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 2 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, 3 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 4 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. 5 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 6 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." 12 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 14 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 33 (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. 37 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. 38 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. 41 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. 46 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? " 50 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 51 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. 53 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. 55 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. 56 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 58 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 59 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. 62 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. 65 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. 81 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 82 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 83 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 84 (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 85 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). 86 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 87 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. 88 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 89 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. 90 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: ... 91 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. 92 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. 93 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. 94 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. 95 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 96 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. 97 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 98 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 99 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 100 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 101 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. 102 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). 103 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 104 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 105 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 106 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 107 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 108 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. 109 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 110 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, ... 111 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. 112 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 113 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: 114 "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 115 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 116 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: 117 "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. 118 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 119 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. 120 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, 121 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. 122 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 123 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 124 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." 125 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 126 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. 127 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. 128 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. 129 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 130 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: 131 "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, 132 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 133 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 134 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. 135 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 136 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." 137 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 138 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. 139 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 140 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 141 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." 142 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: 143 '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 144 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 145 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. 146 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. 147 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 148 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. 149 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. 150 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. 151 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: 152 "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. 153 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 154 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