ordinary of Toombs County must submit the Act to the ''voters of Toombs County residing within the area defined" [the area set out in Section 1 of the Act which is to be annexed to the City] for approval or rejection. The Act further provides in relevant part as follows:

"All persons desiring to vote in favor of the Act shall vote for approval, and those persons desiring to vote for rejection of the Act shall vote against approval. ... It shall be the duty of the Ordinary to hold and conduct such election. He shall hold such election under the same laws and rules and

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regulations as govern special elections, except as otherwise provided herein." Section 2, Act No. 391, Act No. 392.

You ask two questions:

(1) Who is eligible to vote? (2) Is a majority favorable vote required by each affected area, or will a total majority vote suffice?
The Georgia Election Co4e, by its own terms, applies to any federal, state or county election or primary for any purpose whatsoever, although it does not apply to any municipal primary or election. Ga. Code Ann. 34-102. The Georgia Municipal Election Code applies to primaries or elections held in the municipal corporations of Georgia. Ga. Code Ann. 34A-102. So far as I can determine, the areas involved in this problem are not part of any municipal corporation of Georgia, but are unincorporated areas located in Toombs County. Therefore, I will answer your questions based on the assumption that the Georgia Election Code is the applicable body of law referred to in both of the Acts as the "same laws and rules and regulations as govern special elections, except as otherwise provided herein." Since I find nothing in the Acts which provides otherwise, it is my unofficial opinion that a voter's eligibility is determined by the applicable provisions of the Georgia Election Code, especially Ga. Code Ann. 34-602. If you have any particular difficulty in applying the Georgia Election Code to your special election, please let me know and I will be happy to assist you further in this area.
In response to your second question, it is my unofficial opinion that a majority favorable vote is required by each affected area. A review of the two Acts in question will indicate that the special election called for by each Act is to be a separate proceeding and there is no indication of any intent by the General Assembly to condition the result in either of the special elections on the result in the other special election. Therefore, I believe that one of the areas may properly approve its Act while the other area rejects its Act. To this end, the votes of each area should be kept separate so that a separate return can be made for each of the affected areas.

OPINION 69-224 (Unofficial)

To: Tift County Attorney

May 27, 1969

Re: Chairman of the Board of Commissioners of Tift County,

304
although the ex officio sole purchasing agent of Tift County, is bound to comply with the directions of the majority of the Board made in regular session.
You have requested our unofficial opm10n on whether the Chairman of the Board of Commissioners of Tift County, although he is ex officio sole purchasing agent of Tift County, must comply with the directions of the majority of the Board made in regular session as to purchases and expenditures for county work. You advise that in your opinion the Chairman is bound to comply with the directions of the majority of the Board made in regular session, but you have requested our unofficial opinion in the matter for your consideration.
Section 9(a) of the Act creating the Board of Commissioners of Tift County, as amended, provides
"The Chairman of the Board shall, subject to the provisions for bid purchasing, be the sole purchasing agent for the County of Tift and no contracts for the payment of materials or supplies for any office or departments of Public Works of said county shall be binding against the County of Tift if made by any other person than the Chairman of the Board of County Commissioners...."
Section 10 of the Act, particularly as amended by Georgia Laws 1964, p. 3069 adopted May 13, 1964, sets out in detail the procedure for a bid system for purchases and contracts by the
county involving an expenditure of $256 or more. The Section
specifically requires that no bid shall be accepted unless the purchase or contract shall have been authorized by a majority vote of the commissioners of Tift County. Ga. Laws 1964, pp. 3069, 3070.
Further, section 22 of the Act creating the Board of Commissioners of Tift County requires that a majority of the Board must concur to let any contract. Ga. Laws 1917, pp. 396, 406-407.
A statute must be construed in relation to the other statutes of which it is a part, and all statutes on the same subject matter are construed together and harmonized wherever possible. Ryan v. Commissioners of Chatham County, 203 Ga. 730, 731 (1947). Construing the requirement that the majority of the Board must approve and authorize the contracts together with the designation of the chairman as the sole purchasing agent, I believe the General Assembly intended that while only the chairman as sole

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purchasing agent could actually sign the contracts, these contracts must be authorized by the majority of the Board. Any other interpretation of this Act would impliedly repeal some part of the Act, and, as you know, repeals by implication are not favored by the law. Morris v. City Council of Augusta, 201 Ga. 666, 672 (1946).
Therefore, I agree with your conclusion that the Chairman of the Board of Commissioners of Tift County, although he is ex officio the sole purchasing agent of Tift County, is bound to comply with the directions of the majority of the Board made in regular session and your question is answered in the affirmative.

OPINION 69-225 (Unofficial)

To: Private Inquirer

May 27, 1969

Re: A deed from the administrator of intestate estate to heirs of intestate is not a taxable transfer under Real Estate Transfer Tax Act.

This ts m response to your letter of the 22nd wherein you request advice as to whether or not a deed conveying real estate from the administrator of an intestate estate to an heir of the intestate is subject to a tax under the Real Estate Transfer Tax Act.
Ga. Code Ann. 92-801 uses the words "sold" and "purchaser." A sale, in its broad sense, is: any contract for the transfer of property from one person to another for a valuable consideration. A purchaser is one who acquires an interest in real property other than by descent.
Therefore, it is my unofficial opinion that a deed from the administrator of an intestate estate to the heirs of the intestate is not a taxable transfer under the Real Estate Transfer Tax Act.

OPINION 69-226

To: Coordinator of Highway Safety

May 27, 1969

Re: Where time is not of the essence of a contract, the time for performance may be unilaterally extended without constituting a waiver of exact performance of the contract.

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It is my understanding that the State and a private party entered into a contract on September 4, 1968, whereby the party in question agreed to conduct a study and prepare a report as a first step in the development of a fully coordinated traffic-records system for the State. The purpose of the study and report was to satisfy a national highway-safety standard promulgated by the United States Secretary of Transportation pursuant to congressional authority. The contract conditioned all payments by the State upon reimbursement by the Department of Transportation.
You advise me that as negotiated the contracting party's performance was originally planned to cover a period of one year. However, as a result of protracted contract negotiation, something less than ten months remained in which to complete the contract after it was executed. You further advise me that the contracting party's performance was necessarily based upon the publication by the Department of Transportation of certain manuals explaining the applicable standards. You inform me that the Department of Transportation is considerably behind schedule in the promulgation of these manuals and, as a result, the contracting party's contractual undertaking cannot be completed by the June 30, 1969 performance date set forth in the State's contract.
An examination of the contract reveals that the State is not obligated to make any payments until completion and acceptance of the contracting party's entire performance. It is further noted that the State is not obligated to pay any sums to the contracting party as reimbursement for expenses during the performance of the contract. I am advised that the State will suffer no inconvenience or economic loss from an extension of the completion date for the contracting party's performance through August 31, 1969.
The contract is not subject to any express agreement making time of performance the essence of the contract. It is my further opinion that no reasonable construction of the contract can indicate an intention to make time the essence of the contract. It is a declared law of this State that time is not generally of the essence of a contract though it may become so upon express stipulation of the parties or where a reasonable construction indicates such an intention. Ga. Code Ann. 20-704(9). It is my opinion that your acceptance of performance by the contracting party subsequent to June 30, 1969, will not constitute a waiver of substantial compliance with the terms of the contract so as to mitigate or excuse non-performance of those undertakings which do constitute the essence of this contract.

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OPINION 69-227 (Unofficial)

To: Bleckley County Attorney

May 28, 1969

Re: Tax Collectors-Salaried collector is not entitled to commissions.

This is in reply to your letter concerning the compensation of the Tax Collector of Bleckley County. The questions presented are as follows:

1. Whether the Tax Collector is entitled to a commission for collecting ad valorem taxes on motor vehicles for a municipality where the Collector is on a fee basis. 2. Whether the Tax Collector is entitled to commissions for collecting ad valorem taxes on motor vehicles for a municipality in view of local Act No. 405 approved April 23, 1969, placing the Collector on a salary and whether the municipality is required to compensate such official.

In response to your first question it is noted that Ga. Code Ann. 92-1515 provides as follows:

"'All fees and commissions allowed local tax collectors and tax commissioners for collecting ad valorem taxes on motor vehicles shall be collected by such officials; and in those instances where such officials are compensated by the fee system, such commissions shall be retained by the local officials as a part of their compensation. In those instances where the tax collector or tax commissioner has been placed upon a salary in lieu of the fee system of compensation, such fees and commissions shall be turned into the county treasury. Notwithstanding the above provisions, the fees and commissions provided for herein shall become the property of and shall be disposed of pursuant to the provisions of local Acts specifically providing for the disposition of such fees and commissions." (Emphasis added.)

As provided in the above Code Section a Tax Collector on a fee system is entitled to such commissions unless a local Act specifically provides otherwise. I have found no local Act, prior to the 1969 Act, relating to Bleckley County providing for the disposition of such commissions. Therefore, it is my unofficial

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opinion that in this situation the Tax Collector would be entitled to such commissions.
In response to your second question it is noted that local Act No. 405, approved April23, 1969, provides, in part, as follows:

"It is specifically provided that the salary provided herein for the Tax Collector shall be in lieu of all fees, commissions, costs, fines, emoluments and perquisites of whatever kind, except those commissions allowed by an Act approved March 9, 1955 (Ga. Laws 1955, p. 659), as amended, relating to the sale of motor vehicle license plates by local tax officials,..."

The 1969 local Act placing the Tax Collector of Bleckley County on a salary, effective May 1, 1969, and Ga. Code Ann. 92-1515 clearly provide that the commissions for collecting the ad valorem taxes on motor vehicles for the municipality shall be turned into the County Treasury. Ga. Code Ann. 92-1513 requires the Tax Collector to remit to the municipality the taxes collected on the motor vehicles less the commissions provided for in Ga. Code Ann. 92-1514. However, the schedule of commissions set forth in Ga. Code Ann. 92-1514 may be changed by agreement.
Therefore, it is my unofficial opinion that under the provisions of Act No. 405, approved April 23, 1969, placing the Tax Collector of Bleckley County on a salary the Tax Collector is not entitled to the commissions for collection of ad valorem taxes on motor vehicles but the Tax Collector must pay such commissions into the County Treasury.

OPINION 69-228 (Unofficial)

To: Tax Receiver, Toombs County

May 28, 1969

Re: Increased compensation only from effective date of Act.

The General Assembly of Georgia amended the Act providing for your annual salary so as to increase the amount to be paid. This Act refers to such salary as an annual salary payable in equal monthly installments. Section 3 of the Act provides that the amendment is to be effective when approved by the Governor. The Governor approved the amendment on April 28, 1969.
Although the salary is referred to as an annual salary, it can not be paid, in my opinion, for any period of time prior to April 28, 1969, the date the amendment was approved by the Governor.

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The Supreme Court of Georgia held in Grimes v. Lindsey, 219 Ga. 779 (1964), that an Act which specifically attempted to increase a sheriff's salary prior to its effective date, but for the year of its passage, was unconstitutional as to the portion prior to the effective date.
Art. I, Sec. III, Par. II of the Georgia Constitution of 1945 provides that no retroactive law shall be passed. (Ga. Code Ann. 2-302).

OPINION 69-229

To: State Superintendent of Schools

May 29, 1969

Re: The State Superintendent of Schools is not required to prepare a textbook on civil government.

This responds to your letter of May 20, 1969, asking for my official opinion as to whether or not Ga. Code Ann. 32-509 remains in force. That section provides:

"The State Superintendent of Schools is required to prepare, with necessary assistance, a textbook on civil government and have it printed and sold to the schools at cost."

I have been unable to locate any reference indicating that
the section has been repealed expressly. However, I am constrained to believe that no court would hold that it remains in effect as law. In 1953, the General Assembly authorized and directed the State Board of Education to prescribe a course of study in the background, history and development of the Federal and State governments. Ga. Laws 1953 (Jan.-Feb. Sess.), pp. 587-88. The 1953 Act provides that t~e State Board of Education

"Shall also approve and recommend books to be used in this course." Id. at 587.
It appears that the General Assembly presently intends that the State Board of Education shall determine the contents of civil government course books whereas it formerly intended for the State Superintendent of Schools to make such determination. The present declaration of the General Assembly in the 1953 Act is both clear and inconsistent with its former declaration in the Georgia Code of 1933. Hence, I am of the opinion that the 1953 Act would be controlling in the event this specific question were to be presented to the courts. Nash v. National Preferred Life Ins. Co., 222 Ga. 14, 21(3) (1966).

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OPINION 69-230

To: Supervisor of Purchases

May 29, 1969

Re: State workmen's compensation self-insurance plan.

On April 2, 1969, the Governor approved the institution of a State workmen's compensation self-insurance plan by signing S.B. No. 126 which became Act No. 196. You have requested my official opinion on the following questions:

"1. Whether or not the words, 'shall immediately formulate' used in Section 1 (first sentence) make it mandatory on the part of the Supervisor of Purchases to start this program in full on the date stated in Senate Bill 126. "2. Whether or not Section 2 is in conflict with Section 3. If so, which has precedence over the other. "3. If Section 2 is compatible with Section 3, does Senate Bill 126 allow the Supervisor of Purchases to use that portion of monies charged the various Boards, Bureaus, Commissions, Departments, Agencies and Authorities as set forth in Section 2 to pay the expenses of operating this new Program until the General Assembly shall appropriate the necessary funds? Or, should the Supervisor of Purchases await action of the General Assembly to appropriate necessary funds before implementing this Program? "

Pertinent to your first question, section 1 of Act No. 196 provides as follows:

"The Supervisor of Purchases shall immediately formulate and effective July 1, 1969, initiate a sound program of self-insurance for Workmen's Compensation benefits for all employees of the State of Georgia, except employees of the State Highway Department, including employees of authorities."

Unless a different effective date is specified in an Act, any Act approved by the Governor or becoming law without his approval on or after the first day of January, and prior to the first day of July of a calendar year shall become effective on the first day of July. Ga. Laws 1968, p. 1364 (Ga. Code Ann. 102-111). Since I
find no different effective date specified in Act No. 196, the Act does not become effective until July 1, 1969.

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When interpreting statutes, the ordinary signification is applied to all words, except words of art or words connected with a particular trade or subject matter. Ga. Code Ann. 102-102. I have found no authority that the words "formulate" or "initiate" are words of art and I will therefore apply the ordinary signification to them in rendering my opinion. The word "formulate" means to devise or to put into a systematized statement or expression. The word "initiate" means to set going or to start, to introduce. Webster's Third International Dictionary. Applying these definitions to the statute in question, I believe that it is incumbent on you to immediately devise a self-insurance program and put it into a systematized statement or expression. Further, you should set going or start the program effective July 1, 1969. I am not certain what you mean when you ask whether you must "start the program in full," but I can advise you that, at the least, you must introduce or start a program of self-insurance and in keeping with the spirit and intent of the Act I would suggest that you implement the program as fully as possible as soon as possible under the circumstances.
In response to your second question, sections 2 and 3 of the Act provide as follows:
"Section 2. The operating expenses of the office of the Supervisor of Purchases in connection with the administration of the Workmen's Compensation Program shall be prorated and charged to the various boards, bureaus, commissions, departments, agencies and authorities of the State of Georgia on the same basis as premiums are computed. "Section 3. The General Assembly shall appropriate the necessary funds to effectuate the purposes of this Act."
I do not find any conflict between the above two sections. However, even if you encounter some conflict between the two sections, they must be harmonized and construed to avoid any conflict, if at all possible. Ryan v. Commissioners of Chatham County, 203 Ga. 730, 731 (1948).
In response to your third inquiry, it is my official opinion that section 2 clearly allows you to pay your operating expenses by prorating and charging the expenses to the various State agencies under the plan on the same basis as the premiums are computed.

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OPINION 69-231 (Unofficial)

To: County Attorney, Cook County

May 29, 1969

Re: Acquisition of rights-of-way by the county paid for by taxes levied specifically for that particular purpose.

This is in reply to your request for my unofficial opinion of

whether the county draws funds from its general funds or creates a

special fund" when the county is purchasing rights-of-way and

easements for road construction on county post roads.

It is my unofficial opinion that:

(1) Since acquisition of property for the purpose of

constructing roads is one of the purposes for which the county can

levy taxes, therefore, the county should first apply the funds

collected for this purpose before turning to other sources to

finance right-of-way acquisition.

(2) If the county has not made provisions in its levy for the

acquisition and construction of roads or if all funds collected for

this purpose have been expended, then if there should be a residue

after applying the taxes levied for the year to all other purposes

specified in the levy, this residue could be applied to this purpose.

(3) Also, any funds which are derived from sources other than

taxation may be used for the discharge of this liability since it is a

declared public purpose, unless, however, these particular funds

are required by law to be used in another manner.

(4) The law does not contemplate nor does it authorize the

establishment of any "special fund" whatsoever for the payment

of any liability which already is declared to be public purpose.

Under the provisions of the Constitution of Georgia, Art. VII,

Sec. IV, Par. II (Ga. Code Ann. 2-5702), counties are authorized

to exercise the power of taxation for certain purposes which are

declared to be public purposes. The counties are further

authorized by the same provisions to expend these funds raised by

the exercise of these powers for these specified purposes. One of

the subparagraphs of this provision authorizes a county to

exercise its power of taxation to:



". . . acquire, construct, maintain, improve, or aid in the acquisition, construction, maintenance, or improvement of .. . streets, sidewalks, roads ... and other properties for public use; and to acquire any real property or any interest therein in connection with the foregoing."

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However, once these taxes are levied and collected they can only be spent for the purposes for which they were levied. The provisions of Ga. Code Ann. 92-3708 specify that:
"Taxes raised for educational purposes, the support of the poor, or any specific purpose, shall be used for such purposes, respectively, and none other." (Emphasis added.)
Therefore, pursuant to the above authorities it is my unofficial opinion that if your county desires funds for acquisition of right-of-way the first source for this money should be from the tax monies collected for this particular purpose.
On the other hand if the county has made no provision in its current levy of taxes for acquisition and construction of roads or if all taxes collected pursuant to a levy for this purpose have been expended, then the county must derive its funds from either surplus funds derived from taxes levied for other purposes, if there is a residue, or from funds arising from sources other than taxation.
First, with regard to a residue of taxes collected pursuant to a levy for other specified public purposes, it should be pointed out that ordinarily this surplus should never be contemplated. But in those cases in which monies have been raised for a specific purpose and all demands and debts properly chargeable to this particular fund have been paid, the courts have held that if there is a surplus from such fund the same then becomes a general fund. See Butts County v. Jackson Banking Co., supra, at 720. Furthermore, this residue may be lawfully applied to payments of any legitimate liabilities against the county. See Tate v. City of Elberton, 132 Ga. 301, 302 (1911); Op. Atty. Gen. 1962, p. 88.
The county may also apply funds arising from other sources than taxation to defray the expenses for any authorized public purpose. The only exception to this principle is that these funds derived from other sources, such as fees and costs, must not be earmarked by statute to be applied in some other particular direction. See Tate v. City ofElberton, supra, at 302.
Finally, it is my unofficial opinion that the laws of Georgia do not authorize the setting aside of monies in a "special fund" to purchase right-of-way for county roads. All county funds are to be paid into the county treasury. See Ga. Code Ann. 23-1016. This includes taxes collected under a levy for the purpose of building roads. See Board of Roads and Revenue v. Clark, 11 7 Ga. 228, 290 (1903).
The county treasurer derives his authority to expend these

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funds from the specified purposes set forth in the Constitution of Georgia, Art. VII, Sec. IV, Par II, as discussed hereinabove. The only limitation on these expenditures is that these monie~ must be spent on the purposes for which they were collected. As for surplus funds, if any, and other monies derived from sources other than taxation, the treasurer again is limited to expenditures for authorized purposes. Therefore, the laws of Georgia not only do not authorize the establishment of a "special fund" but a method is clearly set forth for the county to obtain and expend monies for this purpose.

OPINION 69-232 (Unofficial)

To: County Attorney, McDuffie County

May 29, 1969

Re: Financial Audit-Has legal efficacy if it includes auditor's unqualified opinion supporting the position or a statement explaining why such opinion is withheld.

This is in response to your request on behalf of the Board of Commissioners of Roads and Revenues of McDuffie County for an opinion as to whether an audit of the financial affairs of McDuffie County for the year 1968, made pursuant to a requirement or authorization otherwise provided by law, is of legal efficacy for purposes of such requirement or authorization if the audit does not include the auditor's unqualified opinion upon the presentation of the financial position and the result of the operations of said County.
This opinion should be read in conjunction with Ga. Code Ann. 23-1302.
By using the language "the audit report shall include the auditor's unqualified opinion" the legislature apparently intended to insure the fairness of municipal and county accounting procedures and financial statements. Ga. Code Ann. 23-1302 appears to establish a standard for audit reporting; and if the auditor cannot render an unqualified opinion, then the financial statement of the governmental unit involved fails to measure up to the highest degree of reliability as recommended by this code section. The auditor, on the other hand, may not be in a position to render an unqualified opinion. If this is the case then Ga. Code Ann. 2 3-1302 requires that he detail the reasons for qualification or disclaimer of opinion.
Therefore, it is my opinion that an audit of the financial affairs

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of a county or municipality or an officer, board, department, unit or other political subdivision of a county or municipality made pursuant to a requirement or authorization provided by law, is of legal efficacy for purposes of such requirement or authorization if said audit includes either the auditor's unqualified opinion upon the presentation of the financial position and the result of the operations of said county or a detailed explanation for qualification or disclaimer of opinion.

OPINION 69-233 (Unofficial)

To: Right-of-Way Engineer

June 2, 1969

Re: State Highway Department does not have explicit statutory authority to condemn property for general park purposes.

Your letter of May 8, 1969, in which you request my views concerning the authority of the State Highway Department to condemn property to be used as substituted compensation for property being acquired from the City of Atlanta, is acknowledged.
The problem is more complex than would appear at first glance. However, after considerable thought and study I find that, at present, the State Highway Department does not have authority to accomplish such a condemnation.
The first question is, whether the State Highway Department of Georgia has explicit statutory authority to condemn property for park purposes. A review of Ga. Code Ann. 95-1715 will indicate that the State Highway Department has authority to acquire lands necessary or useful for the construction and maintenance of wayside parks. It should be noted that elsewhere in this section of the Statute the State Highway Department is given authority and power to condemn and acquire rights-of-way, while the authorization is only "to acquire" lands necessary for wayside parks. Applying the rule of strict construction (26 Am. Jur. 2d Eminent Domain 18) it would appear that the State Highway Department has no authority to condemn property for wayside parks; yet it may otherwise acquire lands for such.
Another point is more important here. The authority to acquire lands given by the statute to the State Highway Department is to acquire lands only for "wayside parks." The situation that you have mentioned makes it apparent that the property which the Highway Department seeks to condemn would be used for the

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establishment of a general public park, and the use of the park would in no way relate to the construction of a highway. Therefore, the conclusion is clear that the State Highway Department does not have explicit statutory authority to condemn property for general public park purposes.
The next question is whether the State Highway Department may accomplish its objective by condemnation of the property under the so called "substituted compensation" theory. A discussion of this principle of law is found in 26 Am. Jur. 2d Eminent Domain 72. This principle seems to find expression in the case law of this State in Benton v. State Highway Department, 111 Ga. App. 861 (1965).
This principle of law seems to permit the condemnation of property by an agency which is enabled to condemn property, and to substitute the property condemned for other property that will be required for the express public purpose for which the condemning agency is granted the authority to condemn. Hence, in the Benton case, supra, the Courts upheld the condemnation of property where the property being condemned was to be used for relocation of a pipeline, even though the property condemned was not primarily needed for highway right-of-way.
A review of the case, particularly the expression of the law found in American Jurisprudence, supra, will indicate that this principle finds primary application in the situation where a relocation of facilities is required that would otherwise interfere with the primary purpose for which the condemning agency is condemning property. Such was the Benton case. In the situation outlined in your letter it is noteworthy that no facilities need be relocated, but the proposed condemnation of the property is strictly for the purpose of furnishing the "quid pro quo" * to the City of Atlanta for the property which will be taken from this municipality.
Further, this principle seems to find expression in situations where the enabling statute of the condemning' agency is much broader than the enabling statute of the State Highway Department (Ga. Code Ann. 95-1715). It would even appear that many of the cases which gave expresssion of this principle turn upon the language of the enabling statutes authorizing the condemning agency to condemn property. Many of the statutes that are involved in cases which apply the "substituted compensation" theory contain language sufficiently broad to enable the Court to find implied authority for the condemnation
*quid pro quo. "What for what; something for something. Used in law for the giving one valuable thing for another."

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of property which may be substituted for other property needed to achieve the public purpose delegated to the condemning agency. A review of the enabling statutes of the State Highway Department will indicate that the authority to condemn property in most instances is limited to the expression "rights-of-way."
Hence, while the Benton case, supra, is a physical precedent in this State for recognition of the "substituted compensation" theory, in my judgment it should be limited to the facts there involved. A reading of the Benton case will indicate that the Court places great emphasis upon the fact that the relocation of the pipeline was needed in order to prevent undue hazard and inconvenience to the traveling public. Further, the Court placed great emphasis upon the fact that the condemnation was needed in order to allow relocation of pipelines which would otherwise interfere with the right-of-way proper, and thus the Court determined that the relocation was incident to and resulted from the taking of property for "State-aid public road purposes." Here, the proposal of the State Highway Department to condemn property for parks purposes does not involve a relocation of facilities which would otherwise interfere with the highway project and, therefore, cannot be said to be incident to the taking of property for "State-aid public road purposes."
Furthermore, a consideration of the problem proposed by the Benton case, supra, and the objective of the State Highway Department to condemn property for parks purposes in order to substitute the same for property being acquired from the City of Atlanta, cannot be realistic without noting that the Benton case was a six to three decision in which the dissent strongly insisted that the power and authority to condemn as delegated to the State Highway Department of Georgia was limited to condemnation for "State-aid road purposes."
The next question is whether the State Highway Department of Georgia may contract with the City of Atlanta to reimburse it for the acquisition of the required property to be used as a public park. While the Constitution of the State of Georgia permits contracts between the State, State Institutions and any City, Town or Municipality, such contracts are limited by the language "provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake." (Art. IV, Sec. VI, Par. I, Georgia Constitution; Ga. Code Ann. 2-5901).
Therefore, having concluded that the State Highway Department has no authority to condemn property for public park

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purposes within the City of Atlanta and to exchange the same for property being acquired from the City of Atlanta for State Highway purposes, it must be concluded that the State Highway Department has no authority to enter a contract with the City of Atlanta in which the State Highway Department agrees to pay the costs of the acquisition of such property by the City of Atlanta. However, the State Highway Department not only can but is required to pay the City of Atlanta just and adequate compensation for the property to be acquired from it and to be used for "State-aid road purposes."

OPINION 69-234 (Unofficial)

To: Private Inquirer

June 3, 1969

Re: Imposition of a sales and use tax on that portion of the purchase price of gasoline which was for "federal gas tax" and "state motor fuel tax" is not a tax on a tax.

This is in response to your letter wherein you contest the constitutionality of imposing a sales and use tax on that portion of the purchase price of gasoline which was for "federal gas tax" and "state motor fuel tax."
The Court of Appeals of the State of Georgia in a case dealing with a Federal manufacturer's excise tax (Undercofler v. Capital Automobile Co., 111 Ga. App. 709 (1965)) held that such tax was an element of the cost of the property sold and was, therefore, included in "gross sales" and "sales price", as these terms are defined in the sales and use tax laws of the State of Georgia.
Therefore, it is my unofficial opinion that the imposition of a sales and use tax on that portion of the purchase price of gasoline which was for "federal gas tax" and "state motor fuel tax" is not a tax on a tax.

OPINION 69-235 (Unofficial)

To: Tax Commissioner, Franklin County

June 3, 1969

Re: The $4000 homestead exemption available to persons 65 years of age and older applies to all county ad valorem taxes; income producing property is taxable even when owned by an institution of public charity.

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This is in reply to your request of May 29, 1969, for advice concerning the taxation of income producing property owned by educational or charitable institutions and the taxation of homesteads owned by persons 65 years of age.
The Georgia Constitution provides for a $4000 exemption on homesteads owned and occupied by persons 65 years of age and older and exempts such from all county property taxation including the taxes levied to retire bonded indebtedness. See Op. Atty. Gen., 1963-65, p. 733.
Income producing property owned by Emmanuel College such as a motel or cafe, washette and service station not directly used in the college curriculum v,rould be taxable. Property is not exempt from taxation based on its ownership but exemptions are based on the use made of the property and exemptions from taxation are strictly construed. See opinion to Mr. Charles L. Gower dated December 5, 1967 [Op. Atty. Gen. 67-429] and opinion to Mrs. D. A. Snow dated January 30, 1968.

OPINION 69-236

To: Deputy Revenue Commissioner

June 4, 1969

Re: Ad Valorem Taxation--Persons over 65 years of age claiming the increased homestead exemption of $4,000 must file an affidavit with the Tax Commissioner or Tax Receiver each year showing the amount of income he and his spouse received during the last taxable year.

This is in reply to your letter wherein you ask whether Act Number 681, approved April 28, 1969, eliminates the necessity for filing an annual application for the increased $4,000 homestead exemption granted to certain persons over 65 years of age.
The 1969 Act referred to above, which will be effective January 1, 1970, provides, inter alia, as follows:

"Any taxpayer of any county who returned or paid taxes in such county for the preceding tax year and who fails to return his property for taxation as required by this Chapter shall be deemed to have returned for taxation for the current tax year the same property as was returned or deemed to have been returned in the preceding tax year at the same valuation as such property was finally determined to be subject to taxation in the preceding year and shall be deemed

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to have claimed the same homestead exemption as allowed in the preceding year...."(Emphasis added.)
A cursory reading of the above Act would seem to indicate that persons claiming the $4,000 homestead exemption would not have to file an annual application. However, Art. VII, Sec. I, Par. IV of the Constitution of Georgia (Ga. Code Ann. 2-5404) provides, inter alia, as follows:
"Each person who is 65 years of age or over is hereby granted an exemption from all State and county ad valorem taxes in the amount of $4,000 on a homestead owned and occupied by him as a residence if his net income, together with the net income of his spouse who also occupies and resides at such homestead, as net income is defined by Georgia law, from all sources, including any Federal old-age, survivor or disability insurance benefits or benefits received from any retirement or pension fund when such benefits are based on contributions made thereto by such person or his spouse, does not exceed $4,000 for the immediately preceding taxable year for income tax purposes . ... Any such owner shall not receive the benefits of such homestead exemption unless he, or through his agent, files an affidavit with the tax commissioner or tax receiver of the county in which he resides, giving his age and the amount of income which he and his spouse received during the last taxable year for income tax purposes...."(Emphasis added.)
The above constitutional provision clearly requires persons claiming the $4,000 homestead exemption to file an affidavit with the tax commissioner or tax receiver each year showing the amount of income such person and his spouse received during the immediately preceding taxable year. Since this requirement is a part of the Georgia Constitution, the Constitution would have to be amended to eliminate the necessity for filing such affidavit annually. In view of these factors, it is apparent that the General Assembly did not intend for the 1969 Act to apply to persons claiming the increased homestead exemption.
Therefore, it is my official opinion that the provisions of Act Number 681 do not eliminate the requirement that persons claiming the increased homestead exemption of $4,000 file an annual application for such exemption.

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OPINION 69-237 (Unofficial)

To: Hall County Tax Commissioner

June 4, 1969

Re: Taxation of motor vehicles owned by religious, charitable or educational organizations or political subdivisions.

This is in reply to your letter of May 29, 1969, concerning the taxation of motor vehicles in Georgia.
The Constitution of the State of Georgia provides for exemptions from ad valorem taxation which are available in this State, and it does not provide for the exemption of motor vehicles owned by religious institutions. The Supreme Court of Georgia in a recent decision held that the only properties which are exempt from ad valorem taxation because they are owned by religious institutions are places of religious worship or burial, single family residences from which no income is derived, and certain intangible personal property. Presbyterian Center v. Henson. 221 Ga. 750 (1966). See Op. Atty. Gen. 1963-65, p. 464.
Motor vehicles used exclusively for purposes of public charity are exempt from taxation. It is not the ownership of such a vehicle that will determine its tax status, it is the use made of the vehicle. Tharpe v. Central Georgia Council ofBoy Scouts of America. 185 Ga. 810 (1938). Should you find that the vehicle is used exclusively to better the condition of society in general as opposed to certain and defined individuals, then the vehicle should be exempted from property taxation. Op. Atty. Gen. 1962, p. 495.
The Georgia Constitution with respect to tax exemptions for colleges, incorporated academies or other seminaries of learning, provides that all buildings erected for and used by such educational institutions together with property held or used as an endowment shall be exempt from taxation. No mention is made of other types of property or of motor vehicles. Georgia Constitution Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404).
Motor vehicles owned and used by private educational institutions are not, in my opinion, exempt from ad valorem taxation. See generally the reasoning used in Presbyterian Center v. Henson, 221 Ga. 750 (1966).
Public property is exempt from taxation and motor vehicles owned by political subdivisions of the State, such as a public school system, would be exempt from taxation as public property. Georgia Constitution Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404).

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OPINION 69-238

To: Director, State Department of Family and Children Services

June 4, 1969

Re: Residency requirement for public assistance not invalidated by United States Supreme Court cases.

This will acknowledge your letter dated April 23, 1969, regarding a recent decision of the United States Supreme Court holding unconstitutional requirements in other states that persons reside in said states for a certain length of time prior to being eligible for certain public welfare assistance. In your letter, you stated that Georgia does not have a residency requirement for eligibility for Aid to Families with Dependent Children (AFDC). However, you did state that Georgia does have an eligibility requirement of one (1) year's residency in the public assistance programs of Old Age Assistance (OA), Aid to the Blind (AB), and Aid to the Permanently and Totally Disabled (APTD). By your letter, you requested my opinion on the following questions:

Is Georgia's residency statute referred to above stricken instanter? If it is not stricken instanter, then when does this Supreme Court ruling render the statute null and void?

Actually, the United States Supreme Court ruling to which you referred occurred in an opinion whereby the Court considered three (3) separate cases, i.e., Shapiro v. Thompson; Washington, et al. v. Legrant, et al.; and Reynolds, et al. v. Smith, et al., all reported at 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). In essence, the effect of the rulings in these cases was to declare unconstitutional certain statutes in certain states which establish, as a condition for eligibility for public assistance, a residency requirement whereby an applicant for certain public assistance grants must have resided in the particular state for a certain length of time prior to making application for assistance. In the Shapiro case, the applicant (and thus the categorical assistance program involved) had applied for and been denied AFDC. In the Washington case, all applicants, except one, had applied for AFDC; the additional applicant had applied for and been denied assistance benefits under the categorical program of APTD. Finally, in the Reynolds case, the applicant had also applied for and been denied AFDC. All applicants, in essence, had been

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denied assistance on the basis of not having been residents of Connecticut, the District of Columbia, and Pennsylvania, respectively, for a year prior to application for public assistance.
Therefore, AFDC and APTD were the only two categorical assistance programs represented by litigants in the above-mentioned three cases; the categorical assistance programs of OA and AB not being represented. However, from a review of the Supreme Court opinion, it would appear that the District of Columbia and Pennsylvania statutes considered by the Court applied to all public assistance categories, while .the Connecticut statute which was considered applied only to applicants for AFDC and general assistance.
Also, regarding the categorical assistance programs of OA and AB, according to the report of Robinson, et al. v. Johnson, et al., 394 U. S. 847, 89 S.Ct. 1622, 23 L.Ed.2d 30 (1969), the United States Supreme Court affirmed on May 5, 1969, by a "per curiam" opinion the granting by a U. S. District Court of an injunction:
. . .enJOining the enforcement of the one-year residence requirements of the Illinois Public Aid Code (Ill. Rev. Stat., Chap. 23, Sees. 3-1.1 (aged, blind, or disabled), 4-1.5 (AFDC), and 6-1.1 (general assistance)) on the ground that such requirements deprived public aid applicants and members of their class of rights guaranteed by the equal protection clause of the Fourteenth Amendment, U. S. Constitution,....
Thus, as to the statutes of certain states, it would appear that either directly or indirectly, residency requirements for all four (4) categorical assistance programs have been considered by the Supreme Court and held to be invalid.
As to Georgia's residency requirements, Ga. Code Ann. 99-603(e) provides, in part, as to eligibility for Old Age Assistance (OA), that "assistance shall be granted under this Chapter to any person who: ... (e) has been a bona fide resident of the State for not less than one year; ...."Additionally, as to eligibility for Aid to the Blind (AB), Ga. Code Ann. 99-701 provides, in part, that "assistance shall be granted under this Chapter to any blind person who ... (d) has been a bona fide resident of the State for not less than one year; ...." Finally, Ga. Code Ann. 99-2002 provides, in part, as to eligibility for Aid for the Totally and Permanently Disabled (ATPD) that "assistance is to be granted under this Chapter to any person who: . . . (e) has been a bona fide resident of the State for not less than one year."

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As you, of course, know that in 1965, the General Assembly of Georgia enacted the "Georgia Public Assistance Act of 1965" (Ga. Code Ann. Ch. 99-29). Pursuant to said Act, the State of Georgia, through the State Department of Family and Children Services, was authorized, and I understand has elected, to establish a combined assistance program under Title XVI of the United States Social Security Act for the three adult categorical assistance programs for the Aged, Blind and Disabled. However, since the above-cited residency provisions were not repealed by the 1965 Act, same are still applicable to applicants for said three categorical assistance programs under the Title XVI combined program. Also, since said Georgia residency statutes were not involved in any of the cases considered by the Supreme Court, said statutes still provide an eligibility requirement for public assistance in Georgia.
However, although the Georgia statutes were not directly affected by the heretofore-mentioned Supreme Court decisions, it would appear that should a court consider the validity of the Georgia residency statutes concerning eligibility for public assistance, a court would, on the basis of the recent Supreme Court decisions, hold Georgia's statutes invalid.
Thus, in answer to your first question, the Supreme Court decisions did not strike "instanter" the Georgia's statutes since the Georgia statutes were not subject to the considerations of the Supreme Court. Likewise, in answer to your second question and for the same reason as given for the answer to your first question, said Supreme Court decisions will not render the Georgia statutes ''null and void."
In further reply to your letter, I understand that the Secretary of the U. S. Department of Health, Education and Welfare, on May 29, 1969, approved regulations which, in part, provide that:
(a) A State plan for OAA, AFDC, AB, APTD or AABD, to be approved under section 2, 402, 1002, 1402, or 1602, as the case may be, of the Social Security Act (42 U.S.C. 302, 602, 1202, 1352, 1382) may not impose, as a condition of eligibility for such aid or assistance, any residence requirement which excludes any individual who resides in the State.
The above-mentioned regulations provide that same will be effective upon publication in the Federal Register and same were, according to the information furnished to this office, so published on June 3, 1969.

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Since the Georgia statutes were not affected by the above-mentioned Supreme Court decisions, difficulties may arise under these new Regulations since, in order to obtain federal matching funds for the Georgia public assistance programs, Georgia must have an H. E. W. accepted and approved "State Plan" for public assistance.
It is my understanding that in the past H. E. W. has usually not terminated Federal matching funds for a State's public assistance programs when statutes of a State prohibit a State.from complying with Regulations promulgated by H. E. W., without first giving the State Legislature an opportunity to consider the matter. Therefore, I suggest that you advise H. E. W. of the Georgia statutes which prohibit the State of Georgia from complying with the H. E. W. Regulations and also prepare to request that the General Assembly of Georgia consider this matter at its first opportunity.

OPINION 69-239 (Unofficial)

To: Right-of-Way Engineer

June 5, 1969

Re: State Highway Department of Georgia may be liable for damages to private property caused by public improvements without the property adjoining or abutting the highway improvement.

This is in reply to your letter of May 16, 1969, wherein you requested an unofficial opinion as to the liability of the State Highway Department regarding the damages sustained by the above lakes that occurred during the construction of the above captioned project.
It is my understanding from reports and other materials which were submitted to this office, that certain material, silt, and sediment, has been washed into a lake owned by Mr. A. H. Griffin on Parcel 146-L and into a lake jointly owned by Mr. J.P. Cox and Roscoe Calhoun on Parcell47-L. Further, the reports indicate that a certain amount of the silt and sediment came from the earth work placed in fills on both portions of I-75 before they were grassed and seeded.
The Materials Division of the State Highway Department took samples of the lake sediments, and it was their determination that 60 per cent of the sediment in Parcel 146-L, A. H. Griffin,

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occurred during construction and that 46 per cent of the sediment in Parcel 147-L, J. P. Cox and Roscoe Calhoun, occurred during construction.
Bids were secured to remove all sediment in both lakes; however, since only part of the sediment resulted from the highway construction, the aforementioned percentages were applied to these bids. The estimate for the removal of silt from the Grifftn lake is $6,588.00 and the estimate for the Cox and Calhoun lake is $8,824.82.
It is my understanding that the Bureau of Public Roads has been requested to approve these amounts as a participating cost for settlement of the aforementioned claims. Before the Bureau will agree upon any type of settlement, a statement from the Attorney General's office must be submitted regarding the liability of the State Highway Department for damages sustained. This unofficial opinion is written to furnish you with the necessary information to answer the request of the Bureau of Public Roads.
In order to fully assess the liability and damages in this matter, we have reviewed correspondence from the property owners, the State Highway Department, the contractor responsible for the building of the project, and the Bureau of Public Roads. In addition, several on-the-site inspections of the premises were made in the company of engineers and employees of the right-of-way division of the State Highway Department of Georgia, the U. S. Agriculture Soil and Conservation Service, and the Bureau of Public Roads. In writing this opinion, this office will not disagree with the engineering determination reached by the Highway Department, i.e., that a portion of the damages suffered by A. H. Grifftn, J. P. Cox, and Roscoe Calhoun was a direct result of the construction of Project I-75-3 (5) Whitfield County.
Even though no portion of either of the lakes involved in this situation was actually taken by the Highway Department in connection with this highway project, Art. I, Sec. III, Par. I of the Constitution of Georgia (Ga. Code Ann. 2-301) provides that:
"Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid ..."[Underscoring added.]
In the case of Dougherty County v. Hornsby, 213 Ga. 114, 116 (1957) the Supreme Court of Georgia, in elaborating upon this constitutional provision, stated the following:
"Accordingly, if property is damaged, even by the prudent

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and proper exercise of a power conferred by statute, the owner is entitled to just compensation in an amount represented by the difference between the market value of the property before and after the procedure taken for public purposes."
It does not matter that the property of Messrs. Griffin, Cox, and Calhoun does not adjoin or abut the highway improvement if the construction of the improvement resulted in physical damage to their property. In Tift County v. Smith, 107 Ga. App. 140 (1962) (reversed on other grounds, 219 Ga. 68), plaintiffs' land did not abut or adjoin the highway improvement but was damaged from water caused by the highway improvement to flow and pond upon it, and as to that it was held by the court that the plaintiffs had a cause of action. This same result has been reached in other cases where plaintiffs' property did not adjoin or abut upon the improvement. See in this connection Dougherty County v. Long, 92 Ga. App. 212, 213 (1955); Clarke County School District v. Madden, 99 Ga. App. 670 (1) (1959); Sheehan v. Richmond County, 100 Ga. App. 496 (1959); and statement in Austin v. Augusta Terminal Railroad Company. 108 Ga. 671, 678 (1963).
The Court of Appeals in the case of Gwinnett County v. Allen. 56 Ga. App. 753, 754 (1937), further elaborated on the constitutional provision previously mentioned as follows:
"The constitutional provision ... is all inclusive, and covers taking or damaging of private property whether brought about by action involving proper and diligent construction or taking, or negligent damaging or taking. Bates v. Madison County, 32 Ga. App. 370 (123 S.E. 158). In either event the citizen's constitutional right is violated and he is entitled to just and adequate compensation."
Therefore, construing the constitutional amendment and cases hereinbefore mentioned, and assuming that the engineering reports and submissions as to responsibility for damages are correct, and based upon the facts which we have before us at the present time, it is the unofficial opinion of this office that the State Highway Department of Georgia is liable under the laws of the State of Georgia for a portion of the damages suffered by Messrs. Griffin, Cox, and Calhoun as a result of silt and sediment being washed into their lakes.
I trust that this unofficial opinion fully complies with your request; however, if you need further advice or assistance, please do not hesitate to call upon this office at any time.

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OPINION 69-240 (Unofficial)

To: Private Inquirer

June 6, 1969

Re: The Georgia Income Tax Act does not permit taxpayers, in computing net income to use a 52-53 week annual accounting period.

This is in reply to your letter dated May 21, 1969, which, according to its terms, raises a question as to the applicability of the 1969 amendment (Act 135) to the Georgia Income Tax Act (Ga. Code Ann. Chs. 92-30, 92-31, 92-32), which, among other things, raises the corporate tax rate for taxable years beginning on or after January 1, 1969, to a 52-53 week taxable year beginning December 30, 1968. Your inquiry, it is understood, relates to a taxpayer that regularly keeps its books on the basis of an annual accounting period that varies from 52 to 53 weeks and always ends on the same day of the week and assumes that such an annual accounting period is acceptable as a taxable year under the Georgia Income Tax Act.
Clearly, if a 52-53 week year beginning December 30, 1968, is a taxable year under the Act, then the higher tax rate provided by the amendment would not apply, for, by its express terms, it only applies to taxable years beginning on or after January 1, 1969. Therefore, the real question, it would seem, is whether a 52-53 week annual accounting period can be a taxable year under the Act.
In answering this question, it should be noted that the 1969 amendment effected no change in the provisions of the Act relating to what constitutes a taxable year. According to these provisions:

" ... net income shall be computed upon the basis of the taxpayer's annual accounting period (fiscal year or calendar year, as the case may be)...."Ga. Code Ann. 92-3118(a).

They further provide:

"If the taxpayer's annual accounting period is other than a fiscal year, or if the taxpayer has no accounting period, or does not keep books, the net income shall be computed on the basis of the calendar year." Ibid.

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For purposes of the Act, a "fiscal year" is "an accounting period of 12 months ending on the last day of any month other than December." Ga. Code Ann. 92-3002(1). Therefore, when a taxpayer employs as an annual accounting period a fiscal year other than a twelve month period ending on the last day of some month other than December, he must report on a calendar year basis.
It should be noted that there is no provision in the Act similar to section 44l(f) of the 1954 Internal Revenue Code, which specifically authorizes certain taxpayers to use, for federal income tax purposes, a 52-53 week annual accounting period. Moreover, it was not until 1954, in "an attempt to bring tax accounting into closer conformity with book accounting for those taxpayers who regularly keep their books on a weekly rather than a monthly basis," that Congress first authorized use of a 52-53 week accounting period. 2 Mertens, Law of Federal Income Taxation 13.07.
Prior to that time, in Swift & Co. v. U. S.. 38 F .2d 365 (Ct. Cl., 1930), the Court of Claims, construing language appearing in an early federal revenue act identical to that presently found in Ga. Code Ann. 92-3118(a), held that a fiscal year ending on some day other than the last day of some month other than December was not a fiscal year within the meaning of the language used and that such language was direct and positive in requiring that a permissible fiscal year end on the last day of a month, not on some day close to the last day. Accord: Parks-Chambers, Inc. v. Comm. 131 F.2d 65 (5th Dist., 1942), aff'g 46 BTA 144.
Since I am of the opinion that a 52-53 week annual accounting period does not constitute a taxable year under the Georgia Income Tax Act, a taxpayer who regularly keeps books on such basis must file Georgia income tax returns on a calendar year basis.

OPINION 69-241 (Unofficial)

To: Glynn County Tax Commissioner

June 6, 1969

Re: Resale of inventory-Retailer who sells out is owner of property until title passed to purchaser.

This is in reply to your letters of April 4 and May 22, 1969, which were referred to this office by the State Revenue Commissioner.

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A retail liquor dealer discontinued business on or about December 31, 1964, and upon terminating his business he returned his inventory to the wholesaler who paid him for the inventory some two or three weeks later. You asked whether or not the State was the owner of the whiskey on January 1, 1965, so as to exempt the property from taxation.
. Distilled spirits, while they are strictly regulated by the State, continue to be private property and subject to taxation in the hands of their owner. The fact that a retail dealer ceases to do business on December 31st of a year does not change the fact that he owns his inventory, building or other properties. Based on the facts which you have supplied in your letters, the retailer would be subject to ad valorem taxation as owner of the property as he owned it on January 1st. Apparently he did own it on January 1st although this is not clear from your letter. If he did not own the property on January 1st then the wholesale company which had picked it up would be subject to the tax as one of the two of them owned it on tax day. Apparently the property was delivered to the wholesaler after January 1st and I would assume from this the retailer would own it on January 1st and is obligated to pay the tax thereon.

OPINION 69-242 (Unofficial)

To: State Highway Engineer

June 9, 1969

Re: Georgia Surface Mining Act of 1968.

Your letter of June 2, 1969, addressed to Mr. Richard L. Chambers, requesting an unofficial opinion regarding the applicability of the referenced Act, has been referred to me for reply.
Although as pointed out in the official opinion of May 7, 1969 [Op. Atty. Gen. 69-196], to Mr. Sanford Darby, "the provisions of the Georgia Surface Mining Act of 1968, do not apply to counties and municipalities of the State," this exemption would attach only when the particular political subdivision of the State is itself the "operator" of the surface mine within the definition of Ga. Laws 1968,pp.9, 12.

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OPINION 69-243 (Unofficial)

To: Director, Office of Administration, Georgia Department of Public Health

June 9, 1969

Re: Department of Public Health has authority to classify an institution as either a hospital, nursing home, or personal care home.

This is in response to your inquiry whether the Georgia Department of Public Health has the authority to establish and operate units of Gracewood State School and Hospital and Central State Hospital as a skilled nursing home and general hospital.
Ga. Code Ann. 88-1904 reads:

"The Department of Health shall classify institutions as herein defined and make and promulgate rules and regulations that apply to such institutions according to the type 9f services rendered."

Ga. Code Ann. 88-1901 defines ''institution" as

" ... any building, facility, or place in which is provided two

or more beds and other facilities and services that are used

for persons received for either examination, diagnosis,

treatment, surgery, maternity care, nursing care, or personal

care for periods continuing for 24 hours or longer and which

are classified by the Department of Health, as provided for

herein, as either a hospital, nursing home, or personal care

home."



Therefore, based on the above-quoted Code sections, it is my opinion that the Department of Health has the authority to classify units of Gracewood State School and Hospital and Central State Hospital as a skilled nursing home and general hospital.
Furthermore, the law appears to provide the Department of Health with ample authority to operate these institutions. Ga. Code Ann. 88-115.

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OPINION 69-244

To: Commissioner of Agriculture

June 10, 1969

Re: Egg inspection fee is permissive and not mandatory.

This is in reply to your request for my opinion as to whether imposition of the inspection fee on eggs provided for in Ga. Code Ann. 42-907 is discretionary or mandatory.
Ga. Code Ann. 42-907 provides in pertinent part:

"Inspection fee: Authority is hereby vested in the Commissioner of Agriculture to impose an inspection fee of two cents on each 30-dozen case of eggs or its equivalent, such fee to be placed in the general inspection fund of the Department of Agriculture to provide enforcement of this Chapter."

The answer to your question lies in the construction placed upon the word "authority" as used in this statute.
In construction of statutes, the ordinary signification is applied to all words, except words of art or words connected with a particular trade or subject matter. Ga. Code Ann. 102-102. The word "authority" is not defined by statute, nor is it in this instance a word of art or a trade term.
The word "authority" is defined in Black's Law Dictionary (4th Ed., 1951), as, "Permission. Control over, jurisdiction. Often synonymous with power." This definition was quoted with approval in Kennedy v. Durham, 219 Ga. 859, 862 (1964).
Although the word could be interpreted as imposing an obligation to act, if used in the proper context, it ordinarily denotes a power to act as opposed to an obligation. See Shopen v. Bone, 328 F.2d 655 (8th Cir., 1964).
The fee in question was not intended by the General Assembly to be a revenue produCing tax, but rather is stated in the statute as being for the purpose of providing enforcement of the Act. You have stated in your letter that the actual expense of operating the egg inspection program is paid from funds appropriated to the Department of Agriculture and that inspection fees are transferred to the General Fund.
Inspection fees in certain other areas within the jurisdiction of the Department of Agriculture have been imposed in mandatory terms. See Ga. Code Ann. 5-1006 (fertilizer inspection fee); and Ga. Code Ann. 42-1103 (seafood inspection fee). However, the

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majority of the inspection activities of the Department of Agriculture are conducted without imposition of inspection fees. Consequently, the vesting of "authority" in the Commissioner of Agriculture to impose the inspection fee in question, giving the word its ordinary signification, would constitute a grant of discretionary power.
It is therefore my opinion that imposition of the egg inspection fee is permissive and not mandatory.

OPINlON 69-245

To: Director, State Board of Corrections

June 11, 1969

Re: Release of inmates--when inmate is entitled to funds and clothing.

This will acknowledge receipt of your letter dated June 6, 1969, requesting an interpretation of Senate Bill No. 145 (1969 Regular Session). Receipt of a copy of Senate Bill No. 145 is also acknowledged. Your questions will be stated and treated below.
Your first question asks whether the benefits provided by Senate Bill No. 145 may be withheld from inmates who are discharged by reason of remission to probation or remission to present service or by the payment of a fine. Senate Bill No. 145 provides that transportation, clothing, and a monetary allowance shall be given to a prisoner who "has completed his term of service and is discharged upon completion of his sentence, or is conditionally released or paroled from any State institution or other place of detention operated under the authority of the State Board of Corrections. . .." It is assumed for the purpose of this opinion that the phrase "remission to probation" means an order remitting the time to be served to present service and containing a probation requirement. It is assumed for the purpose of this opinion that the phrase "remission to present service" means that the term to be served is remitted to present service and an order of release is entered without a probation requirement. It is assumed for the purpose of this opinion that discharge from custody upon payment of a fine relates to those instances in which the sentence imposed provides for incarceration in the absence of payment of a fine and for discharge from incarceration upon payment of the fine. Based upon the foregoing assumptions, it is my opinion that a prisoner who is discharged from custody by "remission to probation" is released "conditionally" within the meaning of

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Senate Bill No. 145. Therefore, it is my opinion that a prisoner who is released "by reason of remission to probation" is entitled to the benefits provided for in Senate Bill No. 145. Based upon the assumption heretofore set out related to "remission to present service," it is my opinion that a prisoner who is discharged by an order of ''remission to present service" falls within the category of a prisoner who is "discharged upon completion of his sentence" within the meaning of Senate Bill No. 145. Prisoners who are released in that category are entitled to the benefits provided for by Senate Bill No. 145. A prisoner who is released upon payment of a fine may fall within the category of a prisoner "discharged upon completion of his sentence" or within the category of a "conditionally released" prisoner, depending upon the particular order entered to effectuate the release. If the order contains a probation feature, the prisoner is "conditionally released" within the meaning of the Act. If the order does not contain a probation feature, the prisoner is "discharged upon completion of his service" within the meaning of Senate Bill No. 145. Prisoners discharged in the categories discussed with reference to discharge by payment of a rme are entitled to the benefits provided by the Act.
Your second question asks whether a prisoner who is released from physical custody to a detainer to stand trial on pending charges or to serve another sentence would be entitled to any benefits under the Act. Your request presumes that a prisoner released to a detainer would not be given a transportation allowance. The presumption is correct. In construing a statute, the basic rule to be followed is "to ascertain the true intention of the General Assembly." Gazan v. Herry, 183 Ga. 30 (1936). When Senate Bill No. 145 is read in its entirety, it is obvious that the General Assembly intended to provide benefits to released prisoners for the purpose of alleviating hardships which they would otherwise encounter upon re-entry into free society. It is my opinion that a prisoner released to a detainer is not entitled to the benefits provided by Senate Bill No. 145. While Senate Bill No. 145 provides for clothing which is generally suitable for wear in a free society, I am sure that it is not contemplated that the State Prison uniform would be taken away from a prisoner released under this category, as such parsimony could result in the delivery of a naked prisoner to the detaining authorities.
Your third question asks whether prisoners released from institutions other than State institutions and institutions operated under the authority of the State Board of Corrections are entitled to the benefits provided by Senate Bill No. 145. The Act provides

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for benefits to prisoners released from "any State institution or other place of detention operated under the authority of the State Board of Corrections." It is my opinion that prisoners released from institutions other than State institutions or institutions operated under the authority of the State Board of Corrections would not be entitled to the benefits provided by the Act. Inmates completing State sentences in Federal institutions fall within this category, and would not be entitled to benefits.
Your fourth question asks whether the State Board of Corrections is responsible for providing transportation, clothing, and the monetary allowance for prisoners released from the Stone Mountain Prison Branch and the Georgia Rehabilitation Center for Women. The Stone Mountain Prison Branch is operated by the Stone Mountain Memorial Authority. The Georgia Rehabilitation Center for Women is operated by the Department of Health. It is my opinion that the Stone Mountain Prison Branch and the Georgia Rehabilitation Center for Women are State prison institutions within the meaning of the phrase "State institution," as used in Senate Bill No. 145. Therefore, it is my opinion that the State Board of Corrections is required to provide the benefits required by the 1969 Act for prisoners released from the Stone Mountain Prison Branch and the Georgia Rehabilitation Center for Women, as the Act unambiguously provides benefits for prisoners "released or paroled from any State institution."

OPINION 69-246

To: Deputy Revenue Commissioner

June 11, 1969

Re: Municipalities are entitled to governmental license plates for vehicles donated for use in driver education programs.

This is in response to your letter wherein you posed the question:

"Where the exclusive use and possession of a motor vehicle is donated to a municipality or political subdivision for use in a driver education program, is the municipality or political subdivision entitled to purchase for use on that vehicle a governmental license plate (as provided in Section 68-260 of the Georgia Code Annotated)? "

The pertinent part of the above section states:

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"All motor vehicles owned by the State of Georgia or any municipality or other political subdivision of this State and used exclusively for governmental functions. . .shall be registered with the State Revenue Commissioner by the fiscal officers or other proper officials of the respective departments and agencies of the State, municipality or political subdivision, to which such vehicles belong, prior to operation and use thereof...."(Emphasis added.)

The word owner is defined in Ga. Code Ann. 68-101 as:

"Any person, firm, corporation or association holding title to a vehicle or having exclusive right to the use thereof for a period of more than 30 days., (Emphasis added.)

Therefore, it is my official opinion that where the exclusive use and possession of a motor vehicle is donated to a municipality or political subdivision for use in a driver education program for a period of more than thirty days the municipality or political subdivision is entitled to purchase for use on that vehicle a governmental license plate (as provided in Ga. Code Ann. 68-260.)

OPINION 69-247

To: Secretary of State

June 11, 1969

Re: Charities-financial reports must be signed by CPA before they can be ftled.

This will acknowledge your letter dated June 10, 1969, whereby you enclosed the Annual Report (Form CR-4) for the United Fund of Greater Chattanooga, Inc., and requested advice as to whether same may be ftled in your office without the signature of a certified public accountant.
Upon reviewing the material which you sent to this office, I notice that the "Public Accountant's Opinion" on page 3 of said Form CR-4 has not been signed. Instead a notation is made to "see attached letter" which purports to be the opinion of the certified public accountant regarding this charitable organization.
Your attention is called to Ga. Code Ann. 35-1004 which provides as follows:

Every chaiitable organization required to register pursuant to

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section 35-1002 which has received contributions during the preceding calendar year shall file a written report with the department upon forms prescribed by it, on or before March 31st of each year, which shall include a financial statement covering the preceding fiscal year of operation, verified by an independent public accountant clearly setting forth the gross income, expenses and net amount inuring to the benefit of the charitable organization. . . . The report of a State-wide parent charitable organization shall include the combined reports of all its local community fund-raising affiliates. This total State report shall be verified by a certified public accountant. Community reports of local affiliates or local managers to the parent organization need not be made separately to the department, but shall be made to the parent organization after being verified by an independent local audit. (Emphasis added.)

By the "Public Accountant's Opinion" on page 3 of Form CR-4 the verification by a certified public accountant is required, in accordance with the above-stated statute, for the reports of State-wide charitable organizations. The verification provides that:

The undersigned

represents that he (it) is

independently engaged in the practice of public accounting,

and that he (it) is located at

and that he

(it) has made an independent examination of the financial

statements of

for the fiscal year

ended

, in accordance with generally

accepted auditing standards, which examination accordingly

included such tests of the accounting records and such other

auditing procedures as he (it) considered necessary in the

circumstances, as set forth in his (its) opinion dated _ _ __

The information contained on Page 1 and on the Schedules on Pages 2 and 3 of this report was reviewed on the basis of such examination and, in the opinion of the undersigned, fairly presents the information therein set forth in the form required by the department.

As will be noted from the above verification, an opinion of the accountant is envisioned in addition to the verification required on the Form. Additionally, by the second paragraph of said verification, a review of said Form by the accountant is required

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so that he can state that the " .. .information... of this report was reviewed on the basis of such examination and, in the opinion of the undersigned, fairly presents the information therein set forth in the form required by the department (Office of Secretary of State)."
Therefore, it is my official opinion that the Annual Report of the United Fund of Greater Chattanooga, Inc., does not meet the above-stated requirements for filing since same has not been "verified by a certified public accountant."

OPINION 69- 248

To: Director, State Board of Corrections

June 12, 1969

Re: Work release program-funds earned by prisoner go to Director of Corrections; no reimbursement to county for funds expended.

This will acknowledge receipt of and reply to your letter dated May 9, 1969, in which you request an opinion interpreting the Work-Release Act, Ga. Laws 1968, p. 1399, as amended by Act No. 440 (Regular Session 1969).
Your first question asks for an interpretation of the following language: "A prisoner authorized to work at paid employment in the community under the provisions of this subsection shall surrender to the Director of Corrections his earnings less standard payroll deductions required by law." Ga. Laws 1968, pp. 1399, 1401. It is my opinion that the amount to be surrendered is the inmate's net or "take home" pay. The phrase "standard payroll deductions," as used in the Act, includes such items as amounts withheld for Federal income taxes, social security taxes, and State income taxes.
You have also asked whether the warden of a county public works camp is authorized by the Act to receive the prisoner's earnings and subsequently submit those earnings to the Director of Corrections. The Act is explicit in providing that net earnings shall be surrendered to the Director of Corrections. The Act does not authorize surrender of earnings to wardens of county public works camps or to any individual other than the Director of Corrections. That does not mean, however, that the Director of Corrections must himself collect net earnings from employers. "The general rule is that an agent in whom is reposed trust or confidence, or who is required to execute discretion or judgment, may not entrust the performance of his duties to another without the

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consent of his principal Ithe General Assembly]; and since nearly
all acts of agency involve discretion, and the very selection as agent ordinarily implies personal confidence in the agent chosen, it follows that one clothed with authority to act for a principal must ordinarily perform the act himself." Mobley v. Marlin, 166 Ga. 820, 822 ( 1928). But, "having exercised his discretion and determined upon the propriety of an act, an agent may delegate to a sub-agent the execution of merely mechanical, clerical, or ministerial acts involving no judgment or discretion." Mobley v. Marlin, supra, 822. While the 1968 Act does not itself authorize wardens or any person other than the Director of Corrections to receive the net pay of inmates employed in work-release programs, it is my opinion that the Director of Corrections may, if he so desires, appoint the net earnings. Under such appointments, the wardens or other trustworthy individuals acting as sub-agents are to do nothing more than receive the net pay and transmit it immediately to the Director of Corrections. As a cautionary note, I advise you to immediately adopt whatever procedures you deem necessary for the proper maintenance of accounting records pertaining to the receipt and disposition of inmates' net earnings. In making your appointments, you are authorized to and should impose the most stringent requirements and demand the most scrupulous exactitude in the handling of these funds.
You have also asked whether you may legally reimburse counties for the cost of maintaining inmates who are employed in work-release programs. The Act provides that "After deducting from the earnings of each prisoner an amount determined to be the cost of the prisoner's keep and confinement, which sum shall be deposited in the Treasury of the State Board of Corrections, the Director of Corrections shall ( 1) allow the prisoner to draw from the balance a reasonable sum to cover his incidental expenses; (2) retain to the prisoner's credit such amount as deemed necessary to accumulate a reasonable sum to be paid to him on his release from prison; (3) cause to be paid any additional balance as is needed for the support of the prisoner's dependents." Ga. Laws 1968, pp. 1399, 1401. (Emphasis supplied.) The Act is plain and unambiguous. No provision has been made for the recouping by counties of the expense of maintaining prisoners engaged in work-release programs. The most basic rule in determining the meaning of a statute is that "The use of plain and unequivocal language in a legislative enactment obviates any necessity for judicial construction and indeed forbids an interpretation of the words employed by the General Assembly." Gazan v. Heery, 183 Ga. 30 (1936). The statute in question is

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neither vague nor ambiguous. The statute plainly commands that amounts deducted for the cost of maintaining a prisoner be "deposited in the Treasury of the State Board of Corrections." No provision has been made by statute, and you may not administratively provide for the recovery by counties of their expenses in maintaining prisoners employed in work-release programs. If counties are to recover the cost of maintaining prisoners employed in work-release programs, it is a matter which addresses itself to the General Assembly.

OPINION 69-249 (Unofficial)

To: United States Small Business Administration

June 12, 1969

Re: Merchants have limited relief from civil liability as a result of the arrest and detention of suspected shoplifters.

Receipt of your letter of May 20 and the inquiry contained therein is acknowledged. There is in force in this State a statute affording operators of mercantile establishments some protection from civil suits for false arrest and false imprisonment of suspected shoplifters. Ga. Laws 1958, p. 693. A copy of this enactment is enclosed.
The offense of shoplifting is presently defined by Ga. Laws 1957, p. 115. A copy of this statute is enclosed. On July 1, 1969, the Criminal Code of Georgia becomes effective. This comprehensive revision of the criminal laws of this State does not define the offense of shoplifting as such. Ga. Code Ann. 26-1802 defines the offense of "theft by taking." A copy of this section is enclosed. Please note the final sentence which provides that the crime of theft by taking under the circumstances of this subsection (Ga. Code Ann. 26-1802(b)) shall also be known as shoplifting. This would appear to preserve the statutorially-defined exemption from civil liability in favor of operators of mercantile establishments.

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OPINION 69-250 (Unofficial)

To: Macon County Attorney

June 12; 1969

Re: Levy on property should be recorded on the tax fi. fa. and should describe the property.

This is in response to your letter of the seventh inst. Your question, as I understand it, is whether the sheriff or tax collector furnishes the legal description of the property which has been levied on following the issuance of a tax fi. fa.
Ga. Code Ann. Ch. 92-74 deals with "Executions by Tax Collectors, Issuance and Levy." Ga. Code Ann. 92-7401 provides, in part, that:

"Executions. . .shall be directed to all and singular the sheriffs and constables of this State."

But it has been held that such an execution directed to "any lawful officer to execute and return" is not void if in fact it was executed by a proper officer. Byars v. Curry. 75 Ga. 515 (1885);
also, Bedgood & Royal v. McLain, 89 Ga. 793 (1892). A "proper
officer" could be the tax collector if that particular county has, as some counties do, a local Act making the tax collector an ex officio sheriff for the purpose of collecting the taxes due the State and county by levy and sale under tax executions.
Ga. Code Ann. Ch. 39-1 deals with "Issue, Levy, and Return" (of Executions). Ga. Code Ann. 39-103 states:

"The officer making the levy shall enter the same on the process by virtue of which such levy is made, and in such entry shall plainly describe the property levied on and the amount of the interest of defendant therein."

Craddock- Terry Company v. Lazarus, 180 Ga. 552 (1935) was a case involving the failure to describe the property levied on under a tax fi. fa. In headnote 4 the Court said:

"There was no description in the sheriff's entry of the land levied on in the instant case, and the levy and sale had thereunder were void...."

From the above headnote it would seem that the Court takes

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the position that the form of a levy resulting from a tax fi. fa. is the same in regard to who should describe the property in the entry on the levy as in Ga. Code Ann. 39-103.
Therefore, it is my unofficial opinion that the officer making the levy shall enter the same on the tax fi. fa. and in such entry shall plainly describe the property levied on. The officer making the levy can be a sheriff, or if there is a local Act making the tax collector an ex officio sheriff for the purpose of levy and sale under tax execution, it can be the tax collector.

OPINION 69-251 (Unofficial)

To: State Highway Materials Engineer

June 12, 1969

Re: Highway Department not required to purchase options for substitute sources of construction material.

This is in reply to your letter of May 9, 1969, wherein you requested certain information regarding soil pit options.
In your letter you refer to Section 6.01B of the 1966 Specifications and particularly to the fourth paragraph of that article which states "Unless otherwise specified, the Department will obtain all necessary options from the owners." You state that it has been the interpretation of your office in the past that this requirement related only to designated sources of material which were shown on the Highway Department's plans and did not relate to substitute sources. You request this office to render an unofficial opinion as to the interpretation of this article.
It is further stated in your letter that the above-discussed wording has been removed from recent contracts by special provisions. However, many contracts which are still outstanding contain this wording; and, in those situations, you request our unofficial opinion on whether the Department should secure options on substitute sources when requested to do so by the contractor and property owner.
Section 6 of the State Highway Department of Georgia Standard Specifications, Volume I, entitled "Construction of Roads and Bridges," January 1, 1966, is entitled "Control of Materials." Section 6.01B is captioned "State Optioned Material." The first paragraph of Section 6.01B states:

"When the sources of local materials are optioned by the Department, the location of the pits will be shown on the

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Plans, and the amounts of royalties and other costs and conditions of acquisition of the material from the owner will also be so shown."
This section necessarily implies that when sources are optioned by the Department, the location of the pits will be shown on the plans. Another paragraph in this section states that when the Department secures these options the plans or special provisions will contain an estimate of the quantity of material required and will usually show where material is to be placed in the finished work. Under certain conditions, the plans or special provisions will also show estimates of clearing and grubbing, stripping, excavating, overhauling, and special overhauling for each separate source.
The language to which you have referred is found immediately following the section mentioned in the preceding paragraph and states: "Unless otherwise specified, the Department will obtain all necessary options from the owners."
Section 6.01D of the same set of specifications, referring to "Substitution of Sources of Materials," reads as follows:
"The Engineer has the authority to eliminate any source of material shown on the Plans or in the Special Provisions and, by written order, to substitute other sources as may be to the advantage of the Department. Such substitutions may be made at any time before the Contractor's plant has been delivered at the source to be eliminated. The written order will identify the new source and the unit price applying to the work will not be changed because of such substitution, except as may be provided by Article 4.03 'Changes in Plans or Character of The Work.' "If, after the Contract is awarded, the Contractor wishes to substitute other sources, and if the materials in these sources are satisfactory, and if the cost to the Department does not exceed that specified in the Contract; they may be accepted. The Engineer is the only judge as to the quality of materials to be substituted and his decisions shall be final and conclusive."
In interpreting this quoted section, it appears that when the Highway Department wants to eliminate any source of material and to substitute other sources, then it may do so providing the specifications are followed. Also, the section provides that if the contractor wishes to substitute other sources, and upon certain conditions being met, then these sources may be accepted by the Engineer.

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Inasmuch as these so-called "substitute sources" are found in a section of the specifications relating exclusively to "Substitution of Sources of Materials" and the language to which you referred is found under the section captioned "State Optioned Material" then it would appear that the language to which you have referred would relate only to designated sources of material.
In the case of State Highway Department v. Knox Rivers Construction Company, 117 Ga. App. 453 (1968), the Court held in headnote 1 that:
"Where the blueprints or plans for a highway construction contract showing a source of soil or 'soil pit' are prepared by the State Highway Department and, further, are prepared in complete conformity with the criteria contained in said department's Standard Specifications on 'Sources of Supply and Quality of Materials,' it must be said that such soil pit was contemplated by the parties as the source of soil for the project and, further, was a 'designated' source within the meaning of a term of the contract requiring the department's engineer, upon the failure of a designated source, to order in writing that the pit plant be moved to another source selected by the engineer."
Therefore, construing the specifications and the above-mentioned language from the Knox-Rivers case, it seems that a designated source within the meaning of the standard specifications would be a soil pit which was contemplated by the parties as a source of material for the project and, further, was a source which was shown on the plans prepared by the Department.
In view of the aforementioned ruling as to designated sources, it would appear that the Department is not required to secure options on substitute sources when requested to do so by the contractor and property owner. The substitution of sources by the contractor would be to the advantage of the contractor, and requirements for such substitutions are found in Section 6.01D and not Section 6.01 B of the Standard Specifications.
Therefore, in summary, it is the unofficial opinion of this office that the language in the fourth paragraph of Section 6.01B of the 1966 Standard Specifications refers only to designated sources and not to substitute sources. Also, the Department is not required to secure options on substitute sources which the contractor wishes to use in place of designated sources which are shown on the plans

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prepared by the Highway Department. This opinion is intended to cover only the situation mentioned
in your letter and is not to be applied when the contract or plans have been changed by Supplemental Specifications, Special Provisions, or other material variations which may affect the general language used in the 1966 Standard Specifications.

OPINION 69-252 (Unofficial)

To: Chief of Police, City of Savannah

June 13, 1969

Re: Intoxication Tests--Breath and blood tests may be requested by arresting officer; blood test may not be required; if motorist requests either test it should be given.

This is in reply to your request for an opinion clarifying the rights of an arrested motorist to choose between a blood alcohol test and a breath test pursuant to the provisions of Ga. Laws 1968, p. 448, which is popularly referred to as the Implied Consent Bill.
The first step in unraveling this statute requires that we recognize that the General Assembly dealt with two separate and distinct situations with respect to the demand for and giving of chemical tests to determine the alcoholic content of a motorist's blood. The first situation to which the General Assembly addressed itself is the arrest of a motorist who does not demand a test. Section 47A(a) declares that a motorist who operates a vehicle on a public road or highway "shall be deemed to have given his consent to a chemical test ... of his blood or breath for the purpose of determining the alcoholic content of his blood.... No person shall be required to take a blood test if he objects thereto, and in such case such person shall be given a breath test." Ga. Laws 1968, pp. 448, 452. In the absence of the motorist's demand for a particular test, the law enforcement officer may lawfully request that the motorist submit to either a blood or breath test. At that point, the election is that of the officer. If the officer chooses to request that the motorist submit to a blood test, the motorist then has the right to refuse a blood test. In that event, the motorist shall be offered a breath test.
The second situation to which the General Assembly addressed itself is that of the demand for a test made by the motorist rather than by the law enforcement officer. Section 47A(g) gives a motorist a right to demand either a blood or breath test. "It is mandatory upon the officials in whose custody he shall have been

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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. ..." Ga. Laws 1968, pp. 448, 455.
The statute is obviously designed to accommodate two diverse situations. Fir~t, the statute provides for demands made by a law enforcement officer. At that point the matter of testing is the choice of the officer, unless the motorist objects to taking a demanded blood test. Second, the statute creates a right in the motorist to demand either a blood or breath test which must be administered if the facility for giving the test is available.
It is my opinion that an arrested motorist who makes no demand pursuant to Section 47A(g) may be requested to submit to a chemical test chosen by the law enforcement officer, however, in that situation the motorist may refuse the blood test. On the other hand, a law enforcement officer faced with a motorist who demands that he be given a blood test or who demands that he be given a breath test, pursuant to Section 47A(g) should have the demanded test given if the facilities are available in the county of confinement.
Willie the two provisions relating to demands for tests are not facially contradictory, they are susceptible of producing a situation in which both the law enforcement officer and the motorist demand tests. I am aware of no rule of statutory construction which would furnish an absolute and certain answer to resolve the policeman's dilemma. I am inclined to believe, however, that a policeman who makes his demand and then is faced with the demand of a motorist should accede to the motorist's demand.

OPINION 69-253 (Unofficial)

To: Stone Mountain Memorial Association

June 16, 1969

Re: Stone Mountain Memorial Association not subject to "Claims Advisory Board Act."

This refers to your letter of June 11, 1969, in which you ask whether the "Claims Advisory Board Act, as amended through 1969," is applicable to the Stone Mountain Memorial Association. For the following reasons it is my opinion that the Act's provisions are not applicable to the Association.
Ga. Laws 1963, pp. 624-626 (Ga. Code Ann. 47-504 to

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47-509) created the "Claims Advisory Board" and provided that before a compensation resolution could be introduced in the House of Representatives (where such bills must originate), a notice of claim regarding the injury for which compensation is desired must first be reviewed and investigated by the "Claims Advisory Board," with the Board in turn required to make a recommendation in the matter to the House Appropriations Committee. The claims spoken of by the Act are those against "the State or any of its departments or agencies," see Ga. Code Ann. 47-505, and it follows that in its essence your question is whether or not the Stone Mountain Memorial Association is an "agency" of the State for the purpose of this Act.
I assume that your particular concern stems from H. B. 906 of the regular session of the 1969 General Assembly which places upon each State department and "agency," the duty of filing with the Claims Advisory Board, a notice of the "possibility of claim" for any occurrence "which would be the subject of a notice of claim" under the Act.1
In considering the question of whether the Stone Mountain Memorial Association, created under Ga. Laws 1958, pp. 61-81 as:
"a body corporate and politic and instrumentality and public corporation of this State ..."
is to be considered as an "agency" of the State within the meaning of the Claims Advisory Board Act, I am guided by the cardinal rule of construction, which is to proceed by examining the law prior to passage of the amendatory legislation, the evil therein, and the intended remedy of the General Assembly for such evil (i.e. the "legislative intent"). See, e.g. Ga. Code Ann. 102-102(9); Ford Motor Company v. Abercrombie, 207 Ga. 464, 467-468 (1950).
Here it would seem perfectly clear the purpose of the Claims Advisory Board Act was to alleviate the frequently harsh consequences of the sovereign immunity doctrine which ordinarily precludes individuals from obtaining redress in the courts for injuries suffered as the result of negligent or other tortious acts on the part of officers, agents and employees of the State or one of
1. At the time this is written, I do not have a comprehensive subject matter listing of all enactments of the General Assembly during the 1969 session. H. B. 906 is the only 1969 legislation affecting the Oaims Advisory Board with which I am presently familiar.

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its departments or agencies. As noted by the Court of Appeals in Trice v. Wilson, 113 Ga. App. 715, 719 (1966), it was this situation of wrong without judicial remedy which impelled the General Assembly to provide for the legislative recourse set forth in the "Claims Advisory Board Act."
The Stone Mountain Memorial Association, however, has never been possessed of the shield of sovereign immunity. From the time of its creation, it has been, even though an "instrumentality" (i.e. agency? ) of the State in general sense, fully competent to sue and be sued in its own name. See Ga. Laws 1958, pp. 61, 65. In view of the presence of an adequate judicial remedy for the individual injured by an officer, agent or employee of the Association, the very reason for the existence of the Claims Advisory Board respecting the State, its departments and agencies generally, is inapplicable insofar as the Association is concerned. Therefore, I conclude that it was never the intention of the General Assembly that the Stone Mountain Memorial Association be covered by the provisions of the "Claims Advisory Board Act."

OPINION 69-254 (Unofficial)

To: County Attorney, Stephens County

June 18, 1969

Re: A National Guard Armory may be used as a polling place.

. You have requested our unofficial opinion on whether a National Guard Armory may be used as a polling place in an election.
Presumably, you are concerned about section 74(c) of the Georgia Military Forces Reorganization Act of 1955 which provides as follows:

"Armories and other facilities of the organized militia shall not be used for political or religious purposes, except that an armory may be used for the purpose of holding the National or State conventions of a political party with the prior approval of the Adjutant GeneraL" Ga. Laws 1955, pp. 10, 95 (Ga. Code Ann. 86-906 (c)).

The issue to be determined is whether an election is a "political purpose" which is proscribed by the above law. To my mind, "political purpose" as used in the above statute means any

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purpose to be attained at an election or primary, whether the electors are asked to vote on issues or for or against candidates. It is action taken with the purpose of influencing people to decide a political question in one way rather than in another. See, Commonwealth v. McCarthy, 281 Mass. 253, 183 N.E. 495 (1932); State ex rei. Corrigan v. Cleveland- Giffs Iron Co., 152 N.E.2d 1 (Ohio App., 1958); State ex rei. Green v. City of Cleveland, 33 N.E.2d 35 (Ohio App., 1940). The holding of an election is not action taken to persuade electors to one side or the other but rather it is a function of the sovereign to determine the will of the governed.
Further, Ga. Code Ann. 34-706(a) provides that in selecting polling places, the ordinary shall, whenever practicable, select public buildings.
Based on the above, it is my unofficial opinion that National Guard Armories may be used as polling places in an election. To be sure, both the Georgia Election Code and The Georgia Military Forces Reorganization Act of 1955 provide that armories cannot be used if the use would interfere in any way with the functions and purposes for which the armory is primarily intended. Ga. Code Ann. 34-706(a); Ga. Military Forces Reorganization Act of 1955, section 74(a).

OPINION 69-255 (Unofficial)

To: County Attorney, Bleckley County

June 18, 1969

Re: Costs of Ordinaries' Court are set by the general law which fixes Ordinaries' fees.

You advise us that in your county, the ordinary presides over cases involving violations of the wildlife laws and you have requested our unofficial opinion on what the total court costs would be in these cases.
Section 17 of the Game and Fish Commission Act provides in
relevant part as follows:

". .. The proceeds from all fines and forfeitures arising from the violation of the wildlife laws, rules and regulations, shall be used, except as otherwise provided herein, first, to pay the proper officers of the trial court as prescribed by law. The money remaining after said officers have been compensated, shall be remitted promptly by the clerk of the

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court in which the case is disposed of to the county treasurer of the county in which said fine is assessed, shall deposit said fund in the general fund of the county, but be allocated to the said county school board for school purposes. The clerk of the court in which each case is disposed, shall promptly make a written report to the Director of Game and Fish showing, the disposition of each case; and for making each report he shall be entitled to an additional fee of $1.00 in each case, to be added to the cost allowed by law against the defendant, to be retained by said clerk as his special compensation for making such report." Ga. Laws 1955, pp. 483, 491 (Ga. Code Ann. 45-117).

Since you advise that the ordinary in your county handles these cases, the above law requires that court costs be assessed in accordance with the law which generally fixes the costs in the ordinary's court. The total cost for each case, would, of necessity, depend upon the services rendered by the ordinary in that particular case and I am not in a position to advise you what the total cost in these cases would be. See Ga. Code Ann. 24-1716.
It is therefore my unofficial opinion that court costs allowed to an ordinary who presides over cases involving violations of the wildlife laws, are set by the general law which fixes ordinaries' fees.

OPINION 69-256 (Unofficial)

To: Senator, 49th District

June 19, 1969

Re: Contractors should not mow grass and combine seed therefrom on planted areas awaiting Highway Department acceptance.

This is in reply to your letter of May 29, 1969, requesting certain information concerning contracts by the State Highway Department for grassing rights-of-way.
In your letter you state that these contracts provide in essence that the grassing contractor shall provide a stand of grass acceptable to the engineer in charge before payment is finally completed on the contract. Also, you state that grassing contractors, as has been the custom in the past, while awaiting final approval of a particular project, have mowed and combined seed produced from grass planted on the right-of-way as per

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contract. These contractors have treated the seed produced as belonging to them until final approval and acceptance by the State Highway Department. Now, you state that in certain instances, prior to acceptance of the grassing contractor's labors, the State Highway Department has advised the contractor not to combine and remove the seed produced from the planted areas. Pursuant to these facts, you request an unofficial opinion as to the validity of such a prohibition by the State Highway Department prior to final acceptance by the Department of the grassing contractor's performance.
In order to fully and completely answer your request, it would be necessary to know the specific contracts to which you refer and the date of the Standard Specifications under which the contracts are being performed. However, this opinion will attempt to answer your question using the General Standard Specification of both 1956 and 1966.
Under the State Highway Department of Georgia Standard Specifications, Volume I, entitled "Construction of Roads and Bridges," dated May 1, 1956, section 700.04, entitled, "Stand of Grass Required," provides as follows:
"It is the intent of this specification that the Contractor is obliged to deliver a satisfactory stand of perennial grass before final payment will be made for any of the Pay Items here described. If it is necessary to repeat any or all of the work, including plowing, fertilizing, watering and seeding, the Contractor shall nevertheless repeat these operations as a part of these Pay Items until a satisfactory stand is obtained. "a. Satisfactory Stand Defined: For the purpose of seeding, a satisfactory stand of grass is here defined as a full cover, over the areas to be seeded, with grass that is alive and growing, leaving no bare spots larger than one square yard."
Section 5.01A of the same set of specifications provides, in part, that the engineer's decision shall be final on all questions relating to the interpretation of the Specifications and the Plans and as to the acceptable fulfillment of the contract by the contractor. Therefore, assuming that the engineer's decision in the instance to which you refer was made relating to section 700.04, then the prohibition by the Highway Department would appear to be valid.
Section 9.07 of the 1956 Standard Specifications, entitled "Partial Payment" provides that "Once each month the engineer

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will make an approximate estimate, on the regular form of the Department, of th~ Pay Items complete in place and the value thereof according to the contract unit prices." Section 9.07(b) provides that "The balance remaining after all deductions provided for in this Article have been made, will be paid to the Contractor." Assuming that seeding is paid for each month as the work progresses, it is apparent that once payment is made by the Department for that seeding which is in place, the seeding becomes the property of the Highway Department.
Further, from information received from the Highway Department, it can be stated that on newly seeded areas good agricultural practice would demand that the first several crops of seed be allowed to fall back onto the seeded areas in order to produce the dense turf necessary to eliminate or reduce erosion.
Under the State Highway Department of Georgia Standard Specifications, Volume I, entitled "Construction of Roads and Bridges," dated January 1, 1966, the pertinent section relative to your question appears to be Article 700.10 entitled "Mowing." This section reads as follows:
"Mowing will be required as may be needed to remove tall or obnoxious weeds before they go to seed, or to remove any weeds or brush that shade the grass and retard or prevent its growth. In order to reduce damage to the root systems of the planted grasses, mower blades shall be set at an elevation of at least 5 inches and not more than 7 inches above the ground surface. "Except as may be required to remove obnoxious weeds no mowing of sericea lespedeza, pensacola bahia, or crimson clover shall be made until after these plants have gone to seed. All other planted areas shall be mowed just before final acceptance of the work."
From the above quoted provlSlon, it is apparent that no mowing, except to remove obnoxious weeds, may be made on certain types of plants until these plants have gone to seed. Also, even though a final mowing may be necessary, it appears that the residue, if paid for under a partial payment provision, contained in the 1966 Specifications as well as the 1956 Specifications, would fall in the same category as that mentioned heretofore in this opinion.
It should also be noted that the 1966 Standard Specifications contains Section 5.01, "Authority of the Engineer"; Section 9.07,

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"Partial Payments"; and Section 700.05, "Stand of Grass Required," all of which are the same or similar provisions found in the 1956 Standard Specifications.
Therefore, construing the general Standard Specifications of both 1956 and 1966, it is my unofficial opinion that under both sets of specifications, the State Highway Department of Georgia has the right to advise the contractor not to combine and remove seed produced from planted areas. This opinion, of course, is based upon the general specifications which would be subject to change by the specific bid items, supplemental specifications, special plans, special provisions, or other supplemental documents which may in some instances change the Standard Specifications.
Since I am not informed as to the specific projects and contracts to which you refer, this opinion is not intended to construe the special and supplemental documents which are attached to the contracts.

OPINION 69-257

To: Treasurer, State of Georgia

June 19, 1969

Re: Only General Assembly authorized to sell intangible property owned by the State.

This is in reply to your letter requesting my opm10n as to whether you have authority to accept an offer of Georgia Railroad and Banking Company to purchase certain "Certificates of Participation" registered in the name of "Treasurer, State of Georgia" and representing participation in capital stock of Atlanta and West Point Rail Road Company and of the Western Railway of Alabama.
As the records in your office show, the State has owned stock in Georgia Railroad and Banking Company since approximately 1835. See Ga. Code Ann. 91-103. In 1953 the General Assembly deemed it advantageous for the State, as a stockholder in the Company, to participate in a plan of readjustment and authorized the Governor and Treasurer to take action necessary to participate in such plan. Thereafter, the Certificates of Participation in question, which will be convertible in 1980 into capital stock of Atlanta and West Point Rail Road and The Western Railway of Alabama, were received as a dividend from Georgia Railroad and Banking Company.
The General Assembly is vested with the power to dispose of property belonging to the State and no other agency of

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government has that power unless so authorized by the General Assembly. Western Union Telegraph Company v. Western and Atlanta Railroad Company, 142 Ga. 532, 534 (1914). Although the General Assembly has set up procedures for the disposition of certain properties, there appears to be no authorization for the disposition of intangible property, such as capital stock. Even if intangible property could be sold under Ga. Code Ann. 91-804 or Ga. Laws 1968, p. 1148, it does not appear that the "Certificates of Participation" could be classified as unserviceable so as to authorize the Governor to dispose of the same or as surplus property so as to authorize the Supervisor of Purchases to dispose of such property. In addition, it is noted that the "State Properties Control Code" (Ga. Laws 1964, p. 146) does not authorize the sale of intangible property.
Therefore, it is my opinion that the GeneralAssembly would be required to authorize the sale of such intangible property.

OPINION 69-258

To: Director, State Department of Family and Children Services

June 19, 1969

Re: Department of Family and Children Services Volunteers-State may not directly or indirectly pay for liability insurance or any other expenses.

Receipt of your letter dated June 10, 1969, is hereby acknowledged. In your letter you posed, after setting forth certain facts and Federal Regulations and Guides, the following question:

Under State law may the State Department of Family and Children Services reimburse the County Department of Family and Children Services or the volunteer directly for any expenses incurred in the purchase of liability insurance or any expense incurred as a result of a possible increase in the rate of the insurance purchased by said volunteer as a result of increased risks brought about by the performance of his duties in transporting public welfare applicants or recipients as outlined above?

By Sections 210(a), 240(c) and 304(a) of the "Social Security Amendments of 1967" (P.L. 90-248, 81 Stat. 821, 895-896, 913 and 929) various programs authorized by the Social Security Act were amended so as to, in essence, require, effective

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July 1, 1969, that the State Plans for such programs must provide:
... for the training and effective use of paid subprofessional staff, with particular emphasis on the full-time or part-time employment of recipients and other persons of low income, as community service aides, in the administration of the plan and for the use of nonpaid or partially paid volunteers in a social service volunteer program in providing services to applicants and recipients and in assisting any advisory committees established by the State agency.
Concerning nonpaid or partially paid volunteers, each of the above-cited amendments provides that such volunteers are to provide "services" and are to assist " ... any advisory committees established by the State agency." It is my understanding that the State Department of Family and Children Services (State Department) intends to use the "service" volunteers to provide the following type services to welfare recipients: friendly visiting, transportation, baby- sitting, nutritional and budgeting training and tutoring. See: Georgia Plan for Services to Families and Children, Title IV-A, Social Security Act, 2.6(b). In order to distinguish the two (2) classifications of volunteers (either nonpaid or partially paid), reference will be made hereinafter to either "service" volunteers or "advisory" volunteers.
Presumably, pursuant to the above-stated statutory provisions, the Honorable Wilbur J. Cohen, the former Secretary of the United States Department of Health, Education and Welfare (HEW) approved on January 18, 1969, Regulations to implement the 1967 provisions relative to the training and use of subprofessional staff and volunteers. See: Title 45, Code of Federal Regulations, Chapter II, Part 225, "Training and Use of Subprofessional and Volunteers." The Regulations were effective January 28, 1969, upon publication in the Federal Register. 34 F. R. 1319.
By Section 225.l(c), 34 F. R. 1319, at 1320, the following definition was promulgated for the term ''volunteer":
(c) The term "Volunteer" describes a person who contributes his personal service to the community through the agency's human services program. He is not a replacement or substitute for paid staff but adds new dimensions to agency services, and symbolizes the community's concern for the agency's clientele.

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Additionally, by Section 225.1 (d), supra, the term "partially paid volunteers" is defined as:
(d) "Partially paid volunteers" means volunteers who are compensated for expenses incurred in the giving of services. Such payment does not reflect the value of the services rendered, or the amount of time given to the agency.
Since each of the hereinabove-cited provision of the "Social Security Amendments of 1967" relative to volunteers utilizes the term "nonpaid or partially paid volunteers," it is presumed that by the above-cited Regulations a partially paid volunteer is distinguished from a nonpaid volunteer by the payment of incurred expenses to the partially paid volunteer, while no such payments are made to the nonpaid volunteer.
Additionally, by Section 225.2, supra, provision is made by the HEW Regulations that:
Effective July 1, 1969, the State plan for OAA, AFDC, AB, APTD, AABD or MA under title I, IV (part A), X, XIV, XVI or XIX of the Social Security Act or for CWS under title IV (part B) of the Act (See 42 CFR, Part 201), or for MCH and CC under title V of the Act (see 42 CFR, Part 200), must: ...
(b) Provide for the use of nonpaid or partially paid volunteers in providing services and in assisting any advisory committees established by the State agency and for that purpose provide for: ... (Emphasis added.)
From a reading of the above-quoted HEW Regulations, it would appear that the State Plans for the indicated programs must provide for either "nonpaid" or "partially paid" volunteers, but that a State Plan does not have to provide for both types of volunteers.
In Black's Law Dictionary, p. 1246 (4th ed., 1951) "or" is defined as follows:
OR, conj. A disjunctive particle used to express an alternative or to give a choice of one among two or more things.
See: Whitaker v. State, 11 Ga. App. 208, at 211 (1912) and Smith v. State, 15 Ga. App. 536, at 539 (1914).
Since there does not appear to be anything in the above-stated

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Statutes or HEW Regulations to indicate that "or" is used in any other than the disjunctive sense, it would appear that a State Plan must include only "nonpaid" or "partially paid" volunteers, but not necessarily both types of such volunteers.
Therefore, since, by definition, a "partially paid" volunteer is the only volunteer for whom any expenses are to be paid, if the State Department of Family and Children Services is prohibited from paying the expenses of the "partially paid" volunteer, said Department can comply with the HEW Regulations by providing for a program of only "nonpaid" volunteers.
With your request letter, you enclosed a copy of the above-referenced HEW Regulations which have attached thereto a list of "Guides for Implementation of Regulations Relating to the Training and Effective Use of Subprofessional Staff as Community Services Aides and Volunteers." By your request letter, you called to my attention Part IV, Section B, Paras. 5 and 6 of said Guides which provides, in part, as to volunteers that:
The necessary steps in implementation should include: 5. Providing for meeting the costs to volunteers of providing the services; ... 6. Providing through agency sources for workmen's or employee compensation for injuries or disabilities occurring while providing services for the agency. When volunteers escort individuals in their own cars or use agency cars, provide for necessary insurance to protect the agency, clients, and volunteer. (Emphasis added.)
It would appear that by the use of the word "should" HEW provided only that the "Guides" would be suggestions and not binding upon the State Department.
In answering your specific question, your attention is first called to Ga. Code Ann. 40-2002 which provides that:
The officers. officials and employees of the various departments, institutions, boards, bureaus, and agencies of the State shall be paid eight cents per mile as traveling expense when traveling in the service of the State or any agency thereof by automobile, except as provided otherwise in the General Appropriations Act. (Emphasis added.)
Second, your attention is called to Ga. Code Ann. 40-2003

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which provides, in part, that such officers, officials or employees shall " ... furnish such automobiles as may be necessary for their official use, and shall receive, for the use of such automobile and as expense of operating the same, such mileage allowance as is prescribed by law." (Emphasis added.)
It is my official opinion that the mileage allowance authorized for State officers, officials and employees covers all items concerned with the use and operation of such automobiles, including any necessary or desired insurance coverage. Thus, in answer to your specific question, it is my official opinion that, presuming, for the sake of answering your specific question, that the State Department of Family and Children Services can pay expenses to volunteers, said Department may neither reimburse the county departments of family and children services, nor a volunteer directly, for the purchase of liability insurance or the expense of added liability insurance coverage incurred as a result of serving as a volunteer. Accord, Op. Atty. Gen. 1952-53, p. 350.
Although I have answered your specific question, I feel that it is my duty to comment on an even more basic question which has arisen in my mind concerning the subject of volunteers and the payment from State funds of the expenses of such volunteers.
By the above-cited Ga. Code Ann. 40-2002, travel expense of eight cents per mile is authorized only for State "officers, officials and employees." It is my official opinion that State funds may not be used to pay the expenses of volunteers who are not officers, officials or employees of the State.
In further support of the opinion that the State Department of Family and Children Services may not reimburse the counties for the expenses of volunteers who are not State officers, officials or employees, your attention is called to Ga. Code Ann. 99-508 which provides, in part, concerning reimbursement of counties by the State Department for administrative expenses, that:
For the purpose of this Chapter, administrative expenses shall mean salaries of the director of family and children services and other employees of the staff of the county department engaged in the performance of welfare services for which the State makes contribution, and the necessary traveling expenses of the county board and the administrative staff in the performance of the aforesaid services. (Emphasis added.)
Several statutes relating to the State Welfare System contain board authorizations concerning the activities which the State of Georgia may undertake relative to the Welfare system. E.g. Ga.

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Code Ann. 99-142, 99-143, 99-144, 99-145, 99-146, and 99-2915.
However, it is my official opinion that the General Assembly of Georgia, in enacting the above-cited statutes, did not intend for same to be used to support the payment of expenses of volunteers who are not officers, officials or employees of the State, much less the payment of the cost of liability insurance coverage for such volunteers.

OPINION 69-259 (Unofficial)

To: Private Inquirer

June 20, 1969

Re: Taxation of annexed property-Ad Valorem taxes collectable on January 1, following annexation; Business license. fee as of date of annexation.

Your letter requested an opinion as to the date at which the City of Dublin could impose ad valorem taxes on property recently annexed and business license taxes on business within that area.
A municipal corporation has no power of taxation other than that clearly conferred upon it by the legislature. Publix-Lucas Theaters, Inc. v. City of Brunswick, 206 Ga. 206, 56 S.E. 2d 254 (1949); Lewis & Holms Motor Freight Corp. v. City of Unadilla, 154 Ga. 577, 114 S.E. 636 (1922). The extent of the city's taxing power is usually stated in its charter.
The charter of the City of Dublin confers upon the municipality the power to assess, levy and collect property taxes and the power to license and regulate those engaging in certain businesses and occupations and impose license fees and special taxes upon such persons. See Ga. Laws 1937, pp. 1776-77. The Mayor and Board of Aldermen are empowered to "provide by ordinance for the assessment, levy and collection of ad valorem taxes." Ga. Laws 1937, p. 1799. The Mayor and Board of Aldermen have the further authority to levy license taxes and other specific taxes upon certain enumerated businesses. Ga. Laws 1937, pp. 1799, 1801. This charter was effective as of March 31, 1937, and has remained intact with respect to these particulars, the only change being a 1966 amendment raising the maximum ad valorem tax rate from 15 mills to 16.5 mills. See Ga. Laws 1966, p. 3166.
The property owner's liability for ad valorem taxes, whether state, county or municipal, is fixed as of the time set by law for

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valuation. Ga. Code Ann. 92-5708. Such time is the first day of January. Ga. Code Ann. 92-6202. The City of Dublin is empowered to impose taxes only on that property located within its corporate limits. Ga. Laws 193 7, p. 1799. Thus, only that property located in Dublin as of January first is subject to the tax.
In Perteet v. Fricks, 9 Ga. App. 637 (1910), an attempt by the City of Toccoa to establish a date for the attachment of tax liens different from that established by the State was held to be invalid. Persuasive authority from the courts of other States support this proposition. See City of St. Matthews v. Harrison, 369 S.W. 2d 7 (Ky. App., 1963); Texas City v. J. L. Martin Inv. Co., 222 S.W. 2d 139 (Tex. App., 1949). Both the Texas City Case and the St. Matthews Case held that property annexed after the date established by the state for the assessment of taxes was not subject to municipal ad valorem taxes.
With respect to the business licenses, there appears to be no such limitation. A municipality cannot levy more than one license or occupation tax for a given period, such period usually being one year. Publix-Lucas Theaters, Inc. v. City of Brunswick, 206 Ga. 206, 56 S.E. 2d 254 (1949). However, such single tax is not subject to any specific requirement of effective date. Although such taxes are generally due and payable as of January first, the tax on a business commencing after this date is due as of the date of commencement. Ga. Code Ann. 92-304. There seems to be no difference between the commencement of business within the pre-existing corporate limits of the city, and the commencement, within the new limits, of a pre-existing business due to an annexation of territory. Therefore, the business license tax can be imposed as of the effective date of the charter's amendment.
It is therefore my opinion that annexed property may be made subject to ad valorem taxation as of January first, following the annexation. Business license taxes may be imposed immediately on the effective date of the amendment to the charter creating the annexation.

OPINION 69-260 (Unofficial)

To: Private Inquirer

June 20, 1969

Re: Sales tax collectable on sales by .farmers, by those buying from farmers and selling to the public and by those employing others to operate a stall at farmers market.

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This is in reply to your letter of June 14, 1969, requesting an opinion as to whether or not individuals who purchase farm products and in turn resell to the public, and those merchants who employ persons to operate stalls, on the premises of farmers markets, are required to collect the Georgia Sales Tax.
The sale of tangible personal property to a consumer or other person, for any purpose other than resale, is subject to the Georgia Sales Tax. Ga. Code Ann. 92-3402a (a). Agricultural products are generally subject to the sales tax, except where they are produced by the farmer for use by his family and where they are purchases, not for direct consumption, but to be used as raw materials in the preparation of some other product for ultimate retail sale. Ga. Code Ann. 92-3418a, 92-3419a.
There is no exemption from the sales tax requirement with respect to sales made at a "farmers market." The Georgia Building Authority (Markets) Act provides no exemptions other than for the Authority itself.
We are advised that the Commissioner of Agriculture requires the registration of those making sales through facilities provided by the Georgia Building Authority (Markets), previously the Farmers Market Authority, and the collecting of the three percent sales tax from customers.
Therefore, it is my opinion that the retail sales by farmers and any others, including those who buy from the farmer and resell to the public, and those merchants who employ persons to operate stalls, on the premises of the state farmers markets, are subject to the three percent sales tax.

OPINION 69-261

To: Governor, State of Georgia

June 20, 1969

Re: Legislation relative to State Department of Air Transportation.

This letter is in response to your request for my opinion on the

following questions:



Question 1. "In the absence of sufficient funds to implement the Act approved March 8, 1968 (Ga. Laws 1968, p. 130),
establishing a State Department of Air Transportation, am I required to implement the provisions of said Act? "

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.Opinion. Strictly, no. The decision of whether to use the Governor's "Emergency Fund" to finance the new Department of Air Transportation (DAT) is by statute completely within the Governor's discretion.Ga. Laws 1962, pp. 17, 25 (Ga. Code Ann. 40-402).
Question 2. "In the event your answer to inquiry no. 1 is in the negative, should the Board provided in Section 4 of said Act be appointed? "
Opinion. As a practical matter, yes. Since the Act places exclusive responsibility for the purchase, management and maintenance of all State aircraft in the DAT, all State aircraft now operated by the various State agencies will in fact be "grounded" unless the governing Board of the DAT is appointed.
Question 3. "In the event your answer to inquiry no. 1 is in the negative, and in the event your answer to inquiry no. 2 is in the affirmative, how would the purchase, lease, rent, charter, maintenance and repair of State aircraft be handled?
Opinion. Section 8(6) of the Act gives the DAT specific power to
"assign special purpose State aircraft and personnel to any other department or agency of State government."
Therefore, once the Board is appointed, this provision would allow it to assign the aircraft presently being used by the various State agencies back to that particular agency, designated appropriately as "special purpose" State aircraft. The receiving agency would then be responsible for paying the operating costs of their assigned aircraft. Section 7 of the Act provides that even under DAT management, "the cost for the use of State aircraft shall be charged by the Department to the using agency," so therefore, the agencies would most likely be paying what they would have in any case. This assignment situation could remain in effect until the DAT is sufficiently funded and staffed, and until such time, the agencies would be able to maintain and operate their assigned aircraft under the primary authority of the DAT.
It may be that a Director should be appointed, as provided by section 6 of the Act, for purposes of assisting the Board,

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supervising the assignment and reassignment of aircraft and hiring the pilots, etc. If the agency appropriations, transferred to the DAT budget unit under Ga. Code Ann. 40-421 were insufficient to hire a Director, he could be paid from the Governor's Emergency Fund since he is specifically exempted from the Merit System by section 12 of the Act. In other words, the prohibition of the use of the Governor's Emergency Fund for purposes "which create a continuing obligation for the State" would probably not apply in the case of hiring a Director not under the Merit System.
Question 4. "In the event your answer to inquiry no. 1 is in the negative, and in the event your answer to inquiry no. 2 is in the negative, how would the purchase, lease, rent, charter, maintenance and repair of State aircraft be handled? "
Opinion. Since my answer to question 2 is in the affirmative, this question requires no answer.
Question 5. "Your attention is further directed to the Act Amending the Act creating the Department of Commerce (now the Department of Industry and Trade) approved April 12, 1968 (Ga. Laws 1968, p. 1411). This Act provides, among other things, that the Director of the Department of Industry and Trade shall be authorized to purchase aircraft through the Purchasing Department as other State purchases are made. It should be noted that this Act was approved subsequent to the Act establishing the State Department of Air Transportation. Due to the fact that the aforesaid Act relative to the Department of Industry and Trade was approved subsequent to the aforesaid Act creating the State Department of Air Transportation, is the Department of Industry and Trade bound by the provisions of the Act establishing the State Department of Air Transportation? "
Opinion. The Department of Industry and Trade is bound by the provisions of the Act establishing the DAT.
Section 13 (d) of the Act creating the DAT, aproved March 8, 1968, but not effective until July 1, 1969, specifically repealed the "last sentence" of section 6, Ga. Laws 1964,p. 181, which at that time was the provision authorizing the Director of the Department of Industry and Trade to purchase aircraft. Thereafter, on April 12, 1968, section 6 of the relevant

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Department of Industry and Trade Act was amended by adding the following new sentence to the end of section 6:
"The director is further authorized and empowered to reimburse authorized personnel of the Department for the actual cost incurred in the pursuit of official business for all meals, taxis, parking, and the rental of automobiles when the use of such vehicles is less expensive or more efficient than other commercial transportation."
This amendment raised the question now presented of whether section 13(d) of the Act creating the DAT which repealed the "last- sentence" of section 6 of the Act creating the Department of Industry and Trade, and which will go into effect on July 1, 1969, applies to the "last sentence" of section 6 as amended by the Act approved on Aprill2, 1968, or as it read on March 8, 1968, the date the DAT Act was approved.
The answer must necessarily depend on the legislative intent, and in determining the legislative intent, it is always proper to consider the entire scheme of legislation on the particular subject. See, Lucas v. Smith, 201 Ga. 834, 837 (1947), and authorities cited. It is obvious that the General Assembly intended by the specific repealer clauses in section 13 of the Act creating the DAT to consolidate the purchasing, management and maintenance of all State aircraft in one department, that being the newly created Department of Air Transportation.
Therefore, it must be assumed that section 13(d) of the Act creating the DAT will repeal the "last sentence" of section 6, Ga. Laws 1964, p. 181, rather than the last sentence added by the
April T2, 1968, amendment to the Act creating the Department of
Industry and Trade. Consequently, it is my opinion that the Department of Industry and Trade is bound by the Act creating the Department of Air Transportation to the extent that the Supervisor of Purchases has exclusive authority under section 11 thereof "to purchase all aircraft for the State Department of Air Transportation in the same manner as other State purchases."
Question 6. "In the event your answer to inquiry no. 5 is to the effect that the Department of Industry and Trade is not bound by the provisions of the Act establishing the State Department of Air Transportation, is the aforesaid Act relating to the Department of Industry and Trade broad enough to include the operation, maintenance and repair of aircraft purchased for the Department of Industry and Trade?"

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Opinion. This question requires no answer since the Department of Industry and Trade is bound by the relevant provisions of the Act creating the Department of Air Transportation.

OPINION 69-262 (Unofficial)

To: Private Inquirer

June 23, 1969

Re: Labor law--Collective bargaining with hospital employees is legal; strikes by State hospital employees are illegal.

This is in answer to your letter of the 9th in which you ask for information concerning labor organizations and strikes by hospital employees, to join labor organizations is undoubtedly protected
While the basic right of all individuals, including hospital employees, to join labor organizations in undoubtedly protected by the First Amendment to the United States Constitution, the provisions of the National Labor Relations Act making it an "unfair labor practice" for the ordinary employer to refuse to bargain collectively with his employees (i.e. through their union representative), see 29 U.S.C. 158(aJ, does not apply to hospitals. The reason for this is that 29 U.S.C. 152(2), in defining the term "employer" for the purposes of that Act, expressly states that the term shall not include:

"any corporation or association operating a hospital"

Inasmuch as I am unaware of any State statute which would require hospitals to bargain collectively with hospital employees or their labor organizations, I conclude that no such legal obligation exists. This is not to say, of course, that the hospital employer could not bargain collectively if it voluntarily chose to do so. Nor is it to say that employees of private hospitals would be acting in violation of law if they took concerted action, including strikes, to pressure their private hospital employer to make such a ''voluntary choice."
Strikes against State hospital facilities, on the other hand, would be illegal under Ga. Code Ann. 89-1301, which declares:

"Strikes by State employees prohibited.-No person holding a position by appointment or employment in the Government of the State of Georgia or any agency, authority, board,

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commissiOn, or public institution thereof shall promote, encourage or participate in any strike."

The penalty for violation of the above provision is contained in Ga. Code Ann. 89-1303.

OPINION 69-263 (Unofficial)

To: Justice of the Peace, 32nd District

June 24, 1969

Re: Justice of the Peace plays no part in the actual collection of back taxes.

This is in response to a letter from the Honorable George T. Smith, Lieutenant Governor of the State of Georgia, wherein he requested that I assist you in obtaining the proper procedure for a Justice of the Peace to collect back taxes due the county and State.
There is no provision in the Georgia Code dealing with the collection of taxes, delinquent or otherwise, by the Justice of the Peace. The only provision dealing with taxes at all is found in Ga. Code Ann. 24-601, the pertinent part of which states:

"Enumeration of duties in general. - Justices of the peace have authority, and it is their duty... "11. To make a list of names of all persons not on the tax digest, liable to tax on property or poll in their respective districts, and return the same to the receiver of tax returns, at his second round to receive tax returns in their respective districts in each year; and they shall receive as compensation for such service three cents for each name returned to be paid out of the county funds."

As to the actual collection of taxes, Section 92-4901 (1 ),(5),(1 0) of the Code places this duty upon the tax collector.

See also Ga. Code Ann. 92-7401, 92-7406, and 92-7501. Based on the above, it is my unofficial opinion that a Justice of
the Peace plays no part in the actual collection of back taxes either county or State.

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OPINION 69-264 (Unofficial)

To: State Highway Department

June 24, 1969

Re: Bond and proof of insurance protection required to be sent to State Highway Department.

This is in reply to your letter of June 18, 1969, requesting certain information regarding the form of indemnity bonds or proof of insurance protection provided for in Act No. 451 (H. B. 121) passed during the 1969 regular session of the General Assembly of Georgia. This Act was approved by the Governor on April 24, 1969, and pursuant to Georgia law (Ga. Laws 1968, p. 1364; Ga. Code Ann. 102-111), will become effective on July 1, 1969.
This Act amends the Act governing and regulating the use of the public roads and highways in this State, approved March 27, 1941 (Ga. Laws 1941, p. 449) so as to provide forannual permits on overheight vehicles. As a condition of the issuance of these overheight permits, the Act provides that they will be issued:

"... on condition of payment of an indemnity bond or proof of insurance protection for $300,000.00, said bond or insurance protection conditioned for payment to the Highway Department to be held in trust for the benefit of the owners of bridges and appurtenances thereto, traffic signals, signs or other highway structures damaged by a vehicle operating under authority of such overheight annual permit, the liability under the bond or insurance certificate shall be absolute and shall not depend on proof of negligence or fault on the part of the permitee, his agents, or operators."

Your letter states that you have been requested by a certain company to provide a form for indemnity bonds or proof of insurance protection provided by this act. This opinion will attempt to provide you with information sufficient to answer this request.
In order to fully protect the State Highway Department of Georgia, it is my unofficial opinion that the Department should require and receive a copy of the insurance policy or indemnity bond with a certification thereon that the policy or bond is in full force and effect, and that the proper premiums have been paid.

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This certification should be made by officials of the insurance or bonding company, whichever the case may be.
The policy or bond should provide for protection in the amount of $300,000.00 and should be payable to the State Highway Department of Georgia to be held in trust for the benefit of all owners of bridges, traffic signals, signs, or other highway structures damaged by vehicles operating under authority of these annual permits.
The bond or insurance policy sll.<mld further provide that the
liability shall be absolute and shall not depend on proof of negligence or fault on the part of the permitee, his agents, or operators. This language would necessarily mean that the insurance or bonding company must pay the Highway Department when a proof of loss is submitted by an owner of traffic signals, signs, etc., which have been damaged by the permitee, his agents, or operators. In effect, any insurance policy or indemnity bond must be drawn pursuant to the language used in the Act.
As a further precaution and in order to insure protection of all parties concerned, it is suggested that the policy or bond include a provision that the permitee may not cancel his insurance or bond coverage without the permission of the State Highway Department of Georgia or without relinquishing the annual permit on overheight vehicles provided for in this Act.

OPINION 69-265 (Unofficial)

To: Clerk of Superior Court, Wayne County

June 24, 1969

Re: Official who receives cash bond under Act No. 56 of 1969 General Assembly shall give a receipt record payment.

You have requested an unofficial opinion on the question of who has the duty to keep the records required by Act No. 56 (H. B. No. 46) of the 1969 General Assembly. Act No. 56 was approved on February 28, 1969, and provides that any person required or permitted to give or post bond (or bail) as surety or security for the happening of any event in a civil or criminal case may discharge this requirement by depositing cash in the amount of the bond required with the appropriate person, official or other depository. Section 2 of the Act provides in relevant part as follows:

"Any official or other person receiving any such bond shall

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give a receipt therefor and shall cause the fact to the receipt to be entered and recorded on the docket of the case in which it was given. If bond is given in a matter not appearing as a separate court case on a docket, a docket shall be prepared, maintained and kept of all such transactions...."

Act No. 56 applies to all civil or criminal cases and the appropriate person to handle the deposit of money and the necessary recordations would depend upon the applicable law in each type of case. So far as I can determine, Act No. S6 does not vary the previous law or procedure for recording bonds; it only provides that as an alternative to giving a bond, the person may satisfy the requirement by depositing cash.
It is therefore my unofficial opinion that the official who receives a cash bond under this Act is the proper person to give the receipt and cause the fact to be entered and recorded on the docket of the case in which it was given.

OPINION 69-266

To: Director, State Highway Department

June 24, 1969

Re: Procedure for lease and sale of properties acquired by the State Highway Department in advance of construction.

This is in reply to your request for my official opinion upon certain questions involving the interpretation of House Bill No. 118 which became Act No. 329 upon the approval of the Governor on April 18, 1969. Due to the numerous questions you have posed and for the sake of brevity, each of the ten questions which you have submitted will be treated separately and in the order in which they were presented. These questions are as follows:

1. "Can rents be contracted for and negotiated as a part consideration in the trade? "

The Supreme Court of Georgia 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, 866 (1943). The statute contemplates that the property involved must first be "acquired" by the State Highway Department. This is evident through the statute's use of such language as, "Upon acquisition of

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property acquired by it for highway purposes. . . ." (Emphasis added.) Because of this wording in the statute, the consideration for the acquisition of the property must have already passed before there can be any "negotiation" for a lease arrangement. Such language would also seem to prohibit the Department from entering into a contract to lease the property before it has been actually acquired by the Department.
The statute is also quite explicit in establishing the price at which the property may be leased back to the original owner. The lease must be "at a price determined by public bid." Such a statutory mandate would prevent any "negotiation" in advance of actual acquisition by the Department. Therefore, it is my official opinion that rents cannot be negotiated or contracted for as a part of the consideration in the trade.
2. "As used therein, please define 'successor in interest.' Can this be construed to mean tenant or person in possession? "
The term "successor in interest" has no peculiar meaning in the State of Georgia and, therefore, the accepted meaning of the term should be used. See Ga. Code Ann. 102-102 (1); Thompson v. Eastern Air Lines, Inc., 200 Ga. 216 (1946). "Successor" has been defined as "a person who succeeds to the rights of a former owner in a single item of property." Black's Law Dictionary, p. 1600 (4th ed. 1957).
With regard to whether the term "successor in interest" would encompass a tenant or person in possession, it is my official opinion that the term cannot be construed to mean tenant or person in possession. The term "tenant" has been defined by the Supreme Court of Georgia to mean "one who occupies the lands or premises of another in subordination to that other's title, and with his assent, express or implied." See Sharpe v. Mathews, 123 Ga. 794, 797 (1905). Furthermore, Ga. Code Ann. 61-101 provides:
"When the owner of real estate grants to another simply the right to possess and enjoy the use of such real estate, either for a fixed time or at the will of the grantor, and the tenant accepts the grant, the relation of landlord and tenant exists between them."
The rights which a tenant possesses are defined in Ga. Code Ann. 61-109 which provides, in pertinent part, "The tenant has no right beyond the use of the land and tenements rented to him

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and such privileges as are necessary to the enjoyment of this use." It is evident from the above definitions and Georgia Code
sections that a tenant is not one who would succeed to the rights of the owner in the property. Furthermore, a person in possession would have even less rights in the property than a tenant. It is therefore my opinion that the term "successor in interest" cannot be construed to mean tenant or person in possession.
3. "For how long and in what manner must such properties be advertised prior to receiving bids? "
Since the statute does not specify any method of advertising practice to be utilized by the State Highway Department, a reasonable method should be adopted. In determining what the Legislature considers to be a reasonable method for advertisement, the courts have looked to the existing law for guidance. Recent legislation when silent in respect to one or more details requisite to practical working will be construed as connecting itself with the Code which is in daily use. See Wynn, Sims & Co. v. Ficklen, 54 Ga. 529 (1875). All statutes are presumed to be enacted by the Legislature with full knowledge of the existing condition of the law and with reference to it and are, therefore, to be construed in connection and in harmony with the existing law and as a part of a general and uniform system of jurisprudence. See Botts v. Southeastern Pipe-Line Co., 190 Ga. 689 (1940).
The General Assembly has established a method by which other state properties, which are considered surplus, may be leased and the manner of advertising under this statute would seem to be an indication of what is considered reasonable by the Legislature.
Ga. Code Ann. 91-109a provides:
... the invitation for bids shall be advertised once a week for four consecutive weeks (i) in one or more newspapers of general circulation in the county or counties where the property to be bid upon is situated, and (ii) in one or more legal organs in Fulton County, Georgia.
These provisions would constitute an appropriate guide as to advertising practices under this act.
4. "If no bids or bids which are reasonably insufficient are received, may the Department negotiate the rental of such property to any interested party? "

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The statute, by expressing only one method of leasing, public bid, impliedly excludes other methods, including negotiation. Expressio unius est, exclusio alterius: the express mention of one thing implies the exclusion of another. See the application of this rule of construction in City of Macon v. Walker, 204 Ga. 81 0 (2) (1949). Thus, if there are no bids received, or the bids received are deemed insufficient, the Department's only alternative is to reject all bids and to readvertise the lease or abandon the attempt to lease.
The Department's authority to reject all bids and readvertise is implied in the statement that, "The Department may ... lease such property...." (Emphasis added.) The Legislature has defined the word "may" to denote "permission and not command." Ga. Code Ann. 102-103. Authority for this proposition, that your Department can reject all bids, can also be found in the case of DeKalb County v. Wilson, 217 Ga. 566 (1962), where the court held that county commissioners, as the trustees of public property, have a right to control and manage the sale of public property, including the right to reject all bids when they are deemed too low.
5. "When no bids are received, the owner having been given an opportunity to bid, has the Department complied with the 'first right to lease' provision? "
It is my official opinion that in such a situation, the "first right to lease" provision of the statute has not been complied with. The statute provides that the price at which the original owner may lease the property must be established by public bid. This price is a condition precedent; it must first be established and then the original owner must be offered the lease at that price. The original owner's failure to submit a bid does not work a forfeiture of the right given him by the statute.
6. "Must the Department receive bids through the State Supervisor of Purchases and will an Executive Order be required? "
It is my official opinion that the State Highway Department is not required to receive the bids in question through the State Supervisor of Purchases and an Executive Order authorizing the lease of said property in the manner contemplated is not required.
First of all, it is assumed that this question is posed primarily because the current practice of your Department is to sell surplus

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property (including remnants of real property) through the Supervisor of Purchases. See Rights-of-Way Forms and Exhibits (State Highway Department, September, 1967), pages 1 through 3. However, after careful review of the enumerated powers granted to the State Supervisor of Purchases under Ga. Code Ann. 40-1902, it is my opinion that the Supervisor of Purchases is without expressed or implied statutory authority to assume any duties with regard to the lease that is contemplated by this statute.
The lease that is contemplated by section 7 of this Act is not encompassed or controlled by the provisions concerning either the sale of "unserviceable property" as found in Ga. Code Ann. 91-804 or the provisions dealing with the leasing of "surplus property" by the Properties Control Commission under the provisions of Ga. Code Ann. 91-1 09a. The provisions of Ga. Code Ann. 91-804 provide that when public property becomes unserviceable, it may be "sold or otherwise be disposed of by order of the proper authority." However, the term "unserviceable property" has been defined as property which cannot be beneficially or advantageously used under all circumstances. See Dyer v. Martin, 132 Ga. 445 (2) (1909). Furthermore, the provisions of Ga. Code Ann. 91-1 09a control the methods by which the State Properties Control Commission leases surplus property. Although there has been no interpretation of the term "surplus property" in Georgia, a review of the persuasive authorities from other jurisdictions indicates that the word "surplus" means "that which remains of a fund appropriated for a particular purpose; the remainder of the thing; the overplus; the residue." See Black's Law Dictionary, p. 1600 (4th ed. 1957). See also Smith v. Catting, 231 Mass. 42, 120 N .E. 177, 181; People's F. Ins. Co. v. Parker, 35 N.J.L 577; Towery v. McGaw, 22 Ky. L Rptr. 155, 56 S.W. 727;Appeal of Coates, 2 Pa. 137,18 Ves. 466.
A careful reading of section 7 of this statute indicates that the Legislature did not consider this property to be either "unserviceable" or "surplus" property as the terms are used in the two above statutes. Section 7 expressly provides that this property which is to be leased is to be used for highway construction in the future and that the leasing of this property is only for such a period of time "until the same is needed for construction."
Therefore, although the two above Code sections dealing with unserviceable property and surplus property require an Executive Order, it is my opinion that since this authorized lease of property does not come within either provision, there is no authority or necessity for an Executive Order which would authorize the

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Highway Department to consummate this proposed lease. However, it is my opinion that in order to fully protect the
State Highway Department in any action contemplated under this lease provision, that for each proposed execution of a lease, there should be a resolution by the State Highway Board or by the Director acting for the Board which would constitute the basis for the initiation of the contemplated lease. This resolution should include the description of the property; a citation of this Act as the Highway Department's authority for such lease, provisions regarding the conditions for the lease to be determined by public bid under the requisites of section 7; and provisions for publication of notice. See the discussion, supra, concerning advertisement for bids under Question 3.
7. "Is the 'general property taxation' applicable only to personal property taxes, licenses, and fees which a tenant may be required to pay? "
It is my official opinion that the tenant is liable for the ad valorem taxes upon this property as is required by law.
The provisions of Ga. Code Ann. 92-1 04 require that the owner of any estate of land less than the fee must return it for taxes and must pay taxes on it as on other property. See also Henson v. Airways Service, Inc., 220 Ga. 44 (1964).
Pursuant to the above authority, it is concluded that the term "general property taxation," as it is used by the General Assembly in section 7 of the Act, is not restricted to only personal property taxes, licenses and fees, but includes those ad valorem taxes which by law a tenant is required to pay.
8. "Is a formal order from the Director of the Board required prior to disposition? "
Ga. Laws 1968, p. 1056 provides:
There is hereby created the office of Director of the State Highway Department, who shall be the chief administrative officer of the State Highway Department, and who shall possess and exercise all power and authority of the State Highway Board delegated to him by said Board when it is not in regular or called sessions, and shall have full authority to execute contracts and all other undertakings.

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First of all, it should be noted that it is clear from the above quotation that in order to bind the Department, the Director would be required to sign the contract for lease or sale and a deed of conveyance pursuant to a sale or exchange, assuming that the Board is not in session. It is my understanding that the Board has delegated such power to the Director. Furthermore, an interpretation of the plain meaning of the statute indicates that the Legislature contemplated a resolution on the part of the State Highway Board or the Director acting in behalf of the Board which would authorize this sale. Section 7 provides in part that:
. . . When in the opinion of the Department, changed conditions have made continued ownership by the Department of property acquired for highway rights-of-way or maintenance or construction of roads no longer necessary for such purposes, the Department may sell such land at public sale; .... (Emphasis added.)
It is my opinion that the phrase, "when in the opinion of the Department," contemplates a resolution to the effect that the Highway Department has concluded that this property can no longer be used for the purposes specified and thereby authorizes the sale of such property. This resolution would contain provisions similar to those contained in the resolution called for when the Department leases this property pursuant to the provisions of section 7. See the discussion contained in Question 6, supra, regarding the contents of a resolution to this effect.
9. "Can the Department negotiate the sale of such rights of way after having received unreasonable or no bids after reasonable period [of (sic)] advertisement? "
Section 7 of this statute provides that:
. . . the Department may sell such land at public sale; provided, that the original owner whose property had been so acquired by the exercise of eminent domain, or his successor in interest, shall have the first right to purchase such property at a price not in excess of that finally paid under the exercise of the power of eminent domain.... (Emphasis added.)
It is clear that the statute provides for negotiation only with the original owner or his successor in interest. Unless that person buys the property, it must be sold at public sale. Therefore, if the Department receives unreasonable or no bids, its only alternative is to readvertise or abandon the sale.

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10. "Is once a week for four (4) consecutive weeks considered a reasonable period of advertisement? Is there a shorter'acceptable period? "

Once a week for four consecutive weeks would be considered a reasonable period of advertisement. See the discussion in the answer to Question 3, supra. Since the statute does not establish any specific period for advertisement, the Department could elect to establish a shorter period of time, but it still must be considered "reasonable."

OPINION 69-267

To: Director, State Board of Corrections

June 25. 1969

Re: Board of Corrections may provide for college level educational opportunities for inmates.

This is in reply to your request for an opinion in which you ask whether the State Board of Corrections may enter into agreements with the Board of Regents of the University System of Georgia for the purpose of providing college level educational opportunities for Georgia prison inmates.
The State Board of Corrections is authorized to institute rehabilitation programs, including academic training. These programs may be instituted by the Board or they may be instituted in conjunction with the Board of Regents. Ga. Code Ann. 77-319(a)(b). The cost of instituting and maintaining such academic programs in conjunction with the Board of Regents would be a legal expenditure for the State Board of Corrections.

OPINION 69-268

To: Director, State Board of Corrections

June 25, 1969

Re: Wardens may hold an inmate throughout the twenty-four hour period constituting his release day in order to deliver him to pro'bation officials.
I
This .is in response to your request for an opinion in which you ask whether the State Board of Corrections may authorize or instruct a warden to hold an inmate on his date of discharge until the agents of a county probation department arrive to take custody of the inmate.

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As I explained in my opinion dated April 4, 1969 [Op. Atty. Gen. 69-151], an inmate must be released on the date of discharge as computed by applying relevant statutes and rules of the Board. A legal day begins and ends at midnight. Henderson v. Reynolds, 84 Ga. 159 (1889). It is my opinion that the Board of Corrections may instruct wardens to hold an inmate on his scheduled release date pending the arrival of agents of a county probation department. It is, of course, understood that an inmate shall not be held beyond midnight on the date of his release.
You have also asked whether requests for the detention of an inmate pending the arrival of a probation officer should be treated as detainers. This subject was explored in my official opinion dated December 16, 1968 [Op. Atty. Gen. 68-502] in which I concluded that notices or requests for the detention of an inmate filed by anyone other than the prosecuting officer of a court should not be treated as a detainer. That ruling is applicable to your question concerning notices sent to you by a county probation department. Officers and employees of county probation departments are not prosecuting officers of a court within the meaning of the Georgia Detainer Act, Ga. Laws 1968, p. 111 0; therefore, the requests of a county probation department for the detention of an inmate on his release date cannot be treated as detainers.

OPINION 69-269 (Unofficial)

To: Medical Advisory Committee Department of Education

Vocational Rehabilitation

June 26, 1969

Re: Rehabilitation service--Payment of physicians for unkept appointments depends on individual contract.

This responds to your request for an opinion as to whether or not the State Department of Education legally may pay physicians for appointments not kept by persons receiving rehabilitation services from the Division of Vocational Education. I shall assume payment would be authorized if appointments are kept.
Generally speaking, it may be stated that some physicians contract for the performance of medical services on a basis whereby the legal obligation to pay arises whether or not the patient keeps the appointment whereas other physicians charge only for appointments actually kept. Further, the vocational plan pursuant to which the Department enters into contracts with

378

physicians may not authorize payments for appointments not kept.
I therefore am of the opinion that the answer to your question will depend upon the physician's contract in question and the underlying authority pursuant to which it is made.

OPINION 69-270 (Unofficial)

To: Executive Secretary, Regents of the University

System of Georgia

June 26, 1969

Re: Board of Regents comes within purview of Claims Advisory Board Act of 1969.

This is responsive to your letter dated June 16, 1969, in which you requested an opinion as to whether the Claims Advisory Board Act of 1969 applies to the operations of the Board of Regents.
Section 2(A) of said Act provides that:

"It shall be the duty of each State department and agency to file with the Claims Advisory Board a notice of possibility of claim covering any occurrence which would be the subject of a notice of claim as provided in Section 2...."

It is my unofficial opinion that the Board of Regents of the University System of Georgia is a "State department" for the purpose of coming within the purview of the above-quoted section from the Claims Advisory Board Act of 1969.

OPINION 69-271 (Unofficial)

To: Assistant General Manager, Stone Mountain

Memorial Association

June 27, 1969

Re: Stone Mountain Land, Inc. may engage management services of another corporation in connection with the operation of the "country store" without violating the Plantation contract.

This is in reply to your letter of June 11, 1969, in which you ask whether the arrangement between Stone Mountain Land, Inc. and Berlo of Georgia, Inc. (under which the "country store" is to

379
be managed by Berlo) requires the approval of the Stone Mountain Memorial Association.
Upon review of all of the relevant contracts, my reply is in the negative for the reasons which follow:
As a starting point, it may be noted that the "Food and Novelty Concession Contract" of June 25, 1963, between Berlo and the Association contains no prohibition against Berlo's involvement in the sale of novelties at the country store. To the contrary, paragraph 1 of that agreement, after first exempting the Plantation Park and other specified locations from Berlo's exclusive food and novelty concession rights, provides:
"Second Party [Berlo j is not prohibited from contracting with the above enumerated tenants to provide these concessions at those locations if agreeable to other tenants and if not in violation of the leases of other tenants with party of the First Part [the Association] and the approval of First Party is not required with respect to such contracts between other tenants and the Second Party., (Emphasis added.)
From the italicized language, it becomes apparent that the requirements of the Plantation contract must next be examined. In this contract, dated August 29, 1961, the significant paragraphs are 7 and 18. The relevant portions of these paragraphs read as follows:
7.
"Party of the Second Part is hereby authorized to operate a mercantile business in the 'country store' and to sell groceries, tobacco products, soft drinks and other products generally sold in a country store .... The prices charged ... shall be similar to those charged in comparable establishments throughout the country. Party of the First Part [the Association] shall have the right to set the maximum price on any article to be charged by Party of the Second Part in the following manner. ..."
18. " ... It is further understood and agreed between the parties hereto that this contract shall not be transferred without the written consent of the Party of the First Part. , (Emphasis added.)

380

Our inquiry is consequently reduced to a question of whether or not the agreement between Stone Mountain Land, Inc. and Berlo could be said to amount to "a transfer" of the Plantation contract between the former and the Association. That the agreement of Stone Mountain Land, Inc. and Berlo of June 1, 1969 does not constitute such a transfer of contract would appear first from the fact that it deals with one building of the entire Plantation complex. An agreement dealing with but a part cannot ordinarily be said to involve a transfer of the whole. Moreover, the instrument of June 1, 1969, in providing that Land "hereby engages Berlo to operate and manage the mercantile business in the country store" would appear to use the word engages in the sense of employs. See Black's Law Dictionary, "Engage," p. 622 (4th Ed. 1951). Finally the June 1st instrument clearly provides in Paragraph 3:

"It is expressly understood and agreed that Land is, and shall remain, the Lessee of the Country Store and Plantation complex under the terms of Land's lease and franchise agreement with the Association and shall be responsible to the Association for all covenants and undertakings thereunder, including payment of rent, general maintenance and upkeep, and compliance with all proper regulations or directives of the Association. Berlo shall cooperate with Land and shall follow all directions of Land in the operation and management of the Country Store...."

I therefore conclude that Berlo has been retained by Land as the latter's employee or agent for the purposes of management and operation of the country store and is nowise the transferee of either Land's rights or duties under the Plantation contract.

OPINION 69-272 (Unofficial)

To: Assistant General Manager, Stone Mountain

Memorial Association

June 27, 1969

Re: Stone Mountain Memorial Association legally authorized to institute and expend monies for retirement or pension plan for employees.

This is in answer to your letter of June 24, 1969, in which you ask whether the Stone Mountain Memorial Association is legally authorized to institute and expend monies for a retirement or pension plan for its employees.

381

My answer in the affirmative is based upon Section 5 of the Stone Mountain Memorial Association Act, pertinent portions of which read as follows regarding the Association's powers:

"(d)... and to employ such experts, agents and employees as may be, in its judgment necessary to carry on properly the business of the association; to fix the compensation for such officers, experts, agents and employees and to promote and discharge same...."

"(e)... and to make all other contracts and agreements as may be necessary or convenient in the management of the affairs of the association...."

"(f) To exercise any power which may be granted or authorized to be granted to private corporations, not in conflict with the Constitution and laws of this State nor with the other provisions of this Act."

It would seem that the above provisions place the Association on a par with private corporations respecting employee compensation and pension plans.

OPINION 69-273 (Unofficial)

To: Associate Judge, Municipal Court of the City of Augusta

June 27, 1969

Re: Definition of theft.

This is in reply to your request for an opinion in which you ask whether the phrase "with the intent to appropriate such merchandise to his own use, to deprive the owner of possession thereof, or of the value thereof, in whole or part" is applicable to each of the four legislatively defined situations which constitute theft by taking as set out in Ga. Code Ann. 26-1802(b).
It is my opinion that a proper construction of Ga. Code Ann. 26-1802(b) requires that the phrase relating to the intention to deprive the owner of merchandise be applied to each of the four categories which constitute theft by taking. Traditionally, an intent to deprive the owner of his property has always been an element in crimes commonly referred to as thefts. Any other construction would seem to produce absurd results. You will observe that one of the methods of committing theft by taking is

382

when a person "removes any such merchandise from the immediate place of display." Ga. Code Ann. 26-1802(b)(l). If the element of intent were not applied to situations in which merchandise is removed from the immediate place of display, it appears to me that every shopper in a supermarket would be subject to prosecution as soon as he removed goods from the shelf, placed them in his shopping cart, and strolled into another department of the store. Legislative enactments should not be given absurd constructions. Therefore, it is my opinion that the intent element must be applied to each of the four categories.

OPINION 69-274 (Unofficial)

To: Glynn County Tax Appraiser

June 30, 1969

Re: Method of evaluating property for tax purposes must be fair and just.

This is in reply to your letter of June 13, 1969, requesting an opinion as to the proper method of determining property values under the arbitration provisions.
The general intent of the tax laws is to have property returned at its fair market value, and assessed at forty per cent. of that figure. Ga. Code Ann. 92-5702, 92-5703 (1968). The board of county tax assessors examines such returns and, if necessary, corrects them in order to fix the "just and fair valuation" to be placed on the property. Ga. Code Ann. 92-6911. There is no required method or system for making such determination; the only requirement is that the valuation be just and fair. Hutchins v. Williams, 212 Ga. 755, 95 S.E.2d 674 (1956).
Whenever the taxpayer is dissatisfied with the action of the county board of tax assessors, he may demand arbitration. Ga. Code Ann. 92-6912. Under the 1969 amendment, if the difference between the valuation set by the board of county tax assessors and that determined by arbitration exceeds $1 ,000.00, either the taxpayer or the board may appeal the decision of the arbitration. Such appeal will constitute a trial de novo. Ga. Laws 1969, p. 942.
The arbitrators are sworn to make a "true and just assessment" and to determine all matters "according to law and justice and the equity of the case." Ga. Code Ann. 92-6912. Thus, the arbitrators may not ignore "established custom and practice," which is generally applied in making a particular assessment.

383

Whitehead v. ~Henson, 223 Ga. 329, 155 S.E.2d 391 (1967). That is, the arbitrators must apply standards equally to all taxpayers in the same circumstances. Montgomery v. Suttles, 191 Ga. 781, 13 S.E.2d 781 (1941).
Therefore, it is my unofficial opinion that the arbitrators must make a determination of fair market value by any method or system which will produce a just and fair valuation, and fix the assessment at 40% of that figure, subject, however, to the requirement of equality required by the Whitehead case.

OPINION 69-275

To: Commissioner, Georgia State Department of Labor

June 30, 1969

Re: Sale of corporate stock so that corporation becomes a wholly owned subsidiary is a ~change in a corporation" requiring approval of Commissioner of Labor.

This will acknowledge a letter dated June 12, 1969, from Mr. Bernard Brown, Director, Private Employment Agencies, State Department of Labor, to this office whereby Mr. Brown set forth certain facts concerning a Georgia private employment agency and requested an opinion as to whether the owners of all of the stock in said agency could sell same and thus transfer the ownership of the corporation without first obtaining the approval of the Commission of Labor under Ga. Code Ann. 84-4102(q).
By letter dated June 24, 1969, your office furnished additional information to this office relative to this matter. By that letter, your office advised that all of the stock in a Georgia corporation by the name of Peachtree Personnel, Inc. (which was incorporated under the laws of Georgia on March 11, 1964) was acquired by Mr. Anthony Kane and Mr. George Ziegler on July 29, 1968. Also, said letter stated that an application for a license to operate a private employment agency was made by said Peachtree Personnel, Inc., on October 4, 1968, to do business as Anthony Kane Associates and was approved and a license was issued by the Commissioner of Labor on December 6, 1968. Furthermore, your office advised that, by a Corporate Amendment dated February 6, 1969, the name of Peachtree Personnel, Inc., was changed to Anthony Kane Associates, Inc.
Finally, your office stated by said letter dated June 24, 1969, that on May 9, 1969, Mr. A. Bernard Frechtman, the Attorney for Anthony Kane Associates, Inc., advised the Department of Labor

384
that all of the stock in Anthony Kane Associates, Inc., which was previously owned by Messrs. Kane and Ziegler, had been sold to Anthony Kane, Inc., a Delaware Corporation. In the original request letter, your office stated that Mr. Frechtman had advised the Department of Labor that the officers and directors of said Anthony Kane Associates, Inc., would remain the same even though the ownership of the stock for said corporation had been sold to Anthony Kane, Inc. Thus, it would appear that by this sale of all of the stock in said Anthony Kane Associates, Inc., said corporation became a wholly owned subsidiary of Anthony Kane, Inc., the Delaware Corporation.
Your attention is called to Ga. Code Ann. 844102(q). As will be noted from the above-cited statute, a license to operate a private employment agency is not transferable. In the situation which your office has outlined concerning Anthony Kane Associates, Inc., the Georgia corporation which applied for and was granted a license to operate a private employment agency, no actual transfer of a license occurred by the sale of all the stock in said corporation. However, the above-cited statute provides that ". . . 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...." Thus, the question arises as to whether the sale of all the stock of the corporation was such a "change in a corporation" as to require the approval of the Commissioner of Labor.
Distinguishing the events under consideration from a situation whereby only some stock in a corporation is sold, it would appear that certainly the process whereby a corporation becomes a wholly owned subsidiary of another corporation would be a "change in a corporation" within the meaning of the above-quoted statute. Therefore, it is my official opinion that the sale of all the stock of said Anthony Kane Associates, Inc., to Anthony Kane, Inc., whereby the former became a wholly owned subsidiary of the latter, is such a "change in a corporation" that approval of same is required of the Commissioner of Labor.
Concerning the approval of the Commissioner of Labor, the above-cited Ga. Code Ann. 8441 02(q) uses first the term "approval" and then the term "consent" in the first sentence of said section. Additionally, in the second sentence of said subsection the term "consent" is repeated whereby provision is made that:

385

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.

In Black's Law Dictionary. p. 132 (4th ed. 1951), "approval" is defined as follows:

APPROVAL. The act of confirming, ratifying, sanctioning, or consenting to some act or thing done by another. (Emphasis added.)

Therefore, it is my official opinion that in the use of the terms "consent" and "such consent," in Ga. Code Ann. 84-4102(q), the General Assembly of Georgia intended to require the same action on the part of the Commissioner of Labor as it required in the first part of said subsection (q) wherein the term "approval" was used.
Thus, it is my official opinion that the second sentence of said subsection (q) places a limitation on the Commissioner of Labor whereby his "approval" of "changes in a Corporation" may be withheld only for reasons for which an original application for a license could have been disapproved had the parent corporation (Anthony Kane, Inc.) been mentioned in the original application, not especially as an applicant for a license, but as information in the original application. Although subsection 84-4102(q) uses the term "person or persons,'' your attention is called to Ga. Code Ann. 102-103, wherein provision is made that ''person includes a corporation."

OPINION 69-276 (Unofficial)

To: Associate Professor, University of Georgia School of Pharmacy

June 30, 1969

Re: Narcotic drugs seized by law enforcement officers may not be used for research purposes.

This is in reply to your letter to the Attorney General dated June 21, 1969, in which you ask whether you may lawfully obtain marihuana which has been seized by law enforcement officers in the course of their discharge of their duties with respect to the enforcement of the criminal laws of this State. You state that you

386

are presently engaged in a series of research projects involving marihuana. Although your letter does not contain sufficient data to formulate an opinion, this opinion is written upon the assumption that the following facts exist: (1) that you are an employee of the University of Georgia, and (2) that your research projects are being conducted in laboratories located in the Pharmacy School at the University of Georgia.
The phrase "narcotic drugs" includes marihuana. Ga. Code Ann. 79A-802(14). Narcotic drugs which are not lawfully possessed or to which title cannot be ascertained and which have come into the custody of a peace officer must, with one exception, be disposed of in the following manner: the appropriate court or magistrate "shall order such narcotic drugs forfeited and destroyed." Ga. Code Ann. 79A-815(a). The sole exception to the destruction procedure is the distribution of forfeited narcotic drugs, except heroin, by the Georgia State Board of Pharmacy to "any hospital within this State, not operated for private gain. . . ." Ga. Code Ann. 79A-815(c).
A hospital "means an institution for the care and treatment of the sick and injured. . . ." Ga. Code Ann. 79A-802(8). Research laboratories maintained in the School of Pharmacy at the University of Georgia are not hospitals within the meaning of the Uniform Narcotic Drug Act. Ga. Code Ann., Ch. 79A-8.
It is my opinion that Georgia courts may dispose of seized narcotic drugs only by ordering the destruction of the same or by ordering such drugs, except heroin, to be delivered to the Georgia State Board of Pharmacy for ultimate ~distribution to a hospital. Therefore, it is my opinion that you may not lawfully obtain marihuana which has been seized by law enforcement officers for research projects which you are conducting in the laboratories of the Pharmacy School at the University of Georgia.

OPINION 69-277 (Unofficial)

To: Executive Director, Department of Industry

and Trade

June 30, 1969

Re: State Highway Department authorized to construct and maintain airports, and related matters.

In reference to your call of June 27, 1969, you requested an opinion whether or not the State Highway Department of Georgia is authorized to engage in the construction and maintenance of

387

airports on lands leased from the Federal Government, and to spend funds of the State of Georgia for such purposes.
Ga. Code Ann. 11-301 (Ga. Laws 1965, p. 449) provides that the State Highway Department is authorized to construct and maintain airports, landing fields, and air navigation facilities. See also Ga. Code Ann. 91-117 (Ga. Laws 1961, p. 47).
However, the funds of the State of Georgia made available to the Highway Department are those appropriated under Art. VII, Sec. IX, Par. IV, of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-6204) which provides, inter alia, as follows:

" ... An amount equal to all moneys received by the State Treasurer for each of the immediately preceding fiscal years . . . is hereby appropriated ... for all activities incident to providing and maintaining an adequate system of public roads and bridges in this state. as authorized by laws enacted by the General Assembly of Georgia ...." (Emphasis added.)

The effect of the above is that, while the State Highway Department is authorized to construct and maintain airports on lands leased from the Federal Government for periods longer than ten years in duration, it cannot do so with any funds derived from the State's motor fuel taxes. A special legislative appropriation or some other source of funds would have to be found for such expenditures.

OPINION 69-278 (Unofficial)

To: County Attorney, Wilkes County

July 1, 1969

Re: A justice of the peace may serve as judge of Small Claims Court.

This is in response to your request for an opinion as to whether a justice of the peace in Wilkes County can simultaneously serve as judge of the Small Claims Court of Wilkes County.
The Small Claims Court of Wilkes County was created by Senate Bill 267 at the 1969 session of the Georgia General Assembly. Said Act confers jurisdiction on said Court in civil cases ex contractu in which the demand or value of the property involved does not exceed $500.00, said jurisdiction to be concurrent with the jurisdiction of any other court or courts now

388
or hereafter established in said county. Said Act further provides that:
"Said jurisdiction shall include the power to issue writs of garnishment and attachment, and in addition to the powers herein specifically granted, all the powers granted to justices of the peace by the laws of the State of Georgia."
Section 2 of said Act sets forth the qualifications for judge of the Small Claims Court. It is provided therein that the judge must be a resident of Wilkes County, at least 22 years of age, and must be a person of outstanding character and integrity.
There are many constitutional and statutory provisions in Georgia which prohibit the holding of one public office simultaneously with another public office. As a general rule, it is unlawful for a person to hold more than one county office at one time, Ga. Code Ann. 89-103, and it is unlawful for judges of courts of record or their clerks to hold office or employment in the executive or legislative branches of State government. Georgia Constitution, Art. I, Sec. I, Par. XXIII (Ga. Code Ann. 2-123); Ga. Code Ann. 26-2309. In addition, Ga. Code Ann. 89-101 deals with ineligibility to hold civil office.
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, regardless of whether the office of Judge of the Small Claims Court would be classified by the courts as a State or a county office, the statutory proscription against the holding of two county offices (Ga. Code Ann. 89-103) would not be offended in this case. With reference to the separation of powers provision of the Constitution (Georgia Constitution, Art. I, Sec. I, Par. XXIII), and the statute designed to enforce said constitutional provision (Ga. Code Ann. 26-2309), these provisions would not be applicable in this case because the statute (Ga. Code Ann. 26-2309) makes it inconsistent only for judges of "courts of record" to hold office in the legislative or judicial branches of government. Neither a justice of the peace court nor the Small Claims Court of Wilkes County would be a court of record. DeKalb County v. Deason, 221 Ga.. 237 (1965). In addition, both of these offices would have to be classified as judicial offices, and more than one branch of State Government would not be involved.
In view of the foregoing, it is apparent that none of the constitutional or statutory provisions relative to the inconsistency of public offices expressly applies to the situation under

389

consideration. It is not necessary to speculate as to how a court would categorize the Small Claims Court of Wilkes County; i.e., whether the judge of said court is a county officer or a State officer. It could be that common law considerations, over and above any express statutory prohibition, would be considered in
deciding the question of whether a judge may preside in two courts of concurrent jurisdiction at the same time.
In the absence of any express constitutional or statutory provlSlon prohibiting the simultaneous holding of the two positions hereinabove discussed, it is my unofficial opinion that it is not unlawful for the person to hold the positions of Justice of the Peace and Judge of the Small Claims Court of Wilkes County simultaneously.

OPINION 69-279 (Unofficial)

To: Representative, District 8

July 1,1969

Re: State employee may serve on county board of education.

This is in response to your request for an opinion as to whether a person employed by the State of Georgia is eligible to serve as a member of a County Board of Education.
Generally, the courts have held that a member of a County Board of Education is a county officer. Stanford v. Lynch, 147 Ga. 518 (1918). I am not aware of any constitutional or statutory prohibition against an employee of the State of Georgia holding the county office.
Therefore, it is my unofficial opinion that it would not be unlawful for a person employed by the State to serve as a member of a County Board of Education. However, if the State employment were under the merit system, the rules and regulations of the Merit System Council could be relevant.

OPINION 69-280 (Unofficial)

To: Private Inquirer

July 2, 1969

Re: Failure to file application constitutes a waiver of tax exemption.

This is in reply to your letter of June 25, 1969, addressed to Mr. Walter McDonald. You stated that you had not made a timely

390

application for a homestead exemption and asked whether there were any exceptions to the filing date requirement or whether there could be a waiver when the taxpayer could not, because of blindness, read the notice with respect to such exemption.
We are in sympathy with your situation, but the law does not allow such exception or waiver, either by statute or judicial interpretation. Ga. Laws 1952, pp. 317, 318 (Ga. Code Ann. 92-220, as amended, Ga. Laws 1964, p. 767) provides:

"The person seeking s.aid exemption shall, on or before April 1 of the year in which exemption from taxation is sought, file a written application and schedule with the county tax receiver or tax commissioner charged with the duty of receiving returns of property for taxation. The failure to so file said application and schedule as provided herein shall constitute a waiver upon the part of such person failing to make said application for exemption for said year...."

Ga. Laws 1937-38, Ex. Sess., p. 145 (Ga. Code Ann. 92-221), provides:

p"Trohveidf~aihluerreeitno

so file said application shall constitute a waiver

and upon

schedule the part

as of

such person failing to make said application for exemption

for said year."

Therefore, you have, by law, waived the exemption for this year and must wait until next year to take advantage of this exemption.

OPINION 69-281 (Unofficial)

To: Justice of the Peace

July 3, 1969

Re: Federal Consumer Credit Protection Act supersedes State garnishment law.

You requested that you be advised as to whether State garnishment law had been superseded by a recently enacted Federal garnishment act, and if so, what portion of a debtor's salary would be subject to garnishment under the law.
Section 303 of Title III of the Consumer Protection Act (Pub. Law 90-321, 15 U.S.C.A. 1673) supersedes any State law which is violative of the provisions of that Title. State laws which impose

391

restrictions on garnishment of wages which exceed the restrictions imposed by the Federal act are unaffected since the purpose of the law is to establish uniform minimum standards (Section 307, Pub. Law 90-321, 15 U.S.C.A. 1677).
The maximum part of the aggregate disposable earnings of an individual for any work week which is subjected to garnishment may not exceed the lesser of:

(1) 25 per centum of his weekly take home pay, or (2) the amount by which his take home pay for that week exceeds thirty times the Federal minimum hourly wage. This wage rate varies depending on the job and I suggest you contact the local office of the Wage and Hour Division of the U. S. Department of Labor for further information on the rate.

However, the above restrictions do not apply in the case of a court order for support of any person, an order of the bankruptcy court under Chapter XIII of the Bankruptcy Act, or any debt due from any state or federal tax.
The effective date of Title III of the Consumer Credit Protection Act is July 1, 1970.
Thus, it is my unofficial opinion that state laws conflicting with the Federal act are superseded and that a nationwide maximum garnishment ceiling will be in effect after July 1, 1970.

OPINION 69-282 (Unofficial)

To: Constable, 1095th District

July 3, 1969

Re: The Act providing for appointment of constables does not vary the classification of a constable.

You have requested our unofficial opinion on whether the 1969 law providing for the appointment of constables (Ga. Laws 1969, p. 351) will have any effect on the classification of constables as State officers. Although there is no court decision on this point and my opinion would be subject to that qualification, I can find nothing in the 1969 law which would have the effect of varying the stated classification of constables.

392

OPINION 69-283 (Unofficial)

To: Senator, 14th District

July 7, 1969

Re: Farm products in the hands of warehousemen who are not producers are not exempt from property taxation.

This is in reply to your letter of June 27, 1969, concerning the taxation of raw peanuts held in storage by warehousemen who purchased from farmers with intent to dispose of the produce within twelve months.
The Constitution of the State of Georgia empowers the General Assembly to exempt certain property from taxation, specifically enumerating:

". . . farm products, including baled cotton grown in this State and remaining in the hands of the producer, but not longer than for the year next after their production;" Ga. Constitution, Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404).

Under the same provision, a greater exemption than therein allowed is void. The General Assembly has enacted an exemption for farm products in the language of the constitutional provision. Ga. Code Ann. 92-201, as amended.
The exemption granted is to farm products grown in this State and remaining in the hands of the producer. The question presented here, therefore, is whether the warehousemen referred to are within the meaning of the term "producers."
Webster's Third New International Dictionary defmes "producer" as !'.. one that grows agricultural products. . . ." That definition was approved in passing in an opinion of May 3, 1967" [Op. Atty. Gen. 67-159], to Mr. J. Robert House, Chairman, Hall County Board of Tax Assessors, a copy of which is enclosed. Applying this definition here, the warehouseman purchasing the peanuts from the farmer who grew them would not be a producer.
The warehousemen do not, therefore, qualify for the exemption and would appear to be subject to ad valorem taxation on the facts outlined above.

393

OPINION 69-284

To: Sales & Use Tax Unit

July 7, 1969

Re: The Soldiers' and Sailors' Civil Relief Act of 1940 does not prohibit a general sales and use tax charged against military personnel.

This is in reply to your letter of June 18, 1969, requesting an opinion concerning the effect of the recent United States Supreme Court case of Sullivan v. United States. U.S. 89 S.Ct. 1648, 23 L.Ed.2d 182 (1969), upon the Georgia sales and use tax. The case involved an action instituted by the United States against appropriate Connecticut officials on behalf of aggrieved servicemen who were stationed in the State and who were residents of other states.
The United States Supreme Court interpreted the legislative intention of Congress in enacting and amending the Soldiers' and Sailors' Civil Relief Act with respect to this question and held:

"Section 514 does not relieve servicemen stationed away from home from all taxes of the host state. It was enacted with the much narrower design 'to prevent multiple state taxation of the property.' And the substantial risk of double taxation under multi-state ad valorem property taxes does not exist with respect to sales and use taxes. Like Connecticut, nearly every State which levies such taxes provides a credit for sales or use taxes paid on the transaction to another State." Sullivan v. United States. U.S. 89 S.Ct. 1648, 1654,23 L.Ed.2d 182 (1969).

The Soldiers' and Sailors' Civil Relief Act does not exempt servicemen from a State's sales or use taxes. The Georgia Act contains no exemption for servicemen and it is, therefore, my opinion that sales made to servicemen in Georgia are taxable transactions.
Servicemen using tangible personal property in this State, purchased elsewhere, would, in my opinion, be subject to the State use tax with respect to such use without regard to their military connection. Georgia law does provide with respect to such use tax a credit for sales or use taxes paid on the transaction to another State. As a result the serviceman will usually pay no tax on his use of property in Georgia where he paid to another State a sales tax when he purchased such property.

394

OPINION 69-285 (Unofficial)

To: Tax Collector, Pike County

July7, 1969

Re: There is no law requiring advertisement for sale under a tax execution within two years of due date of the taxes.

This is in reply to your letter of June 16, 1969, to Mr. Tom Sangster, Director, Property Tax Division, which was referred to this department.
The authority and purposes for which county taxes may be collected are set out in Ga. Code Ann. 92-3701. Where a person refuses to pay his county taxes, the county government is given the same remedies in respect to the collection as is the State. Ga. Code Ann. 92-3807.
Where one refuses to pay taxes, tax executions may be issued against that person or his property for the amount due. Ga. Code Ann. 92-7301 and 92-7401. Where the execution is levied on real property its sale must be by the Sheriff and must conform to the rules governing judicial sales. Ga. Code Ann. 92-8101 and 92-8102.
The provisions governing judicial sales are set out in Part IV of Ga. Code Ann. Ch. 39 at Ga. Code Ann. 39-1101.
Those are the relevant statutory requirements. The only required time period is the four-week period during which time advertisement must be made prior to sale.

OPINION 69-286 (Unofficial)

To: Judge Emeritus

July 7, 1969

Re: A Judge Emeritus of the Superior Courts may receive additional compensation for each day of service.

You advise that you have been designated by a Judge of the Superior Court of an adjoining judicial circuit to preside over the Superior Courts of his judicial circuit and to serve for a specified period of time, from June 11, 1969, to July 25, 1969. You have requested our unofficial opinion on whether you are entitled to the additional compensation authorized by law for each day of the Superior Court Judge's absence or only for those days on which you actually preside over trials, hearings, etc.

395
The Act authorizing the additional compensation to which you refer provides:
" ...such judges [emeritus] shall be compensated, in addition to the salary provided for herein, in the amount of $10.00 per day for such services." Ga. Laws 1951, p. 493 (Ga. Code Ann. 24-2605a).
You have enclosed a certified copy of the Superior Court Judge's Order designating you as Presiding Judge of the named judicial circuit under the authority of Ga. Laws 1962, p. 547 (Ga. Code Ann. 24-262la to 24-2623a). The Order states that you are to serve as Presiding Judge during the entire period of time covering the Superior Court Judge's absence and you are authorized to hear and determine any and all matters which come before you during the stated period.
In view of the Superior Court Judge's expressed intent that you serve as Presiding Judge for each day during the entire period of his absence and the statute's authorization of $10.00 per day for each day of service, it is our unofficial opinion that you may receive the additional compensation for each day of the Superior Court Judge's absence.
It might be helpful to review the formal objections to the statute we have discussed so there will be no misunderstanding of our reasons for the unofficial opinion we have rendered to you.
At the outset, we must remember that every possible presumption will be made in favor of the constitutionality of an Act of the legislature. Culbreth v. Southwest Georgia Regional Housing Authority, 199 Ga. 183 (2) (1945). The particular apparent inconsistency with which we are most concerned is the problem created by the 1958 Act found in Ga. Laws 1958, p. 318. The 1958 Act amends the 1951 Act by adding certain language not here relevant and then providing that "when so amended the [relevant] section would read as follows." In setting out the section as amended, the 1958 Act omitted that part of the 1951 Act providing for $10.00 per day although the 1958 Act did not set out in the body of the Act that it intended to delete this provision authorizing the compensation. When an Act amends a statute by adding certain language and then sets out the amended statute as it will now read, but in fact the amended statute as recited in the Act makes additional changes or omissions which were not specified in the body of the Act, these changes, without a showing of clear intent, will not be presumed to be law. Horn v. The State, 114 Ga. 509 (1901); Abernathy v. Mitchell, 113 Ga.

396

127 (1901); Adams v. Ricks. 91 Ga. App. 494, 498 (1954). While I recognize that the caption of the 1958 Act may indicate the necessary intent, I am not in a position to say that the 1951 Act could be amended by an improbable reference contained in the 1958 Act's caption, especially since nowhere in the body of the 1958 Act is there an expressed intent to delete this language authorizing the compensation. It is quite possible the 1958 Bill, as originally introduced, intended to delete the compensation language, but during floor debate the Bill was amended as it now appears. This may explain why the noted language remains in the caption despite its absence from the body of the Act.
We recognize that this is a close question, but in view of the facts as set out above, we believe the better solution is to treat the omission as unintended and to continue to construe the statute as authorizing the $10.00 per diem compensation.

OPINION 69-287 (Unofficial)

To: Assistant State Highway Engineer

July 7, 1969

Re: Highway Department responsible when soil pit fails to provide quality and quantity of material called for.

This is in reply to your recent letter requesting an unofficial opinion concerning participation by the Bureau of Public Roads in payment of additional expenses incurred by a roadway contractor because of increased royalties for additional soil pits and rent on areas used for haul roads to get to the soil pits.
A review of the documents and correspondence attached with your letter reveals that the original pits shown on the construction plans were, at the time of bidding, believed to be adequate to furnish the quantity and quality of borrow material to complete the project. However, the pits failed to produce the required material and the contractor was forced to pay a higher royalty on the soil pits. The State Highway Department secured additional pits at a higher royalty rate. In addition, the landowner required the contractor to pay a rental or use charge for the additional land on which to construct roads to get to the new pits. Thus, under this factual situation, the Highway Department determined, pursuant to Article 4.03 of the 1966 Standard Specifications entitled "Changes in Plans or Character of Work," that the contractor was entitled to additional compensation.
The Bureau of Public Roads was requested to participate in this

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additional compensation, but refused to do so. The basis for refusal was a letter from an Assistant Attorney General to the Construction Engineer of the State Highway Department of Georgia, written in 1966. This letter concerned a different project and was primarily concerned with whether letters of intent received from a property owner were legal documents. The letter stated that the letters of intent were not enforceable. However, the last paragraph of the letter contained the following language:
"However, under the terms of the contract, the prime responsibility for securing these materials is upon the contractor. The contract makes it clear that we secure these options only as an accommodation to the contractors, and that, if, for any reason, the option fails, we have no further responsibility in the matter."
The Bureau of Public Roads used the quoted language to refuse the claim of the Highway Department for additional compensation in the case sub judice.
Your letter requests an unofficial opinion of the applicability of the quoted language to the question at hand. Also, you request an opinion on the effect of recent court decisions on the extent of responsibility of the Highway Department for the quantity and quality of material in soil pits which are designated on the plans as being available for the project.
In answer to your first question, it is our unofficial opinion that the quoted language in the letter of 1966 is not applicable to the particular situation outlined in your letter. This finding is based primarily upon the requirements placed on the Highway Department in the following provisions of the 1966 Standard Specifications: 6.01B, "State Optioned Material"; 6.01D, "Substitution of Sources"; and 6.01 F, "Pit Moves Due to Failure of Designated Source". These sections clearly point out that, under certain conditions, the State Highway Department does have responsibility when a soil pit fails. Also this finding is based on the Knox-Rivers case, infra, which was decided by the Court of Appeals in 1968, some two years after the letter hereinbefore mentioned.
As for recent court decisions in this area, the main case in point is State Highway Department v. Knox-Rivers Construction Co. 117 Ga. App. 453 (1968). In this case, Knox-Rivers Construction Company brought suit against the State Highway Department seeking damages for an alleged breach of certain provisions of the construction contract. The alleged breach was the failure of the

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Department, when the original soil pit shown on the plans became exhausted of material, to select an alternate soil pit and order its use by the contractor. The Highway Department contended that the contract (let under the 1956 Standard Specifications) did not require any affirmative action by the Department to locate a new source of soil when the original source failed, and that the contractor assumed this duty under the contract and had the responsibility of locating and furnishing acceptable material.
In support of this position, the Highway Department contended that certain words on the plans prevented the source from being considered a "designated source," that for such reason 6.01 (b) 5 of the Standard Specifications did not apply, and that no duties arose on its behalf by virtue thereof.
The Court of Appeals in making the ruling on the case, stated the following to wit:
"In construing contracts, the fundamental rule is to ascertain and give effect to the intention of the parties. Brooke v. Phillips Petroleum Co., 113 Ga. App. 742 (2) (149 SE2d 511); Code 20-702. It appears from the contract, by virtue of including therein 6.01 of the Standard Specifications and Sheet 30 of the plans, which the court has noted in Division 1 was prepared in complete conformity with 6.01, that the soil pit in question was definitely contemplated by the parties as a source of soil for the project. This, in the court's view, made the soil pit a 'designated source' within the meaning of 6.01 b 5 of the Specifications. This being so, it became the defendant's duty through its engineer to 'order in writing that the pit plants be moved to another source selected by the Engineer' if the soil pit was rejected as alleged in the petition."
Therefore, from what has been hereinbefore stated, the State Highway Department of Georgia does, under certain conditions, have responsibility when a soil pit, secured by the Department, fails to produce the quality or quantity of material as shown on the plans.

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To: Private Inquirer

OPINION 69- 288 (Unofficial)

July 7, 1969

Re: Corporate records must be kept for 3 years for sales tax purposes; no statutory period exists for income tax purposes.

There is no specific period of retention of corporate records for

income tax purpose. The law is general in providing for

examination of corporate records by the State Revenue

Commissioner for the purpose of ascertaining the correctness of

the returns. See Ga. Code Ann. 91-3213 (examination of

records of taxpayer), and 92-3214 (failure of taxpayer to furnish

information).



However, Georgia law requires a retention period of three (3)

years for certain records for sales tax purposes. This is required in

three areas; the duty of dealers to keep records of transactions, the

duty of dealers to keep records of tangible personal property kept

by him, and the duty of wholesalers to keep records of .

transactions of personal property. See Ga. Laws 1953, p. 200 (Ga.

Code Ann. 92-3428a); Ga. Laws 1951, pp. 360, 380 (Ga. Code

Ann. 92-3431a); Ga. Laws 1951, pp. 360,379 (Ga. Code Ann.

92-3429a).

It is my opinion that, while you may want to keep your records

for extended periods of time, Georgia law requires that you keep

such records for a period of three years only and that requirement

is with respect to sales tax information ,mly.

OPINION 69-289 (Unofficial)

To: Judge, Court of Ordinary

July 7, 1969

Re: Court of Ordinary has jurisdiction to try cases and impose sentence for driving under influence of intoxicating liquor or drugs, where there are no city or county courts and where defendant waives jury trial.
You requested our unofficial opinion on whether the Court of Ordinary has jurisdiction over an arrest made in a municipality on a warrant issued for driving under the influence where there is no city or other court to try cases under this charge.
Georgia law extends the jurisdiction of the Court of Ordinary to

400

the trial of cases and imposition of sentence in all misdemeanor cases arising under Ga. Code Ann. Chs. 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 a jury trial. Ga. Code Ann. 92A-502. By statute the offense of driving vehicles while under the influence of intoxicating liquor or drugs is a misdemeanor. Ga. Code Ann. 68-9927.
It is therefore my opinion that a Court of Ordinary has the jurisdiction to try cases and impose sentence for driving under the influence where there are no city or county courts and where the defendant waives a jury trial.

OPINION 69-290

To: Secretary of State

July 8, 1969

Re: Senate Bill 73, Act No. 436 (1969), is applicable to railroad companies incorporated under Ga. Code Ann. Ch. 94-10.

This will acknowledge your letter dated May 14, 1969, in which you requested an official opinion on the applicability of Senate Bill 73, Act No. 436 (1969), to Railroad Companies which were incorporated under Chapter 94-10 of the Georgia Code. According to your letter, the Georgia Power Company, which was incorporated under said Chapter 94-10, requested that you request an opinion on this matter.
Your attention is first called to Senate Bill 73, Act No. 436, Section 1, which states in part:

A II railroad corporations which may have heretofore been incorporated by the Secretary of State under the provisions of Title 94 of the Code of Georgia of 1933, relating to the incorporation of railroads ...." (Emphasis added.)

By Section 1 of said Senate Bill 73, it is explicitly stated that the provisions of said Bill are to apply to "all railroad corporations." Therefore, it is my official opinion that Section 1 of Senate Bill 73, Act No. 436 (1969), is clear and unambiguous on its face as to its application to "all railroad corporations." A law which is clear and unambiguous on its face, such as Senate Bill 73, permits no statutory construction. New Amsterdam v. McFarley. 191 Ga. 334, 337 (1940).

401

In support of the position that the term "all railroad corporations" includes street, suburban and interurban railroad companies which are incorporated under Chapter 94-10, your attention is called to the opinion of the Supreme Court of Georgia in Savannah. Thunderbolt and Isle of Hope Railway v. Williams. 117 Ga. 414, 418 (1903), whereby the Court held that in Georgia the "word 'railroad' includes street-railroad, unless the context shows that a particular kind of railroad was intended." Since the context of said Senate Bill 73 does not show that a particular kind of railroad corporation was intended to be affected by said Act, it is my official opinion that the term "all railroad corporations" includes the railroad companies incorporated under the Ga. Code Ann. Ch. 94-10.
Therefore, it is my official opinion that the provisions of Senate Bill 73, Act No. 436 (1969), apply to the railroad companies incorporated under Ga. Code Ann. Ch. 94-1 0.

OPINION 69-291

To: Surface Mined Land Use Board

July 8, 1969

Re: Lands used as a spoil area beyond an actual mining pit location are included in the definition of "Affected Land"; and other matters.

Please refer to your letter of May 19, 1969, wherein you request my official opinion regarding the following questions:

1. Whether lands used as a spoil area beyond an actual mining pit location are included in the definition of "Affected Land" as set out in the Surface Mining Act of 1968, Ga. Laws 1968,pp.9, 12?
2. Whether lands previously affected by surface mining operations and subjected to additional excavation of minerals or deposition of spoilage are within the purview of said Act?

My answer to each of the above questions is in the affirmative for the reasons hereinafter discussed and subject only to certain limitations.
The language of the Act is unambiguous in defining "affected land."

"(c) Affected Land means the area of land from which

402
overburden has been removed or upon which overburden has been deposited or both. Ga. Laws 1968, pp. 9, 12." (Emphasis added.)
Therefore it is clear that even lands mined prior to the effective date of the Act become "affected lands" within the above definition once overburden from a current surface mining operation is deposited thereon. The operator is not relieved of bonding requirements as to these lands even though the deposition of spoil and overburden on such previously mined areas may amount to partial reclamation and beautification.
Where a mineral deposit has been exposed by removal of overburden prior to January 1, 1969 (the effective date of the Georgia Surface Mining Act of 1968), and is subsequently mined, the operator is engaged in surface mining, which under the Act includes mining directly from deposits lying exposed in their natural state and is not limited to those deposits naturally exposed. See Ga. Laws 1968, pp. 9, 11. My opinion that such an operator is engaged in surface mining does not rest solely on the semantic distinction between "deposits lying exposed in their natural state" and "deposits lying naturally exposed." Since overburden removal constitutes surface mining and since "overburden" includes "all earth and other materials disturbed from their natural state in the process of surface mining," Ga. Laws 1968, pp. 9, 12, excavation of the ore itself may well amount to removal of overburden under the Act. Areas thus exposed and subsequently mined become "affected lands" subject to provisions of the Act regarding land use plans and bonding.
Please remember, however, that exploratory work, tunnels, shafts and dimension stone quarries shall not be considered to be surface mining. Ga. Laws 1968, pp. 9, 11. Another exception by implication would include the reworking of tailings or other deposits no longer remaining in their "natural state."
For the above and foregoing reasons, it is my official opinion that lands used as a spoil area beyond an actual mining pit location are included in the definition of "Affected Land" as set out in the Surface Mining Act of 1968, Ga. Laws 1968, pp. 9, 12; and, lands previously affected by surface mining operations and subjected to additional excavation of minerals or deposition of spoilage are within the purview of said Act.

403

OPINION 69- 292 (Unofficial)

To: Private Inquirer

July 8, 1969

Re: Real estate broker licensing.

This letter is in response to your July 1, 1969, letter to this office inquiring about Georgia laws which might have a bearing on the "Flying Scotsman Ltd." venture.
Georgia law does provide for the licensing of all persons acting as real estate brokers or salesmen in Georgia, as these terms are
defined in the enclosed Ga. Code Ann. 84-1402. As you can see, this licensing requirement applies to various brokering or selling activities occurring in this State, notwithstanding the size of the plot or location of the land involved. The latter part of this Code section, however, has been construed by the Georgia Supreme Court to exempt from licensing,

(1) "the sale or subdivision into lots by the bona fide fee simple holder of any tract or parcel of land; also,
(2) "any person, firm or corporation subdividing a tract of land into 20 or more lots, or offering for sale a tract of land already subdivided into 20 or more lots, where such person, firm or corporation sells or offers any of said lots for sale through salesmen, whether such salesmen be regularly or occasionally employed, and whether they be paid salaries or commissions."

See, Southern Cemetery Consultants, Inc. v. Peachtree Memorial Park, Inc., 218 Ga. 389, 392 (1962), overruling by implication opinions of the Attorney General to the contrary in Op. Atty. Gen. 1941-43, p. 165; 1945-47, p. 512; 1952-53, p. 409 (unofficial).
Therefore, if "Flying Scotsman Ltd." or their local agents are able to bring themselves within the above or one of the other exceptions listed in Ga. Code Ann. 84-1403, a State real estate broker's or salesman's license would not be necessary.
Although obviously not within the purview of this venture, Ga. Code Ann. 84-1422.1 may also be applicable since it is concerned with advertisement of out-of-State land.
A similar question involving the sale of Canada piecemeal came up recently with reference to possible Georgia Securities Act violations. I am enclosing a copy of our unofficial opinion for any

404

relevance it may have to your question (Op. Atty. Gen. 69-189]. Other than the above, I know of no other State laws which
might be applicable; you will, of course, want to check with the City of Atlanta for any relevant municipal ordinances.

OPINION 69- 293 (Unofficial)

To: Private Inquirer

July 9, 1969

Re: County boards of education have the power to sell schoolhouse property.

This is in response to your request for an opinion as to whether or not a county board of education is required to adopt a resolution in order to be entitled to sell any schoolhouse property pursuant to Ga. Code Ann. 32-909.
With respect to Ga. Code Ann. 32-909, the Supreme Court of Georgia has said:

"Consequently and pursuant to this, a county board of education has power to and may sell at private sale any schoolhouse property for which it has absolute title when the board finds and by resolution declares that the same is not necessary or convenient for school purposes." Duffee v. Jones, 208 Ga. 639, 644 (1952).

I am of the opinion that the board of education should adopt a resolution declaring the subject school property unnecessary and inconvenient for school purposes.

OPINION 69-294 (Unofficial)

To: Private Inquirer

July 9, 1969

Re: Riders and operators of motorcycles driven upon public highways and roads must wear approved safety helmets.

This will acknowledge receipt of and reply to your letter, received in this Department on July 7, 1969, in which you ask whether a person riding upon a motorbike is required to wear a safety helmet.
Ga. Code Ann. 68-1673 provides, in part, that: "No person

405

shall ride upon or operate a motorcycle on the highways or roads of this State without wearing upon his head a crash helmet of a
type designated by the Director of the Department of Public Safety of this State.~ A motorcycle is "every motor vehicle having a saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor." Ga. Code Ann. 58-1502(c). It is my opinion that the device you describe as a "motorbike" is a motorcycle within the meaning of Ga. Code Ann. 68-1673.
It is my opinion that both the rider and the operator of a motorbike must wear an approved crash helmet while the machine is being operated upon highways or roads in this State.
In response to your inquiry concerning applicable penalties, I wish to advise you that failure to comply with the requirements of Ga. Code Ann. 68-1673 is a misdemeanor offense. As there is no special penalty provided for the violation of Ga. Code Ann. 68-1673 within the meaning of exceptions created by Ga. Code Ann. 27-2506, the general penalty provisions of the latter section are applicable. The maximum general misdemeanor punishment imposab1e is confinement for a term of not more than twelve months or the imposition of a fine of not more than $1 ,000, or both.

OPINION 69-295 (Unofficial)

To: Superintendent of Banks

July 9, 1969

Re: Investments of credit union subject to rules of Superintendent.

You request my comments on the interpretation of Section 25-117, of the Georgia Credit Union Act (Ga. Code Ann. 25-117) as regards the following questions:

1. Could a credit union under Ga. Code Ann. 25-117, legally loan to its members all or part of the accumulation of the reserve fund as required to be maintained by this Section, or must the fund be held to meet contingencies? 2. Can this fund be invested under the provisions contained in Ga. Code Ann. 25-105(4)?
3. Does proposed Credit Union Regulation VI conflict with any of the provisions of Ga. Code Ann. 25-117 of the Georgia Credit Union Act, and is it within the authority of

406
the Superintendent of Banks to waive the proposed Regulation?
In response to your first and second questions, there is no doubt that Ga. Code Ann. 25-11 7 requires that the reserve fund be held to meet contingencies. The problem is to decide in what form the fund must be held to comply with the Code.
My research has not uncovered any Georgia case or statutory authority which would require that the reserve fund be held or invested in any particular mann~r. Further, I have examined the law of a great many other states, plus the Federal credit union law and, with the exception of Florida, I have found no statutory direction on how a similar credit union reserve fund must be held or invested. Compare F .S.A. 657.17 (Florida) with 12 U.S.C. 1762 (Federal Credit Unions), West's Fin. Ann. Code 15150 (California), Ohio Rev. Code Ann. 1733.13 (Ohio), N.J.S.A. 17:9A-48 (New Jersey) and Vernon's Ann. Civ. Stat. Art. 2481 (Texas) as representative statutes.
Since the legislature has clearly required some kind of reserve fund and yet it has not specified in what manner it must be held, I believe this would be a proper area for you to exercise your delegated authority to promulgate reasonable rules and regulations under the Credit Union Act. Ga. Code Ann. 25-123.1. I note that you have attached to your letter a proposed ruling which deals in part with this subject. Since it does not appear in your enclosures whether this ruling has been adopted pursuant to the procedure set out in the Georgia Administrative Procedure Act, Ga. Laws 1964, p. 338, as amended (Ga. Code Ann. Title 3A), I don't know if it is your .final determination in the matter. However, if you require any assistance in this matter, please let me know.
Hence, in response to your first two questions, I do not believe that the Credit Union Act by itself requires any specific manner in which the reserve fund must be held and unless and until a proper regulation is adopted by you, credit unions may use their discretion in holding the reserve fund in question.
Your third question concerns a proposed regulation which would require credit unions to establish a special reserve fund in certain instances. As I have pointed out above, the Superintendent of Banks is empowered by the Credit Union Act to adopt such rules and regulations as are necessary to carry out the provisions of the Credit Union Act. Ga. Code Ann. 25-123.1. Therefore, any regulation adopted by the Superintendent of Banks must have some basis in the statute and the regulation cannot engraft

407

additional qualifications or requirements onto the statute without specific authority in the statute itself. Board of Chiropractic Examiners v. Ball, 224 Ga. 85 (1968). Since the Credit Union Act makes no provision at present for a special reserve fund, I would hesitate to approve the proposed Regulation VI since it does not appear to be within the authority of the Superintendent of Banks.
OPINION 69-296 (Unofficial)

To: Superintendent of Banks

July 10, 1969

Re: Declarations of interest and dividends by credit unions; Relationship of Credit Union Regulations to the authority of Supt. of Banks.

You requested my comments on whether the language in Ga. Code Ann. 25-113(7) pertaining to the declaration of dividends by credit unions also pertains to declarations of interest by credit unions. You also requested my comments on whether proposed Credit Union Regulation V conflicts with any of the provisions of Section 25-113 of the Credit Union Act, and if not, whether it is within the authority of the Superintendent of Banks to issue said Regulation.
I do not believe that Ga. Code Ann. 25-113(7) pertains to interest paid by credit unions on savings accounts. It is directed solely to dividends paid by credit unions from net earnings on fully paid shares outstanding. While the legislature did not in the statute specifically define these two words, Ga. Code Ann. 102-1 02(1) requires that the ordinary signification be applied to all words, except words of art, or words connected with a particular trade or subject matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject matter. Ga. Code Ann. 25-113(7), in effect, describes dividends as payments made from net earnings on stock subscribed and paid for and representing a return on proprietary interest in a corporation [Ga. Power Co. v. Watts, 184 Ga. 135 (1937)], while interest connotes an amount of money one has agreed to pay for the use of money. Dept. ofRevenue v. King Brothers, 70 Ga. App. 741 (1944). Payment of interest is derived from a debtor-credit relationship instead of from a proprietary interest. Gormley v. Eison, 189 Ga. 259 (1939).
Therefore, it is my opinion that the legislature intended Ga. Code Ann. 25-113(7) to relate only to the declaration and

408

payment of dividends and not to the payment of interest by credit unions.
You further inquire whether proposed Credit Union Regulation V conflicts with any of the provisions of Ga. Code Ann. 25-113. Proposed Regulation V ties the payment of interest to a current year's net earnings in much the same manner that dividends are treated by Ga. Code Ann. 24-113(7). By so doing, the Regulation must be seen as imposing requirements additional to imposed by the legislature. Further, the proposed Regulation might be construed to prohibit the board of directors from declaring a specified rate of interest to be paid on savings deposits, a practice which is not prohibited by the Credit Union Act. Other banking institutions which solicit savings accounts declare interest rates in advance as a regular policy. The proposed Regulation would thus deny to credit unions a normal banking practice which the legislature has allowed them. Section 1 of the Georgia Administrative Procedure Act [Ga. Laws 1964, p. 338 (Ga. Code Ann. Title 3A)], provides that regulations prescribed by administrative agencies must implement or interpret the law to effectuate the purpose of the legislature. Further, the Credit Union Act itself only allows the Superintendent to issue reasonable regulations which carry out the provisions of the Act. Ga. Code Ann. 25-123.1.
Hence, it is my unofficial opinion that the proposed Regulation imposes requirements on the operation of credit unions in addition to those imposed by the legislature and is not within the authority of the Superintendent of Banks.
OPINION 69-297

To: Department of Labor

July 10, 1969

Re: Exceptions to procedure utilized in purchases over $1,000.00 comply with Georgia Law.

This will acknowledge receipt of your letter dated July 1, 1969, relative to the above-captioned matter.
In your letter, you stated that Federal Audit exceptions have been made in audits of the State Employment Security Agency for the combined Fiscal Years of 1965 and 1966, and for the Fiscal Year of 1967. Furthermore, you stated that said exceptions were made on the basis of the construction of Section 6 of the State Purchasing Act of 1939 (Ga. Code Ann. 40-1909) concerning the procedure used by the State Purchasing Department in

409
effectuating purchases which exceed $1 ,000.00. You also advised in your letter that representatives of the State
Employment Security Agency have met with fiscal personnel of the Manpower Administration, U. S. Department of Labor, and were advised that discussions cannot begin concerning any "negotiation of any settlement of these items" and that consideration cannot be given "to absolving the State of Georgia from reimbursement for the excepted items until and unless this matter is clarified by the Attorney General of Georgia."
In view of this advice from the U.S. Department of Labor, you have requested my views in this matter.
With your request letter, you enclosed a copy of a letter dated June 19, 1969, from yourself to the Honorable C. Clayton Turner, Supervisor of Purchases, Georgia State Purchasing Department, requesting information concerning the historical background of his Department relating to the purchase of supplies, materials and equipment costing in excess of $1 ,000.00. I note that by your letter you specifically requested information of Mr. Turner "regarding the solicitation of bids by advertisement, what methods have been used and the reasons for those methods being used rather than other procedures."
The specific provisions of Ga. Code Ann. 40-1909, to which you have made reference provides, as follows:
If the total requirement of any given commodity will involve an expenditure in excess of $1 ,000, sealed bids shall be solicited by advertisement in a newspaper of State-wide circulation at least once and at least 10 days prior to the date fixed for opening of the bids and awarding of the contract: Provided, other methods of advertisement may be adopted by the Supervisor of Purchases, when such other method is deemed more advantageous for the particular item to be purchased. Regardless of the amount of expenditure, it shall be the duty of the Supervisor of Purchases to solicit bids direct by mail from reputable owners of supplies.
In responding to your request for information, Mr. Turner stated in a letter to you dated June 24, 1969 (a copy of which you enclosed with your request letter) that:
The Supervisor of Purchases in 1937 and subsequent Supervisors of Purchases have construed the original Section 6 as passed in 1937 and amended in 1939 as authorizing the Supervisor of Purchases to use alternative methods of

410
advertising and purchasing administration. This was the clear intent of the General Assembly, and has been so followed since 1937. Had the General Assembly intended for all such purchases exceeding $1,000.00 to be advertised in a newspaper of state-wide circulation, it would have provided the substantially increased advertising cost and additional personnel to pursue this method exclusively, and would not have provided alternate methods of bid solicitation. The State Purchasing Department now processes approximately 88,000 purchase orders per year under $1 ,000.00, and approximately 12,000 purchase orders per year over $1 ,000.00. The average cost of advertising with a minimum number of words is $12.00, making a tota! cost of approximately $144,000.00 per year for advertising alone. Not taking into consideration the additional personnel that would be required to administer the processing of these ads.
In explaining the present procedure used for purchases over $1,000.00, Mr. Turner also stated in said letter that:
All purchases of over $1,000.00 are now processed by selecting vendors names from an established qualified vendor's list. Invitations to bid are sent to these vendors allowing 12 working days for the bids to be returned at a specified time on a specified date. The bids are time-stamped . in, unopened and kept under security until the time and date of opening, at which time, they are opened and time-stamped and read in public at the office of the Supervisor of Purchases in the presence of the vendors and any interested parties present. Late bids or bids that do not meet the requirements of the bidding process are not accepted. This method has been followed since the department was first organized.
Furthermore, in explaining the reasons for the present procedure used by the State Purchasing Department, Mr. Turner also stated that:
Even as late as the last regular session of the General Assembly, additional funds were requested to more efficiently process orders under existing procedures, such funds were recommended by the Budget Bureau, and was in the Governor's budget request. These funds failed to be approved. In 1940, this department had 48 employees, and wrote approximately 36,000 purchase orders. In 1968, this

411
department had 35 employees and processed and recorded over 193,000 purchase transactions. To pursue the exclusive method of newspaper advertising would paralyze the purchasing administration which is now 3 to 4 weeks behind in processing orders.
In stating that he thought that the procedure followed by the State Purchasing Department complied with the intent of the General Assembly of Georgia, Mr. Turner stated:
The General Assembly desired to give the Supervisor of Purchases the discretion of determining the method considered, in his opinion, to be the most advantageous for the particular items to be purchased. This has been viewed in its ordinary sense and has been applied in connection with purchases made for the Employment Security Agency and all other departments of State Government. All of the purchases were made in accordance with State law and the intent of the General Assembly in writing this section.
In conclusion, Mr. Turner stated that:
. . . eleven ( 11) different Supervisors of Purchases have construed Section 6 identically in giving them the discretion of determining which method is in the public interest and none of the Supervisors have ever been challenged.
From a historical view of the hereinabove-cited Ga. Code Ann. 40-1909, it would appear that over a period of some thirty (30) years various General Assemblies of Georgia, especially in the enactment of appropriations legislation, have viewed the statute as not requiring State-wide newspaper advertisements for all purchases exceeding $1 ,000.00.
In Patten v. Miller, 190 Ga. 152, 156 (1940), the Georgia Supreme Court quoted, with approval, from 59 CJ. 1033, 1034, the following:
A construction of a statute by the legislature, as indicated by the language of other or subsequent enactments, is entitled to consideration as an aid in interpreting the statute, and is sometimes of great weight or highly persuasive, especially when such construction has long been continued.

412

Also, in Thompson v. Eastern Air Lines. Inc. 200 Ga. 216, 224 (1946), the Georgia Supreme Court held that in the interpretation of doubtful statutes, much weight will be given to administrative and legislative interpretations.
Therefore, it is my official opinion, considering the procedure utilized over the years by the State Purchasing Department for purchases in excess of $1 ,000.00 and the continued approval thereof by the General Assembly, that said procedure substantially complied with the requirements of said Ga. Code Ann. 40-1909.

OPINION 69-298 (Unofficial)

To: State Highway Department

July 11, 1969

Re: Individuals occupying properties acquired by State Highway Department prior to June 30, 1969, to be relocated subsequent to July 1, 1969, and are eligible for Relocation Assistance.

This is in reply to your letter of July 2, 1969, in which you requested my unofficial opinion as to the eligibility for Relocation Assistance payments as provided by the Highway Relocation Assistance Act, Ga. Laws 1969, p. 495, for those individuals occupying properties acquired by the State Highway Department prior to June 30, 1969, and who will be relocated subsequent to July 1, 1969.
It is my unofficial opinion that under the provisions of the Highway Relocation Assistance Act, these persons are eligible for the Relocation Assistance payments provided by this Act.
In order to understand fully the operation and effect of the Highway Relocation Assistance Act, we must first look to the purpose of this Act. The General Assembly, in enacting this legislation, intended, among other things, "To authorize financial and advisory assistance to aid the prompt and equitable relocation and re-establishment of persons, businesses, farmers, and nonprofit organizations displaced as a result of roads, streets and highways constructed in Georgia with any federal-aid funds made available under Sections 106 or 117, Title 23, United States Code...." Further evidence of the legislative intent is found in Section 2 of this Act.
The Act then goes on in Section 3 to provide the authority for the State Highway Department "to make or approve the payments required by Chapter 5, Title 23, United States Code for the relocation expenses, replacement housing expenses, and expenses

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incident to legal transfer of real property acquired from any person, family, business, farm operation, or nonprofit organization displaced by federal-aid highway projects in the State, the costs of which are now or hereafter financed in whole or in part from federal funds allocated to the State Highway Department of Georgia."
The Federal-Aid Highway Act of 1968 (Chapter 5, Title 23, United States Code) establishes certain requirements that each State must meet in regard to Relocation Assistance payments in order to gain approval of any project under Section 106 or Section 117 of Title 23, United States Code. See Section 502 of Title 23, United States Code, and Section 37 of Public Law 90-495.
It appears that with the enactment of the Highway Relocation Assistance Act, that Georgia can now comply with the provisions of Chapter 5, Title 23, United States Code. Therefore, no project agreement executed after the effective date of the Highway Relocation Assistance Act, July 1, 1969, could gain the approval of the Secretary unless the assurances of Section 502 of Title 23, United States Code, are provided.
The question that you have posed deals w:ith the situation where the State Highway Department has already acquired the property prior to June 30, 1969, and the individuals are to be relocated subsequent to July 1, 1969. It is assumed that this acquisition was pursuant to a Federal-aid highway project or a project upon which the State intends to construct a Federal-aid project.
As noted earlier, the State Highway Department is given the authority in Section 3 of the Highway Relocation Assistance Act "to make or approve the payments required by Chapter 5, Title 23, United States Code ...." We must now look to this federal law to determine what payments are required and which persons are eligible for these payments.
Title 23, Section 501, United States Code, is the basic declaration of policy to be carried out by the Highway Relocation Assistance program. The use of the phrase "all persons so displaced" indicates that Congress intended for all individuals displaced as a result of the construction of Federal-aid highways to receive these payments. Furthermore, all of the payments established by Chapter 5 of this title are based on "displaced persons" and this term is then defined in Section 511. Further evidence of this Congressional intent to encompass all displaced persons within the provisions of Chapter 5 can be found in Section 504.
Further authority for this proposition can be found in Section

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510 which provides that "The Secretary may make such other rules and regulations consistent with the provisions of this chapter as he deems necessary or appropriate to carry out this chapter." Pursuant to this authority certain Interim Operating Procedures designated as Instructional Memorandum 80-1-68 have been promulgated by the United States Department of Transportation. Section 2(b) of this Instructional Memorandum provides:
"The provisions of this memorandum are applicable to the following: "(1) All Federal-aid highway projects authorized after August 23, 1968, involving rights-of-way which are occupied by an individual, family, business, farm operator, or nonprofit organization. "(2) All Federal-aid highway projects authorized on or before August 23, 1968, on which individuals, families, businesses, farm operations, and nonprofit organizations have not been displaced. "(3) Rights-of-way acquired without Federal participation upon which the State intends to construct a Federal-aid project from which as of August 23, 1968, individuals, families, business, farm operations, and nonprofit organizations have not been displaced."
Section 8 of this same memorandum provides, among other things, that "Any individual, family, business, or farm operator displaced by a Federal-aid highway project is entitled to receive a payment for reasonable moving expenses." Section 9(a) provides, among other things, "In addition to other payments authorized by this memorandum, individuals and families displaced from dwellings on real property acquired for a Federal-aid project are entitled to supplementary payments in accordance with this paragraph." Section 10 also provides, in pertinent part, "In addition to any other amounts authorized under this memorandum, owners of real property acquired for a Federal-aid highway project are entitled to receive payments for the reasonable and necessary expenses incurred in transferring such property to the State."
It is my conclusion from a study of these statutes that Congress, in establishing this program of Highway Relocation Assistance, intended for all persons displaced after August 23, 1968, as a result of the construction of Federal-aid highways to receive the benefits of Chapter 5, Title 23, United States Code. It is also evident from a study of the Highway Relocation Assistance Act

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that the Georgia Legislature intended to comply with the requirements of Chapter 5, Title 23, United States Code. It is therefore my unofficial opinion that those individuals occupying properties acquired by the State Highway Department prior to June 30, 1969, and who will be relocated subsequent to July 1, 1969, are eligible for the Relocation Assistance payments as provided by the Highway Relocation Assistance Act, assuming that the property was acquired pursuant to a Federal-aid highway project or a project upon which the State intends to construct a Federal-aid project.

OPINION 69-299

To: State Board of Corrections

July 14, 1969

Re: A prisoner's paid interview during which information is provided for publication is an illegal transaction unless approved by appropriate prison officials.

This will acknowledge receipt of and reply to your letter dated June 27, 1969, in which you ask whether the State Board of Corrections may permit an inmate to be interviewed by a representative of a publishing house. It is contemplated that the interview will lead to the publication of an article about the prisoner and that the prisoner will be paid for the interview.
It is unlawful "for any person to trade or traffic with ... a convict ... without the knowledge and consent of the warden or his deputy warden in charge." Ga. Code Ann. 77-327. An interview with an inmate, for which the inmate is paid, is an illegal transaction unless consummated with the knowledge and approval of the warden or deputy warden in charge of the prisoner.

OPINION 69-300 (Unofficial)

To: Private Inquirer

July 16, 1969

Re: A person otherwise eligible to vote may vote in school bond elections in Georgia.

You have requested information on the qualifications necessary to vote in a school bond election in Georgia. Absent some specific provision in a particular referendum, it is the general law that a person may vote in any primary or election held in Georgia if he is

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(I) registered as an elector in the manner prescribed by law; and (2) a citizen of Georgia and of the United States; and (3) at least 18 years of age; and (4) a resident of Georgia at least one year next preceding the date of the primary or election and of the county in which he seeks to vote at least six months next preceding the date of the primary or election and of the municipality in which he seeks to vote at least ninety days next preceding the date of the primary or election; and
(5) possessed of all of the qualifications prescribed by law. Ga. Code Ann. 34-602 and 34A-50l(a).

As a matter of general information, I am not aware of any Georgia law which requires a person to be a property, real estate or ad valorem taxpayer before he is eligible to vote in a school bond election in Georgia.

OPINION 69-301 (Unofficial)

To: Private Inquirer

July 16, 1969

Re: Referendum required by special Act must be called and held at the time set out in the Act.

You advise us that a special Act pertaining to your county was approved by the Governor on April 25, 1969. The Act provided that no sooner than thirty days nor later than forty-five days after the Act was approved, the Ordinary of your county was required to call a referendum to be held no sooner than sixty nor more than ninety days after the call. Through some inadvertence, the Ordinary failed to receive official notification of the Act until just a few days ago and, in the meantime, the time for calling and holding the election has expired. You request our unofficial opinion as to whether or not the Ordinary may yet call and hold the election and otherwise abide by the law with the exception that the election will be called and held subsequent to the deadline provided in the special Act.
Georgia courts have traditionally required elections and referenda to be called and held on the date specified by law. As the Supreme Court of Georgia has stated:

"It is settled in this State and in many other jurisdictions of

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this country that an election is absolutely void when not held at the proper time and place by persons qualified to hold it." Davis v. Page. 217 Ga. 751,752, 125 S.E.2d 60 (1962).

Although the Davis case was decided prior to adoption of the 1964 Georgia Election Code, I am not aware of any provision in the Georgia Election Code which would require a different result.
Therefore, it is my unofficial opinion that a referendum required by a special Act must be called and held at the time set out in the special Act.

OPINION 69-302 (Unofficial)

To: State Highway Department

July 16, 1969

Re: Condemnation judgment which provides for an easement in fee simple grants only an easement to the condemning authority.

This is in reply to your request for my unofficial opinion on the rights of a county as a condemning authority to certain land which has been obtained by condemnation in which the judgment of the court provided that the described land was condemned as an easement in fee simple and that the county would be vested with "full, complete and unencumbered fee simple title to [the] aforesaid easement."
It is my unofficial opinion that pursuant to this condemnation judgment, the condemning authority, in this case the county, has
been granted an easement or the right to use a strip of land described in the judgment for the purposes stated, but this judgment does not act as a conveyance of fee simple title to the land described therein.
In order to fully understand the legal questions involved, it is necessary to present a short summary of the factual situation out of which this question arose: A certain county in this State filed condemnation proceedin,gs against two landowners in the form of condemnation complaints which contained the following pertinent language:

"This petition in rem is brought by [name of county omitted] to acquire, by condemnation, the fee simple title for use as part of said Road the following described easement: "Easement for the purpose of finishing and maintaining

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slopes and banks and for drive-way construction in and across [specific description of the land omitted]."
The legal right sought to be obtained by each condemnation complaint is referred to throughout as an easement. Furthermore, each complaint in its prayer prays that absolute title to the easement be decreed and vested in the plaintiff. Pursuant to this complaint, a condemnation proceeding was completed and in each case, the judgment of the court was entered. Both judgments of the court provided, in part:
"It is decreed, ordered and adjudged that the easement described in the complaint, to-wit: "Easement for the purpose of finishing and maintaining slopes and banks and for drive-way construction in and across [specific description of land omitted] be, and the same is hereby condemned in fee simple; and upon the payment of the sum of [specific amount of money omitted], the plaintiff [name of county omitted] is hereby vested with full, complete, and unencumbered fee simple title to aforesaid easement."
It can readily be seen by a review of the above inconsistent clauses that there is a question as to whether or not the county possesses an easement or whether the county has been conveyed title to this property in fee simple. "In determining whether an instrument grants an easement in or conveys title to the land embraced therein, the crucial test is the intention of the parties, and the whole instrument must be looked to, and recitals irt the instrument, subject matter, object, purpose, and nature of restrictions or limitations, if any, or the absence of such, and attendant facts and circumstances of the parties at the time of makirtg the instrument are all to be considered." See Danielsville & Comer Telephone Co. v. Sanders. 209 Ga. 144, 145 (2) (1952). See also Ga. Code Ann. 29-l09;Jackson v. Rogers. 205 Ga. 581 (1949).
As it has been previously pointed out, a careful review of both condemnation complaints and both judgments entered by the court indicates that in each of these documents, the condemning authority has prayed for an easement and refers to this action as a condemnation of an easement. Furthermore, it should be noted that in each judgment (the pertinent language which has been quoted above), the court has referred to the interest condemned as an easement. Furthermore, it should be noted that in the portion of the judgment quoted hereinabove, the purpose for which this

419
easement will be used is that of finishing and maintaining slopes and banks and for driveway construction in the area described. A review of the cases considering this issue indicates that when the deed or instrument in question specifically limits the use of the land to a specific purpose, then this further substantiates and supports the conclusion that the interest conveyed and granted is only an easement rather than a conveyance of fee simple title. See the cases of Louisville & Nashville R.R. Co. v. Maxey, 139 Ga. 541 (1913), and Gaston v. Gainesville & Dahlonega Elec. R.R. Co., 120 Ga. 516 (1904).
The conclusion that this judgment grants only an easement to the condemning authority, thereby allowing the fee to remain in the condemnee, is neither inconsistent with the law, nor is it without supporting authority. Southern Railway Co. v. Wages, 203 Ga. 502 (1) (1948), Donalson v. Georgia Power & Light Co., 175 Ga. 462 (1) (1932).
Furthermore, the use of the words "in fee simple" does not demand the construction that this instrument conveys to the condemning authority title to this land and not a mere easement. See Bale v. Todd, 123 Ga. 99 (2) (1905); Atlanta, Birmingham & Atlantic Railway Co. v. Coffee County, 152 Ga. 432 (1921). However, other cases have held that these words are "potent" when considered in connection with other terms of the instrument and thus, those words have swayed some courts to hold that the instrument conveyed title to the land in question rather than a mere easement. See Jackson v. Rogers, supra; Johnson v. Valdosta, Moultrie & Western R.R. Co., 169 Ga. 559 (1929).
With reference to the trial court's use of the words "in fee simple," it is concluded that the term, as it is used in these two judgments, is descriptive of the extent of the duration of the enjoyment of the easement rather than a description of the interest conveyed. In reaching this conclusion, the case of Georgia & Florida Ry. Co. v. Swain, 145 Ga. 817 (1916), lends weight to this decision. In that case, the railroad, as grantor, had reserved to itself " ... 'in fee simple, a right of way . . . for tramroad and railroad purposes...." The court held in this case that: "Giving effect to the intention of the parties as shown from the instrument as a whole, properly construed, this clause reserves in the grantor merely an easement, and does not constitute an exception from the operation of the conveyance a described parcel of land owned by the grantor. The words 'fee simple' are descriptive of the extent of duration of the enjoyment of such easement."
Therefore, in conclusion and reiteration, it is my unofficial opinion that from a consideration of the condemnation complaint,

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it was the intention of the county, as the condemning authority, to condemn only an easement; and furthermore, the use of the words "in fee simple'' in the court's judgment merely establishes the duration of the interest granted rather than creating an interest in the fee.

OPINION 69-303 (Unofficial)

To: State Senator

July 17, 1969

Re: A Merit System employee of the working test status is eligible for military leave pay benefits.

This is in reply to your letter of July 5, 1969, requesting an unofficial opinion with respect to eligibility for military leave benefits.
Ga. Code Ann. 86-1109 provides that Merit System employees are entitled to military leave pay benefits under certain circumstances; however, these benefits are not extended to those employed on a temporary basis. Ga. Laws 1955, pp. 10, 106; 1959, pp. 114, 118.
The rules and regulations of the State Personnel Board establish, as an essential part of the examination process, a working test period, during which time the proper supervisor determines whether or not the services performed by that employee are satisfactory. This period generally includes "the first six months of service in a position to which an employee has been appointed or promoted." State Personnel Board Rules and Regulations, Rule 11, 11.100.
Regulation B provides as follows:

"A permanent, working test, or provisional employee who is a member of the military or naval forces of the State or of the Nation shall be entitled to leave of absence from his duties, without loss of pay or time and without effect on his service rating, on all days during which he shall be ordered to duty with troops or at field exercises or for instruction, for periods not to exceed thirty working days in any one calendar year." State Personnel Board Rules and Regulations, Reg. B, Sec. 5, Par. 2.

Thus, those classified as working test employees are, in accordance with the rules and regulations, entitled to military leave pay benefits.
I am informed that it has been the general practice of the Board

421

to include working test employees in that class to which these

benefits are extended.

"

Therefore, it is my unofficial opinion that a working test

employee is eligible for the benefits as provided by law.

OPINION 69-304 (Unofficial)

To: Ordinary, Quitman County

July 18, 1969

Re: In absence of a county attorney and city court solicitor, District Attorney is qualified to serve on the Commission for the Hospitalization of the Mentally Ill.

This is in reply to your letter of June 26, 1969, requesting an unofficial opinion concerning the capacity of the District Attorney to serve on the Commission for the Hospitalization of the Mentally Ill.
Upon petition for the involuntary hospitalization of a mentally ill person, a commission is assembled by the ordinary to examine the allegedly mentally ill person and his record and report its findings to the court. This commission should consist of two physicians and either the county attorney or the city court solicitor. If there is no county attorney or city court solicitor, "the solicitor general of the circujt or some attorney of the county appointed by him" serves in that position. Ga. Laws 1964, pp. 499, 534; 1968, pp. 333, 334; Ga. Code Ann. 88-506.
In 1968, the General Assembly proposed to amend the Constitution of the State of Georgia to change the name and designation of the office of solicitor general to district attorney. See Ga. Laws 1968, p. 1567. I have been informed by the Secretary of State's office that a voter referendum was held, and the proposal was passed. The Amendment has been proclaimed by the Governor and is now in force.
Thus, it appears that the words "district attorney" should be substituted for the words "solicitor general" in the statute in question.
It is therefore my opinion that the district attorney, in the absence of both county attorney and city court solicitor, is qualified to serve on the Commission for the Hospitalization of the Mentally Ill.

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OPINION 69-305 To: State Game and Fish Commission

-July 18, 1969

Re: State Game and Fish Commission can prohibit fishing from bridges if the regulation tends to conserve fish or provide sport for a greater number of persons.

This is in response to your request for an opinion as to the authority of the State Game and Fish Commission to prohibit fishing from certain bridges in the State.
Your letter fails to state the purpose sought to be achieved by the proposed regulation. It should be noted that the real purpose of a fishing regulation must appertain to the protection of fish; for an agency cannot, under the guise of conservation of fish, work out ulterior designs. Foster Packing Company v. Haydel, 278 U.S. 1 (1928). This primary restriction means that the Commission could not prohibit fishing from bridges as a method of promoting safety of the fishermen or removing impediments from the flow of vehicular traffic. Nor could the Commission prohibit fishing from bridges as a means of promoting safety in boating; for under the "Georgia Motorboat Numbering Act," it is authorized to promulgate safety regulations regarding only "boat equipment, operation, lights and navigation rules." Ga. Laws 1960, pp. 235, 243.
All wildlife belongs to the State, and any killing thereof is a privilege to be exercised only in accordance with the laws granting such privilege. Ga. Laws 1968, pp. 497, 591,
Pursuant to specific constitutional authorization (Art. V, Sec. IV, Par. I of the Georgia Constitution; Ga. Code Ann. 2-3301), the General Assembly has vested the State Game and Fish Commission with the power "to regulate the manner, method, ways, means and devices of killing, taking, capturing, . . . and consuming wildlife" and provided that any person who shall violate any of the rules and regulations promulgated by the Commission shall be guilty of a misdemeanor. Ga. Laws 1955, pp. 483,489,493 ..
The statute authorizing the adoption of such regulations does not give the Commission unlimited authority to make penal laws. Briggs v. State, 80 Ga. App. 664, 670 (1949). It simply empowers the Commission to make rules and regulations as to the administration and enforcement of the game and fish laws, looking to the conservation and preservation of game and fish. ld.
The public policy, as manifested by statutes regulating the taking of fish, is aimed at the protection and conservation of fish for the present and future generations. Therefore, regulations

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regarding fishing cannot be arbitrary or unreasonable and, equally as important, must bear a direct relationship with the purpose to conserve and protect fishery resources. 38A C.J.S., Fish, 26, 37; see also 2 Am. Jur. 2d, Administrative Law, 296.
However, a regulation which prohibits fishing from a bridge and yet allows fishing from a boat beneath it or a bank beside it may well be held arbitrary if it is probable that as many fish could be caught from the boat or bank as from the bridge. See In Re Marshall, 102 F. 323 (1900).
In Thompson v. Dana, 52 F. 2d 759, aff'd, 285 U. S. 529 (1931), an act which made it unlawful to fish from a boat on a specific river was upheld against the charge that it was arbitrary. The court reasoned that there was no probability that as many fish could be caught from the river banks as from a boat and it was, therefore, reasonable to believe that distribution of fish might be made to a greater number of people by the restriction.
Similarly, in State v. McCullagh, 96 Kan. 786, 153 P. 557 (1915), the court upheld a statute which prohibited shooting ducks from a motorboat but not from a rowboat. The court observed that the purpose of the legislation was to protect game from undue depletion. It went on to point out that other conditions being equal, more birds could be shot within a given time from a motorboat than from a rowboat.
Summarily, there must be a conservation-related basis for the proposed regulation. Whether such a situation exists is a factual rather than legal question, not answerable by this office.
However, it is my official opinion that the proposed regulation would be valid if, but only if, it tended to conserve fish or furnish more sport for a greater number of people.

OPINION 69-30()

To: Department of Audits

July 21, 1969

Re: Investment of local school funds-Types of certificates of deposit authorized - Responsibility for loss resulting from investments.

This is responsive to your request for an opinion concerning Ga. Code Ann. 32-942 which was amended by Ga. Laws 1969, p. 721. With reference to the cited Code Section, you ask:
"1. Does the phrase 'certificate of deposit' apply t< certificates of deposit issued by commercial banks or is it sufficiently broad to include a number of types of certificates issued by other financial houses, such as savings and loan

424
associations, personal loan associations, savings and credit unions, etc.? "2. If, as the Act provides, it will be legal for a local school authority to invest in various bonds, what will be the responsiblilty of the school superintendent if the funds so invested must be recovered prior to the maturity date of the investment and shifts in the market cause a net loss rather than interest income? "
INVESTMENTS BY LOCAL SCHOOL BOARDS GENERALLY Preliminary to answering your specific questions, it will be
helpful to review the question of investment of school funds by local school authorities as treated in Opinions of the Attorney General through the years.
Op. Atty. Gen., 1948-49, p. 108, is affirmed insofar as it holds that it is permissible for a County Board of Education to deposit school funds in a building and loan association. Also, Op. Atty. Gen., 1963--65, p. 613, is affirmed insofar as it holds that it is legal for county school boards to invest surplus or temporarily idle school funds in federal or state chartered savings and loan associations.
Op. Atty. Gen., 1954-56, p. 246, concluded that it would not be proper for a local Board of Education to deposit funds raised by a bond issue for school buildings in one or more federal savings and loan associations until such time as the money was actually needed for building purposes. In view of later opinions of the Attorney General and statutory enactments, Op. Atty. Gen., 1954--56, p. 246, is rescinded. See, Op. Atty. Gen., 1963-65, p. 613; Ga. Code Ann. 32-942; Ga. Laws 1964, p. 741, 742 (Ga. Code Ann. 23-3001, 23-3002); Ga. Code Ann. 16-437.
An opinion of the Attorney General dated July 19, 1968 [Op. Atty. Gen. 68-296], dealt with the related question of whether the common school fund could be invested in United States Treasury bills and notes. Because that opinion is affected by the 1969 Amendment to Ga. Code Ann. 32-942, it is appropriate to take this opportunity to rescind the holding in said opinion. See, Ga. Code Ann. 32-942; Ga. Laws 1964, pp. 741, 742 (Ga. Code Ann. 23-3001, 23-3002); Ga. Code Ann. 16-437.
DISCUSSION AND OPINION AS TO QUESTION ONE
In your first question, you have asked whether the phrase "certificates of deposit" applies to certificates of deposit issued by commercial banks or whether it is sufficiently broad to include

425
other types of certificates issued by other fmancial investment houses.
Since the legislature did not defme the term "certificates of deposit" as used in Ga. Code Ann. 32-942, it is necessary to ascertain the intention of the legislature in using said phrase by looking elsewhere in the statutory and case law of this State.
The term "certificate of deposit" has been defined as a subsisting chose in action a11d as representing the fund it describes. Philpot, Administrator v. Temple Banking Company. 3 Ga. App. 742 (1908). Generally, the term "certificate of deposit" has been used by the courts in connection with the relationship between a depositor and a bank, and it has been held that a certificate of deposit creates the relation of debtor and creditor between the bank and its depositor. Bank of Thomasville. et al. v. Lester. 177 Ga. 306 (1933); Cato v. Mixon. 165 Ga. 245, 249 (1927). A statutory definition of "certificate of deposit" appears in Ga. Code Ann. 109A-3-104 (2)(c), describing a "certificate of deposit" as "an acknowledgement by a bank of receipt of money with an engagement to repay it." Aside from the definitions of "certificate of deposit" which refer to a "bank," the term has also been defined as "documents showing deposits in building and loan associations in form of passbooks or any other appropriate written recital. Black's Law Dictionary, 4th Ed., p. 286.
It is a cardinal rule of legislative construction that a statute should be read according to the natural and most obvious import of the language. The words of a statute, if of common use, are to be taken in their natural and ordinary signification. Persons v. Hight, 4 Ga. 475, 485, 486. (1848); Ga. Code Ann. 102-102(1). Construing the term "certificates of deposit" in accordance with the natural and most obvious import of that phrase would indicate that the legislature intended to authorize the investment of school funds in "certificates of deposit" issued by some kind of banking institution. This is in keeping with the connotation generally given the term in the statutory and case law of this State, and is also in keeping with the popular significance of the term. See, Holland v. Mutual Fertilizer Company, 8 Ga. App. 714,718 (1910).
As discussed earlier, local school boards have previously been authorized to invest school funds in State or federal savings and loan associations. Op. Atty. Gen. 1963-65, p. 613; Ga. Laws 1964, pp. 741-42 (Ga. Code Ann. 23-3001, 23-3002); Ga. Code Ann. 16-437 and 32-942. Therefore, it would seem that "certificates of deposit" issued by this type of previously. authorized depository would be within that range of investment contemplated by the legislature in enacting Ga. Code Ann. 32-942.
In summary, it is my opinion that the phrase "certificates of

426
deposit" as used in Ga. Code Ann. 32-942 does apply to certificates of deposit issued by commercial banks; further, it is my opinion that said phrase applies to certificates of deposit issued by federal or state chartered savings and loan associations.
Finally, it is not possible to enumerate every conceivable instance in which a "certificate of deposit" could be issued and give an opinion as to whether same comes within the purview of the phrase as used in Ga. Code Ann. 32-942. It is probable, however, that the investment of school funds in "certificates of deposit" issued by institutions other than those discussed above would present a question of whether such investment would be prudent and in the exercise of sufficient care and diligence. Please refer to the discussion and opinion concerning your question number two in this regard.
DISCUSSION AND OPINION AS TO QUESTION TWO
Your second question involves whether local school authorities will incur any personal liability if local school funds are invested in bonds, and because of certain factors, the investment results in a net loss rather than interest income.
As a general rule, the courts will not interfere with the discretionary action of the governing officials of a county within the sphere of their legally delegated powers, unless such action is arbitrary and amounts to an abuse of discretion. Holts v. Smith. 149 Ga. 48 (1919); Dial v. Martin. 132 Ga. 445 (1909); Dunn v. Beck. 144 Ga. 148 (1915). In investing local school funds pursuant to the authority of Ga. Code Ann. 32-942, local school officials would be acting in a fiduciary capacity akin to that of a trustee or guardian.
If trustees use trust funds in a manner not authorized by law, they assume all the risks of the venture, and must bear all losses.
Rogers v. Dickey. Guardian. 117 Ga. 819 (1903). A guardian
investing his ward's funds in matter not authorized by law, and with no order of court, does so at his own risk. Brown v. Wright. 39 Ga. 96 (1869). However, in the absence of fraud, in error of judgment in making an authorized (emphasis supplied) investment
would not render a fiduciary liable for any loss incurred. Little v.
Haas. 68 F. Supp. 545 (1946) (Georgia case). "Whatever duty may rest upon a guardian to invest the funds of his ward in securities such as he may be legally authorized to invest them in, he is not an insurer of the safety of the funds in his hands and is not liable for their loss, where in handling the funds he has acted in good faith and in the exercise of the care and diligence required of an ordinarily prudent man." Gross v. Butler. 48 Ga. App. 750, 751 (1933). A trustee will not be surcharged for a shrinkage in value

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due to economic conditions over which he has no controL 90 C.J.S. Trusts, 335, pp. 573, 574, 575.
In summary, it is my opinion that local school officials, in making legally authorized investments of local school funds, would not be responsible if that investment resulted in a loss rather than a gain so long as the investment, at the time it was made, was reasonably prudent and cautious under the circumstances, and especially if the loss were occasioned by economic conditions over which they have no control.

OPINION 69- 307

To: Commissioner of Labor

July 21, 1969

Re: The activities of National Information Storage And Retrieval Centers do not bring them within the definition of an "Employment Agent" or "Employment Agency."

This will acknowledge your letter dated July 9, 1969, whereby you requested an opinion as to whether the operations of National Information Storage and Retrieval Centers (hereinafter sometimes referred to as NISARC) would come under the Georgia laws regarding Private Employment Agencies.
By Ga. Code Ann. 84410l(t), an "employment agent" or "employment agency" is defined as

any person who, for a fee, (1) procures or offers or attempts to procure employees for persons seeking the service of employees, or employment for persons seeking employment; or (2) who, for a fee, in seeking to perform any of the foregoing, gives information by any means as to where employees or employment may be obtained.

In order to determine whether NISARC comes within the above-stated definition, a review of the operations and activities of NISARC is necessary.
With your request letter, you enclosed a package of materials entitled "Atlanta Next, A Report by Nisarc" which contained an
informational bulletin captioned "The Need for Nisarc." In that bulletin the operations and activities of NISARC are explained as follows:

NISARC's search and retrieval system starts with a patented device called a Search Request Card. Through the use of a short ftlm and the knowledgeable services of a NISARC

428
Search Consultant, the consumer determines on the Search Card his individual preferences. The card, in turn, is interpreted into computer language and relayed to a central computer. The computer then performs a total extraction search by matching the consumer requirements to the information in its memory bank. . . . The reports in the bank which match the individual's requirements are returned and detailed print-outs are made.. . . The consumer is then referred to the dealer or agent who can supply the items described in the report. The report is a copy of the information stored by NISARC in its library of available homes, apartments, jobs, etc. Each print-out gives comprehensive detailed relevant data on the job, car, college, house or apartment descriptions retrieved from the bank.
Also, the materials supplied with your request letter stated that:
Employers continually feed Nisarc on all kinds of job openings. You simply fill out a Nisarc Job Search Form. This tells Nisarc your skills, experience, interests, goals and salary ranges. Nisarc searches the job openings in its memory bank and presents factual reports on job opportunities which are most ideal. You can then make your own selections and apply only to those that interest you most. NISARC JUST TELLS YOU WHAT'S AVAILABLE WHERE. YOU MAKE YOUR OWN DECISIONS ON WHICH TO PURSUE AND WHETHER TO TAKE ANY ACTION AT ALL.
In your request letter you stated, concerning the operations of Nisarc relative to "job hunting," that:
No semblance of an attempt will be made at referrals to individual jobs, nor will any screening or testing be done to determine the applicant's capabilities for any job, nor will any deletions in job openings be made as such except upon withdrawals by the listing Agency. The Center would be informational only.
Furthermore, in your request letter you stated that:
NISARC uses the computer to search and compile information on employment, housing, automobiles and

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.::olleges to give the consumer complete and detailed information reports regarding the availabilities the computer has -located. NISARC does not interview or make any decisions for the consumer regarding available jobs. Its only function is to categorize information and attempt to provide this information to persons seeking it.
It is my understanding from the materials submitted and the information contained in your letter that persons seeking employment would visit NISARC, pay a fee, and merely obtain a list of all of the job opportunities available having specific specifications and requirements. Additionally, according to said information, I understand that the reverse is also possible in that a person seeking a job may pay a fee and place his qualification with NISARC whereby prospective employers obtain merely the identification of prospective employees who they may then contact concerning employment. In either situation, the persons obtaining such information would, upon receiving same, decide whether to pursue the information. I agree that from the information furnished to me, it would appear that the activities of this NISARC are comparable to those of the want ad sections of a newspaper.
The determination of whether the activities fall within the definition of an "employment agent" or "employment agency" must rest upon the word "procure" as used in the above-stated statute.
In Black's Law Dictionary, p. 1373 (4th ed. 1951), the term "procure" is defined as ''to contrieve, bring about, effect, or cause." In Ford v. City of Caldwell, 79 Idaho 499,321 P. 2d 589, 593 (1958), the Supreme Court of Idaho stated that " 'procure' means, to cause, acquire, gain, get, obtain, bring about, cause to be done; it connotes action."
Therefore, it is my official opinion that in using the word "procure" in Ga. Code Ann. 84-410l(f), the General Assembly of Georgia intended to require, by persons held to be an employment agent or employment agency, some action and not the mere supplying of a list of job possibilities or potential employees.
Thus, it is my official opinion that, in answer to your specific question, the operations and activities, as herein described, of NISARC do not come within the provisions of Ga. Code Ann. 84-410l(f) so as to require NISARC to comply with the provisions relating to Private Employment Agencies.

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OPINION 69-308

To: Governor of Georgia

July 22, 1969

Re: Acceptance of any office of profit or trust under the Federal government renders a person ineligible to hold civil office in Georgia; safest method to declare the vacancy is by judicial determination.

You advise that the chairman of the board of commissioners in a county in Georgia has been appointed State Director of the Farmers Home Administration by the United States Secretary of Agriculture. You wish to know whether the acceptance of this position by the chairman would render him ineligible to hold the office and perform the duties as chairman of the board of commissioners of the county. In the event my answer to the ftrst question is in the affirmative, you further wish to know by what method the office of chairman of the board of commissioners should be declared vacant. Further, you wish my opinion on whether, if the offtce is declared vacant, the successor should be selected pursuant to the local laws creating the board of commisioners or the general law known as the Georgia Election Code.
In response to your first inquiry, the Georgia Code does provide that acceptance of any office of profit or trust under the Federal government, with certain exceptions not here relevant, does render a person ineligible to hold civil office in Georgia. Ga. Code Ann. 89-101(4). For the purposes ofthis opinion, I will assume that the Federal position which the chairman of the board of commissioners has accepted is an office of profit or trust under the Federal government.
The issue we must consider is whether, under the facts set out above, the Governor of Georgia can declare an office vacant without the necessity of judicial determination if the incumbent refuses to vacate the offtce, despite charges that the incumbent is ineligible to continue holding the office. So far as I can determine, a Governor of Georgia does not have the express power to declare an office vacant under these circumstances. In the case most directly on point that I could find, the Supreme Court of Georgia considered the question, but did not make any ruling on the question. Patten v. Miller, 190 Ga. 123, 140, 8 S.E.2d 757 (1940). However, several pages later in the same decision, the Supreme Court made the following observations on the governor's alleged power to declare a vacancy without judicial determination:

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"If the Governor may determine conclusively upon the existence of a vacancy, there is no security for this right, but by imputing to him an infallibility which belongs to no earthly officer or tribunal - which the Constitution imputes to none, and which cannot be regarded as the appointed guaranty of constitutional or legal rights.... Other tribunals, it is admitted, are also liable to err. But in the ordinary tribunals for the ascertainment of legal rights, the laws have provided important barriers against the error, by the established rules of proceeding and of trial and judgment. And the privilege of every citizen to resort to these rules constitutes a most valuable safeguard to his rights. In the decision of the question of vacancy by the Governor, his investigation is directed by his own discretion and there is no prescribed mode of trial which may assure the attainment of truth." Patten v. Miller. 190 Ga. 123, 142-143, 8 S.E.2d 757 (1940).
To my mind, the above expression of sentiment by the Supreme Court of Georgia indicates that judicial determination is the more prudent course and it is my opinion and advice to you that the parties in this case seek relief in the courts if the present incumbent refuses to voluntarily resign his office.
Assuming that the incumbent will properly resign from the office for which he is ineligible, you wish to know how the successor to the incumbent would be selected. Art. V, Sec. I, Par. XIII of the Constitution of Georgia (Ga. Code Ann. 2-3013) provides that the Governor may fill a vacancy unless otherwise provided by law. Since you indicate that there is a local law which does provide the manner for filling such a vacancy, it is my opinion that the local law would obtain and should be followed in filling the named vacancy.

OPINION 69-309 (Unofficial)

To: Senator, 25th District

July 23, 1969

Re: Generally, a notary public may be classified as a public official.

You have requested my unofficial opinion on whether or not a notary public is classified as a public official.

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It is clear that a notary public is a public officer. In re. Opinion of the Justices, 73 N.H. 621, 62 A. 969, 5 L.R.A., N.S. 415 (1906); Kip v. Peoples Bank & Trust Company, 110 N.J.L. 178, 164 A. 253 (1933); Lawyers Sur. Corp. v. Gulf Coast Inv. Corp. 410 S.W. 2d 654 (Tex. Civ. App., 1967).
However, it is not quite so clear whether or not a notary public is a public official. I realize that the terms "officer" and "official" are often synonymous, and the definition of "official" depends upon many and varying conditions. See Estrada v. Indemnity Ins. Co. of North America, 158 Cal. App.2d 129, 322 P.2d 294 (1958). My research of the law in this area indicates that in the great majority of cases you must know for what reason you are asking the question before you can classify the notary public. It has been held that a public official is any person wQ.o has an official act to perform under a statute and further that public officials are agents of the State for carrying out public duties or purposes. Ulrich v. Beatty, 216 N.E.2d 737 (Ind. Civ. App., 1966); Duer v. Dashiell, 91 Md. 660, 47 A. 1040 (Md. Ct. App., 1900). I have found some authority that a notary public is classified as a "public official" for certain purposes. Hamburger Bros. & Co. v. Third Nat. Bank & Trust Co. ofScranton, 333 Pa. 377, 5 A.2d 87 (1939). In addition, the Georgia Code Chapter on Notaries Public, Ga. Code Ann. Ch. 71-1, does speak of the duties of a notary public as the duties of office and this would indicate an intent to treat a notary public as an "official."
Hence, remembering that such a classification would depend to a great extent upon the reason for the classification, it is my unofficial opinion that usually a notary public may be classified as a public official.

OPINION 69-310 (Unofficial)

To: Representative, District 84

July 23, 1969

Re: City may establish personnel department and merit board without special Acts of the General Assembly.

You advise me that the city commission of a local city has before it a proposal to establish a personnel department and director. The duties of the department and its director will be to create, recommend and execute job descriptions and employment policies, including the selection of personnel to be hired by the city, and to establish work rules and regulations. This department

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and its director would derive their powers from appropriate ordinances and directives of the city commission. The personnel director would report directly to the Mayor and would be selected and discharged by the Mayor subject to the approval of the majority of the city commission.
There is also pending before the city commission a proposal to create a merit board which would establish criteria and policies for promotion, demotion, duties and salaries for all city employees, including the police and fire department heads and there would also be established a grievance committee to hear complaints brought before it by employees and to make recommendations concerning these complaints to the Mayor. As a part of this proposal concerning the merit board, the police and fire chief would report directly to the Mayor and would be selected and demoted by the Mayor subject to a majority approval of the city commission.
You have requested my unofficial opinion on whether the city can make these changes without the necessity of special Acts of the General Assembly.
Pursuant to the Constitution of Georgia, Art. XV, Sec. I, Par. I (Ga. Code Ann. 2-8301 ), the General Assembly has vested municipalities with the power to establish municipal offices, agencies and employments, and to define, regulate and alter the powers, duties, qualifications, compensation and tenure of all municipal officers, agents and employees with the exception that they may not change their own terms or compensation. Further, each municipality has the power to establish merit systems for all its employees. Ga. Laws 1962, pp. 140, 141-142 (Ga. Code Ann. 69-31 0). The Municipal Home Rule Act of 1965 delegates to the governing authority of each municipality the legislative power to adopt clearly reasonable ordinances, resolutions or regulations relating to its property, affairs and local government for which no provision has been made by general law and which are not inconsistent with the Constitution or any applicable charter provision. In the event there is an inconsistent charter provision, the Municipal Home Rule Act does provide a method for amending the charter. Ga. Laws 1965, pp. 298,299-300 (Ga. Code Ann. 69-1017).
Based upon the above powers authorized by the Constitution and delegated by the General Assembly to the municipalities, it is my unofficial opinion that the city may establish a personnel department and a merit board without the necessity of special Acts of the General Assembly.
Although the city attorney is the proper official to give you a

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full and complete answer in regard to any inconsistent local laws, I have come upon a particular provision for the city in question which probably should be amended pursuant to the Municipal Home Rule Act of 1965 in the event the city does decide to establish the personnel department and merit board. The law is found in Ga. Laws 1946, p. 471, as amended by a city ordinance adopted in Ga. Laws 1967, p. 3515. The law apparently establishes a board of public safety which has charge of the police and fire departments and has general and direct control in the management of the employees and officers of these departments. Further, it does appear that the board has the authority to adopt a system of civil service and pertinent rules and regulations under the system. If this is true, then the law would probably have to be repealed or amended to vest jurisdiction of the police and fire departments in the personnel department and merit board as you have outlined.

OPINION 69-311 (Unofficial)

To: Department of Public Safety

July 23, 1969

Re: State may not expend funds on another's land even when the state will benefit thereby.

By endorsement dated June 5, 1969, you request our opinion as to the legality of a proposed contract between your Department and the City of LaFayette, Georgia. It appears from your inquiry that the City owns a tract of land upon which it has allowed certain parties, including your Department, to install radio-communications towers and equipment. It appears from the recitals in the proposed contract that your Department's occupation of these premises has not been reduced to a formal agreement even though your possession is with the express consent of the owner of the premises. The law terms such possession to be a tenancy at will. Willis v. Harrell, 118 Ga. 906 (1903). The estate of a tenant at will is a leasehold estate and an existing tenancy at will for a definite term of at least sixty days, since the owner cannot terminate it within a shorter period of time. Ammons v. Central of Georgia R.R. 215 Ga. 758 (1960).
The City proposes to erect a cyclone wire fence to enclose the premises. The City has fixed your Department's fair pro rata share of the cost of this improvement at $340.00. In return, the City proposes to obligate itself to your Department to erect the fence

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and to supply a key to the gate thereto to your Department. The City further proposes to obligate itself to keep and maintain the fence at the City's expense for a reasonable period of time, but not less than a period of five years.
It is the writer's unofficial opinion that your Department may not lawfully improve real estate not held by the State in fee simple or in some other manner authorized by statute. Ga. Code Ann. 91-117. See Op. Atty. Gen. 1963-65, p. 755; 1962, p. 398. The erection of a fence of the nature described constitutes an improvement within the scope of the prohibition on the expenditure of appropriated funds. Consequently, your Department may not obligate itself to participate financially in the cost of the improvement under consideration.

OPINION 69-312

To: Governor

July 24, 1969

Re: Emergency Fund distribution to merger study-best to work indirectly through State Planning Bureau.

This is in response to your recent request concerning the Merger Study Committee formed by the municipalities of College Park, East Point, Fairburn, Hapeville, Palmetto, and Union City. Specifically, you have asked whether an allocation from the Emergency Fund can be made directly to the Committee to finance a merger feasibility study.
Reference is made to my January 31, 1969 [Op. Atty. Gen. 69-51 ], opinion to you in which I stated that Ga. Laws 1962, pp. 17, 25 (Ga. Code Ann. 40-408), which controls the use of the Emergency Fund, provides only for allocations to State agencies. Unless a later provision of law clearly authorizes allocations from the Emergency Fund to other recipients, one can be made.
State assistance in the consolidation of services by political subdivisions is expressly authorized by Ga. Laws 1963, p. 354 (Ga. Code Ann. Ch. 23-29). In brief, this Act empowers the State and all its agencies to furnish services, assistance, funds and property to two or more municipal corporations or other governmental units which are thereby willing and able to provide consolidation, merger or joint administration of services. While thus authorizing State participation, it is silent as to, and in my opinion has no effect upon, the use of the Emergency Fund. Repeals of statutes
by implication are not favored, and nothing short of an irreconcilable conflict between the two statutes will work such

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repeaL Moore v. State, 150 Ga. 679 (1920). No such conflict exists here.
As pointed out in that same January 31,1969 [Op.Atty.Gen. 69-51 ], opinion, a State agency may, at the Governor's discretion, receive and expend an allocation from the Emergency Fund for any purpose consistent with the agency's enumerated powers for which no continuing State obligation is created. It is my opinion that the State Planning and Programing Bureau is authorized to conduct the feasibility study in question and could do so with money it received from the Emergency Fund. See Ga. Laws 1957, pp. 446, 448 [Ga. Code Ann. 40-2124(3)]; Ga. Laws 1967, pp. 252, 258 [Ga. Code Ann. 40-2906] and Ga. Laws 1963, p. 354.
The next to concluding paragraph of aforementioned opinion seems applicable, and I take the liberty of quoting same here:

"Being thus empowered to perform these services for municipalities, it follows that the State Planning and Programing Bureau can achieve the same end (i.e., the furnishing of the aforesaid services to municipalities) by purchasing the services from third parties (such as planning consultants). See, e.g., 73 C.J .S. Public Administrative Bodies & Procedure 50-57.

Therefore, it is my official opinion that the State Planning and Programing Bureau could use money from the Emergency Fund to prepare a municipal planning study itself or, in the alternative, contract with a third party, such as a planning consultant, for preparation of the study by the latter."

OPINION 69-313

To: State Board of Corrections

July 25, 1969

Re: Convictions for violation of the Georgia Drug Abuse Control Act are classified as felonies.

This is in reply to your letter dated July 17, 1969, in which you ask whether a conviction for a violation of the Georgia Drug Abuse Control Act and upon which a six-month sentence has been imposed is to be treated as a felony conviction.
The conviction about which you inquire is the result of transactions and court proceedings which took place prior to the effective date of the new Criminal Code. However, for reasons which will be shown hereinafter, the advent of the new Criminal

437
Code is irrelevant to the conviction under consideration and will be irrelevant to future convictions under the Georgia Drug Abuse Control Act.
Violations of the Georgia Drug Abuse Control Act, Ga. Code Ann., Ch. 79A-9, are legislatively categorized as felonies. Ga. Code Ann. 79A-9915. Moreover, the minimum range of punishment for violations of the Georgia Drug Abuse Control Act is a fine of not more than $2,000 or imprisonment in the penitentiary for a period of not more than two years, or both. Ga. Code Ann. 79A-9915. You will observe that the legislature has specifically categorized violations of the Georgia Drug Abuse Control Act as felonies, and has, in addition, provided that sentences for violations of the Act shall be served in the penitentiary.
I find no conflict between the punishment provisions of Ga. Code Ann. 79A-9915 and Ga. Code Ann. 26-101 which provides that "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. . . ." Clearly, the conviction about which you inquire is a felony conviction.
For the guidance of your Department in the future, I have taken the liberty to compare the punishment provisions of the Georgia Drug Abuse Control Act with the provisions of the new Criminal Code. Under the new Criminal Code, a felony is "a crime punishable by death or by imprisonment for life, or by imprisonment for more than twelve months." Ga. Code Ann. 26-40l(e). You will observe that the new Criminal Code defines a felony in terms of possible imposable punishment, rather than in terms of the punishment imposed. A violation of the Georgia Drug Abuse Control Act is punishable, minimally, by the imposition of a fine of not more than $2,000 or by a period of confinement of not more than two years, or both. That a court may impose a sentence of penal servitude of less than twelve months would not change the category of a conviction for violation of the Georgia Drug Abuse Control Act from a felony to a misdemeanor. Therefore, your Department should treat convictions for violations of the Georgia Drug Abuse Control Act returned after the effective date of the new Criminal Code as felony convictions.

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OPINION 69-314

To: State Board of Corrections

July 25, 1969

Re: Prison Athletic Fund may be utilized to provide an Athletic Director.

This is in reply to your request for an opinion dated June 10, 1969, in which you ask whether funds accumulated in the Prison Athletic Fund may be used to reimburse the Board of Corrections for the expense involved in employing an Athletic Director at the Reidsville Prison.
It is my understanding that the Athletic Director would be paid out of funds appropriated to the State Board of Corrections. It is my understanding that the Prison Athletic Fund is created from the profits derived from the sale of nonessential items such as crackers and soft drinks to inmates in the prison store. I further understand that all profits from these sales have been used for the benefit of inmates by purchasing athletic equipment for their use and for paying fees in conjunction with the display of such amusements as motion pictures.
The General Assembly has provided that "The State Board of Corrections ... shall give the prisoners opportunity for reasonable educational, religious and recreational activities where practical." Ga. Code Ann. 77-319. The Board of Corrections is authorized to promulgate rules governing the transaction of business in the penal system and has been admonished by the General Assembly to "make said institutions as self-supporting as possible." Ga. Code Ann. 77-307(a).
In view of the foregoing provisions of the Code, it is my opinion that the Board of Corrections could use the profits generated in the prison store to offset the expense of employing an Athletic Director to work at the Reidsville Prison in directing the athletic activities of inmates therein, by withdrawing such sums from the Prison Athletic Fund and depositing the same in the Treasury of the State Board of Corrections.
This writer feels constrained to point out that, after discussing this matter with the State Auditor, although it is apparently permissible under the law to employ a person under these circumstances, I am not aware of any other department, agency or institution in state government which employs persons in this manner.

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OPINION 69-315

To: State Department of Family and Children Services

July 25, 1969

Re: Review of the commitment of juveniles.

This will acknowledge your recent letter whereby you requested
an opinion on five (5) enumerated questions concerning the review required by Section 22 of the Juvenile Court Act of 1951, as amended (Ga. Code Ann. 24-2422). In your letter you posed and requested an opinion on the following questions:

1. There are a number of committed children that are released from the Centers prior to twelve (12) months from date of commitment but are still in custody of the Division and are being supervised by the Division staff. Are these children subject to review or is this review limited to the children still confined in one of the Youth Development Centers twelve months after date of commitment?

2. What constitutes a review? (a) Is it necessary that a court hearing be held?

(b) If so, is the child required to be present?

(c) If the child is still in one of the Centers, can a staff member be subpoenaed to produce the child and appear in juvenile court?

3. If a court hearing and the appearance in court by the child are not required, will a written report prepared by Social Service staff of the Center, Court Service Worker, or Child Welfare Worker and approved by the supervisor be sufficient to carry out the intent of this part of the Act?

4. Can the committing court order a child released from the Youth Development Center to be supervised by the Division staff or would this supervision following release from the institution be the responsibility of the juvenile court staff?

5. If a child is in custody of the Division for Children and Youth and the committing court does not review the case

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after the expiration of one (1) year, does this affect the legal status of the child?
Please refer to Ga. Laws 1968, pp. 1013, 1030, Section 22. In answer to your first question, you will note that the above-referenced Section 22 provides, in part, that "after the expiration of one (1) year from the date of commitment, the committing court shall review the case and make such order with respect to the continued confinement or release of the child back to the committing court for further disposition as the court deems proper." (Emphasis added.) Therefore, in respect to juveniles who are released from the Centers under the jurisdiction of the Georgia State Department of Family and Children Services, Division for Children and Youth, prior to the expiration of twelve (12) months from the date of their confinement, it is my official opinion that the cases of such children are not subject to the above referenced review since such children are not "confined" at the expiration of twelve (12) months and the above referenced provision speaks in terms of a review " ... with repect to the continued confinement or release." In regard to your second question as to what constitutes a review as required by Section 22, it is my opinion that such a review is a matter of judicial determination and that each Juvenile Court must decide what constitutes a "review" and proceed accordingly, of course, keeping in mind the rights and welfare of the juveniles involved. However, in answer to your question 2(c), I would call to your attention Section 14 of the Juvenile Court Act of 1951, as amended (Ga. Code Ann. 24-2413) which provides, in respect to the initial juvenile court hearing, that "summons may be issued requiring the appearance of any other person whose presence, in the opinion of the judge is necessary." It is my official opinion that, if a Juvenile Court can issue summons to persons for the initial hearing, certainly the Court can issue summons to persons, including members of your Department, for the review of cases at the end of twelve (12) months, if the Juvenile Court Judge considers the presence of such persons necessary to the review. Also, your particular attention is called to Sections 16 and 29 of the Juvenile Court Act (Ga. Code Ann. 24-2415 and 24-2428) which provide for contempt proceedings against persons who fail to appear when summoned or who willfully violate, neglect or refuse to obey or perform any lawful order of a Juvenile Court. In answer to your third question, since Section 22 provides that " ... the committing court shall review the case..."and, in view of the hereinabove expressed opinions that the nature of such a

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''review" is to be determined by the Juvenile Court and that said court may issue summons to persons (including employees of your Department who are considered necessary to the review), an answer to your third inquiry would not appear to be necessary. (Emphasis added.)
For an answer to your fourth inquiry, your attention is called to Section 22A of the Juvenile Court Act (Ga. Code Ann. 24-2441). Since the Juvenile Court is "authorized to specify the terms of the probation," it is my official opinion that the court can determine who is to supervise the released (or probated) juvenile. It would appear that, depending on the circumstances of the particular case, the Juvenile Court could authorize either the personnel of your Department or the Juvenile Court to supervise the released juvenile. See Ga. Code Ann. 24-2405, 24-2407 and 99-211(c).
As to an answer to your fifth question, since Section 22, supra, provides that the "committing court shall review the case," it would appear that the Juvenile Court is required to review such cases at the expiration of twelve (12) months. (Emphasis added.) Thus, I am confident that the Juvenile Courts of Georgia will perform their statutory obligations in this matter. However, your attention is called to the above-referenced Section 22 which provides, in part, that "no commitment of any child to any institution or other custodial agency shall deprive the court of jurisdiction to change the form of the commitment or transfer the custody of said child to some other institution or agency on such conditions as the court may see fit to impose the duty being constant upon the court to give to all children subject to its jurisdiction such oversight and control in the premises as will be conducive to the welfare of said child and the best interests of the State." Thus, a commitment by the Juvenile Court of a juvenile to your Department would not appear to affect the Court's jurisdiction over the juvenile, irrespective of the passage of the twelve (12) months.

OPINION 69-316 (Unofficial)

To: State Highway Department

July 25, 1969

Re: A mobile home may be considered to be real property and pursuant to the Highway Relocation Assistance Act considered as replacement housing.

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This is in reply to your letter of July 3, 1969, in which you requested that an unofficial opinion be given as to the conditions under which a mobile home would be considered real property and whether under state law a mobile home can be considered as replacement housing.
In answer to the first part of your question, let me begin by saying that a mobile home is not within the definition of realty as defined in Ga. Code Ann. 85-201. Furthermore, a mobile home would be encompassed within the definition of personalty as defined by Ga. Code Ann., 85-1701.
It is evident that a mobile home, because of its very nature,
does !!1 fact possess the characteristics contained in the above-cited
definition. That is, it is movable in its nature, has value and, as we have already seen, it is not within the definition of realty. However, there are situations in which an article of personalty will be considered as part of the realty. This occurs where the chattel is placed upon the realty with the intent that it remain permanently in that place, and thus it is intended to pass with the realty when conveyed. When these conditions are met, the chattel becomes a fixture. Ga. Code Ann. 85-105.
In Wolff v. Sampson, 123 Ga. 400, 402 (1905), the Georgia Supreme Court held:
"Whether an article of personalty connected with or attached to realty becomes a part of the realty, and therefore such a fixture that it cannot be removed therefrom, depends upon the circumstances under which the article was place; upon the. realty, the uses to which it is. adapted, and the parties who are at issue as to whether such an article is realty or detachable personalty...."
From a thorough study of these applicable Georgia statutes and decisions, it appears that a mobile home could be considered as part of the realty where it was placed on the property with the intent that it remain permanently in its place and that it pass as part of the realty when conveyed. In order to determine what the intent was with respect to the mobile home, all of the surrounding facts and circumstances should be considered in each case as outward manifestations of what was in fact it~tended.
With reterence to the second part of the question that you have posed as to whether or-not under state law a mobile home can be considered as replacement housing, it should be first pointed out that the Georgia courts have recognized that a mobile home "is as

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much a dwelling as any home which is built on a foundation and, therefore, is not mobile." Allstate Insurance Co. v. Walker. 111 Ga. App. 120, 122 (1965).
From my study of the applicable statutes and decisions, I can find no definition of the term "replacement housing." The Highway Relocation Assistance Act, Ga. Laws 1969, p. 495, which provides for the State Highway Department to make a payment under certain circumstances to eligible persons displaced by Federal-aid highway projects in the state for replacement housing, does not define the term "replacement housing." But it does go on
to provide in Section 5 that "The State Highway Department is hereby authorized to make such rules and regulations as may be necessary to provide for the administraion of the financial assistance authorized by this act." Pursuant to such authority delegated to it by this Act, the State Highway Department should pass applicable rules and regulations defining what is considered to be replacement housing.
Therefore, I can only advise you that in Georgia a mobile home has been recognized as being housing, but as to whether or not it is considered "replacement housing" would be a determination that the State Highway Department would have to make.

OPINION 69-317 (Unofficial)

To: Georgia Firemen's Pension Fund

July 25, 1969

Re: Individual may draw pensions from two separate state funds.

This is in reply to your letter of June 6, 1969, requesting an unofficial opinion as to whether or not there is any state law which prohibits a person from drawing pensions through two different state systems.
There is no blanket provision which directly prohibits the drawing of pensions from two separate state funds simultaneously. This should not be interpreted, however, as stating that such a practice would be permissible in all cases.
Certain statutes establishing particular retirement funds prohibit members of these funds from drawing pensions from other funds simultaneously. (E.g., a member of the Teachers Retirement System is specifically excluded from participating in the Employees Retirement System. See Ga. Code Ann. 40-2501.)
In addition, eligibility requirements would present a practical barrier to participation in two funds in most cases. For example,

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to be eligible for participation in the Peace Officers' Annuity and Benefit Fund, one must be a peace officer "who is employed by the State of Georgia or any political subdivision thereof, who is required. by the terms of his employment ... to give his full time to his job as such peace officer." Ga. Code Ann. 78-901. It would seem, as a practical matter, impossible for an individual to fulfill this requirement and simultaneously satisfy the requirements to make him eligible for participation in the Georgia Firemen's Retirement System.
In conclusion, it is my unofficial opinion that there is no general prohibition which prevents simultaneous particpation in
separate retirement systems. However, since the requirements for eligibility in each system would have to be met, participation in more than one system would be impossible in most cases. Since there are specific prohibitions against dual participation in certain systems, I would suggest that you consult the statute establishing the particular system with which you are concerned.

OPINION 69-318

To: Department of Industry and Trade

July 29, 1969

Re: Determination of State's 10% contribution to Metropolitan Atlanta Rapid Transit Authority should be made from MARTA's total expenditure.

This in reply to your recent request for an opinion as to the financial obligation of the Department of Industry and Trade under a contract with the Metropolitan Atlanta Rapid Transit Authority (MARTA), dated December 28, 1969. You have asked for general guidance as to those items which are includable in computing the aggregate overall total cost of the MARTA's project for purposes of determining the amount of the State's 10% contribution. In addition, you have specifically asked whether Urban Planning Grant Contract Nos. Ga. P-27 (G) and Ga. P-49 (G) can be so included.
Under Georgia Constitution, Art. VII, Sec. II, Par. I, Subpar. 10
[Ga. Code Ann. 2-5501(10)], the General Assembly is empowered to make available public funds for rapid transit, provided the State's share does not exceed 10% of the total cost, either directly or indirectly. Under this constitutional authorization, it is immaterial that the State appropriation might exceed 10% of some individual contract, as long as 10% of the total overall cost of the project is not exceeded. Additionally, this

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amendment may allow partial reimbursement of the expenses incurred by two or more separate instrumentalities, working on the same transportation project.
In the final analysis, the answer to your question depends upon an interpretation of the contract itself, the relevant portions of which provide:
"The State, acting through the Department of Industry and Trade, agrees to pay annually to the Authority ... any such funds as may have been made available by the General Assembly of Georgia and the Governor of Georgia to the said Department for contribution to the Authority .... [T]he total amount of all such funds provided and paid under this agreement . . . shall not exceed ten (10%) per cent of the aggregate overall total cost, direct or indirect, including debt service, of the Authority's project ..."
And "The Authority shall also annually furnish the State of Georgia and the Department of Industry and Trade with a copy of an audit report ... [which] shall reflect in detail: (a) the aggregate overall cost, direct or indirect, that has thus far been incurred by the Authority with respect to the Authority's project ...."(Emphasis added.)
From the foregoing, it is clear that the parties intended that only the amount actually incurred by MARTA in furtherance of its own project would be included in the aggregate overall total cost for purposes of computing the State's 10% contribution.
Turning then to those specific items about which you inquired, I find that Urban Planning Grant Contract No. Ga. P-27 (G) is not an item which should be included in determining the State's share. This agreement is between the Atlanta Regional Metropolitan Planning Commission and a named planning consultant. MARTA is not a party to the agreement and incurred none of its $195,000.00 cost. Although it calls for the conduct of the rapid transit study, this agreement, dated July 6, 1962, antedates the existence of MARTA by approximately three (3) years.
The situation with regard to Urban Planning Contract No. Ga. P49 (G) is somewhat different. This agreement, calling for the conduct of an updated rapid transit study, is dated June 14, 1966, and is between the same two parties, i.e., the Atlanta Regional Metropolitan Planning Commission and a consultant. However, the minutes of MARTA and those of the Atlanta Regional Metropolitan Planning Commission indicate that the Commission

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was acting as an agent of MARTA in administering this project. Moreover, the unofficial summary of the MARTA's records furnished with your request reflects that it paid one-third of the actual cost of the study, while two-thirds was financed by a Federal grant. It is my opinion that the entire cost of this study should be included in MARTA's aggregate overall total cost for purposes of computing the State's 10% contribution. Funds provided by Federal grant to MARTA or, as in this case, its agent are includable when such funds are subsequently expended in its behalf. The source of the funds used to meet an expense is immaterial. The determinative factor is whether the expense in question is an expense of MARTA and becomes part of its project; if so, that expense should be included in the aggregate overall total cost. The expense of any other party, not acting as an agent of MARTA, should not be included nor should a grant of funds from any source to MARTA, unless and until that amount is subsequently expended by MARTA. The rule would be the same with regard to gifts of personalty or realty accepted by MARTA. If these gifts were never converted into cash and expended on the project, no State reimbursement would be permissible. Unless unexpended gifts are excluded, the State's share would likely exceed 10% and, to that extent, constitute an unauthorized expenditure of public funds.
From the information I have, it appears that only an informal and unofficial summary of MARTA's records, and not a certified audit report as required under the contract, has been furnished. It is my opinion that the Department of Industry and Trade is under no obligation to pay over any amount until the certified audit report is made available to it.
In conclusion, it is my official opinion that any amount actually expended by the Metropolitan Atlanta Rapid Transit Authority, or by agents acting in its behalf, should be included in MARTA's aggregate overall total cost for purposes of determining the State's 10% contribution, regardless of the source of funds, provided that the expenses are part of MARTA's transportation project. However, no disbursements are required until a certified audit report is made available to the Department.

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OPINION 69-319 (Unofficial)

To: Flint River Soil and Water Conservation District

July 29, 1969

Re: A Soil and Water Conservation District is an agency and instrumentality of the State.

This is in reply to your letter of July 22, 1969, in which you requested my opinion as to whether the Flint River Soil and Water Conservation District is an agency of the State of Georgia.
I enclose herewith a copy of Op. Atty. Gen. 1954-56, p. 645, which held that properly organized Soil Conservation Districts were agencies of this State. The title "Soil Conservation Districts" was changed by Ga. Laws 1962, p. 116, to read "Soil and Water Conservation Districts," but the status of such entities as agencies of this State remains unchanged. Proof of your proper organization may be established by the certificate of organization issued to your district by the Secretary of State.

OPINION 69-320 (Unofficial)

To: Private Inquirer

July 30, 1969

Re: The legality of the KENO game under the new Criminal Code of Georgia.

This is in response to your letter of June 23, 1969, wherein you requested an opinion as to the legality of the KENO game.
On July 1, 1969, a new Criminal Code of Georgia went into effect. Chapter 26-27 deals with gambling and related offenses: Section 26-270l(d) defines a lottery as:

"A lottery is any scheme or procedure whereby one or more prizes are distributed by chance among persons who have paid or promised consideration for a chance to win such prize, whether such scheme or procedure is called a pool, lottery, raffle, gift, gift enterprise, sale, or policy game, or by
some other name."

To date, no court has construed the language of this Section.

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For your convenience, I am enclosing a copy of an opinion which was rendered by the Attorney General to the Governor of the State of Georgia, Governor Maddox, in 1968 [Op. Atty. Gen. 68-442] on the legality of gift enterprise schemes or lotteries under the then-existing criminal code of the State of Georgia.

OPINION 69-321 (Unofficial)

To: State Highway Planning Engineer

July 30, 1969

Re: Highway Department is authorized to exercise eminent domain for access road to National Park if road has been specifically designated by Congress as a parkway.

This is in reply to your recent request for my unofficial opinion on whether or not the provisions of Ga. Laws 1967, p. 604, authorizing the acquisition of rights-of-way necessary for construction of Federal parkways, would authorize the State Highway Department to participate in the acquisition of right-of-way for construction of a new entrance to a certain National Battlefield Park.
It is my unofficial opinion that provisions of Ga. Laws 1967, p. 604, would allow the State Highway Department to participate in the acquisition of right-of-way for the Kennesaw Mountain National Battlefield Park entrance road if this proposed entrance road is designated as a parkway and is authorized by an Act of Congress and if the lands to be acquired meet the minimum area requirements as is provided in Section 4 of this Act.
It is my understanding that this question arose due to the need for a new access road to a certain National Battlefield Park which is located in Georgia. The State Highway Department wishes to participate in the acquisition of right-of-way for this access road, but in order to do so, the authority for such acquisition must be derived from Ga. Laws 1967, p. 604, which authorizes acquisitions of rights-of-way by the State Highway Department when said rights-of-way are to be used for Federal parkways. The question then arises as to whether a new access road into a National Park would come within the scope of the meaning of a Federal parkway.
Please refer to Ga. Laws 1967, p. 604, at 605, Section 1. That provision, in effect, conditions the State Highway Department's use of its powers of eminent domain by specifically limiting the exercise of this power to the construction of parkways. The

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statute, by expressly authorizing the exercise of the power of eminent domain for acquisition of land for Federal parkways, impliedly excludes its utilization for acquisition of land for other Federal uses. Expressio unius est, exclusio alterius: the express mention of one thing implies the exclusion of another. See the application of this rule of construction in City ofMacon v. Walker, 204 Ga. 810(2) (1949).
The question then remains as to what is considered as a Federal parkway. The term "parkway" is defined by Congress in 23 U.S.C.A. 101 to mean, "a parkway authorized by an Act of Congress on lands to which title is vested in the United States."
Therefore, it can readily be seen that this new access road must first of all be authorized by an Act of Congress. Furthermore, from the wording of this statute, it must be designated by Congress as a parkway.
However, the above-cited statute does not specifically define what constitutes a parkway. Georgia courts have shed some light on this question. In the case of City of Augusta v. Hammock. 85 Ga. App. 554, 559 (1952), the Court of Appeals adopted a New York Court's definition of a parkway. The case of Kupelian v. Andrews, 233 N.Y. 278, 135 N.E. 502, was cited by the Court of Appeals and the following language of the New York court was adopted in defming the word "parkway."
"A parkway, as we ordinarily observe it, includes a comparatively narrow strip of land, lying within the borders, and a part of a single street, withdrawn from travel and ordinary street uses and devoted to ornamental purposes and perhaps in a small degree to those of rest and recreation. It is defined in the Century Dictionary as 'A street of special width which is given a parklike appearance by planting its sides or centers or both with grass, shade trees and flowers. It is intended for recreation and for street purposes. In short, a parkway is essentially a boulevard giving to the term its modern meaning.' Webster's defmition of a parkway is 'A broad thoroughfare beautified with trees and turf.' "
Keeping in mind the above definitions, it is my understanding that the new proposed access road in this National Park will be of considerable width in order to protect and beautify the area adjacent to the park lands. Therefore, it is my conclusion that, from the information furnished this office concerning the present plans, this access road would come within the defmition of a "parkway." Therefore, the only other limits on the use of the

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State Highway Department's powers of eminent domain to acquire this right-of-way would be the limitations contained in the body of State and Federal Acts. First of all, the provisions of 23 U.S.C.A. 101 require that Congress must authorize this project as a parkway. Secondly, the proposed right-of-way to be acquired must meet the minimum area requirements as set forth in Ga. Laws 1967, p. 606, Section 4.

OPINION 69-322

To: Director, Department of Family and Children Services

August 4, 1969

Re: Department Of Family and Children Services may reimburse travel expenses only to State employees.

This will acknowledge receipt of your letter dated July 1, 1969, whereby you posed, after setting forth certain Federal provisions relating to State plans for public assistance, the following question:

Can the State Department of Family and Children Services reimburse or otherwise provide payment to members of State and/or local advisory committees for travel expenses and other expenses of attending meetings which are a part of their official duties?

Your attention is called to my Official Opinion to you dated June 19, 1969 [Op. Atty. Gen. 69-258]. I have reviewed that opinion and fmd that it is applicable to the question which you have raised by your letter of July 1, 1969.
I have discussed this matter with the State Auditor and it is my official opinion that if the persons whose positions are required by the Federal law and regulations (Whether service positions or advisory positions) are made employees of the State of Georgia, the expenses of such persons can be paid as is done for other State employees.

OPINION 69-323 (Unofficial)

To: Solicitor of City Court of Lyons

August 4, 1969

Re: Child Abandonment bastardy proceedings.

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This is in response to your request for an opmton on the following subjects: (1) The appropriate periods during which service of sentences in child abandonment and bastardy cases may be suspended, (2) The appropriateness of a prosecution for child abandonment after prosecution in a bastardy case, and (3) The liability of a father who fails to support his illegitimate child after that child has become fourteen years of age.
The trial court may suspend the service of the sentence imposed upon a conviction of child abandonment "during the minority of such child or children." Ga. Code Ann. 27-2709. The court may suspend the service of the sentence imposed upon a conviction of the offense of bastardy "until said child or children, respectively, reach the age of fourteen years." Ga. Code Ann. 27-2709. Service of a suspended sentence in an abandonment case must be ordered before the child attains twenty-one years. Service of suspended sentence in a bastardy case must be ordered before the child reaches fourteen years of age. Ga. Code Ann. 27-2709.
The statute prohibiting abandonment of children may be utilized for the prosecution of persons who fail to support their children, whether those children be legitimate or illegitimate. Georgia Code Ann. 74-9902 applies to abandoned children, "either legitimate or illegitimate."
The crimes of abandonment and bastardy are separate and distinct offenses. "Under our law as it presently stands, the father of a bastard child may be convicted for refusing to give the bond for its support and maintenance, and after the expiration of his sentence in the bastardy case, be convicted for the separate offense of abandonment under Code 74-9902." Williams v. The State, 213 Ga. 221, 222 (1957). It is clear that a bastardy prosecution is not a bar to a subsequent child abandonment prosecution.
It is equally clear that the present child abandonment statute (Ga. Code Ann. 74-9902) may be utilized for the prosecution of a parent who fails to support his illegitimate child, as well as for the prosecution of a parent who fails to support his legitimate child. "Originally, under the statute (Code of 1933, 74-9902), the offense of abandonment applied only to the father of a minor child, and under this statute it was held by the Court of Appeals that the term 'child' used in an accusation for the abandonment of a child imported a legitimate child. (Citations omitted). By an Act of 1946 (Ga. Laws 1946, p. 63), 74-9902 was amended to include the mother. Thereafter, it was held by the Court of Appeals that the abandonment statute related to the parents of legitimate children only. (Citation omitted). By the amendment of

452

1956 (Ga. Laws 1956, p. 800), 74-9902 was further amended to include the father and mother of a child, 'either legitimate or illegitimate'. . . . [T]he offense of abandonment may now be committed by either the father or the mother of a child, legitimate or illegitimate... !'Pasley v. The State. 215 Ga. 768, 770 (1960).
The word "child" does not appear to have been legislatively def"med. However, the words "children" and "grandchildren," "as used in statutes, generally refer to legitimate descendants, unless there is something which shows a contrary intent on the part of the legislature." Ga. Code Ann. 102-103. (Emphasis added.) In amending Ga. Code Ann. 74-9902, the legislature clearly intended that the word "child," as used in that statute, include illegitimate children. That intention has been amply recognized and applied by both the Supreme Court and the Court of Appeals.
Bearing in mind that "until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child" (Ga. Code Ann. 74-105), it is my opinion that a father is criminally liable, throughout the minority of his illegitimate child, for a failure to support that child.

OPINION 69-324

To: Georgia Ports Authority

August 4, 1969

Re: Ports Authority is subject to taxes imposed under Georgia Retailers' and Consumers' Sales and Use Tax Act.

In your letter of June 17, 1969, you requested that I review an Attorney General's opinion of August 4, 1954 [unpublished], which expressed the view that the Georgia Ports Authority was not subject to the sales and use tax. I hope this letter will clarify the apparent conflict between the 1954 opinion and our present position.
Section 15 of the Act creating the Georgia Ports Authority (Ga. Laws 1945, pp. 464, 477) declares the purpose of this Authority is for the benefit of the people of this State and that said Authority is created for a public purpose and is to perform an essential governmental function. This section also provides that the Authority shall be required "to pay no taxes or assessments upon any property acquired by it or under its jurisdiction, control, possession or supervision, or upon its activities in the operation or maintenance of the facilities erected, maintained or acquired by it.
"
Relying on the above section, the Attorney General expressed

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his belief in 1954 that the above-quoted language reflected a legislative intent to exempt the Ports Authority from all taxation including the provisions of the 1951 Sales and Use Tax Act, which was enacted six years after the Act creating the Georgia Ports Authority. However, in 1961 the Georgia Court of Appeals ruled that similar statutory language in a 1937legislative Act (Ga. Laws 1937, pp. 210, 230), exempting a public housing authority from "all taxes and special assessments of the city, county, the state, or any political subdivision thereof," did not exempt the authority from the subsequently enacted sales and use tax of 1951. Oxford v. Housing Authority of the City ofBarnesville, 104 Ga. App. 797, 798 (1961). It should be noted that the 1937 Act also contained language stating that the housing authority's property was public property to be used for essentially public and government purposes.
In view of this post-1954 court interpr~tion of the effect of the 1951 Sales and Use Tax Act on a previously granted tax exemption to a public authority, we are compelled to take the position that the Georgia Ports Authority is subject to the sales and use tax.

OPINION 69-325 (Unofficial)

To: Floyd County Attorney

August 4, 1969

Re: Facility certified as necessary and adequate to reduce air or water pollution is exempt from ad valorem taxation if installed or constructed for the primary purpose of reducing pollution.

You have requested an interpretation of Ga. Laws 1967, p. 629 (Ga. Code Ann. 92-201.1), which provides:

"There shall be exempt from all ad valorem property taxes in this State all property used in or a part of any facility which shall have been installed in or constructed at any time for the primary purpose of eliminating or reducing air or water pollution, provided such facilities have been certified by the Georgia Water Quality Control Board and/or the State Health Department as necessary and adequate for the purposes intended."

You have also requested an opinion as to what "credit" should be allowed to a paper manufacturing plant on the following facts: The process for manufacturing paper uses a hot caustic solution to

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dissolve the lignin which binds wood fibers together. This caustic solution is separated from the pulp and evaporated to 65% solids. This "black liquor" solution is then burned in a recovery furnace or boiler in order to recover 92% or more of the chemicals used which are then available for re-use. The heat from the boiler is used to generate steam which is used in turn to generate electricity and to heat or cook wood chips and caustic solution on the next cycle of the paper making process. You state that a recovery system is an economic necessity for a paper making operation.
On the particular plant in question, recovery boilers were designed for a total production of 1050 tons. This level was exceeded by some 500 tons on the average, resulting in an overload causing frequent "burnouts" which endanger employees and which result in a loss of production during repairs. The overload of the recovery boilers resulted in emission of pollutants and contaminants in the surrounding area.
The company decided to add an additional recovery boiler. The result has been an increase in production to a level of 1900 tons which remains stable even during periods when an older recovery furnace is being repaired. The new recovery boiler is also used, as are the older ones, to generate electricity during the paper making cycle. Pollution of the air has been drastically reduced, and the company now claims an exemption from ad valorem taxation under Ga. Code Ann. 92-201.1. The Company received an exemption from sales and use taxes under Ga. Laws 1967, p. 286 (Ga. Code Ann. 92-3403a (c)(2)(t.l )). The Company also received a statement from the Department of Health of the State of Georgia that the recovery furnace was "certified as eliminating or reducing air pollution within the framework of Section 99-201.1 [sic] of the Georgia Code Annotated."
The Board of Tax Assessors is willing to grant a 70% allowance against the value of the recovery furnace but is unwilling to exempt the entire unit.
The purpose of the exemption is assumedly "to encourage company management to make capital investments which would benefit the public generally by reducing or eliminating a contribution to the overall air pollution problem. . . ." Ohio Ferro-Allows Corp. v. Donahue, 7 Ohio St. 2d 29, 218 N.E.2d 452, 453 (l966);Mead Corp. v. Schneider, 9 Ohio St. 2d 157, 224 N.E.2d 157 (1967). In view of this purpose and the language of the statute, the following conclusions may be reached:
First, the provision does not contemplate a credit, deduction, or other allowance for the pollution reducing effects of property or a proration of property on the basis of its functions into taxable and

455
exempt categories. Property is either exemp~ under this provision or it is taxable, based on its primary purpose. Reading the statute in light of the constitutional basis for it, however, Georgia Constitution, Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404), supports the conclusion that property not otherwise exempt under this provision is exempt if it is used in or a part of any facility which has been installed or constructed for the primary purpose of eliminating or reducing pollution. Both the constitution and the statute exempt pollution control facilities and the exemption of property which may properly be described as ''used in or a part of'' such facility is within the constitutional grant of power. On the other hand, no part of a facility installed for the primary purpose of increasing production would be exempt even if an incidental overall effect was to reduce pollution if no part of such facility is capable of isolation as a separate facility.
The exemption requires for its operation two elements: A "primary purpose" of reducing pollution by the installation or construction and a certificate that such facilities are necessary and adequate to eliminate or reduce pollution. There is a demonstrable commitment by the General Assembly of the question whether the latter element is satisfied to the expertise of the State Health Department and of the Georgia Water Quality Control Board. Those agencies are to determine whether in fact the property is adequate and necessary to eliminate or reduce pollution. That aspect clearly falls within the expertise of those agencies concerned with pollution control. See Ga. Code Ann. Ch. 88-9 and 17-5. But the determination of whether the property is installed or constructed for the primary purpose of reduCing air pollution is not committed to those agencies. That determination is within the province of the County Board of Tax Assessors. Ga. Code Ann. 92-6913; see Gullatt v. Slaton. 189 Ga. 759, 763 (1940). The statutory provision does not indicate any intent to remove the authority of the tax assessors in this matter and the statute may be interpreted consistently with that authority. Any implied encroachment on the tax assessors' authority would have to demonstrate a greater conflict. See Brinkley v. Dixie Construction Co. 205 Ga. 415 (1949); Collier v. Mitchell, 201 Ga. 528 ( 1951).
Thus, whether a facility, which is necessary and adequate to eliminate or reduce pollution as determined by the pollution control agency, is exempt under Ga. Code Ann. 92-201.1 depends on whether it was installed or constructed for that primary purpose. Determination of that issue is committed to the County Board of Tax Assessors under Ga. Code Ann. 92-6913, subject to review by a court of equity. See Columbus Mutual Life

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Ins. Co. v. Gullatt. 189 Ga. 747 (1940). The question whether or not the property was installed or constructed for the primary purpose of reducing or eliminating air or water pollution rather than primarily for another purpose, such as increasing production, is not to be determined solely from the expressed intention of the taxpayer, but from all the circumstances of the case. The dominant purpose of the taxpayer is to be considered. See Flint Electric Membership Corp v. Adams. 214 Ga. 280 (1958). To be considered by the assessors are the other relevant objective facts, such as the other effects which the property has on production capacity of the business; whether other available methods of pollution control were available, the function of that type of facility in that type of business or industry. But the mere fact that a less expensive facility, or a facility with less beneficial effects on production, was available does not negate the exemption. A comparison of the pollution reducing effects with the increase in production is also material to the inquiry. Other circumstances may be considered, depending on the setting of the particular case, tending to show the taxpayer's dominant purpose. Weight should be accorded not only to the certificate of the pollution control agencies, but also to whether the taxpayer has applied for and received a certificate of exemption from sales and use taxes under Ga. Code Ann. 92-3403a(C)(2)(t.l ). As noted earlier, a certificate from a pollution control agency is not conclusive as to the exemption. Such agency's authority does not extend to determination of the question whether the facility was installed or constructed for the primary purpose of eliminating or reducing air or water pollution. Nor is a certificate of exemption from sales and use taxes under Ga. Code Ann. 92-3403a (C)(2)(t.l ), binding upon the tax assessors. See Thompson v. Flemming. 188 F.Supp. 123 (D.C.Or., 1960); 2K. Davis Administrative Law 18.04-.05 (1958).
The certificate under Ga. Code Ann. 92-3403a (C)(2)(t.l) is not conclusive of the issue of the taxpayer's primary purpose since the determination was made under a different statute.
The Board of Tax Assessors, therefore, must exempt property used in or a part of any facility which has been certified by the Georgia Water Quality Control Board or the State Health Department as necessary and adequate to eliminate or reduce air or water pollution if the Board of Tax Assessors finds from all the circumstances surrounding the case that the facility was installed
for the primary purpose of eliminating or reducing pollution. If the Board finds, however, that the facility, even though certified, was not installed or constructed for that primary purpose, but for

457

another purpose, such as increasing production with only an
incidental intent to control pollution, then it must fmd that the exemption does not apply. See Flint Electric Membership Corporation v. Adams. 214 Ga. 280 (1958), Church of God of the Union Assembly. Inc. v. City ofDalton. 216 Ga. 659 (1961). This decision is subject to review in a court of equity. Columbus Mutual Life Ins. Co. v. Gullatt. 189 Ga. 747 (1940).
On the facts of this case, the Board of Tax Assessors has indicated a willingness to allow, although in an erroneous manner, an exemption or allowance of 70% of the value of the recovery boiler, and that fact indicates that the Board may be convinced that the dominant purpose of the company was to reduce pollution. If the Board is so convinced, then, even though production is increased, I am of the opinion that the exemption applies to the total value of the property.

OPINION 69-326

To: Income Tax Unit

August 7, 1969

Re: A Georgia resident who refuses to pay state income tax can be prosecuted for a misdemeanor and venue is Fulton County.

This is in response to your letter to this office wherein you requested an opinion as to whether or not a certain Georgia resident who has no property in his name, whose wages cannot be garnished and who files State income tax returns each year but who fails and refuses to . pay said State income tax can be prosecuted for the failure and refusal and if he can be so prosecuted where is the venue of such prosecution?
Ga. Laws 1937, pp. 109, 140 (Ga. Code Ann. 92-9945) provides with respect to income taxation:

"If any individual, ..., shall fail to pay this tax, ...[he] shall, in addition to other penalties provided by law, be guilty of a misdemeanor, and upon conviction thereof, shall be punished as for a misdemeanor."

Ga. Laws 1895, p. 71 (Ga. Code Ann. 27-1101) provides in part:

"All criminal cases shall be tried in the county where the crime was committed, ...."

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Case law indicates that in a situation where the crime is the failure to pay a tax to the State Revenue Commissioner the venue is the county where the Commissioner maintains his office as State Revenue Commissioner unless authorized to remit said tax to some other place. See U. S. v. Citron. 221 F.Supp. 454 (1963); Yarborough v. U. S. 230 F.2d 56 (1956), cert. den., 351 U.S. 969; Nelson v. State. 77 Ga. App. 742 (1954). Inquiry reveals that taxpayers are not authorized to remit their income tax to any place other than Department of Revenue, Atlanta, Georgia.
Therefore, it is my opinion that a Georgia resident who files a State income tax return but who fails and refuses to pay said tax can be prosecuted for a misdemeanor under Georgia law and the venue for such prosecution is Fulton County.

OPINION 69-327 (Unofficial)

To: Ordinary, Stephens County

August 8, 1969

Re: Ordinary authorized, to dismiss guardian of minor ward even when there is money in trust.

This will acknowledge receipt of'your letter dated July 22, 1969, whereby you advised that you have. been presented with the following question and that you would appreciate an opinion of this Office on same:

"Whether or not, in view of Ga. Code 20-201 and Ga. Code 29-1 06, that a married person over the age of 18 years, but under 21 years of age, who has a guardian appointed by the ordinary, would be able to agree to the dismissal of the guardian so as to authorize the turning over of the funds in the guardian's hands to the ward."

Furthermore, this will confirm our conversation of July 29, 1969, whereby you advised that the ward in question is a widow of a Vietnam Veteran and that a guardian had been appointed for the specific purpose of receiving for said widow a life insurance settlement. Furthermore, you advised that of the original settlement, a part had been paid out leaving a balance constituting the trust now being held by the guardian for said ward. Finally, you advised that all parties concerned were desirous of having the guardian dismissed and the remaining balance in the trust released to the ward to be used by said ward for living expenses without

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the necessity of supervision by a guardian. In answer to your specific question, your attention is called to
Ga. Code Ann. 20-201 and 29-106, which, in essence, provide that contracts, deeds and cettain other instruments executed by infants are voidable. Both of said sections further provide, however, that such instruments, if executed by a minor who is 18 years of age or older and married are ". . . as effective as though such minor were of the age of majority."
Therefore, the above two Code sections make exceptions in the case of a minor who is 18 years of age or older and married to the general principle that contracts and v.arious other instruments executed by infants are voidable. However, the dismissal of a guardian, under the circumstances hereinabove stated, would not involve the contracting of an infant since the Ordinary is the official charged with the determination as to whether Letters of Dismissal will be granted to a guardian. Therefore, it is my unofficial opinion that, in answer to your specific question, Ga. Code Ann. 20-201 and 29-106 do not authorize the dismissal of a guardian and the relinquishment to the ward of the trust being held by the guardian.
However, in order to present a possible solution to the problem which has been presented to you, your attention is called to the provisions of Ga. Code Ann. 49-314 which contains the conditions under which Letters of Dismissal may be granted by the Ordinary to a guardian. Two prerequisites of said Code Section are that the guardian file "an application in writing, setting forth his full discharge of the duties of his trust" and present " ... proof to the ordinary that the ward is of age or that there is no longer a necessity for continuing the guardianship."
Also, your attention is called to Ga. Code Ann. 49-315 which provides, as to the disposition of any property of the ward being held by the guardian that:
. . . the ordinary may cause the same, if money, to be deposited in some solvent bank, and, if other property, to be delivered to some proper person to be appointed by the ordinary, under such restrictions as he may deem best for the preservation of the property, and then grant the letters dismissory, ....
Thus, although Ga. Code Ann. 49-314(4) provides that for Letters of Dismissal to issue, the guardian must provide "proof to the ordinary that the ward is of age" there is an exception or alternative in that the guardian can present proof to the ordinary

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"that there is no longer a necessity for continuing the guardianship." Therefore, it is my unofficial opinion that should an application be presented to you as the Ordinary requesting Letters of Dismissal by the guardian for the ward described herein stating that he had fully discharged the duties of his trust and that for specific reasons "there is no longer a necessity for continuing the guardianship" that you would be authorized, upon confirming said allegations, to issue Letters of Dismissal. Needless to say, your authorization to so issue Letters of Dismissal depends upon specific findings on your part as the Ordinary as to the specific guardianship and ward involved.
Also, by Ga. Code Ann. 49-315, supra, authorization is given to the Ordinary to grant Letters of Dismissal even when the guardian has in his hands money of the ward by providing that said money "be deposited in some solvent bank" and "under such restrictions as he (the ordinary) may deem best for the preservation of the property."

OPINION 69-328

To: Secretary of State

August 11, 1969

Re: Partnership interests in investment club formed under Georgia Uniform Limited Partnership Act are securities and require registration.

This will acknowledge your letter dated January 21, 1969, whereby you forwarded to this office a letter dated January 15, 1969, from Mr. William L. Hinds, Jr., of Birmingham, Alabama, who posed the question to you as to whether the formation of an investment club as a limited partnership under the Georgia Uniform Limited Partnership Act and the subsequent issuance and sale of partnership interests th~reof requires registration under the Georgia Securities Act. In your letter you requested an opinion of this office as to whether such partnership interest would be defined as a "security" under the provisions of Georgia Securities Act.
Mr. Hinds stated in the above-referenced letter that he is a member of Capitol Investors, a stock investment club consisting of approximately thirty (30) members, approximately one-half of whom reside in Georgia and the other one-half in Ala.bama. Additionally, according to Mr. Hinds, this club was formed in January of 1968 by several persons pooling their resources for investment in the stock market and since that time additional

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persons have been included in the club by the incoming persons paying an amount based on the fair market value of the securities owned at that time by the club. The members of said club make contributions from time to time which is, in turn, invested in the stock market with the profit or loss shared by each member according to his investment in the club.
Finally, Mr. Hinds advised that the members of the club have not executed any formal agreement, but have operated as an oral partnership since its formation. Presently, the members desire to enter into a formal partnership agreement and are considering formally organizing under the Georgia Uniform Limited Partnership Act.
A "security" is defined, for the purpose of the Georgia Security Act of 1957, as amended, in Ga. Code Ann. 97-102(i). See also Ga. Code Ann. 97-104.
Therefore, if the limited partnership interests created by the formation of a limited partnership under the Georgia Uniform Limited Partnership Act fall within the above-stated definition of a "security" and 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 is required by the Georgia Securities Act of 1957, as amended.
As you are aware, the definition of the "security" in the Georgia Securities Act is extremely broad and very comprehensive. In view of the legislative purpose underlying securities acts it is now well established that a transactional device need not be susceptible of classification within any one increment of the definition in order to be subject to the registration requirements of the law. First Nat7. Savings Foundation v. Samp. 80 N.W.2d 249 (Wis., 1956). Where, however, such a device is accurately described by any one or more of the incremental terms set out in the definition, the advice is a security without the necessity for detailed examination into the substance of the transaction as compared with the general provisions of securities law.
An "investment contract" is a broadly defmed term which includes, among other things, all contracts, providing for the investment of capital in a way or manner intended to secure income or profit from the employment of such capital. State v. Lorentz. 22 N.W.2d 313 (Minn., 1946); State v. Gopher Tire & Rubber Co. 177 N.W. 937 (Minn., 1928). Limited partnerships are clearly within this definition. Consequently, jJ is my opinion that the offering for sale of limited partnerships constitutes the offering for sale of a security as the same is defined by the Georgia Securities Act. Unless exempted or involved in an exempt

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transaction, such securities must be registered. In this opinion, I do not undertake to express an opinion as to
whether an interest in any other type of investment club is a security, except to state that, if the formation of such a club were essentially the same as that for a limited partnership, such an interest, in my opinion, would be a security.

OPINION 69-329

To: Governor

August 11, 1969

Re: Designation of an "official" State theater is within the exclusive province of the General Assembly; State funds may be used in the operation of such a theater if it is acquired and operated by the State.

This is in response to your inquiry as to the proper procedure to be employed in designating the Appletree Theater, a repertory theater located in Habersham County, as an official State theater. Additionally, you have asked whether State funds may be used in its operation.
The General Assembly is absolutely unrestricted in its power of legislation so long as it does not undertake to enact measures prohibited by the State or Federal Constitutions. Plum v. Christie. 103 Ga. 686 (1898); Ga. Code Ann. 2-1920. Its authority extends to all matters, of all possible denominations. Boston & Gunby v. Cummins. 16 Ga. 102, 113 (1854). In the past, numerous indigenous objects of nature and historical items have been designated as symbolic of the sovereignty of the State of Georgia. This has traditionally been done by resolution act of the General Assembly, e.g., the State Seal (Ga. Laws 1914, p. 1247); the State Flower (Ga. Laws 1916, p. 1046); the State Tree (Ga. Laws 1937, p. 2209); the State Flag and Colors (Ga. Laws 1956, p. 38).
Since the General Assembly is the repository of all legislative power, and since it has not delegated to any individual the authority to bestow "official" status, I am of the opinion that only the General Assembly can create or designate an "official" State theater. I am aware that Governor Eugene Talmadge is reputed to have named the Brown Thrasher as the official State Bird by Executive Order dated April 6, 1935. Although the newspapers of the day reported the action, no copy of the alleged proclamation is recorded in the Executive Minutes on file in the Georgia State Department of Archives and History. Regardless of

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whether such a proclamation ever existed, legally and historically, the conferring of "official" status has been and is within the exclusive province of the General Assembly.
The mere designation of the Appletree Theater as an official State theater by the General Assembly would not, in itself, authorize the expenditure of State funds in its operation if the theater's ownership remained private. Any contribution of funds under these circumstances would constitute a donation or gratuity in violation of the Georgia Constitution. Ga. Code Ann. 2-5402(1 ). Conversely, should the theater be acquired and operated by the State or function in connection with a State department or agency, it is my opinion that State funds may then be used in its operation.

OPINION 69- 330 (Unofficial)

To: City Attorney of Bainbridge

August 12, 1969

Re: The governing authority of a municipality may fix and publish election qualification fees.

You have requested my unofficial optmon on whether the governing body of your city may charge entrance fees to those desiring to run in the general city election for mayor and aldermen.
City elections are governed by the provisions of the Georgia Municipal Election Code. Ga. Code Ann. 34A-102. The Code provides as follows:

''The governing authority of any municiality, at least two weeks prior to the closing of qualifications for a special or general municipal election shall fix and publish a qualification fee, if any, to be paid by candidates seeking election in any such special or general election. Such fee shall be paid to the municipal superintendent at the time a candidate files his notice of candidacy." Ga. Code Ann. 34A-904.

Assuming that your "entrance fees" and the "qualification fees" authorized by the Municipal Election Code are the same, it is my unofficial opinion that the above law authorizes the governing authority of the city to charge qualification fees to those desiring to run for office in the general city election.

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OPINION 69- 331 (Unofficial)

To: Justice of the Peace

August 12, 1969

Re: Costs due justices of the peace in certain criminal cases may be paid out of county's fine and forfeiture fund.

You have requested our unofficial opinion on how you may collect your costs in certain criminal cases where the defendant is acquitted.
The Georgia law provides for a county fine and forfeiture fund against which certain court officials may claim for insolvent costs or costs in cases where defendants have been acquitted or in certain other enumerated instances. Ga. Code Ann. Ch. 27-29. Justices of the Peace are allowed to proceed against the fund in certain cases. Ga. Code Ann. 27-2906 and 27-2913. Whether you are entitled to payment in any particular case would depend upon the facts of each case in light of this law.
Further, the Georgia law makes provision for payment of your costs in cases where a warrant or warrants have been issued and resulted in an accusation or an indictment and a conviction has been had on the same. Ga. Code Ann. 27-2932. The applicable law for these instances is found in Ga. Code Ann. 27-2928 to 27-2932.
It is therefore our unofficial opinion that payment of the costs to Justices of the Peace in certain criminal cases may be paid out of the county's fine and foreiture fund.

OPINION 69- 332 (Unofficial)

To: State Road Design Engineer

August 13, 1969

Re: Maintenance of welcome stations.

This is in response to your recent letter in which you requested my unofficial opinion as to what extent the Department of Industry and Trade is to participate in the maintenance of the welcome stations pursuant to the provisions of Ga. Laws 1951, p. 747,asamended, and what is the legal definition of "maintenance" as used in the above Act.
In your request, you enclosed a copy of an executed agreement between the Department of Industry and Trade and the State

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Highway Department of Georgia which precipitated the above inquiry. In actuality this is a contract establishing the duties and obligations of each Department with regard to construction of the building. There is, however, a reference to Ga. Laws 1951, p. 747, as amended, which delegated the duties of maintenance to the State Highway Department and also required the Department of Industry and Trade to "advise and direct" the State Highway Department as to the maintenance. If this law were still in effect, there would be a question for construction as to the extent of each Department's duties. However, the General Assembly of 1969 amended the act of 1951 and changed the respective duties of the Highway Department and the Department of Industry and Trade. Ga. Laws 1969, pp. 610 and 611, Section 2 provides that:
"It shall be the duty of the Department of Industry and Trade to construct, operate and maintain said welcome centers and keep them supplied with such information, pamphlets, and other materials as will advertise and publicize the tourist attractions, natural resources, industry, history, and commerce of this State."
Section 3 provides:
"The State Highway Department is hereby authorized and directed to maintain the grounds surrounding said welcome centers in a neat, attractive condition...."
In statutory construction, words of a statute are to be given their ordinary and natural meaning. Ga. Code Ann. 102-1 02; Oxford v. Chance, 104 Ga. App. 310 ( 1961 ). As clearly shown by the above-quoted sections of the Georgia Laws 1969, the Department of Industry and Trade maintains the welcome centers; in other words, the actual structure, and the State Highway Department maintains the grounds surrounding the welcome centers.
The agreement which you enclosed does not affect or change the duties delegated to each Department by this act. This agreement dealt with the duties of each Department in construction of the actual structure. The authority for expenditures in the area of maintenance is derived solely from the legislative acts discussed hereinabove. Therefore, the Departments must derive their authority for expenditures for maintenance from this latest act and are also bound by this distribution of duties as set forth in this act.
With regard to your second question, the word "maintenance"

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has no precise legal significance in the construction of a statute. Its meaning varies with the subject of the law and the purpose to be accomplished. The word "maintain" has been defined as to hold or keep in a particular state or condition, especially in a state or
efficiency or validity. Davis Holding Corp. v. Wilcox, 112 Conn. 543, 153 A. 169. Maintenance has also been held to mean the upkeep or preservation of the condition of the property to be
operated. Rick Manufacturing Co. v. Gable, 246 N.C. 1, 97 S.E. 2d 672.
Therefore, keeping in mind the above definitions of "maintenance" and construing these definitions in conjunction with the provisions of Ga. Laws 1969, pp. 610 and 611, Section 2, it is my unofficial opinion that it is the duty of the Department of Industry and Trade to preserve and be responsible for the upkeep of the actual building which comprises a welcome center; whereas, it will be the correlative duty of the State Highway Department to preserve and keep the surrounding grounds in their originally constructed condition.

OPINION 69- 333

To: Department of Labor

August 13, 1969

Re: Consolidated Wage Combining Plan.

This will acknowledge your recent letter whereby you requested my opinion relative to the authorization of the Georgia State Employment Security Agency to enter into a new "Consolidated Wage Combining Plan" (hereinafter sometimes referred to as the "Plan") which has been developed by the U. S. Department of Labor and the Interstate Conference of Employment Security Agencies.
According to the information in your letter, Georgia has not yet entered into said "Plan," but is considering entering into same. Furthermore, you stated that the "Plan" is intended to facilitate the processing of unemployment insurance claims that are filed by transient workers who have wages earned in more than one State. According to the information in your letter, such a "Plan" will allow the combining of wages earned in the various States so as to facilitate the making of combined wage determination pursuant to the law of the paying State which is, usually, the State wherein the transient worker is residing at the time he files his claim for compensation.
In your letter you observed that previous "wage transfer

467
arrangements" between the States have only included wages in the transferring State's base period, but that the above-mentioned "Plan" provides for the inclusion of all wages which are in the paying State's base period. Thus, you have observed that in some states such calculations would include those wages earned up to the filing date of the claim for compensation. Since such wages are not included in Georgia's base period (i.e., " ... the first four (4) of the last five (5) completed calendar quarters immediately preceeding the first day of an individual's benefit year." See Ga. Code Ann. 54-657[5]), you have inquired as to whether, under the existing Georgia law relative to "Reciprocal Arrangements," the Georgia Employment Security Agency can enter into such a "Plan" which would require the transfer of wages to other states which would not be in Georgia's base period, but which would be in the paying State's base period.
By Ga. Code Ann. 54-642 (Ga. Laws 1941, p. 546), the following provision was added to the Georgia statute concerning Employment Security laws:
The Commissioner is also authorized to enter into arrangements with the appropriate agencies of other states or of the Federal Government (1) whereby wages or services, upon the basis of which an individual may become entitled to benefits under the unemployment compensation law of another state or of the Federal Government, shall be deemed to be wages for employment by employers for the purposes of sections 54-603 to 54-608 and section 54-609(e), provided such other state agency or agency of the Federal Government has agreed to reimburse the fund for such portion of benefits paid under this Chapter upon the basis of such wages or services as the Commissioner finds will be fair and reasonable as to all affected interests, and (2) whereby the Commissioner will reimburse other State or Federal agencies charged with the administration of unemployment compensation laws with such reasonable portion of benefits, paid under the laws of any such other states or of the Federal Government upon the basis of employment or wages for employment by employers, as the Commissioner finds will be fair and reasonable as to all affected interests. Reimbursements so payable shall be deemed to be benefits for the purposes of sections 54-606, 54-624 to 54-627.1 , but no reimbursement so payable shall be charged against any employer's account for the purposes of sections 54-620 to 54-622. The Commissioner is hereby authorized to make to

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other State or Federal agencies and receive from such other State or Federal agencies, reimbursements from or to the fund, in accordance with arrangements pursuant to this section.
Therefore, it is my official opinion that under the provisions of the above-quoted Ga. Code Ann. 54-642, the Commissioner of Labor is authorized to enter into reciprocal arrangements whereby the Georgia Employment Security Agency transfers wages, and makes reimbursements, to other states for wages not in Georgia's base period but within the transferee State's base period, "as the Commissioner (of Labor) finds will be fair and reasonable as to all affected interests." Thus, if the Commissioner of Labor determines that it will be " ... fair and reasonable as to all affected interests" to so transfer wages and make reimbursements to other states using a base period which includes wages up to the time that a claim for benefits is filed, then the Commissioner is authorized, in my official opinion, to execute an agreement accordingly.
You have advised this office that the State of Georgia will reimburse the paying State from Employment Security Trust Funds which are composed solely of amounts paid by employers when an employee works and earns wages. Also, you advised that the funds reimbursed other States will only consist of funds that have been earned by the employee, although at the time of reimbursement such funds may not have become payable by the employer.
A question could possibly arise regarding the necessity of an employer having to make a report on the earnings of a particular employer who had moved to another State and who claimed wages in a quarter in Georgia which were not yet required to have been reported. By Ga. Code Ann. 54-620, provision is made, in part, as follows:
Such contributions (by the employer) shall become due and be paid by each employer to the Commissioner for the fund on or before the last day of the month next following the end of the calendar quarter to which they apply, in accordance with such regulations as the Commissioner may prescribe, ....
However, inasmuch as the reports for any employees who could be in another State claiming wages earned in Georgia would have to be obtained on an individual basis, it is my official opinion that the Commissioner, by regulation, could require such reports in

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addition to the reports which the employer will have to make pursuant to Ga. Code Ann. 54-620.

OPINION 69- 334

To: State Superintendent of Schools

August 14, 1969

Re: Use of funds recieved from the sale of school property.

You have requested an official opinion as to whether proceeds from the sale, pursuant to Ga. Code Ann. 32-909, of school real and personal property should be deposited in the general funds of the county boards of education or, instead, in special capital outlay accounts.
The authority of county boards of education to sell school property is derived from Ga. Code Ann. 32-909, which provides, in relevant part, that:

" ... when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education...."

In Bailey v. County Board of Education of Elbert County, 213 Ga. 308, 309 (1957), the Supreme Court stated that Ga. Code Ann. 32-909

". . . gives to the county boards of education complete ownership of county school property with the right to buy and sell same."

The Court in Bailey felt that the school authorities owned the property "as a statutory trustee or public agent." Id. at 310.
The broad language of the Code and of the Bailey case must be understood in the context of Duffee v. Jones. 208 Ga. 639, 644 (1952), in which the Court stated the general rule that

" ... a county board of education has power to and may sell at private sale any schoolhouse property for which it has absolute title when the board finds and by resolution declares that the same is not necessary or convenient for school purposes"

but then held with reference to the facts before the Court in Duffee that

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" .. the board has no power or authority under this [Ga. Code Ann. 32-909] or any other provision of our law to sell any property which has been conveyed to and accepted by it, or its predecessor in title, in trust for educational purposes, as in this case, except in the manner and way provided for by Code 108-408 and 108-409, which is at public sale after proper leave to sell has been obtained from the superior court."
The Bailey case also must be read in light of the Court's decision that a county board of education which received from an abolished school district funds derived from the sale of bonds voted for a particular purpose could expend the funds for no purpose other than that for which the bonds were voted. Board of Education ofPaulding County v. Gray, 203 Ga. 583(2) (1948); see also Walker v. Wheeler, 210 Ga. 432,434 (1954).
Also to be considered is the Court's holding that fire insurance proceeds from a burned building which had been erected with bond funds were to be held in trust for the purpose of erecting a replacement building and could not be diverted to pay bonded indebtedness or other indebtedness of the school system. Conley v. Rogers, 169 Ga. 85 (1929). Fire insurance proceeds have been stated to be
". . . a trust fund, to be used only for the purpose of replacing the property destroyed, so long as the county stands in need of the thing so destroyed." Adams v. Helms, 95 Miss. 211,48 So. 290 (1909); see also State v. Board of Education of City of Racine, 205 Wise. 389, 236 N.W. 553 (1931 ), State v. Board of Trustees of Missoula County High School, 91 Mont. 300, 7 P.2d 543 (1932); 78 CJ.S., Schools and School Districts, 338.
Thus, it becomes apparent that one must look to the source of the funds used to purchase or construct the school property to be sold, or to the source of the property itself, to be able to determine the lawful method of sale and the lawful disposition of the proceeds from the sale.
Instead of assuming that it has power to sell certain school property at a private sale and to deposit the proceeds in the general fund rather than in a capital outlay account, only later to have its actions set aside by a successful court action, a school system may file prior to such sale an action seeking permission to sell the property and to utilize the proceeds in a particular

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manner. An example of such a suit is Veal v. Smith. 221 Ga. 712 (1966), in which the trial court, after remand from the Supreme Court and based upon the facts in the case, entered an order directing

"that the Washington County Board of Education shall use and expend said funds only for permanent improvements at those County Schools serving children from the Deepstep Community."

Based on the foregoing authorities, I am of the opinion that the answer to the question of whether a county board of education has authority to sell any particular school property in a particular manner and to deposit the proceeds of sale in the general fund rather than in a special trust account for special or general capital outlay purposes will depend upon the facts related to the particular school property in question, including its source or the source of the funds used for its purchase or construction, and upon the facts related to the need for other capital improvements or expenditures. I further am of the opinion that such questions should be presented to local, legal counsel who is fully familiar with all the relevant facts arid that counsel should render legal advice to the affected local board of education before the board purports to conclude the sale.

OPINION 69- 335

To: State Superintendent of Schools

August 14, 1969

Re: Full-time faculty member of University of Georgia violates "Honesty in Government Act of 1956" (Ga. Laws 1956, p. 60) by becoming paid consultant to State Department of Education.

This responds to your request for my official opinion on the following question:

"Can the State Department of Education legally employ a member of the faculty of the University of Georgia as a consultant under provisions of the Honesty in Government Act of 1956 if the fee is paid directly to the individual so employed? "

The "Honesty in Government Act of 1956" (Ga. Laws 1956, p. 60) provides that it is a misdemeanor for any full-time State

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employee to contract to sell services to the State when such sale would benefit or be likely to benefit the employee. The Act further provides that any State employee who violates any provisions of the Act shall be discharged immediately from State
employment. It is apparent that the proposed consultant's contract would be
of benefit to the subject person who is assumed to be a full-time faculty member.
If the legal issue were to be presented for decision, l am of the opinion the Courts of Georgia would hold that the faculty member is an employee of the State, Regents of the University System of Georgia v. Blanton, 49 Ga. App. 602(4) (1934), and probably would hold that he violates Ga. Laws 1956, p. 60 by becoming a paid consultant to the State Department of Education. Accord: Op. Atty. Gen. 67-414 (Opinion to the State Board of Pardons and Paroles, dated November 22, 1967).

OPINION 69- 336

To: Department of State Parks

August 15, 1969

Re: State-county cooperation in providing water to State Park.

This is in response to your request for an opinion regarding the expenditure of State funds to obtain water service to Red Top Mountain State Park. Your letter indicates that Bartow County has offered to sell water to the Department provided the Department pays half the projected $58,000.00 cost of extending the pipeline three and one-half (3 1/2) miles from the City of Cartersville to the Park. Specifically, you have requested my opinion as to State's participation in the installation of the pipeline and, in the event that such opinion is unfavorable, asked that I suggest an alternative method to provide for its extension.
Please refer to my opinion of February 9, 1968 [Op. Atty. Gen. 68-57], to you regarding expenditures to obtain adequate water for the State Parks System.
As you recall, the aforementioned opinion stated that the total cost of extending a pipeline from the limits of an existing distribution system to a State Park could be borne by the Department, provided the necessary appurtenant easements were secured and the installed pipeline belonged to the Department, rather than becoming a part of the local waterworks system. Additionally, this opinion provided that if the pipeline were installed by a local governmental unit and became a part of its

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water system, the Department could, under certain circumstances, pay a surcharge on the normal metered rate to cover the cost of the extended service.
However, if implemented, your innovative proposal would lead to State-county joint ownership of the pipeline. Although such an arrangement would be legal and, perhaps, seemingly expedient, it would present serious problems. For instance, in the future the county will undoubtedly wish to provide water service to the three and one-half (3 1/2) mile interjacent area between the City of Cartersville and the State Park. This would entail numerous tie-ins to the State-county owned pipeline by private individuals. Whether the Department could authorize such tie-ins is open to question. For this reason as well as other practical problems which it would present, I recommend that any method of joint ownership of the proposed pipeline be abandoned.
It is my understanding that the county presently has only 50% of the funds necessary to extend the pipeline; and, should State participation be ruled out, the Park, which is critically in need of water, would not be served by the county water system until 1971. In my opinion the pipeline can be extended without the problems attended with a jointly owned system by simply having the Department advance the county $29,000.00 for future water service. The county could then install the pipeline and furnish the Department water at the normal metered rate or at a fixed monthly or yearly rate until the Department's initial investment were amortized. This could be done by agreement even though the amortization took a number of years.
It is generally held that the fixing of water rates is a legislative and governmental power, and one council may not, by contract or ordinance, deprive succeeding councils of this legislative or governmental power. Ga. Code Ann. 69-202; Glendale Estates v. Mayor and City Council of Americus, 222 Ga. 610 (1966). The prohibition extends to counties as well as municipalities. McElmurray v. Richmond County, 223 Ga. 47 (1967). Nevertheless, any agreement between the county and the State could extend beyond the terms of the present county commissioners since State-county agreements of this type are authorized for any period not exceeding fifty (50) years. Ga. Code Ann. 2-5901(a).

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OPINION 69- 337 (Unofficial)

To: Department of Industry and Trade

August 18, 1969

Re: The Department of Industry and Trade may expend funds for meals incidental to the promotion of tourism.

This is in response to your inquiry as to the authority of the Department of Industry and Trade to expend funds for a dinner meeting held for the purpose of discussing the Department's participation in the Tournament of Roses Parade, a project intended to strengthen its campaign to attract tourists and industries to the State.
As previously explained, the Department is authorized to expend funds:

" ... for the business meals and incidental expenses of bona fide industrial prospects or other persons who attend any meeting at the request of the department to discuss the location or development of new business, industry or tourism within the State." Ga. Code Ann. 2-5402(13).

Inasmuch as it was held to discuss the Department's tourism campaign, the purpose of the dinner was within the purview and authorization of the above-quoted constitutional amendment. It is, therefore, my opinion that the cost of the meals of those persons in attendance who were instrumental to the discussion may be paid by the Department.

OPINION 69- 338

To: State Superintendent of Schools

August 18, 1969

Re: Compensation of tax collectors and commissioners for collecting motor vehicle ad valorem taxes which is for school purposes shall not exceed 2 1/2%.

This is in reply to your letter of July 29, 1969, concerning the compensation to be paid tax collectors and tax commissioners for collecting that portion of ad valorem taxes on motor vehicles which is a tax for school purposes. You have asked more particularly whether or not the tax collector and tax commissioner should be compensated for the collection of ad valorem taxes

475

imposed on motor vehicles for school purposes according to the rate schedule set forth in Ga. Laws 1966, pp. 517, 521 (Ga. Code Ann. 92-1514) or according to the rate schedule of Art. VIII, Sec. XII, Par. I of the Constitution of the State of Georgia (Ga. Code Ann. 32-1106).
Ga. Laws 1966, pp. 517, 521 (Ga. Code Ann. 92-1514) after providing a rate schedule for the compensation of tax collectors and tax commissioners for services in collecting ad valorem taxes on motor vehicles says:

"The schedule of commissions provided above may be changed and altered by the agreement of the parties concerned by contract in those instances which require individual adjustment. Provisions of laws now in effect covering such compensation shall not be repealed by this Chapter."

It is important to note that Ga. Laws 1966, pp. 517, 521 (Ga. Code Ann. 92-1514) specifically provides that the rate schedule set forth by this law shall not have the effect of repealing any previously existing laws which cover the compensation of tax collectors and tax commissioners for their collection of ad valorem taxes. At the time of the enactment of Ga. Laws 1966, pp. 517, 521 (Ga. Code Ann. 92-1514) by authority of Art. VIII, Sec. XII, Par. I of the Constitution of the State of Georgia (Ga. Code Ann. 32-11 06) the compensation of a tax commissioner and tax collector for their services in collecting ad valorem taxes imposed for school purposes was a commission of 2 1/2% of all county school taxes. By specific provision in Ga. Laws 1966, pp. 517, 521 (Ga. Code Ann. 92-1514) the rate schedule for the compensation of collection of school taxes as provided in Art. VIII, Sec. XII, Par. I of the Constitution of the State of Georgia (Ga. Code Ann. 32-1106) was not repealed.
Therefore, a tax collector and tax commissioner shall be entitled only to a commission of 2 1/2% of all ad valorem taxes collected on motor vehicles for school purposes.

OPINION 69- 339 (Unofficial)

To: District Attorney

August 18, 1969

Re: District attorneys are not "peace officers" under Title 26, Georgia Code Annotated.

476

Thank you for your request as to whether a district attorney and his staff come within the scope of the definition of "peace officer" as provided in Ga. Code Ann. 26-40l(k).
That section provides, in part, that a "peace officer" is any person who " ... is vested by law with a duty to maintain public order or to make arrests for offenses...." The duties of district attorneys are found in Ga. Code Ann. 24-2908, which contains no language indicating that a district attorney is charged with maintaining public order or making arrests for offenses.
Therefore, it is my unofficial opinion that a district attorney does not fall within the definition of "peace officer" of Ga. Code Ann. 26-401(k).

OPINION 69-340 (Unofficial)

To: Sumter County Attorney

August 20, 1969

Re: Commissions of 10 per cent of collections over 90 per cent of the net tax digest may be distributed pro rata between the estate of the former Sumter County Tax Commissioner and his appointed successor.

This will acknowledge your letter requesting advice concerning the respective rights to commissions provided for by Ga. Code Ann. 92-5304 (Ga. Laws 1937-38, Ex. Sess., pp. 297, 298, as amended) as between the estate of the Tax Commissioner of Sumter County dying in December 1968, before commissions
under that section accrued in that month and his successor appointed until an election could be held.
Under the Act creating the office of Tax Commissioner for Sumter County, Ga. Laws 1925, pp. 744, 747-748, it is clear that the Sumter County Tax Commissioner is entitled to the commissions provided by Ga. Code Ann. 92-5304. See Bruce v. Couniy of Troup, 92 Ga. App. 786 (1955).
The question here is whether those commissions are to be divided between the estate of the fonner Commissioner and his appointed successor as provided by Section 5 of the Act creating the office or as provided by Ga. Code Ann. 89-830 (Ga. Laws 1933, pp. 78, 92).
Ga. Code Ann. 89-830 was enacted prior to the provision for commissions under Ga. Code Ann. 92-5304. Moreover, a reading of the Act from which Ga. Code Ann. 89-830 was taken

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demonstrates that it has no application to the commissions provided for by Ga. Code Ann. 92-5304 in this setting. Ga. Code Ann. 89-830 is the codification of Section lO(c) of Ga. Laws 1933, p. 78, and the uncollected taxes therein referred to are those uncollected at the time of the accounting provided for by Section 10 of the Act. Since the commissions here accrued prior to the date provided for accounting by the Tax Commissioner, I am of the opinion that Ga. Code Ann. 89-830 has no application to the question presented here.
Therefore, the provisions of Ga. Laws 1925, pp. 744, 745, Section S(b), creating the office of Tax Commissioner for Sumter County are controlling as to the division of the commissions allowed under Ga. Code Ann. 92-5304. That local Act provides that the person appointed or elected as successor to the office is entitled to a "pro rata part of the compensation accurring [sic] to said office for the time he serves." The division between the estate and the appointed successor is to be made according to that provision.

OPINION 69- 341 (Unofficial)

To: ClerK, Douglas Superior Court

August 20, 1969

Re: Clerks fees for incorporation, etc.

This will acknowledge your letter dated July 28, 1969, whereby you inquired as to the correct fees which you, as the Clerk of the Court, should charge in connection with an incorporation.
Additionally, by said letter, you made reference to an Act of the Georgia General Assembly which authorizes you to charge an additional $.50 in all civil cases for the establishment and maintenance of a county law library and inquired as to its constitutionality.
Your attention is first called to Ga. Code Ann. 22-803(d)(2) which states, in part, that "Concurrently therewith, the incorporator or incorporators shall deposit with and pay to said clerk the fees of said clerk for his services in said case. to wit, $15 .00." (Emphasis added.)
Pursuant to Ga. Code Ann. 22-803(d)(l), the Clerk is to receive from the incorporator or his attorney, the original and two (2) conformed copies of the documents of incorporation. Additionally, by Ga. Code Ann. 22-803(e), one of the duties of the Clerk concerning said documents of incorporation is that he

478
" ... shall forthwith deliver to the incorporator or incorporators or his or their attorney the original and one certified copy of said documents of incorporation, ...."
Thus, it is my unofficial opinion that the fee of $15.00 provided for in Ga. Code Ann. 22-803(d)(2) includes all the services required of the clerk in connection with the incorporation, including the certifying of the conformed copies of the documents of incorporation.
Also, in your letter, you stated that you have been charging $.50 over and above each suit filing fee pursuant to an Act of the General Assembly of Georgia in order to purchase a law library for use in the Douglas County Courthouse. You stated that you have received criticism for charging this additional $.50 and have been told that it is illegal for several reasons. You further requested an opinion of this office as to the legality of this additional charge of $.50.
Your attention is called to Ga. Laws 1968, Vol. II, p. 2292 (Act No. 737), whereby a law library is authorized for counties having a population of not less than 16,700 nor more than 16,800 according to the 1960 U.S. Census. Douglas County, according to the 1960 Census, had a population of 16,741. Furthermore, said Act authorizes the additional charge of $.50 in civil cases in order to establish and maintain such libraries.
In answer to your second question, it is well established in the forensic system of Georgia that all statutes enacted by the General Assembly are presumed to be constitutional until the contrary appears. Brunswick Peninsular Corporation v. Daugherty, 203 Ga. 454, 456 (1948) and Krasner v. Rutledge, 204 Ga. 381, 382 (1948). Also, the Courts of Georgia have held that a statute will
not be declared unconstitutional in adoubtful case and only when
the repugnancy between the statute and the Constitution is clear and palpable will such a statute be declared unconstitutional. Franklin v. Harper, et al., 205 Ga. 779, 790 (1949).
Therefore, in view of the above-stated principles of statutory construction, it would be a presumption on my part to question or to comment on the constitutionality of said Act 737 since said Act is presumed to be constitutional until a Court declares it otherwise.

479

OPINION 69- 342 (Unofficial)

To: State Water Quality Control Board

August 20, 1969

Re: Corporations granted dredging permits or licenses by the State are subject to the provisions of the Georgia Water Quality Control Act.

This is in reply to your letter of August 11, 1969, requesting an unofficial opinion as to the position the State Water Quality Control Board should take in reference to dredging permits or leases granted by the State Mineral Leasing Commission to corporations for mining sand and fill mat~rial. You note in your letter that without certain control practices to govern disposal of soil and waste washings, various dredging methods and excavation procedures can produce serious water pollution problems.
There appears to be no State law excluding lessees of State lands from coverage under the Georgia Water Quality Control Act, Ga. Laws 1964, p. 416 et seq., as amended. Section 3(e) of said Act defines "person" as:

" ... any individual, corporation and partnerships and other unincorporated associations and may extend and be applied to bodies, politic and corporate."

Therefore, it is my unofficial opinion that the State Water Quality Control Board has the authority under the Georgia Water Quality Control Act to control the pollution practices of corporations who have been granted dredging permits or leases by the State.

OPINION 69-343 (Unofficial)

To: City Attorney, Warner Robins

August 21, 1969

Re: A city may not contract to purchase land from corporation in which a member of the city council is a principal stockholder.

You advise that your City is presently expanding its Recreation Department and desires to acquire approximately twenty acres of land for recreational purposes. The land is presently owned by a corporation in which a member of your City Council owns a fifty

480
percent interest. You wish to know whether or not the City may acquire this land by negotiation from the corporation or whether the City must proceed by some other manner such as condemnation.
As you point out in your letter, the Supreme Court of Georgia has held that a contract between a city and a construction company, in which a member of the city council was a large stockholder, was absolutely null and void regardless of the absence of any statute. The Supreme Court held that the doctrine was based upon principles of reason, morality and public policy. Montgomery v. City of Atlanta, 162 Ga. 534(2) (1926);Hardy v. Gainesville, 121 Ga. 327 (1904). In a similar case involving a contract for the sale of a truck by the mayor to his city, the Supreme Court again voided the contract even though the mayor did not vote for the contract's approval, did not exercise any influence in procuring the vote of approval and although the price was fair, free from fraud and was based on the lowest and most advantageous bid submitted. Trainer v. The City of Covington, 183 Ga. 759 (1937).
We are aware that the General Assembly of Georgia has enacted legislation establishing criminal penalties for certain offenses which include a local government officer or employee selling personal property to a political subdivision. Ga. Code Ann. 26-2306(b). This section of the 1968 Criminal Code of Georgia was taken from a previous law dealing with primarily the same subject. Ga. Laws 1964, p. 261 (Ga. Code Ann. Ch. 26-50a). The legislation only sought to provide criminal penalties while the above Supreme Court decisions are concerned with the civil aspects of the contract. In the absence of contrary authority, we believe the above cases are representative of the attitude of the Georgia Supreme Court in this area, particularly so in light of the strong language employed by that Court in the reported decisions.
It is therefore our unofficial opinion that a city may not contract to purchase land from a corporation in which a member of the city council is a principal stockholder.

481
OPINION 69-344 (Unofficial)
To: United States Department of Agriculture August 21, 1969
Re: Counties may request Federal Government to administer construction contracts in watershed projects under P. L. 566 if such request is first approved by State Soil and Water Conservation Committee.
This is in reply to your letter in which you inquired whether the Bacon County Board of Commissioners of Roads and Revenue possesses authority to request the Federal Government to administer construction contracts in connection with the Ten Mile -Briar Creek Watershed project.
Your letter states that the Altamaha Soil and Water Conservation District and Bacon County, Georgia, are the co-sponsoring local organizations of this project, to be conducted under authority of the Watershed Protection and Flood Prevention Act (Public Law 566). The land rights for the project will be acquired by Bacon County.
The power of eminent domain is granted to counties of this State by Ga. Code Ann. Ch. 36-14 for the purpose of instituting and accomplishing the completion of small watershed projects under any applicable act of the State of Georgia or of the United States.
Section 5(2) of P. L. 566 provides that the Secretary of Agriculture, when requested to do so by the local organization, may enter into construction contracts for watershed structures.
The State Soil and Water Conservation Committee is empowered by Ga. Code Ann. 5-181 0(7) to formulate such rules and regulations and to exercise such powers and perform such duties as necessary to implement the administration of the Watershed Protection and Flood Prevention Act. That agency must therefore receive, review and approve or disapprove applications for assistance under said Act.
In view of the foregoing, it is my opinion that counties of this State may request Federal administration of construction contracts under P. L. 566 if such request is first approved by the State Soil and Water Conservation Committee.

482

OPINION 69-345 (Unofficial)

To: Coordinator of Highway Safety

August 22, 1969

Re: The 1969 enactment requiring treatment of Georgia motor-vehicle license plates with a retro-reflective material calls for treatment of entire facial surface.

A 1969 enactment of the General Assembly has the effect of amending Ga. Code Ann. 68-214 so as to provide that:

"The face of the license plate to be displayed shall be treated completely with a retro-reflective material which will increase the nighttime visibility and legibility of the plate." Ga. Laws 1969, pp. 266, 269.

You have requested my opinion as to whether the enactment in question requires the treatment of the entire facial area of the license plate, or whether the requirements will be met by a treatment of the embossed numerals and letters appearing thereupon.
The general rule of statutory construction which prevails in this State is that words and language appearing in a statute will be given its ordinary significance. Ga. Code Ann. 102-102(1). An examination of various authorities does not indicate that the phrase "face of the license plate" has any peculiar, technical or artistic meaning.
Additionally, the law provides that in statutory construction a diligent effort shall be made to determine the intention of the General Assembly. Ga. Code Ann. 102-102(9). In so doing we are allowed to consider the remedy which the legislation was designed to effect. In the present case, it is my opinion that the purpose of this legislation was to enhance the visibility of motor-vehicles by providing a reflective surface of greater visibility than that presently provided by non-reflectorized license plates.
The ordinary significance of the words "face of the license plate" is the facial surface of the plate. Consequently, it is my opinion that the legislature intended and did provide for the treatment of the entire surface of the plate. Had the legislature intended to limit the treatment to the numerals and/or embossments appearing on the face of the plate, it would have done so in language clearly and simply expressive of that intention.

483

OPINION 69-346

To: Comptroller General

August 22, 1969

Re: FNMA Participation Certificates.

Ga. Code Ann. 56-310 requires foreign and alien insurers to deposit with the Treasurer of the State of Georgia securities eligible for the investment of capital funds in .certain stated amounts. These securities are held for the protection of the insurers' policyholders in Georgia and others in Georgia entitled to the proceeds of their policies.
Ga. Code Ann. 56-1005(3)(d) allows capital funds to be invested in the securities provided for under Ga. Code Ann. 56-1009, to wit, bonds, notes, warranties and other evidence of indebtedness which are direct obligations of the Government of the United States of America or for which the full faith and credit of the Government of the United States of America is pledged for the payment of principal and interest.
Ga. Code Ann. 56-1005(3)(e) allows capital funds to be invested in the securities provided for under Ga. Code Ann.
56-1010, to wit, loans guaranteed as to principal and interest by the Government of the United States of America, or by any agency or instrumentality thereof, to the extent of such guaranty.
The Federal National Mortgage Association (hereinafter FNMA) has issued certain participation certificates pursuant to the Federal Assets Liquidation Trust. The participation certificates represent beneficial interests in certain obligations subject to the trust. These obligations are owned and held by various federal agencies including the Farmer's Home Administration of the Department of Agriculture, the Department of Health, Education and Welfare, the Department of Housing and Urban Development, the Veteran's Administration and the Small Business Administration. All of the above governmental agencies have conveyed in trust to FNMA all of their right, title and interest in these obligations. The obligations .are held in trust by FNMA for payment of the participation certificates. Further, each of the Federal agencies has guaranteed that all obligations subject to the Trust will be paid in accordance with their tenor.
Additionally, FNMA has guaranteed timely payment of the principal and interest of the participation certificates. The amount of participation certificates that can be issued is limited to an amount not greater than the aggregate of the outstanding principal balance of the obligations subject to the Trust.

484
The Attorney General of the United States, in an official opinion dated September 30, 1966 and found in 42 Op. Atty. Gen. 29 (1966) has held that the guarantee by FNMA of these participation certificates)brings into being a general obligation of the United States backed by the full faith and credit of the United States.
You have requested that I review this opinion and give my official opinion on whether or not the participation certificates described herein qualify as authorized securities under the Georgia Insurance Code and can be accepted for deposit under Ga. Code Ann. 56-310.
By the provisions of the Housing and Urban Development Act of 1968 (12 U.S.C. 1716 et seq.) the former FNMA was partitioned into the present Federal National Mortgage Association (FNMA) and the Government National Mortgage Association. 12 U.S.C. 1716b. For the purposes of this opinion, the present FNMA will be designated the Corporation and the present GNMA will be designated the Association.
The Association is a governmental agency in the Department of Housing and Urban Development with its principal office in the District of Columbia. 12 U.S.C. 1217(a)(2)(A). The Corporation became a government-sponsored corporation owned by private investors. 12 U.S.C. 1716b.
The Association rthe governmental agency) has succeeded to the duties of issuing the certificates and acting as trustee for the Trust under which the participation certificates were issued. 12 U.S.C. 1717(c). Under the Housing and Urban Development Act of 1968, the various federal agencies which may participate in these trusts are authorized to guarantee to the trustee the timely payment of any obligations subjected to the trust. 12 U.S.C. 1717(c)(2). Also, the Association is specifically authorized to guarantee the participation certificates. 12 U.S.C. 1717(c)(l ). The necessary authorization for appropriations is also given. 12 U.S.C. 1717(c)(5).
I have reviewed the official opinion of the Attorney General of the United States which held that the [former] FNMA guarantee of a participation certificate brings into being a general obligation of the United States backed by its full faith and credit and I have not been able to find any authority which would convince me that his conclusion is no longer valid. In addition, since the Housing and Urban Development Act of 1968 created a specific Federal governmental agency to administer the Trust and authorize the various federal agencies to guarantee the original obligations and the participation certificates as set out in this opinion, an even

485

stronger conclusion can now be reached that these guarantees bring into being a general obligation of the United States backed by its full faith and credit.
Based on the foregoing discussion and conclusions, it is my official opinion that the participation certificates described in this opinion are authorized securities and may be accepted for deposit under Ga. Code Ann. 56-310.

OPINION 69-347

To: State Highway Department

August 22, 1969

Re: The General Assembly is vested with power to dispose of State property.

This is in reply to a request from Mr. J. E. Brown, Right of Way Engineer, State Highway Department, to furnish instructions concerning the required procedure to be followed in transferring State property. The correspondence indicated that the property in question was transferred to the State of Georgia by the City of Atlanta for the consideration of one dollar ($1.00). It was further stated that the particular parcel of land was located at the Atlanta Airport and was now being used as an aerial photographic laboratory. The State Highway Department is contemplating switching its base of operation in aerial photography to the Fulton County Airport and, according to the correspondence, will consequently have no further need for the land or buildings located thereon.
One of the clauses in the deed from the City of Atlanta provided the following, to-wit:

"As a part of the consideration to this conveyance, the grantee herein agrees that the grantor shall have the right and option to purchase the above described land in the event it is determined at any time to be surplus State property in accordance with the provisions of the law relative thereto. The price shall be the fair value of the improvements thereon at the time of such determination as may be arrived at by a fair and impartial appraisal. Said right and option to purchase given the grantor herein shall be accepted or rejected within ninety (90) days from the date said property is declared to be surplus."

The request from Mr. Brown asks for the procedure to be

486
utilized in conveying this property back to the City of Atlanta and any legal prohibitions or technicalities that may exist.
The General Assembly is vested with the power to dispose of the property belonging to the State and no other agency of government has that power unless so authorized by the General Assembly. Western Union Telegraph Company v. Western and Atlantic Railroad Company, 142 Ga. 532, 534 (1914). The General Assembly in certain instances has set up procedures for the disposition of public property. The Governor, acting for all officers of the State, has authority to dispose of unserviceable property belonging to the State. (Ga. Laws 1882-83, p. 126; Ga. Code Ann. 91-804, 91-805.)
Public property becomes unserviceable, so as to empower the proper authority to sell same, wnere such property cannot be beneficially or advantageously used under all the circumstances. To be unserviceable, it is not required that the property in question be practically without value, but that it cannot by used advantageously by that segment of the Government. Malcolm v. Fulton County, 209 Ga. 392 (1952).
Where property is determined to be unserviceable or surplus, reference should be made to the definitional section of the State Properties Control Code for the definition of "property." (Ga. Laws 1964, p. 146; Ga. Code Ann. 91-102A):
"(d) The word 'property' shall mean: ... (v) any State-held real property under the control of any State department, authority, agency, official, or other instrumentality, when the head of such instrumentality, with approval of the Governor, declares such property surplus and transfers control thereof to the Commission."
Before the clause in the deed can become effective, the property must be declared surplus, not only to the Highway Department but to the State of Georgia, including all of its departments, agencies, officials, and other instrumentalities. Therefore, in view of the provision in the State Properties Control Code as to approval by the Governor, it is my opinion that should the Highway Department consider this property to be surplus and no longer needed by the Department, then you, as Chief Administrative Officer, should write the Governor to this effect. According to the legal provisions cited herein, it appears that the Governor is the proper authority to make a determination that the property is either surplus or unserviceable. However, as stated herein, any conveyance back to the Citv of Atlanta must be authorized by the General Assembly.

487

OPINION 69-348 (Unofficial)

To: Mayor, City ofWarrenton

August 22, 1969

Re: A city may not, except by express legislative authority, engage in the business of selling beer.

This is in reply to your letter of August 6, 1969, wherein you asked whether an opinion dated January 28, 1948, of the then Attorney General (Op. Atty. Gen. 1948-49, p. 260) holding that a city may not engage in the business of selling beer, except by express legislative authority is still valid.
Please find enclosed a copy of an unofficial opinion of this office dated June 6, 1967 [Op. Atty. Gen. 67-200], holding that neither a municipality nor a county may have a pecuniary interest in the operation of any establishment selling distilled spirits. It is my opinion that the result reached in the 1948 opinion is still valid.
OPINION 69-349

To: Employees' Retirement System of Georgia August 22, 1969

Re: Application of Employees' Retirement System of Georgia to tax commissioners, collectors and receivers.

This is in response to your July 24, 1969, request for my opinion on several questions pertaining to Ga. Laws 1969, p. 1013.
Without discussing in detail the provisions of the relevant law prior to and after the 1969 Act, it is sufficient to say that the present intention of the General Assembly, expressed in the 1969 Act, rather clearly is to enable officials and employees of county tax offices who were not previously eligible for participation in the Retirement System (because of an August 1, 1958, cut-off date) to become members of the Retirement System if certain specific requirements or conditions precedent are completed within certain time limitations. Ga. Laws 1958, pp. 637-39; 1962, pp. 54, 58; 1963, pp. 41-42; 1969 p. 1013. For the applicable rules of judicial construction, see Ga. Code Ann. 102-102(9); Lamons v. Yarbrough. 206 Ga. 50(1) (1949); Boyles v. Steine. 224 Ga. 392, 395 (1968).

488
Your first question is whether the 1969 Act is effective to carry out this intention because it does not expressly authorize the State Revenue Department to make the necessary employer's contributions in behalf of such officials and their employees.
The 1969 Act contains no such express authorization and direction. Pursuant to provisions of the 1958 Act, county tax offices are "declared to be adjuncts of the State Revenue Department," officials and employees of such offices either are authorized or required (depending on the date service commenced) to become members of Division "A" of the Employees' Retirement System, and the State Revenue Commissioner is "authorized and directed to pay from the funds appropriated for the operation of the State Revenue Department, the employer contributions required by the Retirement Act" and to pay from the same funds "a regular monthly amount sufficient to amortize the prior service values of such members within a period of not more than 20 years." The 1958 Act denies coverage under the Retirement System of tax offices which did not establish a merit system of employment on or before August 1, 1958 Ga. Laws 1958, pp. 637-39.
Your first question is whether the 1969 Act is effective to carry out this intention because it does not expressly authorize the State Revenue Department to make the necessary employer's contributions in behalf of such officials and their employees.
The 1969 Act contains no such express authorization and direction. Pursuant to provisions of the 1958 Act, county tax offices are "declared to be adjuncts of the State Revenue Department," officials and employees of such offices either are authorized or required (depending on the date service commenced) to become members of Division "A" of the Employees' Retirement System, and the State Revenue Commissioner is ''authorized and directed to pay from the funds appropriated for the operation of the State Revenue Department, the employer contributions required by the Retirement Act" and to pay from the same funds "a regular monthly amount sufficient to amortize the prior service values of such members within a period of not more than 20 years." The 1958 Act denies coverage under the Retirement System to tax offices which did not establish a merit system of employment on or before August 1, 1958. Ga. Laws 1958, pp. 637-39.
The purpose of the 1962 Act obviously was to remove any legal and practical difficulties which might arise with respect to a county tax office which was not covered by the Retirement

489
System (because no merit system was established by the 1958 deadline) but which nonetheless remained, according to the 1958 Act, an adjunct of the State Revenue Department. To effectuate this purpose, the General Assembly declared in the 1962 Act that any county tax offices which had not by February 13, 1962, "by proper action on their part, provided means by which the ... Tax Office or employees therein could become members of this System, shall ... not be deemed to be adjuncts of ... the State Revenue Department, nor shall any position or employee within such . . . County Tax Office be deemed State employees or otherwise eligible for membership in the System." Ga. Laws 1962, pp.54,58.
The 1969 Act makes no express reference to the 1962 Act. Thus, the legal question becomes one of whether or not the General Assembly by the passage of the 1969 Act intended to repeal by implication the February 13, 1962, cut-off date in the 1962 Act and to extend such cut-off date to the alternative times set forth in the 1969 Act.
A construction of the 1969 Act favoring such an implied repeal is necessary to give effect to the 1969 Act since the legislative purpose clearly expressed therein would be defeated unless the State Revenue Department is authorized and directed to make employer contributions in behalf of officials and employees of tax offices which are not now covered by the Retirement System, are eligible to comply, and do comply with the conditions of the 1969 Act. Ga. Code Ann. 40-2501(15),(16). A construction against application of the doctrine of implied repeal could frustrate the 1egislative purpose of the 1969 Act by creating arbitrary classifications between persons who would and who would not be eligible for participation in the Retirement System, which classifications might raise questions of constitutional dimensions.
A statute should not be construed in such manner as to defeat the clearly expressed legislative intent or so as to cause it to come into conflict with the Constitution, unless such construction cannot be avoided. Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656 (1931); Truman v. Mabry, 221 Ga. 153, 154 (1965); CTC Finance Corp. v. Holden, 221 Ga. 809, 810 (1966).
In the present instance, no rule of construction would seem to require a court to hold that the legislative intent must be frustrated. I therefore am of the opinion that, after careful consideration of the 1969 Act in light of the law it was intended to amend, the courts would hold that the State Revenue Department is authorized and directed to make employer

490
contributions in behalf of officials and employees of county tax offices which comply with all the conditions precedent set forth in the 1969 Act within the applicable time limitations expressly provided for therein. The doctrine of repeal by implication, upon which my opinion is based, is discussed in detail in Nash v. National Preferred Life Ins. Co., 222 Ga. 14, 21 (1966). I further am of the opinion that the tax offices which may take advantage of the 1969 amendment are those to which the tax commissioner, tax collector or tax receiver has been elected subsequently to August 1, 1958. I believe a former tax collector who was under the Retirement System, whose employees were eligible for coverage, and who has been elected to the newly created office of tax commissioner should comply with the provisions of the 1969 Act to obviate any legal questions which could arise should he fail to do so.
Your next question concerns the use by the General Assembly in the 1969 Act of the words "prior service credit" to refer to that class or type of service credit which must be paid for by the member in an amount .equal to "the regular employer and employee contributions from the first day of his term (or the first day of employment, in the case of employees), plus six per cent interest." According to the statutory definitions set forth in the Act governing the Retirement System, that class of service credit which may be awarded to a member free of charge down to July 1, 1953, is known as "prior service" credit whereas credit for service rendered after the August 1, 1958, eligibility date set forth in the 1969 Act, and which is paid for by the member, customarily is referred to as "membership service" credit. Ga. Code Ann. 40-2501(7)(8).
The General Assembly has provided that the words "prior service" used in any Act affecting the Retirement System shall have the meaning set forth in the statutory definitions ''unless a different meaning is plainly required by the context" of the legislative declaration. Ga. Code Ann. 40-2501. I am of the opinion a court would hold that the words "prior service," used with reference to service after August 1, 1958, credit for which must be paid for by the member, with interest, must be construed to mean "membership service" as customarily used throughout the amended Act governing the Retirement System.

491

OPINION 69-350

To: State Superintendent of Schools

August 22, 1969

Re: State Superintendent of Schools has no authority to allot funds derived from State taxes to local school systems for the support of the school lunch program.

This responds to your request for my official opinion as to whether or not the 1969 amendment to the school lunch provision of the Minimum Foundation Program of Education Act, Ga. Laws 1969, p. 811, gave you authority to allot to local systems the funds for school lunch programs provided by the 1969 Supplementary Appropriations Act, Ga. Laws 1969, p. 42.
The 1969 Act amending the school lunch provisions of the Minimum Foundation Program of Education Act (Ga. Laws 1969, p. 811) does not specify a date upon which it shall be effective. Having been approved by the Governor on April 25, 1969, it became effective on July 1, 1969. Ga. Laws 1968, p. 1364, 1365. Accordingly, it could not have provided authority for the expenditure of funds appropriated for the fiscal year ending June 30, 1969.
No authority to allot the school lunch funds during the fiscal year ending June 30, 1969, could have existed pursuant to Section 29 of the Minimum Foundation Program of Education Act as it appeared before July 1, 1969. Ga. Laws 1964, p. 3, 29; Ga. Code Ann. ~ 32-629. It is quite clear that the Supreme Court of Georgia would have held that Section unconstitutional if, in fact, it already had not done so. Wright v. Absalom, 224 Ga. 6 (1968). The question of whether the Wright case involved only an attack on the then-existing appropriations act or also included an attack on Section 29 may provide stimulus for theoretical legal debate but is irrelevant from a practical standpoint since the Wright case leaves no doubt of the Court's view of the Constitution prior to ratification of the Amendment allowing State taxation for school lunch purposes. Ga. Laws 1967, p. 940, ratified Nov. 5, 1968, proclaimed Dec. 2, 1968.
Authority to allot the funds pursuant to the school lunch provision as it existed prior to July 1, 1969, might have existed if you had been able to maintain successfully that the ratification of the Amendment to the Constitution allowing State taxation for school lunch purposes had the legal effect of breathing life into Section 29, theretofore unconstitutional. However, that argument would have failed since the Supreme Court consistently has held

492

that the constitutionality of an act must be determined on the date of its passage; that if an act is unconstitutional on the date of its passage, it remains forever void; that an unconstitutional law is no law at all and is as void as if never enacted; and that such a law can be made effective only by reenactment. Jones v. McCaskill, 112 Ga. 453, 456 (1900); Wilkins v. Mayor & Aldermen of Savannah, 152 Ga. 638, 643 (1921); Christian v. Moreland, 203 Ga. 20, 21 (1947); Grayson-Robinson Stores, Inc. v. Oneida Ltd., 209 Ga. 613, 617 (1953); Stewart v. Davidson, 218 Ga. 760,764 (1963).
Based upon the foregoing authorities, I regretfully must confirm in writing my opinion given to you orally in May of 1969 that neither the 1969 amendment to the school lunch section of the Minimum Foundation Act or the section as it appeared prior to July 1, 1969, was effective to give you authority to allot to local
systems the funds for school lunch programs provided by the 1969 Supplementary Appropriations Act for the fiscal year ending June 30, 1969.

OPINION 69-351 (Unofficial)

To: Private Inquirer

August 22, 1969

Re: House Bi1161, 1969 session, defines new and separate offenses and neither repeals Ga. Code Ann. Ch. 26-21, as amended Criminal Code of Georgia, nor amends Ga. Code Ann. Ch. 26-63 (1933), as amended.

This will acknowledge receipt and answer your letter of July 18, concerning the relationship of House Bill 61, 1969 session, to the Criminal Code and the pre-existing law. As you are aware, House Bill 61 became effective on April 2, 1969.
House Bill 61 defmes and makes punishable new offenses relative to the making available to minors of obscene materials. The enactment became effective April2, 1969. An examination of the enactment as the same is on file with the Secretary of State does not reveal any reference to, or intention to amend, the then existing law. An examination of the enactment does not reveal any intention to incorporate this punishable criminal offense into the Criminal Code of Georgia.
The new Criminal Code and Ga. Code Ann. Ch. 26-63 (1933) both define in varying terms offenses relative to the distribution of obscene materials. The new enactment makes specially punishable

493

various aspects of the distribution with respect to minors. It is the writer's unofficial opinion that there was no repeal of Ga. Code Ann. Ch. 26-63, as amended, by House Bi1161.
While it is certainly desirable that all additions to the body of statutory law which cover the subject-matter area of the Criminal Code be engrossed into the Criminal Code, there is no requirement to this effect. Consequently, House Bill 61, as enacted, is not a part of the Criminal Code per se. Its placement by the unofficial publishers of the annotated Code is a matter entirely within the discretion of such publishers.

OPINION 69- 352 (Unofficial)

To: Private Attorney

August 25, 1969

Re: A lease of land for five years or longer which does not by its own terms purport an intention to convey a lesser interest will be presumed to convey an estate for years and as such passes as realty.

Your letter of the nineteenth inst., to the Department of Revenue, State of Georgia, wherein you requested advice as to whether or not a five year lease is real or personal property was forwarded to this office for response.
A lease for five years or longer which does not by its own terms purport an intention to convey a lesser interest will be presumed to convey an estate for years (Ga. Code Ann. 61-101; Westinghouse v. Witherbee, 203 Ga. 483 (1948)). An estate for years in land passes as realty (Ga. Code Ann. 85-801).
Therefore, it is my unofficial opinion that a lease of land for five years or longer which does not by its own terms purport an intention to convey a lesser interest will be presumed to convey an estate for years and as such passes as realty.

OPINION 69-353 (Unofficial)

To: State Right-of-Way Engineer

August 25, 1969

Re: Purchase price for right-ofway lands may be reduced where all of land described in deed was not conveyed.

This is in reply to your request for my unofficial opinion on

494

whether the State Highway Department can sue for a reduction of

the purchase price for land obtained by a deed which describes the

property by courses and distances and incorporates a plat of a

survey which was made a part of the description when it later

appears that the grantor has no title to a portion of the tract

contained within the described boundaries.

.

It is my unofficial opinion that where a certain tract of land is

described in a warranty deed by definite boundqnes and it later

appears that the vendor has no title to a portion of the tract

contained within the descri.bed boundaries, this is a defect in the

vendor's title and pursuant to Ga. Code Ann. 29-202, the

purchaser is entitled to a reduction of the purchase price according

to the relative value of the land which was lost. It is my understanding that the factual situation out of which

this question arose is as follows. In 1968 the State Highway

Department obtained a right-of-way deed from a certain company

in a county in Georgia. This right-of-way was to be used for a

Federal-aid project to be constructed in that county. The property

conveyed by this deed was described by courses and distances and

was more specifically described by a plat of a survey which was

incorporated into the deed and recorded in conjunction with this

deed. In consideration of this conveyance, the State Highway

Department paid to the grantor a lump sum which was based on

the State Highway Department's appraisal which was figured on

the total land area shown on the survey plat. Subsequent to this

transaction, the State Highway Department discovered that

approximately one-half of the area covered by the deed

constituted existing right-of-way which had already been procured

by a conveyance which was executed prior to the conveyance

under consideration.

The appellate courts of Georgia have held that when a certain

tract of land is described in a deed by defmite boundaries and it

later appears that the grantor has no title to a portion of the tract

contained within the described boundaries, then this is a defect in

the vendor's title and the vendee-grantee may sue for rescission of

the sale or in the alternative, may bring an action for reduction of

the purchase price. See Lawton v. Byck, 217 Ga. 676 (2) (1962);

Norris v. Coffee, 206 Ga. 759 (1) (1950). This alternative, either

to sue for rescission of the entire contract or sue for reduction of

the price according to the relative value of the land so lost, is

derived from the provisions of Ga. Code Ann. 29-202.

If the State Highway Department chooses merely to seek a

reduction in the purchase price, it would, in effect, be seeking a

reformation of the deed in equity. However, the Supreme Court

495
has held in the case of Crim v. Alston, 169 Ga. 852, 855 (1929), that:
" ... 'before equity will reform a written instrument, it must appear that there was a valid agreement sufficiently expressing the real intent of the parties, and that the written instrument failed to express such intent, and that this failure was due to mutual mistake.'..."
This principle was earlier espoused in the case of Trout v. Goodman, 7 Ga. 383 (1849), at p. 385:
" . . . though the land be sold in gross, for so much, be it more or less, yet if it be evident that both parties were mistaken in a material point, as to the lines by which the vendor held, and there was no express agreement on the part of the purchaser, to take the risk upon himself, a Court of Equity will grant relief, by correcting the error in the boundary. And the reason assigned is, because the buyer does not get the specific thing he contracted for." (Emphasis by the court.)
Therefore, the State Highway Department must allege that there was a mutual mistake in order to succeed in recovering a portion of the purchase price. The courts have defined "mutual mistake" in relation to reformation to mean:
" . . . a mistake shared by, or participated in by, both parties, or a mistake common to both parties, or reciprocal to both parties; both must have labored under the same misconception in respect of the terms and conditions of a written instrument, intending at the time of the execution of the instrument to say one thing and by mistake expressing another, so that the instrument as written does not express the contract or intent of either of the parties.... A mutual mistake is one in which both parties participate by each laboring under the same misconception.'' See Lawton v. Byck, supra, at 681 and 682; also see Scurry v. Cook, 206 Ga. 876, at 879 (1950).
It is my unofficial opinion that reformation based on mutual mistake of the parties in this case would be warranted even in case there is some evidence of negligence on the part of the State Highway Department in failing to ascertain the extent of property

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which it already owned. The Supreme Court has held in the case of Mulkey v. Spicer. 202 Ga. 592, 594 (1947), that:

"Reformation may be granted even in cases of negligence by the party complaining, if it appear[s] that the other party has not been prejudiced thereby." See also Green v. Johnson. 153 Ga. 738 (1922).

It is believed that the above principle of law is applicable to the situation under consideration since the purpose of the reformation of this deed is merely to make it speak the truth.
Furthermore, it is concluded that this conveyance, in effect,
should be viewed as creating a constructive trust:

"A constructive trust ordinarily arises in favor of the rightful owner of property where, through a mistake of fact, title to, and apparent ownership of, property rightfully belonging to such person is obtained by another." See 89 CJ.S. Trusts, 143, p. 1029. "Likewise, one who receives money to which he is not entitled, through mistake of fact, may be treated as a trustee thereof for the rightful owner; ..." See 89 C.J.S. Trusts, supra.

Therefore, the value of the property to which the grantor failed to have ownership would be held by the grantor in trust for the grantee, in this case the State Highway Department.

OPINION 69-354

To: State Treasurer

August 25, 1969

Re: Reimbursement of judges for expenses incurred in attending institutes, seminars, etc.

This is' in answer to your letter of August 6, 1969, in which you seek advice regarding a request by a superior court judge of this State for reimbursement of expenses incurred while attending the National College of State Trial Judges at the University of Nevada.
Ga. Code Ann. 24-113 provides that judges of the courts of this State shall be reimbursed for expenses incurred while attending institutes, seminars, conferences, and other programs out of public funds. Such judges prior to attendance at any of the
above, "must obtain approval therefor from the governing

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authority of any county or municipality located in whole or in part within the jurisdiction of the court to which the applicant is attached.''
As to the question of which public funds are available for payment of said expenses, the above Code section states that "the expense of attendance shall be paid out of the public funds of such county or municipality, or out of the funds provided for the operation of the court involved." The question arises as to whether the phrase "funds provided for the operation of the court involved" refers to funds other than those of the county or municipality which granted the applicant's request for attendance at one of the above.
Keeping in mind that the construction of the language and words used in one part of a statute must be in light of the legislative intent as found in the statute as a whole, Williams, State Revenue Commissioner v. Bear's Den, Inc., 214 Ga. 240, 242 (1958), it is my official opinion that the legislature, in granting to counties and municipalities sole authority to approve such attendance, intended for the approving county or municipal authority to bear the expense incurred in connection with such attendance. Therefore, the judge should seek reimbursement from the governing authority which approved his attendance at said college.

OPINION 69-355

To: Safety Fire Commissioner

August 26, 1969

Re: Safety Fire Commissioner has authority to adopt rules and regulations pertaining to the safety and protection of the public at race tracks.

You have requested my official opinion as to the authority of the Safety Fire Commissioner to promulgate rules and regulations with respect to crash rails, spectator fences and other devices designed to protect the public at race tracks. You understand that some of the vehicles are operated on highly explosive fuels such as nitroglycerin, ethel alcohol, as well as highly flammable or explosive type petroleum fuels.
Section 17 of the Safety Fire Commissioner Act of 1949 authorizes the Safety Fire Commissioner to promulgate reasonable rules and regulations governing and regulating fire hazards in places of public assembly. Ga. Laws 1949, pp. 1057, 1064 (Ga. Code Ann. 92A-720).

498
In 1967, the Safety Fire Commissioner Act was substantially amended to provide more explicit direction to the Commissioner in certain areas. Ga. Laws 1967, p. 619. One of the amendments proclaims that certain buildings and structures may, because of construction or use, constitute a special hazard to property or to life and safety of persons on account of fire or panic caused by fear of fire. Race tracks are included in this classification. Ga. Laws 1967, pp. 619, 622 [Ga. Code Ann. 92A-710(a)(5)]. The amendment specifically directs the Commissioner to investigate and examine into construction techniques and properties of various construction materials, fire prevention and protective techniques and to determine and by rule provide what reasonable and practical protection must be afforded property and persons with respect to various precautions including, specifically, safety and protective devices. Ga. Laws 1967, pp. 619, 623-634 [Ga. Code Ann. 92A-710(c)].
Further, the 1967 amendment finds that certain highly flammable substances constitute a special hazard to property and to life and safety of persons because of the danger incident to their storage, transportation and handling. The substances include gasoline, kerosene and other flammable liquids similar to the liquids used as fuels on race tracks. Ga. Laws 1967, pp. 619, 624-625 [Ga. Code Ann. 92A-715(a)]. The Commissioner is directed to investigate the nature and properties of such highly inflammable substances and the known precautionary and protective techniques for their safe storage, transportation and handling and he is authorized to determine and by rule provide what precautionary and protective techniques are reasonable and practical measures for the prevention of injury to persons and property from the storage, transportation and handling of such highly inflammable and hazardous substances. Ga. Laws 1967, pp. 619, 625 [Ga. Code Ann. 92A-715(c)].
While it is difficult for me to state categorically that any regulation or rule you adopt is authorized under the above authority, it is my opinion that the Safety Fire Commissioner has the authority to adopt rules and regulations which pertain to the safety and protection of the public at race tracks so long as there is a relationship between the rules and regulations you adopt and the duties and responsibilities entrusted to you under the Safety Fire Commissioner Act.

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OPINION 69-356 (Unofficial)

To: Ordinary, Baker County

August 27, 1969

Re: A county coroner may not also be a deputy sheriff, but may be a city policeman.

This is in response to your request for an opinion as to (1) whether a deputy sheriff of the county may, while occupying such position, be elected to and serve in the office of coroner, and (2) whether a city policeman may, while occupying such position, be elected to and serve in the office of coroner.
Ga. Laws 1890-91, p. 102 (Ga. Code Ann. 89-103) provides:

"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; nor shall any commissioned officer be deputy for any other commissioned officer, except by special enactment."

Pursuant to the above-quoted Code section, a person legally commissioned as a deputy sheriff could not simultaneously be commissioned and serve as coroner of the county unless the legislature had specifically provided for same. Carter, et al. v. Veal, Commissioner, et al., 42 Ga. App. 88 (1930); see Op. Atty. Gen. 1958-59, p. 38. I do not find a special enactment by the legislature pertaining to Baker County on this subject.
With reference to a city policeman simultaneously occupying the office of coroner, I am not aware of any constitutional or statutory prohibition which would render the holding of these two offices illegal.

OPINION 69-357 (Unofficial)

To: Private Inquirer

August 28, 1969

Re: Political party failing to file registration statement required by Municipal Election Code at least sixty (60) days eefote primary shall not have its name or names of its candidates placed on any nomination petition, ballot or ballot label.

You have requested our unofficial opinion on whether or not a

500
legally qualified executive committee of your political party for your city exists which can call a city political party primary to fill city offices becoming vacant at the end of this year.
I understand that in 1967 an election was held in which all five (5) of the positions on the party's municipal executive committee were open. None of the incumbent members qualified to seek re-election to the committee and further, no one else qualified to seek election to it. Apparently, no registration statement of your committee has been filed with your city clerk.
Only a political party or a nonpartisan municipal executive committee may conduct a municipal primary. Ga. Code Ann. 34A-905. The notice of the primary must be issued by the municipal or other appropriate party executive committee at least twenty (20) days prior to the primary. Ga. Code Ann. 34A-70 1. Your letter seems to indicate, and for the purposes of this opinion we will assume, there is no other appropriate party executive committee under your party's rules or regulations which could publicly issue notice of the primary.
As we have pointed out above, apparently there has been no attempt to file a registration statement as required by the Georgia Municipal Election Code. The Code is clear that a political party failing to file this registration statement at least sixty (60) days before any primary at which it shall s(!ek to have candidates on the ballot shall not have its name or the names of its candidates placed on any nomination petition, ballot or ballot label. Ga. Code Ann. 34A-80l(c).
Based upon the above facts and statements of law, it is our unofficial opinion that at the present there is no legally qualified municipal executive committee of your party in your city which can call a primary to fill the city offices becoming vacant at the end of this year.
Your immedicate concern of course is how you may establish a legally qualified municipal executive committee of your political party. The Municipal Election Code provides that the party's State executive committee shall have the same power over municipal executive committees as it has over county party executive committees. Ga. Code Ann. 34A-803. The Georgia Election Code states that the membership of the committees shall be selected in the manner determined by the State executive committee. Ga. Code Ann. 34-902. It therefore appears that your party's State executive committee can determine the manner in which the membership of your municipal executive committee shall be selected.
As pointed out above, the party must file a registration

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statement under the Municipal Election Code at least sixty (60) days prior to the city party primary. Ga. Code Ann. 34A-80l(c). The primary must be held at least four (4) weeks prior to the general municipal election. Ga. Code Ann. 34A-701. Since your letter did not indicate the date on which the general municipal election is to be held, I am not able to advise whether sufficient time remains to comply with the Georgia Municipal Election Code.
However, you should note that the date of the municipal election can be specified by the charter of the municipality or by municipal ordinance. Ga. Code Ann. 34A-702.

OPINION 69-358

To: Commissioner of Revenue

August 28, 1969

Re: Patronage dividends are excluded from gross income.

This is in response to your recent letter concerning the taxation of patronage dividends. Assuming the payments made by Associated Groceries Co-op, Inc. to its member patrons are patronage dividends, they should be excluded from gross income.
In Brandon v. State Revenue Commissioner, 54 Ga. App. 62, 66 (1936), the court recognized that only those items which are in fact components of income can be included in gross income. In Undercofler v. Bessemer Auto Parts, Inc., 221 Ga. 61 (1965) which is a case that concerned patronage dividends, the court said:

"While Code Ann. 92-3107 defines gross income and lists certain items which shall not constitute gross income this section obviously does not purport to cover all situations which may arise. For instance, it does not recite that repayment of a loan to a creditor by its debtor is not
included in the gross income of such creditor. Yet no one would contend that amounts so received are gross income of the creditor for income tax purposes. The transaction at bar, like the repayment of money loaned, is merely the return to the taxpayer of its own money and is not included in its gross income."

Thus, in Undercofler v. Bessemor Auto Parts, Inc., 221 Ga. 61 (1965), the court recognized that patronage dividends are not a component of income and thus should be excluded from gross income.

502

According to the Articles of Incorporation and By-Laws of Associated Groceries Co-op, Inc., the corporation is at all times under a legal obligation to return all excess monies to its member patrons in the form of patronage dividends. The monies at no time belong to Associated Groceries Co-op, Inc. and thus, under the doctrine of Untercofler v. Bessemer Auto Parts, Inc., 221 Ga. 61 (1965), these patronage dividends cannot be included in the gross income of Associated Groceries Co-op, Inc.
It should be noted that this opinion is only applicable to the tax years preceding 1969. For the tax year of 1969 and subsequent years, corporate income tax will be determined by Federal Taxing Procedure as set forth in the Internal Revenue Code, the regulations thereunto, and Federal tax decisions.

OPINION 69-359

To: Commissioner of Agriculture

August 29, 1969

Re: Chickens remaining in the hands of the producer are "farm products" exempt from ad valorem taxation for the next year after their production.

This is in reply to your request for my opinion as to whether laying hens are taxable as a capital investment under Georgia laws. I understand that your inquiry is actually directed toward the question of whether laying hens are included within the definition of "farm products" so as to be exempt from ad valorem taxation under Ga. Code Ann. 92-201.
The General Assembly is authorized by Georgia Constitution, Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404), to exempt from taxation:

". . . farm products, including baled cotton grown in this State and remaining in the hands of the producer, but not longer than for the year next after their production."

This authority was exercised by the General Assembly by exempting farm products from taxation in Ga. Code Ann. 92-201 in substantially identical language to that contained in the constitutional authorization.
No definition of "farm products" is contained in either the above constitutional provision or in the statute. However, I enclose herewith copies of two unofficial opinions, Op. Atty. Gen. 1957, p. 285, and 1962, p. 481, issued by former Attorney

503

General Eugene Cook to the effect that cows and other livestock, chickens, eggs, and honey are "farm products" exempt from taxation.
Subsequent to the issuance of the two above opinions, Ga. Code Ann. 92-201 was amended (Ga. Laws 1965, p. 182) by adding after the words "but not longer than for the year next after their production," the following words: ";the word 'production' as applied to laying hens shall mean from the time that such laying hens come into production at age six months rather than when said laying hens are hatched."
The 1965 amendment to Ga. Code Ann. 92-201 did not purport to broaden the definition of "farm products," but was rather for the purpose of defining the term "production" as applied to laying hens. It is apparent that the General Assembly at the time of this amendment was of the view that laying hens were already included within the definition of "farm products."
It is my opinion that the term "farm products" is not limited to products of the soil, but also encompasses livestock and poultry, including laying hens, which are commonly regarded as agricultural products. Such products are exempt from taxation so long as they meet the other statutory criteria discussed above.

OPINION 69- 360

To: Director, State Department of Family and Children Services

August 29, 1969

Re: Transportation of juveniles committed to the custody of the Division for Children and Youth.

This is in response to your letter of August 20, 1969, in which you pose several questions concerning the responsibility of the Division for Children and Youth for the transportation of minors committed to it. In answer to your questions, your attention is called to Ga. Code Ann. 99-213(a) which provides, in respect to a delinquent child committed to the Division, that the court " ... shall assign an officer or other suitable person to convey such delinquent child to any facility designated by the Division..." and that the ". . . cost of conveying such child. . . to the facility designated by the Division shall be paid by the county from which such child is committed...." Therefore, it is my official opinion that Ga. Code Ann. 99-213(a) places the responsibility of transporting such juveniles to a place designated by the Division in a person assigned by the court with the cost therefor to be paid by

504
the county from which the juvenile is committed. In answer to your second question, it is my official opinion that
it is the responsibility (including the payment of the cost therefor) of the Division to transport juveniles which have been adjudged to be delinquent and committed to the Division from Regional Youth Development Centers to State Centers inasmuch as both Regional and State Centers are part of the total facilities of the Division which have been established for the care, treatment and rehabilitation of juveniles committed to the custody of the Division. See Ga. Code Ann. 99-211(d).
Finally, in answer to your third question, it is my official opinion that the Division has the responsibility (including the payment of the cost therefor) of transporting juveniles which have been adjudged delinquent and committed to the custody of the Division from the State Youth Development Centers back to the juvenile's county of residence since such juveniles are still within the custody of the Division at such times. See Ga. Code Ann. 99-213(d).

OPINION 69-361

To: State Treasurer

August 29, 1969

Re: District Attorney held in office pending outcome of election of successor is entitled to payment for that period.

This responds to your request for my official opinion on the captioned matter.
The contest between Honorable Albert Bailey Wallace and Mr. Albert Edmund Wallace, Jr., relating to the office of District Attorney for the Clayton Judicial Circuit, has been concluded in favor of Honorable Albert Bailey Wallace. Wallace v. Wallace. 225 Ga. 102 (1969). No attempt to secure review by the United States Supreme Court ever was finalized and the remittitur of the Georgia Supreme Court has been forwarded to the trial court.
I am of the opinion that Honorable Albert B. Wallace held over as District Attorney for the Clayton Judicial Circuit until his successor was commissioned and qualified, Ga. Code Ann. 89-105, and that he is entitled to all forms of monetary payments appertaining to his services rendered in such office during the hold-over period.

505

OPINION 69-362

To: Franklin County Attorney

August 29, 1969

Re: Property or funds held by a college as an endowment and which is invested in real estate is not exempt from ad valorem taxation.

This is in further reply to your request for an unofficial opinion

concerning the ad valorem taxation of a motel owned by an

educational institution.



In an unofficial opinion dated June 3, 1969 (Op. Atty. Gen.

69-235], it was stated that income producing property owned by

a college, such as a motel, which is not directly used in the college

curriculum would be taxable. Attached to your recent request is a

letter presented by the taxpayer dated July 7, 1969, contending

that the property (motel) is held or used as an endowment and

therefore exempt from ad valorem taxation.

Art. VII, Sec. I, Par. IV of the Georgia Constitution (Ga. Code

Ann. 2-5404) provides:

"The General Assembly may, by law, exempt from taxation all public property; ... all buildings erected for and used as a college, incorporated academy or other seminary of learning, and also all funds or property held or used as an endowment by such colleges, incorporated academies or seminaries of learning, provided the same is not invested in real estate; .... (Emphasis added.)

The above provision clearly states that funds or property held or used as an endowment by such colleges may be exempted by the General Assembly provided the same is not invested in real estate. The enabling legislation, Ga. Code Ann. 92-201, contains a semicolon between the words "colleges" and "nonprofit hospital," which semicolon should be a comma. Compare Ga. Laws 1946, p. 12, with Ga. Laws 1947, p. 1183. This punctuation error apparently has led the taxpayer to believe that the proViso relating to real estate in Ga. Code Ann. 92-201 does not apply to college endowments. The 1947 Act cited above does not provide for the deletion of the comma and the insertion of a semicolon, except in the "To Read" portion thereof. Moreover, the General Assembly cannot exempt property from ad valorem taxation other than that enumerated in the Constitution. Ga. Code Ann. 2-5404.

506

Assuming that the motel owned by the college is held or used as an endowment, it is my unofficial opinion that such property is not exempt from ad valorem taxation because it is invested in real estate.

OPINION 69-363

To: State Board of Corrections

August 29, 1969

Re: Funds deducted from work release prisoner's salary to defray cost of his maintenance may not be spent by Board of Corrections.

This is in reply to your request for an opinion in which you ask whether the Board of Corrections may defray the cost of maintaining work-release programs by using funds accumulated pursuant to a provision of Ga. Laws 1968, pp. 1399, 1401, which requires that the cost of maintaining a prisoner engaged in a work-release program be deducted from his salary and "deposited in the Treasury of the State Board of Corrections."
The Constitution states that "All money collected from taxes, fees and assessments for State purposes, as authorized by revenue measures enacted by the General Assembly, shall be paid into the general fund of the State Treasury and shall be appropriated therefrom, as required by this Constitution . . . ." Georgia Constitution, Art. VII, Sec. II, Par. III (Ga. Code Ann. 2-5503). Moreover, "No money shall be drawn from the Treasury except by appropriation made at law." Georgia Constitution, Art. Ill, Sec. VII, Par. II (Ga. Code Ann. 2-1911).
It is my opinion that Ga. Laws 1968, p. 1399, insofar as it authorizes the Board of Corrections to deduct the cost of maintenance of prisoners engaged in work-release programs from their salaries, is a revenue measure within the meaning of the Constitution. Such deductions are assessments within the meaning of the Constitution. Therefore, it is my opinion that the Board of Corrections cannot spend funds accumulated as the result of deductions made from the salaries of prisoners engaged in work-release programs and that such funds must pass into the general fund of the State Treasury.

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OPINION 69-364 (Unofficial)

To: District Attorney

August 25, 1969

Re.: Collection of fees in Justices of the Peace Courts.

This is in reply to your letter of August 11, 1969, concerning the collection of fees in the Justices of the Peace Courts. You asked the following questions:

1. Can a Justice of the Peace charge the affiant a fee at the time of issuing a criminal warrant? 2. When a Justice of the Peace holds a commitment hearing and it is necessary for a warrant to be dismissed for a technicality, can the affiant be charged with the costs of the
hearing? 3.- If a Justice of the Peace holds a commitment hearing and as all evidence is in affiant asks for a dismissal of the warrant and it is dismissed, can the affiant be charged with the costs? 4. When a Justice of the Peace holds a hearing and dismisses the warrant because of lack of evidence, can he collect the
costs from the affiant?

An analysis of the pertinent sections is necessary to answer your four questions. Ga. Code Ann. 27421 provides that "If the accused shall be discharged for want of sufficient cause of commitment, the justice may, in his discretion, direct the costs to be paid by the prosecutor." This provision is operative at a commitment hearing, when the justice determines that there is insufficient evidence, insufficient probable cause or no other reason to require that the accused be bound over for trial in the Superior Court. Upon such failure to show cause for commitment, the accused shall be released.
Ga. Code Ann. 27-2801 provides for the payment of costs by the accused. He is not required to pay costs, except for his witnesses, until after conviction on final trial. Ga. Code Ann. 27-2805 provides for the payment of the fees by the prosecutor upon discharge of the accused when the prosecution is abandoned before trial. "Discharge before trial" occurs at any time before the trial has reached such a stage as to put the accused in jeopardy.
For a thorough analysis and comparison of these sections, see State v. Steele, 112 Ga. 39 (1900); Underwood v. Howey, 106 Ga. 268 (1898); Giles v. State, 28 Ga. 462 (1859);Rainey v. State, 50

508
Ga. App. 256 (1934). In answering your first question, since Ga. Code Ann.
27-2805 and 27-2801 require the payment of "all costs" or "costs of the prosecution" by the prosecutor if he abandons the prosecution or by the defendant upon "conviction on final trial," and Ga. Code Ann. 27-421 requires the payment of costs by the prosecutor where there is insufficient cause to commit the accused, it is my opinion that the affiant (prosecutor) may not be required to pay the fee for the issuance of a criminal warrant at the time of such issuance. The sections clearly show the intent to determine the responsibility for such payment at a subsequent time than at the time of the issuance of the criminal warrant.
There are no judicial decisions which interpret these sections concerning the issues in your second question. By it being "necessary for the warrant to be dismissed for a technicality" I assume you mean something in the nature of failure to properly state an offense on the warrant, improper service of the warrant, action instituted exceeding the jurisdiction of the Justices of the Peace Court, etc. This would come under Ga. Code Ann. 27-421 since the accused would be discharged (rather than the prosecution being abandoned). In cases where the accused is "discharged for want of cause," the justice may, at his discretion, charge costs to the prosecutor (affiant). Whether m- not a dismissal on a "technicality" is encompassed within "want of cause" is not clear. Nevertheless, the justice should use his discretion, and I suggest that if the improper technicality is attributed to an error on the part of the justice or the constable, the prosecutor should not be required to pay the fees.
Your third question falls clearly within the province of Ga. Code Ann. 27-2805. When the accused is discharged due to the abandonment of the prosecution by the affiant (prosecutor), the affiant is responsible for the costs of the court. See the previously cited cases.
Your fourth question falls clearly under the province of Ga. Code Ann. 27-421. When the accused is discharged for want of cause for commitment, the justice may, at his discretion, require the payment of the costs by the prosecutor.

509

OPINION 69-365

To: State Game and Fish Commission

September 1, 1969

Re: A person may hunt on Sunday in Georgia, but he may not discharge a firearm on Sunday except in accordance with Ga. Laws 1968, p. 1246.

This is in response to your recent request as to whether prohibitions exist against: (1) hunting on Sunday and (2) discharging a firearm on Sunday.
Hunting per se on Sunday is not illegal. However, while not precluded, it is severely limited by Ga. Laws 1968, p. 1246.
This section has not been repealed or superseded by the Criminal Code of Georgia, Ga. Laws 1968~ p. 1249, as amended. It is, therefore, my official opinion that although a person may hunt on Sunday, he may not discharge a firearm except as authorized by the above-cited statute.

OPINION 69-366 (Unofficial)

To: Chief Registrar, Gwinnett County

September 2, 1969

Re: A county registrar may serve out his term as a city councilman.

You have requested our unofficial opinion on whether a county registrar may serve as a city councilman during his term as registrar.
Apparently, you are concerned with the provision of the Georgia Election Code which reads 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, [except for the office of tax commissioner or tax collector] ...." Ga. Code Ann. 34-605.

We will assume that the post on the city council is an elective office. The above provision prohibits one from offering for an elective office to be voted on while one is also serving as a registrar or six months thereafter. However, this law does not specifically prohibit a person from serving out his term in office to which he

510

was elected piror to becoming a registrar. When interpreting statutes of ineligibility, one must remember that the right of a citizen to hold office is the general rule, ineligibility the exception; and therefore a citizen should not be deprived of this right unless clearly required by law. Patten v. Miller, 190 Ga. 123, 139 (1940) and cases cited therein.
It is therefore our unofficial opinion that a county registrar may serve as a city councilman so long as he was elected to the council prior to becoming a registrar. However, the county registrar may not offer for re-election while serving as a county registrar or within a period of six months after so serving.

OPINION 69-367 (Unofficial)

To: Superior Court Clerks' Retirement Fund

of Georgia

September 3, 1969

R e: Survivor's benefits under the Superior Court Clerks' Retirement Fund.

This responds to your request for an opinion as to whether or not the widow and children of a clerk who is in his seventeenth year of service would be entitled to survivors' benefits in the event of his death.
The amended Act governing the Fund provides that a clerk must have accumulated 20 years' service (calculated in a particular manner) before he is "eligible to receive the retirement benefits provided for in this law." Ga. Code Ann. 24~2740. Sixteen years of creditable service must be completed before a clerk is eligible for disability benefits. Subject to several conditions, survivors' benefits are available to the widow of a clerk who has retired or was eligible to retire on the date of his death. Ga. Code Ann. 24-2740.1' 24-2740.4.
In 1968, the General Assembly amended the Act governing the system by providing that a clerk who has accumulated sixteen years of service (calculated in a specific manner) is entitled to receive "the retirement benefits provided for hereinafter." Ga. Laws 1968, pp. 420, 421; Ga. Code Ann. 24~2741.1. The retirement benefits expressly set forth in the 1968 Act do not include survivors' benefits for a spouse or children.
The applicable law is well known. "While it is a general rule .. . that laws pertaining to pensions must be liberally construed ... it is also the rule that the right of a widow to the payment of

511

benefits ... depends upon the terms of the law providing ... such benefits and neither the ... [clerk] nor those claiming under him, have any rights except those conferred" by law. Burks v. Board of Trustees, 214 Ga. 251, 254 (1958). In the Burks case, the Court refused to extend the word "pensioner" to include persons eligible for retirement. I am of the opinion that a court likewise would refuse to extend the phrase "retirement benefits provided for hereinafter" to include benefits not specifically set forth thereafter in the Act. Since survivors' benefits for spouses and children are not among the retirement benefits set forth in the 1968 Act, I am of the opinion that such benefits are not available to a clerk whose retirement rights are dependent upon the 1968 Act.

OPINION 69-368. (Unofficial)

To: Tax Receiver, Butts County

September 3, 1969

Re: Tax Receiver of Butts County is to be compensated on a salary basis.

This is in reply to your letter of August 19, 1969, concerning the entitlement of the Tax Commissioner of Butts County to commissions on the State's part of the regular and intangible tax digest under the provisions of the Act approved April 15, 1969 (Ga. Laws 1969, p. 2661). This Act in providing for compensation of the tax receiver of Butts County, provides in Section 1 that:

"The present mode of compensating the tax receiver of Butts County, known as the fee system, is hereby abolished, and in lieu thereof an annual salary for such officer is prescribed as hereinafter provided."

It is further provided in Section 3 of said Act that the tax receiver shall "collect all fees, fines, forfeitures, commissions, costs, allowances, penalties, funds, monies, and all other emoluments and perquisites formerly allowed as compensation for services in any capacity in his office," and shall pay same into the county treasury. Therefore, this requirement, that the tax receiver pay into the county treasury all monies received, to include commissions and all other emoluments and perquisites formerly allowed as compensation for services in any capacity, would preclude retention by the tax receiver of commissions as was

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previously the practice. Substituted in lieu thereof as compensation to the tax receiver, is an annual salary to be paid from county funds.
Previously the tax receiver of Butts County received commissions on the State and County net tax digest under the provisions of Ga. Code Ann. 92-5301. This code section, however, contains a provision whereby it would not be applicable to any county where the tax receiver is paid on a salary basis only; thereby precluding collection of such commissions by the tax receiver of Butts County under this new legislation.
Therefore, in view of the above considerations, it is my unofficial opinion that under the provisions of the Act approved
April 15, 1969 (Ga. Laws 1969, p. 2661), the tax receiver of Butts County is to be compensated solely on a salary basis and is not entitled to commissions, costs, forfeitures, allowances, penalties, funds, monies, and all other emoluments and perquisites formerly allowed as compensation for services rendered by you as tax receiver of Butts County.

OPINION 69-369 (Unofficial)

To: Department of Industry and Trade

September 3, 1969

Re: A person who resigns from one position with the State to accept another with the State is not eligible to claim payment for accumulated leave.

This is in. response to your recent request for an unofficial opinion as to whether a Department of Industry and Trade employee with Merit System status who resigns to accept another position with the State is eligible to receive pay for the annual leave accrued during his service with the Department.
Enclosed please find copies of opinions dated March 23, 1966, and June 1, 1967, both to the Honorable Jack P. Nix, indicating that a person who resigns from one job with the State to accept another job \\lith the State is not eligible to claim payment for accumu\ated leave, as this is not a resignation from State service. Section B.200 of the Merit System Rules and Regulations has not been amended so as to require a departure from these former rulings.

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OPINION 69-370 (Unofficial)

To: Ordinary, Gordon County

September 4, 1969

Re: County may impose excise tax on malt beverages within limits of authority granted by General Assembly.

This is in reply to the portion of your letter of August 23, 1969, concerning the legal right of a county to impose a tax on the sale of malt beverages sold within the city limits of a municipality located within the county.
The Supreme Court of this State held in Richmond County Business Association, Inc., et at. v. Richmond County, 224 Ga. 854 (1968), that a county can exercise the power of taxation only when such power is directly conferred upon it by the Constitution or by the General Assembly. The General Assembly has indicated that no prohibition or preemption was intended with respect to local taxation of malt beverage sales when the Georgia Sales and Use Tax Act was adopted. Ga. Code Ann. 92~3446a. See also City of Columbus v. Atlanta Cigar Company, Inc., 111 Ga. App. 744 (1965).
Specific authority to levy an excise tax on distilled spirits has been granted; however, I have been unable to find any general authority giving counties the right to impose excise taxes on the sale of malt beverages within incorporated areas of the county. Ga. Laws 1965, p. 451. Most counties and municipalities impose an excise tax on the sale of malt beverages under local and special acts.
Your county attorney will be able to advise you with respect to any local authority the county may have as to such taxation.

OPINION 69-371 (Unofficial)

To: District Attorney

September 4, 1969

Re: A statute will not be declared unconstitutional unless its repugnancy to the Constitution is clear and palpable.

You have requested my unofficial opm10n on the constitutionality of a 1955 amendment to the Uniform Act Regulating Traffic on Highways. Ga. Laws 1955, p. 736 (Ga. Code

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Ann. 68-1680 and 68-1681). You point out that the 1955 amendment creates certain exceptions based on a county's population.
As you well know, the Georgia Constitution 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. Georgia Constitution, Art. I, Sec. IV, Par. I (Ga. Code Ann. 2-401). The Supreme Court has held that population classification Acts are general laws within the meaning of the Georgia Constitution if the basis of the classification by population has some reasonable relation to the subject matter of the Act. City of Atlanta v. Gower, 216 Ga. 368(2) (1960). If a constitutional attack is made on the 1955 Act, then it will probably be necessary at the trial of the case to prove the reasonableness of this population classification. In such a case, the authors of the Act, the committee chairmen, etc., should be of some assistance.
When construing an Act of the General Assembly, the courts make every reasonable presumption in favor of an Act's constitutionality. Only where the Act's repugnancy to the Constitution is clear and palpable will the Court declare an Act unconstitutional. Franklin v. Harper, 205 Ga. 779, 790 (1949).
Since I have found no authority declaring the 1955 Act unconstitutional and I, too, strongly indulge in the same presumptions of constitutionality of the various Acts of the General Assembly, it is my unofficial opinion that the 1955 Act is valid.

OPINION 69-372 (Unofficial)

To: Sandersville City Manager

September 4, 1969

Re: All ballots cast in any election or primary must be counted except those which are defective for some specific reason set out by law; a municipal superintendent is not required by law to be a qualified elector of the municipality.

This unofficial opinion will confirm our telephone conversation on the subject of your request. Because of the very short time between your request and the election deadlines, we discussed this problem by telephone to assist you so far as possible.
You indicate that five councilmen are to be elected at your municipal election. You have requested our unofficial opinion on

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whether a ballot would be counted if an elector voted for four or less of the candidates. You also requested our unofficial opinion
on whether or not a municipal superintendent must be a qualified elector.
In response to your first question, we have not been able to find any provision of law which would void a ballot on which an elector voted for less than the number of offices to be voted on at the election. It is clear that all ballots cast in any election or primary must be counted except those which are defective for some specific reason set out by law. Ga. Code Ann. 34A-1223. Therefore, it is our unofficial opinion that the votes must be counted even though an elector votes for less than the number of offices to be voted on at the election.
In response to your second question, we have not been able to find any requirement that a municipal superintendent be a qualified elector of the municipality in which he serves. The right of a citizen to hold office is the general rule and ineligibility the exception. A citizen should not be deprived of his right to hold office unless clearly specified by law. Patten v. Miller, 190 Ga. 123, 139 (1940) and cases cited therein. Thus, it is our unofficial opinion that a municipal superintendent is not required to be a qualified elector of the municipality in which he serves.

OPINION 69-373 (Unofficial)

To: State Senator

September 5, 1969

Re: Local option statute-Result when no referendum is held.

This is in reply to your letter of August 8, 1969, in which you requested information concerning the status of the White County Commission laws. Ga. Laws 1933, p. 758, as amended, repealed the former White County Commission law.
Ga. Laws 1958, p. 3224, as amended, repealed the 1933 Act and set out new provisions concerning the White County Commission, but required that the Act be presented by referendum to the citizens of White County. Ga. Laws 1960, p. 1560 is a composite table of the "Results of Referendum Elections 1953-1959." At p. 1573 the table indicates that this White County referendum was not held as required by the statute.
Where the legislature passes an act, complete in itself, but subject to the will of other bodies, e.g., citizens at large, grand juries, mayors and councils, members of a specific trade, etc., such

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acts are termed "local option laws" or "conditional legislation." The condition precedent for the operation of such laws has not occurred. Such laws are ineffective and void, and attempted amendments to such are also void when assent of the specific body is not forthcoming for the "local option law." The previous statutes in the area of the "conditional legislation" stay in effect. For a thorough analysis of this area, see, Holcombe v. Georgia Milk Products Confederation, 188 Ga. 358 (1939); Hines v. Etheridge, 173 Ga. 870 (2) (1931); Horne v. State, 170 Ga. 638 (1930); Green v. City of Atlanta, 162 Ga. 641 (1926); Southern Railway v. Lancaster, 149 Ga. 434 (1919); Mayor and C. of Brunswick v. Finney, 54 Ga. 317 (1875).
Therefore it is my opinion that the White County Commission should be operated under Ga. Laws 1933, p. 759, and the amendments thereto.

OPINION 69-374 (Unofficial)

To: Court of Ordinary, Decatur County

September 5, 1969

Re: The service of a sentence imposed upon conviction of a crime does not restore a person's right to vote, but the grant of a pardon does restore the right to vote.

You have requested our unofficial optmon on whether the serving of a sentence imposed for conviction of a crime would, by itself, restore a felon's right to vote. You further wish to know whether the grant of a pardon will restore the right to vote.
The Georgia Constitution provides that the following classes of persons shall not be permitted to register, vote or hold any office, or appointment of honor, or trust in Georgia: (1) 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; (2) idiots and insane persons. Georgia Constitution Art. II, Sec. II, Par. I (Ga. Code Ann. 2-801).
Your letter does not indicate what criminal offense the person committed. For your information I am enclosing a booklet entitled "Opinions of the Attorney General Construing the Georgia Election Code" in which Op. No. E-72 found on page 77 discusses the types of criminal offenses which will cause the

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disabilities set out above. It is clear from the above Constitutional provision that only a
pardon will relieve a person's political and civil disabilities as set out above. Summerour v. Cartrett, 220 Ga. 31 (1964); Morris v. Hartsfield, 186 Ga. 171 (1938).
It is therefore our unofficial opinion that serving a sentence, by itself, does not restore a person's right to vote, but the grant of a pardon will restore a person's right to vote.

OPINION 69-375 (Unofficial)

To: State Representative

September 5, 1969

Re: Prohibitions against hunting raccoons or foxes with dogs.

This is in response to your recent request for an unofficial opinion as to whether "existing statutes" prohibit the hunting of raccoons or foxes with dogs at any period during the year~
Please be advised that Ga. Code Ann. 45-511 provides that it is legal to hunt wildlife with dogs except as otherwise provided by the laws, rules and regulations pertaining to wildlife. Additionally, Ga. Code Ann. 45-512 states that it shall be "lawful to hunt, chase, or catch foxes with dogs," provided the hunter has the permission of the owner, lessee of the land or lessee of the game rights on the land.
In direct answer to your question, then, it would appear that "existing statutes" do not prohibit the hunting of raccoons or foxes with dogs. However, the proper disposition of your inquiry must also take into consideration the relevant regulations since the State Game and Fish Commission is authorized to promulgate rules and regulations for the purpose of fixing open and closed seasons for all wildlife. Ga. Code Ann. 45-114. Obviously, dogs could not be used to hunt wildlife which was otherwise out of season. Reviewing the rules and regulations of the State Game and Fish Commission, I find the following to be pertinent:

"260-2-.28 DOGS. AMENDED. In all counties permitting the hunting of deer with dogs during the season, there shall be a ban on running dogs from September 15 through October 14, 1969, during which time no running of dogs will be allowed."
and,

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"260-2-.34 RACCOON. AMENDED.~

(1) October 18, 1969, through February 28, 1970, in Baldwin, Columbia, Hancock, Harris, Jones, McDuffie, Monroe, Talbot, Upson, Warren, and all counties north of those listed. Bag limit one (1) per night per person.

(2) All counties south of the above-named counties are open year-round for the taking of raccoons."

Inasmuch as Ga. Code Ann. 45-512 makes it lawful to hunt foxes with dogs and the State Game and Fish Commission has not limited the fox season, it is my opinion that foxes may be hunted with dogs year-round.
As for raccoons, I am of the opinion that from October 18, 1969, through February 28, 1970, they may be hunted with dogs in those counties referred to in 260-2-.34( 1) quoted above. It is my further opinion that in the counties south of those named in which hunting deer with dogs is permitted, raccoons may not be hunted with dogs from September 15 through October 14, 1969. In all other counties south of those specified, raccoons may be hunted with dogs year-round.

OPINION 69-376 (Unofficial)

To: County Attorney, Towns County

September 6, 1969

Re: Compensation of ordinary-If not otherwise set, claim is made to grand jury.

You advise that the ordinary for your county is vested with the management of the county business and you have requested our assistance and unofficial opinion on how to fix the compensation for an ordinary's services when he is managing county business and not specifically acting as ordinary. You indicate there is no controlling local law which you have been able to find which would guide the county in this matter.
Ga. Code Ann. Ch. 23-7 is the touchstone for an ordinary when he is sitting for county purposes. The Code Chapter provides the various matters over which the ordinary has jurisdiction in this instance and sets out his other duties. However, so far as we could fmd, there is no method set out in this Code Chapter to fix his compensation.

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Ga. Code Ann. 24-110 provides a method of compensating ordinaries who by law are vested with the management of the county business and for whom no compensation has been provided. In such a case, the ordinary makes his claim in writing, makes affidavit to the correctness and justice of it and then submits it to the grand jury. Since we, like you, have been unable to fmd any other applicable law in this matter, it is our unofficial opinion that Ga. Code Ann. 24-110 is still valid and does provide a method for fixing compensation in this case.

OPINION 69-377

To: Georgia Firemen's Pension Fund

September 8, 1969

Re: Board of Trustees of the Georgia Firemen's Pension Fund has power to invest funds for principal home office.

This responds to your letter of August 27, 1969, requesting my opinion on the following question:

"Does the Board of Trustees have the authority to purchase land, with improvements thereon, for the purpose of using the improvements as a base from which to administer the operation of the Georgia Firemen's Pension Fund? "

The Board has been granted power to invest funds "subject to all the terms, conditions, limitations and restrictions imposed by the laws of the State of Georgia upon domestic life insurance companies in the making and disposing of their investments." Ga. Code Ann. 78-1004. A domestic life insurance company may acquire "such land and buildings thereon used or acquired for use as its principal home office ... for the convenient transaction of its own business." Ga. Code Ann. 56-1028(a).
Based upon the foregoing provisions, I am of the opinion that the Board of Trustees of the Georgia Firemen's Pension Fund has power to invest funds in such land .and buildings thereon as are used for its principal home office. However, one should remember that this power is subject to all the terms, conditions, limitations and restrictions which would govern such a real estate investment if it were made by a domestic life insurance company. See, generally, Ga. Code Ann. 56-1028 through 56-1032.
In addition, the power of the Board is "subject to the provisions of the law relating to the Georgia Real Estate Investment Board." Ga. Code Ann. 78-1004. The pertinent provision of the Georgia

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Real Estate Investment Board law is found in Ga. Code Ann. 40-2805 and is as follows:

"40-2805. Other State agencies prohibited from making loan commitments until application made to Investment Board.-It shall be unlawful for any ... State system or fund ... to ... make an investment in real estate of any kind or nature, until and after an application for such ... investment ... has been first made in writing to the Georgia Real Estate Investment Board and such application has been approved in writing by the Georgia Real Estate Investment Board. (Acts 1963, pp. 34, 37.)"

Therefore, it will be necessary that the Board of Trustees of the Georgia Firemen's Pension Fund make an application in writing to the Georgia Real Estate Il)vestment Board and secure its approval in writing prior to entering into any transaction which will require the investment of funds.

OPINION 69- 378 (Unofficial)

To: Tax Commissioner, Coffee County

September 8, 1969

Re: Golf carts and motor boats are subject to property taxation.

This is in reply to your letter dated August 13, 1969, inquiring as to whether or not golf carts and motor boats are subject to property taxation.
According to Ga. Code Ann. 92-101, "[a)ll real and personal property, whether owned by individuals or corporations, resident or nonresident, shall be liable to taxation except as otherwise provided by law." Since I find no provision of law exempting golf carts or motor boats, such items should be included in the owner's property tax return.
Of course, whether an owner has included these items in his return, in a particular case, is a factual question which the tax receiver or the commissioner in a case where the tax commissioner performs the function of- a tax receiver must resolve in the first instance, in accordance with Ga. Code Ann. 92-6703.

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OPINION 69- 379
To: State Highway Department of Georgia September 8, 1969
Re: State Highway Department employees may join a labor union. Any strike or other activity which would disrupt or interfere with the performance of the duties of employment is prohibited.
This will acknowledge your letter of August 27, 1969, requesting my unofficial opinion as to whether or not State Highway Department employees have the right to join a labor union, and if such employees may engage in other activities which would disrupt or interfere with the performance of their duties of employment.
The National Labor Relations Act and the Labor-Management Relations Act of 1947 established certain standards for labor-management relations, and protect both the rights of employers and employees. However, both specifically exempt State governments, their agencies and subdivisions, from the definitions of "employer," and thus from the requirements of the statutes. See 29 U.S.C.A. 152; 29 U.S.C.A. 142. The State is similarly excluded from the definition of employer in Title 54 of the Georgia Code, concerning industrial relations. Ga. Laws 1947, pp. 616, 617; Ga. Code Ann. 54-90l(a).
Georgia Law places certain restrictions on the activities of both the State, as employer, and employees of the State with respect to labor relations:
"No person holding a position by appointment or employment in the Government of the State of Georgia or any agency, authority, board, commission, or public institution thereof shall promote, encourage or participate in any strike." Ga. Laws 1962, p. 459; Ga. Code Ann. 89-1301. "The word 'strike,' as used herein, shall mean the failure to report for duty, the wilful absence from one's position, the stoppage or deliberate slowing down of work, or the withholding, in whole or in part, of the full,' faithful and proper performance of the duties of employment, for the purpose of inducing, influencing or coercing a change in the conditions, compensation, rights, privileges or obligations of State employment ...."Ga. Laws 1962, pp. 459, 460; Ga. Code Ann. 89-1302. "No person exercising any authority, supervision or direction

522
over any State employee shall have the power to authorize, approve or consent to a strike by one or more State employees, and such persons shall not authorize, approve or consent to such strike." Ga. Laws 1962, pp. 459, 461; Ga. Code Ann. 89-1304.
In addition, penalties are imposed upon those who violate these provisions. See Ga. Laws 1962, pp. 459, 460; Ga. Code Ann. 89-1303. Furthermore, the new Criminal Code of Georgia, at Ga. Code Ann. 26-2613, makes it a misdemeanor to interfere with passage to or from Government property.
The State, as employer, does not have unbridled discretion in dealing with its employees.
". . . [N]othing herein shall limit or impair the right of any State employee to express or communicate a complaint or opinion on any matter related to the conditions of State employment so long as the same is not designed to and does not interfere with the full, faithful, and proper performance of the duties of employment." Ga. Laws 1962, pp. 459, 460; Ga. Code Ann. 89-1302.
Thus it appears that State Highway Department has no power to take steps to prevent any labor activity short of strikes and other obstructions to the performance of the duties of employment.
In International Longshoreman's Assn., AFL-C/0, et al. v. Georgia Ports Authority, 217 Ga. 712 (1962), when the Ports Authority refused to enter a proposed contract, the ILA, AFL-CIO picketed the State docks. The Supreme Court of Georgia affirmed the granting of injunctive relief, on the ground that the picketing, although peaceful, and the proposed strike of Ports Authority employees were contrary to public policy.
In conclusion, a State employee has the right, either singularly or collectively, to express or communicate complaints or opinions relating to State employment. This would seem to include freedom to enter into organizations created for like purposes. The only limitation upon such activities of the State employees would prevent their striking, or otherwise interfering with proper performance of the duties of State employment, or obstructing access to or egress from State property.

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OPINION 69-380

To: Director, State Department of Family and Children Services

September 9, 1969

Re: Commitment of a juvenile to a facility for the treatment of mental illness.

This will acknowledge receipt of your letter whereby you requested my opinion on several questions relating to the authority of, and the procedure for, a Georgia Juvenile Court to commit or transfer a juvenile to a facility for the treatment of mental illness. By said letter, you informed this Office that a fifteen year old juvenile was committed to the Division for Children and Youth (hereinafter sometimes referred to as Division) by a juvenile court and placed by the Division in its facility at the State Youth Development Center in Milledgeville, Georgia, which is, I understand, a State Center for juvenile boys having no special facilities for the treatment of juveniles with mental disorders. You further advised that, based on observations of the staff at the Center and a psychiatric report, the Division concluded that said juvenile was mentally ill and that the Division should return the juvenile to the Court which committed him to the custody of the Division for an appropriate disposition by said Court in view of his suspected mental disorders.
By your letter, you posed the following questions, which I have renumbered for easy reference, and requested my opinion on same:

1. Are there any other statutory provtstons which would prevent the Judge of the original commitment court from recommitting or transferring custody of said child (the hereinabove mentioned fifteen year old juvenile), in accordance with the provisions of Section 22 of the Juvenile Court Act as amended, to Milledgeville Central State Hospital?
2. In the event the original commitment court has the authority to recommit or transfer custody of a child to Milledgeville Central State Hospital; under what type process, procedures, court hearing, shall such action be applicable and what type evidence shall the court be authorized to take into consideration in passing an order to this effect?
3. In connection with the second question indicated above, is it necessary for the court to have a formal hearing before

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passing an order to recommit or transfer? 4. Is it necessary for the parents of the child to be notified? 5. Can the court consider only written statements and psychiatric reports or will it be necessary that strict rules of evidence be followed at a formal court hearing? 6. Does the Division for Children and Youth have authority to make payments covering expenses of witnesses subpoenaed and testifying in the event a formal court hearing is required?
By a subsequent letter, the Division for Children and Youth advised this Office that the above-referenced juvenile was admitted to Central State Hospital by the Court of Ordinary of Baldwin County, Georgia, by a Temporary Order actually prior to the request for this opinion and, subsequent to said admission, the Division was advised by the Hospital that said juvenile was not mentally ill and should be released from said HospitaL Finally, this Office was advised that the anticipated plans of the Division were to return said juvenile to the Youth Development Center in Milledgeville. Thus, the actual case on which you based your request for an opinion has become moot, but, by the above-referenced subsequent letter, my opinion on the herein stated questions was requested for the information of the Division and the Juvenile Court Judges in view of the fact that the Division frequently faces similar cases as herein outlined.
Your attention is first called to subsections l(c) and 2(c) of Section 21A of the Juvenile Court Act of 1951, as amended (Ga. Code Ann. 24-2421(1)(c) and (2)(c)), which provide that, as to a juvenile that has been found delinquent by a Juvenile Court, as well as a juvenile found by such a Court to be in a " ... state of neglect, dependency, or living under insufficient and improper guardianship; or ... to be a person in need of supervision," the Court may, by order:
" ...cause (such juvenile)... to be examined or treated by a physician, psychiatrist, or psychologist, and for such purpose may place the child in a hospital or suitable facility."
See also Section 22 of said Juvenile Court Act (Ga. Code Ann. 24-2422) as to the authority of the Juvenile Courts to modify commitment orders, and Section l3(g) of the "Children and Youth Act" (Ga. Code Ann. 99-213(g)) as to the authority given the Division respecting juveniles committed to its custody.
Finally, as an indication of the General Assembly's recognition

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of the authority of Juvenile Courts to commit juveniles subject to its jurisdiction to facilities for the treatment of mental illness, your attention is called to Ga. Code Ann. 88-506.6(b) (Ga. Laws 1969, pp. 505, 529,the 1969 amendment to the Georgia Health Code concerning the hospitalization of the mentally ill) whereby provision is made that "if the superintendent fmds that continued hospitalization is necessary. . . (2) for an individual who was hospitalized while under the jurisdiction of a juvenile court, but who is about to reach the age of 21, the superintendent shall apply for an order authorizing such continued hospitalization...."
Therefore, in answer to your first question, I am unaware of any statutory provision which would prevent a Juvenile Court Judge who committed a juvenile to the Division from modifying his commitment order under the authority of Sections 21A and 22 of the Juvenile Court Act as to a commitment (either initially or as a transfer from some other institution) to a facility for the treatment of mental illness. By such action, a Juvenile Court Judge may commit or transfer a juvenile returned to said Court by the Division to a facility for the treatment of mental illness upon a finding that such a commitment would be " . . . for the welfare of the child."
In answer to your second question, the procedure by which a Juvenile Court would commit a juvenile to Central State Hospital, or some other suitable facility, would be a matter to be determined by each Juvenile Court. Of course, the commitment procedure should be of such nature as to both ensure the rights, as well as the welfare, of the juvenile. Generally, the judicial procedure set forth in the Juvenile Court Act of 1951, as amended, would, in my opinion, apply to such a commitment procedure. Also, in my opinion, the evidence that such a Court would be authorized to consider would be such competent, admissible and material evidence as would indicate the needs of the juvenile relative to the commitment to such a facility.
In response to your third question as to whether a formal hearing is necessary when the Juvenile Court considers a commitment to a facility such as Central State Hospital, it is my official opinion that a formal hearing in the sense of a formal Juvenile Court hearing under Section 21 of said Act relative to the procedure of Juvenile Courts, would be necessary. Such a hearing would not only protect the rights of the juvenile, but also ensure a decision which would be in the best interest of the juvenile's welfare.
By your fourth question, you have inquired as to whether it would be necessary for the parents of the juvenile to be notified of

526
a hearing by which a Juvenile Court would consider the commitment o:r transfer of a juvenile in the custody of the Division to a facility for the treatment of mental illness. Section 14 of the Juvenile Court Act (Ga. Code Ann. 24-2413) requires that the parents or guardians of a juvenile be notified of the pendency of the case prior to an initial hearing by a Juvenile Court when someone else has custody or control of their child. Inasmuch as notification to the parents is required in regard to the initial hearing when someone else has custody or control of a child, it is my official opinion that the parent(s) or guardian(s) of a juvenile in the custody of the Division should be notified as to any hearing at which a Juvenile Court will consider the commitment of said juvenile to a facility for the treatment of mental illness.
In answer to your fifth question, it is my official opinion that the nature of the evidence which a Juvenile Court may consider in cases as herein discussed would have to be determined by the Judge of the particular Juvenile Court hearing the matter in accordance with the usual rules of evidence applicable in Juvenile Court hearings. Generally, however, it is my official opinion that written statements and reports, in the absence of the person making same, would not be admissible. Such statements or reports, asuming same contain opinions of the author, would not be admissible since same would not be authenticated by testimony of the author and the author would not be available for cross-examination. See, Op. Atty. Gen., 1963 through June 14, 1965, p. 548, at 550-51, a copy of which I have enclosed for your easy reference.
By your sixth question, you have inquired as to the authority of the Division to pay the expenses of witnesses subpoenaed to testify in a Juvenile Court when the court considers the commitment of a juvenile to a facility such as Central State Hospital. If the witness is an employee of the Division and the testimony given is in connection with the duties and functions of the Division, the expenses of such an employee should be paid in the normal course of employment. Should the Division, in order to carry out its duties and functions under the Children and Youth Act (Ga. Code Ann. Ch. 99-2), have need of the testimony of someone other than an employee of the Division, the Division, in my opinion, is authorized to pay to such person, if subpoenaed by the Division, the witness fee and mileage authorized by Ga. Code Ann. 38-801. I can not envision any other occasion at which the Division would need to pay witness expenses since witness fees are usually paid by the party which subpoenas a witness.

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OPINION 69-381

To: Georgia Higher Education Assistance Corporation

and State Scholarship Commission

September 9, 1969

Re: Loan funds to benefit Georgia students.

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

QUESTION (1) Are the members of the Georgia Higher Education Assistance Committee (Committee), created by Ga. Laws 1968, p. 1082 (Ga. Code Ann. Chapter 32-34), required to take any action whatever in order to constitute themselves as members of the recently created Georgia Higher Education Assistance Authority (Authority) in Ga. Laws 1969, p. 683?

OPINION No. The members of the Committee are ipso facto made members of the Authority by Section 4 of Ga. Laws 1969, p. 683. The Committee is already constituted, and provisions for its perpetuation are found in Ga. Laws 1968, p. 1082 (Ga. Code Ann. Chapter 32-34).

QUESTION (2) May the members of the Committee, as members of the Authority pursuant to provisions of the aforesaid act, proceed to organize themselves for operational purposes and thereafter implement and proceed to administer provisions of said Act for the purposes prescribed therein?

OPINION Yes. The Act creating the Authority provides for no preconditions
to the organization or operation of the governing Committee.

QUESTION (3) May the Authority, following formal organization of its member- ship, lawfully enter into an agreement with Doug Sanders which provides essentially as follows:

(a) Doug Sanders, through the sponsorship of "celebrity shows," will raise funds to be irrevocably granted to the Authority for the purpose of establishing a loan fund to

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provide financial assistance to Georgia students planning to attend institutions of higher education in Georgia; (b) The Authority will invest, manage and administer this loan fund in accordance with the criteria established by the agreement, i.e., that the loan fund shall be made available to resident students of Georgia who have attended Georgia High Schools, who have at least a "C" or equivalent grade average and who plan to attend Georgia institutions of higher education; (c) The Authority will have such powers with respect in carrying out the terms of this agreement as are now or hereafter granted to it by the General Assembly of Georgia.

OPINION Yes. The Authority is granted broad powers by Ga. Laws 1969, p. 683, for carrying out the stated purpose of promoting ''the intellectual, cultural, industrial and economic development of this State and its citizens by providing, either directly or indirectly, financial aid assistance or services to residents of this State in
order to enable or otherwise assist them in obtaining higher education or other post-secondary business, trade, technical or .vocational education or training beyond the twelfth (12th) grade." I find nothing in this agreement which is not authorized by the Act creating the Authority. See in particular, Sections 3-7 and 15.

OPINION 69-382 (Unofficial)

To: Private Inquirer

September 9, 1969

Re: Lotteries and gift enterprises under new Criminal Code.

This is in response to your telegram of August 30, 1969, requesting a ruling on a promotional sweepstakes known as "Laugh-ln."
Enclosed herewith please find a copy of an official opinion to the Honorable Lester Maddox, Governor of the State of Georgia, dated October 28, 1968 [Op. Atty. Gen. 68-442]. Since this official opinion was issued, a new Criminal Code for the State of Georgia has gone into effect. The wording of the old lottery laws can be found on the second page of the enclosed opinion. The new law, Ga. Code Ann. 26-2701(d), reads as follows:

" 'Lottery.' A lottery is any scheme or procedure whereby one or more prizes are distributed by chance among persons

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who have paid or promised consideration for a chance to win such prize, whether such scheme or procedure is called a pool, lottery, raffle, gift, gift enterprise, sale, or policy game, or by some other name."

To date there have been no court decisions pertaining to the construction of this new language and the Attorney General, at this time, doe$ not wish to issue any unofficial opinions as to its meaning; therefore, I would suggest that you consult with your attorney as to the present state of the Georgia law.

OPINION 69-383 (Unofficial)

To: Department of Industry and Trade

September 10, 1969

Re: Department of Industry and Trade may not expend State funds in connection with the 28th Annual Convention of the Southeastern Association of State Highway Officials.

This is in reply to your request for an opinion as to whether the Department of Industry and Trade may expend State funds in connection with the 28th Annual Convention of the Southeastern Association of State Highway Officials. Your letter indicates that the Department of Industry and Trade has been reQuested to expend $2,800.00 in providing a caterer for a tea at the Gubernatorial Mansion, transportation between the convention site and the Mansion, and a box of fruit cake and brief case for each conventioneer.
As you are aware, a recent constitutional amendment, Ga. Code Ann. 2-5402(13), authorizes the Department to expend funds:

" ... for the business meals and incidental expenses of bona fide industrial prospects and other persons who attend any meeting at the request of the department to discuss the location or development of new business, industry or tourism within the State."

It does not appear that the delegates to this convention will be "bona fide industrial prospects." Nor does it appear that they will be here at the "request of the department to discuss the location or development of new business, industry or tourism within the State." Consequently, it is my opinion that none of the above expenses may be home by the Department of Industry and Trade.

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OPINION 69-384
To: Georgia Department of Public Health September 10, 1969
Re: Decision made pursuant to a statute becomes valid and operative when the statute becomes effective.
Please refer to your letter of August 19, 1969, wherein you request my official opinion with reference to the following questions:
1. Is action taken by the governing authority of a county under the provisions of Code Section 88-501.9 of the "Georgia Health Code" (i.e. Code Title 88), prior to January 1, 1970, valid, in view of the fact that the enabling legislation does not become effective until said date? 2. If action taken by a county prior to January 1, 1970, is invalid, is it correct to assume that governing authorities wishing to invoke the judicial admission procedures as the sole method of hospitalization in that county will have to take action on January 1, 1970, or thereafter? 3. At such tlllle as the governing authority of a countv takes valid action under Code Section 88-508.9, is the effect of that action a denial of the right of a resident of that county to seek and obtain voluntary admission to a private or State facility? 4. Should the Department of Public Health decide to prescribe the form and content of a notice from a county's governing authority, may it take this action prior to January 1, 1970, making it effective on January 1, 1970, the date when Code Section 88-508.9 also becomes effective?
DISCUSSION AND OPINION AS TO QUESTIONS 1 AND 2 Under the terms of Ga. Code Ann. 88-508.9, a county may determine that persons in that county shall be hospitalized only under the judicial admission procedures of Ga. Code Ann. 88-507.2 to 88-507.3. The county governing authority may make such a determination within its sole and absolute discretion after consultation with the Ordinary of that county and with the county board of health. Since Ga. Code Ann. 88-508.9 of Ga. Code Ann. Ch. 88-5 does not become effective until January 1, 1970, the question arises as to whether a determination made by a county governing authority under this Section prior to January 1, 1970, is premature and therefore invalid.

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Although there appears to be very little Georgia authority on this question, at least one case seems to indicate that an action taken under a Code provision prior to its effective date becomes complete and operative as of said date. In the case of Ross v. Jones, 151 Ga. 425 (1921), the legislature had passed an act providing for an additional judge of the superior court for the Macon Circuit. This act commanded the Governor to appoint a judge "upon the passage and approval of this act ... for a term of office commencing on the date of such appointment and continuing until the first day of January, 1923 ...." The act was to take effect November 1, 1920. On September 25, 1920, the Governor passed an order appointing a judge for the Macon Circuit. Thereafter the question arose as to whether the appointment should be considered to have taken place on September 25, 1920, or November 1, 1920. The Supreme Court stated on page 428:
" ... While the order designating the respondent as judge by the Governor was made on September 25, 1920, the appointment was not complete until November 1, 1920, when the act took effect, and when respondent qualified as judge and received his commission as such."
The Court went on to say on page 431:
"... the appointment of the respondent by the Governor did not really occur, within the meaning of the act of 1920, supra, until November 1, 1920, when he qualified and received his commission;...."
An opinion rendered by the Supreme Court of Alabama, i.e., State v. Friedkin, 244 Ala. 494, 14 So.2d 363 (1943), seems to add support to the above view. In that case, the Court held that rules and regulations of the Board of Medical Examiners adopted under an act prior to the effective date of such act, were not invalid and would therefore go into effect contemporaneously with the act.
Therefore, based upon the above holdings, it is my official opinion that a determination made by a county governing authority under Ga. Code Ann. 88-508.9 prior to the effective date of such Section is valid and operative as of January 1, 1970, the effective date of said Sec~ion.

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DISCUSSION AND OPINION AS TO QUESTION 3 Under the terms of Ga. Code Ann. 88-508.9, if the governing authority of any county determines that the medical admission procedures shall not apply in that county, the sole method of hospitalization in said county shall be the judicial admission procedures provided in Ga. Code Ann. 88-507.2 to 88-507.3. The question arises as to whether such a determination by a county governing authority would deny to a resident of that county the right to seek and obtain voluntary admission to a private or State facility under Ga. Code Ann. 88-503.1 through 88-503.5. It should be remembered that where a statute is susceptible of
two constructions, one of which would render it meaningless, the intention of the legislature should be construed so as not to render the statute absurd and ineffective. Oxford v. Carter, 216 Ga. 821 (1961 ). Furthermore, a statute may not be mutilated by lifting a mere segment out of its context and by construing such segment without consideration of all other parts of said statute. Ford Motor Company v. Abercrombie, et al. 207 Ga. 464 ( 1950); State of Georgia, et al. v. Cherokee Brick & Tile Co. 89 Ga. App. 235 (1953). And finally, in the construction of a statute, the legislative intent must be determined from the construction of it as a whole. Brown. et al. v. Lawrence, et al., 204 Ga. 788 (1949); Williams v. Bear's Den, Inc., 214 Ga. 240 (1958); Oxford v. Macon Telegraph Publishing Co., 104 Ga. App. 788 (1961).
With the above rules of statutory construction in mind, it should be noted that Ga. Code Ann. 88-508.9 authorizes the governing authority of a county to determine which of the methods of hospitalization set forth in Ga. Code Ann. 88-5 that county will utilize. If the governing authority of a county elects not to use the medical admission procedures then "the sole method of hospitalization in that county... shall be the judicial admission procedures provided in Sections 88-507.2 through 88-507.3." In the absence of an election, "the medical admission provisions of Sections 88-504.1 through 88-504.6; 88-505.1 through 88-505.7; and 88-506.1 through 88-506.4 shall be the only applicable method of hospitalization in that county." In either case, the legislature obviously intended for the voluntary admission procedures to apply to each and every county. To construe the phrase "sole method of hospitalization" in Ga. Code Ann. 88-508.9 to mean voluntary or involuntary hospitalization would be to invalidate Ga. Code Ann. 88-503.1 to 88-503.5.
Therefore, it is my official opinion that a resident of a county may seek and obtain voluntary admission to a private or State

533

facility under Ga. Code Ann. 88-503.1 to 88-503.5 irrespective of what action the county may or may not take under Ga. Code Ann. 88-508.9.
DISCUSSION AND OPINION AS TO QUESTION 4 Since it appears that Ga. Code Ann. 88-508.1 gives the Department discretionary authority to prescribe the form and content of a notice from a county governing authority under Ga. Code Ann. 88-508.9, see Op. Atty. Gen. 69-216, the question arises as to whether the Department may take such action prior to January 1, 1970, the effective date of such Sections. Again based on the holdings of Ross v. Jones, supra, and State v. Friedkin, supra, (see DISCUSSION AND OPINION AS TO QUESTIONS 1 AND 2, supra) it is my official opinion that rules and regulations adopted by the Department under Ga. Code Ann. 88-508.1 prior to January 1, 1970, are valid and will go into effect contemporaneously with said Section.

OPINION 69-385 (Unofficial)

To: Ordinary, Gordon County

September 11, 1969

Re: Sheriff has authority to patrol those portions of the Interstate Highway System within his county and apprehend traffic law violators who use that system.

Thank you for your letter of August 23, 1969, in which you request an opinion concerning: (1) the authority of the Sheriff of Gordon County to patrol those portions of the Interstate Highway System located in Gordon County and to apprehend traffic law violators who use that System; and (2) the authority of Gordon County to impose a county beer tax on malt beverages sold to the public within the city limits of a municipality located in Gordon County, where the retailer is operating under a license granted by the municipality. It is my purpose to answer your first question in the following paragraphs. A response to your second inquiry has previously been forwarded to you [Op. Atty. Gen. 69-370].
The Federal statutes, and in particular those statutes providing for the Interstate Highway. System (Title 23 U.S.C.A.), are silent on the question of which law enforcement agency shall patrol the System and enforce traffic laws thereon. Absent Federal legislation in this regard, the states retain the power to enforce

534
traffic regulations on all highways within their boundaries in such reasonable fashion as they deem wise. The mere fact that Federal monies have been expended in the construction of the highway does not alter this power. Morris v. Duby, 274 U.S. 135,47 S.Ct. 548, 71 L.Ed. 966 (1926); Barnwell Bros. v. South Carolina State Highway Department. 17 F.Supp. 803 (1937), rev'd. on other grounds, 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734 (1937). The question, then, becomes solely one of State law: Has the Sheriff of Gordon County been empowered by the General Assembly to patrol the Interstate Highway System within the boundaries of Gordon County and to apprehend traffic law violators who use that System?
The first question which must be faced concerns the power of the sheriff to enforce traffic laws on any highways in this State. The basic statutory provision prescribing the duties and powers of the sheriff is found in Ga. Code Ann. 24-2813. After listing the duties of the sheriff which relate to his role as an arm of the court, and which are not now relevant, the statute states that the sheriff is authorized:
"8. To perform such other duties as are or may be imposed by law, or which necessarily appertain to his office."
In construing this statute, the Georgia Supreme Court has stated that "sheriffs are given power, and it is made their duty, to preserve the peace," and that "a sheriff has the right and duty to enforce the laws enacted for the protection of the lives, persons, property, health, and morals of the people." Elder v. Camp, 193 Ga. 320, 322, 323 (1942). The enforcement of the criminal laws, which include traffic regulations, is logically comprehended by the phrase "preserving the peace." It would appear also that traffic regulations are laws enacted for the protection of the "lives, persons, property, health ... of the people." The language of the Court indicates further that as an incident of his power to enforce the law the sheriff is empowered to make arrests. It is, therefore, my opinion that this general statutory provision is understood by the Georgia Supreme Court as authorizing the sheriff to enforce the criminal laws generally, and in particular the traffic laws, and in the course of this enforcement to make arrests.
There are, in addition to this general statute, several other statu tory provisions which authorize the sheriff, by clear implication, to enforce specific types of traffic regulations. Ga. Code Ann. 68-109 provides that:
"It is the duty of every arresting officer, both county,

535
municipal and State, to enforce the provisions of Chapters 68-1 to 68-4."
These chapters concern the licensing and the size and weight requirements for motor vehicles in Georgia. Similarly, Ga. Code Ann. 68-406.2 provides:
"Any law enforcement officer . . . who observes a motor vehicle being operated upon a public road or highway of the State, and who has reason to believe that the size of the vehicle or the weight and load of the vehicle is unlawful is hereby authorized to weigh and measure same."
Sheriffs would appear to be authorized by Ga. Code Ann. 95-611 ("In addition to enforcement of this law by city and county officers ...") to enforce, along with the State Patrol, the laws of Georgia relating to the unlawful parking of a vehicle on the right-of-way of any State highway for over 48 hours (Ga. Code Ann. 95-608), the unlawful erection of signs or obstructions on the right-of-way of any State highway (Ga. Code Ann. 95-609), and the sale of merchandise while on the right-of-way of a State highway (Ga. Code Ann. 95-610). Further, Chapter 92A-5, which confers jurisdiction on the courts of ordinary, municipal courts, and police courts of incorporated towns and cities to hear and determine cases relating to traffic upon the public highways of the State, provides in Section 509 that:
"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...."
As I have indicated above, with regard to the Elder case, it is my opinion that the sheriff does have the power to. make arrests for misdemeanor offenses; therefore, he would be included within this statutory provision and would be authorized to enforce traffic regulations on the highways of this State.
There is no specific statutory authorization for the sheriff to enforce speed limits. It tp.ight be argued that the absence of a specific authorization with regard to the enforcement of speed limits, in view of the specific authorizations to enforce other regulations, demonstrates a legislative purpose that the sheriff should not have this power. It is my opinion, however, that the

536
better argument is that this omission is simply an oversight. The several statutes cited above show that the legislature intended on the highways of this State, and it makes little sense to attribute to the legislature an intention to take from the jurisdiction of the sheriff the enforcement of speed limits, the most important traffic regulation. In any event, both Ga. Code Ann. 24-2813 and Ga. Code Ann. 92A-509, both of which are cited above, are sufficiently broad to encompass an authorization to the sheriff to enforce speed limits as well as other traffic regulations.
The other aspect of your inquiry concerns the question whether the legislature has limited the traffic law enforcement powers. of the sheriff to those highways which are not a part of the Interstate
Highway System. There is no specific reference to the Interstate
Highway System in the provisions cited above relative to the sheriff's powers, nor in the provisions prescribing the duties of the State Patrol (Ga. Code Ann., Ch. 92A-2). In both sets of provisions the phrases "public highways of the State" and "State highways" are used. It is probably that these phrases were in tended to comprehend all highways in the State. More significantly, the legislature has decreed (Ga. Code Ann. 95-1743) that:
"The highways on the National System of Interstate and Defense Highways shall be and constitute State-aid roads and highways and highways of the system of highways of the State of Georgia...."
It is, therefore, my unofficial opmton that the traffic law enforcement powers of the Sheriff of Gordon County do extend to those portions of the Interstate Highway System lying within the boundaries of Gordon County. Authorization to enforce certain specific traffic laws are clearly implied; authorization to enforce other traffic laws, particularly speed limits, while not so explicit, would appear to be included within the more general provisions of Ga. Code Ann., 24-2813 and 92A-509; and these enforcement powers apply to the Interstate Highway System as well as to other State highways.

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OPINION 69-386 (Unofficial)

To: County Attorney, Banks County

September 11, 1969

Re: Seller of antique motor vehicles may be subject to Used Car Dealers' Registration Act; retail sale of antique motor vehicles is taxable under the Georgia Retailers' and Consumers' Sales and Use Tax Act.

This is in response to your request for advice on the following questions:

1. Whether the seller of antique automobiles is required to qualify as a used car dealer under the Used Car Dealers' Registration Act (Ga. Laws 1958, p. 55). 2. Whether there is a minimum number of sales per year required before the seller falls within the ambit of that Act. 3. Whether a sales tax is imposed on the sale of antique automobiles.

The first two questions listed may be conveniently answered together by reference to the language of the Used Car Dealers' Registration Act, Ga. Laws 1958, p. 55 (Ga. Code Ann. Ch. 84-39).
Antique automobiles are required to be registered under the provisions of Ga. Code Ann. 68-201 or under the special provisions applicable to historical vehicles over thirty years old, Ga. Code Ann. 68-255 to 68-259, and thus antique automobiles are motor vehicles as defined in the Used Car Dealers' Registration Act, Ga. Code Ann. 84-3902 (a). Moreover, antique cars would probably, in most cases, fall within the scope of the definition of used motor vehicles under Ga. Code Ann. 84-3902 (b).
Therefore, if the seller of antique automobiles is a "used car dealer" as defined in Ga. Code Ann. 84-3902(c), he must register and obtain a license as provided in the Act. A used car dealer is defined as "any person ... engaged in the business" of buying and selling used motor vehicles. The Act does not specify a minimum annual number of sales before its provisions apply. Thus, your second question must be answered in the negative.
The number of sales each year, however, may be relevant to determining whether the seller is "engaged in the business." Whether a seller is so engaged is to be determined by the particular

538

facts applicable to his situation. "Business" has been defined as "'that which occupies the time, attention and labor of men for the purposes of a livelihood or profit,' ... ."Novak v. Redwine, 89 Ga. App. 755, 757 (1954). The words "engage in a business" generally import an element of continuity or habitual practice. Novak v. Redwine, supra. Thus, whether the seller maintains a place of business, the frequency and continuity of sales and purchases, the purposes with which the automobiles were acquired would be relevant to determining whether the seller was a dealer under Ga. Code Ann. 84-3902(c). Thus, while casual and isolated sales would not bring the seller within the ambit of the Act, a continuous course of activity relating to the seller's purpose of livelihood or profit from the sale of cars would require him to qualify under the Act.
A seller of antique cars would be excluded from the coverage of the Act if he falls within the exclusions defined under Ga. Code Ann. 84-3902(c)(l) through (c)(lO). Ga. Code Ann. 84-3902(c)(4) provides a seller is excluded if the cars were in good faith acquired for the seller's own use and actually so used, and not in avoidance of the provisions of the Act.
The final qu.estion is whether the sale of antique cars is subject to the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Code Ann. Ch. 92-34A). The tax is imposed on every sale or purchase at retail and, therefore, the sales here would be taxable. However, the State Revenue Commissioner has by Regulation ruled that the liability will not be enforced if the sale involved is a casual sale. A casual sale is defined, in part, as a "sale in which the property involved was not acquired or held by the seller for use in the operation of his business or for resale." Thus, if the sale is made in conformity with that Regulation, no liability will be asserted against the seller or the buyer. However, if the seller is "engaged in the business" as discussed above, the liability will be enforced.

OPINION 69-387

To: Bureau of Outdoor Recreation

September 12, 1969

Re: Authority of State Planning Officer to execute project agreements.

Your letter of September 4, 1969, to Governor Lester Maddox has been referred to this office for reply. Specifically, you inquired as to whether the Honorable Oliver Welch, State Planning

539

Officer, is authorized to continue executing Land and Water Conservation Fund project agreements even though the Honorable Zell Miller, Commissioner of Conservation, has the authority and responsibility to accept and administer funds paid under said Act.
My letter to you of August 27, 1969, contained a reference to Ga. Laws 1969, p. 859 and an Executive Order dated July 1, 1969, which was promulgated pursuant thereto. The statute, Executive Order and my previous letter are in accord that Mr. Miller must "administer" the fund. As defined by the Random House Dictionary of English Usage. the word administer means "1. to manage (affairs, a government, etc.); have executive charge of.. .." This would, in my estimation, include the execution of Land and Water Conservation Fund project agreements and related binding documents. The approval of projects and execution of contracts are not ministerial functions. They require discretion and, as such, are non-delegable. See 73 C.J .S., Public Administrative Bodies and Procedure, 57. I, therefore, certify that the authorization to execute such agreements is vested solely in Mr. Miller.

OPINION 69-388

To: State Revenue Commissioner

September 12, 1969

Re: Garnishments for State tax not subject to restrictions on garnishments by Title III of Federal Consumer Credit Protection Act.

This is in reply to your letter requesting an opinion as to whether recent Federal legislation imposes any restriction on garnishments for State taxes.
Title III of the Consumer Credit Protection Act, 15 U.S.C.A. 1671-77, limits the amount of earnings of an individual which may be subjected to garnishment. However, Section 303(b)(3) of that Title, 15 U.S.C.A. 1673(b)(3), provides that such restrictions "do not apply in the case of ... any debt due for any State or Federal tax." Therefore, it is my opinion that garnishments in the case of any debt due for any State tax are governed by State law.
However, Section 304(A) of that Title, 15 U.S.C.A. 1674(A) prohibits discharge by an employer of any employee "by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness." That provision extends to any "indebtedness" and thus includes debts for State taxes. An employer could not, therefore, discharge an employee by reason

540

of the fact that the employee's earnings have been subjected to garnishment for any one indebtedness, whether or not that debt is for State taxes.
It is to be noted that Section 504(c) of the Act specifies the effective date of Title III as July 1, 1970.

OPINION 69-389 (Unofficial)

To: Governor

September 15, 1969

Re: Department of Industry and Trade may use allocation from Emergency Fund to provide labor availability study for a city.

This is in response to your oral request, as communicated through General Truman, for an unofficial opinion as to whether an allocation may be made from the Emergency Fund to the Department of Industry and Trade to enter into a contract with Georgia Tech for the conduct of a labor availability study for the City of Fitzgerald. It is my understanding that an industrial prospect is strongly considering the location of a plant in that area and the availability of a sufficient labor supply will be determinative of his ultimate selection.
Please refer to Op. Atty. Gen. 69-51 and 69-312 regarding the use of the Emergency Fund. In both opinions, it was pointed out that a State agency may, at the Governor's discretion, receive and expend an allocation from the Emergency Fund for any purpose consistent with the agency's enumerated powers for which no continuing obligation is created.
It is the function of the Department of Industry and Trade to promote the establishment and development of business and industry within the State. Ga. Code Ann. 40-2107(c). In order to do so, it is authorized to maintain an effective business information service and make the results of any and all studies,
surveys and investigations available for distribution to interested persons. Ga. Code Ann. 40-2107(f) and 40-2108(e).
Based on the above, it is my opinion that the Department of Industry and Trade is authorized to conduct a labor availability study for the City of Fitzgerald and may do so with money it receives from the Emergency Fund.

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OPINION 69- 390 (Unofficial)

To: State Highway Engineer

September 15, 1969

Re: Blasting by State Highway Department.

This is in reply to your letter of August 28, 1969, wherein you requested an unofficial opinion on whether the provisions of Act No. 80, Ga. Laws 1969, p. 50, dealing with requirements in connection with blasting, etc. near underground gas pipes, apply to the State Highway Department of Georgia.
The Act, in essence, provides that subsequent to September 1, 1969, no person shall perform, or engage, in blasting or in excavating with mechanized equipment on any parcel of land in the State of Georgia unless and until certain conditions have been met.
The State is not bound by the passage of a law unless named therein, or unless the words of the Act should be so plain, clear and unmistakable as to leave no doubt as to the intention of the Legislature. Ga. Code Ann. 102-109.
The definitional portion of the Act defines "Person" as "(a) ... an individual or corporation." "Corporation" is defined therein as "(b) . . . any corporation, municipal corporation, joint-stock company, partnership, association, business trust, organized group of persons, whether incorporated or not, or receiver or receivers, trustee or trustees of any of the foregoing." These are the only portions of the Act under which it might be argued that the State or the State Highway Department would be included therein. However, it should be noted that neither the State nor the Department is specifically named in the Act. The Act does not manifest a plain, clear and unmistakable intent to apply the Act to the State or any of its Departments.
Therefore, construing the code section mentioned hereinbefore, together with the provisions of this Act, it is our unofficial opinion that the provisions of Act No. 80, Ga. Laws 1969, p. 50, do not apply to the State Highway Department of Georgia.

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This opinion should not be construed to exempt independent contractors who have contracts with the Department from the provisions of this Act. Also, while the Act does not apply to the Department, the decision as to whether or not the Highway Department should comply with the "safety features" of the Act remains with the officials of the Department.

OPINION 69-391 (Unofficial)

To: Superintendent of Schools, Richmond County

September 16, 1969

Re: Commissions for collection of school taxes.

This is in reply to your letter presenting, in essence, the following questions:

1. Whether the Tax Commissioner of Richmond County is entitled to withhold commissions for collection of county school taxes levied under authority of Article VIII, Section XII, Paragraph I of the Constitution of_ Georgia (Ga. Code Ann. 2-7501), and, if so, in what amount. 2. Whether the County Board of Education may contract with the Tax Commissioner to pay additional compensation to the Tax Commissioner for collection of county school taxes. 3. Whether the penalties assessed against delinquent taxpayers must be prorated to the Board of Education according to the proportion of county school taxes comprising the principal amount due.

First, I am of the opinion that the Tax Commissioner of Richmond County is not entitled to withhold any commission for collection of county school taxes levied under the authority of Art. VIII, Sec. XII, Par. I of the Constitution of Georgia (Ga. Code Ann. 2-7501). Section 8 of the Act (Ga. Laws 1956, pp. 2362, 2365) creating the office of Tax Commissioner of Richmond County, provides that the Tax Commissioner is to be compensated by salary only. See also Ga. Laws 1957, p. 2623, and 1961, p. 2688, as amended. Ga. Code Ann. 32-1106 (Ga. Laws 1946, pp. 206, 211) provides that where the Tax Commissioner is on a salary basis, the commission of 2 1/2 per cent therein provided for
county school tax collections shall be -collected and paid over to
the proper fiscal authorities. Section 9 of the Act creating the

543

office of Tax Commissioner for Richmond County, however, provides that no charge shall be made against the County Board of Education for collection of school taxes. Since later Acts (Ga. Laws 1957, p. 2623, and 1961, p. 2688, as amended) do not expressly overturn that Section nor conflict with its operation, I am of the opinion that Section 9 has not been repealed and is controlling. See Montgomery v. Board ofEducation ofRichmond County, 74 Ga. 41(b) (1885).
Second, I am of the opinion that the Board of Education of Richmond County may not contract with the Tax Commissioner to allow the Commissioner to withhold the costs allocable to collection of school taxes. In Burke v. Wheeler County, 54 Ga. App. 81, 85 (1936), the Court of Appeals held that public funds may not be expended unless such expenditure is authorized by law and that "public-school funds may not be used for any other than school purposes." An official opinion of the Attorney General in 1958 ruled that the collection of taxes for public schools is not a proper function of the County Board of Education. Op. Atty. Gen., 1958-59, p. 128. Therefore, I am of the opinion that the Richmond County Board of Education may not contract with the Tax Commissioner to allow withholding by the Commissioner of the cost of school tax collection.
Third, I am of the opinion that the Board of Education is not entitled to any portion of the penalties assessed against delinquent property owners. I assume that the penalty referred to is that provided by Ga. Code Ann. 92-6913. That Section provides that the penalty therein specified shall be "paid into the county treasury and remain the property of the county." In two opinions, Op. Atty. Gen., 1954-56, p. 825, it was ruled that no part of the penalty therein provided was payable to the Board of Education. See also Ga. Laws 1961, p. 2688, Sections 16 and 18. Therefore, I am of the opinion that the Board of Education is not entitled to any portion of the penalties collected by the Tax Commissioner.

OPINION 69-392 (Unofficial)

To: Cooperative Extension Service

September 17, 1969

Re: Charitable exemption availiable only if property is dedicated to charity and used exclusively for such purposes.

This is in reply to your request for advice concerning whether property of a community club is exempt from ad valorem taxation

544
under Ga. Laws 1946, p. 12, as amended, (Ga. Code Ann. 92-201). The community club, from the information furnished by you, is a nonprofit organization open to any person living in the community interested in its objectives which are stated in its by-laws to be the promotion of the improvement of the home, the farm and the community; the improvement of the standard of living; and the bringing into closer relation, socially and spiritually, the members of the community. Its activities consist primarily of what may be termed service activities and contributions to charitable organizations. It is not supported by fixed dues but rather by voluntary contributions and through the proceeds of fund raising activities, such as barbecues.
The property of the community club is exempt, if at all, as property of an institution of "purely public charity," Ga. Laws 1946, p. 12, as amended (Ga. Code Ann. 92-201).
The Supreme Court of this State has consistently held that whether the property in question is exempt under that provision depends on the use to which the property is put and not on the otherwise laudable activities of the owner. Tharpe v. Central Council of Boy Scouts of America, 185 Ga. 810 (1938). Further, the property owner bears the burden of demonstrating that the property comes within the exemption.- See Historic House Museum Corp. v. Camp, 223 Ga. 510 (1967).
Consistent with the Supreme Court's interpretation, the Attorney General has ruled that property of organizations performing charitable or patriotic objects is not exempt where the property is used primarily to benefit organization members and to provide facilities in which the members can meet on a social basis. See Op. Atty. Gen. 1962, pp. 495, 498; 1950-51, p. 154.
Thus, it is not possible to give a definite answer to your question. While the facts indicated above indicate occasional charitable activities, the by-laws of the organization indicate that the organization is in part social in nature and that its activities have been in part social. Thus, if the property of the organization is used for such purpose, it would not be exempt since it furthers the interest of its members even though it incidentally serves the community. See Camp v. Fulton County Medical Society, 216 Ga. 602, 606 (1964). If the property is dedicated to charity and used exclusively as an institution of purely public charity, however, it would be exempt. Tharpe v. Central Georgia Council of Boy Scouts of America, supra. Therefore, if the property is used primarily to benefit the social needs of the organization, I am of the opinion that it would not be exempt.

545

OPINION 69-393 (Unofficial)

To: City Attorney, Doraville

September 17, 1969

Re: Person under the age of 21 years is ineligible to hold any civil office in Georgia.

You have requested our unofficial opinion . concerning the eligibility of a resident of your city to run for office in your forthcoming election. The resident is under the age of twenty-one years.
You indicate that you are aware of Ga. Code Ann. 89-101(1) which deems .any person under the age of twenty-one years ineligible to hold any civil office. So far as we can determine, that law is still valid and would obtain in case of a candidate offering for a city office.
It is therefore our unofficial opinion that a person under the age of twenty-one years is ineligible to hold any civil office in Georgia.

OPINION 69-394 (Unofficial)

To: State Highway Department of Georgia September 18, 1969

Re: The maximum legal speed on limited access highways is seventy miles per hour.

This is in reply to your letter of August 27, 1969, requesting an unofficial opinion as to the effect of Ga. Laws 1968, p. 987, and
Ga. Laws 1968,p. 1427. In 1968 the General Assembly passed three amendments to the
Uniform Act Regulating Traffic on Highways (Ga. Laws 1953, Nov.-Dec. Sess., p. 556) with respect to speed limits on limited access highways. See Ga. Laws 1968, p. 987; Ga. Laws 1968, p. 1158; Ga.. Laws 1968, p. 1472. The first of these referred to "all limited access highways ... having not less than four lanes." The second referred to "all highways which comprise a part of the National System of Interstate and Defense Highways and all other limited access highways as approved by the Highway Department Safety Director...." The third referred only to those highways which are a part of the National System and State Highway No. 316. None of the three amendatory acts refers to the other two. Thus, your confusion as to the present status of the law is understandable.

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In construing legislative enactments, the intent of the General Assembly is controlling. Sharpe v. Lowe, 214 Ga. 513 (1959); Collier v. Mitchell, 201 Ga. 528 (1951). Statutes must be construed in context with existing laws, and inconsistencies should be reconciled where possible. Thornton v. Anderson, 201 Ga. 714 (1951); Daniel v. Citizens and Southern National Bank, 182 Ga. 384 (1936). In order to effectuate what is the apparent legislative intent, and to harmonize the statutes in question, one must interpret these Acts as applying the speed limitation to all highways mentioned in the three Acts.
It is clear that none of the three had the effect of repealing the others. For one Act to expressly repeal another, the repealing Act must set out the substance of the Act to be repealed. Georgia Constitution, Art. III, Sec. VII, Par. XVII. Since none of the acts in question even mention the other two, there would be no express repeal. In addition, implied repeal is recognized only where there is an irreconcilable repugnancy between different statutes. Montgomery v. Board of Education of Richmond County, 74 Ga. 41 (1884); Strickland v. Peacock, 209 Ga. 773,
(1953). In this case, where the statutes are interpreted as being cumulative rather than exclusive, no repugnancy exists.
Therefore, it is my unofficial opinion that all three acts are in force. Thus, there is a maximum speed limit of seventy miles per hour on all limited access highways, having four or more lanes, in the State. This maximum speed limit does not apply to trucks, truck-tractors and trailers, buses or other vehicles which have specific speed limits set forth in the Uniform Act Regulating Traffic on Highways, supra.

OPINION 69-395

To: Joint Secretary, State Examining Boards

September 18, 1969

Re: Attendance by members of the State Board of Accountancy at meetings with similar boards of other states.

This is in response to your request for an opiniqn as to whether members of the Georgia State Board of Accountancy may attend a conference with similar boards from other states for the purpose of dealing with questions pertaining to the National Uniform Examination, which the Georgia State Board of Accountancy uses. Your question is concerned with whether all members of the Board may attend this conference. It is assumed that the pertinent

547
issue relates to the expenditure of State funds for the members to attend this meeting.
Your question arises from an apparent conflict between the law specifically pertaining to the State Board of Accountancy and the law pertaining to all of the various examining boards under the jurisdiction of the Joint Secretary. Ga. Code Ann. 84-102, as amended (Ga. Laws 1943, p. 370; 1955, p. 323) provides, inter alia, that:
"One member of each of,'the several examining boards may attend annually State and/or national meetings pertaining to the work of his respective trade or profession."
Ga. Laws 1935, p. 87 (Ga. Code Ann. 84-202) dealing specifically with the State Board of Accountancy, provides, inter alia, that:
"The Board, or any member thereof designated by the Board, may confer with similar boards of other States, or attend meetings for the purpose of obtaining information for the advancement of the profession and the standards thereof."
In construing statutes, it is proper to look for the intention of the General Assembly. Ga. Code Ann. 102-102. It is an elementary rule of statutory construction that all statutes relating to the same subject matter, referred to as statutes in pari materia, are construed together and harmonized whenever possible so as to ascertain the legislative intendment and give effect thereto. Ryan v. Commissioners of Chatham County, et al., 203 Ga. 730, 732 ( 1948). When it becomes necessary to construe statutes on the same subject matter in order to ascertain the intention of the Legislature, it is proper not only to consider the two statutes in relation to each other, but the whole system of laws of which the statute in question is a part becomes pertinent in arriving at the intention of the General Assembly in enacting the statute in question. Ryan v. Commissioners of Chatham County, supra.
Therefore, in order to determine whether the General Assembly, in enacting Ga. Code Ann. 84-102, as amended (Ga. Laws 1943, p. 370; 1955, p. 323), intended to restrict attendance at meetings by members of the State Board of Accountancy to one member, it is necessary to see how the law concerning the State Board of Accountancy and the law concerning the office of Joint Secretary of the State Examining Boards have evolved.
In 1931 the Georgia General Assembly enacted a law

548
completely reorgamzmg the State Government. Article VIII, Section 89 of the reorganization Act, Ga. Laws 1931, pp. 7, 35, 37, authorized and directed the Secretary of State to appoint one secretary for the several examining boards, including the State Board of Accountancy. Article VIII, Section 89A of said Act provided that the expenses of the members of the various examining boards named in the Act (Board of Accountancy included) should be limited to actual expenses while in attendance upon the meetings of the respective boards, and actual travel expenses. Therefore, in 1931 neither the State Board of Accountancy, nor any of the other State Examining Boards under the jurisdiction of the Joint Secretary, were authorized to attend state or national meetings or conferences at state expense.
In 1935 the General Assembly conferred upon the State Board of Accountancy the authority to "confer with similar boards of other States, or attend meetings for the purpose of obtaining information for the advancement of the profession and the standards thereof." Ga. Laws 1935, p. 87 (Ga. Code Ann. 84-202). At this point, the expression by the Legislature concerning the State Board of Accountancy apparently gave the
State Board of Accountancy authority to attend such meetings whereas none of the other examining boards under the jurisdiction of the Joint Secretary enjoyed this prerogative.
The present provision in Ga. Code Ann. 84-102 quoted above was first enacted by Ga. Laws 1937, pp. 208, 210. This Act repealed the original Section 89(a) of Ga. Laws 1931, pp. 7, 35, 37 and enacted a new section which included the provision concerning "one member of each of the several examining boards" attending state and/or national meetings. With the passage of Ga. Laws 1937, pp. 208, 210, all of the several examining boards under the jurisdiction of the Joint Secretary were given authority which they had not possessed before-i.e., that one member could attend annually state and/or national meetings at state expense. This Act does not refer to the previously granted power to the State Board of Accountancy nor was the authority given to the State Board of Accountancy by Ga. Laws 1935, p. 87 (Ga. Code Ann. 84-202) ever expressly diminished or restricted.
In 1943 the several State examining boards which were placed under the jurisdiction of the Joint Secretary by Ga. Laws 1931, pp. 7, et seq. were abolished and recreated by Ga. Laws 1943, p. 212 (Ga. Code Ann. 84-10la, et seq.). That Act provides that said examining boards shall "be subject to all provisions of law with respect to the said present state examining boards and commissions not inconsistent with this Act." By an Act passed at

549
the same session of the General Assembly )and approved the same day (March 20, 1943), Ga. Code Ann. 84-102 was re-enacted by Ga. Laws 1943, p. 370, so as to include therein the provision concerning one member of each of the several examining boards attending meetings which was originally enacted by Ga. Laws 1937, pp. 208, 209.
If the Act conferring authority on the State Board of Accountancy to attend state and/or national meetings (Ga. Laws 1935, p. 87 (Ga. Code Ann. 84-202)) were hopelessly in conflict with the general provision affecting all examining boards which restricts attendance at state and/or national meetings to one member (Ga. Code 84-102, as amended), the last expression of the lawmaking power would control. Berry, eta/. v. Jordan, eta/., 121 Ga. 537 (1904); Atlanta Finance Co. v. Brown, 187 Ga. 729, 731 (1939). But if these two statutes, being in pari materia, can be construed together so as to ascertain the legislative intention, no repeal should be implied.
Since Ga. Laws 1937, pp. 208,210, which provided that:
"One member of each of the several Examining Boards may attend annually State and/or national meetings pertaining to work of their respective trade or profession"
was obviously intended as a grant of power to all of the examining boards rather than a restriction on the authority previously granted to the State Board of Accountancy, the two statutes cannot be said to be directly in conflict or hopelessly inconsistent with each other. There is nothing in the 1937 Act (Ga. Laws 1937, pp. 208, 210) or the 1943 Act (Ga. Laws 1943, p. 370 (Ga. Code Ann. 84-102)) which indicates that the legislature intended the provision concerning "one member of each of the several examining boards" to operate as anything other than a grant of authority. Obviously, this provision could not have been intended to operate as a restriction on the authority of the examining boards because, to my knowledge, none of the examining boards other than the State Board of Accountancy had authority to send members to state and/or national meetings at state expense. Therefore, it appears that Ga. Laws 1935, p. 87 (Ga. Code Ann. 84-202), was intended as a grant of authority to the State Board of Accountancy and that authority has not been restricted or diminished.by Ga. Laws 1937, pp. 208, 210, and Ga. Laws 1943, p. 370 (Ga. Code Ann. 84-102), which granted a more limited authority to attend meetings to all of the examining boards under the jurisdiction of the Joint Secretary. This conclusion is

550

consistent with the ruling in Op. Atty. Gen. 1945-47, p. 513, which deals with the Georgia Real Estate Commission.
It is noted that the Act relating specifically to the State Board of Accountancy (Ga. Laws 1935, p. 87 (Ga. Code Ann. 84-202)) is not identical in its terms with the Act relating to all of the examining boards under the jurisdiction of the Joint Secretary. Both Acts contain general language concerning the attendance of meetings pertaining to the professsion involved, but the Accountancy Board Act includes the additional provision that the Board, or any member thereof designated by the Board, "may confer with similar boards of other states ...."It would appear, therefore, that the conclusion reached in this opinion would be particularly compelling in the instance of a meeting the purpose of which is to "confer with similar boards of other states."
In summary, it is my opinion that, pursuant to Ga. Laws 1935, p. 87 (Ga. Code Ann. 84-202), the State Board of Accountancy may attend the meeting referred to in your question without regard to the "one member" restriction on boards under the jurisdiction of the Joint Secretary which have no specific additional authority for attendance at such meetings.

OPINION 69-396

To: Insurance Commissioner

September 18, 1969

Re: Collection of back taxes from insurance contracts written outside the state.

An examination of a foreign insurer transacting insurance in Georgia has revealed that a possible additional tax is due to the State of Georgia on premiums collected in Georgia on a group accident and health policy written in Illinois and covering persons in several states including Georgia.
You have examined the total premium writings in Georgia of this insurer for the years 1964 through 1968. You have billed the foreign insurer for the premium tax due for this period. You advise that the insurer's board of directors may authorize payment of this amount provided the Insurance Commissioner, acting on behalf of the State, agrees that this amount satisfies all claims of the State for back taxes due under this contract through 1968.
You have requested my official opinion upon the following:

1. What is the statute of limitation, if any, on action by the State of Georgia to recover back insurance taxes?

551
2. May the Insurance Commissioner legally collect taxes on insurance premiums received by an insurer covering Georgia residents on a group insurance contract written outside Georgia? 3. If my answer to No. (2) is in the affirmative or that your authority to collect these taxes is doubtful, does the Insurance Commissioner have authority to accept the additional taxes for the five year period and to .sign an agreement that this amount satisfies all claims by the State of Georgia against the insurer for back taxes arising out of the group insurance contract through 1968?
All insurance companies doing business in Georgia must pay a tax of 2 1/4% upon the gross direct premiums received by them upon persons, property or risks in Georgia for each year. Ga. Code Ann. 56-1303. I have been unable to fmd any statute of limitation in the Georgia Insurance Code which specifically applies to this tax. Hence, it is my opinion that the situation is controlled by the general law and any action to recover insurance taxes under Ga. Code Ann. Ch. 56-13 must be brought within seven years from the date that the execution may be lawfully issued. Ga. Code Ann. 92-7701 as interpreted by Georgia R. R. Co. v. Wright, 124 Ga. 596 (20) (1905); Oxford v. Jessup, 101 Ga. App. 612 (1960). As to when an execution may lawfully issue, please see Ga. Code Ann. 56-1311.
In response to your second question, the Insurance Code clearly authorizes collection of a tax upon the gross direct premiums received by insurers upon persons, property or risks in Georgia. Ga. Code Ann. 56-1303. There is no statutory requirement that the insurance contract be written in Georgia and I am unaware of any authority, State or Federal, which would impose this requirement on our statute. Therefore, the Insurance Commissioner may legally collect taxes on insurance premium~ received by an insurer covering Georgia residents on a group insurance contract written outside Georgia.
In response to your third question, the Insurance Code limits the duties and powers of the Insurance Commissioner to those created and vested by the provisions of Title 56 of the Code of Georgia. Ga. Code Ann. 56-201. This principle is in accord with the general provision that any power of a public official must be defined by law. Ga. Code Ann. 89-903. The Supreme Court of Georgia has decided, long ago, that in the absence of specitic authority from the State to do so, neither the Governor nor the Attorney General nor the Comptoller General may settle or

552
compromise a debt due the State for less than the full amount. State v. The Southwestern R.R., 70 Ga. 11 (1883); State v. The Southwestern R.R., 66 Ga. 403 (1880). I can find no authority from the State to the Insurance Commissioner to allow the Insurance Commissioner to settle or compromise any claim for taxes due the State. Therefore, if your further investigation within the statute of limitation set out above indicates that additional taxes are due the State, it is my opinion that you do not have the authority to accept payment of the taxes for the five year period and sign a binding agreement that this amount satisfies all claims by the State against the insurer for taxes assessing out of the group insurance contract through 1968.
OPINION 69-397
To: State Highway Construction Engineer September 18, 1969
Re: Highway Department may be liable for damages to private property (Big Pine Lake) caused by public improvements.
This is in reply to your letter of September 8, 1969, wherein you requested an unofficial opinion as to the liability of the State Highway Department regarding the damages sustained by the above lake that occurred during the construction of the above captioned project.
It is my understanding from reports submitted to this office that certain material, silt, and sediment has been washed into Big Pine Lake, which is owned by Big Pine Lake, Inc.
According to the facts which you have set out in your letter of September 8, 1969, the original plans on this project were changed after the contractor had completed all original grading in the area without causing any damage. The original plans were changed to allow Starr Road (Adamson Road) to remain in place as a detour for Mt. Zion Boulevard. The Bureau of Public Roads agreed to this change by Record of Authorization to Proceed with Major Contract Revision dated April 23, 1968. The contractor orally agreed to this change, but by letter of July 19, 1968, notified the Department that he expected to make a claim for any additional costs to him because of the change in plan conditions. As previously mentioned, the contractor had completed the grading in the area and had all the erosion protection items in place, including a settlement basin that would have been sufficient under normal circumstances. Heavy rains then occurred during the last stages of completing the extra work of removing and wasting the

553
detour excavation and caused silt to overflow the settlement basin and to be deposited at the head of Big Pine Lake.
An inspection of May 28, 1969, and subsequent inspections by members of your Department, the Right of Way Department, and members of the Bureau of Public Roads, revealed physical evidence of silt that had washed from the construction waste area into Big Pine Lake and which would not have been there otherwise. It is the opinion of the State Highway Department that it is liable to the property owners of this pond to the extent of removing the visible silt that was washed into the pond.
It is my understanding that the Bureau of Public Roads has been requested to participate in the cost of removing the silt and sediment from the aforementioned lake. Before the Bureau will agree upon any type of settlement, a statement from the Attorney General's Office must be submitted regarding the liability of the State Highway Department for damages sustained. This unofficial opinion is written to furnish you with the necessary information to answer the request of the Bureau of Public Roads.
In order to fully assess liability and damages in this matter, we have reviewed correspondence from the property owners, the State Highway Department, the contractor responsible for the building of the project, and the Bureau of Public Roads. In addition, several on-site inspections of the premises were made in the company of engineers and employees of the Right of Way and Construction Divisions of the State Highway Department of Georgia and the Bureau of Public Roads. In writing this opinion, this office will not disagree with the engineering determination reached by the State Highway Department to the effect that the silting damage sustained by Big Pine Lake was a direct result of the construction of Project 1-75-2 (39), Henry-Clayton Counties.
Even though no portion of the lake involved in this situation was actually taken by the Highway Department in connection with this highway project, Art. I, Sec. III, Par. I, of the Constitution of Georgia (Ga. Code Ann. 2-301) provides that:
"Private property shall not be taken, or damaged. for public purposes, without just and adequate compensation being ftrst paid ...." (Emphasis added.)
In Dougherty County v. Hornsby, 213 Ga. 114, 116 (1957) the Supreme Court of Georgia, in elaborating upon this Constitutional provision, stated the following:

554
'Accordingly, if property is damaged, even by the prudent and proper exercise of a power conferred by statute, the owner is entitled to just compensation in an amount represented by the difference between the market value of the property before and after the procedure taken for public purposes.' (citing cases)."
It does not matter that the property involved does not adjoin or abut the highway improvement if the construction of the improvement resulted in physical damage to the property. In Tift County v. Smith, 107 Ga. App. 140 (1962), rev'd, on other grounds, 219 Ga. 68 (1963), plaintifPs land did not abut or adjoin the highway improvement, but was damaged from water caused by the highway improvement to flow and pond upon it, and as to that it was held by the Court that the plaintiff had a cause of action.
This same result has been reached in other cases .where plaintiff's property did not adjoin or abut upon the improvement. See in this connection Dougherty County v. Long, 93 Ga. App. 212, 213 (1956); Clarke County School District v. Madden, 99 Ga. App. 670 (1) (1959);Sheehan v. Richmond County, 100 Ga. App. 496 (1959), and statement in Austin v. Augusta Terminal Railroad Co., 108 Ga. 671, 678 (1899).
The Court of Appeals in the case of Gwinnett County v. Allen, 56 Ga. App. 753, 754 (1957) further elaborated on the constitutional provision previously mentioned as follows:
"The. constitutional. provision ... is all inclusive, and covers taking or damaging of private property whether brought about.by action involving proper and diligent construction or taking, or negligent damaging or taking. Bates v. Madison County, 32 Ga. App. 370 (123 S.E. 158). In either event, the citizen's constitutional right is violated, and he is entitled to just and adequate compensation."
Therefore, construing the constitutional amendment and cases hereinbefore mentioned, and assuming that the engineering reports and submissions as to responsibility for damages are correct, and based upon the facts which we have before us at the present time, it is the unofficial opinion of this office that the State Highway Department of Georgia is liable under the laws of the State of Georgia for the damage suffered by Big Pine Lake, Inc. as a result of silt and sediment being washed into Big Pine. Lake.

555

OPINION 69-398 (Unofficial)

To: Cobb County, Election Committee

September 19, 1969

Re: Selection of buildings to be used as polling places.

You have requested information on whether there has been any ruling concerning which private buildings might be preferable to other private buildings in selecting polling places. You also inquire about the use of churches.
As you probably realize, the Georgia Election Code places the duty of selecting and fixing the polling place on the ordinary. Ga. Code Ann. 34-705. The Election Code does provide that in selecting polling places, the ordinary, wherever practicable, shall select public buildings. Ga. Code Ann. 34-706. So far as we can determine, there is no provision of law which would operate to prefer some private buildings over others in the event the use of public buildings is not practicable. The use of churches, by itself, would not appear to be illegal if there were no adequate public buildings available for use as polling places.
As you realize, it is extremely difficult to set down any general guidelines since each case must be decided on its own facts. However, we hope the above discussion has been of some assistance to you.
The Attorney General of the United States has advised us that it is his position that any change in polling places must be approved under the Voting Rights Act of 1965. We advise you of his position so that you may take appropriate action if and when the need arises.

OPINION 69-399

To: Secretary of State

September 19, 1969

Re: Elections--Separate election districts are required when electing councilmen by wards.

You advise that several municipalities in Georgia have a requirement that each of their seven councilmen be elected from a different ward. The candidates who run for the post in each ward are elected by the vote of those electors who reside in the respective ward. You have requested my official opinion on the problem of whether each ward should be a separate election

556

district with its polling place or whether it would be permissible for the city to have only one election district while printing seven different ballots to be distributed to the electors as they enter the common polling place so that each elector would only be allowed to vote for that candidate who is offering for the ward in which the elector resides.
The Municipal Election Code requires that all ballots for use in the same election district at any primary or election shall be alike and shall contain only the names of the candidates to be voted on in such district. Ga. Code Ann. 34A-1006. This provision would appear to preclude the use of seven different ballots in the same election district. There are practical reasons for this requirement which become obvious after some reflection on the problem.
Since there can be only one polling place in each election district (Ga. Code Ann. 34A-103(f); "Opinions of the Attorney General Construing the Georgia Election Code," Op. No. E-51), I believe that the municipality should create an election district for each ward. Your letter indicates that the municipality could use the county election districts if I decide that each ward should be a separate election district. This would be in accord with the Municipal Election Code which indicates that insofar as practicable the municipal election districts should be the same as those for county and state elections. Ga. Code Ann. 34A-601.
It is therefore my official opinion that if a municipality requires that each of its seven councilmen be elected from a different ward and the candidates are elected by the electors residing in that ward, each ward should be a separate election district.

OPINION 69-400

To: State Representative

September 20, 1969

Re: Governing authority of a county may hire temporary personnel to assist the Oerk of the Superior Court.

This will acknowledge your recent inquiry to me wherein you asked if the governing authority of a county may hire temporary personnel to assist the Clerk of the Superior Court pursuant to the provisions of Ga. Laws 1968, p. 447 (Ga. Code Ann. 23-3003).
Inasmuch as the Clerk of the Superior Court is a county officer, Op. Atty. Gen. 1954-56, p. 81, it is my opinion that Ga. Laws 1968, p. 447, authorizing the governing authorities of the various counties to expend county funds for the purpose of employing additional temporary personnel to assist county officers,

557

authorizes the hiring of such temporary personnel to assist the Qerk of the Superior Court. (Also, see attached Op. Atty. Gen. 69-25.)

OPINION 69-401 (Unofficial)

To: Private Inquirer

September 22, 1969

Re: Five per cent of a corporation's net taxable income is deductible from the taxpayer's gross income if contributed to an educational organization.

This is in reply to your letter addressed to Mr. Peyton S. Hawes, State Revenue Commissioner, in whi.ch you requested information concerning deductions from gross: income in computing the taxable net income for corporations operating in Georgia. Your particular question related to the effect of Ga. Code Ann. 92-3111.1 which, under certain circumstances, allows a full deduction of amounts paid to certain educational organizations against a corporation's payable income tax.
In 1959 the General Assembly passed this Section because there existed the possibility that all Georgia public schools would be closed. The intent was to provide sufficient funds to build and operate private institutions. Under these conditions it was intenaed that the Commissioner, in his discretion, would issue certificates to such institutions certifying that they were operated for educational purposes. These conditions, precedent to the operation of Ga. Code Ann. 92-3111.1, have not, as yet, occurred.
The Brunswick Corporation could have made contributions to educational organizations under Ga. Code Ann. 92-31 09(g) for years ending prior to January 1, 1969. This Section allows a deduction from gross income in the amount of five percent of the net taxable income.
The General Assembly of Georgia amended the corporate income tax law for all years beginning on and after January 1, 1969, so as to impose the tax on taxable income as defmed in the Internal Revenue Code. The new law provides for some special adjustments that do not appear to be involved in your question and provision is made for allocation and apportionment. Ga. Laws 1969, p. 114. Federal law permits deductions such as you anticipate and provides for the extent and manner thereof, thereby directly affecting your taxable income.

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OPINION 69-402 (Unofficial)

To: Department of Revenue

September 22, 1969

Re: For inheritance tax purposes the State of Georgia considers real estate subject to a conditional sales contract as intangible personal property and partnership real estate as real property.

This is in response to your letter to the Department of Revenue, State of Georgia, wherein you request the Revenue Department's position for inheritance tax purposes on the questions of whether or not the State of Georgia considers real estate subject to a conditional sales contract, in which a portion of the purchase price is still due, as intangible personal property in the estate of the deceased seller and whether or not the State of Georgia considers partnership real estate as intangible personal property in the estate of the deceased partn~r?
In Georgia "[u]pon the death of the owner of realty the title vests immediately in the heirs, but the title to all other property of the estate vests in the administrator...." (Juhan v. Juhan, 104 Ga. 253 (1898)).
"Where on a sale of land the purchaser pays a part of the purchase-money in cash and receives from the seller a bond for title obligating the seller to convey the .land on payment of the balance of the purchase-money, the purchaser has a beneficial or equitable estate in the land, and where the purchaser dies intestate the estate passes directly to his heirs at law." (Weems v, Kidd, 37 Ga. App. 8 (1927)).
Where the seller is deceased at the time the purchaser pays the balance of the purchase money for the land the purchaser may
anapply to the ordinary having jurisdiction of the seller's estate for order requiring the administrator or executor to make title for the land. (Ga. Laws 1857, p. 61, as amended, Ga. Laws 1958, p. 668; Ga. Code Ann. 113-1601).
In Georgia the legal title to real estate can never vest in a partnership but will instead vest in the individual partners as tenants in common subject to the equities of the partnership and its creditors. (All Florida Sand Unincorpora~ed v. Lawler Construction Company, 209 Ga. 720 (1953)).
Where partnership real estate is sold by the surviving partner to
pay partnership debts the legal title to such land must be conveyed by the heirs of the deceased partner. (Bank of Southwest Georg(a v. McGarrah, 120 Ga. 944 (1904)).

559

Therefore, it is my unofficial opinion and the position of the Department of Revenue that for inheritance tax purposes the State of Georgia considers real estate subject to a conditional sales contract, in which a portion of the sales price is still due, as intangible personal property in the estate of the deceased seller and for inheritance tax purposes the State of Georgia considers partnership real estate as real property in the estate of the deceased partner.

OPINION 69-403 (Unofficial)

To: City Attorney, City of Columbus

September 22, 1969

Re: Nonpartisan municipal election best provided by General Assembly.

Your city charter provides that political parties shall nominate their candidates for all offices of the city [to be elected by the people of the city] by primary elections.. In the event your city wishes to hold a nonpartisan municipal primary to nominate candidates for offices on the governing authority and to prohibit political parties from conducting similar primaries, you have requested our views on the safest method to achieve this result. In connection with this primary, you have also requested our views on how a nonpartisan municipal executive committee under Ga. Code Ann. 34A-905 is to be created.
The Municipal Election Code allows municipalities to provide by their charter -or ordinance that no political party shall conduct primaries for the purpose of nominating candidates for municipal elections. Ga. Code Ann. 34A-905. Section 4 of the Municipal Home Rule Act of 1965limits the power granted to municipalities in the Act so that the power shall not be construed to extend to action affecting the procedures connected with the election of the members of the municipal governing authority. Ga. Laws 1965, pp. 298, 302-303, as amended by Ga. Laws 1966, p. 296 (Ga. Code Ann. 69-1018(a)(2)). At first blush, these laws appear to be inconsistent since the first apparently allows a municipality to change by ordinance the procedures which are connected with the election of the members of the municipal governing authority while the second law provides that home rule power shall not extend to thses procedures.
When interpreting apparently inconsistent statutes, every effort must be made to make both statutes stand and a later statute will

560
not operate as an implied repeal of an earlier one if by any reasonable construction they can be reconciled. Sprayberry v. Wyatt, 203 Ga. 27 (1947); Folds v. Auto Mutual Indemnity Co. 55 Ga. App. 198 (1937).
Upon further examination of these statutes, we note that the limitation in the Home Rule Act applies only to the procedures connected with the election of the municipal governing authority. It would therefore be, in our unofficial opinion, a reasonable construction of these two statutes to hold that a municipality may prohibit by ordinance the conduct of a primary by a political party when the offices open for nomination in the primary are those other than membership on the governing authority. However, in view of the clear limitation in the Home Rule Act of 1965, we believe it would be the safer method to seek appropriate legislation from the General Assembly to effect the desired changes in those procedures connected with the election of the governing authority rather than attempt to effect the changes by home rule action. Since the Municipal Election Code allows the prohibition of parties to be accomplished by either charter amendment or ordinance (Ga. Code Ann. 34A-905), this construction would not do violence to the Code's provisions in view of the several ways in which a charter may be amended.
We recognize that this is a difficult question and there may be disagreement with our conclusions. Suffice to say that we believe our view is in accord with the intent of the statutes and is the safest way to deal with the problem. It is therefore our unofficial opinion that the safest method for a municipality to prohibit political parties from conducting a municipal primary to nominate candidates for offices on the governing authority is to secure appropriate legislation from the General Assembly.
In response to your second question concerning the creation of a nonpartisan municipal executive committee under Ga. Code Ann. 34A-905, we believe again, by a parity of reasoning, that the safer method would be to seek appropriate legislation from the General Assembly since this too is a procedure connected with the election of the governing authority. As an alternative, you may wish to consider the procedure set out in Ga. Code Ann. 34A-912. See also Ga. Code Ann. 34A-902.

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OPINION 69-404

To: State Representative

September 23, 1969

Re: "Control" in Ga. Code Ann. 13-207(a)(2) relating to bank holding companies means to exercise restraining or directing influence.

The Speaker of the House of Representatives has appointed an interim le~slative Bank Holding Company Study Committee to

conduct a study of the bank holding company law in Georgia. In

reviewing the applicable law, the Committee has found that the

word "control" in Ga. Code Ann. 13-207(a)(2) relating to bank

holding companies has never been defined. The relevant part of

the statute provides that it is unlawful "for any bank holding

company to acquire or hold direct or indirect ownership or

control of more than five per cent of the voting shares of any

bank." Ga. Code Ann. 13-207(a)(2). You have requested my

unofficial opinion on the definition of "control" to be applied

when interpreting this law.



When construing statutes, the ordinary signification shall be

applied to all words, except words of art or words connected with

a particular .trade or subject matter. Ga. Code Ann. 102-102(1).

I am not aware of any extraordinary signification attached to the

word "control" as used in this instance and I therefore believe that

the ordinary definition is applicable. "Control" means to exercise

restraining or directing influence over; to have power over.

Webster's Third New International Dictionary (1961).

The difficulty, of course, comes in applying this definition.

However, as I am sure you understand, the facts and circumstances

of each case would determine whether that case comes within the

scope of the restrictions in the bank holding company law. The

law itself contains several exceptions to these restrictions and

careful study should be given to each case to be sure that it does

not fall with,in any of the enumerated exceptions.

Aside from the above discussion, I doubt that any general

statement of law could cover the myriad ways in which a bank

holding company could acquire direct or indirect control of bank

voting stock. If you have any difficulty in reaching a decision in

any particular case after considering the statute and the particular

facts of the case, please let me know and I will be happy to assist

you further.

562

OPINION 69-405 (Unofficial)

To: Georgia Agricultural Commodity Commission for Eggs

September 24, 1969

Re: Investment of funds for ACC for Eggs in preferred stock of the National Egg Company.

This is in reply to your letter of September 3, 1969, concerning the authority of the ACC for Eggs to invest in preferred stock of the National Egg Company, a non-profit cooperative marketing association organized and existing under the "Cooperative Marketing Act" (Ga. Code Ann. Ch. 65-2).
Section 7 of the "Georgia Agricultural Commodities Promotion Act," Ga. Laws 1969, p. 763, provides in pertinent part that:

"Funds received by the Commissioner under the provisions of this Act shall be held in trust for the affected Commission .... It is the expressed intent and purpose of this Act to authorize the receipt, collection, and disbursement of such funds as trust funds of the affected entity by the Commissioner without complying with the requirement applicable to funds collected for the use and benefit of the State."

Section 17(i) of the Act, pertaining to investments, provides:

"Monies deposited by the Commissioner pursuant to this Section, which the Commission determines are available for investment, may be invested or reinvested by the Commissioner as provided for funds of the State of Georgia or any retirement system created by law. Provided, however, that all monies invested shall be invested in those areas of production that will provide a return at the highest bank interest rate available. It shall be the duty of the Commission to annually review these investments, and determine that the provisions of this Section are complied with."

The manner in which funds of the State of Georgia may be invested is narrowly restricted and has no application to the present matter, as I understand the stock in question will not be secured by bonds and is not guaranteed by any State or Federal agency.

563

It next becomes necessary to consider the investment authority possessed by the various retirement systems created under the law of this State.
I have examined the investment powers of the various retirement systems and find they fall within two categories:

a. Authorized to invest funds in any investments which are legal investments of trust funds under the laws of the State of Georgia. b. Authorized to invest and reinvest funds subject to all the terms, conditions, limitations and restrictions imposed by the laws of the State of Georgia upon domestic life insurance companies in the making and disposing of their investments.

With regard to investment of trust funds, Ga. Code Ann. 108417 provides, generally, that trustees may invest in bonds or other obligations issued by the State or the United States, and may make deposits of funds at interest in any chartered State or national bank or trust company located in this State to the extent such deposits are insured by the Federal Deposit Insurance Corporation. Any other investments of trust funds shall be made under order of the Superior Court, or else at the risk of the trustee.
The investment authority of domestic life insurance companies is set out in Ga. Code Ann. Ch. 56-10, which lists as authorized investments bonds and securities of the State or Federal governments, and certain guaranteed or insured investments.
Corporate stocks are authorized investments for insurance companies if they meet the conditions prescribed by Ga. Code Ann. 56-1020.
From the information available I cannot say whether or not the stock in question meets the requirements of the above-quoted section. However, if such stock does not comply with said requirements the investment proposed by the ACC for Eggs cannot be made except by order of the Superior Court.

OPINION 69-406 (Unofficial)

To: State Highway Department

September 25, 1969

Re: Delegation of Board's power to director, liability of individual Board members, and other matters.

564
This will reply to your letter of recent date wherein you request my unofficial opinion on four questions.
Question Number 1: "May the State Highway Board of Georgia delegate all power and authority of the Board to the Director of the State Highway Department so that he may possess and exercise all the power and authority of the Board with full authority to execute contracts and all other undertakings when the Board is not in regular or called session? "
The Constitution of Georgia, Art. V, Sec. XI, Par. I (Ga. Code Ann. 2-3506), establishes the State Highway Board and provides for the office of the Director, who is designated as the chief executive officer of the State Highway Department. This section of the Constitution also authorizes the General Assembly to define by law the powers, duties, qualifications and compensation of the Director.
The powers and duties of the Director have been prescribed by the Legislature in Ga. Laws 1968, Vol. I, p. 1055, at 1056:
"There is hereby created the office of Director of the State Highway Department, who shall be the chief administrative officer of the State Highway Department, and who shall possess and exercise all power and authority of the State Highway Board delegated to him by said Board when it is not in regular or called session, and shall have full authority to execute contracts and all other undertakings ...."(Emphasis added.)
The nature of your question indicates your concern with what appear to be conflicting provisions which are set out (subsequently) in this same legislative enactment. These are found in the 1968 Act at page 1060, Section (i) (Ga. Code Ann. 95-1609 (i)) and at page 1061, Section (k) (Ga. Code Ann. 95-1609 (k)). Section (i) provides, at page 1060:
". . . The State Highway Board ... in matters involving Federal funds, shall prepare long-range biennial programs of improvements to be made under Federal-aid urban, Federal-aid primary and Federal-aid secondary classifications. . . . All long-range biennial programs involving the use of Federal funds shall have the approval of the State Highway Board or a majority thereof. . .." (Emphasis added.)

565
Section (k) of this Act provides in part, at page 1061 :
"All contracts for highway and bridge construction shall be in writing and these contracts, as well as all contract letting, shall have the approval of the State Highway Board or a majority thereof ..." (Emphasis added.)
As a preface to any citations of authority or legal reasoning concerning this question, I would first point out that, due to the phraseology of the hereinabove-quoted provisions, there is need for judicial interpretation or clarification. I am unable to find any appellate court decisions which I feel have dealt with this particular question of statutory construction. Thus, until there is a final judicial determination of the legislative intent in the form of a decision from the appellate courts, or until the General Assembly has clarified its legislative intent by appropriate amendments, I will be able only to provide you with a treatment of the two arguments which would support the two opposite conclusions and results that can be reached in this question.
It is a well-established principle of Georgia law that all parts of legislative enactments 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). Where two provisions are irreconcilable, the specific provision must control over the general. Mayor of Savannah v. Savannah Elec. & Power Co., 205 Ga. 429 (1949); Kiser and Co. v. Doyal, 51 Ga. App. 32 (1935). Moreover, it is a well-established rule of statutory construction that, when there is a conflict between two parts of the same act, the latest in position will be declared to be the law since, from its position, it is presumed to be the last expression of the legislative will. Lamar, et al. v. Allen, et al., 108 Ga. 158, 164 (1899); Darby v. DeLoach, Comm., et al., 190 Ga. 499, 501 (1940); Tyler v. Huitt, Comm., 199 Ga. 845, 850 (1945); Vickery v. Foster, Sheriff, 74 Ga. App. 167, 172 (1946); Stansell v. Fowler, 113 Ga. App. 377 (1966).
In applying the above principles of law, the first legal position that could be taken on this question is that the State Highway Board may not delegate to the Director all duties, powers and authority conferred upon it by the General Assembly. The provisons of Section (i) (Ga. Code Ann. 95-1609 (i)) and Section

566
(k) (Ga. Code Ann. 95-1609 (k)) contain specific language which might be in conflict with the former provisions set out by. the general language of Section (e) at page 1056 of this Act (Ga. Code Ann. 95-1602 (e)).
Thus, applying the above principles of statutory construction, a legal argument could be put forth that the language used by the General Assembly in these latter provisions is strong and specific, thereby controlling the general language contained in the preceding section. Also, these are later specific expressions of the Legislature. Therefore, since this language might .be in conflict with an interpretation that all power and authority of the Board can be delegated to the Director, these specific provisions, as the latest expression of the legislative will, must control. If the courts were to apply such rules of construction, this would result in a conclusion that it was the intent of the General Assembly that the State Highway Board could not delegate its functions of approval for all long-range biennial programs involving the use of Federal funds or all contracts for highway and bridge construction.
On the other hand, another argument might be made for tht position that these provisions can be reconciled so as to make them consistent with one another. The basis for this argument is that, although the Director's general authority to execute contracts might appear to be limited by the specific requisite that the Highway Board must approve highway and bridge construction contracts and matters involving certain Federal funds, at the same time the State Highway Board can, pursuant to the provisions of this statute, delegate the power and authority to approve these construction contracts to the Director; however, this delegated power is limited in that it would be exercised by the Director only when the Board is not in regular or called sessions; It could be argued that, although these subsequent provisions in effect call for the State Highway Board's approval of certain specific conflict with, and thus should be harmonized with, the power of the State Highway Board as set forth in the first provision "to delegate all power and authority" of the board to the Director, to be exercised
when the Board is not in regular or called session. Apparently, the Board has been operating under this latter
construction since May 16th, 1968. Thus, from the above, it can be seen that either legal position
can be substantiated by principles of statutory construction, logic

567
and legal reasoning. Therefore, I am unable to render a definite yes or no answer on the matter.
This is an instance where the best legal advice I can give is to merely point out that the matter is one which is undecided by the courts and too close a question to predict the answer. The General Assembly should be asked to resolve this matter when it convenes in January.
Question No. 2: "Does the copy of resolution attached constitute a lawful delegation of power and authority described in paragraph number 1 above?"
Due to the manner in which the question designated as "number 1" was treated, I am here again unable to render a defmite yes or no answer to your second question. I would, however, venture to point out that, if the appellate courts of this State in their future opinions adopt the latter argument as set forth hereinabove in question ''number 1," then the copy of the resolution which you attach would satisfy the requisites of the law regarding the delegation of the power and authority of the Board to the Director. However, due to the uncertainty that exists with regard to the first question, and due to the fact that there are no appellate decisions which would provide guidance in this matter, I am unable to advise your office at this time as to the efficacy of this resolution; therefore, I will not delve into any discussion or opinion as to whether the Director should act pursuant to this resolution until such time as a judicial determination is made upon this question or until the General Assembly has clarified these provisions by appropriate legislation,
Question No. 3: "Would members of the Board be personally liable for a breach of trust or duty in the event of an action brought by some taxpayer or citizen:
"(a) with respect to any improper expenditure of State funds over which they assume no control, set no standards or formulae or other priorities as to allocation?
''(b) with respect to actions of the Director while exercising
all the power and authority of the Board when the Board is not in regular or called session? "

568
It is my unofficial opinion that members of the State Highway Board are not liable for their own acts or failures to act, so long as they are performing their duties within the scope of their authority and are acting in good faith. They are liable for the wrongful acts or omissions of the Director of the State Highway Department only if they fail to exercise due care in selecting such Director, or permitting the Director to continue in office after obtaining knowledge of any wrongful conduct. However, permit me to caution you that any consideration of this question must be considered in light of the discussion contained in questions 1 and 2 of this opinion.
Members of the State Highway Board are vested with public duties, their positions being created by the Constitution of Georgia, Art. V, Sec. XI, Par. I (Ga. Code Ann. 2-3506), and their duties being assigned by law (Ga. Code Ann. 95-1602, et seq.). Such members are, therefore, public officials of the State of Georgia, when acting in their capacity as Board members. Polk v. James, 68 Ga. 128 (1881); Bradford v. Justices, 33 Ga. 332 (1862); Stelling v. Richmond County, 81 Ga. App. 751 (1950).
It may be generally said that a public official not under bond, while acting in good faith and within the scope of his authority, is not liable for his acts or omissions, in the absence of maliciousness, willfulness, or corruption. Foster v. Sikes, 202 Ga. 122 (1947); Rickter v. Harris. 62 Ga. App. 64 (1940); McClellan v. Carter, 30 Ga. App. 150 (1923).
This position was recently upheld in Vickers v. Motte, 109 Ga. App. 615, 617 (1964), in which the Court stated:
"It is the general rule that public officers, when acting in good faith and within the scope of their duty, are not liable to private action. This immunity is not extended to them when they do things not authorized by law, or act in a wanton or malicious way and with intent to injure the property of another." See Foster v. Sikes, 202 Ga. 122, conformed to 75 Ga. App. 164 (1947).
The Court also noted in Vickers v. Motte, supra, that:
"Public officers are vested with discretionary powers .... In the exercise of these rights they are granted immunity from

569
civil liability for mistakes in judgment honestly made. This immunity extends to errors in the determination both of law and of fact."
Even though Vickers is a case which is concerned with the liability of county officials, there appears to be no reason why its general principles would not also be applicable to the members of the State Highway Board because both county officials, in Vickers, and the members of the State Highway Board are public officials who are serving in their positions without being under bond.
The conclusion reached from the Vickers case is that the members of the State Highway Board, as public officials, would not be liable in a private action when they were acting in good faith and within the scope of their authority. Nor would they be liable for mistakes made in the exercise of their discretionary authority as long as they were acting in good faith. The Vickers case leaves open the question as to whether or not the members of the State Highway Board, as public officials, would be liable in an action brought by the State and this question appears never to have been before the courts of the State of Georgia. However, there appears to be no good reason for a different result.
There are a line of Georgia cases which hold that a public official, even though he is acting as an agent, will not be held liable personally on contracts in behalf of the public. Ghent v. Adams. 2 Ga. 214 (1847); Tucker v. Shorter, 17 Ga. 620 (1855);Bowden v. Eubanks, 57 Ga. App. 414 (1938); Johnson v. U.S. Fidelity and Guaranty Company. 93 Ga. App. 336 at 343 (1956). This principle was also recognized in a Federal case which arose in the Northern District of Georgia. See Commercial Trust Company of Hagerstown v. Burch. 267 F. 907 (5th Cir. 1920) in which the court noted:

"While public officers are agents, for reasons of public policy

the individual liability is governed by rules different from

those applying to other agents, and they may not be held

personally on contracts made in behalf of the public, in

I

which they are required to exercise judgement and discretion,

unless they act corruptly or maliciously."

570

See also the case of 1Jixie Tank and Bridge Company v. County of Orange, 264 F.2d, 738 at 742 (9th Cir. 1959), wherein this same
principle was discussed and cases from other jurisdictions cited and supported.
The clear indication is that members of the State Highway Board would not be personally liable on contracts entered into on behalf of the State. However, it is very clear that a public official will be held liable for injuries which result from his acts or omissions, if such acts or omissions are outside his scope of authority, or if he is acting in bad faith, that is; maliciously, willfully, or corruptly. See Foster v. Sikes, supra; Creaser v. Durant, 197 Ga. 531 (1944); Walker v. Whittle, 83 Ga. App. 445 (1951).
In determining the liability of the members of the State Highway Board for acts which are committed by persons other than members of the Jioard while the Board is not in session, it is important to analyze Ga. Code Ann., 95-1602 (a). In addressmg
itself to the authority granted to. the State Highway Board, this section provides in part:

..... Said board shall be charged with the_general control and supervision of the State Highway System of Roads and Bridges; subject, however, to such delegation thereof as may by this chapter or any other law heretofore existing be given to and vested in the Director of the State Highway Department...."

Thus, this statute vests general control and supervision of the State .Highway System in the State Highway Board, but it also makes provision for re-delegation (subject to the discussion in questions 1 and 2 of this opinion) of the authority to the Director of the State Highway Department as may be provided by law. Ga. Code Ann. 95-1602 (e), in creating the office of the Director of the State Highway Department, provides in part:

" ... who shall be the chief administrative officer of the State

Highway Department, and who shall possess and exercise all

power and authority of the State Highway Board delegated

to him by said Board when it is not in regular or called



sessions, with full authority to execute contracts and all

other undertakings...."

571
This section authorizes the State Highway Board to re-delegate its powers to the Director, which Ga. Code Ann. 95-1602 (a) says might be made. In examining the two sections jointly, it becomes evident that while the State Highway Board is in session the general control and supervision of the State Highway System is vested with the Board, but between sessions (by virtue of the Resolution) the power and authority is vested in the Director. This might be termed a split delegation of authority, the authority being vested with the Board at one time and at another with the Director. Under this statutory situation, it appears that the official who is vested with the authority at the time of any misfeasance, malfeasance or nonfeasance would be primarily responsible for injuries resulting therefrom.
There is a line of very early Georgia cases which held that a delegation of authority was of the nature of a power of attorney, and that such delegation had the effect Of creating an agency relationship. See Hamrick v. Rouse, 17 Ga. 56 (1855); Napier v. Roe, 12 Ga. 170 ( 1852). In addition, it has been said that:
"The word 'agency' may refer to that relation created by express or implied contract or by law, whereby one party delegates the transaction of some of some lawful business with more or less discretionary power to another. ... "Smith v. Merck, 206 Ga. 361 (1950); Atlanta Accident Association v. Bragg, 102 Ga. 748. (Emphasis added.)
Thus, the relationship between the Board members and the Director, when the Board is not in session and the Director is acting under authority delegated to him by the Board, might be considered to be an agency relationship. According to the doctrine of respondeat superior, a principal is vicariously liable for injuries resulting from acts or omissions of his agents, while acting within the actual, implied or apparent scope of their authority.
However, the application of the doctrine of respondeat superior would be limited. In Mathis v. Nelson, 79 Ga. App. 639 (1949), it was held that the respondeat superior rule is inapplicable with respect to the relationship between public officers and their agents. The public official is not vicariously liable for the wrongful acts or omissions of his agents; he is liable only if he failed to exercise due care in selecting his agents or in permitting their wrongful acts to continue.

572
It is, therefore, my unofficial opinion that the members of the State Highway Board are not liable for injuries resulting from their own acts or failures to act, so long as they are acting within the scope of their authority and in good faith. They are liable for the wrongful acts of the Director of the State Highway Department only if they fail to exercise due care in selecting him, or permitting him to continue after obtaining knowledge of any wrongful or unauthorized conduct.
Question No. 4: "Under Georgia Code Section 95-1609, there is a section dealing with 15% surplus funds. I request your unofficial opinion as to how these funds may be legally expended."
It is my unofficial optmon that under Ga. Code Ann., 95-1609 G), one-third of the surplus funds must be used on rural roads and bridges not on the State Highway System; at least one-third of the funds must be used on unpaved raods and bridges on the State Highway System; and the remaining one-third must be used on roads and bridges of the State of Georgia most in need of such work, whether such roads are on or off the State Highway System.
The pertinent portion of Ga. Code Ann., 95-1609 G), provides as follows:
"After the necessary funds have been set aside for operating the State Highway Department, for maintaining, improving and reconstructing State Highway System roads and bridges, for paying the grants to counties for aid in county road construction and maintenance as provided by law authorizing the State Treasurer to make such grants; for matching Federal aid apportionments to the State of Georgia for the planning, surveying, constructing, reconstructing, paving and improving of Federal aid roads and bridges in full, and for any emergencies or unusual situations, the remaining available State Highway funds (and in no event shall said sum be less than 15 per cent of the total of all State Highway funds (and in no event shall said sum be less than 15 per cent of the total of all State Highway funds) shall be used as follows: at least one-third shall be used for planning,

573
surveying, constructing, improving, paving and completing rural roads and bridges not on the State Highway system; at least one-third shall be used for planning, surveying, constructing and paving unpaved roads and bridges on the State Highway system; and the remaining one-third shall be used in the manner prescribed by the State Highway Department of Georgia for the planning, surveying, construction, reconstruction, paving and improving of the roads and bridges of the State of Georgia most in need of such work. Provided only that no State Highway funds shall be expended for the construction, paving or improvement of private driveways, roads and bridges that are not used by the public or that have been abandoned, nor on roads or bridges in municipalities unless such roads are a part of the State Highway system or are a part of the urban, primary or secondary Federal aid system or are a part of a county road system which is maintained by the county and extends from within the limits of the municipality concerned out into the county itself." (Emphasis added.)
From a reading of the above-quoted portion of the Code section, it is found that after certain funds are set aside for the specific operations enumerated in the first portion of the Code section, the remaining highway funds, not less than fifteen per cent of the total of all State Highway funds, shall be used as specified in said Code section.
In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy. (Ga. Code Ann., 102-102(9).) 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, Inc., 194 Ga. 863, 866 (1942).
In interpreting the statute in question, an interpretation must be made of the words "shall be used":
" ... There is quite a difference in the use of the verb 'shall be' in a statute and in the use of the verb 'may be'. The former is mandatory and admits of no choice. The latter is

574
permissive... ."Modern Coach Corp. v. Faver, 87 Ga. App. 221, 225 (1952).
Therefore, giving the statute such construction, it follows that at least one-third of the remaining highway funds, being surplus funds, shall be used for planning, surveying, constructing, improving, paving, and completing rural roads and bridges not on the State Highway System. At least one-third of the funds shall be used for planning, surveying, constructing, and paving unpaved roads and bridges on the State Highway System. The remaining one-third of the surplus funds shall be used in the manner prescribed by the State Highway Department for planning, surveying, construction, reconstruction, paving, and improving of the roads and bridges of the State of Georgia most in need of such work. This latter provision would seem to indicate that the expenditure of this one-third of the State Highway surplus funds may be made on roads either on or off the State Highway System as long as such roads are most in need of such work.
The remaining quoted portion of Ga. Code Ann. 95-1609 provides that no Highway funds may be expended on private driveways, roads and bridges not used by th(f public or which have been abandoned, nor on roads and bridges in municipalities unless such roads meet the requirements specified in said section.
In conclusion, it is my unofficial opinion that one-third of the remaining surplus funds must be used on rural roads and bridges not on the State Highway System; at least one-third of the funds must be used on unpaved roads and bridges on the State Highway System; and the remaining one-third must be used on roads and bridges of the State of Georgia most in need of such work, whether such roads are on or off the State Highway System.

OPINION 69-407 (Unofficial)

To: State Senator

September 25, 1969

Re: Ornamental garden shrubs are not exempt from property taxation under Georgia Constitution.

575
I have your request for an opinion concerning taxation of the various plants grown by Covington Nursery, Inc. This nursery propagates and grows several varieties of shrubbery but is well known throughout the United States as one of the principal and best sources of Glenn Dale hybrid azaleas. Azaleas comprise the vast majority of its activities. These shrubs are ready for sale after either two or four years, depending on the variety, and most, if not all, of them are container grown.
The Georgia Constitution provides for a property tax exemption with respect to farm products which remain in the hands of the producer but not longer than the year after production. Georgia Constitution Art. VII, Sec. I, Par. IV; Ga. Code Ann. 2-5404.
For many purposes the General Assembly has defined trees and shrubs as farm products. See Ga. Code Ann. 5-1617 and 67-1107, also Op. Atty. Gen. 1962, p. 8. None of these statutes or similar statutes could enlarge the meaning of the phrase "farm products" as it appears in the Constitution. Collins v. Mills, 198 Ga. 18, 23 (1944).
Nursery products such as these are not, in my opinion, farm products as that term is used in the Georgia Constitution and for this reason would be subject to property taxation to the same extent as other goods within the county. While this question has not been specifically ruled on by the Georgia Appellate Courts, the jurisdictions which have considered the question have generally held such nursery stock to be taxable. Jackson & Perkins Co. v. Stanislaus Co. Bd. of Supervisors, 335 P. 2d 976 (1959); City of Amarillo v. Love, 356 S. W. 2d 325 (1962);Julius Roehrs Company v. Div. of Tax Appeals. 109 A. 2d 611 (1954); Kirby Lumber Corp. v. Hardin Independent School Dist. 351 S. W. 2d 310 (1961).

OPINION 69-408 (Unofficial)

To: Washington County Attorney

September 26, 1969

Re: Effective date of 1969 amendment to Ga. Code 92-6912 is July 1, 1969.

576

You have requested our unofficial opinion on whether the 1969 amendment to Ga. Code Ann. 92-6912 (Ga. Laws 1969, p. 492) would apply to the following situation: A taxpayer filed his return on March 21, 1969, and on June 18, the County Board of Tax Assessors notified him of a change in his return. On June 20, the taxpayer filed a written notice demanding arbitration and named his arbitrator; on June 26, the Tax Assessors named their arbitrator and these two selected a third arbitrator; these three arbitrators rendered their decision on July 23, 1969.
The 1969 amendment to Ga. Code Ann. 92-6912 became effective on July 1, 1969. Ga. Laws 1968, p. 1364 (Ga. Code Ann. 102-111 ). Since the 1969 amendment became a part of Ga. Code Ann. 92-6912 on July 1, 1969, it is our unofficial opinion that the amendment would apply to a decision rendered by the arbitrators on July 23, 1969. Fulton County v. Spratlin, 210 Ga. 447 (1954).

OPINION 69-409 (Unofficial)

To: Judge, Superior Courts

September 26, 1969

Re: Appointment of Juvenile Court Judge

Section 4 of the Juvenile Court Act of 1951 provides in relevant part as follows:

"In any county having a population of less than 50,000, by the last or any future United States Census, upon recommendation of two successive grand juries, a juvenile court shall be created and the judge of the superior court shall appoint a judge thereof, in accordance with the provisions of this Chapter...."(Emphasis added.) Ga. Laws 1951, pp. 291, 294, as amended (Ga. Code Ann. 24-2403).

You advise that two successive grand juries, convened in the October Term of 1960 and the January Term of 1961, recommended the establishment of a juvenile court. You further advise that during the term of office of your predecessor and during your term of office a referee has presided over the Juvenile Court under the authority of the office of the Superior Court Judge but that a juvenile court judge has never been appointed to the Juvenile Court.

577

You have requested my unofficial opinion as to whether you are authorized to now appoint a juvenile court judge for a term of six years as provided by the above-quoted law.
It is my unofficial-opinion that the lapse of time, by itself, in the above situation would not operate to remove the authority you have under this law to appoint a judge of your Juvenile Court. I realize that there may be some changed conditions in the county which would lead a current grand jury to make a different recommendation from the recommendations of the successive grand juries in 1960 and 1961. While this may be so, I note that this same Section 4 of the Juvenile Court Act of 1951 , as amended by Ga. Laws 1963, p. 621 (Ga. Code Ann. 24-2403), provides for the termination of the juvenile court upon appropriate recommendation of two successive grand juries and concurrence of the superior court judge. If the conditions have changed so that a juvenile court is no longer necessary in this county, there is a method available to provide relief.
It is my unofficial opinion that you are authorized, under the facts set out above, to appoint a juvenile court judge as provided by the Juvenile Court Act of 1951.
OPINION 69-410 (Unofficial)

To: District Attorney

September 26, 1969

Re: Detainer procedure.

This will acknowledge receipt of your letter of August 29, 1969, in which you asked: (1) what actions may the District Attorney take to secure the person of one about to be released trom a penal institution to answer additional criminal charges, and (2) whether, for the purpose of filing a detainer, a valid accusation may be preferred in the absence of a waiver by the accused of indictment by grand jury.
You state that you hold warrants for the arrest of a prisoner on charges of escape and armed robbery; that the prisoner is presently serving a misdemeanor sentence; and that the prisoner will complete his misdemeanor sentence, and be released, before the grand jury has an opportunity to return an indictment against him on these new charges. It is my understanding of your letter that it is your view that the State Board of Corrections has the authority to hold a prisoner beyond his release date, provided a valid

578
detainer is filed against him, and that you desire to know how the detainer procedure may be invoked.
Let me emphasize at the outset that, in my opinion, the Board of Corrections is not authorized by the detainer statute (Ga. Code Ann. 77-330 to 77-336; Ga. Laws 1968, pp. 1110-1114) to hold a prisoner beyond the expiration of his sentence. (For additional discussion of the power of a penal institution to hold a prisoner after the expiration of his sentence please see the enclosed copy of an opinion of the Attorney General, dated April 4, 1969, to the Honorable Robert J. Carter, Director, State Board of Corrections.[Op. Atty. Gen. 69-151]) You will observe that the operative part of the detainer statute (Ga. Code Ann. 77-331 to 77-336) is concerned with providing a procedure by which a prisoner may remove detainers filed against him. In particular, the statute provides: (1) that the warden shall give the prisoner notice of any detainers filed against him (Ga. Code Ann. 77-331 (c)); (2) that the prisoner may request a fmal disposition of any outstanding indictment, accusation or information on the basis of which detainers have been filed (Ga. Code Ann. 77-331 (a)); (3) that, if the prisoner is not tried on these indictments, accusations or informations within two terms of court after receipt by the prosecutor of the prisoner's request for a final disposition, the detainers based thereon shall be dismissed (Ga. Code Ann. 77-331(d)); (4) that only detainers complying with this law shall be accepted by the Board of Corrections (Ga. Code Ann. 77-334); and (5) that all detainers not in conformity with this law shall be stricken from the records of the Board of Corrections on January 1, 1969 (Ga. Code Ann. 77-336). The primary purpose of the statute, then, is to aid the prisoner in rendering his future more certain by allowing him to request the disposition of outstanding charges against him while he is confmed. Such a purpose is inconsistent with an authorization to the Board of Corrections to hold the prisoner after his sentence has expired.
the initial section of this statute (Ga. Code Ann. 77-330), which defmes the word "detainer," does not detract from this reading. That section provides, in part, that:
"The word 'detainer' shall mean 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 the delivery of the inmate to the proper authorities to stand trial upon a pending indictment, accusation o~ information...."

579
Although the detainer is defined as a request of the Board "to retain custody" of the prisoner, it is not defined as a request to retain custody "after expiration of the prisoner's sentence." The absence of any such phrase, taken together with the positive command of Ga. Code Ann. 77-320(d) that "a prisoner shall be released at the expiration of his term of sentence less the time deducted for statutory and extra good-time allowances" (Emphasis added.) demonstrates that it was not contemplated that the Board should have power to hold a prisoner after the expiration of his sentence. It should also be borne in mind that this section is no more than a definition; it does not command the filing of a detainer nor any response on the part of the Board.
In the contemplation of the law the prisoner whose sentence has expired occupies no lesser position, so far as the requirements for bringing him to trial are concerned, than an individual who has never been convicted. This regard for the prisoner is grounded in the belief that the judicially-imposed punishment for the prior conviction is not only necessary, but is also sufficient; and that the prisoner should not be subjected to additional punishment in the form of further detention, without being accorded the normal safeguards of our criminal procedure. It is therefore my opinion that the proper course of action for the District Attorney in this situation is to have the prisoner arrested upon his release and to obtain a committal hearing (Ga. Code Ann. 27-210, 27-401, et. seq.) with a view to having the prisoner bound over for trial. This procedure affords a method of further detaining a prisoner, subject to his right to seek bail (Ga. Code Ann. 27-901, et. seq.) and does so in a manner consistent with the principle discussed above.
From the standpoint of the District Attorney the advantages of the detainer statute are rather limited. The flling of a detainer does, however, make it easier for the District Attorney to obtain knowledge of the release date of a prisoner against whom he has additional charges. Although not commanded to do so by statute, the Board of Corrections will normally inform the District Attorney who has filed a detainer against a named prisoner that that prisoner will be released at a given time and place. This procedure will enable the District Attorney to have an arresting officer present at the time and place of release to arrest the prisoner on the new charges. (See in this regard the enclosed copy

580
of an opinion of the Attorney General, dated June 25, 1969, to the Honorable Robert J. Carter, Director, State Board of Corrections [Op. Atty. Gen. 69-268].) For this procedure to be invoked, the detainer must be accompanied by a copy of an "indictment, accusation or information." This is the exclusive language of the statute (Ga. Code Ann. 77-330). A warrant is therefore not sufficient. (For a full discussion of the distinction between a warrant and an indictment or accusation, see the enclosed copy of an opinion of the Attorney General, dated August 21, 1968, to the Honorable Marcus B. Calhoun, President, Solicitor-General's Association of Georgia [Op. Atty. Gen., 68-358].) You have asked whether you may prefer a valid accusation, for the purposes of the detainer statute, in the absence of a waiver by the prisoner of grand jury indictment. The relevant statute is found in Ga. Code Ann. 27-704 and provides, in part, that:
"In all misdemeanor cases and in felony cases other than capital felonies in which the defendants have been bound over to the superior court, or are confined in jail pending commitment trial, or are in jail, having waived commitment trial, the prosecuting officers of such court shall have authority to prefer accusations, and such parties shall be tried on such accusations: Provided, that parties going to trial under such accusations shall in writing waive indictment by a grand jury...."
It is clear that for one to be made to stand trial upon an accusation he must waive, in writing, indictment by grand jury. However, the proviso which requires a waiver would appear to apply only to the situation in which an actual trial of the accused is undertaken. Prior to the time of the trial an accusation would be valid even without a waiver. It is therefore my opinion that with regard to the escape charge the District Attorney may prefer ~ valid accusation whether the accused waives indictment or not. I call to your attention the fact that the armed robbery charge which you mention is a capital felony under both old Title 26 (Ga. Code Ann. 26-2502) and the new Criminal Code (Ga. Code Ann. 26-1902; Ga. Laws 1969, p. 81 0). In view of the express exception for capital felonies contained in the statute, there could be no valid accusation on this charge even with a waiver.
In summary, then, although the detainer procedure may be

581
invoked by an accusation without a waiver of indictment by grand jury, this procedure will not authorize the State Board of Corrections to hold a prisoner after his present sentence has expired. The recourse for the District Attorney in this situation is to cause the arrest of the prisoner upon his release and to proceed against the prisoner as he would proceed against any other criminal defendant.
OPINION 69-411
To: Joint Secretary State Examining Boards September 29, 1969
Re: Georgia State Board of Nursing Homes Act.
This is responsive to your recent request for my official opinion on the following questions:
"( 1) What is the effective date of the Georgia State Board of Nursing Homes Act? "(2) People on the list of the Department of Public Health as of the effective date of the Act, Should they be licensed without complying with the requirements of the Board? "(3) Should people on the list subsequent to the effective date of the Act but prior to the expiration of two years be in compliance with the law? (such as an examination, etc.) "(4) Can the Board set different standards of the law for people who got on the approved list of the Department of Public Health subsequent to the effective date but before two years from the effective date and for those people who apply for license more than two years from the effective date of the Act?"
In response to your flrst question, the effective date of the Ga. Laws 1968, pp. 1143-1148, as amended, designated as the "Georgia State Board of Nursing Homes Act" is the date on which said Act was approved by the Governor. That date is April 8, 1968.
In response to your second question, Section 3 of said Act provides "that persons meeting the standard of good character, who have been approved by the Director of the Georgia Department of Public Health as an 'administrator' and is serving in such capacity on the effective date of this Act, shall be granted a license as a 'Nursing Home Administrator.'" Therefore, it is my

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opinion that persons who had been approved by the Director of the Georgia Department of Public Health as "administrators" and were serving in such capacities on April 8, 1968, should be granted licenses as "Nursing Home Administrators" upon submitting evidence satisfactory to the Board that they are of "reputable and responsible character."
In response to your third question, said Section 3 of the Act, after making the exception hereinabove referred to for persons who had been approved by the Director of the Georgia Department of Public Health as "administrators" on the effective date of the Act, provides that:
"All persons applying for a license after the effective date of this Act must meet the conditions and requirements as may be prescribed by the Board." (Emphasis added.)
Therefore, it is my opinion that persons who had not been approved by the Director of the Georgia Department of Public Health as "administrators" on April 8, 1968, must meet whatever conditions and requirements the Board prescribes for obtaining a license.
Responding to your fourth question, said Section 3 of the Act further provides that:
"A waiver may be granted for a period of two (2) years after the effective date of this Act, or until June 30, 1972, whichever is earlier, to allow a person or persons to meet the conditions and requirements as set by this Board."
Since two years from the effective date of the Act (April 8, 1970) is the earlier time, the waiver would be effective until April 8, 1970. My construction of the waiver provision is that a period of time is allowed so that persons who are approved by the Director of the Georgia Department of Public Health as "administrators" after the effective date of the Act but before the Board has the opportunity to set criteria for licensure, may pursue their occupation without violating the terms of the Act itself. It does not appear that the waiver provision is intended to create a grace period in which persons making application to the Board may be judged by a different standard than persons making application after the expiration of the waiver period. It is apparent that the General Assembly was making allowance for the time which would be required for the Board to meet, organize, and establish standards for licensure. It does not appear that the

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intention was to create a different category for persons applying
for a license between the effective date of the Act and the expiration of the waiver period. This conclusion is strengthened by the language of Section 3 of the Act that "all persons applying for a license after the effective date of this Act must meet the conditions and requirements as may be prescribed by the Board."
Therefore, my opinion as to question four is that the Board cannot set different standards for persons who were approved by the Director of the Georgia Department of Public Health as "administrators" subsequenJ to the effective date of the Act (April 8, 1968) and before the expiration of two years from said date. Every person applying for a license subsequent to April 8, 1968, should be judged by uniform criteria.

OPINION 69-412 (Unofficial)

To: Hall County Attorney

September 29, 1969

Re: Sheriff must transport mental patient to hospital in accordance with terms of Transportation Order issued by Court of Ordinary.

Please refer to your letter of September 11, 1969, wherein you request my opinion as to the responsibilities and duties of a sheriff with respect to transporting mental patients from a county to a mental hospital under Ga. Code Ann., Ch. 88-5, Ga. Laws 1969, p. 505, et seq.
Ga. Code Ann. 88-502.14 of the Georgia Health Code," Ga. Laws 1969, pp. 505, 514 reads in relevant part:
"The county health department in cooperation with the governing authority of the county shall arrange for required transportation of the patient. Whenever possible marked vehicles normally used for the transportation of criminals or those accused of crime shall not be used for the transportation of patients. However, the type of vehicle to be furnished for the transportation of patients shall be in the discretion of the governing authority of the county. The Court of the Ordinary shall, upon the request of the county health department, order the sheriff to transport the patient in such manner as the patient's condition demands...."

Although the above provision does not specifically enumerate

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the duties of a sheriff with respect to such transportation, it is obvious from the language that a sheriff must transport mental patients to hospitals in accordance with the terms of the Transportation Order issued by the Court of Ordinary. The terms of such Order depend in turn upon the determinations of the county health department and the county governing authority.
The above applies to both medical admissions under Ga. Code Ann. 88-504.1 thru 88-504.6; 88-505.1 thru 88-505.7; and 88-506.1 thru 88-506.4 and judicial admission under Ga. Code Ann. 88-507.2 thru 88-507.3. See Ga. Code Ann. 88-507.3
(h).
It should be noted, however, that Ga. Code Ann. 88-502.14, supra, requires that a female patient must be accompanied by another female who is not a patient in attendance unless such female patient is accompanied by her husband, father, adult brother or adult son.

OPINION 69-413 (Unofficial)

To: State Representative

September 29, 1969

Re: Powers of consolidated government should be specifically set out.

You advise that a charter comm1ss1on is charged with the responsibility for drafting a proposed charter consolidating the governments of a city and a county. You wish my unofficial opinion regarding the appropriate language to be used in the charter relating to the government's powers, more specifically,
whether the powers of the government should be set out in an enumerated and specific fashion or whether it would be more desirable to use a general statement of powers.
You are probably aware of the general rule that counties and municipal corporations can exercise only such powers as are conferred on them by law, and a grant of power to such corporations must be strictly construed. They can exercise no powers except those expressly given or necessarily implied from
express grant of other powers, and if there is a reasonable doubt of the existence of a particular power, the doubt is to be resolved in the negative. Beazley v. DeKalb County, 210 Ga. 41 (1953) and cases there cited.
While I realize that the Municipal Home Rule Act of 1965 (Ga.

585

Laws 1965, p. 298) and the Constitutional grant of home rule power to counties (Georgia Constitution, Art. XV, Sec. II, Pars. I thru V (Ga. Code Ann. 2-8402 to 2-8406)) contain general statements of powers which may be exercised by the appropriate units, I can find no authority that either the county home rule provisions or the municipal home rule provisions apply to a consolidated government.
In the absence of any such authority and because of the general rule set out above requiring express statements of power in this absence, I believe it would be the safer course for a charter consolidating the governments of a city and a county to set out the desired powers of the consolidated government in an enumerated and specific manner.

OPINION 69-414 (Unofficial)

To: State Highway Engineer

September 29, 1969

Re: Ex contractu claims allowed against State Highway Department.

This is in reply to your letter of recent date wherein you request my unofficial opinion on the "claims procedure for contract claims against Georgia State Highway Department."
I am aware of no constitutional provisions applicable to claims against the State.
The courts have uniformly held that the State is neither legally liable nor subject to suit for any act ex delicto or ex contractu unless and except the sovereign immunity of the State has been waived by specific legislation. In Georgia Military Institute v. Simpson, 21 Ga. 273 (1860), it was observed that whoever contracts with the State trusts to the good faith of the State to carry out its obligations, unless the State sees fit to disrobe itself of its cloak of sovereign immunity. See also, Regents of the University System v. Woodward, 49 Ga. App. 608 (1934).
In Roberts v. Barwick, 187 Ga. 691 (1939), the court held that in the absence of any statutory action authorizing a suit against the State, none could be maintained. Several statutes have been passed by the General Assembly which have granted consent for the State Highway Department to be subject to suit. In the area of contract claims, Ga. Code Ann. 95-1505 has made the State Highway Department subject to actions ex contractu where the

586
contract was for the construction of highways. This Section provides that the State Highway Department may sue and be sued and make settlement of all claims presented to it under oath. The courts have held that the existence of this provision strips the State Highway Department of its defense of sovereign immunity where the contractor is making a claim under a contract for construction of State roads or highways. State Highway Department v. Cobb Construction Co. 111 Ga. App. 822 (1965); State Highway Department v. McDougald Construction Co. 54 Ga. App. 310 (1) (1936).
The Georgia State Highway Department has adopted the American Association of State Highway Officials Standard Specification which provides that if the contractor believes that extra compensation is due him for work or material not clearly covered in the contract, the contractor must notify the Engineer of its intention to f:tle a claim for the performance of such work. If the contractor does not notify the Engineer or afford him ample opportunity to keep a record of such extra work and materials, the contractor is deemed to have waived its claim. (State Highway Department of Georgia Standard Specifications, Volume I, dated January 1, 1966, Section 5.15.) However, these provisions may be waived by the State Highway Department by its actions in relation to performance of the contract by the contractor. State Highway Department v. Hewitt Contracting Co. 113 Ga. App. 685, 692 (1966).
If the contractor feels that he has a claim and can receive no satisfaction from the State Highway representatives at the local level, and if the claim involves compensation to the contractor for work performed but not allowed by the Engineer, the contractor must first request that the claim be referred to a Board of Arbitration. The request is made to the State Highway Engineer, and if he decides that the claim merits arbitration, he seeks approval of the Director of the State Highway Department, and upon his concurrence the claim is referred to arbitration. If the Engineer decides that arbitration is unwarranted, the contractor must sue his claim in the proper court.
.The Board of Arbitration is composed of three members. The contractor and the Director of the State Highway Department each nominates one member and the third member is chosen by the first two. The member chosen by the Director of the State Highway Department and the third member must be registered professional engineers.

587
The Board passes on questions of compensation for work performed but not allowed for payment by the Engineer. A majority vote governs the decision of the Board. The decision is only advisory to the Director of the State Highway Department who makes the final decision. However, if either party resorts to the courts, the decision of the Board may be introduced in evidence (Stand. Specs. 7.18, Supp. 1964).
The contractor wishing to arbitrate a question of compensation must file its request within sixty days from the tender of fmal payment on the contract by the State. If, after 120 days from the tender of final payment, no settlement has been reached and no court action has been instituted by the contractor, it is deemed to have waived its claim (Stand. Specs. 9.08).
Where the claim is for work performed but not allowed by the Engineer, the arbitration procedure must be utilized prior to the institution of any court action, but beyond that it does not operate as a bar to legal process (Stand. Specs. 7.18, Supp. 1964).
In case arbitration is rejected by the State Highway Engineer, or in case the decision of the State Highway Director, either acting in favor of or against the report of the Board of Arbitration, is against the contractor, then the contractor may prosecute his claim in a court of law. The jurisdiction for the contract case is established by general law dealing with jurisdiction of suits in Georgia.
In final analysis, the decision and report of the Board of Arbitration is nothing more than a recommendation to the Sta<te Highway Director, who may either accept or reject the report. In either event, the right of the contractor to prosecute his claim in a court of law is preserved so long as he initiates suit within 120 days of the tender of final payment. However, if the claim is for work performed but not allowed by the State Highway Engineer, the State Highway Department may insist upon the right to arbitrate as a condition precedent to the suit by the contractor unless this provision has been waived by the State Highway Department.

588

OPINION 69-415

To: Superintendent of Banks

October 1, 1969

Re: Superintendent of Banks has the authority to grant change in name of bank.

You advise that a state bank has ftled a petition to amend its charter to change its name from "Georgia State Savings Bank of.......... " to "First Bank of ..........." Since there are two national banks and one or more state banks presently operating in the city in question which were chartered prior to the chartering date of the bank which proposes to change its name, you have requested my official opinion on whether the approval of the petition by the Superintendent of Banks would be in violation of Ga. Code Ann. 13-905(f) or Ga. Code Ann. 13-1001.
When a bank makes an application to use a particular name, the Superintendent of Banks may not approve the application until he has ascertained to his satisfaction that the name of the proposed bank does not resemble, so closely as to be likely to cause confusion, the name of any other bank or trust company transacting business in Georgia or which had previously transacted business in Georgia. Ga. Code Ann. 13-905(f).
If the proposed name of this bank does not offend the above guideline, I do not believe that your approval of the proposed change in name would be in violation of Ga. Code Ann. 13-905(f) or Ga. Code Ann. 13-1001.

OPINION 69-416 (Unofficial)

To: Ordinary, Webster County

October 1, 1969

Re: Ordinary of Webster County not entitled to fee for disposing of cases involving game and fish laws.

This is in reference to your recent inquiry as to whether you are entitled to a fee for receiving a plea of guilty and imposing sentence in a case involving the game and fish laws.
As you are aware, the Ordinary of Webster County was placed on a salary basis by Ga. Laws 1966, p. 2736. By an amendment, you are entitled to receive, in addition to your annual salary, a fee of $4.00 in each case involving traffic law violations. Ga. Laws 1967, p. 2852. However, Ga. Laws 1968, pp. 497, 522, which

589

extended the jurisdiction of courts of ordinary to receive pleas of guilty and impose sentences in game and fish cases, is silent as to extra compensation for disposing of such matters. Nor am I aware of any other provision of law which would entitle you to a fee for disposing of same.
Therefore, I must reluctantly conclude that you are not entitled to an extra fee for disposing of game and fish cases.

OPINION 69-417

To: Secretary of State

October 1, 1969

Re: Citizens of annexed area must meet residency requirements before being eligible to vote.

You have requested my opinion on the following question:

If an area outside the city limits is annexed into the city 40 days prior to a municipal election, would those persons residing in the area annexed be entitled to vote in a city election if they were registered voters in the county and the city was using the county list as its registration list?

The Georgia Municipal Election Code provides the following residence requirements for electors:

"No person shall vote in any primary or election unless he shall be: ... (iv) a resident of this State at least one year next preceding the date of such primary or election, and of the county in which he seeks to vote at least six months next preceding the date of such primary or election, and of the municipality in which he seeks to vote at least 90 days next preceding the date of such primary or election, notwithstanding any provision of any municipal charter to the contrary; ...."Ga. Code Ann. 34A-50l(a)(iv).

Where a statute is clear and unambiguous, it must be taken to mean what has been clearly expressed and no occasion for construction or interpretation of the statute exists. Board of Tax Assessors v. Catlege. 173 Ga. 656 (1931).
Since the area in question was originally outside the city limits and was not annexed into the city until 40 days prior to the election, it is clear that the persons residing in that area have not been residents of the city at least 90 days prior to the election. It

590

makes no difference that these people were registered voters in the county and the City was using the county list as its registration list since the city could in no manner shorten the residency requirements by use of the county list.
It is therefore my official opinion that if an area outside the city limits is annexed into the city 40 days prior to a municipal election, those persons residing in the area annexed are not entitled to vote in the city election since they have not resided in the city at least 90 days prior to the election.
I realize that the effect of Ga. Code Ann. 34A-50 l(a)(iv) is to declare ineligible to vote in the present election many persons who have probably resided in the same place longer than 90 days. However, I would point out that these people had no right to vote in the city election prior to the annexation and therefore their right to vote is in no way abridged by the statute. They, of course, are eligible to vote in future city elections held more than 90 days after annexation.

OPINION 69-418

To: State Board of Corrections

October 2, 1969

Re: The Board of Corrections has authority to require prisoners to work.

This will acknowledge your recent inquiry wherein you inquired whether or not the inmates at the Georgia Industrial Institute may participate in the positioning and leveling of mobile homes belonging to employees of the Institute.
Subsequent inquiries to your office and to the office of Warden of the Georgia Industrial Institute reveal that there are approximately ten mobile home sites in question; in most instances, the mobile homes are owned by those who are correctional officers at the Institute; that it is to the Institute's advantage to have the correctional officers in close proximity to the Institute; that there is no charge for the mobile home sites; that the correctional officers are Merit System employees, compensated at a certain designated rate, but whose compensation does not include the providing of living quarters by the State; that the availability of the sites to prospective correctional officers has been an inducement to their employment at the Institute.
The Board of Corrections has statutory authority to require those prisoners in its custody to labor in such a manner as the Board may deem advisable. Ga. Code Ann. 77-318(e).

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Unquestionably, the inmates may be required to perform labor upon the Institute's own property and that would necessarily include the preparation of mobile home sites if that is what is desired of their labors.
The problem to be resolved, therefore, is whether or not the use of inmate labor to position and level a correctional officer's mobile home is a violation of the constitutional prohibition against gratuities in favor of any person. Ga. Code Ann. 2-5402. This Department has ruled that it was not improper to work prison labor on private property "so long as the transaction was for a good faith public purpose, rather than a subterfuge designed to benefit the private owner." Op. Atty. Gen., 1958-59, p. 248. For security reasons it is most important for the Institute to have its correctional officers living as close to the Institution as reasonably possible and the availability of mobile home sites provided by the Institution has been an inducement to prospective correctional officers for employment. It is my opinion, therefore. that because the Board of Corrections receives the primary benefit in having its correctional officers in close proximity to the Institution, the positioning and leveling of mobile homes at the Institution by the inmates there is not a "subterfuge designed to benefit the private , owner."
I must emphasize that this opinion only concludes that the Board has authority to require the inmates to perform .the above labor but that the ultimate decision as to whether or not the work should be performed at all lies within the discretion of the Board.

OPINION 69-419

To: State Superintendent of Schools

October 6, 1969

Re: Allocation of State funds to Georgia Military College.

This responds to your letter of September 29, 1969, requesting my official opinion on whether or not the State Department of Education may allot Minimum Foundation Program of Education Funds directly to the Board of Trustees of the Georgia Military College, Milledgeville, Georgia.
The answer to your question would depend upon whether that institution is a local unit of school administration within the meaning of the Minimum Foundation Program of Education Act (hereafter referred as the MFPE Act). Section 6 of the MFPE Act (Ga. Laws 1964, pp. 3, 8; Ga. Code Ann. 32-606), provides, inter alia, that

592
"The several county, independent and area public school systems of this State, as now or hereafter established pursuant to provisions of law, shall be local units of school administration for the purposes of this Act."
It is rather obvious that Georgia Military College is not a county school system, Ga. Code Ann. 2-6801, or an area public school system, Ga. Code Ann. 2-590l(d), 2-7201, 2-7202, 2-7501, 2-7501.1, 32-622(B)(l), within the meaning of Georgia law, which means that it would have to be an independent school system to be entitled to receive MFPE funds directly from the State. The only independent school systems with which I am familiar are those municipal and countywide school systems which may be maintained because of two special dispensations found in the Constitution of Georgia. Ga. Code Ann. 2-7001, 2-7301. The City of Atlanta School System is an example of such a municipal independent school system, Rice v. Cook. 222 Ga. 499 (1966), and the Savannah-Chatham County School System is an example . of such a county-wide independent school system. Ga. Code Ann. 2-7501. There are several others of each sort.
I have been unable to locate within the Constitution and laws of Georgia any reference to an independent school system which is neither a municipal school system nor a county-wide school system. Nor have I been able to find any general or special constitutional provision or any Act of the General Assembly which would constitute Georgia Military College an independent school system within the meaning of those words as they generally are used throughout the school laws of Georgia and particularly as they are used in the Minimum Foundation Program of Education Act. Hence, I am not in a position to give you an opinion that the State Board of Education may grant MFPE funds directly to the Board of Trustees of Georgia Military College.
If the Board of Trustees of Georgia Military College believes their institution is a public school system entitled to receive direct grants of MFPE funds, they should request their attorney to submit to this office any legal authorities he may have in support of_ such position. I will be glad to review and comment upon any citations or legal argument he may be able to adduce.
This opinion should be understood to express no view on grants of MFPE funds which this institution or any other school or school system may be entitled to receive indirectly through any local unit of school administration pursuant to proper contractual arrangements or otherwise.

593

OPINION 69-420

To: State Revenue Commissioner

October 7, 1969

Re: Taxation; Net operating loss carryback.

This is in reply to your letter dated August 27, 1969, requesting my opinion as to whether Ga. Laws 1969, p. 114, amending Ga. Code Ann. Ch. 92-31, insofar as it relates to the taxation of the income of corporations derived from property owned or business done in Georgia, permits a corporation with a 1969 net operating loss to carry the loss back to the three taxable years immediately preceding the taxable year in which the loss occurred and, if not, how should it be carried back and forward under the new law.
Before the amendment, Georgia law did not depend upon Federal law in determining a corporate taxpayer's Georgia income tax liability. While many of their provisions were similar, they were independent of one another.
Georgia permitted a corporate taxpayer which had sustained a net operating loss in a given year to carry the loss back and apply it to the taxpayer's taxable income for the year immediately preceding the year in which the loss occurred, and if that did not exhaust the loss, it permitted the unexhausted portion to be carried over and applied to taxable income for the five years immediately succeeding the year in which the loss occurred, unless sooner exhausted. Ga. Code Ann. 92-3109, as amended by Ga. Laws 1952, p. 405; 1953, p. 279; 1953, Nov. Sess., p. 316; 1961, p. 565. The Federal law, however, differed somewhat, in that it permitted a three-year carryback instead of a one-year carryback before permitting any unexhausted portion to be carried forward to the five succeeding years. IRC 172.
With the enactment of the amendment, applicable to taxable years beginning on or after January 1, 1969, Georgia law became dependent upon Federal law. It now makes Federal taxable income the base for the determination of Georgia taxable income.
Under the amendment the taxpayer begins with its Federal
taxable income, makes certain adjustments called for by the amendment and then applies the Georgia corporate income tax rate to the result, which is referred to herein as Georgia taxable income. Thus, in adopting this method, the legislature was seeking to simplify the computation of a corporate taxpayer's Georgia income tax liability by relying on Federal taxable income as a base for such computation.

594

By Federal taxable income is meant a taxpayer's gross income less all deductions allowed by Chapter 1 of Subtitle A of the Internal Revenue Code of 1954, except the standard deduction allowed individuals. IRC 62. One of the deductions allowed by Chapter 1 is the net operating loss deduction, referred to above. IRC 172.
This means that any net operating loss which a taxpayer sustains will be taken into account in arriving at its Federal taxable income for the three years immediately preceding and the five years immediately succeeding the year in which the loss occurs, and if it should affect a taxpayer's Federal taxable income for any taxable year beginning on or after January 1, 1969, it would affect Georgia taxable income for such years. It, of course, could not affect Georgia taxable income for taxable years beginning before January 1, 1969, since Georgia taxable income for those years, being governed by the old law, would be computed independently of Federal taxable income.
Therefore, I am of the opinion that Ga. Laws 1969, p. 114, does not permit, much less require, a corporate taxpayer to carry back and apply a 1969 net operating loss to Georgia taxable income for prior years and that the only way a 1969 net operating loss can be carried over and applied in future years is in the form of a deduction from Federal gross income in arriving at Federal taxable income.

OPINION 69-421 (Unofficial)

To: Bibb County Attorney

October 7, 1969

Re: Sales by County subject to sales and use tax.

This is in reply to your request for advice concerning the taxable status under the Georgia Retailers' and Consumers' Sales and Use Tax Act of certain admission charges and sales of refreshments and other items made by Bibb County in the operation of the county-owned Tobesotkee Recreation Area.
It is not possible, on the facts presented in your request, to give a definitive opinion as to the taxability of the transactions involved. However, the transactions are not exempt solely by the fact that the county is the seller.
The Act provides that "Every person making a sale or sales of tangible personal property at retail ... shall be liable for the tax thereon...."Ga. Laws 1951, p. 360, as amended Ga. Laws 1960,

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pp. 153, 154 (Ga. Code Ann. 92-3402a(a)). Section 3 of the Act defines person to include "a unit, body politic or political subdivision, whether public or private. . .." Ga. Code Ann. 92-3403a(A). Thus, sales by the county are taxable. This conclusion was reached in Op. Atty. Gen. 1954-56, p. 858.
The definition of sale at retail, which would clearly include sales of refreshments and other items by the County, is extended by the Act to include "sales of tickets, fees or charges made for admission to or voluntary contributions made to places of amusement...." Ga. Laws 1951, pp. 360, 364-65, as amended Ga. Code Ann. 92-3403a (C)(D)(c)). Thus, admission charges would also be taxable retail sales within the meaning of the Act, as ruled in the enclosed opinion.

OPINION 69-422 (Unofficial)

To: Ordinary Calhoun County

October 8, 1969

Re: The courts of ordinary have jurisdiction over violations of state traffic laws.

By letter you inquire as to the jurisdiction of the courts of ordinary in cases arising under the Georgia State Highway Patrol Act where there are no city or county courts having territorial jurisdiction of the counties covered by the courts of ordinary involved. The jurisdiction in question is expressly defined by the Constitution of the State of Georgia. It is therein provided that:

"The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentences thereon in all misdemeanor cases arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws,.. .in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial." Georgia Constitution Art. VI, Sec. VI, Par. II.

The superior courts of this State have concurrent jurisdiction with all inferior courts of misdemeanor offenses. Allen v. State, 85 Ga. App. 887 (1952). As a consequence, it has been held that the Georgia State Highway Patrol Act of 1937, Ga. Laws, Extra. Sess. 1937-38, pp. 558-62, does not take from the superior courts jurisdiction to try misdemeanor violations of traffic laws so as to vest such jurisdiction exclusively in the courts of ordinary and in

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municipal courts, as the case may be, as against the superior courts. Consequently, it is my unofficial opinion that the Superior Court of Calhoun County has concurrent jurisdiction with your court for the trial of misdemeanor traffic offenses.

OPINION 69-423 (Unofficial)

To: Private Inquirer

October 8, 1969

Re: Director of the Department of Public Safety is not authorized by Safety Responsibility Act to issue a certificate of cancellation of bond not accepted as surety.

By letter dated August 1 you indicate that a bond executed by an owner of real property as proof of his principal's financial responsibility in accordance with the Safety Responsibility Act was returned to the surety unaccepted. You further advise that you have requested the Director of the Department of Public Safety to issue a certificate of cancellation as authorized by the Safety Responsibility Act, as amended. You have requested this Department to issue an opinion directed to the Department of Public Safety to the effect that the Director is empowered to issue such a certificate cancelling bonds not accepted by him as proof of financial responsibility.
It is the writer's unofficial opinion that the Department of Public Safety is not empowered to issue a certificate of cancellation for a bond not accepted for filing with the Director. The law provides that "when a bond with individual sureties filed with the Director is no longer required under this Chapter (Safety Responsibility Act, as amended), the Director shall upon request cancel it as to liability for damage to property or injury to or death of any person or persons and when a bond has been cancelled by the Director he shall upon request furnish a certificate of the cancellation with the seal of the department thereon." Ga. Code Ann. 92A-605(d)(5). Other portions of the Act prohibit the Director from accepting bonds which fail to comply with various prohibitions set out in the Act. The writer's unofficial opinion is based upon his unofficial interpretation that the word "filed" appearing in the statute contemplates a bond which was tendered and found acceptable. Based upon this interpretation, it is the writer's expanded unofficial opinion that the statute does not authorize the issuance of a certificate of

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cancellation where the bond was not acceptable for filing by the Director.
The writer is aware that the factual situation giving rise to your request is an unusual situation apparently not contemplated by the General Assembly at the time the statutory scheme was enacted. Nevertheless, it is imperative that the relief from the
hardship caused by the application of legislation to peculiar situations be addressed to the legislative branch of the government in accordance with the traditional concept of separation of powers.
It is the writer's unofficial opinion that there is nothing in the law which in any wise precludes the Director from rendering an affidavit to the effect that the bond in question was not accepted and was not filed with the Director with the result that the Director is not relying upon the attempted surety for the satisfaction of any liability adjudged pursuant to the Safety Responsibility Act. In other words, the Director can formalize his written disclaimer of his having accepted the bond as proof of financial responsibility "as to liability for damage to property or injury to or death of any person or persons."

OPINION 69-424

To: Commissioner of Labor

October 8, 1969

Re: Meaning of statutory term "employment agent."

This will acknowledge receipt of letters from your office whereby my opinion has been requested as to whether the operations and activities of certain companies come under the Georgia Laws regarding Private Employment Agencies.
By Ga. Code Ann. 84-410l(f), an "employment agent" or "employment agency" is defined as

any person who, for a fee, (1) procures or offers or attempts to procure employees for persons seeking the service of employees, or employment for persons seeking employment; or (2) who, for a fee, in seeking to perform any of the foregoing, gives information by any means as to where employees or employment may be obtained.

The term "person," by Ga. Code Ann. 102-103, includes a corporation.
The determination as to whether a company by its activities and

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operations falls within the definition of an "employment agent" or "employment agency" must rest upon the word "procure," as said word is used in the above-stated statute, and the nature of the activities and operations of said company.
The word "procure" is defined in Black's Law Dictionary, 1373 (4th ed. 1951 ), as "to contrive, bring about, effect, or cause." Furthermore, as to the meaning of the word ''procure," the Supreme Court of Idaho stated in Ford v. City of Caldwell, 79 Idaho 499, 321 P. 2d 589, 593 (1958), that" 'procure' means, to cause, acquire, gain, get, obtain, bring about, cause to be done; it connotes action."
Thus, in using the word "procure" in Ga. Code Ann. 84-4101(f), it is my official opinion that the General Assembly of Georgia intended to require, by a person held to be an employment agent or employment agency, some action whereby employees are obtained for persons seeking employees, or employment is obtained for persons seeking employment, or, in doing such, gives information by any means as to where either employees or employmerlt may be obtained. You will note that the statute encompasses not only the actual procurement, but also an offer or attempt to procure.
A wide range of activities can be envisioned as comprising the services which would be included in the "action" the performance of which would cause a particular company to fall within the above-quoted definition. Generally, it is my official opinion that any overt action or undertaking on the part of a company whereby assistance is given to an employer in obtaining employees or to a person in obtaining employment would be such "action" as to cause the company performing same to fall within the definition of a private employment agent or agency.
It is my understanding that the companies about which you have inquired direct their attention primarily to the executive who feels that he is dissatisfied with his current position of employment. The companies agree to perform various services for the executive, thus assisting the executive in deciding to either remain in his current position or seek another position. Also, I understand that said companies agree, should the executive decide to seek a different position, to perform certain services for the executive in connection with his efforts to obtain a different position.
As you know, Ga. Code Ann. 844102(a) provides that "no person shall open, operate or maintain an employment agency in the State of Georgia without first securing a license from the Commissioner of Labor."

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Furthermore, a private employment agency which operates without first obtaining a license, violates Ga. Code Ann. 84-9967, which provides, in part, that "any person who shall open, operate, or maintain an employment agency without first securing a license as required by Ga. Code Ann. 844102, subsection (a) ... shall be guilty of a misdemeanorand punished as for a misdemeanor."
Therefore, I would suggest that if you determine or have reason to believe that a company provides services to its clients which, in your administrative opinion comes within the. definition of an employment agent or employment agency, as herein explained, that you call same to the attention of the appropriate criminal court in the county in which said activity is occurring for consideration by the appropriate officer of that court as to prosecution.
As an alternative to criminal prosecution should you determine that the activities of any company cause same to come within the definition of a "private employment agent" or "private employment agency," I would suggest the promulgation of a Rule in accordance with your determination pursuant to the Georgia Administrative Procedure Act (Ga. Code Ann. Ch. 3A). Should a company have reason to disagree with your. determination as evidenced by said Rule, it would appear that the company could contest same by filing, in the appropriate court, an Action for declaratory judgment. See: Ga. Code Ann. 3A-111 and Ga. Code Ann. Ch. 110-11. Finally, should a company subject to such a promulgated Rule not comply with the Rule and not file for a declaratory judgment, the hereinabove-referenced criminal procedures could be pursued.

OPINION 69-425

To: Supervisor of Purchases

October 8, 1969

Re: Workmen's Compensation Act: injury sustained during lunch period or rest break not compensable unless sustained while returning to work; allergic reaction not compensable unless caused by substance designated in statute.

This is to acknowledge and thank you for your letter of September 11, 1969, wherein you ask for help in two nebulous areas of the Workmen's Compensation law. Specifically, you ask for our assistance in helping you establish a clearer policy with regard to two types of cases: (1) accidents occurring during coffee

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breaks and/or lunch breaks, either on or off premises; (2) cases involving allergies.
You make the statement that the holdings of Workmen's Compensation cases regarding accidents occurring during coffee breaks and/or lunch breaks are shadowy. This is, unfortunately, a correct analysis. In these areas, the cases seem to be dealt with by Georgia courts on a case-by-case method with the facts of each case wholly determinative. In 13 Mercer Law Review on page 23 7, Professor D. Meade Feild writes:
"Generally, travel by an employee from home to work or work to home is not within the coverage of the compensation statute unless the accident in question occurs within a reasonable time before work begins or after work ends and while the employee is still on the premises of the employer. This has been called the 'premises rule' and at least for the sake of uniformity, such rule ought to be applied to the going and coming of employees in connection with lunch periods. In Georgia, however, the premises rule as such, has never been fully applied to lunch time travel and on several occasions in the past compensation has been denied on the ground that their lunch period was entirely personal to the employee and hence, was distinguishable from going and coming between home and work."
At one time the idea that an employee injured during lunch or on a rest period or break was not to be compensated for an accidental injury under Workmen's Compensation law was strictly construed. There have been a few rather significant changes in this rule recently. One of the most interesting is contained in Travelers Insurance Co. v. Smith, 91 Ga. App. 305, 85 S.E.2d 484 (1954), in which an employee, working for the Macon Telegraph and News, was injured when he fell down a flight of steps three or four minutes before he was supposed to report back to work from lunch. The facts showed that he was on his way back to his work station and that it was necessary, in order for him to return to work by the designated time, for him to be in the place he was injured at the time he was injured. The court felt that this was an accidental injury arising out of and in the course of employment and was therefore compensable.
Another case reached a similar result. In Mayor of Athens v. Cook, 102 Ga. App. 188 (1960), the deceased was walking back to work from his lunch, fell and hit his head in a ditch in which he had been digging, and died thereafter. The Deputy Director who

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heard the case felt this was an accidental injury arising out of and in the course of employment and was therefore compensable. The Court of Appeals agreed and affirmed.
In one final significant case, Fulton County Civil Court v. Elzey, 101 Ga. App. 520, 114 S.E.2d 314 (1960), the decedent, a Deputy Marshal of the Court, had the job of serving legal processes within the territorial limits of the county and after serving such processes, was required to make proper returns. While returning from a nearby cafeteria where, due to crowded conditions, decedent had purchased only a glass of tea and not eaten a full lunch, he was struck and killed by a car as he crossed the street. The Court of Appeals of Georgia affirmed an award of workmen's compensation, partly on the ground that the decedent had terminated his personal mission of deviation when he started his return to the courthouse. There would thus seem to be a "going to and coming from lunch" distinction. This would appear to apply whether lunch is in fact taken on the premises or off. In the case of Ocean Accident and Guaranty Corporation v. Farr, 180 Ga. 266, 178 S.E. 728 (1934), an employee was injured while en route from his place of employment to another place in the building where he intended to eat his lunch. In this case the court felt the accident arose in the course of, but not out of, the employment and was therefore not compensable. The logic behind this distinction seems to be that during lunch the employer has no control over the employee and the employee is on a purely personal mission. This same logic would apply to the rest period or break.
In connection with the lunch cases, one must keep in mind the exact mission from which the employee is returning. It is important to note the case of Employer's Liability Assurance Corporation v. Woodward, 53 Ga. App. 778, 187 S.E. 142 (1936), where the employee was injured when returning from lunch after she had reached the employer's premises and in fact was only a few feet from her work bench. Denial of the workmen's compensation claim was affirmed because the facts indicated that upon finding that she had ample time left after she had eaten her lunch, the claimant went to a barber shop to converse with her son-in-law, a purely personal mission, and then was injured on her return from this personal mission to work.
In summary, it would appear that the lunch period cases and the break and rest period cases are treated the same. Both lunch periods and rest periods or breaks are considered purely personal missions of the employee and as such, an injury occurring as an employee goes to lunch or to break, or during lunch or break, is

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not compensable. However, if an employee is injured on the return to work from a rest break or lunch, and the employee is in fact returning from such lunch or rest period and not from a purely personal mission unexpected and uncontemplated by the employer, that employee will most likely be entitled to compensation for that injury under the Workmen's Compensation statutes. See also: Fidelity and Casualty Company of New York, et al. v. Scott, 215 Ga. 491 (1959); Georgia Casualty Company v. Martin, 157 Ga. 909, 122 S.E. 881 (1924); Employers Mutual Liability Insurance Company, et al. v. Carlan, 104 Ga. App. 170 (1961); McCord v. Employers Liability Assurance Corporation, et al., 926 Ga. App. 35 (1957); Givens v. Travelers Insurance Company, 71 Ga. App. 50, 30 S.E.2d 115 (1944); Maddox v. Travelers Insurance Company, 39 Ga. App. 690, 148 S.E. 397 (1929).
The question of whether an allergic reaction of an employee can fall within the realm of the compensable accidental injuries or occupational diseases is a little more clear than that of the lunch or break cases just above discussed. In the case of Rittenhouse v. United States Fidelity and Guaranty Company, et al., 96 Ga. App. 407, 100 S.E.2d 145 (1957), the claimant was running extracts and removing materials from dye vats. The employee would go barefoot on a cement floor where there was normally an accumulation of moisture, water and dye. He began to be troubled by eruptions on the palms of his hands and soles of his feet which became infected, pustulated and raw. His trouble was diagnosed as chronic dermatitis infection, cause undetermined. In denying compensation to the claimant the court said:
"A disability in the form of a skin condition resulting from working around materials not listed in this Code Section [Ga. Code Ann. 114-803] is not compensable." [See also, Nowell v. Employers Mutual Liability Insurance Company, 93 Ga. App. 288, 91 S.E.2d 289 (1956)].
The case of Shore v. Pacific Employers Insurance Company, et al., 102 Ga. App. 431, 116 S.E.2d 526 (1960), is one of the leading cases on allergies in Georgia. It stands for the proposition that an employee covered by the Workmen's Compensation Act who suffers discomfort on the job as the result of contact with a substance not listed in the Act of 1946 (Ga. Laws 1946, pp. 102, 106; Ga. Code Ann. 114-803), is not entitled to compensation for an "occupational disease." However, this case points out the situation in which an employee "skins" his hands, then comes in

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contact with a cleaning agent used on the job and this results in dermatitis so that the employee suffers the loss of the use of a hand. In this case the employee is entitled to compensation under the Workmen's Compensation Act because this was the aggravation of an injury already received on the job rather than a strictly allergic reaction.
In the case of Benefield v. Harriett and Henderson Cotton Mills, Inc., et al., 113 Ga. App. 556, 149 S.E.2d 196 (1966), an employee developed a rash from coming in contact with "Liquid Wrench" on his job. Compensation was denied the employee because there was no showing that the solvent contained any of the poisons listed in Ga. Code Ann. 114-803, which showing the Court said was requisite for compensation in this case. Therefore, in cases involving allergies, I would refer you to Ga. Code Ann. 114-803 which defines and provides for compensation for occupational diseases. It is my opinion that unless it can be shown a person is allergic to one of the 22 statutorily designated poisons in the referenced Code section, and one of them did in fact cause such an allergic reaction, compensation for disease or discomfort from an allergy should not be allowed.

OPINION 69-426 (Unofficial)

To: Private Inquirer

October 8, 1969

Re: Corporation must prepare report of financial condition "not later than four months after the close of each fiscal year, and in any case prior to the annual meeting of shareholders."

This will acknowledge receipt of your letter dated September 25, 1969, whereby you inquired as to whether corporations organized under the laws of the State of Georgia are required to issue quarterly statements of their earnings.
In 19 6 8 , the General Assembly of Georgia enacted a comprehensive new Corporation Code which became effective on April 1, 1969. I am unaware of any provision of the new Code which specifically requires quarterly statements of earnings.
However, in response to your question, your attention is called to Ga. Code Ann. 22-613(f) which provides:

Not later than four months after the close of each fiscal year, and in any case prior to the annual meeting of shareholders, each corporation shall prepare:

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( 1) A balance sheet showing in reasonable detail the financial condition of the corporation as of the close of its fiscal year, and (2) A profit and loss statement showing the results of its operation during its fiscal year. Upon written request, the corporation promptly shall mail to any shareholder of record a copy of the most recent such balance sheet and profit and loss statement.

Finally, your attention is also called to Ga. Code Ann. 22-613(g) which provides that "each corporation which refuses, when requested by any shareholder of record, to furnish a balance sheet and profit and loss statement as provided by subsection (f) of this section shall be liable to the shareholder in a penalty of $500."

OPINION 69-427 (Unofficial)

To: Private Inquirer

October 8, 1969

Re: Soldiers' and Sailors' Relief Act does not prohibit State from filing a tax lien against motor vehicles for the nonpayment of State taxes.

Your letter to the Department of Revenue, State Income Tax Unit, of September 27, 1969, has been forwarded to this office for response.
As I understand it, your complaint is that the State of Georgia has issued and filed a tax fi. fa. against you and has filed a tax lien against each of two motor vehicles owned by you for unpaid State income taxes; and, you feel that this is a violation of some of your statutory rights created by the Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
Your attention is directed to Title 50 of the United States Code Annotated, Section 560, Subsection (2) which reads in part:

"No sale of such property [set out in Subsection (1)] shall be made to enforce the collection of such tax or assessment [also set out in Subsection (1)], or any proceeding or action for such purpose commenced, except...."

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The issuing and filing of a tax fi. fa. and the filing of a tax lien on motor vehicles does not constitute any of the above. In addition, the last sentence of Subsection (4) reads:

"Any lien for such unpaid taxes or assessment shall also include such interest thereon."

From the above it is abundantly clear that the Soldiers' and Sailors' Relief Act of 1940, as amended, does not prohibit the State of Georgia from issuing and filing a tax fi. fa. and filing a tax lien against motor vehicles for the non-payment of State taxes.

OPINION 69-428

To: Department of Public Safety

October 9, 1969

Re: Soldiers' and Sailors' Civil Relief Act does not preclude the enforcement of Georgia's Motor Vehicle Safety Responsibility Law.

This will acknowledge the recent inquiry of your Department wherein it was asked whether or not the provisions of the Soldiers.' and Sailors' Civil Relief Act of 1940,50 U.S.C.A. 501, et seq., precludes the Department of Public Safety from suspending a driver's license for his failure to comply with the provisions of Georgia's Motor Vehicle Safety Responsibility Law, Ga. Code Ann. Ch. 92A-6, where the driver is in the military.
The facts as determinable from the papers accompanying your Department's request reflect that a party involved in a motor vehicle collision had filed an affidavit claiming damages as a result of a collision in which the other party is an airman in the United States Air Force. After the filing of the claimant's affidavit, your Department instituted its usual proceedings pursuant to the provisions of Ga. Code Ann. 92A-605 which, among other things, would require the airman to file security with the Department or, in lieu thereof, a release, and proof of financial responsibility for the future. It was suggested by the airman's counsel that the terms of the Soldiers' and Sailors' Civil Relief Act of 1940 precludes the Department of Public Safety from taking the airman's license for failure to comply with the provisions of Ga. Code Ann. Ch. 92A-6.
The Soldiers' and Sailors' Civil Relief Act of 1940 makes reference throughout the act to actions in a court and the act defines "court": " ... as used in this Act, shall include any court

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of competent jurisdiction of the United States or of any state, whether or not a court of record." 50 U.S.C.A. 511(4). The Federal judiciary has concluded that the term "court" as used in the act does not include action by governmental administrative bodies. United States v. Frantz, 220 F.2d 123, 125 (3rd Cir. 1955); Polis v. Creedon, 162 F.2d 908, 911 (Emer. Ct. App. 1947).
Additionally, the appellate courts of this State have said that it is not the purpose of the Motor Vehicle Safety Responsibility Law as administered by the Department of Public Safety to impose sanctions for the violations of the laws of this State, for that matter is left to the courts. Murphy v. Dominy, 211 Ga. 70, 73
(1954). I conclude, therefore, that action taken by the Department of
Public Safety pursuant to the provisions of the Motor Vehicle Safety Responsibility Law (Ga. Code Ann. Ch. 92A-6) is administrative in nature and not judicial. Thus, it is my official opinion that the Department of Public Safety is not precluded by the Soldiers' and Sailors' Civil Relief Act of 1940 from implementing the provisions of the Motor Vehicle Safety Responsibility Law against one in the military service.
OPINION 69-429 (Unofficial)

To: Alma City Attorney

October 9, 1969

Re: Jurisdiction of municipal courts to try violators of state traffic laws.

By letter you inquire as to the jurisdiction of the Recorder's Court of Alma to try State offenses for traffic violations arising under the Highway Patrol Act 1937, Ga. Laws 1937-38, Extra. Sess. p. 558; Ga. Code Ann. Chs. 92A-1 to 92A-5 (1953 Rev.). You further indicate that there is no city or county court in Bacon County.
Prior to 1937, the General Assembly had no power to confer jurisdiction over crimes against the State upon a court created for the trial of municipal offenses. Clark v. Johnson, 199 Ga. 165 (1945). The power of a recorder's court to try such offenses exists solely by virtue of the 1937 constitutional amendment. Ibid. This 1937 amendment has been included in the Constitution of 1945 as Art. VI, Sec. VI, Par. II. Aside from this provision, there is no power to grant such authority or jurisdiction. City of Atlanta v.

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Landers, 212 Ga. 111 (1955); Hannah v. State, 97 Ga. App. 188, 192 ( 1958). The constitutional provision is keyed to the Highway Patrol Act of 1937 of which Ga. Code Ann. 92A-501 is a part. It is also noted that both the constitutional amendment/provision and the enactment in question contain the limitation that the jurisdiction of such municipal courts exists only where the territory in question is not within a county in which a county or city court has been established. Clark v. Johnson, supra. Since Bacon County does not contain such a court, you are not concerned with this limitation upon the existence of recorder's court jurisdiction.
It is the writer's unofficial opinion that the Recorder's Court of Alma has jurisdiction to try State offenses for traffic violations. It is further my unofficial opinion that this jurisdiction is conferred by a constitutional provision of statewide operations. Consequently, it is immaterial whether the city charter establishing the courts for the trial of municipal offenses contains an express legislative grant of such jurisdiction. It is only necessary that such courts be provided and that there be no city or county
court having concurrent territorial jurisdiction. As drafted, the language of the constitutional provision is self-executing.
You further inquire as to the proper disposition of a case where an accused having refused to waive jury trial has been bound over to the Superior Court by the Recorder. The statutory rule is that the money from fines and forfeitures is to be paid into the treasury of the county where the particular court is held. Ga. Code Ann. 27-2902 (1933), Ga. Code Ann. 27-2902 (1953 Rev.). Thus, it is my unofficial opinion that all fines and forfeitures resulting after the offender in question has been bound over to the Superior Court are payable into the treasury of Bacon County. We note that there are several population bills dealing with the disposition of such funds; however, the Bacon County 1960 census of 8,359 does not bring it within any of the pertinent population brackets.

OPINION 69-430

To: Department of Revenue

October 10, 1969

Re: Purchase of liquor from unlicensed establishments by Department of Revenue agents does not constitute entrapment.

This will acknowledge receipt of your letter of September 11, 1969, in which you request an opinion as to whether the purchase

608
of liquor from an unlicensed establishment by agents of the Department of Revenue constitutes entrapment within the meaning of the new Criminal Code (Ga. Code Ann. 26-905).
It is not every inducement or solicitation by a government officer, employee or agent which suffices as a defense to a criminal charge: to constitute a defense the inducement or solicitation must be "by entrapment." For the conduct of an agent of the Department of Revenue to rise to the level of entrapment, the agent must have conceived the idea of committing the crime and have so overborne the will of the accused as to induce him to perform an act he would not otherwise have performed. These elements would not appear to be present in the typical fact situation which you describe, particularly not where there is evidence that the accused has engaged in similar activities more than once, thus demonstrating a propensity to commit the crime of his own volition.
Because the new Criminal Code became effective only as of July 1, 1969, there have been no appellate decisions applying this section. However, we are not without judicial guidance as to its meaning. As both the language of this section and the notes of the committee which drafted it (Ga. Code Ann., Title 26, Committee Notes, pp. 68, 70) indicate, this definition of entrapment was taken almost verbatim from the third headnote of Sutton v. State, Ga. App. 198 (1938), the seminal case on entrapment in Georgia. It was there held that the purchase of liquor from one suspected of selling it illegally, by an individual employed by a deputy sheriff for that purpose, did not constitute entrapment even though the individual admitted that he had begged the accused to sell the liquor to him. The court elaborated on its holding in the following language:
" . . . it is no entrapment to commit a crime where the officers merely furnish an opportunity to a criminal who is ready and willing to commit an offense.... If an officer acts in good faith in the honest belief that the defendant is engaged in an unlawful business, ... and the purpose of the officer is not to induce an innocent man to commit a crime but to secure evidence upon which a guilty man can be brought to justice, the defense of entrapment is without merit." (p. 200).
This approach to the problem of entrapment has been followed uniformly in a long line of cases involving purchases from establishments suspected of selling liquor illegally. See Bienert v.

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State, 85 Ga. App. 451 (1952) Cherry v. State, 98 Ga. App. 107
(1958); Merritt v. State, 110 Ga. App. 150 (1964); Veasey v.
State, 112 Ga. App. 651 ( 1965). In light of this background, it is apparent that the General Assembly intended Ga. Code Ann. 26-905 to be merely a codification of the existing law with regard to entrapment.
Based on the foregoing, it is my opinion that the purchase of liquor by an agent of the Department of Revenue, from one suspected of selling it illegally, where that purchase does not involve "undue persuasion," does not constitute entrapment.
OPINION 69-431

To: State Board of Pardons and Paroles

October 10, 1969

Re: Prohibitions of parole to prisoners convicted on narcotics charges are unconstitutional.

This is in reply to your letter dated September 25, 1969, in which you ask whether the provisions of Ga. Code Ann. 79A-9911 (Ga. Laws 1967, pp. 296, 375), relating to sentences imposed upon individuals convicted of violations of the Uniform Narcotic Drug Act (Ga. Code Ann. Ch. 79A-8, Ga. Laws 1967, pp. 296, 325), which (1) restrict the granting of parole relief to individuals who have served "the minimum imprisonment herein provided ...," and (2) prohibit absolutely the granting of parole relief to individuals convicted of offenses in which narcotic drugs are illegally transmitted to minors are constitutional and binding upon the State Board of Pardons and Paroles.
The State Board of Pardons and Paroles, created by the Constitution, "shall have power to grant reprieves, pardons and paroles, to commute penalties, remove disabilities imposed by law, and may remit any part of a sentence for any offense against the State, after conviction except in cases of treason or impeachment. . . . * * *The General Assembly may enact laws in aid of, but not inconsistent with, this amendment." Georgia Constitution, Art. V, Sec. I, Par. VI (Ga. Code Ann. 2-3011).
The Board derives its power to grant parole relief directly from the Constitution. The general authority granted by the Constitution to the State Board of Pardons and Paroles to dispense parole relief is limited, by that document, only to the extent that the Board may not provide relief in cases of treason or impeachment.
As the Constitution authorizes parole relief in all cases except those involving treason or impeachment, it is necessary to

610
determine whether the General Assembly may, by statute, restrict or prohibit the granting of paroles in other types of cases.
The legislative power of this State is ''vested in a General Assembly." Georgia Constitution, Art. III, Sec. I, Par. I (Ga. Code Ann. 2-1301). In the absence of constitutional provisions, legislative matters "are circumscribed only by the wise discretion of the General Assembly itself; but respecting those rights and those things concerning which the Constitution has itself made provision, the legislature is without powers,. ... ''Massenburg v. The Commissioners of Bibb County, 96 Ga. 614, 618 (1895). (Emphasis added.) For a more recent affirmation of this general principle, see Thompson v. Talinqdge, 201 Ga. 867 (1947). When a transaction is specifically authorized by a constitutional provision, "it is elementary that neither the legislature nor the courts have any right to restrict, evade, or violate it in the slightest degree." Woodside v. City of Atlanta, 214 Ga. 75,80 (1958). Where an act of the General Assembly is at variance with the Constitution, "the constitutional provision prevails." Bugden v. Bugden, 224 Ga. 517, 518 (1968).
The authority of the General Assembly to restrict, diminish, or prohibit the granting of parole relief has apparently never been litigated in- Georgia. This general subject has, however, been treated in an official opinion of former Attorney General Eugene Cook. Op. Atty. Gen., 1954-56, p. 519. The reasoning of that opinion is sound and the principles discussed therein are correctly applied. Therefore, the former opinion is approved.
A somewhat similar provision of the United States Constitution, authorizing the President "to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment" has been litigated in the Federal court system. United States Constitution, Art. II, Sec. II, Par. I (Ga. Code Ann. 1-208). In the era of the War Between the States, and the so-called reconstruction thereafter, the Congress of the United States enacted various pieces of legislation which had the effect of limiting the President's pardoning power. The constitutional power to pardon, vested in the President, "is unlimited, with the except~on stated.... Thi~ power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." In ReA. H. Garland, 4 Wall. 333, 18 L.Ed. 366, 370 (1867). Cf. Klein v. Wilson, 13 Wall. 128, 20 L.Ed. 519 (1872). Later, the Court held that the presidential pardoning power "cannot be interrupted, abridged, or limited by any

611
legislative act." Pollock v. Bridgeport Steamboat Co. 114 U.S. 411, 29 L.Ed. 147, 148 (1885).
The Georgia Constitution vests in the State Board of Pardons and Paroles the power to grant parole relief. That authority is limited, by the Constitution, only in cases of treason or impeachment.
It is my opinion that the provisions of Ga. Code Ann. 79A-9911 (Ga. Laws 1967, pp. 296, 375), relating to the sentences of persons convicted of violations of the Uniform Narcotic Drug Act, which ( 1) restrict the granting of parole relief to individuals who have served a prescribed minimum sentence and (2) forbid the granting of parole relief to individuals convicted of illegally transmitting narcotic drugs to minors are at variance with the Constitution. Therefore, it is my opinion that those statutory provisions are unconstitutional and may be disregarded by the State Board of Pardons and Paroles in dealing with the cases of individuals who would otherwise be subject to the statutory restrictions.
In rendering this opinion, I am mindful that a declaration of a statute's unconstitutionality is a judicial prerogative and that the courts restrict such decisions to cases in which the infirmity is inescapable. It is the general policy of this office to refrain from issuing opinions which conclude that a statute is unconstitutional. This policy is uniformly applied in all instances in which the constitutional issue may be readily litigated.
I have not adhered to the general policy primarily because the question presented cannot be readily litigated. As the granting of relief by your agency is a matter of grace, the opportunity for the question to be presented to a court is severely circumscribed. Even so, I could render this opinion in good conscience only after satisfying myself that the infirmity is palpable and that the possibility of differences of interpretation is remote. I am also mindful that your Board needs advice in these premises, as the grant or denial of relief is determinative of an interest which is, perhaps, second only to life itself.
I caution you, however, that this opinion merely advises the Board that it may consider the granting of parole relief. The Board shoulq apply all of its usual standards in making a final determination in any particular case.

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OPINION 69-432 (Unofficial)

To: District Attorney

October 10, 1969

Re: District Attorney lacks authority to grant release to surety on bail bond when principal is serving sentence on another charge.

This will acknowledge receipt of your letter of September 8, 1969, in which you ask whether the District Attorney may grant a release to the surety on a bail bond where the principal in the bond has been sentenced to life imprisonment on another charge and is presently confined at Reidsville pursuant to that sentence.
It is my unofficial opinion that the District Attorney does not possess this power. The basic statutory provision governing the discharge of bail is found in Ga. Code Ann. 27-904.
It is probable that the General Assembly intended the methods of discharging bail included in that statute to be exclusive. The Georgia Supreme Court has indicated, although not with regard to the precise issue you raise, that it will take such a strict constructionist approach where the powers of the District Attorney are concerned. See Malcom v. Webb, 211 Ga. 449 (1955). In any event, it is clear that after the failure of the principal to appear at the time specified in the bond or recognizance, the District Attorney is not vested with any discretionary power to release the surety: Ga. Code Ann. 27-905 provides that in such a situation "the prosecuting attorney shall proceed to forfeit such bond or recognizance."
The case law on this question is very sparse. The closest a court of this State has come to deciding the question you raise is the case of Williams v. Jenkins, 53 Ga. 166 (1874). There, after forfeiture but before final judgment on the forfeiture, the Solicitor General wrote on the scire facias, "Received my cost, $5.00, the defendant having appeared in court." The court held that such a notation by the Solicitor General was insufficient as a discharge of the sureties on the bond, stating that "to permit so loose a discharge of bonds as this would be bad public policy." (Id. 168.) The issue before the court was slightly different from the present one, and, of course, the case is an old one. The meaning of the court is, however, clear, and I am not aware of any subsequent case which has taken a contrary position. You cite in your letter the case of Cooper v. Brown, 10 Ga. App. 730 (1912) and there is language in that opinion which suggests that the subsequent arrest of the principal of itself discharges the surety. I

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call to your attention, however, the fact that the case has been disapproved in this regard. See Benson v. Harris. 19 Ga. App. 328 (1916); Hubbard v. Walker. 32 Ga. App. 490 (1924); Jordan v. State, 41 Ga. App. 779 (1930). The principle is now established that the subsequent arrest and detention of the principal on a separate charge does not automatically discharge the surety. The effect of a subsequent detention on the surety depends upon its continuance. The most that can be said on the basis of these cases is that the detention of the principal by the State at the time the principal is required to appear under the terms of the bond is a good defense to a forfeiture proceeding. These cases, then, do not speak directly to the question of the District Attorney's power to grant a release.
The law dealing with the question you have asked is rather meager. However, in the absence of a more definite expression of a legislative purpose to give to the District Attorney the power to grant a release to a surety on a bail bond, it is my opinion that the District Attorney does not possess such power.

OPINION 69-433

To: Department of Public Safety

October 16, 1969

Re: Driver's license may not be suspended or revoked after a plea of nolo contendere to "drag racing."

This will acknowledge the recent inquiry of your Department wherein it was asked "as to what authority, if any, the Department of Public Safety has to suspend a driver's license for the offense of drag racing where a plea of nolo contendere has been accepted."
Any person who shall be convicted, or enter a plea of guilty, or a plea of nolo contendere to the "drag racing" offenses, Ga. Code Ann. 68-1626(e) thru (g), shall be guilty of a misdemeanor and shall be punished as provided by law. Ga. Code Ann. 68-9931. The court has further authority to revoke the driver's license of any person who is convicted or enters a plea of guilty for any of the offenses involved in "drag racing." Ga. Code Ann. 68-1626(h). The law does not provide forthe court to revoke a license upon a plea of nolo contendere and, therefore, it cannot be presumed that it was the intention of the General Assembly to grant that authority to the courts. Cf. Fulton County Employees Pension Board v. Askea, 95 Ga. App. 77(1) (1957).
In Nelson v. State, 87 Ga. App. 644 (1953), the appellate court

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held that a sentencing court could not suspend a driver's license after a plea of nolo contendere to the charge of driving while under the influence of intoxicating liquor, for to suspend or revoke a driver's license in addition to the misdemeanor punishment already imposed is to impose a civil disqualification and such is prohibited by Ga. Code Ann. 27-1410, which precludes the use of pleas of nolo contendere as a civil disqualification in any other court or proceeding.
Although the Department of Public Safety is given authority to revoke and suspend driver's licenses for a longer term than is now provided by law after a conviction or guilty plea to "drag racing," neither the courts nor the Department of Public Safety have been given authority to revoke or suspend a driver's license after a plea of nolo contendere. Ga. Code Ann. 68-1626(h).
Therefore, it is my official opinion that the Department of Public Safety may not suspend or revoke a driver's license after a plea of nolo contendere to a violation of the "drag racing" offenses.

OPINION 69-434 (Unofficial)

To: Oglethorpe County Attorney

October 17, 1969

Re: Tax Receiver on a fee basis entitled to one-half of the regular commissions while in office.

This is in reply to your request for advice concerning the compensation of the Tax Receivers who held office during the calendar year. The person elected to the office of Tax Receiver resigned the office on or about January 21. An Acting Tax Receiver was appointed and served from that date until about March 14 when the office was filled by the Tax Receiver elected at a called election. The Tax Receiver and Collector are paid in this County on the fee basis.
The only authority we have been able to locate on this question is found in Ga. Code Ann. 89-830 dealing with the compensation of Tax Collectors where more than one Collector acted during a calendar year. Tax Receivers are compensated in the same amounts as Tax Collectors and this Section would apply to Tax Receivers as well as Collectors. Ga. Laws 1918, p. 110. Salmon v. Floyd County, 24 Ga. App. 796 (1920).
The three Tax Receivers are each entitled to receive one-half of the regular fees due based on the returns received by him on which

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the tax was collected. The other one-half of such fee is to be paid to the person who was Tax Receiver when the tax was paid.

OPINION 69-435

To: State Board of Corrections

October 17, 1969

Re: Board of Corrections not responsible for specifications of five-year license plates or manufacture of county and year decals.

By letter you inquire as to whether the State Board of Corrections has any responsibilities in formulating specifications for the material that is to be used in the manufacture of the five-year motor-vehicle license plates under Ga. Code Ann. 68-214, as amended, Ga. Laws 1969, pp. 266, 268-70. In answering your inquiry, I have assumed that the word "responsibilities" is used as a synonym for conclusive authority, since I am of the opinion that all agencies of the State government which may reasonably participate in the legislative program have an obligation to work with each other participating agency to see that the intention of the General Assembly is fully implemented. The enactment in question does not definitely and conclusively designate any agency or department as having the authority to finalize the material specifications for the metal; however, this enactment does provide that the Governor's Coordinator of Highway Safety shall prepare the specifications for the retroreflective material to be used. Ga. Laws 1969, pp. 266, 269.
This enactment makes no mention of any obligation on the part of your Department which would constitute authority for specifying any of the material to be used. Nor can I find any other legislation which would indicate that your Department is vested with such authority.
As you are aware, the law proscribes the manufacture of license plates by private persons, firms or corporations. Ga. Code Ann. 68-216 (1933). This necessarily requires that the State undertake the manufacture of these plates, and it has traditionally been the function of your Department to contract with the Purchasing Department for the manufacture of the motor-vehicle license tags. The law provides that merchandise needed by the State be obtained from the Department of Corrections unless your Department is unable to provide them. Ga. Laws 1937, pp. 503, 514; Ga. Code Ann. 40-1927. As a result, your Department has received appropriations for the purchase and installation of machinery and equipment designed to manufacture these license

616

tags. As a consequence, it is my opinion that your Department is under a responsibility to affirmatively negotiate with the Purchasing Department for the contract for the manufacture of the plates, and, in this regard, to advise all participating agencies as to the material specifications which will best utilize existing equipage.
With respect to your second inquiry as to the obligations of
your Department to undertake the manufacture of the decals, the use of which was authorized by the 1969 enactment amending Ga. Code Ann. 68-214, it is my opinion that this law does not expressly require the State Board of Corrections to undertake the manufacture of these items. The revalidation stickers and the county-designation stickers are not part of the traditional license plates and my office has been informed by your Department that an additional expenditure by your Department would be necessary in order to acquire machinery necessary to undertake their manufacture. It would thus appear the items are presently "not available" from the Director of Corrections. At the same time, the legislation is not sufficiently clear for me to render an opinion to the effect that .it was not the legislative intention that your Department undertake to make such items available. It is my recommendation that legislative clarification on your responsibility be requested from the 1970 Session of the General Assembly, provided that such legislative action will be consistent with the overall time schedule for implementing the five-year license plate program.

OPINION 69-436

To: State Highway Department

October 17, 1969

Re: The State may spend funds for traffic control devices.

This is in reply to Mr. Leland S. Veal's request for my opinion on whether the existing law in Georgia specifically prohibits the State from spending State funds for traffic control devices. It is my understanding that the background of this question is the result of a new federal program in which the Federal government will provide Federal aid to the State of Georgia on a 50-50 matching basis, to assist urban areas with funds for making traffic engineering improvements.
It is my official opinion that Georgia law does not prohibit the State from spending State funds for traffic control devices; however, due to the wording of the statutes regarding the use of

617
any remaining available State highway funds, it is my opinion that the expenditure of State highway funds could extend only to those roads which are a part of the State highway system or a part of the county road system which are maintained by the county and extend from within the limits of a municipality concerned out into the county itself.
The provisions of Ga. Code Ann. 95-1609 G) specitically deal with the question of how the surplus motor fuel tax funds are to be distributed by the Highway Department. The Legislature's use of the word "improvement" in this statute substantiates the conclusion that the State can expend funds for traffic control devices. "To repair is, to mend; to restore to a sound state whatever has been partially destroyed; to make good an existing thing; restoration after decay, injury, or partial destruction. [Citations omitted] An improvement is a valuable and useful addition, something more than a mere repair or restoration to the original condition." Dougherty v. Taylor & Norton Co. 5 Ga. App. 773 (1909). Thus it is my opinion that, keeping in mind the Georgia court's definition of an improvement, the purchase of traffic control devices by the State Highway Department would be considered as a valuable and useful addition which would come_ within the scope of the above Code Section regarding the use of funds for improvements of the various roads set forth.
However, the State cannot pay out any money until there has been an appropriation made by law. See Park v. Candler. 113 Ga. 647 (1901). It should be pointed out in this regard that the General Assembly in the above-cited statute has specifically set forth the roads upon which these funds shall be expended. It is significant to note that municipal streets are in essence excluded by these provisions, with certain exceptions. Expenditures are allowed on municipal streets which extend from within the limits of the municipality concerned out into the county itself.
Also, certain municipal streets which are located upon the property of and serving public schools or colleges of the university system or bridges in municipalities may be subject to expenditures of these funds under such conditions as the Department may provide; thus it is concluded that all other municipal streets which do not come within these exceptions would be excluded. This conclusion is reached through the use of the statutory rule of construction that the General Assembly by express mention of one thing implies the exclusion of another; expressio unis est, exclusio alterius. See the application of this rule of construction in City ofMacon v. Walker. 204 Ga. 810(2) (1949).
Furthermore, it should be pointed out that the General

618

Assembly, in the provisions of Ga. Code Ann. 68-1610, has expressly authorized the State Highway Board to place and maintain traffic control devices upon all State highways, including those State highways within all municipalities and counties. Also, in these same provisions, the State Highway Board has been granted exclusive authority for the determination of the placement and maintenance of these traffic control devices on State-aid roads.
However, it should be pointed out that the municipalities have not been absolutely excluded from access to funds for the acquisition of traffic control devices. The provisions of the Constitution of Georgia, Art. VII, Sec. II, Par. VI (Ga. Code Ann. 2-5506) authorize the grant of State funds to municipalities.
The General Assembly has set forth the purposes for which the above-referred to funds may be expended in the provisions of Ga. Code Ann. 69-1301.
Therefore, in the light of the above discussion regarding the scope of the word ''improvement," it is my opinion that the above-cited Code Section authorizes a municipality to make expenditure for traffic control devices from these funds.

OPINION 69-437

To: Department of Public Safety

October 20, 1969

Re: Operators of soft drink trucks, dairy trucks, etc;, required to obtain operator's license.

This will acknowledge receipt of your letter of September 17, 1969, in which you request an opinion as to whether operators of soft drink trucks, dairy trucks, etc., and, in particular, milk salesmen who drive vehicles carrying the milk which they intend to sell, are required to obtain chauffeurs' licenses.
Ga. Code Ann. 92A-401(3) defines the class of public chauffeurs as follows:

"(3) Public chauffeurs class which shall embrace all persons not less than eighteen years of age and not otherwise disqualified: (a) Who is employed by another for the principal purpose of driving a motor vehicle. (b) Every person who drives a school bus transporting school children,

619
(c) Every person who drives any motor vehicle when in use for the transportation of persons or property for compensation."
In my opinion, deliverymen, such as those who drive soft drink trucks, dairy trucks, laundry trucks, grocery trucks, etc., are members of the "public chauffeurs" class of operators under subsection 3 (a) of this statute. Although they may perform other physical acts, such as loading and unloading their vehicles, these operators are employed for the ''principal purpose" of driving a vehicle. The principal requisite for their employment is the ability to drive the particular kind of vehicle involved, and not some other unrelated ability. The principal service they perform, and the one for which they are paid, is the operation of a vehicle.
It is also my opinion that dairy products salesmen, who drive vehicles in which they transport the milk they intend to sell, are properly regarded as chauffeurs within the meaning of this statute. I understand that these salesmen are compensated on a commission basis, and that they receive no compensation as such for driving these trucks. Although they are not employed for the principal purpose of driving a vehicle, their job being that of salesmen, and although they are not school bus drivers, the vehicles which they drive are being used "for the transportation of . . . property for compensation," and therefore they are comprehended by subsection 3(c). The seller of goods normally allows for his delivery costs in figuring his sales price; therefore, a part of the compensation which these salesmen receive is for the service of transporting the milk to the buyers. It should also be borne in mind that the requirements for obtaining a chauffeur's license, rather than an operator's license, differ only in the amount of the license fee. The purpose of the statute, then, is to require those who earn their livelihood as a result of the operation of vehicles on the State's highways to pay more for the privilege of driving than other operators. These salesmen obviously rely heavily on the use of the State's highways in performing their jobs and must be regarded as having been in the legislature's contemplation when it devised the public chauffeurs class. Certainly if these salesmen traveled into the field unaccompanied by their product, made their sales, and took orders for the delivery of the milk, the drivers of the vehicles in which the milk was later delivered would be required to possess chauffeurs' licenses. There is no good reason the salesmen should not be subject to the same requirement when they transport the milk themselves.
There have been no Georgia decisions construing Ga. Code Ann.

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92A-401(3). Although there have been some decisions in other jursidictions involving "chauffeur" statutes, I am aware of no decision which involved both a statute similar to ours and operators similar to the salesmen of which you speak. Absent these similarities we cannot take guidance from these decisions. Our task is not to determine what is meant by the term "chauffeur" generally, but rather to determine what is meant by the legislature's definition of "chauffeur." It is my opinion that the above analysis accords with the legislature's intention.

OPINION 69-438 (Unofficial)

To: Jenkins County Commissioner of Roads

and Revenue

October 20, 1969

Re: Salaried law enforcement officer entitled to receive fee provided for warranty officers.

This is in reply to your request of October 14, 1969, concerning the fees to be paid to salaried State arresting officers who provided evidence which results in the conviction of persons illegally manufacturing liquor in dry counties.
Ga. Code Ann. 58-208 provides that a fee of $25.00 shall be taxed in addition to other cost in such cases and that such sum shall be paid to the officer making the arrest and procuring the evidence which results in the conviction of the accused.
The Georgia Court of Appeals held in the case of Cloud v. DeKalb County, 10 Ga. App. 777 (1944), that an officer who receives a salary is not precluded from receiving fees which the law provides for officers making cases and furnishing evidence.
The Code Section in question does not provide that a salaried officer shall not receive such fee. I have been unable to find any provision of law which would prohibit such officer from receiving compensation in addition to his salary.
While the general rule elsewhere is to the contrary, it is my opinion that in Georgia a public officer on a fixed salary is entitled to the fee in question where there is no provision of law prohibiting him from receiving compensation in addition to his salary. 43 Am. Jur., Public Officers, 360.

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OPINION 69-439 (Unofficial)

To: Private Inquirer

October 21, 1969

Re: Assumption by seller of risk of variable and unascertainable amount of tax violates Georgia law.

This is in reply to your request for advice as to the conformity with the Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. Laws 1951, p. 360, as amended, (Ga. Code Ann. Ch. 92-34A), of the "health insurance plan" described below.
Under the plan, participating pharmacists agree with Metropolitan Life Insurance Company to dispense to defmed Eligible Persons certain drugs for which the Eligible Person pays the pharmacist a fixed amount termed a co-payment which is the same for each purchase.
The agreement provides that Metropolitan will pay the participating pharmacists an amount equal to the pharmacists' acquisition cost plus a fixed dispensing fee less the fixed co-payment amount received by the pharmacist from the Eligible Person. Acquisition cost is defined to mean the actual cost of a covered drug to the pharmacist. The dispensing fee is an established amount, which is the same for each sale by the pharmacist, and is defined to include the applicable sales tax.
Specifically, the question presented is whether participating pharmacists under the plan violate Section 12(e) of Ga. Laws 1951, pp. 360, 373, as amended, Ga. Laws 1960, pp. 153, 157, (Ga. Code Ann. 92-3417a) which provides:

"A person engaged in making retail sales as defined in this Act shall not advertise or hold out to the public, in any manner, directly or indirectly, that he will absorb all or any part of the tax, or that he will relieve the purchaser of the payment of all or any part of the tax."

In B. L. Montague Co. v. Somers, 94 Ga. App. 860,864 (1957), the Court stated that, "There is nothing in the law which prevents the seller and purchaser from including such tax in the total contract price." See also, Op. Atty. Gen. 1952-53, p. 481. Nothing in the Court's statement, however, validates an agreement simply because the price is stated to include sales tax without reference to the subject matter and other terms of the agreement. It is to be noted that in B. L. Montague and in the ruling of this

622

office cited above, the contract involved an express inclusion in a stated total price of an ascertainable amount of tax added to an ascertained sales price.
The agreement here, however, obligates the pharmacist to assume the risk of a variable and unascertainable amount of tax. At the time the agreement between Metropolitan and the pharmacist is made, neither the sales price as defined in the Act nor the actual total price for any sale is ascertained or ascertainable. Thus, the risk or the burden of the tax is not at the time of the agreement an ascertainable amount. Moreover, this burden or risk of the tax is clearly placed on the pharmacist since under the terms of the agreement his real compensation is dependent upon the amount of sales tax due on any particular
sale. Since the pharmacist thus assumes the risk of a variable amount of tax, the pharmacist is holding out that he will "absorb" the sales tax. If the risk were not placed on the pharmacist, of course, then the pharmacist would not be so holding out. The assumption of the risk or burden of the tax is an "absorbing" within the meaning of the Act.
Since the participating pharmacists under the agreement assume the risk of the tax, I am of the opinion that the practice does not comply with Section 12(e) of the Georgia Retailers' and Consumers' Sales and Use Tax Act.

OPINION 69-440

To: Joint Secretary

October21, 1969

Re: Structural Pest Control Commission may not refuse to examine an applicant for "low moral character" unless he has been convicted of a crime involving moral turpitude or a violation of Ga. Code Ann. 84-9959.

The qualifications of applicants for a license as a structural pest control operator are set out exclusively in Ga. Code Ann. 84-3410. After specifying the required educational or experience qualifications, this section provides as follows:

"The Commission may refuse to examine anyone convicted of a crime involving moral turpitude."

The only other provision which deals with the right of the
Commission to refuse to examine ari applicant is Ga. Code Ann.
84-3420 which states:

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"Nothing contained in this Chapter shall require the Commission to issue a license to an applicant who has been convicted for a violation of this Chapter." (Emphasis added.)

It seems that the Legislature has clearly expressed two grounds for refusing to examine an applicant if he is otherwise qualified by education or experience, i.e., (1) conviction of a crime involving moral turpitude, or (2) conviction of a violation of Ga. Code Ann. Ch. 84-34 (see Ga. Code Ann. 84-9959).
There is a basic rule of statutory construction which says that the "expression of one thing," by a legislature, "is the exclusion of another." Black's Law Dictionary, 4th ed., p. 692, Expressio Unius Est Exclusio Alterius. City of Macon v. Walker, 204 Ga. 810(2), 51 S.E.2d 633 (1948).
Applying this principle to the qualifications of a structural pest control operator, the conclusion would be that since only two things are expressed in the law as grounds for refusing to examine an applicant otherwise qualified, the Legislature intended by implication to exclude any other ground. Therefore, the Structural Pest Control Commission may not refuse to examine an applicant for "low moral character" unless he has been convicted of a crime involving moral turpitude or a violation of Ga. Code Ann. 84-9959.

OPINION 69-441

To: State Highway Department

October 21, 1969

Re: Permit granted under Highway Department's Right-of-Way Rules & Regulations is revocable at will.

This is in reply to a recent letter from Mr. W. S. Derrick, State Highway Traffic and Safety Engineer, requesting an opinion as to whether or not the State Highway Department may revoke permits for a special encroachment and a commercial driveway.
It appears from the correspondence that the State Highway Department issued Special Encroachment Permit No. 269-7 and Commercial Driveway Permit No. 269-8, on State Routes 13 and 155 in DeKalb County, Georgia. These permits were approved by the Department to allow a large amount of fill material to be placed on State Route 13 right-of-way. The permittee subsequently placed the fill and located certain structures on State Highway Department right-of-way. It now appears that the Department will need to widen the highway in this particular

624
location in the very near future. Such widening would, according to the letter, conflict with the fill slopes placed on the right-of-way. You request our opinion as to the position of the Highway Department under such a factual situation.
Both permits mentioned in your letter contain provisions stating that the permit is granted and that work will be done
". . . in accordance with the attached plan and subject to the Rules and Regulations for the Control and Protection of State Highway Rights-of-Way."
Section 1-5 of Article 1 of the aforementioned Rules, Section 4 of the permit for special encroachment, and Section 1-5 of the permit for commercial driveway contain the following language:
"Any permit granted by the State Highway Department according to these Ru1es and Regulations shall be revocable at the pleasure of said Department. In the event that any facilities, after construction, become dangerous, unsafe or a nuisance to the traveling public using the highways, or in the event that such facilities should create any unreasonable interference with the proper use of the highways by the traveling public, or in case it becomes necessary to use all the right-of-way to widen the existing roadway or to construct service roads or to make any other revisions in location, alignment or grade of the roadway, making the approved entrance plan impractical, hazardous or otherwise objectionable. the permit for same may be revoked. Provided, however, that in the event the right to revoke said privilege as herein provided is exercised, the Applicant will be given thirty (30) days' written notice prior to such revocation." (Emphasis added.)
Therefore, in view of the fact that the permits were issued pursuant to the aforementioned Rules and Regulations of the Department, it is my opinion that the State Highway Department, upon the giving of thirty (30) days' written notice to the permittee, may revoke the permits in question and require the right-of-way to be cleared by the permittee.

625

OPINION 69-442 (Unofficial)

To: State Representative

October 21, 1969

Re: Trespassing hunter guilty of misdemeanor.

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

''When a person is caught by the owner hunting on his property where 'no hunting' signs are posted- and the owner secures a warrant- can said person be prosecuted and/or fined on first offense? "

Georgia has no posting law. The former statute relating to
posting of land and registration, Ga. Laws 1955, pp. 483, 512, was designated "no longer necessary" and specifically repealed by Ga. Laws 1956, pp. 590, 594. The expressed intention of the General Assembly was to repeal this section in view of the fact that adequate provision had already been made therefor in Ga. Laws 1955, pp. 483, 519, which made it a misdemeanor for a person to hunt upon the land of another "without first obtaining permission from such landowner or lessee of the land or lessee of the game rights of the land...."
I assume that neither the land in question nor the game rights thereon have been leased to a third person or, if so, that no permission was obtained from any such lessee. In that context, it is my opinion that a person who hunts on the land of another without his permission can be prosecuted and, if convicted, fined and/or imprisoned as for a misdemeanor. That the violation were a first offense would, of course, make no difference. Accordingly, your question is answered in the affirmative.

OPINION 69-443

To: Secretary of State

October 22, 1969

Re: Amendment of a bank's name.

You have requested my opinion on whether you may grant an application to amend the charter of a particular bank changing the bank's corporate name. Apparently, you have been notified that another bank in the community will contest the name change.

626

Enclosed is a copy of an official opinion rendered to the Superintendent of Banks on October 1, 1969 [Op. Atty. Gen. 69-415] which holds that the Superintendent of Banks has the authority to grant a change in name of a bank so long as the amended name does not resemble, so closely as to be likely to cause confusion, the name of l:my other bank or trust company transacting business in Georgia.
So far as I can determine, the Superintendent of Banks is the proper person to exercise his judgment in considering whether an amendment should be approved after the Superintendent has made an examination and investigation into the problem. Ga. Code Ann. 13-1005.

OPINION 69-444

To: Supervisor of Purchases

October 22, 1969

Re: State officers and employees, including members of the Legislature, are ineligible to sell personal property to the State.

You advise that in the past members of the Legislature have been deemed eligible to do business with the State under existing laws. You wish my official opinion on whether the new Criminal Code of Georgia has any effect on whether members of the Legislature are eligible to do business with the State of Georgia.
Effective July 1, 1969, the Criminal Code of Georgia provided as follows:

"Any officer or employee of the State or any agency thereof, who for himself or in behalf of any business entity sells any personal property to the State or any agency thereof, shall, upon conviction, be punished by imprisonment for not less than one nor more than five years." Ga. Code Ann. 26-2306(a).

Prior to the enactment of the new Georgia Criminal Code in
1968, there were three separate Acts dealing with the problem of State employees and officials trading with the State as follows:

(1) A 1956 Act entitled "State Employees and Officials Trading with the State" found in Ga. Laws 1956, pp. 60-63 (Ga. Code Ann. 89-913 through 89-918 and 89-9916). (2) A 1958 Act which prohibited State officials from collecting private funds for the enforcement of the penal laws

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of Georgia found in Ga. Laws 1958, p. 333 (Ga. Code Ann. 26-5002). (3) A 1959 law entitled "Transactions with State -Actions Constituting Crimes" found in Ga. Laws 1959, pp. 34-44 (Ga. Code Ann. 26-5003 through 26-5028).
The new Criminal Code expressly repeals both the 1958 Act and the 1959 Act cited above. Ga. Laws 1968, pp. 1249, 1344-1345.* There is no express repeal of the 1956 Act in the new Georgia Criminal Code.
The first issue to decide is whether a member of the Legislature is an officer or employee of the State within the scope of 26-2306 of the new Criminal Code. My research uncovers that it is the overwhelming majority of opinion in the United States that members of the Legislature are deemed to be State officers. Pitts v. Chilton County, 27 Ala. App. 364, 173 So. 94 (1937), cert. denied, 173 So. 95 (1937); Brown v. Superior Court. 81 Ariz. 236, 303 P.2d 990, 991 (1956); State ex rel. Jones v. Lockhart, 76 Ariz. 390, 265 P.2d 447, 450 (1953); Rich v. Industrial Accident Commission, 36 Cal. App. 2d 628, 98 P.2d 249, 252 (1940); Grant v. Payne. 60 Nev. 250, 107 P.2d 307, 310 (1940);Moril v. Haines, 2 N.H. 246, 247 (1820); Dorenfield v. State ex rei. Allred, 123 Tex. 467, 73 S.W.2d 83,86 (1934);/n re Anderson, 164 Wis. 1, 1959 N.W. 559, 560 (1916); 42 Am. Jur. Public Officers 20.
This principle apparently was recognized by the General Assembly in enacting the 1959 Act since the Legislature specifically defined the phrase "officer, employee, or agent" so as not to include members of the General Assembly or the judiciary. Ga. Laws 1959, pp. 34, 44. However, the General Assembly made no comparable specific exemption in the present Criminal Code provision under scrutiny. Because of the clear principle of law that members of the Legislature are deemed to be State officers, I believe that they are included within the scope of Ga. Code Ann. 26-2306.
The next issue is the effect of the new Georgia Criminal Code on the 1956 Act concerning State employees and officials trading with the State. As I have indicated previously, this Act was not specifically repealed by the new Georgia Criminal Code. It is a fundamental law of statutory construction that the repeal of an Act by implication results only where the later of two Acts is
* Former Ga. Code Ann., 26-5002 can be traced to present Ga.
Code Ann. 26-2303(a).

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.,
clearly repugnant to the former Act and so inconsistent with it that the two cannot stand together. Spraybery v. Wyatt, 203 Ga. 27 (1947); Folds v. Auto Mutuallndemnity Co., 55 Ga. App. 198 (1937). However, it is clear that when two Acts are in irreconcilable conflict, the Act containing the latest expression of legislative intent will prevail. Cairo Banking Co. v. Ponder, 131 Ga. 708 ( 1908). Thus, I believe that if there is any instance in which the 1956 Act and the Georgia Criminal Code are in irreconcilable conflict, the 1956 Act must yield to the Georgia Criminal Code.
The next issue to decide is the meaning of the term "personal
property" as used in 26-2306(a) of the new Criminal Code. An important and fundamental rule of statutory construction is that those statutes which are penal in nature must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute. Thompson v. Watson, 186 Ga. 396 (1938); Peterson v. The State, 13 Ga. App. 766 (1913). In case of doubt they should be construed most strongly against the State. Pacolet Manufacturing Co. v. Weiss, 185 Ga. 287, 295 ( 1937). The words "personal property" are susceptible of two meanings: one the broader, including everything which is the subject of ownership, except lands and interests in lands; the other, more restricted, including only goods and chattels. Blakeman v. Harwell, 198 Ga. 165(6) (1944). The Supreme Court of Georgia has indicated that "personal property" in its popular meaning is commonly applied to goods and chattels. Id. at 176. I am not unmindful of Ga. Code Ann. 26-401 (n) defining "property." However, that is not the word we need to define and because of the rule favoring strict construction of penal statutes and the indication by the Supreme Court that "personal property" is commonly defined to include only goods and chattels, I believe it is the better reasoned view to follow the more restricted definition of "personal property" to include only goods and chattels.
In the interest of clarity and in an effort to provide you with some guidelines as to future conduct, I would like to discuss what I believe to be the effect of this Criminal Code section on several representative situations.
In my opinion, the following instances are violations of Ga. Code Ann. 26-2306(a):
( 1) A State officer or employee who acts for himself and sells his personal property to the State. (2) A State officer or employee who acts as an agent for another and sells any personal property to the State.

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(3) A State officer or employee who intends to violate this law but acts through an agent who sells the officer's or employee's personal property to the State.

In the preceding illustrations, I have consciously avoided any decision on the question of whether or to what extent there is a violation of this law when a corporation or similar entity sells personal property to the State by means other than example 2 above and a State officer or employee is a stockholder or otherwise pecuniarily interested in the profits of the corporation. The language of the Code Section is too vague to answer this question and despite a great deal of research and discussion of this question, I have found nothing in the new Criminal Code itself or any other relevant authority which would allow me, in good faith, to give you an official opinion on this particular question. Especially is this so in view of the harsh penalties which would result from a violation of this law. I do not hesitate to render unpopular or difficult legal opinions so long as there is some legal basis by which I can determine what the General Assembly intended or what the courts would decide in the matter. However, when there is simply no way to do this, I can only tell you that the Code Section requires clarification by either the General Assembly or the courts.
Therefore, I believe that under the command of Ga. Code Ann. 26-2306(a) and within the limits discussed in this opinion, State officers and employees, including members of the Legislature, are ineligible to sell personal property to the State or any of its agencies as defined by Ga. Code Ann. 26-40l(b).
OPINION 69-445 (Unofficial)

To: Bleckley County Attorney

October 23, 1969

Re: Tax Collector's Commissions.

This is in response to your letter to the Attorney General wherein you requested an unofficial opinion on the following question:

"Is the Tax Collector who began receiving his salary on May 1, 1969, entitled to any commission on or percentage of the 1969 digest which was not returned to him until some time in May of 1969 by the Tax Receiver or would he be entitled

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to commission on the basis of his present salary for those four months? "

On April 23, 1969, a local act entitled "Bleckley County-Tax Collector Placed on Salary Basis," (Ga. Laws 1969, p. 3298), was approved. Section 2, subsection (a), of said Act provides that the Tax Collector shall receive an annual salary which is to be paid in equal monthly installments; Section 3 provides that he shall hold all monies received and collected as public funds belonging to Bleckley County and that on or before the 15th of each month he shall turn over all monies collected by him the preceding month except motor vehicle license. plate commissions to the fiscal authority of the County; Section 6 provides that his salary shall be in lieu of the fees and commissions under prior Acts; and, Section 7 provides for the effective date (May 1, 1969) of the Act.
We concur with your opinion that after the effective date of the above Local Act the Tax Collector is not legally entitled to any commissions other than those allowed by Ga. Laws 1955, p. 659, as amended, and that the Tax Collector would be entitled to the commissions on all taxes collected by him prior to the effective date of the Local Act.

OPINION 69-446

To: Secretary of State

October 23, 1969

Re: Ordinaries shall issue a constable's commission and file his appointment.

This will acknowledge your recent inquiry wherein you stated that Ga. Laws 1969, p. 351, changes the method of selecting constables from that of election by the people to that of appointment by the justice of the peace of each district. You have asked with whom such appointment be flied and who shall issue the commission.
Under the provisions of the Georgia Election Code concerning the election of constables, it was appropriate for the ordinary to transmit a certified copy of the election returns to the office of the Secretary of State whereupon the Secretary would present the returns to the Governor who would issue a commission to the duly elected constable. Ga. Code Ann. 34-1509. However, when Ga. Laws 1969, p. 351, changed the method of selecting constables from that of election to that of appointment by the justices of the peace, the provisions ofGa. Code Ann. 34-1509 were no longer

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applicable and consequently, Ga. Code Ann. 24-812 (1 9 3 3) --which was not repealed by the Georgia Election Code-became the applicable provision concerning the certification of constables. Ga. Code Ann. 24-812 (1933) requires the ordinary to issue a certificate to the appointed constable stating that the oath has been taken and filed and the bond given. Additionally, the ordinary is to make an entry thereof on his minutes, "which certificate shall answer as his [the constable's] commission." Ga. Code Ann. 24-812(1933).
Therefore, it is my official opinion that it is the ordinary who shall issue the commission to the constable and file the appointment thereof.

OPINION 69-447

To: State Highway Department

October 23, 1969

Re: Limitations imposed by Ga. Code Ann. 95-1606 placed upon the salary of Treasurer of State Highway Department has been suspended by subsequent Act of the Legislature.

This is in reply to the letter of recent date from Mr. W. M. Williams, Treasurer, State Highway Department, in which he requests my opinion on the following question:

"May the Director of the State Highway Department fix the salary of the Treasurer of the State Highway Department of Georgia?"

This subject has been treated in an official opinion of former Attorney General Eugene Cook. (Op. Atty. Gen. 1960-61, p. 254.) The reasoning of that opinion is sound and the principles discussed therein are correctly applied. Therefore, the former opinion is approved.

OPINION 69-448

To: State Highway Department

October 23, 1969

Re: Driver's license requirement for Highway Department employees.

This is in reply to your request for my official opinion by the letter of your Traffic and Safety Engineer, Mr. W. S. Derrick, of the following questions:

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"What type valid Georgia license would be required of our personnel who drive State-owned wheeled motor vechicles; and "What type valid driver's license, if any, should be required of our employees who drive maintenance or construction-type vehicles ( 1) in a signed work area within the State Highway right-of-way, (2) while traveling within the State Highway right-of-way between signed work areas, and (3) on public streets."
It is my official opinion that: 1. Georgia law contemplates that any person above the age of sixteen who operates any motor vehicle must possess an operator's license unless that person falls within four specific exceptions. 2. Your personnel would not be required to obtain a public chauffeur's license unless these persons are employed by the State Highway Department for the specific purpose of driving a motor vehicle, or if these persons drive a motor vehicle for the specific use of transportation of persons or property for compensation. 3. Construction-type vehicles come within the definition of motor vehicles and do not fit within the exception which allows the operation of a farm tractor or implement which is temporarily operated or moved on the highway; therefore, your personnel who operate these motor vehicles are required to obtain an operator's license. 4. Maintenance-type vehicles would not come within the exception which allows a person without an operator's license to operate a farm tractor or implement which is temporarily operated or moved on the highway. First of all, it should be .noted that Ga. Code Ann. 68-15 02 (1) (b) defines a motor vehicle as: "Every vehicle which is self-propelled. . . ." A vehicle is defined as: "Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway. . . ." Ga. Code Ann. 68-1502 (1) (a). It is my opinion that any State-owned vehicle, including maintenance or construction-type vehicles, would come within the definition of the term "motor vehicle." The provisions of Ga. Code Ann. 92A-40 1 set forth different classes of licenses which are issued by the Department of Public Safety. The class of license known as Operator's License embraces all those person~ not otherwise disqualified .above the age of sixteen. With particular reference to the situation of your personnel in regard to the question of the chauffeur's class, this particular type of license embraces all persons, not less than

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eighteen years of age, who are employed by another for the principal purpose of driving a motor vehicle or who drive any motor vehicle when it is in use for the transportation of persons or property for compensation. If any of your employees are employed for these two specific purposes, and fall within either of these two specific categories, then they will be required to obtain a chauffeur's license.
With regard to the operator's license, however, it should be noted that the requirement of an operator's license hinges on the actual operation of the motor vehicle, and this requisite is not
related to the type of work that the individual is performing while operating this vehicle or whether this operation is taking place on the paved portion of the road or within the right-of-way limits.
The only exceptions to this requisite, that a person operating a motor vehicle must possess an operator's license, are set forth in the provisions of Ga. Code Ann. 92A-1402. Under these exceptions, a person operating a motor vehicle in the service of the Army, Navy or Marine Corps is exempted. Also, nonresidents of this state who are at least sixteen years of age and who hold a valid out-of-state license are excluded. A third exemption is set forth for a nonresident who is eighteen years of age whose home state does not require a license for operators of a motor vehicle. Finally, there is an exception for any person driving or operating a farm tractor or implement temporarily operated or moved on the highway and not used for the purpose of hauling farm products to market.
With regard to the last exception dealing with farm tractors or implements, it is my opinion that the maintenance and construction-type vehicles which the Highway Department uses do not come within the scope of this class of vehicles which are excepted. The use of the disjunctive phrase "farm tractor or implement" implies that the word "implement" relates to a farm implement. "The word 'or' when used not to connect two distinct facts of different natures, but to characterize and include two or more phases of the same fact, attended with the same result, states but a single ground, and not the alternative." Smith v. R. F. Brodegaard & Co., 77 Ga. App. 661, 664 (1948). Thus, it is concluded that the term "implement" refers to a farm implement, rather than to implements in general.
Furthermore, the use by the General Assembly of the phrase "temporarily operated or moved on the highway" indicates an intention contrary to that which would be contemplated by your Department in that the maintenance and construction-type vehicles would not be "temporarily operated" on the highway.

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Although the Georgia courts have not dealt with the definitions of this particular phrase, the courts of other jurisdictions have been faced with this question. See, 41 Words and Phrases, 396. In the case of Park Transportation Co. v. Missouri State Highway Comm'n, 332 Mo. 592, 60 S.W.2d 388, the court held that the expression "temporarily transporting," which was used in a statute dealing with regulation of length of loads, implied that the use was of short duration and frequency as compared with ordinary use. Also, in the case of Boger v. Kellner, 239 Iowa 1189, 33 N.W.2d 369, 370, the court construed the term "temporarily" with regard to the question of stopping temporarily on the highway. In this case, the court determined that the word "temporarily" indicated that the removal of an automobile within all reasonable expediency was contemplated.
Therefore, it is my opinion that your employees who operate maintenance or construction-type vehicles, either in signed work areas within the State Highway right-of-way or while traveling within the State Highway right-of-way between signed work areas or on public streets, must possess valid operator's licenses.
Furthermore, if these persons are employed by the State Highway Department for the principal purpose of driving these maintenance or construction-type vehicles,- then these persons would be required to possess public chauffeur's licenses.

OPINION 69-449 (Unofficial)

To: Private Inquirer

October 24, 1969

Re: Licenses for private car lines.

This is in reply to your letter asking whether Georgia requires private car lines operating their equipment over railroads in this State to purchase annual licenses for such operations.
Except for the annual license or occupation tax for corporations found in Ga. Code Ann. 92-2401 and 92-2403, I have been unable to find any provision requiring an annual license from the State for such operations. See Ga. Laws 1953, Jan.-Feb. Sess., p. 294, Ga. Laws 1952, p. 371, showing the rates for the annual occupation tax of corporations.

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OPINION 69-450 (Unofficial)

To: County Board of Registrars

October 24, 1969

Re: The Georgia Municipal Election Code takes precedence over a conflicting municipal charter provision.

You have requested an unofficial opinion on a conflict between the Municipal Election Code and a city ordinance. Apparently, the city ordinance provides that a person must be twenty-one years of age and have all city taxes paid before he is eligible to vote. The Georgia Municipal Election Code requires that except where specifically provided in the Code, the provisions of the Code take precedence over municipal charter provisions which are in conflict with the Code. Ga. Code Ann. 34A-102. The qualifications for an elector are contained in Ga. Code Ann. 34A-501 and they are in conflict with a requirement that a person be twenty-one years of age and have his city taxes paid. Since there is a conflict between the two provisions and the Code does not specifically allow conflicts in this instance, the provisions of the Code would prevail.
You have further requested an unofficial opinion on whether a person may hold a plurality of offices in the same county. Generally, no person may hold more than one county office except by special enactment of the Legislature nor shall any commissioned officer be deputy for any other commissioned officer except by special enactment. Ga. Code Ann. 89-103. Further, a councilman or an alderman of a municipality is ineligible to hold any other municipal office during the term of office for which he was chosen unless he first resigns as a councilman or alderman before entering the other office. This section applies to all elected officials of a municipality. The councilman or alderman may, if otherwise qualified, resign his present position and run for any other city office for which he is qualified. Ga. Code Ann. 69-201.
The above two provisions of law are the principal ones to consult when determining whether a person may hold a plurality of county or municipal offices. The application of these provisions to any particular situation would depend upon the individual facts and circumstances of the situation and the proper person to consult would be the city attorney in the event of city problems or the county attorney in the event of county problems.

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OPINION 69-451 (Unofficial)

To: Director of Public Works

October 24, 1969

Re: Designing water and sewer systems: architecture or engineering.

Mr. C. L. Clifton, Joint Secretary, State Examining Boards, has forwarded to the Office of the Attorney General your request for advice concerning whether a landscape architect may design water and sewer systems in subdivisions.
Ga. Laws 1958, pp. 400, et seq. (Ga. Code Ann. Ch. 8440) provides for the licensure of persons engaged in the practice of landscape architecture in Georgia. This Act provides that no person shall engage in the practice of landscape architecture, except for those exempted by the Act (Ga. Laws 1958, pp. 400, 402, 7, 9 (Ga. Code Ann. 84-4007 and 84-4009)), unless the licensing requirements have been complied with. Provision is made for both civil (Ga. Laws 1958, pp. 400, 401 (Ga. Code Ann. 84-4006)) and criminal (Ga. Laws 1958, pp. 400, 405 (Ga. Code Ann. 84-9966)) remedies for failure to comply with the licensing requirements of the law. These remedies, of course, are applicable only to persons engaged in the practice of landscape architecture who are not licensed pursuant to the Act, or who are exempted.
It is apparent from Ga. Laws 1958, p. 400, section 1 (Ga. Code Ann. 84-4001) that the question of whether a landscape architect (presumably licensed by the Board) may "design water and sewer systems in subdivisions" is not specifically treated by the law requiring registration of lands.cape architects. Because the question of whether a landscape architect is qualified by training and experience to perform this kind of work is relevant to an intelligent interpretation of the law, I have discussed it with the State Board of Landscape Architects. I was advised by the members of the Board that, while the design of water and sewer systems in subdivisions is not normally a function of the landscape architect, the question should be more definitive in its terms before a definite answer could be given. For example, the landscape architect is specifically defined as one who "design[s] . . . subdivisions." Generally speaking, this function would necessarily involve some contemplation concerning the location of water and sewer systems, but this function does not include the right to infringe upon activities required by law to be performed by a civil engineer. It is obvious that the question does not lend

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itself to the delineation of definite criteria, particularly in the absence of more detailed facts and the application of the expertise of both landscape architects and persons of other professions which stand in juxtaposition to, and sometimes overlap, the practice of landscape architecture.
In summary, it is my unofficial opinion that there is nothing in the law governing the practice of landscape architecture in Georgia (Ga. Laws 1958, pp. 400, et seq. (Ga. Code Ann. Ch. 8440)) which would prohibit a landscape architect from performing some function in connection with the design of water and sewer systems in subdivisions. But this is not to say that a landscape architect can perform a function reserved by law to the civil engineer, and, as stated above, it is not possible to render an all inclusive opinion concerning the proper point of delineation between these two functions without a detailed factual situation and without the benefit of comment from persons learned in engineering as well as landscape architecture.
Therefore, because of the possibility that certain aspects of the "design" of water and sewer systems in subdivisions could come within the purview of the law governing the practice of professional engineering (see Ga. Laws 1945, pp. 294, et seq., as amended (Ga. Code Ann. Ch. 84-21 )), it is suggested that the advice of the State Board of Registration for Professional Engineers and Land Surveyors would be of value. It is suggested that you communicate with that Board and set out in detail the proposed activity of a landscape architect in connection with the design of water and sewer systems in subdivisions.
OPINION 69- 452 (Unofficial)

To: Judge, City Court

October 24, 1969

Re: Georgia Laws 1968, p. 448 superseded Ga. Laws 1953, Nov.-Dec. Sess., p. 556, Sec. 47, as amended.

This will acknowledge receipt of your letter of September 24, 1969, in which you asked whether Ga. Laws 1968, p. 448, is now the controlling law in Georgia with regard to first offender penalties for "Persons Under the Influence of Intoxicating Liquor or Drugs."
You will observe that Section 1 of this statute provides, in part, that:

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"The 'Uniform Act Regulating Traffic on Highways', ... is hereby amended by striking Section 47 in its entirety and inserting in lieu thereof a new Section 47 to read as follows:"

In view of this expressed intention on the part of the legislature to enact a new Section 47, including subsection (g)(l) relating to the punishment for first offenders, it is my unofficial opinion that Ga. Laws 1968, p. 448, is now the law in Georgia on this question. Specifically, Ga. Laws 1968, p. 448, Section 47 (g)(l) provides that:

"(g) Every person who shall be convicted of the violation of this section shall be guilty of a misdemeanor and, except as otherwise provided for herein, shall be punished as for a misdemeanor.
"( 1) Those persons who are convicted of violating this section for the first time shall have their driver's license suspended for a period of at least 30 days and shall receive such other punishment as the judge shall deem appropriate."

OPINION 69-453 (Unofficial)

To: Private Inquirer

October 27, 1969

Re: Brunswick Port Authority may not contribute to privately operated employee pension plan.

In your letter dated October 2 you indicated that you represented the Brunswick Port Authority and that the Authority had been requested by the International Longshoreman's Association to enter into an agreement concerning the pension plan of the members of the Association.
Your request does not indicate whether any employees of the Brunswick Port Authority are members of the Association. Additonally, the proposed agreement exhibited with the request appears to be an agreement to levy an excise on the use in commerce of containers and containerships.
As you are aware, the Brunswick Port Authority "is an instrumentality of the State or a subordinate public authority or corporation of the State." Sigman v. Brunswick Port Authority, 214 Ga. 332, 335 (1958). The basic similarity in the substantive nature of the Brunswick Port Authority and the Georgia Ports Authority has been judicially established. International

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Longshoreman's Ass'n. v. Georgia Ports Authority, 217 Ga. 712, 715-16 (1962). It is my unofficial opinion that the holding of the Supreme Court of Georgia to the effect that the Georgia Ports Authority in the operation of its docks and warehouses is without authority to enter into agreement with any third party fixing terms and conditions of the employment of personnel working for the Authority is equally applicable to the Brunswick Port Authority. It is therefore my unofficial opinion that the Brunswick Port Authority in the operation of its docks and warehouses is without authority to enter into agreement with any third party fixing terms and conditions of employment of the personnel working for it.
It is noted that the documents furnished by the Association indicate that any contributions to the pension ulan made by the Authority would be in lieu of wages. Consequently, it is my unofficial opinion that an agreement to make such contributions would be an agreement regulating conditions of employment within the reach of International Longshoreman's Ass'n. v. Georgia Ports Authority, supra.

OPINION 69-454

To: Department of Revenue

October 29, 1969

Re: Member of Board of Tax Assessors may also be County Attorney.

You have requested my official opinion as whether a County Attorney holds a county office within the terms of Ga. Code Ann. 92-6907, as amended by Ga. Laws 1961, p. 563, which 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 answer to this question will be dispositive of the issue concerning whether a member of a County Board of Tax Assessors may simultaneously occupy the position of County Attorney.
The term "county office" has been used in Georgia in a variety of contexts. Art. XI, Sec. II, Par. I of the Constitution (Ga. Code Ann. 2-7901) sets forth the qualifications for a "county officer," indicating that he must be ( 1) elected by the qualified

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voters of the county; (2) hold office for four years; (3) be a resident of the county for two years; and (4) be a qualified voter. An Ordinary, Lee v. Byrd, 169 Ga. 622 (1929), a Clerk of the Superior Court, McGill v. Simmons, 172 Ga. 127 (1930), a Tax Collector, Tax Receiver and Sheriff, Truesdel v. Freeney, 186 Ga. 288 (1938), a County Treasurer, Bradford v. Justices of the Inferior Court, 33 Ga. 332 (1862), and a Coroner, McBrien v. Starkwether, 43 Ga. App. 818 (1931 ), are among those positions which have been held "county offices" within the terms of the above-mentioned constitutional provision. However, this constitutional provision (Art. XI, Sec. II, Par. I) has been held to refer only to those offices in existence at the time of its adoption, and that other "county offices" were later created by statute. Marshall v. Walker, 183 Ga. 44 (1936). For example, a member of the Board of Commissioners of Roads and Revenues, Rhodes v. Jernigan, 155 Ga. 523 (1923), a County School Superintendent, Culbreth v. Cannady, 168 Ga. 444 (1929), and a Clerk of the Board of Commissioners, Cooper v. State, 101 Ga. 783 (1897) have been held statutory "county officers."
Is a County Attorney a "county officer" under the constitutional provision discussed above .or under a statute? Except for specific references in some Acts of the General Assembly creating County Boards of Commissioners, the only provision in the general law concerning the appointment of a County Attorney appears in Ga. Code Ann. 23-917 which pertains to the county manager form of government. But the courts have held that the legislature has by implication authorized county governing authorities to employ counsel, and that the attorney so employed is a "public officer." Templeman v. Jeffries, Ordinary, 172 Ga. 895 (1931 ); Walker v. Stephens, 175 Ga. 405 (1932).
Does the fact that a County Attorney is a "public officer" of the county mean that he is a "county officer" within the terms of Ga. Code Ann. 92-6907, as amended? The conclusion reached in this opinion is that this question should be answered in the negative for the following reasons:
Any person who has a designation or title given him by law, who is appointed by the government under express or implied legal authority, and who has some duty to perform concerning the public, is a "public officer." Bradford v. Justices, supra; Polk v. James, 68 Ga. 128 (1881); Wiley v. Sparta, 154 Ga. 1, 14 (1922). An accountant appointed by the County Board of Commissioners, Stelling v. Richmond County, 81 Ga. App. 571, 574 (1950), a county administrator, Polk County v. Anderson, 116 Ga. App.

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546 ( 1967), and a Board of Utility Commissioners, Smith v. Mueller, 222 Ga. 186 (1966) all have been judicially categorized as "public officers." But a position can be a "public office" and not be a "county office" within the meaning of constitutional and statutory provisions relating to that term. Employees Retirement System v. Lewis, 109 Ga. App. 476 (1964) (deputy sheriff).
Judicial interpretation of Ga. Code Ann. 92-6907, as amended, has indicated that the term "county office" as used therein is a "county office" as defined by Art. XI, Sec. II, Par. I of the Constitution. The Court of Appeals, in Andrews v. Butts County, 29 Ga. App. 302 (1922), used this rationale in holding that a county registrar is not a "county officer" so as to preclude membership on the Board of Tax Assessors. Although not articulating the basis for the holding, the Supreme Court of Georgia cited the Andrews case in holding that a grand juror is not a "county officer" within the terms of Ga. Code Ann. 92-6907, as amended. Butts v. The State, 211 Ga. 16 (1954). Also citing Andrews v. Butts County, supra, a prior opinion of the Attorney General has concluded that a deputy sheriff is not a "county
officer" who is prohibited from serving on the Board of Tax Assessors. Op. Atty. Gen., 1962, p. 56 (see also, Op. Atty. Gen., 1962, p. 62, for holding that the "county office" in Ga. Code Ann. 92-6907 means a constitutional county office).
Based on the foregoing citations of authority, it is my official opinion that the courts of this State would hold that a County Attorney, although being a "public officer," does not hold a "county office" within the meaning of Ga. Code Ann. 92-6907, as amended, and that a member of a County Board of Tax Assessors would not be ineligible simultaneously to occupy the position of County Attorney.

OPINION 69-455 (Unofficial)

To: City Manager

October 29, 1969

Re: Candidate qualification period extended to next business day when same falls on non-business day.

You have requested our unofficial opinion on the effect of Ga. Code Ann. 34A-105 on a closing date for registration and qualification of candidates which falls on a Saturday. You further wish to know whether this Code section would have any effect on an election which is held on a Saturday.

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Ga. Code Ann. 34A-105 provides that when the last day for the exercise of any privilege or the discharge of any duty prescribed by the Municipal Election Code shall fall on a Saturday, Sunday or legal holiday, the next succeeding business day shall be the last day for the exercise of the privilege or the discharge of the duty. This Code section, in my unofficial opinion, is not a prohibition against an event taking place on a Saturday, but rather it is a standard to be used in computing the time limit within which a person has to exercise a privilege or discharge a duty prescribed by the Municipal Election Code so that the time limit may not expire on a Saturday, etc. Of necessity, this standard would only apply to those instances where the time must be computed, that is, when a certain number of days is given in which to complete an act. I do not believe that this Code section, by itself, would affect elections which might be held on Saturday.
It is therefore our unofficial opinion that Ga. Code Ann. 34A-l 05 does extend the closing date for registration and qualification of candidates until the next succeeding business day if the last day falls on a Saturday, but the Code section does not affect elections which might be held on Saturday.

OPINION 69- 456 (Unofficial)

To: District Attorney

October 30, 1969

Re: Compensation of District Attorney.

By letter you inquire as to your entitlement to the statutory fee for services in the Supreme Court or the Court of Appeals in three cases in which briefs were filed by your office subsequent to June 30, 1969. Prior to June 30, 1969, you were entitled by law to the compensation set forth in Ga. Code Ann. 24-2904 for services rendered in the Supreme Court or the Court of Appeals. On that date, you became subject to the exclusive compensation provisions of Ga. Laws 1968, pp. 992, 993, Ga. Code Ann. 24-2922, 24-2923. On that date, there were then pending various cases in which your office subsequently filed. briefs and appeared for oral argument in either the Supreme Court or the Court of Appeals.
It is my unofficial opinion that your entitlement to the fee compensation for services in the appellate courts is controlled unfavorably by Rozier v. State, 177 Ga. 420, 423 (1933). In that case, prior to the filing of briefs and the oral argument, a solicitor general's term ended. Nevertheless, the solicitor general then filed

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briefs and appeared for oral argument. The Court held that he was not entitled to the fee for services in the appellate courts and indicated that the services upon which the entitlement to the fee would necessarily be based were not rendered short of having filed briefs and/or appearing for the oral argument. Further, the Court held that since the solicitor general's term had expired prior to either of those events having taken place, he was not entitled to the statutory fee.
Prior to your having filed briefs and appearing for oral argument in the appellate courts, the old system of compensation which allowed a special fee for such services came to an end. Therefore, it is my unofficial opinion, that based upon the rationale of the Rozier case, your services were rendered in the appellate courts pursuant to the exclusive compensation provisions of the new law.
OPINION 69- 457

To: State Representative

October 31, 1969

Re: Only property listed by State Constitution exempt from ad valorem taxation.

This is in reply to your letter of October 24, 1969 in which you ask whether the Tax Commissioners or Tax Assessors have the authority to give tax exemptions to individuals or corporations.
The Georgia Constitution provides that the General Assembly may by law exempt certain property from taxation and that property is specifically enumerated in Art. VII, Sec. I, Par. IV, of the Constitution of the State of Georgia. (Ga. Code Ann. 2-5 404). The Constitution provides with respect to such exemptions of property as follows:

"All laws exempting property from taxation, other than the property herein enumerated, shall be void."

Tax administrators have from time to time the responsibility to determine whether or not a particular piece of property is exempt property under the provisions of the Constitution and the statutes lawfully enacted thereunder. They do not, of course, have the authority to create any special exemptions.

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OPINION 69-458

To: Deputy Revenue Commissioner

October 24, 1969

Re: Intangible property tax-Stock of foreign corporation exempt if Corporation pays all taxes required of domestic corporation.

This is in reply to your letter dated October 6, 1969, requesting my opinion as to whether the stock of a foreign corporation holding a certificate of authority to transact business in this State, issued under Chapter 22-14 of the Georgia Business Corporation Code (Ga. Code Ann. Ch. 22-14), is exempt from the Ge.orgia intangible property tax.
According to Ga. Laws 1937-38, pp. 156, 163 (Ga. Code Ann. 92-131 ), the stock of a domestic corporation is exempt from such tax if the corporation pays all taxes it is required by the laws of Georgia to pay. Therefore, since the new Corporation Code (Ga. Code Ann. 22-1402) grants to a foreign corporation transacting business in this State under a certificate of authority the same rights and privileges as those enjoyed by a domestic corporation organized for the purposes set forth in the application pursuant to which such certificate is issued, I am of the opinion the foreign corporation's stock is exempt provided the corporation pays all taxes it would be required by the laws of Georgia to pay if it were a domestic corporation.

OPINION 69-459 (Unofficial)

To: State Representative

November 3, 1969

Re: Municipal Election system, and Municipal ad valorem taxes.

This is in reply to your letter concerning the use of a county registration system by a municipality and Ga. Code Ann. 92-6202.1 (Ga. Laws 1969, p. 960), effective January 1, 1970, relating to the return of property for ad valorem taxation.
Your first question is whether a municipality may use the voters registration list prepared by the county registrar so that only one registration would be required. In this connection I would like to refer you to the "Georgia Municipal Election Code" Ga. Code Ann. 34A-50l(b) and 34A-506(a). Based on the above citation, it is my opinion that a municipality may elect to use the county registration system for municipal elections.

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Your next question is whether it will be necessary, after the effective date of Ga. Code Ann. 92-6202.1, for taxpayers to return their property for municipal ad valorem taxation annually in order to avoid penalties for late filing currently imposed by certain municipalities. From the language of that Code section ("Any taxpayer of any county...."), which amends Ga. Code Ann. Ch. 92-62 relating to returns to tax receivers (county), it is apparent that the same applies to the return of property for county taxation but not to the return of property for municipal taxation. It is my opinion that any penalties presently imposed by a municipality for the late filing of ad valorem tax returns will not be changed by the above Code section unless the provisions of the section are made applicable by the municipal charter or ordinances enacted pursuant to such charter.
Your last question is whether Ga. Code Ann. 92-6202.1 eliminates the necessity for filing an annual application for the increased $4,000 homestead exemption granted to certain persons. Please find enclosed a copy of an official opinion of this office dated June 4, 1969 [Op. Atty. Gen. 69-236], holding that the Code section does not eliminate the necessity for filing an annual application for the increased homestead exemption.
OPINION 69-460 (Unofficial)
To: Government Employees Insurance Co. November 3, 1969
Re: Tort claims against State Highway Department.
This letter is written to you in response to your letter of recent date inquiring into the liability of the State Highway Department of Georgia for an accident involving your insured. The following discussion should be of assistance to you in the prosecution of your claim.
Under the doctrine of sovereign immunity, which is a well-established principle in the State of Georgia, a suit can only be maintained against the State when it so consents. See Thweatt v. The State. 66 Ga. 673, 679 (1881). The Supreme Court of Georgia has recognized that the State Highway Department is the State itself. See Elberton Sou. Ry. v. State Highway Department, 211 Ga. 838 (1955), and Southern Ry. v. State Highway Department, 219 Ga. 435 (1963). This principle was further enunciated in State Highway Department v. Parker. 75 Ga. App. 237,241 (1947):

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" ... the State Highway Department is a part of the sovereign State, ... and it can not be sued without the express consent of the sovereign. We think that there can be no doubt that the acts of the State Highway Department are the acts of the State of Georgia."
Ga. Code Ann. 95-1710 provides the only method and procedure by which the State Highway Department may become liable and be sued in tort. Moses v. Tift County, 108 Ga. App. 695 (1963); Davis v. City of Barnesville, 80 Ga. App. 3(1) (1949). In State Highway Department v. Parker, supra, it was held in the first headnote to that opinion:
"Actions in tort can not be maintained directly and primarily against the State Highway Department. The State Highway Department can not be sued for a tort in any method except that the suit be brought against the county wherein the tort occurs, with the county having the right to vouch the State Highway Department into court to defend the suit and become ultimately liable for any judgment rendered therein, and then only for the negligent construction and .maintenance of bridges and approaches thereto...." [Citations omitted]
The Constitution and Laws of Georgia do not provide the State Highway Department with funds which may be expended to procure liability insurance, and accordingly the State Highway Department is not insured.
Ga. Code Ann. Title 47-5 creates the Claims Advisory Board as the proper agency through which any claim against an agency of the State of Georgia must be processed. The requirements of Ga. Code Ann. Title 47-5 are essentially that a resolution relative to a claim against the State or any of its departments or agencies must be introduced in the House of Representatives by one of its members. No resolution may be introduced unless a Notice of Claim has been filed with the Board on or before the 15th day of November, immediately preceding the introduction of such resolution. The Claims Advisory Board will provide sufficient forms to be used in filing a Notice of Claim and will make them available for such purpose.
When a Notice of Claim is filed, the Board shall inform the person filing such notice of the information the Board will require in order to take action on such a claim. If you care to write this Board concerning your claim, address your letter to the Claims Advisory Board, State Capitol, Atlanta, Georgia, 30334.

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OPINION 69-461

To: State Revenue Commissioner

November 4, 1969

Re: Cost and purchase of motor vehicle license plates.

Generally, expenditures of the State and of its budget units, such as the Department of Revenue, are made under the authority of our Appropriations Act. See Ga. Code Ann. 40-401, et seq. The Revenue Department has received an appropriation for operating its several units, including the Motor Vehicle Unit. Ga. Laws 1969, pp. 880, 893. The Department of Revenue is charged with the responsibility of furnishing license plates which necessarily obligates the Revenue Department to secure the same. Ga. Code Ann. 68-245. All Departments of the State are required to purchase supplies through the office of Supervisor of Purchases.
Ga. Code Ann. Ch. 40-19. It is my opinion, based on the above authorities, that the cost of motor vehicle license plates is an expense of the Revenue Department.
The license plates, county decals, and revalidation stickers must be purchased by the Revenue Department from the Director of Corrections unless he certifies in writing that such goods are not available. Ga. Code Ann. 40-1927. Should the Director of Corrections certify that any of such goods are not available, then
the Supervisor of Purchases should arrange for the purchase from other sources. Private persons, firms and corporations are not permitted to manufacture the license plates and if the Director of Corrections is unable to supply these plates, it would be necessary for some other State agency or the Department of Revenue to undertake this operation. Georgia law does not prohibit private parties from manufacturing the county decals or the revalidation stickers by appointment from the State for such purpose. See Ga. Code Ann. 68-216 and Ga. Code Ann. 92-9969.
The license plate must be treated with a retro-reflective material and I have previously ruled that this included the entire surface of the place. [Op. Atty. Gen. 69-345 j. The law requires that the county decal also be of reflective material. Ga. Laws 1969, pp. 266, 269. The statute does not specifically require that the revalidation sticker be of reflective material; however, such sticker is used to update the license year symbol and the law does require the entire face of the license plate to be of retro-reflective material. Considering this language and the stated purpose of the Act, it is my opinion that the revalidation stickers must also be of reflective materiaL

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OPINION 69-462 (Unofficial)

To: Colquitt County Tax Commissioner

November 4, 1969

Re: Tax Commissioner legally entitled to commission on taxes collected may retain commissions due and remit only balance.

This is in reply to your request of October 29, 1969, concerning the proper accounting for lawful commissions. Ga. Code Ann. 9 2-5 3 04 provides that under certain circumstances a Tax Commissioner shall be entitled to a ten per cent commission on taxes collected in excess of ninety. per cent of the total taxes due. Where a Tax Commissioner is entitled to such commissions he may retain them and is not required to pay them over to either the State or County for subsequent return. Bruce v. County of Troup. Commissioners. 92 Ga. App. 786, 799 (1955). See also County of Bibb v. Winslett. 191 Ga. 860, 879 (1941).

OPINION 69-463 (Unofficial)

To: Mitchell County Attorney

November 4, 1969

Re: Individuals ordered to Treatment Facilities under the medical admission provisions of the new mental health law (Ga. Laws 1969, pp. 505-545), have a right to a trial by jury on appeal.

Please refer to your letter of October 15, 1969, wherein you request my unofficial opinion as to whether an individual has the right to a trial by jury to determine whether he should be confmed to a mental institution under the medical admission provisions of the new mental health law (i.e., Ga. Laws 1969, pp. 505-545; Ga. Code Ann. Ch. 88-5).
Ga. Code Ann. 88-502.16 contains the following:

"The appeal shall be made in the same manner as other appeals from the Court of Ordinary to the Superior Court, where the issue shall be submitted to a jury as in other cases before that Court, with further rights of review as now or hereinafter are provided by law." (Emphasis added.)
I
The provision above quoted provides the same right to a trial by jury on appeal as did the old mental health law. Ga. Laws 1964, pp. 499, 534 (Ga. Code Ann. 88-506).

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OPINION 69-464

To: State Game and Fish Commission

November 5, 1969

Re: A State agency is a "person" as defined by 6332 of the Internal Revenue Code of 1954 and is therefore subject to a notice of levy issued thereunder.

This is in response to your request for an opinion whether the State Game and Fish Commission is subject to a notice of levy, a proported lien under Chapter 64 of the Internal Revenue Code of 1954, which was served upon it in an attempt to seize the salary of a named employee, indebted to the United States of America for
delinquent income taxes. In essence, the provision under which this levy was made
provides that any "person" in possession of property belonging to a delinquent taxpayer must surrender same to the Secretary of the Treasury. I. R. C., 6332(a). The word person as generally used in the Internal Revenue Code means " . . . an individual, a trust, estate, partnership, association, company or corporation." ld. 770l(a)(l). With specific reference to seizure of property for collection of taxes, the word person also includes " ... an officer or employee of a corporation or a member or employee of a partnership ...." ld. 6332(e).
Although this cumulative definition does not mention a State or its agencies, the United States Supreme Court has held:

" ... [l]t is equally clear that it does not exlude them .... "We think that the subject matter, the context, the legislative history, and the executive interpretation, i.e., the legislative environment, of 6332 make it plain that Congress intended to and did include States within the term 'person' as used in 6332." Sims v. United States, 359 U.S. 108, 112 (1959).

In conformity with the above, I must conclude that the State Game and Fish Commission is a "person" as defined by 6332 of the Internal Revenue Code of 1954 and subject to a notice of levy issued thereunder.

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OPINION 69-465

To: State Board of Pharmacy

November 6, 1969

Re: Pharmacist's handling of oral prescriptions.

You have requested my opinion concerning whether it would be illegal for a person other than a registered pharmacist or a pharmacy intern under the immediate supervision of a registered pharmacist to accept an oral prescription in those cases in which the law authorizes the prescribing of a drug orally.
For the sake of clarity, it is being assumed that the question concerning the method by which an oral prescription is transmitted to a licensed pharmacist from a practitioner of the healing arts is, simply stated, whether a licensed pharmacist must take the telephone call or otherwise hear the information conveyed, or whether he may allow an unlicensed person (e.g. clerical assistant, etc.) to take the call and relate the information to him verbally or in writing.
Only certain drugs may be dispensed pursuant to an oral prescription. But it is adequate for purposes of this opinion to state that certain kinds of drugs may be prescribed by a practitioner of the healing arts by word of mouth or over the telephone. Ga. Code Ann.. 79A-907(f); 79A-807(a); 79A-102(r).
All drugs requiring a prescription (written or oral) may be dispensed, mixed, or compounded only by a licensed pharmacist or a pharmacy intern under his immediate supervision. Ga. Code Ann. 79A-410(a); 79A-506; 79A-519; 79A-520. The words "mixed" and "compounded" are not defined in Ga. Code Title 79A, but the word "dispense" is given the following meanings:

(1) ". . . the issue of one or more doses of medication in a suitable container with appropriate labeling for subsequent administration to, or use by a patient. " Ga. Code Ann. 79A-102(e); and (2) ". . . distribute, leave with, give away, dispose of, or deliver." Ga. Code Ann. 79A-802(17).

Excepted from the provisions of Ga. Code Ann. Title 79A which prohibit the compounding, mixing, or dispensing of drugs by anyone other than a registered pharmacist or a pharmacy intern (Ga. Code Ann. 79A-410[a]; 79A-506; 79A-519; 79A-520) are persons

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" ... assisting any duly licensed pharmacist in the measuring of quantities of medication and the typing of labels therefor, buf not the dispensing, compounding or mixing of drugs, provided that such duly licensed pharmacist shall be physically present in the prescription room and actually observing the actions of such person in doing such measuring and typing, and provided further that no prescription shall be given to the person requesting the same unless the contents and label thereof shall have been verified by a licensed pharmacist, and no pharmacist shall be assisted by more than one such person at any one time." Ga. Code Ann. ' 79A-410(d).
Construed together, the relevant sections of Ga. Code Ann. Title 79A referred to above indicate that only a licensed, pharmacist or pharmacy intern may dispense the drug called for by a prescription, and that this function does not prevent a pharmacist from having one person to assist in measuring quantities of medication or typing labels. Although receiving oral information conveying a prescription does not come under the exception (measuring quantities and typing labels), neither does the receipt of such information appear to constitute "dispensing."
Therefore, it is apparent that the law relating to pharmacists, pharmacy, and drugs (Ga. Code Ann. Title 79A) does not expressly provide that an oral prescription must be communicated directly to a person authorized to "dispense" the drug. It may well be, however, that the implication of the relevant sections of Ga. Code Ann. Title 79A is that only a licensed pharmacist should take a telephone call or otherwise receive oral prescriptions, because of the necessity of getting correct information from the practitioner of the healing arts to the licensed pharmacist.
Because of its expertise in matters relating to the profession, the Georgia State Board of Pharmacy has been empowered to regulate the practice of pharmacy within the general framework of Ga. Code Ann. Title 79A. The General Assembly delegated to the Board power to "adopt, enact, establish, and make such rules and regulations . . . as shall in its judgment be necessary for the carrying out of purposes of this Title [79A] ...."Ga. Code Ann. 79A-208(i).
Therefore, using its expertise to determine the dangers, if any, of allowing an untrained person to receive oral prescriptions to consider the practicalities of operating a pharmacy, the Georgia State Board of Pharmacy should, pursuant to Ga. Code Ann. 79A-208 (i) and the Georgia Administrative Procedure Act (Ga.

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Laws 1964, pp. 338, et seq., as amended [Ga. Code Ann., Ch. 3A]), adopt a rule covering the receipt of oral prescriptions in a pharmacy.

OPINION 69-466 (Unofficial)

To: Court of Ordinary

November 6, 1969

Re: Persons in confinement under criminal warrant or indictment remain under the sole jurisdiction of the superior court.

This will acknowledge your recent letter whereby you requested an opinion on several questions, which I have taken the liberty of paraphrasing as follows:

(1) Does a court of ordinary have jurisdiction under Ga. Code Ann. 88-506 (i.e., Ga. Laws 1964, pp. 499, 534) to entertain an application for hospitalization of an allegedly mentally ill individual while said individual is confined under criminal warrant or indictment? (2) Does a court of ordinary have jursidiction under Ga. Code Ann. 88-506 to entertain an application for hospitalization of an allegedly mentally ill individual while said individual is serving a sentence based upon a criminal conviction? (3) Does a court of ordinary have jurisdiction under Ga. Code Ann. 88-506 to entertain an application for hospitalization of an allegedly mentally ill individual while said individual is out under bond or on probation?

The statutes of this state concerning inquiry into the mental
condition of a person charged with or convicted of a criminal offense leave unanswered the question of whether a court of ordinary has jurisdiction to inquire into the mental condition of a person charged with or convicted of a criminal offense. Ga. Code Ann. 88-506 (Ga. Laws 1964, pp. 499, 534).
It could certainly be contended that this Code section is general in its character and covers all cases without exception. However, the case of McGriff, Ordinary, et al. v. State, Ex Rel. Graham, Solicitor General, 135 Ga. 259 (1910), clearly disputes this contention and offers some insight to the problem at hand. In that case an individual was indicted by a grand jury for the offense of murder. Before his trial could be held, however, the mother of the prisoner made application to the ordinary to have him adjudged a

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lunatic and sent to the State sanitarium under the Civil Code of 1895, 2573 (now Ga. Code Ann. 88-506). The court in a well-reasoned opinion stated in relevant part:
". . . In a proceeding under section 2573 no notice is required to be given to the State or its officers, nor is there any provision for them to be heard or to contest the alleged insanity. The only notice required to be given is to the three nearest adult relatives of the prisoner, if there are any such within the State. To hold that one indicted for murder and held by the State authorities for trial could be taken out of their custody on a proceeding instituted by his mother or other near relative, with notice to nobody save his immediate family, and sent to the State sanitarium or committed to the custody of a guardian, would be to establish a method of ousting the jurisdiction of the superior court not contemplated by law. The section of the Civil Code must be construed in harmony with those in the Penal Code and not as destroying their efficacy." (Emphasis added.)
The Court in that case pointed out that if a prisoner needed special treatment from the State sanitarium the judge would no doubt make such provision for proper attention and treatment as the nature of the circumstances would permit and as humanity should require.
On the other hand, the court was quick to point out that the question of whether a person who is out under bond might be subject to the jurisdiction of the ordinary's court was not before it and would therefore not be discussed.
Therefore, it is my unofficial opinion that persons in confinement under criminal warrant or indictment remain under the sole jurisdiction of the superior court. Certainly, if an individual is mentally incompetent at the time of the commission of the wrongful act or at the time of his trial, the law, as quoted above, sets out specified procedures whereby said individual can be committed to a mental institution.
A person convicted of a capital offense is not entitled under law to a trial to determine his sanity. However, under Ga. Code Ann. 27-2602, the Governor may, within his discretion, have said person examined and committed to a mental institution. As to an individual who becomes mentally ill after being convicted of a non-capital offense, and while serving his sentence, it appears that the trial court in its discretion may stay execution of said sentence while said individual continues in that condition. See 24 C.J .S., Criminal Law, 1619.

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As to the question of whether an individual out under bond or on probation is subject to the jurisdiction of the court of ordinary, it is my unofficial opinion that as long as further proceedings are contemplated in the superior court, said court retains sole jurisdiction over the individual; whereas, a person released by the court on probation would appear to be subject to the jurisdiction of the court of ordinary in a hearing under Ga. Code Ann. 88-506.

OPINION 69-467

To: Director of Administration Georgia Building Authority

November 7, 1969

Re: Employment, after regular working hours, of "cleaners" who work daily for various departments of the State, does not violate Section 1 of the 1956 "Honesty Tn Government Act."

You have requested my opinion upon the following state of facts: The Georgia Building Authority employs several hundred persons who clean the buildings in the Capitol Complex at night. These cleaners work five hours per night, five nights per week, for a total of not more than 30 hours (and therefore do not come under the Retirement System), for an hourly wage averaging $1.60 per hour. Many of these employees, perhaps as many as seventy-five, are employed during the'day by Departments of the State, such as the Revenue Department, Health Department, Industry and Trade, etc.
You have requested my opinion as to whether or not the above-described employment of State employees by the Authority is contrary to my opinion dated November 22, 1967 [Op. Atty. Gen. 67-414] that a consulting contract between the Board of Regents and a full-time employee of the State Board of Probation would violate the 1956 Honesty in Government Act.
Section 1 of that Act (Ga. Laws 1956, pp. 60, 61; Ga. Code Ann. 89-913) provides in pertinent part as follows:

"It shall be unlawful for any full-time appointive State official or employee to contract to buy from or sell to the State 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." (Emphasis added.)

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This section was not repealed by the new Criminal Code which became effective July 1, 1969. See Op. Atty. Gen. 69-444.
Section 7 of the 1959 Honesty in Government Act (Ga. Laws 1959, pp. 34, 37; Ga. Code Ann. 26-5009), enforcing the separation of powers provision of the Constitution, has been specifically repealed by the new Criminal Code (Ga. Laws 1968, pp. 1249, 1345). However, a comparable provision appears in the new Criminal Code as Ga. Code Ann. 26-2309, which provides in pertinent part as follows:
"It shall be unlawful for ... (c) officers or employees of the Executive Branch of the State Government to accept or hold office or employment in the Legislative or Judicial Branches of the State Government."
Ga. Code Ann. 26-2309 does not prohibit an employee from holding two employments in the same branch of State government. It prohibits an employee from holding two employments in different branches of State government.
If "employment" by the State were to be construed as the sale of "services" to the State within the meaning of the 1956 Act, the prohibition of Ga. Code Ann. 26-2309 (which was brought forward from the 1959 Act) would be surplusage, because an "employee" of one branch of State government could not accept "employment" in another branch without selling a "service" to the State. In fact, under such a construction, an "employee" of one branch of State government could not accept "employment" in that same branch without violating the 1956 Act. Construing Section 1 of the 1956 Act and Ga. Code Ann. 26-2309 together, so as to give some meaning to the latter Code section, it must be that the word "services" refers to an "independent contractor" relationship, such as an attorney, architect, consultant, cleaning contractor, etc. In my opinion, the word "services" as used in the 1956 Act quoted above, does not refer to "employment" where a "master-servant" relationship is created.
This conclusion becomes even more compelling upon considering the basis for statutes which are designed to promote "honesty in government." To deny that such statutes are necessary is to ignore human frailty. It is true that influence gained through governmental position, whether great or relatively insignificant, has been used since time immemorial for personal gain by some few given to venality who do not respect the public trust._ But statutes designed to punish those who would wrongly use their influence or position should not be construed so as to

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make unlawful employment relationships which are not surreptitious and which are a benefit to the State rather than a source of corruption, real or potential.
To say that the employment of the Georgia Building Authority of "cleaning" personnel who have put in a full day's work for other State departments is a violation of an "Honesty in Government" statute is, in my opinion, to reach a ridiculous result. I do not believe that the General Assembly intended that Section 1 of Ga. Laws 1956, pp. 60, 61 (Ga. Code Ann. 89-913) would make unlawful the type of employment arrangement described in your request.
Therefore, it is my official opinion that the employment by the Georgia Building Authority of the persons described in your letter, under the terms described therein, does not violate the 1956 Honesty in Government Act. The opinion to which you referred [Op. Atty. Gen. 67-414] relating to the services of a consultant, is not violated by the employment you have described.

OPINION 69-468 (Unofficial)

To: Private Inquirer

November 10, 1969

Re: Special Master may be paid in excess of Fifty Dollars per case in condemnation cases under Ga. Code Ann. 36-609(a).

This will reply to your letter of recent date in which you request my opinion on the meaning and interpretation of Ga. Code Ann. 36-:609(a) relating to the matter of compensation for Special Masters.
The question you pose is really a question of how to properly interpret the provisions of that Code section relating to compensation. This section, supra, provides that:

"The compensation of the special master shall be provided for by a proper order of the judge of the superior court, shall be included and made a part of the judgment of the court, based on the award of the special master, condemning the property sought to be taken, or any easement or other interest therein, shall be paid by the condemning body, and not to exceed the sum of $50 per day for the time actually devoted to the hearing and consideration of such matter by such special master. As a part of the foregoing, the judge may allow the special master a reasonable period of time for

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personal inspection of the property and any actual expenses incurred by the special master in connection therewith, but, in this event, the special master shall file an affidavit with the court showing and itemizing such time and such expenses." (Emphasis added.)
The question is whether the Special Master is to be compensated on a pro rata basis for time actually spent up to the amount of $50.00 per day, or is the Special Master to be compensated at the rate of $50.00 per day for any part of a day in which he hears or considers the matter.
This section, to my knowledge, has never been the subject matter of review by our appellate courts. However, in the interpretation of the statutes, the cardinal rule is that "'in all interpretations, the Court shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy." Ga. Code Ann. 102-1 02(9); Wall v. Youmans, 223 Ga. 191, 192 (1967). Furthermore, it is the duty of the Court in the construction of statutes to give effect to the intention of the Legislature when it is ascertainable. Moore v. Baldwin County, 209 Ga. 542, 545 (1953); Thompson v. Eastern Airlines, 200 Ga. 216,222 (1946).
Another rule of construction which has application in interpretation of the statute quoted above is that which provides, in Ga. Code Ann. 102-102(1), as follows:
"The ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject-matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject-matter."
When the last-cited principle is applied by our Courts it is evident that the plain, obvious and common sense meaning is to be given to words and where the language of a statute is plainly susceptible of only one construction, the Courts have no authority to place a different construction on it, but must apply it according to its terms. State Revenue Commission v. Brandon, 184 Ga. 225, 228 (1937). Of course, single sections or single provisions of the law are not to be construed separately, but the entire system must be construed as a whole to determine the intent and purpose of the law as applied to each particular case or state of facts. Lucas v. Smith, 201 Ga. 834, 837 (1947).
Realizing that Ga. Code Ann. 36-606(a) provides for the

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appointment of the Special Master by the Judge or Judges of the Superior Court of each judicial circuit and makes his relationship and accountability to the Court that of an auditor or master in the general practice existing in this state and applying the rules of construction hereinbefore stated, it would be my interpretation that the Court has judicial discretion to provide the compensation of the Special Master as an officer of the Court up to the amount of $50.00 per day. That is to say, the $50.00 per day is the limitation upon the discretion of the Court to provide the compensation of the Special Master. Hence, while the Court is to compensate the Special Master only for time actually devoted to hearing and consideration of the matter, he has a judicial discretion in determining the amount of compensation until it reaches the limitation of $50.00 per day.
Therefore, even though the Special Master may work only one hour on a particular day, if the Court determines that the work is of sufficient character to require such a compensation the Court may compensate him at the rate of $50.00 for that hour in that day. Consequently, under this interpretation it is quite foreseeable that the Court, within reasonable bounds, could properly allow compensation up to $50.00 for any part of a day in which the Special Master hears evidence and then allow compensation up to $50.00 for any part of a day in which the Special Master considers or decides the case. Since, in my way of thinking, it is not only a common practice, but also a desirable practice for the Special Master not to determine the case on the same day upon which he hears the evidence, this interpretation would authorize the Court to compensate the Special Master in excess of $50.00 per case.
Of course, the statute hereinbefore quoted specifically provides that the Court may allow a reasonable period of time for personal inspection of the property. Upon my interpretation of the statute, the Special Master is to be compensated again within the judicial discretion of the Court, but in an amount not to exceed $50.00 per day. The only added requirement for this compensation is that the Special Master file an affidavit showing and itemizing the time and expenses incurred in making a personal inspection of the property. The Court may consider it a very desirable practice for the Special Master to inspect the property prior to hearing evidence and on a day which is separate from the day on which the evidence in the case is received. Also, it may become necessary for the Special Master to again inspect the property after he has heard the evidence. Thus, regardless of whether the Special Master consumed the entire day to inspect the property on either occasion, in my interpretation of the statute the Court would

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allow, within its discretion, the full $50.00 for the inspection. As I interpret the statute, the significant point to be
remembered is that the Court has the discretion to set the compensation and the rate of compensation according to the circumstances of the case and according to the circumstances of what has been accomplished by the Special Master. The only limitation upon the Court in this regard, as provided by the statute, is that it cannot exceed $50.00 for each day that work is accomplished on the case.
From what has been said herein, I find no difficulty in the practice you mention in your letter of some of the Courts to pay the Special Master $50.00 for the day he hears the case, and $50.00 for the day, or days, it takes to decide the case. It is difficult to foresee all of the circumstances which can surround a case before a Special Master. For this reason it is difficult to categorically say that a certain compensation in each case would be permitted under the statute. However, I am convinced that so long as the compensation ordered by the Court does not exceed $50.00 per day and so long as the Special Master works on the case either in hearing, in considering the case, or in inspecting the property, the amount of the compensation is within the sound judicial discretion of the Court. As I interpret the statute hereinbefore quoted, so long as the Court orders payment the condemning authority has no choice but to pay that amount.
Under the interpretation herein provided, it is quite possible that a Special Master could receive well in excess of $50.00 per case for his work.

OPINION 69-469 (Unofficial)

To: Director Employees' Retirement System of Georgia

November 12, 1969

Re: Certain military service may be credited under the Employees' Retirement System of Georgia although also used toward military retirement.

Military service which has been used or will be used by a member for retirement under one of "those retirement programs covered under the provisions of Title 10 of the United States Code, Public Law 810, 80th Congress, as amended," may be credited, subject to all other relevant restrictions, toward retirement under the Employees' Retirement System of Georgia

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pursuant to Subsection (4) of Section 4 of Ga. Laws 1949, p. 138, as amended. Ga. Code Ann. 40-2504(4).
OPINION 69-470

To: State Board of Corrections

November 14, 1969

Re: Proposed form submitted by the City of Dawson, Georgia, entitled, "Canal Creek Clearance Right."

By letter, you forward a proposed form submitted by the City of Dawson, Georgia, entitled "Canal Creek Clearance Right . " You request my official opinion as to whether this form executed by various property owners will afford a sufficient basis for authorizing the use of inmate labor from Terrell County Public Works Camp in clearing the Canal Creek. It appears from your letter that Canal Creek is a non-navigable stream running through the limits of the City of Dawson and, at least partly, upon private, as opposed to public, property. The purpose of the proposed clearance is not obvious; however, the form submitted recites as fact the stagnation of flow with the resulting health hazard caused by excessive mosquito breeding. You are evidently concerned because the document as submitted when executed would have the effect of giving the City of Dawson and Terrell County a joint right of access to private property for the purpose of removing the obstructions presently blocking the free flow. It is noted that the document is not at all clear as to whether the grant contemplates a future right to maintain free flow in the stream, though this is believed to have been the intended effect of the drafter.
The applicable portions of the various enactments unofficially codified as Ga. Code Ann. 77-318 (e) provide as follows:

"The Board of Corrections or any penal institution or county public works camp operating under jurisdiction of the board shall be authorized to require prisoners coming into its custody to labor on the public roads, public works, or in such other manner as the board may deem advisable...."
Your attention is called to my opinion of December 20, 1967, to your Department. [Op. Atty. Gen. 67--452]. The present question is controlled by the legal discussion set forth in that opinion which will not be herein repeated.
The issue is whether the ~1eaiance proposed is a public work, and, as .i~~and.my predecessgrs in office have noted in the cited opinion and the opi:hions therein referenced, it is the duty of your

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Department to examine each set of facts and determine factually whether the project proposed is a "public work." The status of the property, public or private, is not controlling.
The courts of this State have not defined the term "public work"; however, the definition has been at issue judicially in other states. Words and Phrases, Public Work. Generally, it is my opinion that the courts of this State will hold a public work to be any project upon which public funds could be lawfully expended. The underlying factual issue will always be the extent, if any, to which the public will receive common or corporate benefit.
Based upon the foregoing discussion and my previous opinions, it is my opinion that the document submitted and attached is not adequate to foreclose your responsibility of inquiry into the public as opposed to the private nature of the project in question. The mere granting of an "easement" must not be taken as conclusively establishing the public nature of a works project. The document as submitted fails to detail adequately the persons expected to be benefitted by the labor utilization together with the public benefit to be therefrom anticipated. Additionally, the document is very ambiguous and could be construed to constitute nothing more than a right of access to private property for the purpose of performing work thereupon. As such, it is hardly adequate to constitute the proposed project a public work.

OPINION 69-471

To: Secretary of State

November 14, 1969

Re: Franchising agreements can and ofttimes do constitute securities within the scope of regulation.

By letter you forward an inquiry from lawyers in another state relating generally to the applicability of state securities regulation to franchising agreements. The inquiry appears to be in the form of a questionnaire and seems to be seeking an opinion excluding from securities regulation a specific franchising agreement. The inquiry does not identify the client upon whose behalf it was directed, nor does it set forth in sufficient detail the relevant factors upon which such a determination would necessarily be based.
However, rather than return the inquiry unanswered, I am taking this opportunity to express my opinion that franchising agreements can and ofttimes do fall within the scope of securities regulations under the Georgia Securities Act of 1957, as amended, Ga. Code Ann. 97-101 et seq.

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The language of the Georgia Securities Act of 1957 herein involved is found in section 1 (i), Ga. Code Ann. 97-102 (i). This section provides as follows:
" 'Security' shall mean any . . . certificate of interest or participation, ... preorganization certificate or subscription, transferrable share, investment contract, ... or beneficial interest in title to property, profits or earnings, or any other instrument commonly known as a security ...."
As you are aware, the Georgia Securities Act is broadly defined so as to afford maximum protection to the investing public. This rule of broad construction is applicable to the concept of a security as the same is defined for purposes of marking the scope and reach of the regulation. In addition, the substance and not the form of the transactional undertaking is utilized for the purpose of determining whether a particular transaction falls within the scope of the definitive regulation.
While the appellate courts of this State have not spoken directly on this issue, it is the rule in other states as applied in certain superior courts of this State that there is no all-inclusive formula by which to test a transaction for the purpose of determining whether it is a security so as to fall within the scope of the regulation. In so doing, these courts have held that it is not necessary that a transaction be susceptible to exact classification coextensive with one or more incremental clauses contained within the definitive subsection. Sarmento v. Arbax Packing Co., 231 Cal. App. 2d 421, 41 CaL Rptr. 869 (1964); Donovan v. Dixon, 261 Minn. 455, 113 N.W. 2d 432, 441 (1962); First Nat'!. Savings Foundation v. Samp, 274 Wis. 118, 80 N.W.2d 249 (1956).
It is thus important to bear in mind that the sound theory of law underlying the decisions precludes my formulating any exclusionary formula by which to test a transaction for securities coverage; however, at the same time, it should be obvious that the inclusion of various transactions can be abstractly formulated so as to give guidance to you in the discharge of your duties under the Act. Therefore, the remainder of this opinion will be devoted to an explanation of certain circumstances which will be sufficient in my opinion to render the transaction in question a security within the scope of the regulation. Please bear in mind, and emphasize to all persons making inquiry, that it cannot be too strongly emphasized that this opinion is not intended in any way to limit. the scope of the coverage so as to afford a basis for excluding any particular transactional promotion.

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The most significant current problem area involving securities regulation of franchising agreements involves relatively new systems where the franchisor intends to secure a substantial portion of the initial capital needed to provide the agreed-upon goods and services to the franchisees from the franchising fees initially paid by the franchisees. The promoters of the system enterprise are either unable or unwilling to provide the risk capital .necessary to establish the franchise system and look to the initial franchisees to provide the bulk of the needed input. It is my opinion that franchise agreements the substance of which contemplate the attraction of risk capital necessary to the success and promotion of the common enterprise are generally securities as the same are broadly defined within the Act and, more specifically, an investment contract, a preorganization certificate and a beneficial interest in title to property, profits or earnings. In such cases, the franchise agreement contains two separate business risks, only one of which is even arguably within the personal control of the individual franchisee. In State v. Gopher Tire & Rubber Co., 146 Minn. 52, 177 N.W. 937, 938 (1928), the term "investment contract" was early defined as a contract or a scheme for "the placing of capital or laying out of money in a way intended to secure income or profit from its employment." Since the franchisor's ability to furnish goods and services to the franchisee, as covered by the franchise agreement, will necessarily be dependent upon the employment of monies and other considerations made by the franchisees, the franchisees' expectation of profits and income must in turn depend upon the employment of such money or other consideration. Therefore, in every instance where the franchisor is thinly capitalized or so under-capitalized as to require franchisee fees in order to be able to fulfill its obligations to its franchisees, the franchise agreements constitute securities within the purview of the Act.
Alternatively, it is obvious that the franchise agreements in such a case may well constitute preorganization certificates, as the same are included as an incremental clause within the definition. Various arguments to the effect that the General Assembly intended to limit coverage to pre-incorporation subscriptions is belied by the broadness of the language employed. When, because of its newness, a franchising system is necessarily preorganizational as a matter of fact, then its franchising agreements constitute preorganization certificates and are securities within the meaning of the Act.
A third alternative basis for holding the franchising agreements in such cases to constitute securities is to be found in the rationale

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expressed in the leading case of Silver Hills Country Club v. Sobisky, 55 Cal.2d 588, 361 P. 2d 906(1961). In this case certain promoters had made a down-payment of $400.00 for the purchase of land for a contracted price of $75,000.00, and had announced plans to construct country-club facilities upon the land. Financing of the venture was proposed through the sale of $135,000.00 worth of COYJ]try-club memberships. In characterizing the transaction, the 't!'ourt noted:
"We have here nothing like the ordinary sale of a right to use existing facilities. Petitioners are soliciting the risk capital with which to develop a business for profit. The purchaser's risk is not lessened merely because the interest he purchases is labeled a membership. Only because he risks his capital along with other purchasers can there be any chance that the benefits of club membership will materialize.... "Since the Act does not make profit to the supplier of capital the test of what is a security, it seems all the more clear that its objective is to afford those who risk their capital at least a fair chance of realizing their objectives in legitimate ventures whether or not they expect a return on their capital in one form or another." ld. at 908.
While the California statute involved did not define a security to include "preorganization certificate" it is my feeling that the rationale and the opinion accompanying this decision lends substantial weight to the view that the inclusion of this term by the General Assembly was to foreclose any possibility that the Securities Act might not reach the sale of beneficial memberships in non-existing facilities. Further, under certain circumstances it is quite conceivable that a sale of franchise agreements involving conditions of franchisor under-capitalization may involve "beneficial interest and title to property, profits or earnings," since the Silver Hills concept of benefit is broad enough to be extended by analysis to give the franchisees a beneficial interest in the franchisor's property, profits or earnings.
There is another test which, while similar, will potentially reach more enterprises than the under-capitalization test just discussed. This is the "integrated-risk" concept. Under this concept, and based upon the decisional authority in Gopher State Tire Co.,supra, this test essentially recognizes the fact that if a franchising system is in its infancy to such a degree that the individual franchisee might realistically be held to have provided risk capital in the enterprise as a whole to the extent that its

665

success or failure will necessarily depend upon the success or failure of every other individual franchisee as well as the franchisor, then his investment constitutes an investment contract and is susceptible to securities regulation.
Thus, by virtue of the foregoing analysis, promoters undertaking to establish a new franchise system will fall within the ambit of securities regulation if the franchisor is so thinly or under-capitalized as to require franchisees in order to meet its obligations to furnish goods and services to its franchisees; however, securities coverage will not be avoided by simply providing the franchisor with adequate capital. The second prong of the discussion must be taken as indicating my opinion that all franchise systems however capitalized are susceptible to securities regulation until such time as the franchise is so well established as a system that the success or failure of an individual franchise is not disproportionately keyed to the success or failure of other franchisees. Either the franchisor will have to provide a sufficient number of franchisor-owned and operated outlets to establish the system as a going enterprise without dependence upon the individual activities of the franchisee's co-franchisors, or the franchisor will have to comply with the registration requirements of the Act.
As you can see from the above, and in summary, the test is one relating to the substance of the transaction rather that to its form. If the franchisor is using the franchising arrangement as a security, it is a security. Each such arrangement will have to be evaluated on its own facts.

OPINION 69-472

To: City Attorney

November 14, 1969

Re: Municipal Elections-Closing date for qualification.

You advise that the City of Toccoa's charter specifically provides that any candidate may register up to ten ( 10) days prior to the holding of the general election. You are also aware of Ga. Code Ann. 34A-90 1(a) of the Georgia Municipal Election Code which provides that each candidate shall file notice of his candidacy at least fifteen ( 15) but not more than forty-five (45) days prior to the election in the case of a general election. You have requested our unofficial opinion on whether the closing date would be the fifteen (15) days specifically set out in the Code section above cited or whether it would be ten (1 0) days as set out in the City charter.

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The Municipal Election Code takes precedence over any conflicting municipal charter provisions. Ga. Code Ann. 34A-l 02. It is our unofficial opinion that Ga. Code Ann: 34A-90 I(a) allows a municipality to set a closing date of its own
choosing so long as the closing date set by the municipality is at least fifteen (15) but not more than forty-five (45) days prior to the election. Since your municipal charter does provide for a closing date which is outside the limits allowed in the Georgia Municipal Election Code, I believe that your municipality should adopt a new closing date within the limits set out above.

OPINION 69-473

To: State Planning Office

November 14, 1969

Re: Multi-government emergency squads may combat common disaster, civil disorder, riot and other emergency situations.

This is in response to your request for an official opinion as to the legality of multi-government emergency squads.
The enclosures accompanying your request indicate that at least two such voluntary units have already been formed within the State. The constitution of one of these, the Coastal Plains Sheriffs and Police Intelligence Unit, provides in pertinent part:

"Membership in the Coastal Plains Sheriffs and Police Intelligence Unit shall be limited to municipal police departments and sheriffs' departments from the nine Coastal Plains Area counties of Georgia including Berrien, Brooks, Cook, Echols, Irwin, Lanier, Lowndes, Tift, and Turner Counties.
"Each department executive member will designate certain personnel of his department to serve on the ... Emergency Squad ....
"The Emergency Squad shall function as a 'back-up' or reserve force, and be available to any member department on need and demand....
"If an emergency situation occurs, the affected department's chief executive will notify the Intelligence Unit Secretary whose responsibility will be to notify the Emergency Squad members. The Emergency Squad will then proceed to the emergency situation area and be sworn in as special policemen or deputies, and will be commanded by the member department's chief executive until necessary

667
assistance from the state can be mobilized or until the emergency situation is over."
"Emergency situation" is defined as "civil disorder or potential riot, a destructive storm or tornado, jailbreak, search party, manhunt, and so forth."
In any common disaster or other situation where no arrest or related police function is necessary, members of such emergency squads may function without further solemnity in any of the nine counties. Similarly, situations involving arrests under a warrant would present little difficulty. Officers who are authorized under State law to execute warrants (sheriffs, sheriffs deputies, county policemen, etc.) may arrest under a warrant in any county. Ga. Code Ann. 27-209. However, a police officer of a municipality has no authority as such to serve a warrant in a county outside the municipality. Coker v. State, 14 Ga. App. 606 (1914).
The proper way to organize an emergency squad is to require that each member qualify as a deputy sheriff in each county of anticipated service.
The main impediment in the operation of these units is jurisdiction, particularly in cases involving arrest without a warrant. Occasions may arise in which it is necessary for law enforcement personnel from eight of the counties to converge and make arrests without warrants within the ninth. Generally, an individual making an arrest acts in one of three capacities: (1) officer, (2) private citizen, (3) member of a posse comitatus. See Robinson v. State, 93 Ga. 77 (1893).
A police officer has no official power to arrest without a warrant beyond the boundaries of the county or district for which he is appointed, Blair v. State, 90 Ga. 326 (1892), see 5 Am. Jur.2d Arrest 50, except in a case involving "hot pursuit" from such territorial jurisdiction, Shirley v. College Park, 102 Ga. App. 10 (1960).
Any officer outside of his territorial jurisdiction is there simply as a private citizen with reference to his authority to make arrests without a warrant. Blair, supra. Ga. Code Ann. 27-211 sets forth the various conditions under which a private citizen may arrest an offender who commits either a misdemeanor or a felony. No attempt will be made here to delimit the right of a private citizen to make an arrest inasmuch as it appears that the emergency squad members anticipate being "sworn in as special policemen or deputies." Nor will the posse comitatus be discussed since it is inapplicable, among other reasons, in view of the statutory requirement that its members be "citizens of the neighborhood or county." Ga. Code Ann. 27-206.

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A mere "swearing in" is insufficient to constitute someone a special deputy de jure. Robinson, supra; see Op. Atty. Gen. 66-211. In order for a person to be validly appointed as a deputy sheriff, he must take and file the same oath as the sheriff, Ga. Code Ann. 89-308, 89-309, post a bond with sureties, Ga. Code Ann. 24-2811, and receive his appointment in writing, Ga. Code Ann. 26-9904. Failure of the deputy to take the oath, post a bond, or receive his appointment in writing will not render invalid his acts performed under color of office since he can still function as a de facto officer. See Ga. Code Ann. 89-310, Powell v. Fidelity and Deposit Company of Maryland, 45 Ga. App. 88 (1932). However, failure of the deputy to take and file the oath and receive the appointment in writing prior to the assumption of his duties is itself a misdemeanor.. Ga. Code Ann. 89-9901, 26-9904. Therefore, every de facto deputy sheriff would be put in the anomalous position of violating the law every time he made an arrest. Obviously, the de facto status is unwise, inappropriate and illegal; it should not be used by members of multi-government emergency squads.
I suggest that the constitution of the Coastal Plains Sheriffs and Police Intelligence Unit, and all other prospective or existing units, provide that members of emergency squads be qualified as de jure deputy sheriffs in all counties in which they intend to operate. This would obviate many of the difficulties attendant with an operation of this type. No problem of plurality of offices would exist inasmuch as a deputy sheriff is not a county officer. Employees Retirement System v. Lewis, 109 Ga. App. 476 (1964). Nor would there be a residency requirement other than that of state citizenship. Ga. Code Ann. 26-9904.
It is, therefore, my official opinion that, as above qualified, multi-government emergency squads are valid.

OPINION 69-474

(Unofficial)

To: State Representative

November 14, 1969

Re: County authorized to tax to provide employee insurance and pensions.

You have requested my unofficial opinion on whether a county in Georgia can participate in a retirement annuity for its employees contracted through an insurance company.

669

Art. VII, Sec. IV, Par. II, Subpar. 10 of the Constitution of Georgia (Ga. Code Ann. 2-5702(10)) specifically authorizes a county to exercise the power of taxation and to expend funds raised by the exercise of that power for several purposes, one of which is to provide insurance, retirement and pension benefits to the county's officers and employees and their dependents and survivors and for public school teachers and personnel, provided that the payments for public school teachers and personnel shall be paid from education funds.
Art. XV, Sec. II, Par. II of the Georgia Constitution (Ga. Code Ann. 2-8403) commonly known as "Home Rule for Counties" allows the governing authority of each county to establish and maintain retirement or pension systems, insurance, workmen's compensation and hospital benefits for the employees of the governing authority. While Art. XV, Sec. II, Par. I, Subpar. (c) (1) (Ga. Code Ann. 2-8402 (c) (1)) provides that a county under the auspices of Home Rule may not take action affecting the personnel of any elective county office, I believe that a county has the clear authority under the above-cited taxing provision of the Constitution to participate as you indicate without relying on the power given under Home Rule provisions.
It is therefore my unofficial opinion that a county can participate in a retirement annuity for its employees contracted through an insurance company with the understanding that payments for public school teachers and personnel, their dependents and survivors, shall be paid from education funds.

OPINION 69-475 (Unofficial)

To: State Superintendent of Schools

November 14, 1969

Re: Members of "State Advisory Council" are subject to prohibitions with regard to selling goods or services to the state.

You have requested my opinion as to whether members of the "State Advisory Council," created pursuant to 104(b)(l) of the "Vocational Education Amendments of 1968" (20 U.S.C. 1244[b ], 82 Stat. 1064) may sell goods and services to the State of Georgia on a competitive bid basis. Specifically, you relate your question to Ga. Code Ann. 26-2306.
The "Vocational Education Amendments of 1968" provides, at 104(b) (1) that:

670
"Any state which desires to receive a grant under this Title for any fiscal year shall establish a State advisory council, which shall be appointed by the Governor or, in the case of states in which the members of the State Board are elected, by such boards...."
Ga. Code Ann. 26-2306 is a part of the Criminal Code of Georgia which became effective July 1, 1969. It is my opinion that said Code Section would apply to members of the "State Advisory Council." I am enclosing a copy of an opinion rendered October 22, 1969[0p. Atty. Gen. 69-444 ], in which comment is made upon the extent to which Ga. Code Ann. 26-2306 prohibits certain activities by persons coming within the purview of the Code Section. The enclosed opinion is self-explanatory, and provides an answer to your question as far as it relates to the sale of "personal property" to the State.
Since the October 22, 1969, opinion of the Attorney General construed Ga. Code Ann. 26-2306 as covering only the sale of personal property to the State, it is necessary to look elsewhere in the law to ascertain whether there is any prohibition against members of the "State Advisory Council" selling "services" to the State.
The new Criminal Code (Ga. Code Ann. Title 26) did not expressly repeal the 1956 "Honesty in Government Act." Therefore, the 1956 Act (Ga. Laws 1956, pp. 60, et seq. (Ga. Code Ann. 89-913 thru 89-918)) is still in effect, at least to the extent that it does not conflict with the new Criminal Code.
The provisions of the 1956 Act concerning the sale of "goods or supplies" would be superseded by Ga. Code Ann. 26-2306. However, the 1956 Act also provides that "services" may be sold to the State by a member of any State board, bureau, commission or other State agency by whatever name called, only after competitive bid thereon. Ga. Laws 1956, pp. 60, 61, Section 2 (Ga. Code Ann. 89-914).
Section 3 of Ga. Laws 1956, pp. 60, 61 ( Ga. Code Ann. 89-915) provides, inter alia:
"No member of any State board, bureau, commission or other State agency by whatever name called ... shall act as dealer, agent or broker, or in any other manner, in connection with the sale of . . . services . . . to the State, unless such person operates a regularly established business enterprise which, when selling such . . . services .... to the State, meets all the legal requirements connected therewith

671

relative to submission of bids, posting of bonds, quality of services ... and all other requirements in connection with such transactions."

Section 4 of Ga. Laws 1956, pp . 60, 62 (Ga. Code Ann. 89-916) provides that no member of any such State agency shall engage in any transaction with the agency of which the person is a member.
The foregoing sections of the 1956 Act construed together indicate that a member of a State Board such as the "State Advisory Council" may sell "services" to the State on a competitive bid basis provided the person operates a regularly established business enterprise which meets all legal requirements for the submission of bids on the services involved, and provided further that the person shall not under any circumstances sell "services" to the agency of which he is a member.

OPINION 69-476

To: Joint Secretary, State Examining Boards

November 14, 1969

Re: Member of a State Board cannot sell "personal property" to the State of Georgia, and other related matters.

You have requested my opinion as to whether members of the State Board for Examination, Qualification and Registration of Architects would violate any provision of the new Criminal Code of Georgia by rendering architectural services for the State or any authority of the State.
Ga. Code Ann. 26-2306 is the section of the new Criminal Code of Georgia which should be considered in connection with your question. I have previously interpreted Ga. Code Ann. 26-2306 in an opinion rendered October 22, 1969[0p. Atty. Gen. 69-444], and a copy of said opinion is enclosed for your information. For the reasons given in the enclosed opinion, it is my opinion that a member of a State board (such as the State Board for Examination, Qualification and Registration of Architects) cannot sell "personal property" to the State of Georgia under Ga. Code Ann. 26-2306, at least to the extent specified in the enclosed opinion.
However, it is apparent that the rendering of an architectural service is not the sale of "personal property" as that term is used in Ga. Code Ann. 26-2306. Therefore, it is necessary to look

672
elsewhere in the law to determine whether there is any prohibition against the sale of such a "service" by a member of a State board to the State of Georgia or any authority of the State.
The new Criminal Code (Ga. Code Ann. Title 26) did not expressly repeal the 1956 "Honesty in Government Act." Therefore, the 1956 Act (Ga. Laws 1956, pp. 60, et seq. [Ga. Code Ann. 89-913 thru 89-918]) is still in effect, at least to the extent that it does not conflict with the new Criminal Code.
The provisions of the 1956 Act concerning the sale of "goods or supplies" would be superseded by Ga. Code Ann. 26-2306. However, the 1956 Act also provides that "services" may be sold to the State by a member of any State board, but only after competitive bid thereon. Ga. Laws 1956, pp. 60, 61, 2 (Ga. Code Ann. 89-914).
Section 3 of Ga. Laws 1956, pp. 60, 61 (Ga. Code Ann. 89-915) provides, inter alia:
"No member of any State board, bureau, commission or other State agency by whatever name called ...shall act as dealer, agent or broker, or in any other manner, in connection with the sale of . . . services . . . to the State, unless such person operates a regularly established business enterprise which, when selling such . . . services ... to the State, meets all the legal requirements connected therewith relative to submission of bids, posting of bonds, quality of services . . . and all other requirements in connection with such transactions."
Section 4 of Ga. Laws 1956, pp. 60, 62 (Ga. Code Ann. 89-916) provides that no member of any such State agency shall engage in any transaction with the agency of which the person is a member.
The foregoing sections of the 1956 Act construed together indicate that a member of a State board such as the "State Board for Examination, Qualification and Registration of Architects" may sell "services" to the State on a competitive bid basis provided the person operates a regularly established business enterprise which meets all legal requirements for the submission of bids on the services involved, and provided further that the person shall not under any circumstances sell "services" to the board of which he is a member.
The question remains as to whether the sale of a "service" to an authority of the State comes within the prohibited activity of Ga. Laws 1956, pp. 60, et seq. (Ga. Code Ann. 89-913 thru

673
89-918). Sections 2, 3 and 4 of Ga. Laws 1956, pp. 60, 61, 62, all provide that no member of "any authority created by law," shall enter into certain transactions with "the State." Only section 4 of said Act, which prohibits a member of any board, bureau, commission or other State agency by whatever name called, or of any authority created by law, from engaging in any transaction with the entity of which he is a member, refers to an "authority" in specifying the entities with whom a transaction may not be entered into. Sections 2 and 3 of the Act only refer to "the State" in specifying the entity with whom a transaction may not be entered into.
Since violation of Ga. Laws 1956, pp. 60, et seq., is made a crime, I hesitate to render an opinion that the sale of a "service" by a board member to a State "authority" is prohibited when the Act is not clear on the point. Therefore, no opinion is expressed on this question, and the matter should be clarified by either the General Assembly or the Courts.
Finally, it is noted that the letter from the Chairman of the State Board for Examination, Qualification and Registration of
Architects which you enclosed with your request indicates that the Board has, for some years, been unable to get an opinion on the questions covered in your request. This is somewhat disturbing to me, mainly because my records do not indicate that the State Board for Examination, Qualification and Registration of Architects has requested an opinion on these matters since I have been Attorney General. Further, at least a portion of the questions answered in this opinion were dealt with in an opinion dated February 12, 1968 [Op. Atty. Gen. 68-58] to the State Board of Registration for Professional Engineers and Land Surveyors.
So as to avoid a repetition of this apparent failure of communication, it is suggested that you may wish to make it a practice to distribute copies of any opinions rendered by this office to all boards coming within the jurisdiction of the Joint Secretary, particularly when the opinions deal with general principles which would be applicable to all boards rather than just the board requesting the opinion.
I hope that the foregoing will clear up once and for all the question of members of State boards transacting business with the State. Except for the question of selling "services" to State "authorities," I believe that the material contained herein should provide clear advice to the members of all State boards on the question of entering into business transactions with the State of Georgia.

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OPINION 69-477

To: Supervisor of Purchases

November 17, 1969

Re: Supervisor of Purchases has authority to prescribe administration of State Workmen's Compensation Self-Insurance Program.

You have requested my official opinion on the scope of your authority under the new State Workmen's Compensation Self-Insurance Program, specifically, whether you may establish your office as the sole agency to determine the benefits and otherwise administer the provisions of the Program.
The Act requires the Supervisor of Purchases to formulate and initiate a sound program of self-insurance for workmen's compensation benefits for included employees of the State. Ga. Laws 1969, p. 234, section 1. Further, the Act provides for a method of paying the operating expenses of the Supervisor of Purchases' office in connection with administering the program. ld. section 2.
The Act clearly authorizes the Supervisor of Purchases to determine and prescribe how the program will be administered within the limits of the Act. If you determine that the best method for administering the program is to establish your office as the sole agency for determining benefits and otherwise administering the provisions of the program, then I believe you have the necessary authority under the clear language and intent of the Act.
For the purpose of clarity and efficiency in administering the program, I would suggest that you circulate and make known to all agencies under the program your fmal determinations as to how the program will be administered and what consequences will result if your established procedures are not followed. If you require any assistance in this area, my office will be ready to render whatever help we can.
It is therefore my official opinion that the Supervisor of Purchases has the authority to determine and prescribe how the State Workmen's Compensation Self-Insurance Program will be administered.

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OPINION 69-478 (Unofficial)

To: Clerk, Lumpkin Superior Court

November 17, 1969

Re: Pay of employees of fee system officers.

In 1968 the General Assembly enacted a law authorizing the governing authority of a county to expend county funds for several purposes, one of which was to employ additional temporary personnel to assist county officers in discharging their duties. Ga. Laws 1968, p. 447 (Ga. Code Ann. 23-3003). As I understand the situation, your compensation is on a fee basis and you are presently paying your clerical help from these fees. You requested an opinion from your county attorney on whether the county governing authority could pay the clerical help in your office from county funds. The county attorney gave his opinion . that the 1968 law was not intended to be used as a means of increasing the compensation of any county officer. He noted that the law requires a fee basis officer to perform all of the functions of his office, either by himself or through employees retained by him, and the governing authority of the county can pay no compensation to the fee basis officer, directly or indirectly, in the absence of clear and unequivocal statutory authority. For this
reason, the county attorney has advised that the governing authority of the county would not be authorized under the 1968 Act to pay the salary of a semi-permanent employee of a county officer who is on a fee basis.
You have requested an unofficial opinion from our office in this matter. We have found no judicial construction of the 1968 law which is contrary to the county attorney's opinion. He has indicated that there is some conflict of authority, but he has given his official opinion in the matter and we are unable to say, as a matter of law, that his opinion is incorrect.
If you are aware of any authority, statutory or otherwise, which would indicate a contrary conclusion, we would be happy to hear from you.

OPINION 69-479 (Unofficial)

To: Plivate Inquirer

November 17, 1969

Re: Neither the City of Savannah nor Chatham County is required to provide a Board of Tax Appeals.

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This is in response to your letter of November 7, 1969, wherein you requested certain citations pertaining to the "joint tax arrangement" of the City of Savannah and Chatham County; and, you requested an opinion as to whether or not there is any provision of the Georgia law requiring either the City of Savannah or Chatham County to provide a Board of Tax Appeals.
The Constitutional Amendment providing for such an arrangement is set out in Ga. Laws 1964, p. 986. The enabling legislation of the above Constitutional Amendment is set out in Ga. Laws 1965, p. 3354. Ga. Code Ann. 92-6912 referred to in Section 14 of the above Act deals with arbitration of an assessment.
There is no provision of Georgia law requiring either the City of Savannah or Chatham County to provide a Board of Tax Appeals. Appeal is by Ga. Code Ann. 92-6912.

OPINION 69-480 (Unofficial)

To: Private Inquirer

November 17, 1969

Re: Georgia law does not permit Twin Trailers to operate on any State highways.

You request an opinion as to whether Georgia law permits Twin Trailers to operate on any of the State highways of Georgia.
From a review of the laws and statutes applicable to types of vehicles allowed to travel on the State highways of Georgia, I can find no authority for the operation of Twin Trailers on the State highways.
Georgia law does provide, in essence, that the length of vehicles shall not exceed a total of 55 feet. Also, the maximum total gross weight of any vehicle shall not exceed 73,280 pounds. (Georgia Laws 1968, pp. 30, 31 and 33; Ga. Code Ann. 68405.)

OPINION 69-481

To: State Revenue Commissioner

November 18, 1969

Re: Corporate merger does not authorize refund of any part of annual corporate license tax.

tlris is in reply to your letter dated October 8, 1969, requesting my opinion as to whether you have authority to refund a part of

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the annual corporate license or occupation tax paid by a corporation when the corporation is liquidated or merged with another corporation before the expiration of the taxable year with respect to which the tax is imposed.
The tax to which you have reference is imposed by paragraphs 43, 44 and 45 of Section 2 of the General Tax Act of 1935. Ga. Laws 1935, pp. 11, 25-33. As amended by a number of amendatory acts, adopted at various times since 1935, these paragraphs are at present codified unofficially as Ga. Code Ann. 92-2401 thru 92-2405. Since these paragraphs amount to a full and comprehensive revision of the law on the subject, their adoption repealed the former Jaw, contained in 92-2401 thru 92-2405 of the official Code. Adams v. Cowart, 224 Ga. 210, 212 (1968); Adcock v. State, 60 Ga. App. 207 (1939). The latter sections were a codification of paragraphs 44 and 45 of Section 2 of the General Tax Act of 1927, Ga. Laws 1927, pp. 56,69-71, as amended.
Although paragraphs 43, 44 and 45 appear to impose a single tax, they actually impose two taxes, one which applies to domestic corporations and domesticated foreign corporations and one which applies to undomesticated foreign corporations. Both are corporate franchise taxes, the former being a levy on the privilege of existing as a domestic corporation or a domesticated foreign corporation, while the latter is a levy on the privilege of doing business in this State by undomesticated foreign corporations. Occasionally, these franchises are referred to as a franchise "to be" and a franchise "to do," respectively. See 16 Fletcher, Cyclopedia of Corporations, (Perm. Ed.) 6954, p. 721.
With one exception, paragraphs 43, 44 and 45 require that the taxes they impose be paid annually on a calendar year basis. However, as a result of legislative grace, they do permit a domestic corporation which obtains its charter after the first of July to pay only one half of the annual tax. In my opinion, this does not mean that any part of the annual tax should be refunded when a corporation, of its own volition, ceases to utilize its franchise before the taxable period has expired. Such a corporation could utilize the franchise for the balance of the period if it so desired. Certainly, it could not be reasonably contended that the law requiring annual fishing licenses authorizes a refund of ten-twelfths of the annual fee in the event the licensee only fishes two months out of the year.
Incidentally, it should be noted that what is referred to in your letter as a 1966 amendment to the law, Ga. Laws 1965, p. 344, represents an abortive attempt to amend the law. The Act was

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abortive in that it attempted to amend 92-2401, 92-2402 and 92-2485 of the official Code, which had been repealed by the General Tax Act of 1935. Put another way, the Act was an attempt to amend something that didn't exist.
In attempting to amend the law, the legislature was primarily interested in making the filing of corporate franchise tax returns and income tax returns more convenient. If it had been successful, it would have made a taxpayer's taxable period for corporate franchise tax purposes the same as its taxable period for income tax purposes. Taxpayers on a fiscal-year basis for income tax purposes would also be on a fiscal-year basis for corporate franchise tax purposes and returns for both types of tax would be made at the same time.
In addition, foreign corporations would be on a par with domestic corporations with respect to their tax liability for the period covered by their initial returns. Any foreign corporations commencing operations in Georgia during the latter half of a year would only be liable for one-half the annual tax.
Whether or not the legislature, by adopting the Act of 1965, attained its objectives is, however, not significant insofar as the question you have raised is concerned, for, as I see it, none of the foregoing provisions of said Act, assuming them to be effective, provides for prorating the tax under the circumstances outlined in your letter.
Therefore, in my opinion, a corporation that liquidates or merges with another corporation during a taxable year is not entitled to a refund of a pro rata part of the annual corporate license or occupation tax.

OPINION 69-482 (Unofficial)

To: United States Department of State

November 19, 1969

Re: Lease conveying an interest in real property is subject to ad valorem taxation; provision of treaty with Austria exempts Austrian Consular property.

This is in reply to your request, prompted by a note to the Department of State from the Embassy of Austria, concerning the following questions:

1. Whether any taxes are imposed by the State of Georgia on the "lease involved in the rental of real property."

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2. Whether an exemption is granted under Georgia law for foreign consular property.
Ga. Code Ann. 92-101 provides that:
"All real and personal property, whether owned by individuals or corporations, resident or nonresident, shall be liable to taxation, except as otherwise provided by law."
Moreover, Ga. Code Ann. 92-104 provides:
"All persons owning any mineral interests, or any other interest in or claim to land less than the fee shall return the same for taxation and pay taxes on the same as on other property; and any person failing to comply with the requirements of this section shall be proceeded against as a defaulting taxpayer."
It is clear from these sections that a lease conveying an interest in real property is subject to ad valorem taxation. See Whitehead v. Kennedy. 206 Ga. 760, 761, 58 S.E.2d 832, 833 (1950). However, if the instrument involved conveys no interest in property, but simply conveys a right to use the property, the "lease" is not subject to ad valorem taxation. Whitehead v. Kennedy. supra. The distinction is set forth in Ga. Code Ann. 61-101. Therefore, in reply to the first question presented, I am of the opinion that the lease of real property conveying an interest therein is subject to ad valorem taxation.
In reply to your second question, I am of the opinion that any interpretation of Georgia law is rendered unnecessary insofar as the question relates to Consular property of Austria. Article XV of the Treaty with Austria of Friendship, Commerce and Consular Rights, May 27, 1931,47 Stat. 1876,1889, provides as follows:
Lands and buildings situated in the territories of either High Contracting Party, of which the other High Contracting Party is the legal or equitable owner and which are used exclusively for diplomatic or Consular purposes by that owner, shall be exempt from taxation of every kind, National, State, Provincial and Municipal, other than assessments levied for services or local public improvements by which the premises are benefitted."
Under Article VI, Paragraph 2 of the Constitution of the United States, the treaty provision is controlling.

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OPINION 69-483

To: Insurance Commissioner

November 20, 1969

Re: Term "qualified physical therapist" includes orthoptist or orthoptic therapist.

You have been requested to resolve a dispute concerning the interpretation of the term "qualified physical therapist" as used in accident and sickness policies in force in Georgia. The problem is whether or not expenses incurred for service rendered by a practicing orthoptist constitute services rendered by a "qualified physical therapist" and thus covered under the terms of these policies. You have requested my official opinion on the following questions:

( 1) Is an orthoptist or orthoptic therapist practicing in Georgia a physical therapist as defined in Ga. Code Ann. 84-300.1? (2) Is the term "qualified physical therapist" a legal term to be determined within the context of the Georgia Code or a question of fact to be determined by reference to such person's professional art and skills?

In response to your first question, Georgia law defines "physical
therapy" as the treatment of any bodily or mental condition of any person by the use of the physical, chemical or other properties of heat, light, water, electricity, massage and active and passive exercise. Ga. Laws 1951, pp. 175, 176 (Ga. Code Ann. 84-3001). An orthoptist or orthoptic therapist is one who treats defective visual habits, defects of binocular vision and muscle imbalance (as strabismus) by re-education of the visual habits, exercise and visual training. Webster's Third International Dictionary. Comparing the work which an orthoptist or orthoptic therapist does with the definition of "physical therapy" set out above, it does appear that an orthoptist treats a bodily or mental condition by the use of active and passive exercise and would thus come within the definition of a "physical therapist" as defined by Georgia law. Your first inquiry is therefore answered in the affirmative.
In response to your second inquiry, it is fundamental that the construction of a contract is a question of law for the court. Where any matter of fact is involved, the jury should find the fact. Ga. Code Ann. 20-701. The courts of Georgia have concluded

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that the construction of ambiguous contracts is the duty of the court and the ambiguity in a contract raises no jury question unless the ambiguity remains unresolved after application of all applicable rules of construction. Farm Supply of Albany, Inc. v. Cook, 116 Ga. App. 814 (1967) quoting with approval from Davis v. United American Life Insurance Co. 215 Ga. 521(2) (1959).
While I have found no judicial decision construing the phrase "qualified physical therapist" or deciding the issue of whether this phrase is to be construed by the court rather than a jury, I believe that a court would be inclined to decide the question in favor of judicial construction rather, than determination by a jury. Ga. Code Ann. 20-702; 20-704(5); 56-2419; Davis v. United American Life Insurance Co. 215 Ga. 521 (1959); Farm Supply of Albany, Inc. v. Cook, 116 Ga. App. 814 (1967).
OPINION 69-484
To: Director, State Highway Department November 21, 1969
Re: Responsibility of Highway Department for inadequacy of soil pit.
This is in reply to your recent letter requesting an official opinion concerning participation by the Bureau of Public Roads in payment of additional expenses incurred by a roadway contractor because of increased royalties for additional soil pits and rent on areas used for haul roads to get to the soil pits.
A review of the documents and correspondence attached with your letter reveals that the original pits shown on the construction plans were, at the time of bidding, believed to be adequate to furnish the quantity and quality of borrow material to complete the project. However, the pits failed to produce the required material and the contractor was forced to pay a higher royalty on the soil pits. The State Highway Department secured additional pits at a higher royalty rate. In addition, the landowner r~quired the contractor to pay a rental or use charge for the additional land on which to construct roads to get to the new pits. Thus, under this factual situation, the Highway Department determined, pursuant to Article 4.03 of the 1966 Standard Specifications entitled "Changes in Plans or Character of Work," that the contractor was entitled to additional compensation. The Bureau of Public Roads was requested to participate in this additional compensation, but refused to do so. However, in their letter of November 5, 1969, they stated:

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"If the State does have responsibility for additional costs, such as are claimed in the case at hand, when designated sources fail to produce the expected quantity or quality of material, an official opinion to this effect should be secured from the State's Attorney General. Such an opinion would permit us to approve participation in the additional costs actually incurred in this case."
Thus, you request my official opinion on this matter. This question is controlled by the recent case of State Highway
Department v. Knox-Rivers Construction Co. 117 Ga. App. 453 (1968). In this case, Knox-Rivers Construction Company brought suit against the State Highway Department seeking damages for an alleged breach of certain provisions of the construction contract. The alleged breach was the failure of the Department, when the original soil pit shown on the plans became exhausted of material, to select an alternate soil pit and order its use by the contractor. The Highway Department contended that the contract (let under the 1956 Standard Specifications) did not require any affirmative action by the Department to locate a new source of soil when the original source failed, and that the contractor assumed this duty under the contract and had the responsibility of locating and furnishing acceptable material.
In support of this position, the Highway Department contended that certain words on the plans prevented the source from being considered a "designated source," that for such reason Section 6.01 (b) 5 of the Standard Specifications did not apply, and that no duties arose on its behalf by virtue thereof.
The Court of Appeals in making the ruling on the case, stated the following, to wit:
"In construing contracts, the fundamental rule is to ascertain and give effect to the intention of the parties. Brooke v. Phillips Petroleum Co., 113 Ga. App. 742 (2) (149 S.E.2d 511); Code 20-702. It appears from the contract, by virtue of including therein 6.01 of the Standard Specifications and Sheet 30 of the plans, which the court has noted in Division 1 was prepared in complete conformity with 6.01. that the soil pit in question was defmitely contemplated by the parties as a source of soil for the project. This, in the court's view, made the soil pit a 'designated source' within the meaning of 6.01 (b) 5 of the Specifications. This being so, it became the defendant's duty through its engineer to 'order in writing that the pit plants .be moved to another

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source selected by the Engineer' if the soil pit was rejected as alleged in the petition." (Emphasis added.)

Therefore, from what has been hereinbefore stated, the State Highway Department of Georgia does, under the conditions described in your letter, have responsibility when a soil pit, secured by the Department, fails to produce the quality or quantity of material as shown on the plans.
OPINION 69-485 (Unofficial)

To: Conference Coordinator, The University of Georgia

November 21, 1969

Re: Municipal elections, county voter registration lists.

You have requested our unofficial opinion on a problem which has arisen in an election workshop conducted by the Institute of Government. You advise that there are some municipalities whose charter provisions do not require signing of registration cards and other information which would be necessary for county registration. If a municipaJity elects to use the county voter registration lists to determine eligibility under the Georgia Municipal Election Code, as allowed by Ga. Code Ann. 34A-501(b), you wish to know whether the electors of this municipality could be added to the county registration lists if they have not shown evidence of meeting county qualifications and have not signed a registration card.
The Georgia Municipal Election Code allows the use of county registration lists as follows:

"The governing authority of any municipality may . . . provide for the registration of electors by resolution, or other appropriate measure, stating that any person who is a resident of the municipality and who is registered as an elector with the board of registrars of the county and meets the municipal residency requirement, shall be eligible to vote in a primary or election...." (Emphasis added.) Ga. Code Ann. 34A-501(b).
It appears clear from the above provision that a municipality must require registration with the county board of registrars to be eligible to vote in a municipal election if the municipality elects to

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use the county registration lists to determine this eligibility. We do not believe that Ga. Code Ann. 34A-501(a) would require a different result although on first reading it may give a different impression. Ga. Code Ann. 34A-501(a) provides in relevant part:

" ... Notwithstanding any other provision of this Chapter, any person who was qualified and registered to vote at the time of the adoption of this Code shall not be required to re-register under the terms of this Chapter unless such person shall have become or becomes disqualified to vote by reason of having been purged from a list of electors or for any other reason whatsoever. in which event, such person shall, in order to become registered to vote, re-register under the terms of this Chapter." (Emphasis added.)

The above prohibition against requiring re-registration is a conditional prohibition, not an absolute prohibition. A person may be required to re-register if he becomes disqualified to vote for any reason whatsoever. Previous Attorney General's opinions (Opinions of The Attorney General Construing The Georgia Election Code Nos. E-48. E-58) have decided that county registrars have the duty to require a voter to sign a registration card and provide the necessary information as a condition to eligibility while noting that the registrars have the duty to reexamine the qualifications of any elector whose registration card does not have the necessary information. See also Ga. Code Ann. 34-627; 34A-519.
Because of the above provisions of law, and because we do not believe the General Assembly intended to allow a voter to be placed on the county registration list without furnishing the required information, it is our unofficial opinion that if a municipality elects to use the county voter registration lists to determine eligibility under the Georgia Municipal Election Code, the municipality must require registration with the county board of registrars to be eligible to vote.

OPINION 69-486 (Unofficial)

To: Conference Coordinator, The University of Georgia

November 24, 1969

Re: Criteria determining change of voter's residence.

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You state that one of the questions most frequently asked in election workshops concerns what criteria registrars should consider as "other acts indicating a desire to change his citizenship and residence" under Ga. Code Ann. 34-632(b). You have requested our advice in the matter.
Ga. Code Ann. 34-632 contains the general rules for determining residence of a person desiring to register to vote. As you know, residence in the Georgia Election Code means domicile. Ga. Code Ann. 34-103(aa). Ga. Code Ann. 34-632(b) provides as follows:
"A person shall not be considered to have lost his residence who leaves his home and goes into another state, or county in this state, for temporary purposes only, with the intention of returning, unless that person shall register to vote or perform other acts indicating a desire to change his citizenship and residence; ...."
It is important to remember that the above subsection is concerned with a person who admittedly is going into another state for temporary purposes only, with the intention of returning to Georgia. Since these circumstances ordinarily would not be sufficient, by themselves, to indicate a desire to change one's citizenship and residence, the "other acts" should be of considerable gravity to overcome the presumption of domicile in Georgia. See Ga. Code Ann. 79-406.
With the above precautions in mind, it is often stated that an oath or declaration by the voter that he is domiciled in another jurisdiction is something which a registrar can consider in this problem. This type of declaration in a deed, will, insurance policy, letter, mortgage or other similar instrument could be useful in arriving at a determination. However, we would caution you that declarations of intention are easily outweighed by actual facts and if a declaration of intention is contradicted by a specific fact which cannot be otherwise explained, then the declaration should usually be discounted. 25 Am. Jur.2d, Domicil, 89, 92-93; 28 C.J.S., Domicile, 17-18.
Another criterion would be the exercise of a political right such as running for office in another domicile or serving on a grand or petit jury. 25 Am Jur. 2d, Domicil, 94; 28 C.J.S.,Domicile, 17-18. If the elector pays taxes in another domicile which are assessable usually at the taxpayer's domicile rather than merely at the situs of the transaction, then such payment would be a fact to consider. If the state in which the elector is located requires a

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business permit for citizens, driver's licenses or motor vehicle tags and the elector makes application for one of these, then certainly these facts could be considered. 25 Am. Jur.2d, Domicil, 95; 28 C.J.S., Domicile, 17-18. However, the foreign state's law should be checked to make certain it does not require anyone located in the state beyond a certain period of time to purchase a license or registration tag since this act would merely be complying with the state's laws rather than indicating a desire to change one's domicile. See Note, "Evidentiary Factors in the Determination of Domicil," 61 Harvard Law Review 1232 (1948).
Each case must be decided on its own facts. To attempt to set out general guidelines is an admirable endeavor, but it is fraught with the danger of applying mechanistic guidelines to a difficult and fluid situation. We would further recommend that the guides set out generally in Ga. Code Ann. 34-632 be studied and considered at length since they are very helpful expressions of legislative intent in this area.

OPINION 69-487 (Unofficial)

To: Justice ofthe Peace

November 24, 1969

Re: Justices of the peace outside City of Atlanta are forbidden to issue a warrant for crime taking place in Atlanta.

This will acknowledge your recent letter wherein you asked if a justice of the peace in a Fulton County District (outside the City of Atlanta) is forbidden to issue a warrant for a crime taking place in the area of Atlanta that is in Fulton County.
Ga. Laws 1913, p. 145, established the Municipal Court of Atlanta (now the Civil Court of Fulton County) and abolished the office of Justice of the Peace within the City of Atlanta. Ga. Laws 1913 at 146. Additionally, the General Assembly provided that "[A]ny Constable of any Justice Court of the State of Georgia, exercising or attempting to exercise jurisdiction within the limits of the City of Atlanta, ... or serving or executing or attempting to serve or execute .any suit, paper, process or writ, ... [would be in] contempt of the Municipal Court of Atlanta ...." Ga. Laws 1913 at 176. However, the General Assembly, although limiting the scope of auth,ority of constables, did not limit the authority of justice of the peace courts outside the City of Atlanta.
In 1918, the General Assembly amended Ga. Laws 1913, pp. 145, 176, and provided that "[A]ny justice of the peace or any

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notary public ex-officio justice of the peace issuing any process, warrant, suit or writ of any kind or character to be executed within the limits of the City of Atlanta, [would be] in contempt of the Municipal Court of Atlanta." Ga. Laws 1918, pp. 348,352. It is not unreasonable to presume that Ga. Laws 1918, pp. 348, 352, was passed as a result of the failure of the General Assembly in 1913 to limit the scope of authority of justice of the peace courts outside the City of Atlanta whereas the authority of constables was specifically limited. In construing any statute it is, of course, necessary to consider the intention of the General Assembly, Ga. Code Ann. 102-102(9), Lamons v. Yarbrough. 206 Ga. 50 (1949), and it is this writer's opinion that it was the intention of the General Assembly in 1918 to limit the authority of justices of the peace as it did for constables in 1913.
Therefore, it is my unofficial opinion that justices of the peace outside the City of Atlanta are forbidden to issue a warrant for a crime taking place in the area of Atlanta that is in Fulton County.
OPINION 69-488 (Unofficial)

To: Private Inquirer

November 24, 1969

Re: Definition of County Attorney or employee.

This is in response to your request for an opinion concerning whether a member of a municipal or county planning commission created pursuant to Ga. Laws 1957, pp. 420, et seq., as amended (Ga. Code Ann. Ch. 69-12) may simultaneously serve as a director of a municipal or county development authority created pursuant to Ga. Laws 1969, pp. 137, et seq.
Section 3 of Ga. Laws 1969, pp. 137, 140, provides, in part, that:

"No director [of the Development Authority] shall be an officer or employee of the county or municipal corporation."

The issue presented is whether a member of a municipal or county planning commission is an "officer or employee of the county or municipal corporation" within the meaning of Section 3 of Ga. Laws 1969, pp. 137, 140.
Section 1 of Ga. Laws 1957, pp. 420, 421, as amended (Ga. Code Ann. 69-1201) provides that the members of a municipal or county planning commission shall be appointed by the

688
governing authority creating the commission. The members serve a specified term, and may be removed for cause after written notice and public hearing.
The term "officer" can be used in a variety of contexts, and it is very difficult at times to determine whether a person occupying a position is an "officer" within the meaning of a statute. Any person who has a designation or title given him by law, who is appointed by the government under expressed or implied legal authority, and who has some duty to perform concerning the public, is a "public officer." Bradford v. Justices of the Inferior Court, 33 Ga. App. 332 (1862);Polk v. James, 68 Ga. 128 (1881); Wiley v. Sparter, 154 Ga. 1, 14 (1922). But all "public officers" are not "county officers" within the meaning of that term as used in some statutes. Employees Retirement System v. Lewis, 109 Ga. App. 476 (1964). The qualifications for "county officers" are set forth in Art. XI, Sec. II, Par. I of the Constitution (Ga. Code Ann. 2-7901), .but certain positions not meeting this constitutional standard have been categorized as statutory "county offices." Marshal v. Walker, 183 Ga. 44 (1936); see Rhodes v. Jernigan, 155 Ga. 523 (1923); Culbreth v. Cannady, 168 Ga. 444 (1929). A position which is not a constitutional or statutory "county office" can still come within the definition of a "public office." Employees Retirement System v. Lewis, supra.
Because Section 1 of Ga. Laws 1957, pp. 420,421, as amended (Ga. Code Ann. 69-1201) provides that amemberofaplanning commission may be removed only "for cause after written notice and public hearing," it appears that a member of a planning commission would not be considered an "employee" as that term is generally used. And it is obvious that, in the case of a county planning commission, the members of the commission would not be "county officers" within the meaning of that term as used in Art. XI, Sec. II, Par. I of the Constitution (Ga. Code Ann. 2-7901) because the qualifications therein set forth include election by the qualified voters of the county.
However, it does appear that a member of a municipal or county planning commission would be a "public officer" within the above-stated judicial definitions of that term.
But the question remains as to whether a member of such a planning commission is "an officer ... of the county or municipal corporation" within the meaning of Section 3 of the "Development Authorities Law" (Ga. Laws 1969, pp. 137, 140).
Because the statutes involved do not provide an answer to the question presented, and because no clear answer is suggested by legal analogy, we cannot render an opinion one way or the other.

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But it is hoped that the above discussion will be helpful to you in advising the county for which you made this request.
Finally, it is noted that you commented in your request about the practical value of having a member of the planning commission on a local development authority. In view of this feeling, and in view of the uncertainty presented by the legal question involved, perhaps the General Assembly should be asked to amend the "Development Authorities Law" and define "officer or employee of the county or municipal corporation" as that phrase is used in Section 3 of the Act.
OPINION 69-489 (Unofficial)

To: County Attorney

November 26, 1969

Re: County Board of Education use of funds for survey to define area of responsibility.

This responds to your letter of November 6, 1969, requesting an unofficial opinion of the Attorney General on whether or not the Bleckley County Board of Education legally may share with the City of Cochran the cost of a survey to locate the city limits of the City of Cochran so as to define and delineate the respective areas of jurisdiction of the Bleckley County and City of Cochran school systems.
The essential question posed is whether or not the contemplated expenditure of county school funds would be "for educational purposes." Wright v. Absalom, 224 Ga. 6, 8 (1968) (State taxes). As in the Wright case, the question appears to be debatable; the answer uncertain for lack of judicial precedent.
Arguably, the expenditure could be considered a facet of the county board's power and obligation to enforce the compulsory school attendance laws, Ga. Code Ann. 32-2107, or an aspect of
the board's power to assign pupils among the schools under its jurisdiction. Op. Atty. Gen. 1950-51, pp. 41, 272, 273; 1960-61, p. 142. The board, the argument would go, cannot assign a pupil to school and enforce his attendance unless it knows whether he resides within the portion of the county lying outside the municipal independent school district.
An equally, if not more, attractive argument can be made that the county board has the obligation to educate only those children who reside in that portion of the county "exlusive of any independent school system now in existence," Ga. Code Ann.

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2-6801, and, hence, that it is the obligation of the city to determine, and pay the cost of determining, its municipal limits. The mere fact that the county system derives a benefit from knowing the exact location of the line may not suffice to allow it to share in the cost of the line finding survey. Op. Atty. Gen. 1952-53, p. 341 (County tax survey may not be partially funded from county school funds.); Op. Atty. Gen. 1958-59, p. 128 (Cost of collecting delinquent taxes may not be partially defrayed from county school funds.).
I am of the opinion I should decline to give either an affirmative or negative answer unless you can point out to me some provision of law which more clearly would light the path toward certainty.
OPINION 69-490
To: Director, Department of Public Safety November 26, 1969
Re: Uninsured motorist coverage does not exempt driver from Georgia's Motor Vehicle Safety Responsibility Law.
By letter dated November 13, 1969, you asked if one is exempt from the Motor Vehicle Safety Responsibility Law (Ga. Code Ann. Ch. 92A-6) if the aggrieved, complaining party has "uninsured motorist" insurance coverage.
The exceptions or exemptions from the provisions of the Motor Vehicle Safety Responsibility Law are explicitly set forth in Ga. Code Ann. 92A-605(c) and 92A-606. Neither of these Code sections provides an exemption for one simply because of his claimant's having "uninsured motorist" insurance coverage.
It is my official opinion that one is not exempt from the provisions of Georgia's Motor Vehicle Safety Responsibility Law because his claimant was insured against uninsured motorists.
OPINION 69-491
To: Director, State Highway Department November 26, 1969
Re: Highway official may be the custodian of original contracts and right-of-way deeds.
This opinion is written to you in response to an inquiry of recent date from Mr. W. M. Williams, Secretary and Treasurer of the Georgia Highway Authority, requesting my opinion on the following question:

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"May the Georgia Highway Authority designate the State Highway Engineer as the custodian of the original contracts and right-of-way deeds of the Georgia Highway Authority? "
It is my opinion that this question can be answered in the affirmative, assuming that the State Highway Board is willing to require the State Highway Engineer to perform this function as part of his official duties.
The Georgia Highway Authority Act, Ga. Laws 1967, p. 385 (Ga. Code Ann. Ch. 95-23), created the Georgia Highway Authority and gave to the Authority, among other responsibilities, the power and duty to "cause to be kept adequate books and records of all transactions of the Authority ...." Ga. Laws 1967, pp. 385, 388 (Ga. Code Ann. 95-2302 (c)). This statutory provision by its use of the wording "cause to be kept," leaves within the discretion of the Authority the manner of accomplishing this duty. It is obvious that it does take cognizance of the fact that the Authority will either employ certain personnel to keep these books and records or will expend its funds in seeing that they are in fact kept. The original contracts and right-of-way deeds of the Authority would certainly come within the statutory language "books and records of all transactions of the Authority."
Section 4(d) of the above-noted Act provides that the Authority shall have the power:
"To make such contracts and agreements as the legitimate and necessary purposes of this act shall require, ... and to make all other contracts and agreements as may be necessary to the proper performance of any action permitted hereby." Ga. Laws 1967, pp. 385, 392 (Ga. Code Ann. 95-2304(c)).
It is my opinion that through the use of this power, the Authority could enter into an agreement with the State Highway Board for the keeping of these documents. The Board could then, in turn, establish as one of the duties of the State Highway Engineer that he be the custodian of the original contracts and right-of-way deeds of the Georgia Highway Authority by virtue of Ga. Code Ann. 95-1607 which provides that the State Highway Board shall prescribe and fix the duties of the State Highway Engineer.

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OPINION 69-492

To: Superintendent of Banks

November 26, 1969

Re: Fees paid to Secretary of State for Bank Charters are same as other corporations.

This will acknowledge your letter dated November 4, 1969, whereby you made the following inquiry:

We will appreciate your opinion as to whether Section 22-4701 of the Georgia Business Corporation Code, adopted at the 1968 session of the General Assembly, relating to fees paid to the Secretary of State for filing of documents and the issuing of certificates, supersedes or repeals the portions of Sections 13-901 and 13-1 002 of the banking laws of Georgia which specify the amounts of such fees in connection with bank charters.

By Ga. Code Ann. 13-901, provision is made that a filing fee of $50.00 is to accompany the application to the Secretary of State for a banking corporation charter. Also, by Ga. Code Ann. 13-1002, provision is made that upon the filing of an application for an amendment to a banking charter, a fee of $25.00 shall be paid to the Secretary of State.
In 19 6 8 , the General Assembly of Georgia enacted a comprehensive revision of the corporate laws of Georgia. See: Ga. Laws 1968, p. 565. By said Act, the new Corporate Code was to become effective on April 1, 1969. Prior to said Code becoming effective, the 1969 General Assembly of Georgia amended some provisions of said Code. See: Ga. Laws 1969, p. 152.
Ga. Laws 1968, pp. 565, 817 (Ga. Code Ann. 22-4701) sets forth the fees to be charged by the Secretary of State for filing documents concerning those corporations the charters of which are granted by the Secretary of State.
Orally, you have indicated to this Office that the question that you have raised results from a 1969 amendment to the Georgia Corporation Code. Ga. Laws 1969, pp. 152, 195 (Ga. Code Ann. 22-4801).
Although I have found no specific provisions in either the 1968 or 1969 statutes enacting the Georgia Corporation Code which repealed Ga. Code Ann. 13-901 and 13-1002, it is my official opinion that those provisions of said Ga. Code Ann. 13-901 and 13-1 002 relating to the fees to be charged by the Secretary of

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State for his duties relating to banking corporations were repealed by the new Georgia Corporation Code.
In both the 1968 and 1969 enactments, a general repealer clause is found. Ga. Laws 1968, pp. 565, 826; 1969, pp. 152, 205.
Although the repeal of a former law by implication through the provisions of a subsequent statute is not favored when the provisions of the two statutes are in contradiction, such inconsistent legislation cannot stand. Martin v. State, 75 Ga. App. 8 0 7 (1) (1947). In case of irreconcilable conflicts, the law containing the latest expression of the legislature prevails. Cairo Banking Co. v. Ponder, 131 Ga. 708 (1908). Finally, in construing legislation, the intent of the legislature is controlling. Sharpe v. Lowe, 214 Ga. 513 (1959).
Therefore, it is my official opinion that the General Assembly of Georgia intended by Ga. Code Ann. 22-4701 to provide uniform fees to be charged by the Secretary of State for his duties relating to the corporations which are chartered by the Secretary of State. You will note that Ga. Code Ann. 22-4801 states that " ...Part III ... supplements the express provisions of existing statutes governing banking, insurance, railroad, canal, navigation, express, and telegraph companies." The Random House Dictionary (Unabridged Ed. 1966) defines "supplement" as follows:
"Something added to complete a thing, supply a deficiency, or reinforce or extend a whole."
Said Dictionary also states that synonyms of said term are:
"reinforcement, extention, addition, complement."
Certainly, within the realm of fees, Ga. Code Ann. 22-4701 is an extention and an addition and, combined with the repealer clause which repeals conflicting laws or parts of laws, it is my official opinion that Ga. Code Ann. 22-4701 sets the fees to be charged by the Secretary of State for his duties( relating to those corporations chartered by the Secretary of State, including banking corporations.

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OPINION 69-493

To: Director Surface Mined Land Use Board

December 1, 1969

Re: Administrative Procedure Act-Contested cases requirements not applicable to sanctions for mining without a license.

By letter dated October 16 you requested my opinion as to the proper procedure for initiating action with respect to certain surface miners who have failed to apply for and obtain licenses from your Board. Specifically, you are concerned about the contested-cases requirements of the Georgia Administrative Procedure Act as they relate to the necessity for a hearing and an order of compliance as a condition precedent to the initiation of litigation or the preferring of criminal charges.
Subject to the exception set forth in section 12 of the Georgia Surface Mining Act of 1968, Ga. Laws 1968, pp. 9, 19, all persons engaged in surface mining within the territorial limits of this State are required to apply for and obtain a license. Georgia Surface Mining Act of 1968, 3(a), Ga. Laws 1968, pp. 9, 11.
The Board's authority to initiate action with respect to non-licensed surface mining is found in section 5(1) of the Georgia Surface Mining Act of 1968, Ga. Laws 1968, pp. 9, 16. Therefore, it is my opinion that no order to an unlicensed surface miner need be issued as a prerequisite to judicial enforcement of the Act.
You are cautioned that this opinion is strictly limited to those situations where a surface miner has failed to secure a license to cover his particular activity. In such a case there is no need for administrative decision-making beyond mere recognition of the noncompliance with the statutory requirements. A very different situation will prevail should you attempt to revoke a license previously issued or to exercise any other powers under section 5(e), Ga. Laws 1968, pp. 9, 15.

OPINION 69-494

To: Director, State Highway Department of Georgia

December 4, 1969

Re: Eminent Domain-Special Master has no authority to order State to pay taxes on condemned property.

This opinion is written to you in response to a letter of recent

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date from Mr. Emory C. Parrish, Executive Assistant Director of the State Highway Department, requesting my opinion as to the authority of the Special Master in a condemnation case to order the State to pay city and county taxes for the proportionate share of the real property taxes which accrue subsequent to the date upon which the power of eminent domain is exercised. Mr. Parrish indicates in his letter that, in a condemnation case of recent date, the award of the Special Master states: "Condemnee to pay all taxes for January and February, 1969. Condemnor to pay all taxes for balance of 1969." It is my opinion that Ga. Code Ann. Ch. 36-6A, which provides for the method of exercising the power of eminent domain by using the Special Master, provides no authority for the Special Master to require the State to pay such taxes as an item of damages in this type of condemnation case.
The duties of the Special Master are set out in Ga. Code Ann. 36-611a (Ga. Laws 1957, pp. 387, 394).
Turning now to the above-referenced Code Sections (Ga. Code Ann. 36-502 through 36-506), I fmd that only Ga. Code Ann. 36-504 would be applicable to the problem at hand. This particular Code Section provides:
"The assessors, or a majority of them, shall assess the value of the property taken or used, or damage done, and shall also assess the consequential damages to the property not taken, and deduct from such consequential damages the consequential benefits to be derived by the owner from the operation of its franchise by the corporation, or by the carrying on of the business of the corporation or person taking or damaging the property: Provided, the consequential benefits assessed shall in no case exceed the consequential damages assessed: Provided, further, that nothing in this section shall be so construed as to deprive the owner of the actual value of his property so taken or used." Ga. Laws 1894,p.97.
With the above-noted provisions in mind, and applying the general principles of the law of eminent domain, I fmd that it is the responsibility of the Special Master to establish the value of the property condemned, and nothing more. That is, his duty is to assess the value of the property taken or damaged, and also to assess the consequential damages and benefits to the property not taken. Under the law of eminent domain as it now exists in this State, the payment of city or county taxes is not a proper element of damages in a condemnation case. The payment of property

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taxes is a responsibility of the landowner only so long as he, in fact, owns the property. Thus, the property owner or condemnee would be responsible for payment of taxes up to the date of taking. After that time, the responsibility for the payment of these taxes would lie upon the condemning body, if in fact that body is an entity which would have the responsibility for payment of these taxes. All public property, however, is exempt from taxation by virtue of Ga. Code Ann. 92-201.
The Special Master no doubt ordered this payment since it is an item which must be reimbursed by the State under the Highway Relocation Assistance Act (Ga. Laws 1969, p. 495), which provides that the State Highway Department is the agency to make the payments required by Chapter 5, Title 23, United States Code. Section 507 (a) of the latter Act provides, in pertinent part:
" ... the State shall reimburse the owner of real property acquired for a project for reasonable and necessary expenses incurred for ... (3) the pro rata portion of real property taxes paid which are allocable to a period subsequent to the date of vesting of title in the State, or the effective date of the possession of such real property by the State, whichever is earlier."

These real property taxes are not, however, to be considered as an item of damage in a condemnation case. Section Six of the Highway Relocation Assistance Act, supra, makes this abundantly clear by providing unambiguously:

"Nothing contained in this Act shall be construed as creating in any condemnation proceeding brought under the power of eminent domain, any element of damages." Ga. Laws 1969, pp.495,497.

This is a clear expression of the legislative intent that the payment of these taxes is to be provided for by methods other than the condemnation proceeding.

OPINION 69-495 (Unofficial)

To: Senator, Sixth District

December 8, 1969

Re: General Assembly is authorized to provide for membership by nonresidents on the Georgia Tobacco Advisory Board.

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This is in reply to your recent letter in which you asked whether citizens of Florida could serve on the Georgia Tobacco Advisory Board (Ga. Code Ann. 111-208). I understand your inquiry to be directed toward the validity of possible amendatory legislation authorizing such nonresident membership rather than whether such membership is permissible under the present law, which is very explicit as to the constitution of the Advisory Board.
It is provided in Ga. Code Ann. 89-101 that nonresidents of this State are ineligible to hold any "civil office." Without deciding whether or not a member of the Tobacco Advisory Board is the holder of a civil office, it is sufficient to say that since this ineligibility is the product of legislative enactment, the Legislature is empowered to change or amend it unless prohibited from doing so by some provision of the Constitution.
The Constitution of Georgia provides residency requirements for certain enumerated public officers, but I find no such requirement for membership on a board or commission which is created by act of the General Assembly. It is therefore my opinion that the General Assembly is authorized to provide for membership by nonresidents on the Tobacco Advisory Board.

OPINION 69-496

(Unofficial)

To: Charlton County Tax Commissioner

December 8, 1969

Re: Tax Commissioner on a salary basis is entitled to commissions provided for in a later enactment.
This is in reply to your letter of November 13, 1969, in which you requested advice from this office concerning the commissions you might be entitled to as Tax Commissioner under existing statutes.
The office of Tax Commissioner was created by legislation adopted in 1964 and that Act provided that the Commissioner was to receive an annual salary of $7,500 for the performance of that job. It also provided that the Act which provides that commissions on tax in excess of certain percentages, according to the tax net digest, was not to be paid to the Tax Commissioner.
Your request relates specifically to the commissions provided for collections in excess of 90% of the total taxes due according to the tax net digest. Ga. Code Ann. 92-5304. Your Local Act

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specifically provides that you are not entitled to these commissions. Ga. Laws 1964, p. 2459.
The General Assembly in 1965 amended the law with respect to Tax Commissioners' commissions on taxes collected in excess of 90% of the total taxes due and provided that:

" ... Except as hereinafter provided, the Tax Collector or Tax Commissioner shall be entitled to and shall receive such commissions even though he is paid on a salary basis. In those counties where the Tax Collector or Tax Commissioner is paid on a salary basis, and said salary is $8,000.00 or more per annum, the Tax Collector or Tax Commissioner shall not be entitled to the commissions...."

The latest expression of the General Assembly governs with respect to the questions raised in your letter. Clark v. Kaylor. 219 Ga. 25 6 (1963). The 1965 Act, being the latest expression on this subject, provides that you are entitled to the commissions of 10% of the taxes collected in excess of 90% of total taxes due as your salary is less than $8,000.00 per year.

OPINION 69-497

(Unofficial)

To: County Attorney, Bleckley County

December 8,1969

Re: There is no general statute setting forth the times that the offices of the following officials must be open: Clerk of the Superior Court, Tax Collector, Tax Receiver, Sheriff, County School Superintendent or County Commissioner; the Ordinary's office is controlled by Ga. Code Ann. 24-2104.

You have requested our unofficial opinion on whether there is any statute of general application setting forth the legal number of days per week and the hours per day that the offices of the following officials must be open: Clerk of the Superior Court, Tax Collector, Tax Receiver, Sheriff, County School Superintendent, County Commissioner and Ordinary. You indicate that as far as you can determine, there is no statute setting forth the times that any of these offices must be open, with the exception of the office of the Ordinary.
We have been unable to find any statute of general application which sets forth the time that the above-named offices must be

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open except for the office of Ordinary. The Ordinary may transact business at any time except Sunday and he may close his office not more than one other day in each week. Ga. Code Ann. 24-2104.
As you realize, each of these officers has duties to perform which are entrusted to him by law. Whether or not there is a statute which requires the particular office to be open at specific times, it is clear that the officers must keep their offices open at sufficient times to discharge their duties. Ga. Code Ann. 64-101.
Your inquiry is therefore answered inthe negative and we trust this information will be useful to you.

OPINION 69-498

To: Commissioner of Agriculture

December 8, 1969

Re: Warehouseman's Insurance-The insurance requirement imposed upon a warehouseman by Ga. Code Ann. 111-520 is not satisfied by obtaining a policy issued under the Surplus Lines Insurance Law. If the products are stored by the warehouseman for "other than producers," the foregoing section does not require insurance.

This is in reply to an inquiry received from the Director, Warehouse Division, as to whether or not a certain insurance policy tendered by a warehouseman storing cotton satisfies the insurance requirements of the Georgia State Warehouse Act.
The pertinent section of the Act, Ga. Code Ann. 111-520, provides, in part, that a warehouseman storing cotton for producers shall keep said cotton insured at full market value against loss or damage by fire and lightning, unless the producer storing the cotton relieves the warehouseman of that duty by notifying him in writing that the producer does not wish his product insured. The section further provides that the insurance shall be carried in an insurance company or companies of the warehouseman's choice "authorized to do business in this State."
The policy in question has imprinted on its face the legend:

"This contract is registered and delivered as a surplus line coverage under the surplus line insurance law and this (these) insurers is (are) not authorized to do business in Georgia."

It is my opinion that the requirement of Ga. Code Ann. 111-520 that the policy be issued by a company "authorized to do business in this State" is mandatory. Where a statute is clear and

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unambiguous, it must be taken to mean what has been clearly expressed, and no occasion for construction or interpretation of the statute exists. Board of Tax-Assessors v. Catledge, 173 Ga. 656 (1931).
Although the provisions of the Surplus Lines Insurance Law, Ga. Code Ann. 56-613 through 56-628, give validity to a policy so obtained, that law does not transform an unauthorized insurer into an authorized insurer. See Akron Company v. Fidelity General Insurance Company, 229 F. Supp. 397 (N.D. Ohio 1964). Had it been the intent of the General Assembly that this type of policy be acceptable, it would have been a simple matter to have so stated, since at the time the Georgia State Warehouse Act was enacted, there was in effect in this State the Exces;; Insurance Agents Law, Ga. Laws 1949, p. 1201, which was similar in its provisions to the Surplus Lines Insurance Law.
With regard to agricultural products stored for "other than producers," Ga. Code Ann. 111-520 provides that the insurance requirements of the Uniform Warehouse Receipts Act shall apply. The insurance provision of that Act, Ga. Code Ann. 111-402, was vague from its inception, and merely stated that the warehouseman's insurance obligation should remain "as now provided by law."
However, the insurance provision of the Uniform Warehouse Receipts Act was repealed by the Uniform Commercial Code, Ga. Laws 1962, p. 156, and no comparable provision was enacted.
It is therefore my opinion that since the policy in question was not issued by an insurance company authorized to do business in this State, it does not satisfy the insurance requirements of Ga. Code Ann. 111-520 to the extent that the warehouseman is storing cotton for producers. It is my further opinion that the Georgia State Warehouse Act does not require insurance on agricultural products stored by a warehouseman for "other than producers."

OPINION 69-499 (Unofficial)

To: Jeffersonville City Attorney

December 9, 1969

Re: Convalescent patient does not gain residence for voting purposes.

You have requested our unofficial opinion on whether certain patients who are presently staying at a local medical care home

701

have acquired a residence to enable them to vote in an upcoming city election. You advise that these patients are on a convalescent status from the Central State HospitaL For the purposes of this opinion, we assume that these patients originally resided in municipalities other than the one in which they are presently staying and we also assume they have been officially adjudged mentally ill by a court. We understand that in a great majority of the actual cases, these assumptions are correct.
Residence under the Georgia Municipal Election Code means domicile. Ga. Code Ann. 34A-103(ab). In determining the residence of a person under the Georgia Municipal Election Code, the rules set forth in the Georgia Election Code shall be followed. Ga. Code Ann. 34A-523. The Georgia Election Code provides that if a person is adjudged mentally ill and is committed to an institution for the mentally ill, he shall not be considered to have gained a residence for voting purposes in the county in which the institution to which he is committed is located. Ga. Code Ann. 34-632(k).
An examination of the Georgia law indicates that a patient on convalescent status from a psychiatric hospital remains under the hospital's jurisdiction and controL The superintendent of the hospital from which the patient is given convalescent status may at any time rehospitalize the patient without further proceedings. Ga. Code Ann. 88-512. It therefore appears, at least for purposes of the Georgia Election Code, this patient should be considered to remain committed to an institution for the mentally ill and the provisions of Ga. Code Ann. 34-632(k) would obtain.
Georgia law also provides that a person mentally ill cannot, by any act of his, effect a change of his own domicile. Ga. Code Ann. 79-405; 79-407. Stanfield v. Hursey, 36 Ga. App. 394, 136 S.E. 826 (1927).
It is therefore our unofficial opinion that a person who was
adjudged mentally ill and is living in a medical care home on a convalescent status is not considered to have gained a residence in that municipality for voting purposes.

OPINION 69-500 (Unofficial)

To: Clayton County Hospital Authority

December 10, 1969

Re: Hospital Authority may deposit funds exceeding F .D.LC. insurance if depository gives bond.

702
Please refer to your letter of November 21, 1969, wherein you request my unofficial opinion as to whether the Clayton County Hospital Authority has the right to deposit certain funds of the Authority in a local Clayton County bank or banks when the amount of the funds so deposited may exceed F .D.I.C. insurance on the account.
With regard to the deposit of funds at interest in any chartered State bank, Ga. Code Anp.. 88-1820 authorizes hospital Authorities " ... to invest all moneys, or any part thereof received by them . . . from contributions or gifts received by the Authorities which cannot be immediately used for the purpose for which received, in any security or securities which are legal investments for sinking fund purposes ...." (Emphasis added.)
Although the "Hospital Authorities Law" (i.e., Ga. Laws 1964 p. 499; Ga. Code Ann. Ch. 88-18) fails to define "legal investments," it is helpful to note that Ga. Code Ann. 108-417, dealing with investments by trustees, and Ga. Code Ann. 113-1528, dealing with investments by executors and administrators, provide that the " ... deposits of funds at interest in any chartered state or national bank or trust company, located in this State, and which is insured by the Federal Deposit Insurance Corporation, shall. be deemed investments, and such deposits are authorized as legal investments, to the extent that -aid deposits are insured by the said Federal Deposit Insurance Corporation, without any order or authority from the court."
Therefore, with regard to the deposit of funds by a hospital Authority at interest in any chartered State bank, it is my unofficial opinion that such deposits are authorized as legal investments to the extent that said deposits are insured by the Federal Deposit Insurance Corporation. Any such deposits not so insured would not be considered "legal investments," and a hospital Authority would not, therefore, be authorized to invest funds in this manner.
Turning now to the deposit of funds by a hospital Authority not at interest, Ga. Code Ann. 89-810 reads in relevant part:
"It shall be the duty of every collecting officer and every officer to hold public money, upon any monev belonging to any public body coming into its hands, promptly to deposit the same in a bank or depository as hereinafter stated ...."
Furthermore, Ga. Code Ann. 89-812 requires an officer depositing public funds to ". . . require the depository to give bond or make deposit of securities in trust to secure such deposits as may be made in it ...."

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Since a hospital Authority is defined by Ga. Code Ann. 88-1802 (a) as " ... any public corporation created by Ga. Code Ann. 88-1803 of this Chapter," and since a hospital Authority is considered to perform State governmental functions, see Op. Atty. Gen. 1965-1966, pp. 511,512, it is my unofficial opinion that the collecting officer or officer holding the funds of a hospital Authority may deposit funds of the Authority in a local bank or banks notwithstanding the fact that the amount of the funds so deposited may exceed F .DJ.C. insurance on the account, if the Authority requires the depository to give bond or make deposit of securities in trust to secure such deposits, pursuant to Ga. Code Ann. 89-810,89-812.

OPINION 69-501

To: State Planning Officer

December 12, 1969

Re: Use of "State Assistance Fund" to match Federal funds.

This is in response to your request for an opinion whether the "State Assistance Fund," as authorized by Ga. Laws 1969, p. 855, may be utilized to match Federal funds in addition to those appropriated under the "Land and Water Conservation Fund Act of 1965," 16 U.S.C.A. 460L-5, et seq.
Two of the three substantive sections of Ga. Laws 1969, p. 855 specifically mention the "Land and Water Conservation Fund Act of 1965." However, section 2 which authorizes the establishment of the "State Assistance Fund" omits any such reference and simply provides that it may be used "to match Federal, city and county funds to acquire lands for recreational purposes. . . ." There is no explicit limitation as to the source of the Federal funds to be matched.
The meaning of the legislature is to be ascertained from the words of the particular clause under consideration, taken together with the whole Act; if the meaning still be doubtful, resort may be had to the subject matter. McLeod, et al. v. Burroughs, 9 Ga. 213 ( 1850). When words are of doubtful meaning in the application of a statute, the subject matter ......ay dissolve the doubt and fix their meaning so as to make it harmonize with the object of the legislation. Ragland v. The Justices of the Inferior Court, 10 Ga. 65 (1851).
In my estimation, the purpose of Ga. Laws 1969, p. 855 was to provide a method for the implementation of the "Land and Water Conservation Fund Act of 1965." It is, therefore, my official

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opmwn that the "State Assistance Fund" may not be used to match Federal funds provided under any other act.
OPINION 69-502

To: Director, Merit System

December 12, 1969

Re: State Personnel Board may promulgate a regulation allowing any State employee to withdraw from Health Insurance Program.

This is in response to your recent letter wherein you ask whether the State Personnel Board can promulgate a regulation providing for the withdrawal from the State Health Insurance Program of certain State employees who judge themselves subjected to undue disadvantage and hardship by continued membership therein.
Th"' State Employee Health Insurance Plan Act (Ga. Laws 1961, p. 147, as amended; Ga. Code Ann. 89-1201 to 89-1214, as amended) provides inter alia in Section 7 that the State Personnel Board ". . . shall adopt regulations prescribing the conditions under which an employee or retiring employee may elect to participate in or withdraw from the plan." (Emphasis added.) It should be made clear at this point that the Personnel Board referred to is the same Board created by Article XIV of the Georgia Constitution and empowered and authorized in Article 3 of the State Employee Health Insurance Plan Act " ... to establish a health insurance plan for employees of the State of Georgia...."
The foregoing would seem dispositive of your inquiry were it not for the language of Section 15 of the same Act, which reads in relevant part:

"All persons who become State employees as defined in this Act, on or after the 'employer commencement date' (which has now passed), and who are eligible as specified by Rules and Regulations of the Board, shall, as a condition of their employment become members of this health insurance program ...."(Parentheses added.)

This appears to make membership in the Health Insurance Program an unequivocal condition of employment by the State. Notice that the mandatory "shall" is used rather than the permissive word "may."
One of the cardinal rules of statutory construction is that when two parts of :::t single act are conflicting, the latest in position

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should be followed as it is presumed to be the last expression of the legislative will. [See, e.g., Tyler v. Huiet, Commissioner of Labor, 199 Ga. 845, 36 S.E.2d 6358 (1945); Darby v. Deloach, 190 Ga. 499, 9 S.E.2d 626 (1940); Lamar, et al. v. Allen, et al., 108 Ga. 158, 33 S.E. 958 (1899).] However, before this rule of construction is applied, a determination must be made that the two sections of the Act cannot be construed together and reconciled. If at all possible, the apparently conflicting sections must be reconciled as we see in the case of Williams v. Bear's Den, Inc., 214 Ga. 240, 104 S.E.2d 230 (1958), in which Justice Almand said:
"Where there is an apparent conflict between different sections of the same Statute, the duty of a court is to reconcile them if possible, so as to make them consistent and harmonious with one another." [See also Cason v. Harn, 161 Ga. 366, 131 S.E. 88 (1925).]
Bearing in mind the principle of law propounded in the Williams case, it is apparent that the two ostensibly conflicting sections of the Act can be reconciled. Section 15 mandates that all eligible persons shall ". . . as a condition of their employment become members of this health insurance program ..."(Emphasis added.) Ga. Code Ann. 102-1 02( 1) provides that all words in statutes are to be given their ordinary signification except in certain instances inapplicable here. The ordinary signification of become is, according to Webster's Seventh New Collegiate Dictionary, "to happen" or "to come into existence."
Using its ordinary meaning, the word become would not and could not mean remain. Under this rationale, Section 15's command, stated above, could be followed as each State employee would become, as a condition of his employment, covered by the Health Insurance Plan. Also, Section 7 of the Act could be honored by allowing the Board to adopt such a regulation as the instant one, providing a method whereby certain State employees could withdraw from the Plan once they had become members.
Therefore, it is my official opinion that the State Personnel Board can adopt a regulation providing for a method by which State employees can withdraw from the State Health Insurance Plan after their initial employment.

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OPINION 69-503

To: Georgia Higher Education Assistance Corp.

December 15, 1969

Re: Revenue Bonds--Repayment pledge of State; use for purposes other than student loans.

This is in reply to your letter relating to the issuance of revenue bonds for making loans to students.
While it might be argued that Ga. Laws 1968, p. 1597, provides that bonds may be issued for making direct loans to students, secured by the pledge of the full faith and credit of the State, other language of the provision indicates that such bonds are revenue bonds and must be retired from the proceeds of such loans. Should you desire to pursue this matter, it is advisable that the meaning of this Section be determined in appropriate legal action before any bonds are delivered. Consequently, we are not in a position to give an opinion that the full faith and credit of the State may be pledged for this purpose. Because of this position we do not believe it necessary to deal with other aspects of your first question.
Your second question concerns the meaning of the word "direct" as used in the Constitutional Amendment relating to the issuance of revenue bonds for making direct loans to students. This Constitutional provision provides, in part, as follows:

"The General Assembly is hereby authorized to provide by law for the issuance of revenue bonds for the purpose of making direct loans to students in order to allow such students to acquire an education beyond the twelfth (12th) grade." (Emphasis added.) (Ga. Laws 1968, p. 1597).

Webster's Third New International Dictionary defines "direct" as follows:

" . marked by absence of an intervening agency, instrumentality, or influence, . . . made, carried on, or effected without any intruding factor or intervening step (-loans) . . . ."

Black's Law Dictionary, Revised Fourth Edition, similarly defines "direct" as follows:

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" .; by the shortest course; without circuity; operating by an immediate connection or relation instead of operating through a medium; ...."

See also State of Georgia v. Cherokee Brick & Tile Co., 89 Ga. App. 235 (1953), for a discussion of the meaning of the word directly.
In view of the above it seems clear that the authorization to issue revenue bonds for making direct loans to students does not authorize the use of the bond proceeds to finance a secondary market. For example, the purchase of a note from the lending institution, which is secured by the loan to a student, would be acting through an intermediary rather than making a direct loan to the student. Therefore, insofar as Section 9 of the "Georgia Higher Education Assistance Authority Act" (Ga. Laws 1969, pp. 683, 688; Ga. Code Ann. 32-3707) authorizes the use of proceeds from such bonds for making loans other than directly to the student it is, in my opinion, unconstitutional.

OPINION 69-504 (Unofficial)

To: Private Inquirer

December 15, 1969

Re: Taxation-Assessors must increase valuation of property when fair market value increases.

This is in response to your letter of the sixth inst. wherein you asked whether or not the tax assessors can raise the valuation of your real property situated in Elbert County every two years.

Georgia Code Ann. 91-6911 provides, in part:

"The board of county tax assessors in each county may meet at any time to receive and inspect the tax returns to be laid before them by the tax receiver as hereinbefore provided. The board shall examine all the returns of both real and personal property of each taxpayer, and if in the opinion of the board any taxpayer has omitted from his returns any property that should be returned or has failed to return any of his property at a just and fair valuation, the board shall correct such returns and shall assess and fix the just and fair valuation to be placed on the property...."

708

Georgia Code Ann. 92-5702 states:

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

Therefore, it is my unofficial opinion that if the "fair market value" of your property increases every two years then it is the duty of the county tax assessors to increase the valuation of your property for tax purposes every two years.

OPINION 69-505

To: Director, State Highway Department of Georgia

December 16, 1969

Re: Highway Department as condemnor has cause of action in trover for conversion by the condemnee of certain fixtures paid for in the condemnation.

This is in reply to your request for my official opinion through a letter by Mr. J. E. Brown, Right of Way Engineer, on the question of what recourse the State Highway Department has against a condemnee when said condemnee has severed certain trade fixtures from a condemned parcel of property and has carried them away, even though such fixtures were paid for by the State Highway Department in the condemnation proceedings.
It is my official opinion that the State Highway Department has the prerogative to bring an action in trover for the wrongful conversion of this property by the condemnee. Also, the State Highway Department may bring criminal proceedings against this condemnee under the Code provisions entitled "Theft by Taking," or may proceed with both remedies if such action is deemed necessary. However, this opinion is predicated upon, and limited to, the situation in which there has been no agreement between the condemnor and the condemnee that the condemnee will have the right to sever these fixtures from the land and treat them as the condemnee's personal property.

709
Your attention is referred to the unofficial optmon of this Department to Mr. J. E. Brown, State Highway Right of Way Engineer, dated February 21, 1969 [Op. Atty. Gen. 69-90] in which this office set out certain items which were to be considered as fixtures and those items which were to be considered as personalty. It is my understanding from this present request that all of those items which were designated as fixtures under the former opinion of this office have been severed from the property and removed by the condemnee.
In the former opinion, it was pointed out that whatever fixtures were annexed to the realty at the time of the conveyance would pass with land to the condemnor. See Cunningham v. Cureton, 96 Ga. 489, 492 (1895). There is, however, one exception to this principle of law. This exception is that the grantor [in this case the condemnee] can enter into an agreement with the grantee [in this case the condemnor] that the purchase price does not include certain fixtures which the grantor reserves the right to remove from the property. But, in any case, there must be an express provision concerning this right. Thus, in the absence of an agreement to the contrary, this principle applies to fixtures which are either actually or constructively annexed to the realty. See Wolf[v. Sampson, 123 Ga. 400,51 S.E. 335 (1905).
Hence, if at the time the State Highway Department paid the condemnee for his property these trade fixtures were annexed to the property, and there was no express agreement that the condemnee could remove these fixtures, then the State Highway Department now has an election of remedies against this condemnee. The first remedy would be an action in trover for the conversion of this property. Trover is the proper remedy where there has been a wrongful severance of fixtures from the real estate and the taking thereof by a party. See Blain v. Corbin, 51 Ga. App. 472, 474, 180 S.E. 854 (1935). In an action for trover, the issue to be tried is one of title and not of debt. Thus, the sole issue before a court in an action of trover is the title to the property in dispute. See Citizens Bank v. Mullis, 161 Ga. 371, 131 S.E. 44 (1925).
However, the plaintiff in an action of trover has an election of remedies when he brings this action for the conversion of the severed fixtures. He may either recover the specific property [if it is still in defendant's possession], or he may recover damages for its conversion. See Milltown Lumber Co. v. Carter, 5 Ga. App. 344, 345, 63 S.E. 270 (1908). Furthermore, the owner of a fixture may trace his property into the hands of others who have purchased it from the original trespasser and the owner of such

710

fixture may treat the dominion exercised by the third party purchaser ov.er the property as a conversion. See Milltown Lumber Co. v. Carter, supra. However, if the owner elects to bring trover against a third person holding under the initial wrongdoer, he may recover in this action but the third party, the defendant in this case, may have a counterclaim in an amount equivalent to that by which he has enhanced the value of the property converted.
Finally, the second remedy open to the Highway Department would be to bring criminal proceedings through the District Attorney's Office for this conversion. It is my official opinion that under the present qualified factual situation a criminal proceeding could be initiated under the provisions of Ga. Code Ann. 26-1802 (a), which provides:
"A person commits theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of said property, regardless of the manner in which said property is taken or appropriated."
However, it is imperative that I point out that the use of the second remedy should not be for the purpose of attempting to collect this debt owed to the Highway Department. The Legislature did not intend that a criminal proceeding be used in this manner.
OPINION 69-506

To: Director, State Highway Department of Georgia

December 17, 1969

Re: Merger of contractors does not affect rights and liabilities.

This is in reply to your request for my official opinion by the letter of John M. Wilkerson, Assistant State Highway Engineer, in
which the following questions were posed:

"1. What is the proper procedure for converting existing contracts with Ledbetter-Johnson Company to Ledbetter Brothers, Inc.?
"2. Our Treasurer, W. M. Williams, wishes to know if it would be proper for him to issue checks in payment for work under contract to Ledbetter-Johnson Company to Ledbetter Brothers, Inc. and if so, what documents should be on file which would authorize hiin to make these payments."

711
It is my official opinion that the resulting merged corporation assumes the liabilities of the former corporations, and also acquires all of the rights and duties under any existing contracts entered into by the two separate corporations prior to the merger.
It is my official opinion that the Secretary-Treasurer of the State Highway Department may make any checks in payment for work under the contract of the former corporation known as Ledbetter-Johnson Company to the new merged corporation, and make such checks payable in the name of Ledbetter Brothers, Inc. Also, the Secretary-Treasurer may desire to have the Secretary of State furnish a certified copy of the Articles of Merger, the Superior Court Judge's Order granting the merger, and the Certificate of Merger by the Secretary of State for Ledbetter Brothers, Inc. in order that he may use this as a substantiation of his reason for making any payments in the name of the present merged corporation, Ledbetter Brothers, Inc.
It is my understanding the factual situation involved herein is that on September 30, 1969, Ledbetter Brothers, Inc. and Ledbetter-Johnson Company, both corporations of the State of Georgia, merged into one corporation which is now known as Ledbetter Brothers, Inc. f am further informed that your office presently possesses a certification by the Honorable Ben. W. Fortson, Secretary of State, containing a true and correct copy of the Articles of Merger, the Judge's Order allowing the merger, and the Certificate of Merger [which is issued by the Secretary of State after the corporation has complied with the requisites of the new Corporation Code, Ga. Code Ann. 22-1004 (1969 Supp.), regarding merger and consolidation of corporations in Georgia]. Although this office has not been provided with a copy of these documents, it is assumed on this set of facts that this corporation has been validly merged under the new Corporation Code of 1969, and has specifically complied with the provisions of Ga. Code Ann. 22-1004.
Following the above assumption, the question then remains as to the effect of the merger.
From a reading of Ga. Code Ann. 22-1007, it can readily be seen that the surviving corporation possesses the right to all monies which are owned or become payable to each of the former corporations. Therefore, in this case the surviving corporation, Ledbetter Brothers, Inc., would not only have the right of payment for all work performed under each uncompleted contract, but would also assume all of the liabilities and obligations of the contracts which were entered into by Ledbetter-Johnson Company. Furthermore, pursuant to statute, it

712

would not be necessary to convert the existing contracts with Ledbetter-Johnson Company to Ledbetter Brothers, Inc. since,
under the statute, Ledbetter Brothers, Inc. assumes all the rights and liabilities of the contract between the State Highway Department and Ledbetter-Johnson Company.
Finally, the Secretary-Treasurer of the State Highway Department would be authorized, pursuant to Ga. Code Ann. 22-1007, to pay for work performed by the merged corporation in checks made payable to Ledbetter Brothers, Inc.

OPINION-507 (Unofficial)

To: Private Inquirer

December 17, 1969

Re: A doctor licensed to practice medicine in both Florida and Georgia, and incorporated in Florida under the Florida Professional Service Corporation Act, could not register in Georgia as a foreign corporation under Ga. Code Ann. 22-1401 of the Corporation Code.

Ga. Code Ann. 22-1401 does provide generally for the admission of foreign corporations to the State of Georgia. However, it expressly excepts from eligibility those foreign corporations which would "transact in this State any business which a corporation organized under the laws of this State is not permitted to transact...."
It appears that in Georgia only natural persons may practice medicine unless they associate themselves in a manner provided by The Georgia Professional Association Act (Ga. Code Ann. Ch. 84-43). See, generally, Op. Atty. Gen. 1960-61, p. 371; 41 Am. Jur., Physicians and Surgeons, 1st ed. 20; 103 A.L.R. 1240; Holder v. United States, 289 F. Supp. 160 (N.D. Ga. 1968).
The Georgia Professional Association Act requires at least ''two or more persons" duly licensed to practice a profession under the laws of Georgia to form such an association. Ga. Code Ann. 84-4303. No specific provision. is made for the registration of comparable foreign associations or corporations, and the only reference to the Corporation Code is as follows:

"Such professional association organized pursuant to the provisions of this Chapter shall be governed generally by all laws governing or applicable to corporations, where applicable, and not in conflict herewith...." Ga. Code Ann. 84-4318. (Emphasis added.)

713

In my view a professional association "organized pursuant to the provisions of... [Ga. Code Ann. Ch. 84-43]" would have "two or more persons." To apply Ga. Code Ann. 22-1401 in the case of a "one-man" Florida Professional Service Corporation would very likely place the Corporation Code in conflict with the Georgia Professional Association Act.
Furthermore, it appears that the Corporation Code provisions concerning the admission of foreign corporations would not be
"applicable" to, or "in conflict" with, this Professional Association Act in at least one other respect. The Corporation Code requires that a "certificate of authority" be obtained from the Secretary of State in order to do business as a foreign corporation, whereas a professional association is formed by merely filing the articles of association with the superior court clerk where the association's principal office is located.
Accordingly, it would be my view that a "one-man" Florida Professional Service Corporation formed for the purpose of practicing medicine in Florida and Georgia could not register as a foreign corporation under Georgia Code Ann. 22-1401, pertaining to the admission of foreign corporations.

OPINION 69-508

To: State Board of Examiners of Psychologists

December 17, 1969

Re: The granting or denying of a permanent license will not be prejudiced by the previous award of temporary license.

As a general rule, a State may grant a license upon reasonable conditions, and the person receiving it takes it subject to such conditions, including provisions for its revocation. See 33 Am. Jur., Licenses, 52, 65; Frost v. Railroad Commission, 271 U.S. 583, 70 L. Ed. 1101 (1926). A license does not confer a vested, permanent or absolute right, but only a personal privilege to be exercised under the stated restrictions. See, generally, 33 Am. Jur., Licenses, 21.
Given these generally accepted principles of law with regard to conditional licenses, it is my opinion that any rights acquired by an applicant who has received a temporary license authorized by Ga. Code Ann. 84-3110 would terminate upon its stated conditions, i.e., when the Board has "rejected or approved the application for a permanent license."
Consequently, I see no reason why the Board would thereby be

714

prejudiced in granting or denying a permanent license for grounds and under procedures not violating the Constitutions or laws of
the United States and this State. Whether a temporary license should be issued is left by statute
"in the discretion of the Joint-Secretary, State Examining Boards, with the approval of the President of the State Board of Examiners of Psychologists. . . ." Ga. Code Ann. 84-3110. It should be noted, however, that your law provides for a permanent license without examination to persons licensed in another State whose standards, in the opinion of the Board, are not lower than those required in Georgia. See Ga. Code Ann. 84-3109. Therefore, for whatever reason a temporary license would be awarded in these instances, it would seem more advisable to first determine whether the foreign state's licensing standards are equal to or higher than those of this State. For persons not licensed by another state, the same standards applied to all other applicants for a temporary license should apply.

OPINION 69-509 (Unofficial)

To: Pickens County Attorney

December 19, 1969

Re: School Taxes-Collection commissions, and other related matters.

This is in reply to your letter of December 9, 1969, concerning the preparation of the school tax digest and the commissions to be paid for the collection of taxes thereon including taxes to retire school bonds.
Ga. Code Ann. 92-5301 provides for the compensation of each Tax Receiver and Tax Collector for the collection of state and county taxes. Ga. Code Ann. 92-5304 provides that, in addition to the fees provided for in Ga. Code Ann. 92-5301, the Tax Collector would be entitled to 10% of taxes collected in excess of 90%, and should the Board of Commissioners of Roads and Revenues adopt an appropriate resolution the Tax Collector would be entitled to 10% of all taxes collected in excess of 80% of taxes due according to the net tax digest. These commission provisions apply only to state and county taxes and they do not apply to the collection of school taxes. (Op. Atty. Gen., 1960-61, p. 562.)
A Tax Commissioner is entitled to receive a commission of two and one-half percent of all county school taxes levied under the

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authority of Art. VIII, Sec. XII, Par. I of the Constitution of this State (Ga. Code Ann. 32-1106).
The provision of Ga. Code Ann. 32-1106 limiting the commissions to two and one-half percent for school taxes applies to taxes levied to retire school bonds. Op. Atty. Gen., 1960-61, p. 564. See also Op. Atty. Gen., 1945-47, p. 597.
The County Board of Education is charged with the responsibility of preparing the tax digest for school purposes and furnishing such digest to the Tax Collector of the County. Ga. Code Ann. 32-1401. See also recent opinion of the Attorney General, not yet published, to the Honorable Jack P. Nix, State Superintendent of Schools, dated August 15, 1968 [Op. Atty. Gen. 68-348 ].
OPINION 69-510 (Unofficial)

To: Private Inquirer

December 19, 1969

Re: Under the Georgia Malt Beverage Act no taxable event occurs unless the malt beverage is sold or held for sale.

This is in reply to your letter of December 3, 1969, addressed to the State Revenue Commissioner concerning the taxation of beer given to employees, guests, tourists, and other interested visitors by a brewing company. The complimentary beer is consumed on the premises. This policy or practice is a part of the company's national practice and will be a part of a substantial tourist program in the future. You ask, as attorney for the brewing company, whether any Gerogia tax will be due on such complimentary beer. The Revenue Commissioner has referred your request to this office for reply.
The Georgia Malt Beverage Act imposes an excise tax on the business of selling malt beverages according to the quantity sold. Ga. Code Ann. 58-705. Unless the malt beverage is sold or held for sale no taxable event occurs and no tax would be due. See Op. Atty. Gen. 1960-61, p. 285. While the tax imposition relates to the sale of malt beverages, many of the statutes dealing with other restrictions prohibit even the gift of malt beverages under certain circumstances. See, for example, Ga. Code Ann. 58-612, which prohibits furnishing malt beverages to minors, and Ga. Code Ann. 58-609, dealing with election days.

716

OPINION 69-511 (Unofficial)

To: Court of Ordinary

December 19, 1969

Re: An officer of a court is entitled to his costs upon discharge of the duties for which the item is assessable.

Your letter dated December 3, 1969, to the Secretary of State has been forwarded to the Law Department for reply. You state that you have jurisdiction over traffic offense cases. You have asked whether you are entitled to costs in a traffic offense case which is dismissed.
A court officer is entitled to his costs upon the performance of the duties for which the particular item of cost is assessable. In traffic offense cases tried in the court of ordinary, costs which are properly incurred may be recovered from an insolvent cost fund where there is neither a fine nor a bond forfeiture. The authority for the establishment of an insolvent cost fund for the benefit of the officers of courts of ordinary is to be found in Ga. Laws Ex. Sess. 1937-38, p. 558, as amended, (Ga. Code Ann., Ch. 92A-5). Cooper v. Lunsford, Ordinary, 203 Ga. 166 (1947).

OPINION 69-512

To: Director, State Highway Department of Georgia

December 22, 1969

Re: Advertisement for Highway construction bids.

This is in reply to your request for my official opinion by the letter of Mr. S. H. Slade, State Highway Office Engineer, regarding whether the State Highway Department can substitute in the place of a lengthy advertisement for competitive bids a condensed form which essentially gives the same information. A copy of your proposed new advertisement for competitive bidding was attached to your request and marked as Exhibit No.2.
It is my opinion that, with certain additions which will be discussecfherein, the new proposed advertisement for competitive bidding form may be used by your Department. It is my opinion that this form substantially complies with the statutes applicable to competitive bidding for the Highway Department, and the case law which has been developed around competitive bidding.
The provisions of Ga. Code Ann. 95-1620 (b) (1968 Supp.)

717
authorize you, as Director of the State Highway Department, to advertise for competitive bids on all road contracts, bridge contracts, and all other construction contracts involving funds in the amount of $1 ,000 or more. Ordinarily, advertisements for competitive bids and the processing of competitive bids on construction contracts are conducted by the Supervisor of Purchases pursuant to the authority vested in that office by the provisions of Ga. Code Ann. 40-1921.1 (1968 Supp.). However, in this Ga. Code Ann. provision( 40-1921.1), there is a proviso which specifically excepts the Highway Department and provides that this Ga. Code Ann. section does not apply to nor affect your Department.
Although Ga~ Code Ann. 95-1602 (b) authorizes you, as Director of the State Highway Department, to advertise for competitive bids, there are no provisions in this section which would provide guidelines as to what form of advertising may be used by your Department in carrying out these duties. Therefore, since the statute does not specify any method of advertising to be utilized by you as Director of the State Highway Department, a reasonable method should be adopted. In determining what the Legislature considers to be a reasonable method of advertising, the courts have looked to the existing law for guidance. Recent legislation, when silent in respect to one or more details requisite to practical working, will be construed as connecting itself with the Code, which is in daily use. See Wynn. Sims & Company v. Ficklen. 54 Ga. 529 (1875). All statutes are presumed to be enacted by the Legislature with full knowledge of the existing condition of the law and with reference to it and are, therefore, to be construed in connection and in harmony with the existing law and as a part of the general and uniform system of jurisprudence. See Botts v. Southeastern Pipe-line Company. 190 Ga. 689, 10 S.E.2d 375 (1940).
The General Assembly has established a method by which equipment or material which will be purchased by the Supervisor of Purchases may be advertised for competitive bidding. The provisions of Ga. Code Ann. 40-1933 set forth a form letter which is used to notify bidders concerning materials or equipment the State desires to purchase. It is submitted that pursuant to the
above principles of statutory construction, this form letter can be used as a guideline for determining the sufficiency of the advertisement for competitive bids which your Department proposes to use in the future. Under this statutory provision, the notice to contractors inviting competitive bids provides for the time and place at which sealed bids will be received. This notice

718
describes the quantity of materials or equipment desired, and refers to the specifications which will be followed for the purchase of these materials. Also, there is provided in the notice the reservation that the Supervisor of Purchases will have the right to reject any or all bids.
In reviewing your proposed advertisement for the invitation of bids, it is noted that the project number which will be assigned to the construction contract is set forth, along with the county in which the construction will take place. The place and time at which sealed proposals will be received, and the time at which these proposals will be opened, are included. Also contained in this advertisement is the description of the work to be done, including the number of miles of grading and paving and any bridge work that is to be performed. Other pertinent factors included are an estimated cost, the contract time, the division office at which plans, specifications, and proposal forms may be obtained, the cost of the plans, specifications, and proposals, and the required amount of guaranty which is to accompany any proposals for bids. Finally, there is a reservation of the right on the part of the State Highway Department to reject any or all bids. It is noted that, in the above proposed advertisement for invitation of bids, the approximate quantities of each phase of the work described are not included. However, it is a well-known fact that these quantities are included in the proposal forms and all information concerning the projects is shown on the project plans. Thus, it is concluded that elimination of the approximate quantities from the advertising for bidding would not invalidate the proceedings. In the case of the City of Valdosta v. Harris, 156 Ga. 490, 119 S.E. 625 (1923), the Supreme Court held that in an advertisement for bids for a paving improvement, the competitive bid process was not invalidated nor was the advertisement for bids ineffective merely because the advertisement for bids failed to definitely state the material to be used or the manner of construction. Also, in the case of Dyson v. Dixon, 219 Ga. 427, 134 S.E.2d 1 (1963), the Supreme Court upheld the competitive bid process on an urban redevelopment project. The only notice of criteria for the project was the price; in this case, the Supreme Court held that the Housing Authority did not fraudulently fail to comply with the requirements concerning competitive bidding where there was no showing that the criteria for the project where not available in the designated office which was mentioned in the advertisement for bids. Thus, analogizing the above two holdings to the situation that is presented by your request, it is my opinion that the utilization of this advertisement for bids which deletes the

719
approximate quantity for each phase of work will not be fatal to the competitive bid process. However, this opinion is given with the qualification that the notice should always provide the place where a proposal and plans can be obtained. Also, the proposal must contain the approximate quantities which are to be eliminated in the notice.
Although the proposed form for advertisement for bids is substantially in compliance with the law, there are, however, certain changes which should be made by your Department. First of all, with regard to the mention of the guaranty which is required to accompany the proposal, it is submitted that your Department should set forth more specifically the requisite that a guaranty payment in the designated amount must accompany the completed bid proposal when it is submitted to your Department. Furthermore, this notice should provide either that this guaranty payment should be in the form of a certified check, cashier's check, or negotiable cash bond.
Also, in the paragraph which provides that ''the State reserves the right to reject any or all bids," the following sentence should be inserted prior to this sentence: "This advertisement is merely an invitation for the submission of bids which are to be considered as offers for performance of work by the submitting party."
Finally, provision should be made in this notice to the effect that an acceptance by the Highway Department of an offer submitted by the bid proposals will be given in writing within thirty days after the opening of the bids. In addition, a proviso should be added that the guaranty payment which accompanies the bid proposal in the form of a certified check, cashier's check or negotiable bond shall be cashed as a part of the acceptance of the successful bidder's offer.
Once the above adjustments are made in the proposed advertisement for bids, it is my opinion that this advertisement form for invitation of bids will be acceptable as to legal form.
In conclusion, it is noted in your letter that your Department contemplates the continued use of the present form for advertisement for bids which will be sent to all qualified contractors. This notice to contractors is more exhaustive in detail than the proposed advertisement for bids which will be published in various State newspapers. It is submitted that this contemplated variance in practice between the notice to the public and the specific notice to the contractors may be subject to attack and a certain amount of criticism. Therefore, it is submitted that since the proposed advertisement for an invitation to bid which will be published in the various State newspapers is sufficient as to legal

720

form, then your Department, in order to avoid any attack concerning discrimination by providing the contractors with a more exhaustive notice, should use the proposed advertisements for bids not only as notice to the public in general, but as notice to the specific contractors to which this notice for invitation of bids is mailed.

OPINION 69-513 (Unofficial)

To: Richmond County Department of Health

December 22, 1969

Re: County Health Department not exempt from payment of taxes on gasoline.

This is in reply to your letter wherein you ask whether a County Health Department is exempt from payment of taxes on gasoline imposed under the "Motor-Fuel Tax Law" (Ga. Laws 1937, p. 167, as amended) in view of the fact that such Department receives State funds and the County vehicles serviced will be on official business.
In Sloan v. Polk County, 70 Ga. App. 707 (1944), the Court held that a county is liable for taxes on gasoline imposed under the "Motor-Fuel Tax Law." The gasoline in that case was purchased and used by Polk County, a political subdivision of the State of Georgia, for county purposes and no other.
Therefore, it is my opinion that a County Health Department is not exempt from payment of taxes on gasoline imposed by the "Motor-Fuel Tax Law."

OPINION 69-514 (Unofficial)

To: Randolph County Attorney

December 23, 1969

Re: In the absence of a specific time limit, a special election to fill a vacancy must be held within a reasonable time.

You advise that a vacancy has occurred on your county board of commissioners due to the death of one of the members. You have requested our unofficial opinion on whether the special election to fill the vacancy (as required by your local laws) may be postponed until the general election of 1970. You have also

721
requested that we review your local laws and advise whether the vacancy should be filled by a successor elected by the voters residing in the district the successor represents or by the voters of the entire county.
Apropos of your first inquiry, the general law on filing a vacancy in the office of county commissioner does not apply when a county has its own local law which provides for filling the vacancy. Ga. Code Ann. 23-801. Your county has a local law which controls the method in which the vacancy is filled, but it does not provide when the special election to fill the vacancy must be held. The local law only requires that the election be called by the ordinary to fill the vacancy. Ga. Laws 1935, pp. 778,781.
In calling special elections, the Election Code requires at least 29 days between the call and holding of the election, but it does not specify when the special election must be held. Ga. Code Ann. 34-806. Further, we are not aware of any other law which specifies on what date the special election must be held.
The Georgia Supreme Court has decided that the duty of an ordinary to call a special election to fill the vacancy in a similar situation arises instantly upon the occurrence of the vacancy. Newton v. Stembridge, 212 Ga. 828, 96 S.E.2d 504 (1957). Although the Court did not expressly state when the election should be held, it is clear from the decision that undue delay should be avoided. It is the general rule in the United States that when an official is by law given discretion in the performance of an election duty, it is sufficient if his manner of performance is such as will reasonably accomplish the purpose of the law. 29 C.J.S. Elections 77; Harley v. City of Spartanburg, 230 S.C. 478, 96 S.E.2d 828 (1957). In the closest case to your fact situation that we could fmd, an Illinois court said that if an official is given discretion to fix the time of a special election, the discretion must be exercised reasonably, reasonableness being a subjective decision in light of existing facts. People v. Pierson, 318 Ill. App. 573, 48 N.E.2d 754 (1943).
Thus, the answer to your first inquiry would depend on what is reasonable after consideration of all the facts in the problem and our office is simply not in a position to make this decision.
In response to your second inquiry, the 1935 local law creating the present Board of Commissioners of your county provided in Section 2 of the law that the county would be divided into five road districts and that each district would elect its own commissioner. Ga. Laws 1935, pp. 778, 779. Section 8 of the same law provided that if a vacancy occurred, the ordinary would call a special election in which the voters of that district would

722

elect a successor to fill the vacancy. Id., p. 781. The law has been amended several times, and the latest change, although retaining the five road districts, amended Section 2 of the law to provide that each commissioner must reside in his respective district, but be elected by the voters of the entire county. Ga. Laws 1961, p. 2096. However, neither the previous nor the present amendments changed Section 8 of the local law on how a vacancy should be filled. Therefore, Section 8 still requires that the vacancy be filled by only the voters of that district.
Presumably, an argument could be advanced that the 1961 amendment to Section 2 of the law was an implied repeal of Section 8 of that same law although the legislation itself contained no provision to this effect. However, the law in Georgia is quite clear that a repeal by implication only occurs when the laws are in irreconcilable conflict with each other, are clearly contradictory and by no construction can stand together. Mayor of Athens v. Wansley. 210 Ga. 174, 78 S.E.2d 478 (1953);Adcock v. State. 60 Ga. App. 207, 3 S.E.2d 597 (1939). We do not feel that the two sections of this law approach this standard and the present provisions of Section 8 should control the special election, absent a contrary court decision in the matter. This unofficial opinion should not be construed as an opinion of this office in any way on the manner in which the present road districts are apportioned. SeeAvery v. Midland County. 390 U.S. 474, 88 S. Ct. 1114, 20 L.Ed.2d 45 (1968).
OPINION 69-515 (Unofficial)

To: Clerk of Superior Court

December 24, 1969

Re: Tax is due where stock of one corporation is exchanged for property of another, even where both owned by same people.

This is in response to your communication of the fifth inst. wherein you inquired as to whether or not a real estate transfer tax was due on a transaction in which one corporation exchanged real estate with another corporation for stock in the second corporation where both corporations are owned by the same
people. Ga. Code Ann. 92-801 of the Real Estate Transfer Tax Act
was lifted word for word, except for the rate of the tax and the last sentence which pertains to the termination of the tax, from the federal government's documentary stamp tax on conveyances

723

of real estate, 26 U.S.C.A. 4361, as amended. 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. 1967, 43-4361-2(a), (7).1t reads:

"(a) Conveyances subject to tax. The following are examples of conveyances subject to the tax:

* * * * *
"(7) A conveyance of realty by a corporation in exchange for shares of its capital stock."

Even though the above federal regulation is not controlling it is persuasive, especially when it is based on logic and sound reasoning.
There can be no serious doubt that both real estate and stock in a corporation are a valuable consideration which will support a sale or a contract for a sale. See 18 CJ .S. Corporations, 241, p. 672 (1938).
The fact that both of the corporations are owned by the same people is not material as each corporation is a separate legal entity. See ld. 4, p. 368.
Therefore, it is my unofficial opinion that a real estate transfer tax is owed on the value of the real estate, less the amount of the outstanding loan. (For the computing of the tax in a situation where there is a lien or an encumbrance on the real estate see the Unofficial Opinion of May 15, 1968 [Op. Atty. Gen. 68-203 ]).

OPINION 69-516 (Unofficial)

To: Private Inquirer

December 30, 1969

Re: Retired commissioned officers do not qualify as ex-officio notaries public.

This will acknowledge your recent letter to our Mr. George Simpson wherein you had asked if a retired commissioned officer of the Armed Services of the United States not on active duty is such a person as may qualify as an ex-officio notary public under the provisions of law as set out in Ga. Code Ann. Ch. 71-4.
Although Ga. Code Ann. 71-401 is not stated in terms of "active" or "inactive" commissioned officers, I believe that in

724

construing the legislation in its entirety and considering also that retired commissioned officers as well as others may qualify as notaries under the provisions of law set out in Ga. Code Ann. Ch. 71-1, that the application of Ga. Code Ann. Ch. 71-4 is necessarily limited to those commissioned officers who are on active service. This position would seem to be supported by the reference in Ga. Code Ann. 71-404 to the commissioned officers in "active service."
I am also persuaded to the conclusion that the Ga. Code Ann. Ch. 71-4 refers to active commissioned officers by the fact that the legislation (Ga. Laws 1943, p. 421) was passed during wartime and I believe that the purpose of the legislation was to facilitate the presence of a notary for those military personnel on active duty. All others still had access to non-military notaries.
Therefore, it is my unofficial opinion that retired commissioned officers do not qualify under the provisions of Ga. Code Ann. 71-4 as ex-officio notaries public.
OPINION 69-517

To: Director, State Board of Corrections

December 31, 1969

Re: Conviction based on summons--Clerk must provide Board of Corrections with a copy of the summons.

Your Department has asked whether it is permissible to accept, as part of the records of an inmate committed to the custody of the Director of Corrections, a copy of a summons rather than the usual accusation or indictment.
When a criminal defendant is sentenced to the custody of the Director of Corrections, the clerk of the court in which the sentence is imposed must transmit certain information, including "a certified copy of the indictment, accusation or both," to your Department. Ga. Code Ann. 77-309(c) (Supp. 1968).
There are instances in which misdemeanor traffic offenses may be tried upon a summons and without indictment or accusation. In such cases "an indictment or accusation shall not be required against a defendant ... but a summons specifically setting out the charges shall be issued...."Ga. Code Ann. 92A-506.
In requiring that the State Board of Corrections be furnished a copy of the indictment or accusation, it is apparent that the General Assembly contemplated the receipt of the document specifying the charge of which the inmate had been found guilty.
Where an inmate has been brought to trial and convicted upon a

725

summons, rather than an indictment or an accusation, the clerk of the court in which the conviction was returned must furnish your Department a certified copy of that summons. In such cases, the certified copy of the summons stands in lieu of an indictment or accusation.

OPINION 69-518

To: State Revenue Commissioner

December 30, 1969

Re: Sales tax upon lease of personal property from county to private corporation.

This is in reply to your request for advice as to whether the lease of tangible personal property by Muscogee County under a constitutional amendment, (Ga. Laws 1962, p. 999) is exempt from sales taxation under the terms of that amendment.
Under the provisions of the amendment, Muscogee County
issued revenue bonds, the proceeds of which were, in part, used to purchase tangible personal property~ The County then leased the property to a private corporation to provide for payment of principal and interest on the bonds issued.
The applicable section of the Georgia Retailers' and Consumers' Sales and Use Tax Act provides, in part, as follows:

"Every lessee or rentee of tangible personal property in this State shall be liable for a tax thereon at the rate of three per cent. of the gross lease or rental charge therefor...." (Ga. Code Ann. 92-3402a(c)).

The sales and use tax is a tax on transactions which the Act defines as taxable events. The tax is not a tax on the contracts involved in the transaction, as such, or on the property in reference to which the transaction occurred. The contract, however, may evidence the taxable nature of the transaction. The property involved determines the measure of liability. See Grantham Transfer Co. v. Hawes, 225 Ga. 436, 442 (1969); Oxford v. Blankenship, 106 Ga. App. 546 ( 1962). The tax liability is imposed primarily on the purchaser or, in this case, the lessee.
Construing the language "the security therefor " employed in the constitutional amendment to refer to the lease, it is clear from what has been said that the exemption refers solely to taxes imposed on the lease as such and does not reach the sales tax imposed on the privilege of executing the contract of lease. See

726
Oxford v. Blankenship, 106 Ga. App. 546, 547-48. On the other hand, if what is exempted by the language referred
to is the income from the facilities, it is clear that the exemption does not reach the taxable status under the Georgia Retailers' and Consumers' Sales and Use Tax Act of the lease transaction. Compare Oxford v. Blankenship, supra, at 548. The lease rentals, or income, merely provide the measure for computing the tax due. I d.
For the same reasons, the phrase in the amendment, "such facilities shall at all times be exempt from taxation," does not exempt from sales tax the transaction of executing the lease. See also Op. Atty. Gen. 66-15.
Therefore, I am of the opinion that the language of the amendment does not confer an exemption from sales and use taxation.

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

729
TABLE 1 UNITED STATES CONSTITUTIONAL PROVISIONS
Art. II, Sec. II, Par. I ................................610 Art. III, Sec. I, Par. I ................................610 Art. VI, Par. 2 .....................................679
TABLE 2 GEORGIA CONSTITUTIONAL PROVISIONS
Art. I, Sec. I, Par. XIV .......................... .161, 174 Art. I, Sec. I, Par. XXIII ............................. .388 Art. I, Sec. III, Par. I .................62, 136, 196, 326, 553 Art. I, Sec. III, Par. II ........................122, 123,309 Art. I, Sec. IV, Par. I ........................ .39, 245,514 Art. II, Sec. II, Par. I ............................... .516 Art. II, Sec. VII, Par. I ................................75 Art. II, Sec. VII, Par. IV ............................. .205 Art. III, Sec. VII, Par. II ............................. .506 Art. III, Sec. VII, Par. XI .........................230. 237 Art. III, Sec. VII, Par. XVII ...........................546 Art. IV, Sec. VI, Par. I .............................. .317 Art. V, Sec. I, Par. XII .............................. .431 Art. V, Sec. I, Par. XIII ..............................241 Art. V, Sec. IV, Par. I ............................... .422 Art. V, Sec. XI, Par. I ........................... .564, 568 Art. VI, Sec. II, Par. IX ...............................28 Art. VI, Sec. VI, Par. I .............................81, 82 Art. VI, Sec. VI, Par. II ................ .10, 81, 99,595,606 Art. VI, Sec. IX, Par. III ...............................29 Art. VI, Sec. XI, Par. I ................................28 Art. VI, Sec. XI, Par. II ...............................28 Art. VI, Sec. XI, Par. III ...............................28 Art. VI, Sec. XII, Par. I ...............................72 Art. VII, Sec. I, Par. II .....................2, 203, 274, 288 Art. VII, Sec. I, Par. IV ............. 58, 59, 76, 94, 140, 320,
321,392,455,505,643 Art. VII, Sec. II, Par. I ...............................444 Art. VII, Sec. II, Par. Ill ..........................237, 506 Art. VII, Sec. II, Par. IV ..............................502 Art. VII, Sec. II, Par. VI ...........................65, 618 Art. VII, Sec. IV ....................................669 Art. VII, Sec. IV, Par. I ......................... .103, 283 Art. VII, Sec. IV, Par. II ......................180, 312, 314 Art. VII, Sec. VI, Par. I ..............................180

730
GEORGIA CONSTITUTIONAL PROVISIONS -Continued
Art. VII, Sec. VI, Par. III .........................169, 170 Art. VII, Sec. VII, Par. I .......................12, 204, 220 Art. VII, Sec. VII, Par. IV ..............................9 Art. VII, Sec. VII, Par. V ..............................26 Art. VII, Sec. IX, Par. II ..............................237 Art. VII, Sec. IX, Par. IV .........................237, 387 Art. VII, Sec. XII, Par. I ............................. .475 Art. VIII, Sec. XII, Par. I ..................57, 150, 542, 715 Art. XI, Sec. II, Par. I ..................51, 52, 639,640,688 Art. XII, Sec. I, Par. III ......................... .244, 245 Art. XIII, Sec. I, Par. I ................................78 Art. XIV ..........................................704 Art. XV, Sec. I, Par. I ................................433 Art. XV, Sec. II .....................................85 Art. XV, Sec. II, Par. I ............................85, 669 Art. XV, Sec. II, Pars. I to V ..........................585 Art. XV, Sec. II, Par. II ...........................85, 669

731
TABLE 3 GEORGIA LAWS

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1857

61 .............................................558

1861

21 .............................................194

1877

284 ............................................189

1878-79

55 .............................................256

291 ............................................253

1890-91

935 .............................................28

937 .............................................28

1894

97 .............................................695

1895

71 .............................................457

357 ............................................253

1899

353 ............................................253

1910

179 .............................................81

1913

145 ............................................686

146 ............................................686

176 ............................................686

1914

1247 ...........................................462

1916

1046 ...........................................462

1917

396 ............................................304

406 ............................................304

407 ........................ ....................304

1918

110 ............................................614

348 ............................................687

352 .... ~ .......................................687

1919

464 ............................................103

732 GEORGIA LAWS- Continued

YEAR OF ACT PAGE NUMBER OF ACT

PAGE

1921

1122 et seq.......................................86

1922

51 .............................................256

1925 174 ........................................... .124 175 ........................................... .124

472 .............................................81 744 ........................................476, 477

747 ........................................476, 477 748 ........................................476, 477

1927

56 .............................................677 69 to 71 ........................................677

352 ............................................261 464 ............................................223 465 ............................................223 1930 230 ............................................453 1931 7, et seq.........................................548 35 .............................................548 37 .............................................548

1933 78 ..........................................39,476 83 ..............................................39 92 .............................................476 446 .............................................39

758 ........................................515, 516 1935

11 ........................................ .128, 677 25 to 33 ........................................677

64 .............................................128

87 .....................................548, 549, 550 778 ............................................721

779 ............................................721 781 ........................................721, 722 1937

109 .............................................457 140 ............................................457

733 GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1937

167 ............................................720

208 ........................................548, 549

209 ............................................549

210 ............................... .438, 453, 548, 549

322 .............................................98

348 .............................................98

503 ............................................615

514 ............................................615

1210 ...........................................222

1211 ...........................................222

1776 to 1777 ................................... .359

1799 .......................................359, 360

1801 ...........................................359

2209. ..........................................462

1937-38, Ex. Sess.

145 ......................................76, 77,390

147 .............................................76

149 .............................................77

156 .........................................73, 644

159 .............................................73

163 ............................................644

297 ............................................476

298 ............................................476

558 ........................................606, 716

558 to 562 ......................................595

1939

99 ...........................................76, 77

100 .............................................77

250 ............................................194

1941

210 .............................................95

219 .............................................95

449 ............................................367

546 ............................................467 1943

212 ............................................548

279 ......... .................................. .123

281 ............................................123

331 ............................................259

332 ............................................259

734 GEORGIA LAWS-Continued

YEAR OF ACT PAGE NUMBER OF ACT

PAGE

1943

370 ........................................547' 549

421 ............................................724

1945

294 et seq.......................................637

464 ............................................452

477 ............................................452

1152 .....................................93, 92, 169

1946

12 .........................................505, 544

63 .............................................451

102 ............................................602

106 ............................................602

206 ............................................542

211 ............................................542

471 ............................................434

1947

616 ............................................521 617 ............. .- ..............................521

1183 ...........................................505 1949

138 ..........................................6, 660 139 ..............................................6 1057 ...........................................497

1064 ...........................................497

1201 ...........................................700

1950 180 ..............................................6

1951

175 ............................................680

176 ............................................680

291 ............................................576

294 ............................................576

360 ................... 162, 164, 167, 186, 188,209,239,

244,254,399,594,595,621

363 ........................................164, 188 364 ............................................595

365 ................................... .167, 239,595

367 ....... : ................................... .186

370 ............................................209

735 GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1951

371 ............................................162

373 ............................................621

375 ............................................254

379 ............................................399 380 ............................................399

493 ............................................395

565 .................................47, 49, 70, 71,79

570 ..........................................47' 49

715 .............................................80

716 .............................................80

747 ........................................464, 465

1952

221 ..............................................6 317 ............................................390

318 ............................................390

371 ............................................634

405 ............................................593

1953

87 .............................................547

182 ............................................155 191 ............................................170

192 ............................................170 200 ............................................399

279 ............................................593

294 ............................................634

316 ............................................593

556 ............................................545 587 ............................................309

588 ............................................309

613 ............................................258

2128 ............................................98

1955

10 .......................................6, 348, 420 23 ...............................................6

94 ...............................................6

106 ............................................420

323 ............................................547 417 ........................................... .144

418 ............................................144

736 GEORGIA LAWS-Continued

YEAR OF ACT PAGE NUMBER OF ACT

PAGE

1955

425 ........................................... .144 426 ........................................... .144 431 .............................................56 454 .............................................49 455 .............................................49 483 .................................25, 350, 422, 625 489 ............................................422 491 ............................................350 493 ............................................422 512 ............................................625 517 .............................................25 519 ............................................625 659 ........................................308, 630 736 ............................................513 1956 38 .............................................462 60 .....................471,472,626,654,656,670,672 61 .........................................654, 656 62 .............................................671 590 ............................................625 594 ............................................625 800 ............................................452 2362 ...........................................542 2365 ...........................................542 1957 115 ............................................340 387 ............................................695 394 ............................................695 420 ................................. .43, 54, 687' 688 421 ........................................687' 688 443 .............................................43 446 ............................................436 448 ............................................436 2623 .......................................542, 543 1958 55 .............................................537 61 .............................................348 65 ..............................................65 318 ............................................395

737 GEORGIA LAWS -Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1958

333 ............................................627

400 et seq...................................636, 637

402 ............................................636

637 ........................................487, 488

639 ........................................487' 488

668 ............................................558

1567 ............................................28

1568 ............................................28 3224 ...........................................515

1959 34 to 44 ....................................627, 655

37 .............................................655

44 .............................................627

50 .............................................541

114 ............................................420

118 ............................................420

453 .............................................45

1960

153 ................ .43, 155, 164, 186,254,594,595, 621

154 ....................................164, 594, 595

155 ............................................186

157 ........................................254, 621

235 ............................................422

243 ............................................422

289 ............................................255

801 .............................................35

990 .............................................37

1961 45 ..............................................27

47 .............................................387

147 ............................................704

161 ............................................102

162 ............................................102

291 ........................................298, 299

300 ..........................................56, 68 SOl ............................................272

563 ............................................639

565 .............................................593

2096 ...........................................722

738 GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1961

2688 ...................................... .542, 543

1962 17 ..................................66, 274, 362, 435

25 .....................................274, 362, 435 54 .........................................487, 489

116 ............................................447 119 ........................................... .101

121 .............................................27

122 .............................................27

156 ............................................700

459 ........................................521' 522 460 ........................................521, 522

461 ........................................... .522 547 ............................................395

999 ............................................725

2003 ............................................40 1963

34 .............................................520

37 ............................................ .520

41 .............................................487

42 .............................................487

354 ........................................435, 436

621 ........................................... .577 624 to 626 ..................................... .346

2315 to 2317 .................................... .33

1964

3 ......................................141, 491,591

8 ..............................................591

24 ............................................ .141

29 .............................................491 146 ........................................354, 486 181 ........................................363, 364

194 ............................................289

195 ............................................289

261 ............................................480

310 ............................................243

332 .............................................11

338 ................................... .406, 408, 652

416 ............................................479

739 GEORGIA LAWS-Continued

YEAR OF ACT PAGE NUMBER OF ACT

PAGE

1964

489 ........................................... .118 499 ............................... .421, 648, 652, 702

534 ................................... .421, 648, 652

706 ............................................269 741 ............................................424 742 .................................. ..........424

767 ............................................390 986 ............................................676 1070 .. ~ ......................................52, 53

2459 ...........................................698 3069 ...........................................304 3070 ...........................................304 1965 44 .............................................258 60 .............................................258 182 ............................................503

217 ....................................275, 276, 289 221 ....................................275, 276, 289 222 ....................................275, 276, 289 298 ................................180, 433, 559, 585

299 ............................................433 300 ............................................433 302 ............................................559 303 ............................................559 344 ............................................677 396 .............................................91 397 .............................................91 449 ............................................387 451 ............................................513 752 .............................................85 2897 ...........................................243 2899 .......................................243, 244 3122 .........................................34, 35 3319 ............................................34 3354 ...........................................676 1966 61 ............................................ .130 65 .............................................130 195 ............................................201

740 GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1966

200 ............................................201

291 ............................................133

296 ............................................559

367 ........................................298, 299

370 ............................................226

517 ............................................475

521 ............................................475

574 .............................................56

588 ....................................... .113,116

589 ........................................... .116

2437 ............................................40 2736 ...........................................588

3166 ...........................................359

1967

12 .............................................207

159 ........................................207' 208

160 ........................................207' 208

176 ............................................208

186 .... -........................................208

252 ........ .................................66, 436

258 ...........................................436

286 ............................................454

296 ........................................609, 611

325 ............................................609

375 ........................................609, 611

385 ............................................691

388 ............................................691

392 ............................................691 446 .............................................66

448 .............................................66

597 ........................................... .124 598 ........................................... .124

604 ............................................448 606 ............................................450 619 ............................................498

623 .............................................498

624 ........................................ ....498

625 ............................................498

629 ............................................453

741 GEORGIA LAWS-Continued

YEAR OF ACT PAGE NUMBER OF ACT

PAGE

1967

659 .............................................56 674 .............................................56 940 ............................................491 2852 ...........................................588 3515 ...........................................434 1968 9 ......................... .175, 265, 266, 401' 402, 694 9 to 19 .........................................265

11 ........................ .175, 265,266,401,402,694 12 .............................175, 265, 330, 401, 402 15 .............................................694 16 .............................................694 19 .....................................175' 265' 694 30 ......... ' ............................211, 212,676 31 .....................................211, 212, 676 33........................ . ................58, 676 34 .................................... .211, 212,214 36 .............................................207 130 ............................................361 275 ............................................163 276 ........................................... .163 277 ........................................7,8, 163 281 ..............................................8 283 ............................................228 333 ............................................421 334 ............................................421 415 ........................................268, 269 418 ............................................269 420 ............................................510 421 ............................................510 430 ............................................108 447 .....................................31' 556, 675 448 ............... .38, 42, 79' 80, 108, 330, 345' 637' 638 449 .............................................79 452 ............................................108 455 ............................................346 465 ............................................123 466 ............................................123 496 ........................................162, 178

742 GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1968

497 .................................25, 162,422, 588 501 .............................................25 522 ............................................588 565 ............................... .194, 294,692,693

591 ............................................422 693 ............................................340 817 ............................................692 826 ....................................... .194, 693 987 ............................................545 992 .....................................71, 277,642 993 ............................................642 1013 ....................................91, 267,440 1017 ..........................................267 1018 ...........................................267 1030 ...........................................440 1056 .................................. .374, 564, 566 1061 .......................................564, 565 1082 ...........................................527 1110 ........................................29, 377 1111 ............................................29 1143 to 1148 ............................... .354, 581

1158 ...........................................545 1246 ...........................................509 1249 ...................................509, 627,655 1344 to 1345 ............................... 627, 655 1345 .......................................627' 655 1364 ...................... .181, 282,310,367,411,576 1365 ...........................................491 1401 .................................. .338, 339, 506 1411 ...........................................363 1427 ...........................................545 1472 ...........................................545 1567 ........................................28, 421 1569 ............................... - ............28 1597 ...........................................706 1690 ........................................76, 140 1822 .......................................244, 245

1969 42 .............................................491

743 GEORGIA LAWS-Continued

YEAR OF ACT PAGE NUMBER OF ACT

PAGE

1969

114 ....................................557, 593,594 137 et seq...................................687, 688 140 ........................................687, 688

152 ........................................692, 693 195 ............................................692

205 .................................. ..........693 234 ............................................674 266 ................................... .482, 615, 647

268 to 270 ......................................615 269 ........................................482, 647 351 ............................................630 492 ............................................576 495 ....................................412, 443, 696 497 ............................................696

505 ............................................583 505 to 545 ......................................648 514........................................ . ..583 610 ........................................465, 466 611 ........................................465, 466 683 ....................................528, 527, 707 688 ............................................707 721 ............................................423 763 ............................................562 810 ............................................580 811 ............................................491

855 ............................................703 859 ............................................539 880 ............................................647 893 ............................................647 942 ............................................382 960 ............................................644 1013 ...........................................487 2661 .......................................511, 512

3298 ...........................................630

745 TABLE4 GEORGIA CODE ANNOTATED SECTIONS

CODE SECTIONS

PAGE

1-208 ............................................610

2-114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161 ' 174

2-123 ............................................388

2-301 ....................................136, 326, 553

2-302 ....................................... .123' 309

2-401 .....................................39, 245,514

2-801 ............................................516

2-1201 ............................................75

2-1301 ...........................................610

2-1911 ...................................230, 237,506

2-1920 ..........................................462

2-3011 ...........................................609

2-3013 .......................... - ...........241, 431

2-3301 ...........................................422

2-3506 .......................................564, 568

2-3709 ............................................28

2-41 02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,81

2-4601 ...........................................28

2-4602 ............................................28

2-4701 ............................................72 2~402 ...................... 203,274,463,474,529,591

2-5404 ...............58, 59, 76, 94,320,321,392,455,502

505,575,643

2-5501 ...........................................444

2-5503 .......................................237' 506

2-5506 ........................................65, 618

2-5701 .......................................103, 283

2-5702 ...............................103, 180,312,669

Ch. 2-59 ..........................................284

2-5901 ...............................180,317,473,592

2-5902 ...........................................169

2-6001 ....................................12,204,220

2-6004 .........................................9' 205

2-6005 ............................................26

2-6202 ..........................................237

2-6204 .......................................237, 387

2-6801 ............................ : ......... 592,690

2-7001 ...........................................592

2-7201 ...........................................592

2-7202 ...........................................592

746
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

2-7301 ...........................................592

2-7501 .......................................542, 592

2-7501.1 .........................................592

2-7801 .......................................... .181

2-7901 ....................................51' 639' 688

2-8101 ........................... .................78

2-8301 .................................. , ........433

2-8402 .....................................35, 85, 669

2-8402 to 8406 ............................. .34, 85, 669

2-8403 ........................................85' 669

3-115 ............................................133

Ch. 3A .......................................599, 652

3A-111 ...........................................599

5-1006 ...........................................332

5-1617 ...........................................575

5-1810 ...........................................481

8-506 .............................................61

11-301 ...........................................387

13-207 ...........................................561

13-901 ...................................... .110, 692

13-905 ...........................................588

13-1001 . . . . .............................110, 111,588

13-1002 ..........................................692

13-1 005 ..........................................626

13-1009 ......................................... .111

13-11 01 ..........................................111

14-1809 ....................................... . .259

15-301 ...........................................261

15-302 ..........................................261

16-437 .......................................424, 425

Ch. 17-5 ..........................................455

19-1905 ..........................................588

20-201 .................................. .133, 458, 459

20.:701 ...........................................680

20-702 .................................. .398, 681' 682

20-704 .......................................306, 681

20-1007 ..................... .....................218
Ch.. 21-2 ........................................so, 51

21-202 ............................................52

21-203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......52

747
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

22-401 ...........................................296

22-402 .......................................294, 295

22-516 ...........................................194 22-603 .......................................194, 195

22-613 .......................................603' 604 22-803 .......................................477' 478

22-1004 ..........................................711

22-1007 ......................................711, 712 Ch. 22-14 .........................................644 22-1401 ......................................712, 713 22-1402 ..........................................644

22-1408 . . . . . . . . . . . . . . . . . . . . . . . ..................296

22-1409 ......................................294, 295 22-1802 ..........................................195 22-2101 to 22-3602 .................................195 22-2103 ......................................... .195

22-2202 ..........................................195 22-4701 ......................................692, 693 22-4801 ......................................692, 693

Ch. 23-7 ..........................................518 23-801 .......................................172, 721

Ch. 23-9 ..........................................172 23-917 ...........................................640

23-922 .......................................171 ' 172

23-924 ...........................................172 23-925 ...........................................172

23-1016 ......................................243, 313

23-1102 ............................................7

23-1302 ..........................................314

Ch. 23-29 .........................................435

23-3001 ..........................................424

23-3002 ..........................................424

23-3003 ......................................556, 675 24-110 ...........................................519 24-113 .......................................408, 496

24-408 ............................................75 24-601 ...........................................366

24-806 ............................................75

24-812 ...........................................631

24-817 .......................................287' 291

748
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

24-905 ............................................41 24-1710 ..........................................264 24-1716 ..........................................350 24-1801 ...........................................10 24-2104 ......................................698, 699 24-2401 ...........................................91 24-2402 .........................................267 24-2403 ......................................576, 577 24-2405 ............... ' ..........................441 24-2407 .........................................441 24-2410 ..........................................293 24-2413 ......................................440, 526 24-241 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .440 24-2421 ..........................................524 24-2422 ......................................439, 524 24-2428 ..........................................440 24-2441 ..........................................441 24-2605 ..........................................395 24-262la .........................................395 24-2623a ............... ..........................395 24-2740.1 .........................................510 24-2740.4 .........................................510 24-2805 ..........................................129 24-2811 ...................................93, 169, 668 24-2812 .......................................... .19 24-2813 .................................. .11, 534,536 24-2826 ..........................................243 24-2904 ......................................147, 642 24-2908 ..........................................476 24-2922 ..........................................642 242923 ..........................................642 24-3401 ..........................................293 24-3406 ..................................... .129, 140 24-3409 ......................................129, 140 25-105 ...................................... .123, 405 25-109 ...........................................125 25-110 ...........................................124 25-111 ...........................................124 25-113 .................................. .125, 407,408 25-116 ...........................................137

749
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

25-117 ......................................405, 406

25-123 ...........................................123

25-123.1 ......................................406, 408

25-130 ...........................................124

Ch. 25-3 ...........................................56

26-101 ...........................................437

26-401 .................................. .437, 476, 628

26-905 ......................................608, 609

26-1802 ............................ .340, 381,382,710

26-1902 ..........................................580

Ch. 26-21 .........................................492

26-2303 ..........................................627

26-2306 ..........480,626,627,628,629,669,670,671,672

26-2309 ......................................388, 655

26-2401 .........................................629

26-2502 .........................................580

26-2613 ..........................................522

26-2642 .......................................... .147

Ch. 26-27 .........................................447

26-2701 ......................................447' 528

26-5002 ..........................................627

26-5003 to 26-5028 .................................627

26-5009 ..........................................655

Ch. 26-50a ........................................480

26-5103 ............................................4

Ch. 26-63 .....................................492, 493

26-6301 ..........................................147

26-6501 ...........................................44

26-6502 ...........................................44

26-9904 ..........................................668

27-102 ...........................................267

Ch. 27-2 ..............................,. ............30

27-202 ...........................................234

27-203 ...........................................234

27-204 ...........................................234

27-206 ........................................93, 667

27-209 ...........................................667

27-210 .......................................243, 579

27-211 ...........................................667

27-212 ...........................................243

750
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

Ch. 27-3 ......................................225, 226 27-301 ...........................................226 27-303 ...........................................226 27-401 et seq.......................................579 27-421 .......................................507, 508 27-508 ............................................99 27-704 ...........................................580 27-901 ...................................242, 255, 579 -27-902 ........................................99, 256 27-904 ...........................................612 27-905 ...........................................612 27-1410 ..........................................614 27-2506 ..........................................405 27-2514 ......................................... .119 27-2602 ..........................................653 27-2709 ..........................................451 27-2741.1 .........................................510 27-2801 ..................................... .507, 508 27-2805 ......................................507' 508 Ch. 27-29 .........................................464 27-2902 ..........................................607 27-2906 .........................................464 27-2913 ..........................................464 27-2928 ........................................ ..464 27-2932 ..........................................464 29-106 .......................................458, 459 29-109 ...........................................418 29-202 ...........................................494 32-509 ................................. - .........309 32-606 ................................ ... ........591 32-622 ................. ......................228, 592 32-628 ...................................... .269, 270 32-909 ............................ ...... .404, 469,470 32-921 ...........................................205 32-923 ...........................................205 32-928 ...........................................221 32-942 .................................. .423, 424, 426 32-1106 ...........................57, 150,475,542,715 32-1401 ..........................................715 32-2107 ..........................................689

751
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

32-3305 ..........................................289 32-3306 ......................................275, 276 Ch. 32-34 .........................................527 Ch. 32-34A ........................................621 32-3707 ..........................................707 34-102 ...........................................303 34-1 03 .......................................209' 685 34-507 ............................................85 34-602 .......................................303' 416 34-605 ...........................................509 34-607 ....................... ~ ...................234 34-620 ............................................88 34-627 .................. .........................684 34-632 ...................................685, 686,701 34-705 ...........................................555 34-706 .......................................349, 555 34-805 ...........................................209 34-806 .........................................7' 721 34-902 .......................................... .500 34-1001 ........................................7, 281 34-1109 ..........................................281 34-1110 ..........................................281 Ch. 34-14 ..........................................84 34-1401 ...........................................84 34-1407 ........................................84, 85 34-1509 ..........................................630 34-1514 ..........................................281 34-1515 ............................................7 34-1932 ...........................................84 34A-102 ............................. .303, 463, 635, 666 34A-103 ......................................556, 700 34A-105 ......................................641, 642 34A-501 ..................... .416, 589,590,635,644,684 34A-506 ..........................................644 34A-519 ..........................................684 34A-523 ..........................................701 34A-601 ..........................................556 34A-632 ..........................................685 34A-701 ......................................500, 501 34A-702 ..........................................501

752
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

34A-801 ..................................... .500, 501 34A-803 ..........................................500 34A-901 ......................................665, 666 34A-902 .........................................560 34A-904 ..........................................463 34A-905 .................................500, 559, 560 34A-912 .........................................560 34A-1006 .........................................556 34A-1223 .........................................515 34A-1409 .......................................84, 87 35-1004 ..........................................336 36-502 to 36-506 ...................................695 36-504 ...........................................695 Ch. 36-6A .........................................695 36-606 ..........................................657 36-609 ...........................................656 36-611a .........................................695 Ch. 36-14 .........................................480 Title 37 .......................................... .15 37-116 ...........................................210 37-204 ............................................13 38-801 ...........................................526 38-2001 ..........................................285 Ch.39-1 ..........................................341 39-103 .......................................341, 342 39-701 .........................................144 39-1101 ..........................................394 Ch. 40-4 ..........................................238 40-401 et seq.......................................647 40-402 .......................................238, 362 40-405 ..........................................238 40-408 ....................................65, 274, 435 40-409 ............................................66 40-413 ...........................................238 40-414 ...........................................238 40-415 ..........................................238 40-416 ...........................................238 40-417 ...........................................238 40-421 ...........................................363 40-802 ...........................................166

753
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

40-808 ...........................................166 40-811 ...........................................166 Ch. 40-8A .........................................278 40-811a ..........................................278 40-812a ......................................278, 279 40-1901 ..........................................647 40-1902 ..........................................373 40-1909 .................................408, 409,412 40-1921.1 .........................................717 40-1927 ......................................615, 647 40-1933 ..........................................717 40-2002 ......................................357' 358 40-2003 ..........................................357 40-2107 ..........................................540

40-2108 ..........................................540 40-2124 .......................................66,436 40-2221 ............................................6 40-2242 ...........................................6 40-2501 ............................6, 219, 443, 489, 490 40-2503 ..........................................219 40-2504 ......................................216, 660 40-2505 ........................................82, 83 40-2805 ..........................................520 40-2906 .......................................66, 436 42-612 ...........................................271 42-907 ...........................................332 42-1103 .........................................332 45-114 ...........................................517 45-117 ...........................................350 45-511 ...........................................517 45-512 .......................................517, 518 47-102 ...........................................207 Title 47-5 .........................................646 47-504 ...........................................346 47-504 to 47-510 ...................................149
47-505 ...........................................347 47-509 ...........................................347 47-516 ...........................................269 47-1404 ...........................................50 49-314 ...........................................459

754
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

49-315 ...................................... .459, 460 49-612 ...........................................285 50-1253 ..........................................293 54-603 ...........................................467 54-606 ...........................................467 54-608 ...........................................467 54-609 ...........................................467 54-620 .................................. .467' 468, 469 54-622 ...........................................467 54-624 ...........................................467 54-627.1 ..........................................467 54-642 ...................................... .467' 468 54-657 ...........................................467 54-901 ...........................................521 56-201 ...........................................551 56-310 ...................................... .483, 485 56-613 to 56-628 ...................................700 Ch. 56-10 .........................................563

56-1005 ..........................................483 56-1020 ..........................................563 56-1028 ..........................................519 56-1032 ..........................................519 Ch. 56-13 .........................................551 56-1303 ..........................................551 56-1311 ..........................................551 56-1504 ...........................................87 56-1505 ...........................................87 Ch. 56-19 .........................................255 56-1925 ..........................................255 56-1941 ..........................................255 56-2419 ..........................................681 56-2423 ............................................3 56-2425 .......................................... .133 56-2437 ......................................... .169 Ch. 57-1 ...........................................55 57-101 .........................................56, 67 57-102 ............................................68 57-118 .........................................56,68 Ch. 57-2 ...........................................56 58-208 ...........................................620

755
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

:58-609 ...........................................715 58-612 ...........................................715 58-705 ...........................................715 58-1013 ...........................................23 58-1065 ...........................................23 58-1080 ...........................................23 58-1502 ..........................................405 61-101 .................................. .370, 493, 679 61-109 .......................................153, 370 Ch. 61-3 ..........................................242 61-302 ...........................................242 61-402 ...........................................243 63-301 ............................................49 64-101 ...................................229, 247' 699 64-104 ...........................................229 64-106 .......................................229, 247 Ch. 65-2 ..........................................562 67-1107 ..........................................575 Ch. 68-1 to 68-4 ....................................535 68-101 ...........................................336 68-109 ...........................................534 68-201 .......................................263, 537 68-214 .................................. .482, 615, 616 68-216 .......................................615, 647 68-221 ...........................................200 68-245 ...........................................647 68-247 ........................................... 117 68-255 to 68-259 ..... ." .............................537 68-260 ...........................................336 68-405 ...........................................676 68-406.2 ..........................................535 68-1502 ......................................263, 632 68-1610 ..........................................618 68-1611 ...........................................40 68-1625 ........................................42, 79 68-1626 ......................................613, 614 68-1627 ..........................................173 68-1628 ..........................................173 68-1673 ......................................404, 405 68-1680 ..........................................514

756
GEORGIA CODE ANNOTATED SECTIONS ----Continued

CODE SECTIONS

PAGE

68-1681 ..........................................514 68-1682 ..........................................102 68-1701 ..........................................263 68-1704 ..........................................263 68-1707 ..................................287' 291' 292 68-1708 ..........................................263 68-1716 ..........................................287 68-1726 ..........................................263 68-9926 ..........................................103 68-9927 ................................ .38, 79, 80, 400 68-9931 ..........................................613 69-201 ...................................... .138, 635 69-202 ...................................... .101, 473 69-903 .......................................... .101 69-1017 ..........................................433 69-1018 ..........................................559 Ch. 69-12 ..................................... .43, 687 69-1201 ......................................687' 688 69-1202 ...........................................55 69-1301 ..........................................618 69-1603 ...........................................65 Ch. 71-1 ..................................... .432, 724 Ch. 71-4 ......................................723, 724

71-401 ...........................................723 71-404 ...........................................724 74-105 ...........................................452 74-9902 ................................. - ....451' 452 76-201 ............................................27 77-307 ...........................................438 77-309 ........................... .46, 119, 192, 285,724 77-318 ...........................4,5,202,298,590,660 77-319 ...................................... .376, 438 77-320 .............................. .134, 192, 285, 579 77-327 ........................................27, 415 77-330 .......................................578, 580 77-331 ...........................................578 77-332 ...........................................578 77-333 .......................................285, 578 77-334 ...........................................578 77-335 ...........................................578

757
GEORGIA CODE ANNOTATED SECTIONS ----Continued

CODE SECTIONS

PAGE

77-336 ...........................................578

78-901 ...........................................444

78-1004 ..........................................519

78-1308 ...........................................222

79405 ..........................................701

79406 ...........................................685

79407 ...........................................701 Title 79A .........................104, 105, 106, 107, 152

79A-102 ..........................................650

79A-208 ................................. .107, 152,651

79A-302 ......................................... .152

79A407 ..........................................105

79A408 ......................................151, 152

79A410 ..................................105, 650,651

79A-506 .............................. 105, 151, 152,650

79A-513 ..................................... .151, 152

79A-515 ......................................... .152

79A-516 ...........................................152

79A-517 ..........................................151

79A-519 ......................................151, 650

79A-520 ..........................................650

79A-704 ......................................... .105

Ch. 79A-8 .................................... .386, 609

79A-802 ..................................105, 386, 650 79A-806 ......................................105, 106

79A-807 ..........................................650

79A-808 ..........................................105

79A-815 ..........................................386

79A-818 .......................................... 152

79A-820 ..........................................152

Ch. 79A-9 .........................................437

79A-905 ..........................................152

79A-907 ..................................... .105, 650

79A-908 ......................................... .152 79A-910 ......................................... .152

79A-1004 .........................................152

79A-1006 .........................................152

79A-1101 ........................................ .105

79A-9911 .....................................609, 611

79A-9915 .........................................437 Title 84 ...........................................17

758
GEORGIA CODE ANNOTATED SECTIONS ----Continued

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PAGE

Ch. 84 ............................................17

84-101 .................................... .17, 18, 548

84-102 ...................................547, 548,549

84-202 ...............................547, 548, 549, 550

Ch. 84-4 ....................................... .16, 18

84-401 ...........................................637

84-507 ...........................................260

84-510 ...........................................260

Ch. 84-9 ....................................... .16, 18

Ch. 84-10 .......................................16, 18

Ch. 84-14 .......................................16, 17

84-1402 ..........................................403

84-1403 ..........................................403

84-1422.1 .........................................403

Ch. 84-21 .........................................637

84-3001 ..........................................680

84-3109 ..........................................714

84-3110 ......................................713, 714

Ch. 84-34 .........................................623

84-341 0 ..........................................622

84-3420 ..........................................622

Ch. 84-39 .........................................537

84-3902 ......................................537' 538

84-3908 ...........................................35

Ch. 84-40 .........................................636

84-4001 ..........................................636

84-4006 ..........................................636

84-4007 ..........................................636

84-4009 ..........................................636

84-4101 ............................. .427, 429,597,598

84-4102 ......................... .383, 384, 385, 598, 599

84-4109 ............................................8

Ch. 84-43 .....................................712, 713

84-4303 ..........................................712

84-4318 ..........................................712

Ch. 84-44 ...................................... .16, 18

84-4405 ...........................................18

84-4407 .............................................18

84-4412 ..........................................201

Ch. 84-48 .........................................268

759
GEORGIA CODE ANNOTATED SECTIONS ----Continued

CODE SECTIONS

PAGE

84-4805 ..........................................269

84-9959 ......................................622, 623

84-9966 ..........................................636

84-9967 ..........................................599

85-105 ..........................................442

85-201 .................................. .113, 246, 442

85-801 ...........................................493

85-1701 ..........................................442

86-201 .............................................6

86:-906 ...........................................348

86-1109 ..........................................420

88-115 ...........................................331

Ch. 88-5 ............................. .530, 532, 583, 648

88-501.9 ..........................................530

88-502.1 ...................................... .285' 286

88-502.14 .................................... .s83, 584

88-502.15 .....................................285' 286

88-502.16 .................................285, 286, 648

88-502.18 .................................... .285' 286

88-503.1 to 88-503.5 ........................... .532, 533

88-504.1 to 88-504.6 ............................532, 584

88-505.1 to 88-505.7 ............................532, 584

88-506 ...............................648, 652, 653, 654

88-506.1 to 88-506.4 ............................532, 584

88-506.6 ..........................................525

88-507 ...........................................290

88-507.2 ......................................530, 532

88-507.2 to 88-507.3 ................................584

88-507.3 ..................................530, 532, 584

88-508.1 ..........................................533

88-508.9 ......................289, 290,530,531,532,533

88-512 ...........................................701

Ch. 88-9 ..........................................455

88-916 ...........................................671

Ch. 88-18 ...................................9, 284, 702

88-1802 ..........................................703

88-1803 ........................................9, 703

88-1805 ...........................................10

88-1807 ...........................................10

88-1812 ........... ' ................................9

760
GEORGIA CODE ANNOTATED SECTIONS ----Continued

CODE SECTIONS

PAGE

88-1820 ..........................................702 88-1901 ..........................................331 88-1904 ..........................................331 88-5506 ..........................................421 89-101 .....................51' 52, 120, 388, 430, 545' 697 89-103 ............................51, 138,388,499,635

89-105 .......................................227, 504 89-308 ...........................................668 89-309 ...........................................668 89-310 ......... ..................................668 89-426 .......................................... .129 Ch. 89-8 ...........................................39 89-810 .......................................702, 703 89-811 ............................................39

89-812 .......................................702, 703 89-830 .................................. .476, 477, 614 89-903 ...........................................551 89-913 .......................................654, 656 89-913 to 89-918 ...........................626, 670,672 89-914 ...........................................670 89-915 ...........................................670 89-1201 to 89-1214 .................................704 89-1301 ..................................... .365, 521 89-1302 ......................................521, 522 89-1303 ..................................... .366, 522 89-1304 ..........................................522 89-9901 ..........................................668 89-9916 ..........................................626 91-103 ...........................................353 91-117 ...................................274, 387,435 91-102a ..........................................486

91-109a ..................................... .371, 373 91-804 .................................. .300, 373,486 91-806 ...................................... .300, 486 91-3213 ..........................................399 91-6911 ...........................................707 92-101 .......................................520, 679 92-104 ...................................... .374, 679 92-116 ............................................73 92-201 ...................... .392, 502, 503, 504, 544, 696

761
GEORGIA CODE ANNOTATED SECTIONS ----Continued

CODE SECTIONS

PAGE

92-201.1 ................................. .453, 454, 455 92-220 ...........................................390 92-221 ...........................................390 92-232 ..........................................3, 76 92-233 ............................................77 92-234 ..........................................3' 77 92-304 ...........................................360 Ch. 92-8 ..........................................218 92-801 .................................. .185, 305, 722 92-803 .......................................... .185
92-804 .......................................218, 219 92-1403 ..................................... .130, 131 92-1513 ..........................................308 92-1514 ..................................... .308, 475 92-1 515 ..................................... .307' 308 92-2401 ..................................634, 677' 678 92-2402 ..........................................678 92-2403 ..........................................634 92-2405 ..........................................677 92-2485 ..........................................678 Ch. 92-30 ..............................95, 224, 245, 328 92-3002 ..................................223, 224, 329 Ch. 92-31 ..........................95, 224, 245, 328, 593 92-3101 ..........................................223 92-3106 ...........................................24 92-3107 ..................................141, 258, 501 92-3108 ...........................................24 92-3109 ...............................24, 258,557,593 92-3111 ..........................................224 92-3111.1 .........................................557 92-3113 ........................................96, 97 92-3118 ..................................... .328, 329 Ch. 92-32 ..............................95, 224,245, 328 92-3202 ........................................95, 96 92-3209 ...........................................97 92-3214 ..........................................399 Ch. 92-33 ..........................................95 92-3402 ..................... .167, 186,280,361,595,725 92-3403 .................. 43, 155, 164, 170, 186, 188, 239,
454,456,595

762
GEORGIA CODE ANNOTATED SECTIONS ----Continued

CODE SECTIONS

PAGE

92-3407 - .........................................209 92-3408 ..........................................209 92-3410 ..................................... .162, 178 92-3417 ..........................................621 Ch. 92-34A ........................................538 92-3418a .........................................361 92-3419a .........................................361 92-3422a .........................................254 92-3428a .........................................399 92-3429a .........................................399 92-3431 a .........................................399 92-3446a .....................................244, 513

92-3501 ...........................................16 92-3502 ............................... : ...........17
92-3701 ..........................................394 . 92-3708 ..........................................313 92-3807 ..........................................394 92-4801 ..........................................117 92-4901 ..........................................366 92-5301 ..................................150, 512,714 92-5304 ..................... .150, 476, 477, 648, 697, 714 . 92-5702 ..................................... .382, 708 92-5703 ..........................................382 92-5708 ..........................................360 92-5710 ......................................... .149 92-5711 ......................................... .149 Ch. 92-62 .........................................645 92-6202 ......................................246, 360 92-6202.1 .....................................644, 645 92-6216 ......................................... .149 92-6703 ..........................................520 92-6903 ...........................................80 92-6907 ......................................639, 641 92-6911 ......................................246, 382 92-6912 ................................. .382, 675, 676 92-6913 ..................................... .455, 543 92-7008 ..................................228, 233, 269 92-7013 ......................................228, 233 92-7301 . .........................................394 Ch. 92-74 .........................................341

763
GEORGIA CODE ANNOTATED SECTIONS ----Continued

CODE SECTIONS

PAGE

92-7401 ................................. .341, 366,394 92-7406 ..........................................366 92-7501 ..........................................366 92-7602 ..........................................144 92-7701 ................................. .144, 145,551 92~7702 ......................... ' ................144 92-8101 ..........................................394 92-8102 ..........................................394 92-8413 ..........................................219 92-9945 ..........................................457 92-9969 ..........................................647
Ch. 92A-1 .........................................400 Chs. 92A-1 to 92A-5 ................................606 Ch. 92A-2 .........................................536 92A-401 ..........................265, 618, 619, 620, 632 92A-402 ..........................................263 92A-430 ...........................................38 92A-442 ..........................................263

Ch. 92A-5 .......................10, 81, 103, 400, 535, 716 92A-501 ..........................................607 92A-502 ..........................................400 92A-504 ........................................81, 82 92A-506 ..........................................724 92A-509 ..........................................536 92A-511 ........................................82, 99 Ch. 92A-6 .................................605, 606, 690 92A-605 ................. .47, 70, 71, 79,183,596,605,690 92A-606 ................................... .47, 49, 690 92A-608 ...........................................39 92A-610 ........................................70, 71 92A-611 ..................................145, 183, 184 92A-710 ..........................................498 92A-715 ..........................................498 92A-720 ..........................................497 92A-1402 .........................................633 92A-9908 .......................................38, 98 93-304 ............................................32 93-416 ............................................60 93-417 ............................................60 Ch. 94-10 .................................... .400, 401

764
GEORGIA CODE ANNOTATED SECTIONS ----Continued

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PAGE

95-608 ...........................................535 95-609 ...........................................535 96-610 ...........................................535 95-611 ...........................................535 95-1505 ..........................................585 95-1602 ..............................566, 568, 570, 717 95-1607 ..........................................691 95-1609 ..................... 564,566,572,574,617,654 95-1620 ..........................................716 95-1710 ..........................................646 95-1715 ..................................... .315, 316 95-1743 ..........................................536 Ch. 95-23 .........................................691 95-2302 ..........................................691 95-2304 ..........................................691 96-204 ............................................56 Ch. 96-9 ...........................................56 96-902 ............................................56 96-904 ............................................56 Ch. 96-10 ..........................................56 Title 97 ........................................... 15
97-101 ..................................... .100, 661 97-101 to 97-116 .................................. .179
97-102 .............................. .132, 257,461,662 97-104 .................................. .100, 257,461 97-105 .......................................... .132 97-106 .................................. .100, 257' 461 97-107 .................................. .100, 257,461 97-9901 ......................................... .179 99-142 ...........................................359 99-143 ...........................................359 99-144 ...........................................359 99-145 ...........................................359 99-146 ...........................................359 99-199a ..........................................277 Ch. 99-2 ..........................................526 99-211 ...................................... .441, 504 99-213 .............................90, 91, 503, 504, 524 99-508 ...........................................358 99-603 ...........................................323

765
GEORGIA CODE ANNOTATED SECTIONS ----Continued

CODE SECTIONS

PAGE

99-701 ...........................................323 99-916a ..........................................277 99-932a ..........................................277 99-2002 ..........................................323 Ch. 99-29 .........................................324 99-2915 ..........................................359 102-102 .......... 72, 199,213,223, 311, 332,347,370,407,
425,452,465,482,487,547,561,573,657,687,705 102-103 ..................................... .372, 597 102-104 ...........................................21 102-109 ..................................... .175, 541 102-111 ............................. .181,310,367,576 108-210 ..........................................279 108-408 ..........................................470 108-409 ..........................................470 108-417 ..........................................563 Ch. 108-6 .........................................100 108-60 1 et seq...................................99, 100 108-609 .......................................... 100 109A-2-102 ........................................ .1 109A-2-204 .........................................2 109A-2-206 .........................................2 109A-2-207 .........................................2 109A-2-319 .........................................2 109A-3-104 .......................................425
109A-9--408 .......................................172 110-501 ..........................................146 110-507 ..........................................144 11 0-1 00 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .144 Ch.110-11 ........................................599 111-208 ..........................................697 111-402 ..........................................700 111-520 ......................................699, 700 113-1528 .........................................702 113-1601 .........................................558 Ch. 114 ...........................................66 114-406 ..........................................160 114-803 ......................................602, 603

j j j j j j j j j j j j j j j j j j j j j

INDEX

767
PAGE

ABANDONMENT. Child, of, court proceedings ........................ .450

ACCOUNTANCY, STATE BOARD OF. Attendance by members at meetings with similar boards of other states ............................546
ACTIONS. State, against ................................... .207
AD VALOREM TAXES. Annexed property ............................... .359

Assignments made to avoid .........................149 Austrian Consular property .........................678 Charitable organizations ................... .318, 321,543 Chickens remaining in hands of producer .............. .502 Church organization automobiles ......................58 City-owned gas facility ..............................26 College property or funds held as endowment and
invested in real estate ............................504 Educational organizations ......................... .321 Evaluating property .............................. .382 Exemptions, generally .............................643

Farm products in hands of warehousemen ............. .392 Golf carts .......................................520 Homestead exemption ........................ .318, 319 Increasing valuation of property when fair market
value increases .................................707 Lease conveying interest in real property ...............678 Motor boats .....................................520 Motor vehicles ....................................58

Compensation for collecting ...................... .474 Municipal corporations .............................644 Navigation company ...............................126 Nursery products .................................574 Ornamental garden shrubs ......................... .574 Pollution, facility necessary to reduce air
or water ......................................453 Property valuation and equalization loan ................11 Religious institutions ............................. .321 Religious institutions, vehicles owned by ...............203 Transit company .................................109 ADMINISTRATIVE PROCEDURE ACT. Mining without a license, contested cases
requirements not applicable to sanctions for ..........694 ADMINISTRATORS AND EXECUTORS.
Deed of administrator to heirs as not

taxable under Real Estate Transfer Tax Act .......... .305

768

INDEX

PAGE

ADVERTISEMENTS. Highway construction bids ..........................716 Tax execution, sales under ......................... .394
AGE OF PERSONS. Civil office, eligible to hold .........................545 Homestead exemption ..........................76, 319
AGRICULTURAL COMMODITY COMMISSION FOR EGGS. Investments .....................................562
AGRICULTURE. Importation of milk, denial of permit for .............. .270
AGRICULTURE, COMMISSIONER OF. Egg inspection fee, imposition of .................... .332
AIR TRANSPORTATION, STATE DEPARTMENT OF. Legislation relative to ............................. .361
AIRPORTS. Highway Department constructing and maintaining ...... .386
AMENDMENTS. Statutes, to effective date .......................... .575
APPEALS. Tax appeals, city or county providing board of ..........675
APPEARANCE BONDS. Real estate as security for ...........................242 Traffic cases ......................................98
APPROPRIATIONS. Error in Appropriations Bill, proposing budget where ........................................234 Hardship contingency ............................. .269 Public officials' duty excused where legislature fails to appropriate funds .....................228, 246
ARCHITECTURAL RENDERINGS AND DRAWINGS. Sales taxes ......................................239
AREA PLANNING AND DEVELOPMENT COMMISSIONS. Riot control programs ............................ .180
ARREST. Constable arresting sheriff ..........................234 Powers of arrest as not vested upon individual by agency of state ................................. .30 Shoplifters, civil liability for detention of suspected .....................................340 Warrants, issuance of ..............................266
ASSIGNMENTS. Ad valorem taxes, made to avoid payment of ........... .149

INDEX

769

PAGE
ATHENS, CITY COURT OF. Criminal cases tried without jury .................... .252
Payroll or income tax ..............................244 ATLANTIC TOWING COMPANY.
Tax returns ......................................126 ATTORNEYS AT LAW.
District attorneys continuing ........................198 AUCTION SALES.
Sales taxes ......................................188 AUDITS.
Political subdivisions, of ........................... .314 AUSTRIAN CONSULAR PROPERTY.
Ad valorem taxes .................................678 BAIL.
Capital offenses ..................................255 Release of surety on bond ..........................612 BAILIFFS. Councilman who is also a bailiff serving as
part-time policeman ............................ .134 BALLOTS.
See Elections. BANKS AND BANKING.
Charter renewal ..................................109 Charters, fees paid to Secretary of State for .............692 Computers used by customers for consideration,
sales and use tax ............................... .164 Depositories for county funds ....................... .39 Holding companies, control .........................561 Hospital authority deposits exceeding F. D. I. C.
insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70 1 Names of banks ............................. .588, 625 Superintendent of Banks granting
change in name of bank ......................588, 625 Taxation of bank association ....................... .155 BANKS, SUPERINTENDENT OF. Credit unions, rules as to ...................... .405, 407 BASTARDY. Court proceedings ............................... .450 BEER. City selling ......................................487 Excise tax by county ............................. .513 Taxation where given and consumed on premises .........71 S BIBB TRANSIT COMPANY. Property tax return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 09

770

INDEX

PAGE
BIDS.
Highway construction, advertisement ..................716
BLOOD TESTS. Implied consent law ............................... .41 Intoxicated motorists ............................. .345
BOATS. Taxation ........................................520
BONDS. Appearance bonds, real estate as security for ............242 Bail bond, release of surety .........................612 Cash bonds, receipts and record of payment ........... .368 Deputy sheriff's ..................................129 Higher Education Assistance Corporation ..............706 Motor Vehicle Safety Responsibility Act, under, cancellation ...................................596 Overheight vehicles ............................... .367 Tax collectors ................................... .117 Traffic cases, cash bonds in ..........................98
BOUNDARIES. Senatorial district, 40th ............................207
BREATH TEST. Alcohol test, motorists ............................ .345
BRIDGES. Fishing from .................................... .422
BROKERS. Licensing of real estate broker ...................... .403
BRUNSWICK PORT AUTHORITY. Pension plan for employees, may not contribute to privately operated ..............................638
BUDGETS. Error in Appropriations Bill, proposing budget where ........................................234 Hardship contingency ..............................269
BUSINESS. Eminent domain, taken by, measure of damages ........ .195
BUTTS COUNTY. Tax receiver, salary ................................511 .
CAPITAL OFFENSES. Bail ............................................255
CAPITAL PUNISHMENT. Verdict of guilty without recommendation of mercy ..... .118
CASH BONDS. Receipt and record of payment ..................... .368 Traffic cases ......................................98

INDEX

771

PAGE
CHARITABLE INSTITUTIONS. Ad valorem taxes ........................ .318, 321, 543 Financial reports .................................336
CHARTERS. Granted by General Assembly prior to January 1, 1863 .........................................193
CHATHAM COUNTY. Tax appeals, providing board of ......................675
CHILD ABANDONMENT. Court proceedings ............................... .450
CHILDREN AND YOUTH, DIVISION OF. Transportation of juveniles committed to custody of .......................................... 503
CHIROPRACTORS. Reciprocity. . ................................... .260
CHURCHES. Ad valorem taxes on automobiles ......................58 Charters granted by General Assembly prior to January 1, 1863 ................................193
CITY COURTS. Criminal trials without jury .........................252 Judges issuing arrest warrants ........................266 Ordinary's jurisdiction, judge exercising ................264 Solicitors, retirement ..............................222
CLAIMS ADVISORY BOARD ACT. Board of Regents as within purview of .................378 Stone Mountain Memorial Association not subject to ...........................................346
CLERKS OF COURTS. Divorce case, filing fee .............................129 Nolo contendere in traffic cases, reporting .............. .38 Summons, providing Board of Corrections with copy of .......................................724
COASTAL PLAINS SHERIFFS AND POLICE INTELLIGENCE UNIT. Multi-government emergency squad ...................666
COLLECTIVE BARGAINING. Hospital employees .............................. .365
COMPUTERS. Banks, of, used by customers for consideration, sales and use tax ................................164
CONDEMNATION. See Eminent Domain. Easement, judgment providing for .............. ~ .... .417

772

INDEX

PAGE
CONSENT. State, to actions against ............................207
CONSERVATION. State Assistance Fund, use of ........................703
CONSOLIDATED GOVERNMENTS. Powers of .......................................584
CONSTABLES. Act proving for appointment of constables as not varying classification of a constable ................ .391 Arresting sheriff ..................................234 City policeman, exercising powers while on duty as ............................................31 Commissions, ordinaries filing .......................630 Hold-over capacity, operating in ......................227 Justices of the peace, candidate also running for .........281 Motor vehicles, marking ....................... .286, 291
CONSTITUTIONAL LAW. Amendments, local, ratification .......................77 Contract between county and Y.M.C.A. to furnish recreational facilities ........................... .174 Detainer Act .................................... .122 Higher Education Assistance Corporation, Act creating ......................................275 Parole prohibition as to prisoners convicted on narcotics charges ...............................609 Public school contracting with non-public school agency for goods or services .......................161 Statutes declared to be unconstitutional when .......... .513
CONSUMER CREDIT PROTECTION ACT, FEDERAL.
State garnishment law, as superseding ............ .390, 539 CONTINGENCIES.
Appropriations, hardship contingency .................269
CONTRACTORS. Merger of, as not affecting rights and liabilities ..........710
CONTRACTS. Convicts or parolees entering into ....................190 County and Y.M.C.A., between, for furnishing of recreational facilities ........................... .174 Education boards, of, creating fiscal obligation extending beyond current year .....................220 Time for performance unilaterally extended ........... .305
CONVERSION. Condemnee, by ..................................708

INDEX

773

PAGE
CONVICTION OF CRIME. Summons, based on, copy to Board of Corrections .......724
CONVICTS. See Prisons and Prisoners. Contracts, entering into ........................... .190 Labor in clearing Canal Creek ........................660 Labor on private property ......................... .201 Realty, owning .................................. .190
CORONERS. Deputy sheriff, may not also be ......................499 Police officer, also a .............................. .499 Powers and duties ............................. 50, 296
CORPORATIONS. See Foreign Corporations. Charters granted by General Assembly prior to January 1, 1863 ................................193 Clerk's fees for incorporation, etc.....................477 Income taxes-
Deduction for contribution to educational organization .................................557
Net operating loss carry back ......................593 Mail order subsidiary, nonresident, sales taxes ...........170 Merger as affecting annual license tax ..................676 Railroad companies, incorporation of ................ .400 Records kept for tax purposes ...................... .399 Registered agent, resignation affidavit of ...............294 Report of financial condition, time for ................603 Surety company, petition for incorporation of ...........87 Taxation where corporate stock exchanged for
property of another corporation ...................722 CORRECTIONS, STATE BOARD OF.
See Prisons and Prisoners. Athletic director, funds for .........................438 Educational opportunities for inmates, college
level .........................................376 Educational programs to civic clubs presented by
inmates in penal system ..........................297 License plates, responsibilities as to ...................615 Minor inmates transfer to Youth Development
Center ........................................88 Release of prisoner prior to scheduled discharge
date .........................................284 Summons, copy furnished ..........................724 Work, authority to require prisoners to ............... .590

774

INDEX

PAGE
CORRECTIONS, STATE BOARD OF-Cont'd. Work release prisoners, funds deducted from salary to defray cost of maintenance ............... .506
COSMETOLOGY SCHOOL. license .........................................200
COSTS. Divorce cases, advance ............................ .139 Habeas corpus cases .............................. .292 Justices of the peace, due, paid out of county's fme and forfeiture fund ......................... .464 Ordinary's court ..................................349 Peace warrants ....................................27 When officer entitled to ............................716
COUNTIES. Audits .........................................314 Consolidated governments, powers of ................ .584 Contract with Y.M.C.A. to furnish recreational facilities ..................................... .174 Depositories for funds of ........................... .39 District attorneys, supplements to salaries ...............71 Emergency squads, multi-government .................666 Employees of fee system officers, pay of ...............675 Employees' salaries .................................85 Excise tax on beer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .513 Fee system officers, pay of employees of ...............675 Home rule .......................................33 Hospital authority's contributions to retirement system, authority to guarantee .....................283 Insurance for employees, taxation for .................666 Lease of personal property to private corporation, sales tax ............................725 Municipal officer also holding county office ............137 Officers' salaries ...................................85 Pensions, taxation to provide ........................668 Planning commission members as officers or employees ....................................687 Property valuation and equalization loan ................11 Recreational facilities, contract with Y.M.C.A. to furnish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 74 Riot control programs .............................180 Sales by, sales and use tax ..........................594 Sherifrs deputies and special deputies, liability for negligent acts of ...................... .169 Sheriffs, funds collected by............................243

INDEX

775

PAGE
COUNTIES-Cont'd. Surface Mining Act, applicability to counties ............175 Temporary personnel hired by governing authority to assist clerk of superior court ....................556 Watershed projects, Federal Government administering construction contracts ................481
COUNTY ATTORNEY. Tax assessor board member may also be .... : ...........639
COUNTY COMMISSIONERS. Chairman as sole purchasing agent bound by directions of majority of board ................... .303 Depositories for county funds, designating .............. .39 Time office open .................................698 Vacancy in office .................................171
COUNTY COURTS. Judges issuing arrest warrants ........................266 Ordinary's jurisdiction, judge exercising ................264
CREDIT UNIONS. Declarations of interest and dividends ................ .407 Deposits in, taxation ............................. .123 Interest charged ................................. .137 Investments .................................... .405
CRIMINAL COURT OF FULTON COUNTY. Chief prosecuting officer as not a district attorney .......................................28
CRIMINAL LAW. Capital offenses, bail ..............................255
CRIMINAL PROCEDURE. Ordinary's court, jurisdiction of .......................81
DAIRIES AND DAIRY PRODUCTS. Importation of milk .............................. .270
DAMAGES. Measure in condemnation case ...................... .176 Measure ofBusiness, taking by eminent domain .................195
DEEDS. Personalty attached to realty conveyed ................112 Title to buildings attached to land conveyed ............111
DEMAND. Alcohol blood test ............................... .345
DEPENDENTS SUPPORT LAW. Fees formerly payable under ........................276
DEPOSITORIES. County funds .................................... .39

776

INDEX

PAGE
DESTRUCTION OF DOCUMENTS. Termination statements ........................... .172
DETAINER ACT.
Ex post facto or retroactive law, as not ................122 DETAINER PROCEDURE.
Generally .......................................577 DETAINERS.
Warrant charging inmate of penal institution with offense as not constituting a detainer .............29
DEVELOPMENT COMMISSIONS. Riot control programs .............................180
DISTRICT ATTORNEYS. Commission for hospitalization of mentally ill, serving on .....................................421 Compensation ...................................642 Criminal Court of Fulton County, chief prosecuting officer as not a district attorney ...........28 Fees formerly payable under Uniform Reciprocal Enforcement of Support Act ..................... .276 Fees for services in Supreme Court ................... .147 Held in office pending outcome of election of successor as entitled to payment for that period ........................................504 Law practice, continuing .......................... .198 Peace officers, as not ............................. .475 Salaries ..........................................71
DIVORCE. Costs, advance ...................................139 Filing fee ...................................... .129
DOGS. Hunting, used in ................................. .517
DOMICILE. Income taxes, for purposes of .......................223 Two residences at same time ........................128
DOUGLAS, CITY OF. Recorder's court, jurisdiction ....................... .1 03
DRAG RACING. Suspension or revocation of license where plea of nolo contendere ................................613
DREDGING COMPANIES. Water Quality Control Act, subject to provisions of ...........................................479
DRIVER EDUCATION PROGRAMS. Governmental license plates for vehicles ................335

INDEX

777

PAGE
DRIVERS' LICENSES. Highway Department employees .....................631 Judgment not satisfied, suspension where ...............69 Operators of soft drink trucks, dairy trucks, etc. . ........618 Suspension or revocation .........................79, 97 Suspension or revocation after plea of nolo contendere to drag racing .........................613
DRUG ABUSE. Violations as felonies ............................. .436
DRUGS. See Pharmacists. Driving under influence, first offenders ................637 Hospitals, dispensed by machine in .................. .1 03 Mail, delivered, sold, etc. by .........................151 Seized narcotics used for research purposes ............ .385
DRUNKEN DRIVING. First offenders ...................................637
EASEMENTS. Condemnation judgment providing for ................ .417
EDUCATION. Higher Education Assistance Corporation, see Higher Education Assistance Corporation. Loan funds to benefit Georgia students ............... .527 Medical education board, scholarships ..................20 Prison inmates, college level ........................ .376
EDUCATION, COUNTY BOARDS OF. Contracts creating fiscal obligation extending beyond current year .............................220 Funds for survey to define area of responsibility .........689 Funds received from sale of school property, use of ...... .469 Property, power to sell ............................. .404 State employee on ............................... .389 Tax digests, preparing ..............................714 Term of members ................................. .44
EDUCATION BOARD, STATE. Furids appropriated to relieve hardships caused by Minimum Foundation Program of Education Act ......141
EDUCATION, STATE DEPARTMENT OF. Georgia Military College, allocation of funds to ..........591 University of Georgia faculty member becoming paid consultant to, Honesty in Government Act .......471
EDUCATIONAL ORGANIZATIONS. Ad valorem taxe~ ................................ .321 Ad valorem taxes on property held as endowment and invested in real estate .........................505

778

INDEX

PAGE
EGGS. Agricultural Commodity Commission for Eggs,
investments .................................. .562 Inspection fee ................................... .332 ELECTIONS. Absentee ballot where absentee elector in county
on election day ..................................83 Ballots-
Counting .....................................514 Printing of ....................................281 Bond elections, eligibility to vote in .................. .415 Candidates, qualification period ending on non-business day ...............................641 Districts separate when electing councilmen by wards ........................................555 Eligibility to vote in school bond elections ..............415 Failure to fill particular office in general election, special election where ....................240 MunicipalAnnexed area, eligibility to vote ....................589 Code as taking precedence over conflicting
charter provision .............................635 County registration list ...........................683 Generally .....................................644 Nonpartisan ...................................559 Qualification closing date .........................665 Municipal debts ................................. .204 Municipal governing authority fixing qualification fees ......................................463 Nonpartisan .................................... .559 Polling placeNational Guard armory as ....................... .348 Selection of buildings used as ..................... .555 Political party failing to file registration statement .....................................499 Qualification closing date, municipal elections ...........665 Qualification fees, municipality setting ............... .463 Qualification period ending on non-business day .........641 Referendum requiring 50% of people to vote ............182 Registrar serving out term as city councilman .......... .509 Registration, purging of voter registration records ........................................88 Residence of voter, criteria determining change of ...........................................684

INDEX

779

ELECTIONS-Cont'd.

PAGE

Residence of voters, convalescent patients ..............700

Right to vote of former prisoner .....................516

Special-

Eligibility of voter ............................. .302

Failure to fill particular office in general

election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .240

Time .........................................720

Vacant offices ..................................74

Surveyors, county ..................................6

United States government, person holding position

with, as prohibited from holding State office ..........120

Vacant offices, special election ........................74

Voting Rights Act of 1965, initiation of

proceedings to seek approval of local law

under ........................................274

Wards, districts. separate when electing

councilmen by .................................555

ELECTRICITY.

Resale of electric energy, jurisdiction of Public

Service Commission over ......................... .32

EMERGENCY SQUADS.

Multi-government .................................666

EMERITUS POSITIONS.

Additional compensation to judge emeritus for

each day of service ............................. .394

Judges, widow's benefits .......................... .163

EMINENT DOMAIN.

Business, taking an established, measure of

damages ......................................195

Circuity of travel as not a separate and

independent item of damages .......................62

Conversion by condemnee ..........................708

Highway Department condemning for park purposes ..... .315

Measure of damages ...............................176

National park, exercised for access road to ..............448

Special master, compensation ........................656

Taxes on condemned property, special master with-

out authority to order State to pay .................694

EMPLOYEES OF STATE.

See Merit System for Departments.

Accumulated leave where person resigns from one position to accept another ........................512

County board of education, serving on ................ .389

780

INDEX

PAGE
EMPLOYEES OF STATE-Cont'd. Health insurance program ...........................704 Honesty in Government Act, employees working after hours as cleaners ...........................654 Labor union, joining .............................. .521 Sales to State by ..........................626, 669, 671 Strikes by .................................. .365, 521
EMPLOYEES, PUBLIC. Holiday, working on, separation pay ..................259
EMPLOYEES RETIREMENT SYSTEM. City court solicitor ................................222 Involuntary separation benefits where working for State as independent contractor .....................82 Military service, credit for ..........................659 Prior service credits, military service ...................215 Superior court clerks and staff .......................218 Tax collectors, commissioners and receivers .............487
EMPLOYMENT AGENCIES. National Information and Storage and Retrieval Centers as not within defmition of ..................427 Sale of stock requiring approval of Commissioner of Labor ......................................383
EMPLOYMENT AGENT. Meaning of term ..................................597
EMPLOYMENT SECURITY AGENCY, GEORGIA. Consolidated wage combining plan ................... .466
ENTRAPMENT.
Liquor purchase from unlicensed establishments by Department of Revenue agents ..................607
ESCAPE. Good-time allowance, acquittal of escape charge as not vitiating duty to forfeit .....................133
ESCROW. Intangible taxes, escrow agent ...................... .121 Money in, intangible taxes ...........................73
ESTATES FOR YEARS. Leases of land for five years or longer . . . . . . . . . . . . . . . . .495
EXCISE TAXES. Malt beverages, county tax ......................... .513
EXECUTIONS. Advertisement of sales under tax execution ............ .394
EXECUTIVE ORDERS. Effect, abrogation ................................298

INDEX

781

PAGE
EXPENSES. Income tax on expenses paid to public officials ..........258
FAMILY AND CHILDREN SERVICES, STATE DEPARTMENT OF. Juveniles, review of commitment of .................. .439 Mentally ill minors, commitment .....................523 Residence requirement for public assistance ............ .322 Transportation of juveniles committed to custody of Division of Children and Youth ..................503 Travel expenses, reimbursement of ....................450 Volunteers, liability insurance and expenses ............ .354 Youth Development Center ..........................88
FARM PRODUCTS. Ad valorem taxes on chickens remaining in hands of producer ...................................502 Nursery products, taxation ..........................574 Tax exemption where in hands of warehousemen ....... .392
FARMERS. Sales taxes ......................................360
FEDERAL CONSUMER CREDIT PROTECTION ACT. State garnishment law, as superseding ............ .390, 539
FEDERAL GOVERNMENT. Interior Department's requirement that Historical Society have an architect as a member of review board ................................... 165 Natural Gas Pipeline Safety Act, Georgia law as not complying with ..............................59 Office of profit or trust under, as rendering one ineligible to hold civil office in Georgia ............. .430
State employees hired under federally funded contracts .......................................5
Watershed projects ............................... .481 FEDERAL HOUSING ADMINISTRATION.
Loans insured and guaranteed by, exceeding legal interest rate ....................................67
FEDERAL NATIONAL MORTGAGE ASSOCIATION. Participation certificates ........................... .483
FEE SYSTEM OFFICERS. Pay of employees of ...............................675
FEES. Egg inspection .................................. .332 Justices of the peace ...............................507 Uniform Reciprocal Enforcement of Support Act, formerly payable under ..........................276

782

INDEX

PAGE
FELONIES. Drug abuse violations ..............................436
F. 0. B. DESTINATION CONTRACTS. Freight rates, seller bears .............................1
FIERI FACIAS. Recording of levy on tax fi. fa....................... .341 Taxation, lien ....................................142
FILL DIRT. Sales as surface mining .........................265, 266
FINE AND FORFEITURE FUND. Justice of peace fees paid from ...................... .464
FIREARMS. Roads, handgun transported on ....................... .3 Sunday, discharged on ............................ .509
FIREMEN'S PENSION FUND. Investments .....................................519
FIRST OFFENDERS. Driving under influence ............................637
FISH AND FISHING. Bridges, fishing from ............................. .422 Ordinary's fees for disposing of cases involving game and fish laws ..............................588 Shad, license for taking ........................... .192
FIXTURES. Lessee, removal by ................................153
FOREIGN CORPORATIONS. Doctor licensed to practice in both Georgia and another State as not registering in Georgia as a foreign corporation ..........................712
Intangibles tax on stock ............................644 Mail order subsidiary, sales taxes .....................170 FOXES. Dogs, hunted with ............................... .517 FRANCHISES. Securities, franchising agreements as ..................661 FRATERNAL BENEFIT SOCIETIES. Occupation or business license tax ....................255 FREIGHT RATES. F. 0. B. Destination contracts .........................1 FULTON COUNTY. Criminal Court of Fulton County, chief
prosecuting officer as not a district attorney .......................................28 GAMBLING. Keno .........................................447

INDEX

783

PAGE
GAME. Killing wildlife to protect private property ...............25 Ordinary's fees for disposing of cases involving game and fish laws ..............................588
GAME AND FISH COMMISSION, STATE. Bridges, prohibiting fishing from .................... .422
GARNISHMENT. Federal Consumer Credit Protection Act as superseding State garnishment law ............. .390, 539
GAS. Ad valorem taxes on city-owned gas facility ..............26 Natural Gas Pipeline Safety Act, Georgia law as not complying with ............................59
GASOLINE. Tax on a tax, sales taxes ........................... .318
GENERAL ASSEMBLY. Appropriations, see Appropriations. Appropriate funds, public official excused from carrying out official duty where legislature fails to .................................. .228, 246 Boundaries of 40th senatorial district ..................207 Retirement system ................................ .49 State intangible property, sale of .................... .353 State property, disposal of ..........................485
Theater, designation of "official" State theater ......... .462
GEORGIA MILITARY COLLEGE. Funds allocation to .............................. .591
GIFT ENTERPRISES. Generally .......................................528 Procuring for or furnishing of .........................74
GIFTS. Historical Commission, to ..........................278
GO-CARTS. Licenses, equipment, etc. . ..........................263
GOLF CARTS. Taxation ........................................520
GOVERNOR. Emergency fundAllocation only to State agencies .................. .273 Benefiting municipal corporations ...................65 Labor availability study for c;ity, to provide .....................................540 Merger of political entities, distribution for study of ................................ .435 Executive orders ................................. .298

784

INDEX

PAGE
GRAND JURIES. Ordinary making claim for compensation ...............518
GROUP LIFE INSURANCE. Assignability of conversion privilege .....................2
GUARDIAN AND WARD. Dismissal of guardian of minor ward even when money in trust ................................ .458
HABEAS CORPUS. Costs ..........................................292 Generally ........................................46
HEALTH, DEPARTMENT OF PUBLIC. Oassification of institution as either hospital, nursing home or personal care home ............... .331 Form of notice as to hospitalization of mentally ill ...........................................289
HEALTH DEPARTMENTS, COUNTY. Motor fuel taxes, paying ............................720
HEALTH INSURANCE. State employees ..................................704
HIGHER EDUCATION ASSISTANCE CORPORATION. Investments by .................................. .288 Loan funds to benefit Georgia students ................527 Presumption of constitutionality of Act creating .........275 Revenue bonds ...................................706
HIGHWAY BOARD, STATE. Annexation of State-aid road to municipality .......... .1 01
HIGHWAY DEPARTMENT, STATE. Airports, constructing and maintaining ............... .386 Bids for construction, advertisement ..................716 Blasting by ......................................541 BoardDelegation of Board's power to directors .............563 Generally .....................................563 Liability of individual members ................... .563 Budget proposal where error in Appropriations Bill ..........................................234 Condemnation for park purposes .................... .315 Contracts, custodian of ............................690 Deeds, custodian of ...............................690 Driver's license requirements for employees of ...........631 Ex contractu claims against .........................585 Executive order as to sale of property, abrogation ....................................298

INDEX

785

PAGE
HIGHWAY DEPARTMENT, STATE-Cont'd.
Grassing rights of way ............................ .350 Labor union, employees joining .....................521 Liability for damages to private property caused
by public improvements ..................135, 325, 552 Merger of contractors as not affecting rights
and liabilities ..................................710 National park, exercising eminent domain for
access road to ..................................448 Overheight bonds payable to ....................... .367 Properties acquired in advance of construction,
procedure for lease and sale of .................... .369 Purchase of options for substitute sources of
construction material ........................... .342 Purchase price for right of way reduced where
all of land described in deed was not conveyed ........493 Relocation assistance ......................... .412, 441 Relocation expenses ...........................112, 153 Right of way rules and regulations, revocation
at will of permit granted under .....................623 Soil pit failing to provide quality and quantity
of material called for, liability where ............... .396 Soil pit, responsibility for inadequacy of ...............681 Tort claims against ................................645 Treasurer, salary ..................................631 Trover where condemnee converts property .............708 Urban renewal conveyances to, real estate
transfer tax .....................................184 Welcome stations .................................464 HIGHWAY OFFICIALS, SOUTHEASTERN ASSOCIATION OF STATE. Industry and Trade Department may not expend
State funds in connection with convention of ...........................................529 HIGHWAYS. See Roads, Public. Planning commissions as not political subdivisions ....................................53 Right of way lines, property rights when pavement is beyond ..................................68 Sheriff on patrol on interstate highway ................533 Twin trailers operating on ..........................676 Utility relocation, payments for .......................12 HILL-BURTON HOSPITAL. Osteopath on staff of ..............................191

786

INDEX

PAGE
HISTORICAL COMMISSION, GEORGIA. Gifts, accepting ..................................278 Federal Department of Interior requirement that review board have an architect as a member .......... .165
HOLIDAYS. Public employees working on, separation pay ...........259
HOME RULE. Counties, for .................................... .33 Personnel department and merit board established by city .......................................432
HOMES, MOVABLE. Manufacturers of, rules ............................ .268
HOMESTEAD EXEMPTION. Ad valorem taxes ............................ .318, 319 Affidavits .......................................644 Failure to file application .......................... .389 Farm incorported with stock owned by man and wife ...........................................3 Joint ownership with person under 65 ..................76 Net income for persons 65 years or older ................24 Social Security benefits, consideration of ...............140 Veterans .........................................94
HONESTY IN GOVERNMENT ACT. Oeaners working after regular hours ..................654 University of Georgia faculty member becoming paid consultant to State Department of Education .................................... .471
HOSPITAL AUTHORITIES. Bank deposits exceeding F. D. I. C. insurance ...........701 Loans by county hospital authority .....................9 Retirement system, county guaranteeing contributions to .....................................283
HOSPITALS. Classification of institutions by Health Department .........................................331 Collective bargaining with hospital employees .......... .365 Drugs dispensed by machine in ...................... .1 03 Osteopaths on staff of Hill-Burton Hospital .............191
HUNTING. Ordinary's fees for disposing of cases involving game and fish laws ..............................588 Raccoons or foxes hunted with dogs ................. .516 Sunday, on ......................................509 Trespassing hunter ................................625

INDEX

787

PAGE
IMPLIED CONSENT LAW. Blood examinations ............................... .41
INCOME TAXES. Accounting period, 52-53 week ..................... .328 Cities, levied by ..................................244 CorporationsDeduction for contribution to educational organization .................................557 Domicile for purposes of, movement ..................223 Expenses paid to public officials .....................258 Inventory ownership of liquor where dealer goes out of business ................................ .329 Net operating loss carry back ....................... .593 Patronage dividends ...............................501 Records of corporations kept for purpose of ........... .399 Venue where refusal to pay ........................ .457
INCOME TAX RETURNS. Consolidated, right to file ............................95
INDUSTRY AND TRADE, DEPARTMENT OF. Southeastern Association of State Highway Officials, may not expend State funds in connection with convention of .................... .529 Tourism, expenses in promoting ..................... .474 Welcome stations .................................464
INFANTS. Child abandonment and bastardy proceedings .......... .450 Civil office, holding .............................. .545 Legal status of juvenile at Youth Development Center ............ ............................90 Life insurance settlements by married person eighteen or older ...............................132 Mentally ill, commitment as .........................523 Obscene material made available to minors ............ .492 Youth Development Center, transfer of minor inmates to .....................................88
INHERITANCE TAXES. Real estate subject to conditional sales contract and partnership real property ...............558
INSANE PERSONS. Admissions, jury trial ..............................648 District attorney serving on commission for hospitalization of .............................. .421 Hospitalization of ..................................60 Infants, commitment ..............................523 Notice, form of, as to hospitalization ................. .289

788

INDEX

PAGE
INSANE PERSONS-Cont'd. Procedure for admitting mental patients ...............285 Transportation of .................................583
INSPECTIONS. Egg inspection fee ............................... .332
INSURANCE. County employees, for, taxation to provide .............668 State employees ..................................704 Uninsured motorist coverage as affecting Motor Vehicle Safety Responsibility Law ..................690 Warehousemen ...................................699 Workmen's compensation, self-insurance ...............310
INSURERS. Back taxes from insurance contracts written outside State .....................................550 Federal National Mortgage Association participation certificates ..........................483
INTANGIBLE PROPERTY. State, owned by, sale of ........................... .353
INTANGIBLE TAXES. Escrow agent ....................................121 Foreign corporation stock ..........................644 Money in escrow ..................................73 Processing where return for small amount ............. .147
INTEREST. Credit unions, charged by .......................... .137 Home loans insured and guaranteed by F. H. A. and V. A. which exceed legal interest rate .............67 Monthly service charges on merchant's trade accounts .......................................55
INTERSTATE COMMERCE. Milk, importation of ...............................270
INTERSTATE HIGHWAYS. Sheriff on patrol on .............................. .533
INTOXICATING LIQUORS. Driving under influence, first offenders ................637 Fees to salaried law enforcement officer ...............620 Malt beverages, county excise tax on ..................513 Ownership for tax purposes of inventory where dealer goes out of business ....................... .329 Purchase from unlicensed establishments by Department of Revenue agents as not constituting entrapment ..........................607 Transportation and possession of taxpaid liquors in wet county .............................25

INDEX

789

PAGE
INTOXICATION. Blood tests ..................................... .345
INVESTMENT CLUB. Registration .................................... .460
INVESTMENTS. Agricultural Commodity Commission for Eggs .......... .562 Credit unions, of .................................405 Firemen's pension fund ............................519 Higher Education Assistance Corporation, by ...........288 School funds ....................................423
JACKSON SUPERIOR COURT. Terms ..........................................282
JAILS. Sheriff's duty in keeping ...........................19
JUDGES. Arrest warrants, issuing ........................... .266 Expenses reimbursed ..............................496 Juvenile courts, appointment ........................576 Widow's benefits .................................163
JUDGMENTS. Condemnation judgment providing for easement ........ .417
JURISDICTION. Confinement under criminal warrant, as to persons in ............................ . ........652 Driving under influence, of ordinary as to ............. .399 Electric energy, over resale of ........................ .32
Ordinary, court of .................................10 Ordinary, court of, criminal cases ......................81 Recorder's court ................................. .1 03 Traffic violations-
Municipal courts ................................606 Ordinaries .....................................595 JURY. Trial by-
Criminal cases in city court .......................252 Mentally ill persons, medical admissions ..............648 JUSTICES OF THE PEACE. Appearance bond, accepting real estate as security for ....................................242 Arrest warrants, issuing ........................... .266 Atlanta, outside of, forbidden to issue warrant for crime taking place in Atlanta ...................686 Back taxes, as playing no part in collection of .......... .366 Constable, candidate also running for ..................281

790

INDEX

PAGE
JUSTICES OF THE PEACE-Cont'd. Fees ...........................................507 Fees paid out of county's fme and forfeiture fund .........................................464 Hold-over capacity, operating in ......................227 Marriage ceremonies by ........................... .240 Quarters and materials for justice of peace courts .........................................41 Small claims court judge, serving as .................. .387
JUVENILE COMMITMENTS. Review of .......................................439
JUVENILE COURTS. Judges, appointment ..............................576 Judges, reappointment where not an attorney at law ........................................267
KENO. Legality of game ................................. .447
LABOR. Collective bargaining, hospital employees .............. .365 Highway Department employees joining union ..-........521 State employees, strikes by ........................ .365
LABOR, COMMISSIONER OF. Private employment agency stock sale requiring approval of ....................................383
LAND AND WATER CONSERVATION. State Assistance Fund used for .......................703
LANDLORD AND TENANT. Fixtures removed by lessee ......................... .153
LEASES. Ad valorem taxes where lease conveys interest in real property ................................678 Five years or longer ............... ~ .............. .493 Fixtures removed by lessee ......................... .153 Sales tax upon lease of personal property from county to private corporation .....................725
LEVY. Recording of tax fi. fa............................. .341 State agency, notice to .............................649
LICENSES AND LICENSE TAXES. Corporate merger as affecting ........................676 Cosmetology school .............................. .200 Fraternal benefit societies, city imposing tax on ...........................................255 Go-carts ........................................263

INDEX

791

PAGE
LICENSES AND LICENSE TAXES-Cont'd. Mini-bikes .......................................263 Mining .........................................694 New York license to sell securities as not valid in Georgia ............................... .131 Permanent license where previous award of temporary license ...............................713 Physicians licensed to practice in both Georgia and another State ...............................712 Psychologists ....................................713 Railroads, private car lines ........................ ; .634 Real estate brokers ............................... .403 Real Estate Commission Act, under .....................7 Shad, fishing for ................................. .192 Used car dealers .................................. .35
LIENS. Soldiers' and Sailors' Civil Relief Act as not preventing ....................................604 Tax fi. fa....................................... .142
LIFE INSURANCE. Group life insurance, assignability of conversion privilege ........................................2 Settlements by married person eighteen or older .........132
LIMITED ACCESS HIGHWAYS. Speed limits .....................................545
LIMITED PARTNERSHIP. Investment club ................................ .460
LOANS.
Hospital authorities making ...........................9 Property valuation and equalization loan ................11 Students, funds to benefit ..........................527 LOCAL LAWS. Voting Rights Act of 1965, initiation of
proceedings to seek approval of local law under ........................................274 LOCAL OPTION LAWS. Generally .......................................515 LOTTERIES. Generally .......................................528 Keno ..........................................447 Procuring for or furnishing of .........................74 Raffles ..........................................44 MAIL. Drugs delivered, sold, etc. by ........................151

792

INDEX

PAGE
MANUFACTURERS. Movable homes, of, rules ...........................268
MARRIAGE. Justices of the peace, ceremonies by ..................240
MARTA. State contribution to ............................. .444
MEASURE OF DAMAGES. Business, taking by eminent domain .................. .195 Condemnation case .............................. .176
MEDICAL EDUCATION BOARD. Scholarships under .................................20
MENTALLY ILL PERSONS. Admissions, jury trial ..............................648 District attorney as qualified to serve on commission for hospitalization of ................. .421 Hospitalization of ..................................60 Infants, commitment ..............................523 Notice, form of, as to hospitalization ..................289 Procedure for admitting ............................285 Residence for voting ...............................700 Transportation of ......................._..........583
MERGER. Contractors, of, as not affecting rights and liabilities ...... ; ...............................710
MERIT SYSTEM FOR DEPARTMENTS. Military leave pay benefits for employee of working test status ............................. .420 Separation pay, extra pay for work on legal holiday .......................................259
METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY. State contribution to ............................. .444
MILITARY PERSONNEL. See Soldiers' and Sailors' Civil Relief Act Retired commissioned officers as not qualifying as ex-officio notaries public .......................723 Sales taxes ......................................393
MILK. Importation of ...................................270
MINES AND MINING. See Surface Mining. Affected land ....................................401 Licenses ........................................694 Topsoil, flll dirt and sand sales to public as surface mining .............................265, 266

INDEX

793

PAGE
MINIBIKES. Licenses, equipment, etc. . ......................... .263
MINIMUM FOUNDATION PROGRAM OF EDUCATION ACT. Funds appropriated to relieve hardships caused by ...........................................141
MOBILE HOMES. Highway relocation assistance .......................441
MONEY. Escrow, in, intangible taxes ..........................73
MOTOR BOATS. Taxation .........................................520
MOTOR FUEL TAXES. County health department paying ....................720 Refunds ........................................130 Sales taxes, tax on a tax ............................318 Waiver of penalty and interest ...................... .37
MOTOR VEHICLE SAFETY RESPONSIBILITY ACT.
Bonds, cancellation of .... , ........................596 Additional security after judgment .....................69 Release of security deposit ..........................183 Soldiers' and Sailors' Civil Relief Act as not
precluding enforcement of ........................605 Uninsured motorist coverage, effect of ................690 MOTOR VEHICLES. See Traffic Regulations. Accidents, security deposit return ....................145 Ad valorem taxes, see Ad Valorem Taxes. Antiques, seller subject to Used Car Dealers'
Registration Act ................................537 Constables, of, marking ........................286, 291 Go~arts, licenses, equipment, etc. . ...................265 License plates-
Corrections, State Board of, responsibilities as to plates ..................................615
Cost and purchase by Department of Revenue of .........................................647
Driver education vehicles ............... ~ ........ .335 Retro-reflective material ..........................482 .Minibikes, licenses, equipment, etc. . ..................263 Motorcycles, helmets for riders and operators .......... .404 Overlength vehicles, issuance of permits for ............ .211 Permission of owner as terminating when driver converts vehicle to own use ....................... .46

794

INDEX

PAGE
MOTOR VEHICLES- Cont'd. Registration plates, Georgia resident operating truck based in another State .......................199 Religious institutions, owned by, ad valorem taxes .........................................203 Repair parts, sales taxes ............................162 SizeIssuance of permits for overlength vehicles ............211 Overheight, bonds ............................. .367 Twin trailers on State highways ......................676 Used car dealers, license fees ........................ .35
MOTORCYCLES. Helmets for riders and operators .....................404
MOVABLE HOMES. Manufacturers of, rules ............................ .268
MUNICIPAL CORPORATIONS. Ad valorem taxes .................................644 Alderman, mayor voting for successor to office of ............................................86 Arrest warrants, officials issuing ..................... .266 Beer, selling .................................... .487 Consolidated governments, powers of .................584 Constitutional amendments, ratification of local ..........................................77 CouncilmanCounty registrar serving out term as .................509 Other jobs, employment for .......................139 Policeman, employed as ..........................138 County officer also holding city office ................ .137 Debts, incurring, approval by election .................204 Driver education vehicles, license plates ............... .335 Elections, see Elections. Code as taking precedence over conflicting charter provision .............................635 County registration list ...........................683 Eligibility to vote in annexed area ................. .589 Generally .....................................644 Political party failing to file registration statement ...............................499 Qualification closing date .........................665 Setting qualification fees .........................463 Emergency squads, multi-government ............... ; .666 Fraternal benefit societies, imposing tax on .............255 Gas facility owned by city, ad valorem taxes on .......... .26

INDEX

795

PAGE
MUNICIPAL CORPORATIONS-Cont'd. Governor's emergency fund used to benefit ..............65 Personnel department and merit board, establishing ..........................................432 Planning commission members as officers or employees ....................................687 Policeman, councilman who is also a bailiff serving as part-time policeman .................... .134 Purchase of land from corporation in which member of city council is principal stockholder ........................................479 Riot control programs .............................180 Road, state-aid, annexation . . . . . . . . . . . . . . . . . . . . . . . . .1 01 Sales tax on purchases by corporation operating golfing facility on municipal course .................280 Speed breakers, use of ............................. .40 Speeders clocked with VASCAR .................... .1 02 State as surety in contract between municipality and private party ...............................201 State expending funds on land owned by .............. .434 Surface Mining Act, applicability to municipalities ..................................175 Taxes, levying payroll or income tax ..................244 Traffic violations, trying ............................606
NAMES. Banks ................................. , ....588, 625
NARCOTICS. Parole to prisoners convicted on narcotics charge ........................................609 Seized drugs used for research purposes ............... .385
NATIONAL GUARD ARMORY. Polling place, as ................................. .348
NATIONAL GUARD CLAIMS ACT. Tort claims under .................................148
NATIONAL INFORMATION AND STORAGE AND RETRIEVAL CENTERS. Employment agency, as not within definition of ........ .427
NAVIGATION COMPANY. Property tax returns ...............................126
NEGLIGENCE. Sheriffs deputies and special deputies .................169
NOLO CONTENDERE. Drag racing, suspension or revocation of license ..........613 Safety, Department of, reports to ....................107 Traffic violators ...................................38

796

INDEX

PAGE
NONRESIDENTS. Tobacco Advisory Board, on .... , ........ , ..........696
NOTARIES PUBLIC. Ex-officio justices of the peace, operating in hold-over capacity ..............................227 Public official, as .................................431 Retired commissioned officers as not qualifying as ex--officio notaries public .......................723
NOTICE. Tax levy, of, to State agency ........................649
NURSERY PRODUCTS. Taxation ........................................574
NURSING HOMES. Qassification of institutions by Health Department ...................................331
NURSING HOMES ACT. Generally ...................................... .5 81
OBSCENITY. Infants, making materials available to ..................492
OCCUPATION OR BUSINESS LICENSE TAXES. See License and License Taxes.
OCCUPATIONAL TAXES. Used car dealers ..................................217
ORDINARIES. Compensation ...................................518 Constables' commissions, issuing .....................630 Costs in ordinary's court .......................... .349 Court of ordinary, jurisdiction of ......................10 Criminal jurisdiction of court of ordinary ...............81 Disability of, exercise of jurisdiction where .............264 Fees for disposing of cases involving game and fish laws ......................................588 Grand jury, claim for compensation to .................518 Guardian of minor ward dismissed even when money in trust ................................ .458 JurisdictionDriving under influence ......................... .399 Traffic violations ...............................595 Signing of official documents, place of .................264 Surveyot, county, calling special election .................6 Time office open .................................698
OSTEOPATHS. Hill-Burton Hospital, on staff of ......................191

INDEX

797

PAGE

PARDONS.

Voting right, restoration of ........................ .516

J>ARKS.

Condemnation by Highway Department ..............315

PARKS, STATE.

State-county cooperation in providing water to ......... .472

PAROLE.

Contracts, parolees entering into .................... .190

Narcotics charge, prisoners convicted on ...............609

Realty, parolees owning ............................190

PAYROLL TAXES.

Cities, levied by .................................244

PEACE OFFICERS.

District attorneys as not ............................475

PEACE WARRANTS.

Costs, assessment and refund of .......................27

PENSIONS.

Brunswick Port Authority ..........................638

Stone Mountain Memorial Association employees ....... .380

Taxation to provide ...............................668

Two separate state funds, drawing from ............... .443

PERMITS.

.

Milk importation .................................270

Vehicles, overheight ................................67

PERSONAL CARE HOMES.

Classification of institutions by Health

Department ...................................331

PERSONAL PROPERTY.

Realty conveyed, attached to ........................112

PERSONNEL BOARD, STATE.

Health insurance program, allowing withdrawals

from .........................................704

PERSONS.

Residence .......................................128

PEST CONTROL COMMISSION.

Refusing to examine applicant for "low moral

character" ....................................622

PETITIONS.

Surety company, for incorporation of .................87

PHARMACISTS.

Oral prescriptions, handling of .......................650

PHYSICAL THERAPISTS.

Term "qualified physical therapist" as

including orthoptist or orthoptic therapist ............680

798

INDEX

PAGE
PHYSICIANS AND SURGEONS. Licensed to practice in both Georgia and another State .........................................712
PHYSICIAN'S INVESTMENT DIGEST. Registration .....................................179
PLANNING BUREAU, STATE. Emergency squads, multi-government .................666 Merger study ................................... .435
PLANNING COMMISSIONS. Joint planning commissions, ability to contract ...........55 Member as officer or employee ......................687 Political subdivisions, as not constituting ................53 Riot control programs .............................180 Sales and use tax on sales to ......................... .43
PLANNING OFFICER, STATE. Authority of State planning officer to execute project agreements ............................. .538
POLICE OFFICERS. Coroner also city policeman ........................ .499 Councilman employed as policeman .................. .138 Councilman who is also a bailiff serving as part-time policeman ........... -; .................134 Intoxicating liquors, fees to salaried officer providing evidence as to violations ..................620
POLITICAL PARTIES. Nonpartisan elections ..............................559 Registration statement, failing to file ................. .499
POLITICAL SUBDIVISIONS OF STATE. Audits of .......................................314 Consolidated governments, powers of ................ .584 Emergency squads, multi-government .................666
POLLUTION. Ad valorem taxes as to facility reducing air or water pollution .................................453
PORTS AUTHORITY, GEORGIA. Sales and use taxes ............................... .352
POSSESSION. Intoxicating liquors in wet county .....................25
POULTRY. Ad valorem taxes on chickens remaining in hands
of producer ...................................502 Egg inspection fee ............................... .332 PRISONS AND PRISONERS. Contracts, prisoners entering into .....................190

INDEX

799

PAGE
PRISONS AND PRISONERS-Cont'd. Detained beyond length of sentence .................. .191 Detainer procedure ............................... .577 Education opportunities for inmates, college level .........................................376 Educational programs to civic clubs presented by inmates in penal system ....................... .297 Escape, acquittal of escape charge as not vitiating duty to forfeit good-time allowance ......... .133 Labor by convicts in clearing Canal Creek ..... .........660 Labor on private property ..........................201 Length of sentence, detained beyond ..................191 Minor inmates transfer to Youth Development Center ........................................88 Paid interview during which information provided for publication ........................... .415 Realty, prisoners owning .......................... .190 ReleaseHolding inmate for delivery to probation officials ....................................376 Prior to scheduled discharge date ...................284 Funds and clothing, when entitled to ............... .333 Work release program, funds earned by prisoner ....................................338 Roads, prison labor used on .......................... .4 Voting right, restoration of ........................ .515 Warrant charging inmate with offense as not constituting a detainer ........................... .29 Work, authority of Board of Corrections to require prisoners to ............................ .5 90 Work release prisoners, funds deducted from salary to defray cost of maintenance ................506
PRIVATE EMPLOYMENT AGENCY. Sale of stock requiring approval of Commissioner of Labor ........... -...........................383
PRIVATE INDUSTRY. Taxation not used for ..............................102
PROBATION. Holding inmate throughout twenty-four hour period of release day for delivery to probation officials ............................. .376
PROCESS.
Service on corporate registered agent ..................294

800

INDEX

PAGE
PROPERTY, PRIVATE. Prison labor on ..................................201 Wildlife killed to protect private property ...............25
PROPERTY, STATE. Disposal of ......................................485 Executive order to sale, abrogation ...................298 Sale of .........................................353
PSYCHOLOGISTS, STATE BOARD OF EXAMINERS OF. Permanent license where previous award of temporary license ...............................713
PUBLIC OFFICERS. County office and city office held at same time ..........137 Federal office of profit or trust as rendering one ineligible to hold civil office in Georgia .......................................430 Fee system officers, pay of employees of ...............675 Person holding position of profit or trust with U.S. government as prohibited from holding State office ................................... .120 Sale of personal property to State ............626, 669, 671 Age to be eligible to hold office ......................545 Duty excused where legislature fails to appropriate funds ...........................228, 246 Expenses paid to, income tax ........................258
PUBLIC SERVlCE COMMISSION. Electricity, resale of, jurisdiction as to ................. .32
PUNISHMENT. Verdict of guilty without recommendation of mercy ....................................... .118
PURCHASES, SUPERVISOR OF. Exceptions to procedure utilized in purchases
over $1 ,000 ..................................408 WorKmen's Compensation self-insurance program,
duties as to ....................................674 RACCOONS.
Dogs, hunted with ................................5 17 RACE TRACKS.
Safety Fire Commissioner's authority to adopt rules relative to .................................497
RADAR. Cities using to clock speeders ........................102
RAFFLES. Lotteries .........................................44

INDEX

801

PAGE
RAILROAD COMPANIES. Incorporation of ................................. .400
RAILROADS. Private car lines, licenses ............................634
REAL ESTATE. Security for appearance bonds, as ....................242
REAL ESTATE BROKERS. Licenses ........................................403
REAL ESTATE COMMISSION ACT. Licenses under .....................................7
REAL ESTATE TRANSFER TAX. ~ Administrator's deed to heirs ....................... .305
Urban renewal conveyance ..........................184 REAL PROPERTY.
Convicts or parolees entering into contracts or owning .......................................190
Sale of fee simple title to square foot parcels, registration under Securities Act ............ .256
RECEIPTS. Cash bonds ..................................... .368
RECIPROCITY. Chiropractors ................................... .260
RECORDER'S COURT. Traffic violations, jurisdiction as to .................. .1 03
RECORDING. Levy on property recorded on tax fi. fa. . ............. .341
RECORDS. Cash bonds ..................................... .368 Corporate records kept for tax purposes .............. .399
REFERENDUM. Required by special law, time of holding .............. .416 Requiring 50% of people to vote .....................182
REGISTRARS. City councilman, serving out term as ................. .509
REGISTRATION. Cosmetology school ...............................200 Go-carts ........................................263 Investment club ................................. .460 Mini-bikes .......................................263 Physician's Investment Digest ....................... .179 Securities ........................................99 Securities Act, under ..............................256 Used car dealers ..................................217 Used car dealers, seller of antiques ....................537

802

INDEX

PAGE
RELIGIOUS INSTITUTIONS. Ad valorem taxes ................................ .3 21 Automobiles owned by, ad valorem taxes ..............203
RESIDENCE. Income tax purposes, for .......................... .223 Public assistance, requirement for ................... .322 Two at same time .................................128 Voter, of, criteria determining change of ...............684
RESIGNATIONS. Corporate registered agent ..........................294
RETIREMENT. See Employee's Retirement System; Pensions.
General Assembly members ......................... .49 Hospital authority, county guaranteeing contri-
butions to retirement system from ..................283 School employees .................................216 Stone Mountain Memorial Association employees ....... .380 Superior court clerks and staff .......................218 Superior court clerks, survivor's benefits ...............510 RETROACTIVE LAWS. Compensation of officers .......................... .308 REVENUE BONDS. Higher Education Assistance Corporation ..............706 REVENUE COMMISSIONER, STATE. Bond for tax collector, premium on ...................117 Domicile, movement of, as question for ................223 Intangible tax returns, processing where for
small amount .................................. 147 REVENUE, DEPARTMENT OF.
License plates, purchase of ..........................647 RIOTS.
Control programs by counties and municipalities ........ .180 ROADS, PUBLIC.
See Highways Grassing rights of way ............................ .350 Handgun transported on ............................. .3 Municipality, annexation to ........................ .101 Prison labor used to construct .........................4 Taxation to pay for rights of way .....................312 Twin trailers operating on ..........................676 SAFETY, DEPARTMENT OF. Convictions reported to ............................107 Copy of judgment of conviction filed with ...............97 Nolo contendere pleas reported to .................... 107 Real property, acquisition of .........................91

INDEX

803

PAGE
SAFETY FIRE COMMISSIONER. Race tracks, rules relative to ........................ .497
SALARIES. County employees and officers .......................85 District attorneys ..................................71
SALES. Drugs, of, see Drugs. F. 0. B. Destination contracts ........................ .1 Minerals from borrow area ..........................266 State intangible property ........................ ~ .353 State officers and employees selling to State ....626, 669, 671
SALES AND USE TAXES. Architectural renderings and models, transfer for consideration of .............................239 Assumption by seller of risk of variable and unascertainable amount of tax .....................621 Auctions sales of tangible personalty ..................188 Automobile repair parts ............................162 Bank association with members which are exempt from State taxation .............................155 Bank computers used by customers for a consideration ..................................164 Counties, sales by .................................594 Farmers, sales involving ........................... .360 Gasoline, tax on a tax ............................. .318 Golfing facility on municipal course .................. .280 Good faith as to whether property is purchased for resale .....................................209 Lease of personal property from county to private corporation ..............................725 Mail order subsidiary, nonresident . . . . . . . . . . . . . . . . . . . .1 70 Manufacturer of personal property for sale .............177 Military personnel ............................... .393 Outside of State, sale and lease of property located or to be used ............................ 185 Planning commission, sales to ........................ .43 Ports Authority ................................. .452 Records of corporation kept for purposes of ........... .399 Successors in business, liability of ....................254 Tariff books and mileage guides transferred to carrier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167
SAND. Sales as surface mining .........................265, 266
SAVANNAH, CITY OF. Tax appeals, providing board of ......................675

804

INDEX

PAGE
SCHOLARSHIP COMMISSION, STATE. Loan funds to benefit Georgia students ................527 Medical education board ............................20
SCHOOL SUPERINTENDENTS, COUNTY. Time office open .................................698
SCHOOL TAXES. Collection commissions ............................714 Commissions for collection .........................542
SCHOOLS, PRIVATE. Public school contracting for goods or services from .................................. , ...... 161
SCHOOLS, PUBLIC. Employees retirement system ....................... .216 Funds appropriated to relieve hardships caused by Minimum Foundation Program of Education Act ..........................................141 Funds received from sale of school property, use of ........................................469 Investment of funds .............................. .423 Lunch program, funds for ......................... .491 Private schools, contracting for goods or services from .....................................161 Textbook on civil government ...................... .309
SCHOOLS, STATE SUPERINTENDENT OF. School lunch program, funds for .................... .491 Textbook on civil government, preparing .............. .309
SEARCHES AND SEIZURES. Narcotics seized used for research purposes ............ .385 University System of Georgia, on grounds of ............225
SECRETARY OF STATE. Fees collected by ................................. .15 Fees paid for bank charters .........................692
SECURITIES. Franchising agreements as ..........................661 New York license to sell as not valid in Georgia .......................................131 Partnership interest in investment club ................ .460 Physician's Investment Digest, registration of .......................................... .179 Registration of shares of beneficial interest ..............99
Registration under law .............................256 SECURITY DEPOSITS.
Judgment in action on contract whereby person promised to pay claim for tort damages as not sufficient to release ......................... .183

INDEX

805

PAGE
SENATORIAL DISTRICTS. Boundaries of 40th senatorial district ..................207
SENTENCE. Detention beyond length of ........................ .191 Release prior to discharge date .......................284 Verdict of guilty without recommendation of mercy ........................................118 Voting right, restoration of ........................ .515
SERVICE. Corporate registered agent ..........................294
SERVICE CHARGES. Trade accounts, on .................................55
SETTLEMENTS. Life insurance policy, under, by married person eighteen or older ...............................132
SEWAGE SYSTEMS. Designing, who does ...............................636
SHAD. License for fishing for .............................192
SHERIFFS. Arrested by constables ................ ~ ...........234 Authority and responsibility .........................92 Bond of deputy ...................................129 County coroner may not also be deputy sheriff ......... .499 Duties of deputies and special deputies ................169 Funds collected held in trust for county ...............243 Interstate highway, patrol on ........................533 Jails, duty as to keeping .............................19 Mentally ill persons, transporting .....................583 Negligence of deputies and special deputies .............169 Time office open .................................698
SHOPLIFTERS. Civil liability of merchants for arrest and detention of suspects ........................... .340
SMALL CLAIMS COURTS. Justice of the peace serving as judge .................. .387
SOCIAL SECURITY. Homestead exemption, benefits considered in making determination as to .......................140
SOIL AND WATER CONSERVATION DISTRICT.
Agency and instrumentality of State, as ............... .447 SOIL PITS.
Highway Department's responsibility for inadequacy of ...........................................681

806

INDEX

PAGE
SOLDIERS' AND SAILORS' CIVIL RELIEF ACT. Motor Vehicle Safety Responsibility Law, as not precluding enforcement of .....................605
Sales tax charged against military personnel ............ .393 Tax liens against vehicles for nonpayment of
taxes, as not prohibiting ..........................604 SOPERTON, CITY COURT OF.
Solicitor pro tern., retirement ........................222 SPECIAL LAWS.
Referendum required by, time of holding ......... , ... .416 SPECIAL MASTERS.
Condemnation cases, compensation ...................656 SPEED.
City using radar to check . . . . . . . . . . . . . . . . . . . . . . . . . . .1 02 Limited access highways ............................545 Zones, establishment of ........................... .172 SPEED BREAKERS. Use of ...........................................40 STATE ADVISORY COUNCIL. Members selling goods or services to State ..............669 STATE OF GEORGIA. Actions against ...................................207 Employees, see Employees of State. Employees hired under federally funded
contracts .......................................5 Employees Retirement System, see Employees
Retirement System. Municipal corporation, expending funds on land
owned by .....................................434 Property of-
Disposal of ................................... .485 Executive order to sell, abrogation ..................298 Intangible, sale of ...............................353 Strikes by employees ............................. .365 Surety, State as, in contract between lnunicipality and private party ..........................201 STATUTES. Amendment, effective date .........................575 Effective, decision made pursuant to a statute becomes valid and operative when statute becomes ........................................530 Local option laws .................................515 Repealer clause as not varying effective date ............ 181 Retroactive laws, compensation of officers ............ .308 Unconstitutional, when delared to be ..................513

INDEX

807

PAGE
STONE MOUNTAIN LAND, INC. Management services of another corporation, engaging ......................................378
STONE MOUNTAIN MEMORIAL ASSOCIATION. Claims Advisory Board Act, not subject to ............. .346 Retirement or pension plan for employees ..............380
STRIKES. Highway Department employees .....................521 State employees ................................. .365
STRUCTURAL PEST CONTROL COMMISSION. Refusing to examine applicant for "low moral
character" ....................................622 SUNDAY.
Firearms discharged on .............................509 Hunting on ......................................509 SUPERIOR COURT CLERKS. Divorce cases, filing fees ... ~ ........................129 Incorporation, fees for ............................ .477 Retirement ......................................218
Survivor's benefits ..............................510 Temporary personnel to assist .......................556 Time office open .................................698 SUPERIOR COURTS. Arrest warrants, judges issuing .......................266 Judges-
Emeritus, additional compensation ................ .394 Expenses reimbursed ........................... .496 Jurisdiction as to persons in confinement under criminal warrant ................................652 Terms ..........................................282 SURETY COMPANIES. Petition for incorporation of .........................87 SURETYSHIP. State as surety in contract between municipality and private party ...............................201 SURFACE MINING. Affected land ................................... .401 Applicability of law to counties and municipalities ..................................... ; .330 Spoil area .......................................401
Topsoil, fill dirt and sand sales ...................265, 266 SURFACE MINING ACT.
Counties and municipalities, applicability to ............175 SURVEYORS, COUNTY.
Special election to fill office ...........................6

808

INDEX

PAGE
TALIAFERRO COUNTY. Commissioner, vacancy in office .....................171
TAX APPEALS. City or county providing board of ....................675
TAX ASSESSORS. Additional assessments, making ......................245 County attorney, member of board may also be .........639 Employment of personnel .......................... .30 Increasing valuation when fair market value increases ......................................707 Number of, in certain counties ........................80
TAX COLLECTIONS. Compensation for collecting ad valorem taxes on motor vehicles ................................ .474
TAX COLLECTORS. Bonds ......................................... .117 Commissions ....................................629 Commissions where salaried ........................ .307 Employees Retirement System ...................... .487 School taxes, commission for collection of .............150 Time office open .................................698
TAX COMMISSIONERS. Commissions ................................648, 714 Apportionment between estate of tax commissioner and successor .................... .476 Collection of school taxes, for .................... .542 Where on a salary basis ...........................697 Compensation for collectingAd valorem taxes on motor vehicles ................ .474 School taxes ....................................57 Employees Retirement System ...................... .487
TAX EXECUTIONS. Advertisement of sales under ....................... .394
TAX RECEIVERS. Commission where on fee basis ......................614 Employees Retirement System .......................487 Increased compensation only from effective date of Act ........................................308 Salaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 11 Time office open .................................698
TAX RETURNS. Intangible returns for small amount .................. .147

INDEX

809

PAGE
TAXATION. See Ad Valorem Taxes.
Back taxes, collection of ...........................546 Bank association ..................................155 Beer given and consumed on premises .................715 Condemned property, on ...........................694 Consolidated income tax returns, right to file ............95 Corporation stock exchanged for property of
another, where .................................722 County employee insurance and pensions, to
provide .......................................668 Credit unions, deposits in ...........................123 Escrow agent, intangible taxes .......................121 Evaluating property for tax purposes ................. .382 Farm products in hands of warehousemen ............. .392 Fieri facias, liens ..................................142 Inheritance tax on real estate subject to
conditional sales contract and partnership real property ..................................55 8 Justice of the peace as playing no part in collection of back taxes ......................... .366 LevyState agency, notice to ...........................649 Money in escrow, intangible taxes .....................73 Motor fuel ..................................... .130 Tax assessment ................................. .37 Municipalities, by ......................... ........244 Public purposes, only for . . . . . . . . . . . . . . . . . . . . . . . . . . .1 02 Real estate transfer tax, see Real Estate Transfer Tax. Recording of levy on tax fi. fa....................... .341 Roads, rights of way for, taxation for ................ .312 Used car dealers, occupational tax ....................217 TELFAIR COUNTY. Title to buildings attached to land conveyed to ..........111 TERMINATION STATEMENTS. Time to be held by filing officer ..................... .172 TEXTBOOKS. Civil government, on, State School Superintendent preparing .....................................309 THEATER. Official State theater ............................. .462 THEFT. Definition of ................................... .381

810

INDEX

PAGE
THUNDERBOLT. Mayor voting for successor to office of alderman ..........86
TIFT COUNTY. Chairman of county commissioners as sole purchasing agent bound by directions of majority of board .............................. .303
TIGNALL, BANK OF.
Renewal of charter ................................109
TIME. Public offices open ................................698 Special election to ftll vacancy .......................720
TOBACCO ADVISORY BOARD. Nonresidents on ..................................696
TOPSOIL. Sales as surface mining .........................265, 266
TORTS. Highway Department, claims against ..................645 National Guard Claims Act, claims under .............. .148 Shoplifters, detention of suspected .................. .340
TOURISM. Expenses in promotion of ......................... .474
TRAFFIC CASES. Cash bonds in .....................................98
TRAFFIC CONTROL DEVICES. State funds for . . . . . . . . . . . . . . . . . . . ...............616
TRAFFIC REGULATIONS. Generally ........................................38 Implied consent law ............................... .41 Limited access highways, speed on ....................545 Speeq breakers ................................... .40 Speed zone, establishment of ....................... .172 Speeders clocked with VASCAR by city .............. .1 02
TRAFFIC VIOLATIONS. Blood tests of intoxicated drivers .................... .345 Driving under influence, first offenders ................637 Municipal courts trying ............................606 Ordinaries, jurisdiction of ...........................595 Ordinary's jurisdiction as to driving under influence .....................................399
TRANSIT COMPANIES. Ad valorem taxes .................................109
TRANSPORTATION. Intoxicating liquors in wet county .....................25
TRESPASS. Hunter, by ......................................625

INDEX

811

PAGE
TRIAL.
Jury, byCriminal cases in city court .......................252 Mentally ill persons, medical admissions ..............648
TRIAL JUDGES AND SOLICITORS RETIREMENT FUND. City court solicitor ................................222
TROVER. Condemnee, conversion by ..........................708
UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT.
Fees formerly payable under ........................276 UNINSURED MOTORISTS.
Motor Vehicle Safety Responsibility Law, effect of coverage as to ...............................690
UNIONS. See Labor.
UNIVERSITY SYSTEM OF GEORGIA. Board of Regents as within purview of Claims Advisory Board Act ............................ .378 Faculty member becoming paid consultant to State Department of Education, Honesty in Government Act ............................... .471 Searches and seizures on grounds of ...................225
URBAN RENEWAL. Real estate transfer tax on conveyances ................184
USED CAR DEALERS. License fees ......................................35
USED CAR DEALERS' REGISTRATION ACT. Antique motor vehicles, seller of .....................537 Effect of failure to register ..........................217
USURY. Home loans insured and guaranteed by F. H. A. and V. A. which exceed legal interest rate .............67 Monthly service charges on merchant's trade accounts .......................................55
UTILITIES, PUBLIC. See Public Service Commission. Ad valorem taxes on city-owned gas facility ..............26 Highways necessitating utility relocation, payments for ...................................12 Natural Gas Pipeline Safety Act, Georgia law as not complying with ............................59
VENUE. Income tax violations ............................. .457

812

INDEX

VERDICTS.

PAGE

Guilty, of, without recommendation of mercy ...........118

VETERANS.

Homestead exemption ..............................94

VETERANS ADMINISTRATION.

Loans insured and guaranteed by, exceeding legal

interest rate ....................................67

VETERANS HOSPITAL (LENWOOD

DIVISION), AUGUSTA.

Concurrent jurisdiction returned to Georgia .............261

VOCATIONAL REHABILITATION. Payment of physicians for unkept appointments ........ .377

VOTING RIGHTS ACT OF 1965.

Initiation of proceedings to seek approval of

local law under .................................274

WAIVER.

Motor fuel taxes, waiver of penalty and interest .......... .37

WAREHOUSEMEN.

Insurance .......................................699

Taxation of farm products in hands of ................ .392

WARRANTS.

Arrest, for, issuance ..............................266

Jurisdiction over persons in confinement under ..........652

Justices of peace outside Atlanta forbidden.to

issue warrant for crime taking place in

Atlanta .......................................686

Peace warrants ....................................27

WATER AND SEWAGE SYSTEMS. Designing, who does ...............................636

WATER QUALITY CONTROL ACT. Dredging companies subject to provisions of ............477

WATERSHED PROJECTS.

Counties request Federal Government to

administer construction contracts in ............... .481

WEAPONS.

Roads, handgun transported on ....................... .3

Sunday, firearms discharged on ......................509

WEBSTER COUNTY.

Ordinary as not entitled to fee for disposing

of cases involving game and fish laws ............... .588

WELCOME STATIONS.

Maintenance of .................................. .464

WELFARE.

Residence requirement for public assistance ............ .322

INDEX

813

PAGE
WHITFIELD COUNTY. Cash bonds in traffic cases ...........................98
WIDOWS.
Judge emeritus, benefits ........................... .163 WILDLIFE.
Killing wildlife to protect private property ...............25 WORKMEN'S COMPENSATION.
Allergic reactions .................................599 Informal order of former Director of Budget,
force and effect of ...............................66 Lunch period or rest break, injury sustained
during ........................................599 Regular wages for accumulated sick and annual
leave paid during periods compensable under .......... 159 Self-insurance ............................... .310, 674 Y.M.C.A. County contract to furnish facilities .................. .174 YOUTH DEVELOPMENT CENTER. Minor inmates transferred to .........................88 Legal status of juvenile act ...........................90