Opinions of the Attorney General 1971

OPINIONS of
THE ATTORNEY GENERAL
1971
ARTHUR K. BOLTON
ATTORNEY GENERAL
THE~c~~HARRISON COMPANY, PUBLISHERS
178-180 Pryor Street Atlanta, Georgia 30303

TABLE OF CONTENTS
PAGE
OFFICIAL OPINIONS, 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l PREFACE TO UNOFFICIAL OPINIONS ................. 285 DIGESTS OF UNOFFICIAL OPINIONS .................. 286 TABLE l. UNITED STATES CONSTITUTIONAL
PROVISIONS CITED ................................. 343 TABLE 2. GEORGIA CONSTITUTIONAL
PROVISIONS CITED ................................. 343 TABLE 3. GEORGIA LAWS CITED ...................... 345 TABLE 4. GEORGIA CODE ANNOTATED
SECTIONS CITED .................................... 357 INDEX ................................................. 375
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ATTORNEYS GENERAL OF GEORGIA HENRYP. FARRER ............................... 1868-1872 N. J. HAMMOND ................................. 1872-1877 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-
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ARTHUR K. BOLTON The Attorney General

LEGAL STAFF OF DEPARTMENT OF LAW DURING CALE;\; DAR YEAR 1971

NAME

TITLE

Bolton, Arthur K. Hill, Harold N.. Jr. Andrews, Gary B. Barrett, Charles L.. II I Bartee, William F.. Jr. Beasley, Dorothy T. Bomar, Robert S. Boyd, Thomas H. Brown, William B. Buckland, Lauren 0. Castellani, Robert J. Chambers, Richard L. Childers, William R .. Jr. Coleman, J. Robert Davis, G. Thomas Davis, Wiley H. Evans, Alfred L.. Jr. Evans, Larry H. Gault, Richard S. Gordon, Marion 0. Hallman, F. Edwin, Jr. Harper, William L. Harris, W. Hensell, Jr. Hinchey, John W. Jones, Carl C.. II I King, David L. G .. Jr. Kirkley, Dorothy Y. Langham, Don A. Mallard, Wade V.. Jr. Matson, Roland F. McDonald, Lpuis F. Merrill, Charles B.. Jr. Michael, H. Perry Moister, Roger W.. Jr. Napier, Elaine Nardone, A. Joseph, Jr.

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

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LEGAL STAFF-Continued

NAME
Odom, Donn L. Owen, H. Andrew, Jr. Palmour, Frank A. Perry, James Lee Poythress, David B. Robins, Mathew Ruskaup, Larry D. Shell, Robert H. Sligh, John A .. Jr. Spivey, Verley J. Stanton, Courtney Wilder Sweeney, Timothy J. Talley, James B. Tripp, David A. Walden, John C.

TITLE
Assistant Attorney General Deputy Assistant Attorney General Law Assistant Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Atton;ey General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General

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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. I. 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." In the interest of economy and in order to avoid confusion, the "Unofficial Opinions" have been digested and separated from the "Official Opinions." These digested opinions follow the "Official Opinions" herein, and are preceded by a Preface to Unofficial Opinions, more fully explaining the treatment of such opinions. The "Official Opinions" are serially numbered, showing the last two digits of the year of rendition, followed by a hyphen, then the number of the Opinion as rendered that year. Therefore, for 1970 we have: "701," "70-2," etc., and for 1971 and each following year we begin a new series: "71-1," "71-2," etc. The "Unofficial Opinion" numbers are preceded by the letter "U," Thus, "U70-I," "U70-2," . . . "U71-1," "U71-2," etc., refer to "Unofficial Opinions."
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OFFICIAL OPINIONS of
THE ATTORNEY GENERAL
1971

71-1

OPINION 71-1

To: State Superintendent of Schools

January 4, 1971

Re: Teachers Retirement System; recovery of employers' contributions from delinquent local units.

This responds to your letter of December 28, 1970, requesting an opinion explaining the procedure for recovery of delinquent "employer's contributions" due to the Board of Trustees of the Teachers Retirement System of Georgia by local boards of education based on the earnable compensation of retirement system members not payable from State funds. You enclosed a copy of the special audit report for members of the General Assembly prepared by the Honorable E.B. Davis, State Auditor, which apparently constitutes an opinion of the State Department of Audits that the listed sums should be transmitted to the State Treasury by the listed local units of school administration.
The relevant facts appear to be these: Over a period of several years, a number of local boards of education have failed to transmit to the Board of Trustees of the Teachers Retirement System of Georgia that part of the "cost for pensions" based on the "earnable compensation" of members not payable from State funds. Instead, those local boards of education submitted to the board of trustees of the retirement system reports which caused the subject contributions to be paid from State funds rather than from local funds. This office is not familiar with the details of how these mistakes occurred and makes no attempt in this opinion to assess or to assign to any person or persons fault for their occurrence.
The existence of these audit exceptions first was brought to the attention of the State Law Department by a letter from the State Department of Audits dated March 10, 1969, received by us on March 11, 1970, transmitting three audit reports for the City of Barnesville Board of Education for fiscal periods ended June 30, 1968, June 30, 1969 and January 15, 1970, together with two audit reports for the Dooly County Board of Education covering the fiscal years ended on June 30, 1968 and June 30, 1969, and one report for the Oglethorpe County Board of Education for the fiscal year ended June 30, 1969. The Department of Audits sought my opinion on the rights and remedies pertaining to the situation.
In an official opinion to the Honorable E.B. Davis dated March 18, 1970 [Op. Att'y Gen. 70-38] I advised that the amended Act governing the Teachers Retirement System of Georgia "provides without the slightest equivocation" that local boards of education having contributing members of the retirement system in their employ have the obligation

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to pay to the Board of Trustees of the Teachers Retirement System of Georgia that part of the "cost for pensions" under the retirement system based on the "earnable compensation" of members not payable from State funds. The opinion cited the statutory procedure provided by the General Assembly for the collection by the retirement system board of trustees of any delinquent sum. This opinion was discussed with the State Auditor and with you (as I am sure you recall) within two or three days after it was forwarded on March 18, 1970. You were furnished a copy of the opinion at that time and the role of the State Board of Education in assisting the retirement system trustees to collect the sums due was explained. I thought the matter was settled.
In the referenced special report to Members of the General Assembly, the Department of Audits states:

"Overpayments reported should be reimbursed by the individual school systems and transmitted to the State Treasury."

Although that solution is commendable for its pragmatic simplicity, it would create an additional legal hurdle should any local unit desire to contest its obligation to pay. I am of the opinion that the Board of Trustees of the Teachers Retirement System of Georgia should return to the State Treasury the funds erroneously received by it through the subject mistakes and should utilize the cited statutory remedy to recover from the local boards of education whatever is determined to be the correct sums that the board of trustees should have received. I thought the position of this office on that point had been made clear to all concerned last March.
The statutory remedy for nonpayment really is both precise and concise. The General Assembly has provided that local boards of education shall make monthly remittance to the retirement system board of trustees of both the "employer's" and the "employees'" contributions. Ga. Laws 1943, pp. 640, 657, as amended, Ga. Code Ann. 32-2921(6). In the event any "employer of a teacher" [which under Ga. Code Ann. 32-2901(4) and 32-607, as based upon Ga. Laws 1964, pp. 3, 9, means in this instance any local board of education] fails to make such monthly remittances to the trustees, the General Assembly has provided that the retirement system board of trustees shall notify the State Board of Education of such failure and thereupon it shall be the duty of the State Board of Education to withhold all appropriations allotted to the local school board until the local board has made the required remittances. Ga. Code Ann. 32-2921 (7).
I am of the opinion, based upon the foregoing, that it was the intention of the General Assembly that action for the recovery of sums due to the trustees under Ga. Code Ann. 32-2921 (6) shall be initiated by a deci-

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sion of the retirement system board of trustees (Ga. Code Ann. 322911) and that upon receipt of notice of such a decision, the State Board of Education is obliged under Ga. Code Ann. 32-2921 (7) to withhold all allocated appropriations from a delinquent local unit until the State Board of Education receives from the retirement system board of trustees notice of its decision that the local unit has discharged its obligations to the board of trustees in the manner provided by law.

OPINION 71-2

To: Director, State Board of Corrections

January 6, 1971

Re: Prisons and prisoners; custody of prisoner serving concurrent federal and state sentences.

Your letter of December 28, 1970, requested an opinion on the question of whether, at the request of federal authorities, you may take custody of a prisoner presently servi'ng concurrent Georgia and federal sentences in the federal penal system.
According to your letter, the pertinent facts are that the prisoner was sentenced November 15, 1968, in Georgia, to serve fifteen years on each of two counts for robbery. The sentences were to run concurrently with each other and any sentence the prisoner was serving at that time. He was then returned to federal authorities.
The answer to your inquiry is contained in Ga. Laws 1956, pp. 161, 171, as amended (Ga. Code Ann. 77-309(b)), which provides that:

" ... [A]ny person ... sentenced to serve time in any penal institution in this State . . . shall be committed to the custody of the Director of Corrections, who, with the approval of the State Board of Corrections, shall designate the place of confinement where the sentence shall be served."

Therefore, it is my official opinion, based on the foregoing and the sentencing document affixed to your request, that incarceration of the subject prisoner in the Georgia prison system, for the term of the Georgia sentences, is authorized.

71-3

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OPINION 71-3

To: Judge, Court of Ordinary

January 7, 1971

Re: Marriage; legal age of parties; reconciliation of statutes.

This is in response to your recent letter wherein you inquired about age and other requirements under Georgia law for the issuance of a marriage license.
My research has disclosed ostensibly conflicting Georgia laws which may yield some confusion as to the legal age of marriage and the necessity of parental consent to certain marriages. As I understand it, your specific question focuses on the interrelationship of these laws.
The minimum age at which a person may contract marriage is specified in Ga. Code Ann. 53-102 (Ga. Laws 1965, pp. 335, 337) as 18 years of age for a male and 16 years of age for a female. This minimum age, however, is .subject to the following qualification:

"Provided, however, that the age limitations contained herein shall not apply upon proof of pregnancy on the part of the female, said proof to be shown to the ordinary by a certificate signed by a licensed physician of the State of Georgia, stating that the female applicant is, in his opinion, pregnant, in which case the parties may contract marriage regardless of age. . . ."

This qualification then, in turn, is subject to an additional modification:

" .. Provided, however, that where either or both of the applicants are underage, parental consent of each such underage applicant must be shown to the ordinary. . . ."

In summary, the above statutes show that a male must be 18 years of age and a female 16 before they can contract statutory marriage, unless the female is proved to be pregnant, in which case the parties may contract marriage regardless of age, provided parental consent of each underage applicant is shown.
However, some confusion may result from the fact that the following chapter of the Code, specifically Ga. Code Ann. 53-204 (Ga. Laws 1965, pp. 335, 339-40), provides in pertinent part:

"In cases where the parties applying for a license have not yet reached their 19th birthday . . . the parents or guardians of each

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underage applicant must appear in person before the ordinary and consent to the proposed marriage...."

This statute, then, indicates parental consent to the marriage must be shown for each marriage license applicant under 19 years of age before the issuance of a valid license.
A cardinal rule of statutory construction embodied in Williams v. Bear's Den, Inc., 214 Ga. 240,242, 104 S.E.2d 230 (1958) is:

"Where there is an apparent conflict between different sections of the same statute, the duty of a court is to reconcile them if possible, so as to make them consistent and harmonious with one another. ..."

It is manifest that such a conciliation should be obtained, if at all possible, with regard to the present problem.
Bearing in mind the Williams principle, supra, it appears that the ostensible conflict can be reconciled. The first-quoted section, Ga. Code Ann. 53-102, as amended, specifies the minimum legal ages for marriage below which persons cannot contract statutory marriage, except in certain designated instances. The following section, Ga. Code Ann. 53-204, as amended, provides that in the obtaining of a marriage license if an applicant is not at least 19 years of age, he or she must have parental consent. This is a different and separate requirement from the minimum legal age of contracting marriage. In other words, though a male is over 18 years of age and a female over 16, if either is under 19 years of age, he or she must have parental consent before the ordinary can issue them a valid marriage license.
Therefore, based on the foregoing, it is my considered opinion that under the laws of Georgia a male must be 18 years of age and a female 16 years of age to contract statutory marriage, except in certain instances which require parental consent, but marriage license applicants must be at least 19 years of age to obtain a valid marriage license without parental consent.

71-4

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OPINION 71-4

To: Joint Secretary, State Examining Boards

January 11, 1971

Re: Podiatrists are expressly limited to the use of local anesthetics.

This letter is in response to your inquiry, 'Can a podiatrist use anesthetics other than local anesthetics?".
Ga. Code Ann. 84-601 (Ga. Laws 1933, p. 115; 1958, pp. 174, 175) provides:

"Podiatry" (chiropody), for the purpose of this Chapter, means the diagnosis, medical, surgical, mechanical, manipulative and electrical treatment limited to the ailments of the human foot and leg. No podiatrist shall do any amputation or use any anesthetic other than local. (Emphasis added.)

By the above definition of podiatry, the General Assembly of Georgia was quite specific in said definition to limit the types of anesthetics which podiatrists may use in their practice. In said definition, the General Assembly was specific in prohibiting podiatrists from doing amputations or in using anesthetics other than local anesthetics.
From my exhaustive research of Georgia statutory and case law, as well as prior Official and Unofficial Opinions of this Office, it is apparent that this portion of Ga. Code Ann. 84-601 has never been interpreted by Georgia Courts. However, by applying the principles of statutory construction provided by Ga. Code Ann. 102-102, it is my opinion that the language of the definition of podiatry provided by Ga. Code Ann. 84-601 should be interpreted literally. Such a construction would preclude the use by podiatrists of any anesthetics other than a "local" anesthetic.
Included herein please find an Official Opinion (Ops. Att'y Gen, 1952-53, p. 158) from this Office of May 22, 1952, in which podiatrists (chiropodists) were held to be entitled to use narcotics in their practice. This Opinion took into consideration, somewhat, the above discussed statutory provisions limiting the use of podiatrists to only local anesthet-
ICS.

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71-5

OPINION 71-5

To: State Auditor

January 11, 1971

Re: Employees Retirement System; effect of first 1965 amendment repealed at same session upon rights of member of General Assembly.

This responds to your letter of December 18, 1970, pertaining to the December 9, 1970, request of the Honorable Alpha A. Fowler for involuntary separation retirement under the amended Act governing the Employees Retirement System of Georgia.
The questions you have posed relate to Ga. Laws 1965, pp. 106, 108, which was approved by the Governor (and thus became law) on March 3, 1965. During the same session of the General Assembly, that amendment was repealed by Ga. Laws 1965, p. 199 (Ga. Code Ann. 402503, 40-2504), approved by the Governor (and therefore becoming law) on March 12, 1965. The second amendment not only repealed the first but stated, essentially, that the persons who would have been e~igible for coverage under the first amendment were to be considered to be in exactly the same position as if it never had become law and, further, directed the trustees to return any check tendered by any applicant under the first amendment whose application had not been acted upon by the trustees. The official files of the retirement system reveal that Mr. Fowler tendered a check with his timely application under the first amendment, that his application had not been acted upon by the trustees prior to the second amendment, and that pursuant to the second amendment the trustees returned the check to Mr. Fowler.
You first have asked whether any of the service claimed by Mr. Fowler under the first 1965 amendment is creditable, which I understand to be a question of whether the Act is effective as to him for any purpose.
In reliance upon the "separation of powers" provision of the Georgia Constitution, the Supreme Court in McCutcheon v. Smith, 199 Ga. 685 (1945), held that the General Assembly could not adjudicate by the
passage of an amendment to a civil service Act that a person was cov'ered by the original civil service Act as of a certain date because that determination was contrary to the judgment of the Supreme Court that he was not covered by the original Act on the date in question. The corollary principle necessarily is that the General Assembly in like circumstances could not adjudicate lack of coverage contrary to the opinion of the Supreme Court that coverage exists. In Northside Manor, Inc. v. Vann, 219 Ga. 298, 301 (1963), the Supreme Court, citing and relying upon McCutcheon, was quite explicit that the General Assembly may not constitutionally "enlarge or diminish a law by construction".

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The appellate courts of this State have been just as explicit in their analysis of the contractual and constitutional implications of Acts of the General Assembly establishing retirement rights for public officers and employees. In Burks v. Board of Trustees, 214 Ga. 251, 253 (1958), the Supreme Court held:

"It is the established rule in Georgia that such a pension is not a gratuity, but a contract based upon a consideration, and that such contract can not be modified, repealed, or defeated by subsequent acts of the General Assembly after its creation."

With similar clarity of expression, the Court of Appeals in Webb v. Whitley, 114 Ga. App. 153, 157 (1966), left no doubt but that such retirement rights

"become vested in the ... [claimant] immediately upon any participation in active service while the statute is in effect, irrespective of whether at the time in question the ... [claimant] has completed sufficient length of service then to be eligible for retirement as a matter of right." (Brackets added.)

I am of the opinion, based on the foregoing, that the Honorable Alpha A. Fowler became vested by the first 1965 amendment with rights which could not be constitutionally divested by the second 1965 amendment.
Your next questions relate to the nature of the service credits made available to Mr. Fowler under the subject 1965 amendment and their respective period or periods.
The General Assembly provided inter alia that any member of a State commission "who is an elective official elected in a general election by the electors of the State at large" and who was in office and was a member of the retirement system on February I, 1965,

"shall be eligible for and shall receive prior service credits as now provided by law and creditable service year for year for service as a member of the General Assembly of Georgia . . . after January I, 1953",

upon compliance with certain conditions, including the payment by the official of a sum related mathematically to the amount he would have paid

"had he been contributing on compensation for such service from January 1, 1953". Ga. Laws 1965, p. 106, 108. (Emphasis added.)

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I am of the opinion that a court would construe the last-quoted prlJvisions as an expression of legislative intent that Mr. Fowler be allowed to establish the service credits provided in the Act commencing with January 1, 1953. It is the nature of those service credits which presents me with the first difficulty I have experienced in analyzing the questions you have posed.
The subject 1965 amendment provides that the affected officers shall be eligible under it to receive "prior service credits as now provided by law". These words standing alone would make it appear that any service before July 1, 1953, would be creditable under the 1965 amendment as "prior service". Ga. Laws 1953, Nov.-Dec. Sess., pp. 160, 163; Ga. Code Ann. 40-2504(3). However, it is apparent that the 1965 Act departs radically from the definitions established for general use throughout the amended Act (Ga. Laws 1949, p. 138, as amended) governing the retirement system. (Ga. Code Ann. 40-2501). It is clear to me that the "creditable service year for year for service as a member of the General Assembly" to which the 1965 Act refers immediately after its reference to "prior service credits as now provided by law" is to a type of service (however labeled or mislabeled) which must be partially bought and paid for by the employee as distinguished from being awarded to him without cost. Hence, it necessarily must be "membership service" as that term is customarily used throughout the amended Act. Ga. Code Ann. 40-2501(8). Further, since under the word formula of the amended Act "creditable service" equals "prior service" plus "membership service", Ga. Code Ann. 40-2501(7) (8) (9), it necessarily follows that the term "creditable service" used to describe that sort of service which is not "prior service" must necessarily be a reference to "membership service".
Based on the foregoing analysis, I am of the opinion that a court would conclude upon an application of the rules of statutory construction that the subject service allowable year for year to former members of the General Assembly is creditable as "membership service" and, hence, is includable for determinations of eligibility for involuntary separation retirement benefits. Ga. Code Ann. 40-2505(4)(g).
I trust that this opinion answers completely each question you have posed and will enable the board of trustees to proceed with a review of the subject application for retirement benefits.

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OPINION 71-6

To: State Auditor

January 12, 1971

Re: Employees Retirement System; involuntary separation at end of definite term of office.
This responds to your letter of December 18, 1970, requesting an opinion as to whether or not a person who is appointed or elected by a State board to a State office having a fixed term would be precluded from receiving involuntary separation retirement benefits under the Employees Retirement System of Georgia simply and solely because he accepted the office with knowledge that he might not again be elected or appointed at the expiration of the fixed term of years.
As I am sure you are aware, Acts of the General Assembly providing retirement benefits for public officers and employees must be construed liberally in favor of the claimant. City of Macon v. Herrington, 198 Ga. 576, 589 (1944); Burks v. Board of Trustees, 214 Ga. 251, 254 (1958). The term "involuntary separation" as used in the amended Act (Ga. Laws. 1949, p. 138, as amended) governing the retirement system is defined in relevant part as " . . . separation or release from service not willingly by choice of [the] member. . . ." Ga. Code Ann. 402501 (25). (Brackets added.) This office twice has ruled that the words "involuntary separation" as used with reference to this retirement system should be given their ordinary meaning, without straining for an extended connotation. Ops. Att'y Gen. 1962, p. 364; Ops. Att'y Gen. 68-130.
I am of the opiriion, based on the foregoing, that it ought not to be concluded that a State official's separation or release from service was willingly by his choice simply and solely because of his having accepted an office with knowledge that it has a fixed term and that the State board having appointive or elective power to fill the office might decide at the end of his term to appoint or to elect some other person.

OPINION 71-7

To: Secretary of State

January 18, 1971

Re: Public officers; duties of bailiffs, constables, and deputy sheriffs.

This is in response to your recent letter in which you posed several questions concerning the law of constables and bailiffs.
The duties of a constable are to regularly attend all terms of the

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justice's court in their respective districts; to attend superior court when summoned by the sheriff; to execute and return all warrants, summons, executions and other processes which have been directed to them by lawful authority; and to account for all moneys collected by them or otherwise entrusted to them. See Ga. Code 24-817.
Ga. Code 24-805 prohibits constables from holding the position of deputy sheriff. This section does not prohibit a constable from being specially deputized by the sheriff for the specific purpose of serving a particular writ. In such a situation a constable is a de facto deputy sheriff and service by him is legal. See Strickland v. Strickland, 24 Ga. App. 200, 100 S.E. 230 (1919).
A bailiff has been judicially defined as "a person to whom some authority, care, guardianship, or jurisdiction is delivered, committed, or entrusted". See Hannah v. State, 212 Ga. 313,92 S.E.2d 89 (1956). In Georgia the duties entrusted to the bailiff are those of having custody of the jury during its deliberations. See Ga. Code 24-3201 and 59717.
Bailiffs are appointed by the sheriff with the approval of the Court. See Ga. Code Ann. 24-3379. Bailiffs do not have to be bonded. A deputy sheriff may serve as a bailiff ifhe is first administered and takes the oath of a bailiff which is prescribed by Ga. Code 24-3201 and 59-717. See Hannah v. State, 212 Ga. 312,92 S.E.2d 89 (1959).

OPINION 71-8

To: United States Department of Health, Education and Welfare

January 19, 1971

Re: Acquisition of surplus federal property by Hospital Authority of De Kalb County.

Counsel for the DeKalb County Hospital Authority, DeKalb County, Georgia, in whose care this communication is addressed has requested the writer to render the opinion required by Section 12.10(c) of Title 45, Subtitle A, of the Code of Federal Regulations.
The Authority's Counsel advises the Authority is making application to the United States Department of Health, Education and Welfare for the acquisition of approximately 40.9 acres of land in the southern portion of DeKalb County, Georgia, being a portion of the tract heretofore known as the United States Honor Farm No. 2; that the property had been declared surplus real property by the General Services Administration and the Department of Health, Education and Welfare; that the Authority intends to use the property for the construction of a general

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hospital, which will be a satellite facility of the existing DeKalb General Hospital; and that the Authority does not intend to commence construction of the hospital immediately, and is accordingly making application to acquire the property under the deferred use provisions of the applicable regulations of the Department of Health, Education and Welfare.
In the circumstances, it is my opinion that the De Kalb County Authority, DeKalb County, Georgia is authorized to enter into the proposed transaction; to accept the property applied for subject to the terms and conditions set forth in Section l2.9(b) and (c) (1), (2), (3), (4), (5), (6) and (8) and Section 12.10 of Title 45, Subtitle A, of the Code of Federal Regulations, and is authorized to undertake the obligations provided for thereunder.

OPINION 71-9

To: State Superintendent of Schools

January 20, 1971

Re: State Board of Education; no authority to use State funds for transportation of independent city school system pupils.

In your letter of December 23, 1970, you point out that since the State Board of Education in 1967 adopted a policy of making special payments to county school systems for the transportation of handicapped children from one county to another in order to attend classes not available in the county of residence, you have received numerous requests for the same sort of fiscal assistance from independent city school systems. You ask for an opinion as to the legality of such payments to independent city school systems.
It is basic that the powers of public boards and officers are limited to those defined by law. Ga. Code Ann. 89-903. This rule is of especial force where the action in question is a disbursement of public funds. Before an officer can be required to pay out public money, or be justified in doing so, those who demand its payment must be able to show a clear provision of the law authorizing the disbursement. E.g. Cole v. Foster, 207 Ga. 416,418 (1950); Freeney v. Geoghegan, 177 Ga. 142(1) (1933).
Although city school boards, like county school boards, are constitutionally authorized to contract with each other for the transportation of pupils, see Art. VIII, Sec. IX, Par. II of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-7202), I am unaware of any constitutional provision or statute which would authorize the State Board of Education to disburse State school funds to independent city school systems for any form of pupil transportation. To the contrary, the transportation provisions of both the Minimum Foundation Pro-

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gram of Education Act and other school laws would seem to make it abundantly clear that in providing State aid for support of pupil transportation, the General Assembly contemplated that such assistance would be extended solely to county school systems. See Ga. Laws 1947, p. 1461, Ga. Code Ann. 32-423 to 32-427; Ga. Laws 1964, pp. 3, 15, Ga. Code Ann. 32-618.
For the above reasons I am reluctantly forced to the conclusion that the State Board of Education is without legal authority to disburse State school funds to independent city school systems for transportation of handicapped children.

OPINION 71-10

To: State Superintendent of Schools

January 21, 1971

Re: School funds cannot lawfully be expended in support of extracurricular athletic teams.

This is in reply to your letter of December 4, 1970, in which you ask whether public school monies can be used for athletic program expenditures. In light of the prior opinions of this office which make it abundantly clear that such expenditures are perfectly proper when made in support of those physical education programs which are required by law (i.e. Ga. Code Ann. 32-1901) and are part and parcel of the regular curricula of public schools, e.g. Ops. Att'y Gen. 1954-56, p. 245; 1957, p. 115; 1963-65, p. 547, I assume that your inquiry is directed toward extracurricular athletic programs such as football and basketball teams.
The ultimate question, of course, is whether an expenditure for such extracurricular activities (which are in fact available to only a limited number of students rather than to students generally) can be said to be an expenditure "for educational purposes" within the meaning of Article VII, Sec. II, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5501) and Ga. Laws 1969, p. 721, Ga. Code Ann. 32-942. These provisions permit the common school fund to be expended for educational purposes and none other. See Wright v. Absalom, 224 Ga. 6 (1968).
Past opinions of this office have viewed expenditures for such extracurricular activities to be improper. E.g. Ops. Att'y Gen. 1968, pp. 243, 244. In the analogous matter of band uniforms, for example, Ops. Att'y Gen. 1964, p. 397, while upholding the purchase of band uniforms where "band" is a part of the school's educational curriculum with pupils

71-ll

14

being instructed during regular school hours and earning credits toward graduation, went on to point out:
"Where a band composed of students is in reality no more than an extracurricular activity, the expenditure of school funds would not be legal even though the band might participate in school affairs and have teacher assistance in regular practice sessions held at the school. . . ."
Since the Supreme Court of Georgia has already held that an expenditure of school funds for school lunch purposes would be improper because the school lunch program is not an "educational purpose", see Wright v. Absalom,1 224 Ga. 6 (1968), I doubt that it would uphold the use of school funds for extracurricular athletic events, such as football and basketball contests, particularly where student participation, realistically speaking, is unavailable to all but a very small number (and percentage) of the student body and has little or no relation to scholastic achievement.
For the reasons stated, I think the previously expressed views of this office are correct and I continue to be of the opinion that public school funds cannot lawfully be expended for extracurricular athletic teams such as football and basketball teams.

OPINION 71-11

To: State Supertintendent of Schools

January 21, 1971

Re: Conflicts of interest; sale to State of professional services by persons under contract as consultants on part-time basis.

In your letter of January 15, 1971, you refer to the State Department of Education's use of professional persons to provide medical, psychiatric, dental, psychological and social work services in connection with vocational rehabilitation. As I understand it, these persons are appointed to positions which are "exempt" under merit system regulations and are compensated through your payroll system on either a fixed monthly rate of compensation or at an hourly rate based on the type of services provided and time required. Far more important in forming my opinion, however, is the fact that you have orally informed me that the

L This decision was rendered before the ratification of the amendment to the Constitution, Art. VII, Sec. II, Par I (Ga. Code Ann. 2-5501(10-A)) by Ga. Laws 1967, p. 940.

15

71-12

services rendered are primarily of a consulting nature and are rendered by any given individual for only a few hours per week rather than on a full-time basis.
Your concern arises over the fact that some of these professional persons are also on a list of approved vendors who render case services to individual vocational rehabilitation clients upon authorization of a vocational rehabilitation counselor and are compensated for this service on a usual and customary fee basis. You ask for an opinion concerning the legality of purchasing individual case services on an usual and customary fee basis from a professional person who is already under contract to perform services for the Division of Vocational Rehabilitation (ordinarily consultative services) for a few hours each week.
In reviewing Georgia's various "conflict of interest" statutes, e.g. Ga. Laws 1968, pp. 1249, 1307, Ga. Code Ann. 26-2306; Ga. Laws 1956, p. 60, Ga. Code Ann. 89-913 to 89-918, as well as various prior opinions of this office dealing with the same, e.g. Ops. Att'y Gen. 1969, pp. 471, 626, 654, 669, the sole statute I find concerning the sale of services to the State by a State employee is Ga. Code Ann. 89-913. Inasmuch as this statute prohibits the sale of services only by those employees who are "full-time" employees, the question of whether or not professionals who render services to the Vocational Rehabilitation Division for not more than several hours per week are employees or independent contractors need not be answered. Even assuming for the sake of argument that they could properly be considered to be employees, it is obvious that their rendering of services for only a few hours per week precludes any status of "full-time" employee. Particularly is this so when one recognizes that inasmuch as it is a criminal statute, it must be strictly construed against the State and in favor of the individual.
For the above reasons, it is my opinion that under the facts given it would not be illegal for a professional person who works for the State for only several hours a week (i.e. a "part-time" employee if an employee at all) to sell additional professional services to the State on a usual and customary fee basis.

OPINION 71-12

To: State Auditor

January 22, 1971

Re: School funds; expenditures for physical examination for superintendent, for banquet, and for insurance for athletes held illegal.

In your letter of December 9, 1970, you refer to a local school system's expenditure of school funds for (1) an annual physical examina-

71-12

16

tion of the superintendent, (2) a banquet in connection with an in-service training program for school desegregation, and (3) insurance premiums for members of a high school football team. You ask first whether these expenditures are lawful, and second whether in the event they are unlawful, the local school board has the power to absolve its school superintendent respecting his liability for making the payments in question.
With respect to your initial question, I would say that although the issue is not free of doubt, it is my opinion that unless a local school system is somehow excepted from the operation of the general school laws of Georgia on the subject (e.g. by a local constitutional amendment), the courts would more likely than not hold all three items to be improper objects for the expenditure of public school funds. To start with, it is axiomatic that the powers of public officials are limited to those defined by law. Ga. Code Ann. 89-903. With respect to the disbursement of public funds, it was stated in Burke v. Wheeler County, 54 Ga. App. 81,85 (1936):

"Public funds can not be expended unless such expenditure is authorized by law, and money belonging to the public-school funds can not be used for any other than school purposes."

See also, e.g. Cole v. Foster, 207 Ga. 416, 418 (1950); Freeney v. Geoghegan, 177 Ga. 142(1) (1933). The general restriction of expenditures of the common school fund to "educational purposes and none other" stems from the Constitution, see Article VII, Sec. II, Par. I and Article VII, Sec. IV, Par. II of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5501 and 2-5702) as well as from statute, i.e. Ga. Code Ann. 32-942. Since the Supreme Court of Georgia has already held that the expenditure of funds for school lunch purposes would not be an authorized expenditure "for educational purposes", see Wright v. Absalom, 1 224 Ga. 6 (1968), I would be greatly surprised if it could be persuaded to hold that a faculty banquet could be financed from the common school fund. Similarly, if in the absence of specific statutory authority a school board is unauthorized to purchase workmen's compensation for school employees, see Murphy v. Constitution Indemnity Company, 172 Ga. 378 (1931), it would seem even more afield to contend that student participants in an extracurricular activity which itself is an improper object for the expenditure of school funds (e.g. high school football or basketball) may nonetheless be protected by liability insurance purchased with school funds. In Ops. Att'y Gen. 1957, p. 116, this office expressly ru-led that a local school board cannot legally expend school funds to pay premiums on liability insurance other than in those instances where the expenditure is author-

I. This decision was rendered before the ratification of the amendment to the Constitu-
tion, Art. VII, Sec. II, Par. I (Ga. Code Ann. 2-5501 (10-A)) by Ga. Laws 1967, p. 940.

17

71-12

ized by statute. Finally, while I can find no judicial decision which casts any great amount of light on the question of the use of public school funds for an annual physical examination of the school superintendent [Wright v. Absalom, 224 Ga. 6, lO (1968) and Floyd County v. Scoggins, 164 Ga. 485, 488 (1927), would seem to imply a negative answer by stating that employee benefits such as "medical attention" cannot be justified simply because they contribute to the welfare and efficiency of employees], I note that this office has previously expressed the view that public school funds cannot be used to purchase a home for teachers. See Ops. Att'y Gen. 1954-56, p. 291. It would seem to me that there is no difference in principle and I am therefore of the opinion that the courts would probably hold all three items to be improper objects for the expenditure of common school funds.
In answer to your second question, I do not suppose there is any doubt as to the fact that a public official is personally liable when he innocently or deliberately expends public funds entrusted to his care in a manner not authorized by law. See e.g. Wiley v. City ofSparta, 154 Ga. 1 (1922); Ops. Att'y Gen. 1965-66, pp. 408, 410. The only remaining question is whether the official in the present situation, a school superintendent, can be absolved from liability by action of the local school board. In answering this question, I need merely refer once again to Ga. Code Ann. 89903 which after first stating the fact that the powers of public officials are limited to those defined by law, declares:

"The public may not be estopped by the acts of any officer done in the exercise of a power not conferred."

I am unaware of any authority of a local school board to waive a school superintendent's liability for a wrongful expenditure of school funds. I am consequently of the opinion that any purported absolution of a superintendent by a school board in the described situation would almost certainly be held by the courts to be a nullity.

71-13

18

OPINION 71-13

To: Executive Director, Georgia Higher Education Assistance Corp.

January 29, 1971

Re: Higher Education Assistance Authority; guaranteed educational loans.

You have requested an official opinion as to the constitutional validity of a $162,330 appropriation by the General Assembly to the Higher Education Assistance Authority (through the Higher Education Assistance Committee) for the fiscal year 1971 "for the purpose of enabling the Authority to make guaranteed educational loans as provided for by State and Federal laws". Your letter adds that the Authority has made educational loans to students from the funds appropriated for this purpose; that these repayable loans are fully guaranteed by the Higher Education Assistance Corporation in accordance with the terms of the Act creating the Corporation, and that these loans are further reinsured to the extent of 80 percent to 100 percent of the principal by the United States Government under the federal Higher Education Act of 1965.
The Georgia Constitution authorizes the General Assembly to provide for a program of guaranteed student loans for higher education purposes. Article VII, Section I, Par. II (11) (Ga. Code Ann. 2-5402[11]) (ratified, Nov. 3, 1964). This provision further authorizes the General Assembly to create an authority, a corporation or other entity for the purpose of administering any such program.
The Georgia Higher Education Assistance Authority was created by Ga. Laws 1969, p. 683, with broad authority, inter alia, to receive funds from both public and private sources and to administer a higher education loan program either independently or in conjunction with other agencies, including the Georgia Higher Education Assistance Corporation. Ga. Code Ann. Chapter 32-37.
The Georgia Higher Education Assistance Corporation was created by Ga. Laws 1965, p. 217, for the express purpose of implementing the constitutional amendment cited above. Ga. Code Ann. 32-330 I. The Corporation is authorized, inter alia, to guarantee student loans for higher education purposes made by various types of loan institutions including the Georgia Higher Education Assistance Authority. Ga. Code Ann. 32-3306.
The Higher Education Assistance Committee, created by Ga. Laws 1968, p. 1082, Ga. Code Ann. Chapter 32-34, is the governing authority of the Higher Education Assistance Authority and the Higher Education Assistance Corporation.

19

71-14

Therefore, It IS my opinion that there is clear authority under the constitutional and statutory provisions discussed above for an appropriation by the General Assembly of $162,330 to the Higher Education Assistance Authority (through the Higher Education Assistance Committee) for the fiscal year 1971 for the purpose of enabling the Authority to make guaranteed educational loans as provided for in the Act creating the Authority.

OPINION 71-14

To: Joint-Secretary, State Examining Boards

February 3, 1971

Re: Cosmetology; authority of State Board of Cosmetology to prescribe courses of study.

In a recent letter to this office you requested my Official Opinion on whether the Georgia State Board of Cosmetology may require an applicant for the master cosmetology examination to complete a prescribed course of study. You stated that an applicant for the master cosmetology examination must either complete l ,500 credit hours in a cosmetology school or 3,000 hours of training in a beauty salon. You further stated that by appropriately adopted rules and regulations the Georgia State Board of Cosmetology has established a prescribed course of study for students in cosmetology school. It is my Official Opinion that the Georgia State Board of Cosmetology may require that an applicant for the master cosmetology examination complete a prescribed course of study.
The Georgia State Board of Cosmetology has the authority to set a course of study for all students enrolled in cosmetology school. See Ga. Laws 1963, pp. 45, 47, as amended (Ga. Code Ann. 84-4405). The Board is vested with the authority to pass upon the course and hours of study in such a school. See Ga. Laws 1963, pp. 45, 51, as amended (Ga. Code Ann. 84-4413). In addition, all applicants for the master cosmetology examination must file with the Board a transcript from the school attended by the applicant showing the number of hours and courses completed. See Ga. Laws 1963, pp. 45, 47, as amended (Ga. Code Ann. 844405).
The Georgia State Board of Cosmetology has exercised the preceding legal authority by adopting rules and regulations which prescribe a course of study to be followed in schools of cosmetology. See Rules of the Georgia State Board of Cosmetology, Rules and Regulations of the State of Georgia, 130-3-.02 and 130-3-.03. The Board is vested with the power to adopt these rules and regulations. See Ga. Laws 1963, pp. 45, 49 (Ga. Code Ann. 84-4408).

71-15

20

Therefore, it is my Official Opinion that the Georgia State Board of Cosmetology may require that an applicant for the master cosmetology examination complete a prescribed course of study.
You have also asked what authority the Georgia State Board of Cosmetology has to require that schools of cosmetology teach a prescribed curriculum. It is unlawful in this State for any person to operate a school of cosmetology without having first obtained a certificate of registration. See Ga. Laws 1963, pp. 45, 46 (Ga. Code Ann. 84-4403). The Georgia State Board of Cosmetology is vested with the authority to pass upon the course and hours of study in a school of cosmetology. The Board may refuse certification or revoke the license of a school if it does not comply with the prescribed course of study. See Ga. Laws 1963, pp. 45,
51, as amended by Ga. Laws 1966, pp. 195, 200 (Ga. Code Ann. 844112).
Therefore, it is my Official Opinion that the Georgia State Board of Cosmetology may refuse to certify or may revoke the license of a school of cosmetology which does not comply with a prescribed course of study.

OPINION 71-15

To: Commissioner of Labor

February 3, 1971

Re: Child labor; children under 14 years of age prohibited from selling or delivering newspapers.

This letter is in response to your recent inquiry as to "whether or not employment certificates for newsboys under fourteen (14) years of age are permitted under the present law."
The general provisions of Georgia law limiting employment by minors is set forth in Ga. Code 54-301 (Ga. Laws 1946, pp. 67, 68), which provides:

"No minor under 14 years of age shall be employed, permitted or suffered to work in any gainful occupation at any time: Provided that this law shall not be construed to apply to the work of a minor in agriculture, domestic service in private homes, or in employment by a parent or a child standing in place of a parent."

Another exception to the above provisions limiting employment by children under fourteen (14) years of age is provided in Ga. Code 54303 (Ga. Laws 1946, pp. 67, 68), which provides:

"Boys 12 and 13 years of age may be permitted to work in whole-

21

71-16

sale and retail stores, provided work permits are procured as provided in section 54-310. . . ."

In the provisions of the Child Labor Law enacted in 1946, there is a provision which applies directly to the selling and delivering of newspapers by children. This provision is set out by Ga. Code 54-307 (Ga. Laws 1946, pp. 67, 69), which provides:

"Children under 16 years of age may be employed to sell or deliver newspapers in residential areas between the hours of five o'clock A.M. and nine o'clock P.M., but shall not be employed to sell or deliver newspapers between the hours of nine o'clock P.M. and. five o'clock A.M.: Provided, such employment is not for a longer time than is provided in section 54-308 and shall not be performed during school hours."

Inasmuch as the provisions of Ga. Code 54-307, cited above, do not provide an exception to the general provisions provided by Ga. Code 54-301-the restrictions of Ga. Code 54-301 prohibiting employment of children under fourteen (14) years of age "in any gainful occupation at any time" (Emphasis added.) would apply to children selling or delivering newspapers. Therefore, it is my opinion that it would be improper to issue an employment certificate to allow children under fourteen (14) years of age to sell or deliver newspapers.

OPINION 71-16

To: Director, Employment Security Agency

February 4, 1971

Re: Superior court clerks; fees for filing executions and for indexing; Code 24-2727 and 39-705 reconciled.

This letter is in answer to your inquiry as to what provision of Georgia Law should control the amount for which clerks of the Superior Courts of this State should charge for the recording of fieri facias on the general execution dockets of said courts. An impression as to an apparent conflict in the proper amount to charge seems to have arisen between the provisions of Ga. Code Ann. 24-2727 and Ga. Code Ann. 39-705.1
Ga. Code Ann. 24-2727 (Ga. Laws 1970, pp. 497, 498) provides the
fee schedule which clerks of the Superior Courts of this State may charge for official duties performed by them in civil and criminal cases.

I. This Opinion correctly stated the relationship between Ga. Code Ann. 24-2727 and 39-705 at the time of issuance of the Opinion. The 10 cent indexing fee provision of 39-705, however, was eliminated by some rather complex legislation at the 1971
~03'-'C'~rt.n C.o..a. 1\-,.. A._._,.,""............... I T"71 "7'1 I T"71 "'7C __ ..J .._L_!_ ' __ .._ ___ .._ __

71-16

22

Under this statute, the fee enumerated for entering fieri facias on the general execution dockets is the sum of fifty cents ($.50).
A conflict apparently has arisen in the proper fee to charge due to the provisions of Ga. Code Ann. 39-705 (Ga. Laws 1889, pp. 106, 107; 1950, pp. 107, 108), which provides:
"For entering such execution as aforesaid upon the general execution docket, the clerk shall be entitled to a fee of 50 cents, to be taxed in the bill of cost, and also a fee of 10 cents for each entry in the filing docket, both direct and reverse, in entering on such filing docket and index each deed or mortgage or other liens or instruments."

As expressed in the editorial note to Ga. Code Ann. 39-101:

"In Georgia statutes and decisions the terms 'execution,' 'writ of fieri facias,' and 'fi. fa,' are treated as synonomous."

Therefore, the entering of an "execution" on the general execution docket is the same as entering a fieri facias on the general execution docket.
The duties of a clerk of a Superior Court are set out in Ga. Code 24-2714, the pertinent portions of which are set out below:

"It is the duty of the clerks of the superior court:
* * *
"5. To keep in their offices, in vacation, and in court during term time, the following dockets and books, to wit:
* * *
"(5) A general execution docket, on which he shall enter all executions, and a reverse index to such docket, on which he shall enter all executions entered on such docket.
* * *
"( 11) A filing docket, which shall show the day and hour of filing of deeds, mortgages, and liens of all kinds, required to be recorded within a specified time, which docket shall be open for examination and inspection as other records of the office."

Inasmuch as the fee provided in Ga. Code Ann. 39-705 provides a fee of fifty cents ($.50) for entering an execution on the general execution docket and a fee of ten cents ($.10) for each entry in the filing docket, two different transactions, it is my opinion that the provisions of the two statutes involved are not in conflict.

23

71-17

In discussing this problem with several clerks of Superior Courts

throughout the state, I have learned that some clerks have continued to

maintain a filing docket. These clerks continue to charge the ten cent

($.10) fee discussed above for each entry made in that docket. It appears,

however, that some clerks have adopted alternative filing procedures in

lieu of a filing docket. No fee is provided for by statute nor is one being

charged for entering of a fieri facias in such alternative procedures.

The normal procedure for repealing or amending a statute of this

State is provided by Art. Ill, Sec. VII, Par. XVI (Ga. Code Ann. 2-

1916) of the Georgia Constitution. However, repeal of a statute can also

result by implication.

.

In determining whether or not a later statute has repealed by implica-

tion an earlier statute, it must be remembered that repeal of statutes by

implication are not favored by the law. For a repeal by implication to

take place, a subsequent statute must be clearly and indubitably contra-

dictory to the earlier statute and be in irreconcilable conflict with each

other so as to preclude their ability to reasonably stand together. Mayor

of Athens v. Wansley, 210 Ga. 174,78 S.E.2d 478 (1953).

In my opinion the provisions of the two statutes in question are not

in irreconcilable conflict to warrant the repeal of Ga. Code Ann. 39-

705 by Ga. Code Ann. 24-2727. On the contrary, the fees to be

charged for entering of a fieri facias on the general execution docket are

the same in both statutes. For those Superior Courts which continue to

utilize a filing docket~an additional ten cent ($.10) fee may properly

be charged for making an entry in said docket under Ga. Code

Ann. 39-705.

OPINION 71-17

To: State Treasurer

February 5, 1971

Re: State grants to municipalities; Bureau of Census Report [PC(VI)12] as effective.

This is in response to your inquiry of January 29 concerning whether or not the Advance Report of Final Population Counts [PC(V.I)-12], 1970 Census of Population prepared by the Bureau of the Census ts such census upon which you can proceed with the distribution of the second installment of municipal grants for the 1970-71 fiscal year.

71-17

24

As you are aware, the need for installment distribution arose by virtue of the laws discussed in my opinions of March 13 and April 13, 1970. [See Ops. Att'y Gen. 70-36, 70-62.]
As you are also aware, the two municipal grant Acts refer to the decennial census of 1960 or any future census. See Ga. Laws 1965, p. 458; 1967, p. 889 (Ga. Code Ann. 69-1302(d), 69-1603(f)) as amended.
Ga. Code Ann. 102-103 (Ga. Laws 1963, p. 608) defines "census" as follows:

"Whenever there is used in the statutory law of Georgia the term 'federal census,' 'United States census,' 'decennial census,' or similar words referring to the official census conducted every 10 years by the United States of America or any agency thereof. .. , the effective date of such census for the purpose of making operative and of force any statutory law of Georgia shall be midnight, December 31, of the year in which such census is conducted by the United States of America or any agency thereof."

The 1970 census was conducted in that year. Your problem stems from the fact that the Bureau of the Census has
not published what it calls its "final report", but has published what it calls its "advance report". According to the "Advance Report" [PC(VI)-12], that report contains "Final Population Counts". The report states further as follows:

"This report presents final 1970 census statistics on the number of inhabitants of the State and its counties, classified by urban and rural residence. In addition, figures are shown for each county subdivision, each incorporated place, and each unincorporated place of 1,000 or more.
"The figures presented here are being issued in advance of their publication in Final Report Series PC(1 )-A. The final report for this State will be issued within the next few months."

According to another publication of the Census Bureau ("1970 Census of Population and Housing, Tentative Publication and Computer Tape Program"), the Advance Report [Series PC(VI)], issued in the period August-December, 1970, contains:

"Final Population Counts. Official population counts will be presented for the State, counties, minor civil divisions, all incorporated places, and unincorporated places of I,000 or more inhabitants."

25

71-18

According to that same publication, the so-called "final report" [Series PC(l)-A], to be issued in the period September 1970-April 1971, will contain "Final official population counts . . . for States, counties (by urban-rural residence), SMSA's, urbanized areas, minor civil divisions, census county divisions, all incorporated places, and unincorporated places of I,000 inhabitants or more."
According to another publication of the Census Bureau ("Calendar of Forthcoming Census '70 Publications"), the title of the advance series is "final population counts" and its description is "official population counts". This latter publication also indicates that the difference between the "advance series" and "final series" is that the "final series" contains some information in addition to that contained in the "advance series". That additional information is not needed, as best I can ascertain, for your purposes. Moreover, the expected publication dates of the "final series" (September 1970 through April 1971) suggests to me that when the General Assembly enacted the foregoing definition of the word "census", it was referring to those final-official population counts contained in what the Census Bureau refers to as its "advance series" [PC(VI)-12].
It is, therefore, my opinion that your question should be answered in the affirmative and that you may proceed with the distribution of the second installment of municipal grants for the 1970-71 fiscal year based upon that current census information available to you.

OPINION 71-18

To: Executive Director, Georgia Ports Authority

February 8, 1971

Re: Public officers; membership on the Georgia Ports Authority as not a civil office of the State of Georgia.

You have requested my opinion as to whether membership on the Georgia Ports Authority is a civil office of the State of Georgia so as to render ineligible for membership persons holding any office of profit or trust under the Government of the United States. Ga. Code 89-
101(4).
In Sheffield v. State School Building Authority, 208 Ga. 575, 584 (5) (1952), the Supreme Court of Georgia held that membership on the State School Building Authority did not constitute a civil office within the contemplation of the Georgia Constitution. While there are those who would limit the reach of this decision to offices on public corporations not performing governmental functions, I cannot in good faith so

71-19

26

limit the Supreme Court's rationale of decision. Of course, such a limitation would preclude application of the Sheffield holding to the Georgia Ports Authority. International Longshoremen's Assn., AFL-C/0 v. Georgia Ports Authority, 217 Ga. 712 (1962).
The Supreme Court in Sheffield relied upon an earlier decision in State of Georgia v. Regents of the University System, 179 Ga. 210 (1), 216-223 (1934). I can only construe these two decisions together to hold membership on the governing boards of public, nonmunicipal corporations, such as your Authority, not to be civil offices within the contemplation of the Georgia Constitution, though such members are clearly fiduciaries of public trust. Further, I can find no basis for distinguishing between the term "civil office" as used in the statutory disability, Ga. Code 89-101 and the constitutional infirmity which the Court construed in Sheffield. Ga. Constitution, Art. III, Sec. IV, Par. VI; Ga. Code Ann. 2-1606.
I am aware that this opinion constitutes the drawing of a line between civil offices as such and other non-military positions of public trust which may be criticized for its subtle fineness. I regard this fineness as being necessitated by full-bench decisions of the Supreme Court defining the character and nature of the authority-concept public corporation which decisions I am compelled to honor and follow. While certain issues relating to the nature and the character of such public corporations remain to be judicially determined, I cannot in good conscience regard the question posed as being one of them.

OPINION 71-19

To: State Treasurer

February 9, 1971

Re: State grants to municipalities; effect of failure to file certificate in time.

This responds to your inquiry of January 20, 1971, in regard to Question 2 of my opinion of April 13, 1970 [Ops. Att'y Gen. 70-62], concerning grants to municipalities. You have asked, essentially, whether a municipality would be entitled to receive a share in the distribution of funds based upon the applicable 1970 Census if it failed to file the required certificate prior to June 1, 1970.
The General Assembly has answered your question explicitly. In the event that no certificate has been filed in behalf of a municipality prior to June 1 of the applicable year, the municipality

" . . . shall not be entitled to and shall not be paid any funds for the applicable period, and such municipality shall not be included

27

71-20

in the formula for determining the amount of the [subject] grants. . . ." (Matter in brackets added.) Ga. Laws 1965, p. 458; 1967, p. 889 (Ga. Code Ann. 69-1305, 69-1606). In accord: Opinion to the Honorable Jack B. Ray, dated March 13, 1970. [Ops. Att'y Gen. 70-36.]

Based on the foregoing, I am of the opinion that the question you have posed necessarily must be answered in the negative.

OPINION 71-20

To: Executive Secretary, Regents of the University System of Georgia

February 11, 1971

Re: Investments by fiduciaries; statutes correlated.

This is to respond to your inquiry as to whether or not the provisions of Ga. Code 108-417 (as amended in 1969) repealed by implication other Code sections designating lawful investments which can be made by Trustees. The Code sections to which you made reference are Ga. Code Ann. 108-420; 109-512; 1 16-437;2 16-438;2 32-1443 and 32120a.4
Ga. Code 108-417 (Ga. Laws 1845, Cobb, 333. Acts 1860, p. 31; as amended) was amended in its entirety by Ga. Laws 1969, p. 963, to provide in material part:

"Any trustee holding trust funds may invest the same in bonds or other securities issued by this State, making a true return of the price paid in time of purchase. Such investments shall be free from taxation as long as held for the trust estate. Trustees are also authorized to invest trust funds in direct and general obligations of the United States Government, obligations unconditionally guaranteed by the United States Government, or obligations ofagencies of the United States. Government issued by the Federal Land Bank, Federal Home Loan Bank, Federal Intermediate Credit Bank, and Central Bank of Cooperatives. . . ." [Emphasis supplied.]

The wording of the 1969 amendment to Ga. Code 108-417 is almost identical to the wording of the law which it amended, with the

I. Based upon Ga. Laws 1953, p. 108. 2. Based upon Ga. Laws 1937-38, Extra. Sess., p. 322, as amended.
3. Based upon Ga. Laws 1937, p. 901. 4. Based upon Ga. Laws 1949, pp~ 1009, 1020.

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28

exception of the above noted emphasized portions of said statute. The

additions made by the 1969 amendment had the effect of broadening the

base of legal investments which could be made by Trustees in federal

bonds and securities. The wording of the 1969 amendment was not

restrictive nor did it substantially change the provisions of the prior

statute which it amended.

There are several other sections of the Georgia Code which make

reference to investments which may be made by trustees of estates. These

sections have provided a broad base of recognized safe investments

which could be made by trustees. Enclosed herein please find a photos-

tatic copy of an opinion rendered by this office on October 31, 1960,

expressing several different types of legal investments which may be

made by trustees. Ops. Att'y Gen., 1960, p. 578.

It is my opinion that the numerous Code sections, to which you have

made reference and to which reference is made in the cited 1960 opinion

of this office, were intended for the purpose of providing a broad base

of legal investments in specified State bonds and securities which could

be invested in by trustees in securing and protecting the interest of the

trust they represent. None of these Code sections were expressly repealed

by the 1969 amendment to Ga. Code 108-417.

The normal procedure to be followed for repealing or amending stat-

utes of this State is provided by Art. I II, Sec. VII, Par. XVI of the

Georgia Constitution, Ga. Code Ann. 2-1916. However, repeal of

statutes can also result by implication. It is a well accepted rule of law

that repeal of statutes by implication is not favored by the law. For a

repeal by implication to take place, a subsequent statute must be clearly

and indubitably contradictory to the earlier statute or statutes and be

in irreconcilable conflict with each other so as to preclude their ability

to reasonably stand together. Mayor of Athens v. Wansley, 210 Ga. 174,

78 S.E.2d 478 (1953).

.

Inasmuch as the amended provisions of Ga. Code Ann. 108-417

were substantially similar to the provisions which it amended and had

the effect of merely broadening the type of investments made in Federal

bonds and securities, it is my opinion that such provisions are not in

irreconcilable conflict with the other statutory provisions herein referred

to so as to repeal them by implication. On the contrary, it is my opinion

that the 1969 amendment in question merely implemented the prior

statutes in providing legal investments which can be made by Trustees

in this State.

29

71-21

OPINION 71-21

To: Director, Employees Retirement System of Georgia

February ll, 1971

Re: Employees Retirement System; inclusion of employees of Comptroller General.

This responds to your recent request for an opinion as to whether or not a person employed by the Comptroller General after the Comptroller General was authorized to perform the obligations of an "employer" under the Employees Retirement System of Georgia automatically became a member of the Retirement System as a condition of employment.
Under the general provisions of the amended Act governing the Retirement System, any person who becomes an employee after January l, 1950, in any State department "operating under a merit system of personnel administration and covered by the Employees Retirement System, shall become a member of the Retirement System as a condition of his employment", subject to certain specific exceptions. Ga. Laws 1949, pp. 138, 142, Ga. Code Ann. 40-2503(1).
The Comptroller General has been authorized by law "to determine at any time whether or not the employees of his departments shall be under or remain under the State Merit System of Personnel Administration" and has been "authorized to perform all of the duties and obligations of an employer, as the term is defined in the acts creating the said
Merit System and the Employees Retirement System of Georgia . . . to the end that the employees thereof shall be members and entitled to receive the benefits of said Employees Retirement System". Ga. Laws 1951, pp. 668, 669; Ga. Code Ann. 40-2240,40-2241 and 40-2529.
Based on the foregoing provisions of law, I am of the opinion that the answer to the question of whether the subject person became a member as a condition of employment depends upon the discretionary action of the Comptroller General during the period of time in question; specifically, upon whether the Comptroller General chose to bring his employees under either the Merit System or a merit system. Not having been furnished the facts pertaining to his actions in this regard, I am unable to formulate either a positive or negative answer to your question.
Since your second question requires a positive answer to the first question, I am not able to give an opinion on it either.

' 71-22

30

OPil\iiON 71-22

To: Director, Department of Public Safety

February 11, 1971

Re: Motor vehicles; inspection of motor vehicles sold at retail by new and used car dealers.

This will acknowledge your letter to me wherein you asked two questions which arose out of a Report of the Sub-Committee on the Motor Vehicle Inspection Law of the House Motor Vehicle Committee, dated December, 1970, to the Governor and others. The report raised the question of whether an automobile dealer is required to place a new inspection sticker on a vehicle when it is sold even though the vehicle has a current inspection sticker attached thereto with a period of time remaining before its expiration. Specifically you ask:

"1. What vehicles sold at retail require inspection under the Act? "2. What is a current official inspection certificate as used in 68-1726.6, Ga. Ann. Code?"

In response to your first question, Ga. Code Ann. 68-1726.6 (Ga. Laws 1965, p. 188, 195), which amended the "Uniform Act Regulating Traffic on Highways", Ga. Code Ann. Chapters 68-15 through 6817; 68-9926 and 68-9927 (Ga. Laws 1953, Nov.-Dec. Sess., p. 556), clearly prohibits a new or used car dealer from selling at retail any vehicle required to be inspected unless the dealer "shall have said vehicle inspected in accordance with the provisions of [the Motor Vehicle Inspection Law (Ga. Code Ann. 68-1723 through 68-1726.6)] and the current official inspection certificate is obtained for said motor vehicle and placed thereon." The "Uniform Act Regulating Traffic on Highways" defines motor vehicles as being "every vehicle which is selfpropelled . . .",Ga. Code Ann. 68-1502(1)(b), and defines a vehicle as being "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway ..." Ga. Code Ann. 68-1502(1)(a).
Therefore, when considering the mandate of Ga. Code Ann. 681726 ['The Director shall once each year require that every motor vehicle, trailer and semi-trailer registered in this State be inspected and that an official certificate of inspection and approval be obtained for each such vehicle. . . ."] in conjunction with the requirements of Ga. Code Ann. 68-1726.6, above, I conclude that all vehicles sold at retail by new and used car dealers require inspection under the Motor Vehicle

31

71-23

Inspection Law, Ga. Code Ann. 68-1723 through 68-1726.6 (Ga. Laws 1963, p. 333, 334-339; Ga. Laws 1965, p. 180, 192-196). See also Glynn Plymouth, Inc. v. Davis, 120 Ga.App. 475, 485-487 (1969) in support of the proposition that Ga. Code Ann. 68-1726.6 requires at least a new car dealer to make a proper inspection and to affix an official certificate of inspection and approval on an automobile sold by the dealer. Even though there has not been a Georgia appellate court decision on point as to the question being resolved herein, I am confident that such a decision would also require a used car dealer to inspect and affix a current official inspection certificate on any motor vehicle sold by the dealer.
In response to your second question, the "current official inspection certificate" referred to in Ga. Code Ann. 68-1726.6 would be that certificate ordinarily affixed to an automobile after it has been inspected and approved, and since Ga. Code Ann. 68-1726.6 requires such an inspection by new and used car dealers, the "current official inspection certificate" would be that certificate which follows the inspection and approval of an automobile being sold at retail by new and used car dealers. The fact that the automobile has affixed to it an inspection certificate which would ordinarily be current, does not require a different conclusion for it is reasonably to presume that the intention of the legislation is to provide a potential motor vehicle buyer with an automobile that meets certain minimum safety standards. Clearly, a purchaser of a used car is entitled to the same assurances of safety as a new car buyer. Cf Glynn Plymouth, Inc. v. Davis, supra.
It is my understanding that because of the apparent necessity for a prompt response to your inquiry, that a member of my staff communicated with you by telephone on February 2, 1971, and advised you as to the principles set out above.
OPINION 71-23

To: Governor, State of Georgia

February 17, 1971

Re: Suspension of tax collections; Code 40-205 authorizes the Governor to grant temporary suspension of the collection of taxes; he cannot grant tax exemptions.

In the past, various groups have, from time to time, asked that certain items be exempted from taxation, citing as authority therefor Ga. Code 40-205. Especially since the passage of the Sales and Use Tax in 1951 and continuing on down through succeeding administrations, it has been the practice of governors to suspend the collection of taxes on

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32

certain items, citing as authority therefor the above Code section, which suspension was subsequently ratified by the General Assembly.
Georgia Code 40-205 reads as follows:

"The Governor may suspend collection of taxes, or any part thereof, due the State until the meeting of the next General Assembly, but no longer; nor shall he otherwise interfere with the collection thereof."

Under the provisions of the above Code section a Governor has the authority to suspend the collection of taxes until the next session of the General Assembly but is not authorized to relieve the taxpayer from any tax liability. The State of Georgia v. The Southwestern Railroad, 70 Ga. ll (1883). The grant of an exemption from taxation is a legislative function which can only be exercised by the General Assembly. See Campbell v. Farmer, 223 Ga. 605 (1967).
In the past it has been the practice to issue an Executive Order suspending the collection of certain taxes until the next meeting of the General Assembly and at that session the General Assembly would ratify such Executive Order. If the purpose of suspending the collection of taxes until the next session of the General Assembly is merely to postpone the collection thereof, this is permissible. At that time the taxpayer would be obligated to pay such taxes. Ratification of the Executive Order by the General Assembly would appear to have no legal effect other than to sustain the suspension of the collection. The General Assembly could, of course, exempt a transaction from being taxed, but it is extremely doubtful that the General Assembly could give such tax relief retroactively. Undercojler v. Swint, 111 Ga. App. 118 (1965); Grimes v. Lindsey, 219 Ga. 779, at p. 780 (1964). In other words, it is our opinion that the suspension of taxes is really just a postponement of the date upon which taxes become due and are payable.
In summary, it is my opinion that the past practice of each year issuing an Executive Order suspending the collection of taxes until the next meeting of the General Assembly, thereby, for all practical purposes, exempting the specified activities from the tax for the periods set forth in such Order, is not authorized by the Constitution.
It is recommended that any group desiring an exemption from taxation should address their request to the General Assembly and not the Executive Branch of government.

33

71-24

OPINION 71-24

To: Director, State Highway Department of Georgia

February 18, 1971

Re: Removal and disposal of outdoor advertising stgns located on State prc)perty.

This is in reply to your request for my official opinion by your letter dated February 1, 1971, on the following questions:
1. It is requested that an official opinion be rendered to determine the degree of authority the State Highway Department has in taking down outdoor advertising signs located on State Highway property.
2. The signs being on State Highway property, what procedure would be required for the storage and disposal of such signs if the signs' owner does not claim them?
3. Also, if rent on these signs were paid to the former landowner after such land was deeded to the State of Georgia, could we collect this money from the former landowner?
In regards to your first question, no express statutory provision has been found which would answer this question. Ga. Code Ann. 952002, based upon Ga. Laws 1931, p. 221, prohibits signs of any description from being erected or maintained within the right-of-way lines of the public roads of this State except route markers, direction or warning signs which may be erected by or at the instance of public road officials of this State. Ga. Code Ann. 95-9914 provides that any person, firm, or corporation violating the aforementioned statute shall be guilty of a misdemeanor. However, no statute provision has been located which would expressly authorize the State Highway Department to remove signs found on State Highway property.
The General Assembly has established a reasonable procedure for removing advertising signs which violate Georgia statutes and are located on private property. This procedure allows removal of the sign after 30 days written notice to the person erecting or maintaining the sign. Ga. Code Ann. 95-2006; Ga. Laws 1967, pp. 423,431, Ga. Code Ann. 95-20 11a. This procedure would appear even more reasonable when the signs are removed from State property.
Also, there is case authority which would allow the removal of personalty which has been placed on the property of another when such removal is done in a reasonable manner. Grier v. Ward, 23 Ga. 145 (1857).
It is also significant to note that under the provisions of Ga. Laws 1956, p. 615 (Ga. Code Ann. 95-609 and 95-611) the Department of Public Safety has the authority to remove, or cause to be removed,

71-24

34

any obstruction or unauthorized sign upon the right-of-way of State highways.
Therefore, it is my official opinion that advertising signs located on State property may be removed if done in accordance with the procedure outlined above.
In regards to your second question, in which you ask what procedure would be required for the storage and disposal of such signs if the signs' owner does not claim them, my review of the law does not reveal any statute authorizing the State Highway Department to store and dispose of such signs. However, in my opinion dated September 16, 1970, it was pointed out that advertisement signs per se are personal property, but under certain circumstances can be considered as part of the realty. Those circumstances exist when the chattel is placed upon the realty with the intent that it remain permanently in that place and it is intended to pass with the realty when conveyed. Wolff v. Sampson, 123 Ga. 400 (1905). Thus, we will assume that the signs in question here are personalty.
As personalty, when the signs are taken down they would continue to be the property of the person originally owning the sign and would remain the property of that person until abandoned. Generally two elements are necessary for an abandonment to take place. First, that the owner have an intent to abandon, to relinquish his right in the sign. Second, that there is some act or an omission to act by which such intention is carried into effect. A lapse of a reasonable time in which the owner did not claim his sign may be taken as evidence of an intent to abandon.
With the above considerations in mind it is my official opinion that when advertising signs are removed from State Highway property they be stored by the State Highway Department for a reasonable length of time, during which time they may be claimed by the owner. This presupposes that the 30 day notice has been given the owner of the sign as set out in the response to your first question. If the signs are unclaimed after a reasonable lapse of time such signs may be treated as abandoned property and disposed of in any manner, within the law, the State Highway Department deems appropriate.
In your third question you ask if rent on these signs were paid to the former landowner after such land was deeded to the State of Georgia, could the State Highway Department collect this money from the former landowner.
This would appear to be a situation where the action for money had and received would be appropriate. Generally, an action for money had and received lies in cases where money is in the hands of the defendant and the plaintiff in good faith is entitled to recover such money and the

35

71-25

defendant in good conscience is not entitled to retain the money. Standard Club v. Saphire, 97 Ga. App. 135 (1958). Also, it is usually necessary that the plaintiff show that the money which the defendant holds belongs to the plaintiff in law and in good conscience even though the money may have come into the hands of the defendant illegally. Adair & McCarty Bros. Inc. v. Central Bank & Trust Inc., 20 Ga. App. 811 (1917). The problem appears to be whether the State Highway Department is authorized to receive money in its own right for allowing private advertising signs to be placed on the State right-of-way. The statutes do not authorize the State Highway Department to take such action. Therefore, the action for money had and received could not be maintained.
It is my official opinion that the State Highway Department does not have a cause of action against the former landowner.
It is anticipated that the above discussion has fully answered the questions posed and that the same will be of assistance to you in carrying out the duties of you office.

OPINION 71-25
To: Acting Executive Secretary, Coastal Marshlands Protection Agency

February 18, 1971

Re: Coastal Marshlands Protection Agency; resignation by Chairman as Director of Game and Fish Commission.
This is in response to your letter of the eighth inst. wherein you requested an opinion as to whether or not Mr. George T. Bagby, the past Director of the Game and Fish Commission and present Director of the State Parks Department, continues to serve as Chairman of the Coastal Marshlands Protection Agency and, if not, how the vacancy is to be filled.
Section 3(c) (Ga. Code Ann. 45-137(c)) of the Coastal Marshlands Protection Act of 1970 (Ga. Laws 1970, p. 939 et seq.), the only portion of the Act dealing with the election of an officer or officers of the Agency, provides:
"A majority of the members of the Agency shall elect a chairman from among the members who shall serve for a period of four years from the date of his election and until his successor is elected."
From the above-quoted provision, it is abundantly clear that the chairman must be a member of the Agency and the chairman is the only authorized officer of the Agency.

71-26

36

Section 3(b) (Ga. Code Ann. 45-138(b)) of the Act enumerates the membership of the Agency as follows:
"(I) The Director of the State Game and Fish Commission (2) The Executive Director of the Ocean Science Center of the Atlantic (3) The Executive Secretary of the Water Quality Control Board (4) The Director of the Coastal Area Planning and Development Commission (5) The Executive Director of the Department of Industry and Trade (6) The Director of the Department of Industry and Trade (7) The Attorney General or their appointed representatives. In the event one of the members of the Agency designated herein appoints a representative, such representative shall be an employee of the same State agency or department as the official making the appointment." Therefore, as Mr. Bagby is not now one of the enumerated officials and cannot presently be appointed a representative of one of the enumerated officials, it is clear that when he resigned as Director of the State Game and Fish Commission he ceased to be Chairman of the Coastal Marshlands Protection Agency. Although at the organizational meeting of the Coastal Marshlands Protection Agency on August 6, 1970, Mr. R.S. Howard, Executive Secretary of the Water Quality Control Board, was elected ViceChairman of the Agency and Captain Thomas Suddath, Director of the Ocean Science Center of the Atlantic, was elected Secretary-Treasurer, neither Mr. Howard nor Captain Suddath is a de jure officer of the Agency and neither automatically succeeds to the office of Chairman of the Agency. (Official Opinion to the Honorable Reginald Trice, Chairman, State Highway Board of Georgia, dated November 27, 1970, Ops. Att'y Gen. 70-198.) Therefore, as Mr. Bagby is no longer Chairman of the Coastal Marshlands Protection Agency and no one else automatically succeeds to the Chairmanship, the Agency should call a special meeting for the purpose of electing a new Chairman of the Agency.

OPINION 71-26

To: Director, Employees Retirement System of Georgia

February 18, 1971

Re: Employees Retirement System; interest when member is not in servtce.

This responds to your recent request for an opinion as to whether or

37

71-27

not interest should accrue to the account of a member of the Employees Retirement System of Georgia while he is not in service as an employee.
The amended Act (Ga. Laws 1949, p. 138) governing the retirement system provides, in relevant part, that

"The membership of any member shall terminate if he retires under

this retirement system, or withdraws his contributions, or if in a

period of five consecutive years after becoming a member he ren-

ders less than one year of service. No benefit under this retirement

system shall accrue to his account while he is not in service as an

employee and no contribution shall be made to the system by the

member, the State or other employer during any such time.

"

Ga. Code Ann. 40-2503(3). (Emphasis added.)

The narrow question raised by your request is the meaning of the word "benefit" as used in the quoted subsection. Since contributions and interest are all that accrue to a member's account, and the subsection expressly states that contributions shall not be made while a member is not in service, it necessarily follows that the word "benefit" must be construed to mean "regular interest." Ga. Code Ann. 40-250 I(10), 40-2509(2).
Based upon the foregoing, I am of the opinion that interest should not accrue to the account of a member of the Employees Retirement System of Georgia while he is not in service as an employee.

OPINION 71-27

To: Director, State Highway Department

February 22, 1971

Re: State Highway Department; implementation of Federal law (Public Law 91-646) in absence of Georgia statutory authority.

This is in response to your request that I determine the extent to which the State Highway Department is authorized to comply with the provisions of Title II and Title II I of the "Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970" (Public Law 91646) which became effective January 2, 1971.
Title II of the Act deals with payments and services which I shall, for convenience, refer to as relocation expenses and advisory services to which a person may be entitled because of displacement by a federally financed project. Somewhat similar payments and services were previously provided for by 23 U.S.C., Chapter 5. The State Highway

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38

Department was authorized to participate in the program provided for by 23 U .S.C., Chapter 5; however, that authorization was confined specifically to "the payments required by Chapter 5, Title 23, United States Code . . .". Georgia Laws 1969, pp. 495, 496 (Ga. Code Ann. 95-1516).
Title II of the Act is not an amendment to 23 U .S.C., Chapter 5, but is, rather, a new and distinct bill which repeals 23 U.S.C., Chapter 5. Public Law 91-646, Section 220(a)(l0). As a cautionary note, I call your attention to the fact that the repealer clause contains a deferred effective date which continues the vitality of 23 U .S.C., Chapter 5, until such time as the State may comply with Title II, but not later than July 1, 1972. Public Law 91-646, Section 22l(b)(c).
The powers of a public officer are defined by law [Hunter v. City of Atlanta, 212 Ga. 179 (1956)] and he may not perform an act not legitimately within the scope of the authority granted. Board ofCommissioners of Peace Officers Annuity & Benefit Fund v. Clay, 214 Ga. 70 (1958).
In view of the foregoing limitations and the specific limitation of authority to participate only in "payments required by Chapter 5, Title 23, United States Code . . ." (Ga. Laws 1969, pp. 495, 496, Ga. Code Ann. 95-1516), it is my official opinion that the State Highway Department may not, in the absence of legislative authority, engage in programs or activities which are envisioned by Title II of Public Law 91-646.
Title I II of the Act requires payment of enumerated expenses incidental to a transfer of title to acquired land (Public Law 91-646, 303) and certain litigation expenses. Public Law 91-646, Section 304. Title III is not an amendment to 23 U.S.C., Chapter 5. The authorities which exclude participation in Title I I programs are applicable here. Therefore, it is my official opinion that the State Highway Department may not, in the absence of legislative approval, participate in programs provided for in Title III of Public Law 91-646.
I note that expenses provided for in Public Law 91-646, Section 303, are identical to those provided for in 23 U.S.C., Section 507(a). The department is authorized to comply with 23 U.S.C., Section 507(a) by Georgia Laws 1969, pp. 495, 496 (Ga. Code Ann. 95-1516, 951517). In the absence of a repeal or modification of the 1969 State Statute, expenditures provided for by 23 U.S.C., Section 507(a) may continue until such time as the State Highway Department may obtain legislative authorization to comply with Title III of Public Law 91-646, but not later than July 1, 1972. Public Law 91-646, Section 221(b)(c).
[See also Ops. Att'y Gen. 71-31.]

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71-28

OPINION 71-28

To: Commissioner of Labor

February 23, 1971

Re: Employment agencies: Talent agencies dealing in the services of musicians, models, and artists fall within the definition of employment agencies, and are subject to regulation by the Commissioner of Labor.

Pursuant to your recent inquiry, I have reviewed various specimen contracts you submitted from modeling, talent, musician, etc., agencies (hereinafter referred to as "talent agencies") to determine whether or not such agencies should fall under the license and regulation requirements provided by Georgia law for employment agencies.
"Employment agency" is defined by Ga. Code Ann. 84-4101 (f) (Ga. Laws 1959, p. 283), to provide:

"'Employment Agent' or 'Employment Agency' shall mean and any person who, for a fee, (1) procures or offers or attempts to procure employees for persons seeking the services of employees, or employment for persons seeking employment; or (2) who, for a fee, in seeking to perform any of the foregoing, gives information by any means as to where employees or employment may be obtained."

"Fees" are defined by (d) of that same statute, to provide:

"'Fees' shall mean anything of value, including any money or other valuable consideration exacted, charged, collected or received, directly or indirectly, or paid or promised to be paid for any service or act described or enumerated in subsection (f) hereof."

In each of the "talent agency" contracts reviewed by me, there are

clauses included therein where the "talent agency" involved receives as

compensation a percentage of the compensation received by the per-

former. Such compensation is in payment for services rendered by said

"talent agency." One of the principle services rendered by each of the

"talent agencies" involved is to obtain or to seek to obtain employment

for the performers that it represents.



It is my opinion that the services provided by a "talent agency", in

offering or attempting to procure employment for its principal for a fee

and/ or the "matching-up" of a prospective employer with the services

of a performer (principal) which the "talent agency" represents, fall

71-29

40

within the definition of "employment agency" as defined by Ga. Code Ann. 84-410l(f).
Inasmuch as such "talent agencies" should be licensed under Ga. Code Ann. Chapter 84-41, it is further my opinion that the Georgia Department of Labor under the provisions of Ga. Laws 1937, p. 230, Ga. Code Ann. 54-122(f) has the authority and responsibility to supervise such private employment agencies.
OPINION 71-29

To: Supervisor of Purchases

February 24, 1971

Re: Workmen's Compensation: Under the Workmen's Compensation Act an elected State official is usually neither an "employer" nor an "employee", but each case should be determined on its merits.

This is in response to the letter from your office inquiring whether elected officials of the State of Georgia are employers or employees under the Workmen's Compensation Act.
For purposes of this Act, the definitions of employer and employee are contained in Ga. Code Ann. 114-101, as amended (Ga. Laws 1968, pp. 1163-4 and Ga. Laws 1970, p. 235). It is clear under this statute that an elected official would not be an employer. The definition of employer includes the State of Georgia and all departments, instrumentalities and Authorities thereof, and while a specific elected official might be the Director of a Department or Agency, the actual employer for purposes of Workmen's Compensation would be the State by and through that particular Department or Agency.
The above statute also defines employee. For reference, the law specifically defines employee for purposes of the Workmen's Compensation Act as including:

" . . . every person in the service of another under any contract of hire or apprenticeship, written or implied, except one whose employment is not in the usual course of the trade, business, occupation or profession of the employer. ..." (See Ga. Code Ann. 114-101).

To my way of thinking, using the ordinary signification of the terms, there is a difference between a state official and state employee. An official, such as those referenced in your letter (Governor, Secretary of State, etc.), is one who holds or is invested with an office, while an employee is one employed by another for wages or salary and, customar-

41

71-30

ily, in a position below the executive level. The term employee generally indicates that one is under the direct supervision of another person, firm, corporation, or other entity, with his duties specified and his actions controlled and directed. In the case of most elected officials in Georgia, their salary is set by statute and rather than being directly controlled and supervised, they supervise and control others. The General Assembly has recognized the difference between employee and official many times by specifically providing that certain things may be done by state "officials or employees" or may not be done by state "officials or employees", thereby indicating a distinction (see, e.g., Ga. Laws 1956, pp. 60, 61, Ga. Code Ann. 89-913).
It must be remembered, however, that one who at first glance appears to be an official may in fact be an employee as in the case, possibly, of a Director of a State commission or board who is selected by the board, has his salary set by the board and serves at the pleasure of the board. In these cases, such a person might be an employee for purposes of Workmen's Compensation. To be sure, I would request that you consider each claim for compensation individually and ask the advice and assistance of this office whenever you have doubts about the status of an injured claimant who is a state official, officer or employee.
In view of the foregoing, it is my opinion that under Georgia's Workmen's Compensation Act, an elected State official is not an employer, nor is he, in most instances, an employee; however, I request that you seek our assistance in determining in each doubtful case whether an injured state official, officer or employee is subject to the Act.
OPINION 71-30

To: Director,

February 25, 1971

State Merit System of Personnel Administration

Re: Merit System; payment of accumulated leave to State employee transferring to State Authority.

This is in response to your request for my official opinion concerning the disposition of the accumulated annual leave of an employee transferring from a State Agency to a State Authority. You ask several questions in this regard and I have taken the liberty of consolidating them into one, the answer to which is dispositive of all. It is as follows:

"If an employee transfers from a State Agency covered by the Merit System to a State Authority, what happens to his accumulated annual leave?"

Upon information, I understand that this question has arisen because

71-31

42

of my opinions of March 23, 1966 and June l, 1967 [unpublished], both to the Honorable Jack P. Nix, stating in essence that an employee transferring from one State Department to another is not entitled to be paid his accumulated annual leave since he has not resigned from State service (pursuant to Regulation B.202 of the State Personnel Board).
While State Authorities are generally regarded as arms or instrumentalities of the State, they are, by and large, public corporations with the power to sue and be sued, implead and be impleaded, and complain and defend in all courts. [For example, see Ga. Laws 1967, pp. 871-5, Ga. Code Ann. Chap. 32-l4A creating the Georgia Education Authority (Schools).] They are, generally speaking, not the State itself nor an Agency thereof. [See State of Georgia v. Regents of the University System of Georgia eta/., 179 Ga. 210 (1934); Sheffield v. State School Building Authority eta/., 208 Ga. 575 (1952).]
In view of the foregoing, it is my opinion that an employee transferring from a State Agency covered by the Merit System to a State Authority would be resigning from state service and would be entitled to be paid his accumulated annual leave pursuant to the State Personnel Board's Rules and Regulations.

OPINION 71-31

To: Director, State Highway Department

February 25, 1971

Re: State Highway Department; implementation of Federal Law (Public Law 91-605) in absence of Georgia statutory authority.

This is in response to your request that I determine the extent to which the State Highway Department may implement relocation policies specified by Sections 117 and 137 of Public Law 91-605.
Section 117 of Public Law 91-605 amends U.S.C., Chapter 5, by inserting a new 510 which authorizes inclusion, as part of project construction costs, the cost "of (A) constructing new housing, (B) acquiring existing housing, (C) rehabilitating existing housing, and (D) relocating existing housing, as replacement housing for individuals and families where a proposed project on the Federal-aid System cannot proceed to actual construction because replacement housing is not available and cannot otherwise be made available as required by section 502 of this title."
Section 137 of Public Law 91-605 adds a new subsection to 23 U.S.C., 506 which requires payment of a sum of money "to compen-

43

71-31

sate such owner for any increased rate of interest which such owner is required to pay for financing such replacement dwelling."
A comparison of the expense items specified in Sections 117 and 137 of Public Law 91-605 with the expense items previously provided for by 23 U.S.C., Chapter 5, indicates that the new expenses, as added to 23 U.S.C., Chapter 5 by the present amendment, were not provided for by 23 U .S.C., Chapter 5 prior to the amendment.
The powers of a public officer are defined by law [Hunter v. City of Atlanta, 212 Ga. 179 (1956)] and he may not perform an act not legitimately within the scope of the authority granted. Board ofCommissioners of Peace Officers Annuity & Benefit Fund v. Clay, 214 Ga. 70 (1958).
The State Highway Department has previously been authorized

"to make or approve the payments required by Chapter 5, Title 23, United States Code for the relocation expenses, replacement housing expenses, and expenses incident to legal transfer of real property acquired from any person, family, business, farm operation, or nonprofit organization displaced by Federal-aid highway projects in the State, the costs of which are now or hereafter financed in whole or in part from Federal funds allocated to the State Highway Department of Georgia." Ga. Laws 1969, pp. 495, 496 (Ga. Code Ann. 95-1516).

At this point, the question which must be resolved is whether the General Assembly, in enacting Georgia Laws 1969, page 495, intended that the authority granted therein should be expanded or diminished by the United States Congress without the necessity of further State legislative action.
The 1969 State statute refers exclusively to "the payments required by Chapter 5, Title 23, United States Code . . .".Georgia Laws 1969, pp. 495, 496. Thus, this statute should be classified as a "specific reference statute". Under the rules of statutory construction adopted by the sole appellate court in this State which has considered this proposition:

"A specific reference statute (referring specifically to a particular statute by its title or section number) incorporates the provisions referred to from the statute as of the time of adoption without subsequent amendments, and unless the legislature has expressly or by strong implication shown its intention to the contrary, subsequent amendment or repeal of the referred statute will have no effect on the reference statute." Campbell v. Hunt, 115 Ga. App. 682, 684 ( 1967).

I am mindful that the State Highway Department has been authorized

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to provide for "the payments required by Chapter 5, Title 23, United States Code for the relocation expenses, replacement housing, and expenses incident to legal transfer of real property . . . , the costs of which are now or hereafter financed in whole or in part from Federal funds allocated to the State Highway Department of Georgia." Georgia Laws 1969, pp. 495, 496. The question is whether the General Assembly has, by employing the words "the costs of which are now or hereafter financed in whole or in part from Federal funds allocated to the State Highway Department of Georgia" (Ga. Laws 1969, pp. 495, 496, Ga. Code Ann. 95-1516), "expressly or by strong implication shown its intention" (Campbell v. Hunt, supra, 684) to authorize, without further legislative action, the expenditure of funds in any manner that the Congress of the United States might deem appropriate. A close examination of the 1969 statute fails to reveal that the General Assembly either expressly or by strong implication evinced an intention to provide for expenses not then provided for in the existing 23 U.S.C., Chapter 5. No statute should be construed, in the absence of positive language, in such a manner that the validity of the construction depends upon a determination that the General Assembly intended to abdicate legislative powers vested by the Constitution.
After examining Georgia Laws 1969, page 495, 23 U .S.C., Chapter 5, and Public Law 91-605, and upon applying the rule of statutory construction announced by Campbell v. Hunt, supra, it is my official opinion that the new expense categories added to 23 U .S.C., Chapter 5 by Sections 117 and 137 of Public Law 91-605 are not cognizable in Georgia by virtue of that amendment. Thus, it is my official opinion that the State Highway Department would not be authorized to implement the provisions of Sections 117 and 137 of Public Law 91-605 in the absence of specific authorization of the General Assembly of Georgia.
[See also Ops. Att'y Gen. 71-27.]

OPINION 71-32

To: Governor, State of Georgia

March 1, 1971

Re: Reports of Supreme Court and Court of Appeals furnished counties; replacement of missing volumes.

In a recent letter to this office you stated that you have received requests concerning the replacement of law books which have been furnished the several counties. You questioned whether you have the statutory authority to require the State Librarian to replace these law books unless there is proof that the books have been destroyed by fire or some

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other cause beyond the counties' control. It is my Official Opinion that volumes of the reports of the Georgia Supreme Court and the Georgia Court of Appeals which are furnished to the several counties shall not be replaced free of charge unless they are destroyed by causes beyond the counties' control.
Ga. Laws 1868, p. 195, as amended, particularly by Ga. Laws 1957, p. 596 (Ga. Code Ann. 101-205) provides for the distribution of the reports of the Georgia Supreme Court and the Georgia Court of Appeals to the several counties. After providing specific persons to whom these law books shall be initially distributed, the law states that any further distribution shall be upon the written authorization of the Governor.
This catch-all phrase appears to refer to the initial distribution of the reports and not to replacements. This conclusion is based upon the position of the catch-all phrase in the statute. It immediately follows mandatory instructions for initial distribution to specifically named officials. It is located prior to instructions on the replacement of lost or destroyed volumes. In addition, the statute explicitly states under what circumstances volumes will be replaced free of charge by the State Librarian and in what circumstances the county officials are responsible for the replacement of the volumes.
For the above cited reasons, it is my Official Opinion that volumes of the reports of the Georgia Supreme Court and the Georgia Court of Appeals which are furnished to the several counties shall not be replaced free of charge unless they are destroyed by causes beyond the counties' control.
You have also requested my Official Opinion on what type of legislation would be needed to authorize you to require the State Librarian to replace missing law books when there is no showing that the volumes were destroyed without fault of the county.
Ga. Laws 1868, p. 195, as amended (Ga. Code Ann. 101-205), states that the State Librarians shall not replace volumes of law reports which have been forwarded to the counties unless there is proof of destruction by fire or other causes which are beyond the control of the counties. This law provides that when such is not the case, the county official to whom the reports were originally supplied is responsible to his successor in office for all volumes which are missing.
This provision is a general law. See Ga. Constitution, Art. XII, Sec. I, Par. Ill (Ga. Code Ann. 2-8003). In Georgia no special law (local law) shall be enacted in any case for which provision has been made by an existing general law. See Ga. Constitution, Art. I, Sec. IV, Par. I (Ga. Code Ann. 2-401). For this reason, it is my Official Opinion that general legislation would be required to authorize the Governor to direct free replacement of law books which have been destroyed by causes which are not beyond the counties' control.

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OPINION 71-33

To: Director, Department of Family and Children Services

March 2, 1971

Re: Public officers and employees; divestment of accumulated annual leave upon transfer to non-Merit System position.

This is in response to your recent letter requesting my official opinion on the payment of accumulated annual leave to the recently-separated former Director of your Department.
From your letter I understand the pertinent facts to be as follows: The Deputy Director of the Department of Family and Children Services had accumulated 45 days of annual leave under the Merit System before he was appointed Director of the Department, a non- Merit System position. Pursuant to previous opinions of this office he was not paid at that time for his accumulated annual leave since he had not resigned from State service. Now he has been involuntarily separated from the position of Director and has filed an Application for Retirement based on that separation. He is not returning to his former position as Deputy Director and is inquiring whether he can now be paid for his leave accrued as Deputy Director.
Regulation B.202 of the Rules and Regulations of the State Personnel Board provides, in essence, that an employee is entitled to and shall receive all accrued annual leave, within certain limits, when he has retired, resigned, been laid off.or dismissed from his employment. This has been construed, as you know, to mean a retiring, resignation, etc. from State service.
Annual leave appears to be a vested right subject to divestment which vests in certain Merit System employees at the rate of one and onefourth working days for each completed calendar month of service, to be granted to the employee in the form of paid vacation days at " . . . such time or times as will least interfere with the efficient operation of the department." (See State Personnel Board Regulation B.20 I.)
The right to accumulated annual leave is divested if the employee does not use it in accordance with Regulation B.20 1 or become entitled to have it paid him under Regulation B.202 or transferred with him pursuant to Regulation B.208. This is simply because these Regulations prescribe the only conditions under which accumulated annual leave may be used by an employee. The employee in the instant situation did not become entitled to payment for accumulated leave in accordance with the Regulations. He could not have it transferred with him as he was shifting to a non-Merit System position. Furthermore, it must be

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remembered that this employee is resigning from a non-Merit System position yet attempting to obtain leave accumulated under a Merit System appointment. The Rules and Regulations of the State Personnel Board simply do not delineate and direct the rights and responsibilities of non-Merit System employees. The only reasonable alternative is to decide this employee became divested of his right to receive his accumulated leave.
While this may work a hardship in a given instance, many times the employee leaving one state position, as in the instant case, takes another at a higher salary and upon resignation has broader retirement benefits. He thus will be making an election between, on the one hand, the payment of accumulated annual leave and, on the other, a higher salary, retirement, etc.
In view of the foregoing, it is my opinion that accumulated annual leave is a vested right subject to divestment if a state employee does not utilize it while employed or become entitled to have it paid him or transferred with him in strict accord with the Rules and Regulations of the State Personnel Board immediately upon resignation, retirement, being laid off or dismissed from the Merit System position in which such leave was accumulated.

OPINION 71-34

To: Director, Georgia Department of State Parks

March 2, 1971

Re: Dual employment of State personnel; under the Rules and Regulations of the State Personnel Board, a park ranger may not serve as a special deputy sheriff.

This is in response to your recent request for an opinion as to whether a park ranger, who is under the Merit System, may serve as a salaried special deputy sheriff during his off-duty hours.
The answer to your question is contained in Section 3.600 ofthe Rules and Regulations of the State Personnel Board, providing that "[n]o employee under the Merit System shall hold other public office. . . ." While the exact status of a special deputy sheriff is not clear, see Employees Retirement System v. Lewis, 109 Ga. App. 476 (1964), I am, nevertheless, inclined to the view that the position falls within the phrase "other public office" as used in the above-quoted regulation.
Based on the foregoing, it is my official opinion that a park ranger,
who is under fhe Merit System, may not serve as a salaried special deputy sheriff, according to the State Personnel Board regulations as they now exist.

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OPINION 71-35

To: Commissioner of Labor

March 3, 1971

Re: Unemployment Compensation for State or local employees of public hospitals and institutions of higher learning.

This is to respond to your inquiry as to whether or not Georgia's Constitution would permit the expenditure of funds, by either reimbursement or by regular contribution, for unemployment compensation coverage of employees of State hospitals and institutions of higher education and unemployment compensation coverage of employees of hospitals and institutions of higher education governed by political subdivisions of this State. Apparently, such coverage has been made mandatory for such employees under the provisions of Public Law 91-373 enacted by the 91st Congress in 1970.
The power of the General Assembly to levy taxes, and the power to spend the funds so raised, is not a broad power to tax generally. This fact is true no matter whether the taxing power is exercised by the General Assembly or exercised through local political subdivisions to which it has delegated certain taxing authority.
The Supreme Court of Georgia held in Mulkey v. Quillian, 213 Ga. 507 (1957), that Ga. Code Ann. 2-5501 listed all of the purposes for which the power of taxation may be exercised by the State and that the money raised by such taxation could be used only for the purposes there listed.
The power to tax is restricted by the Georgia Constitution to certain specific purposes. Art. VII, Sec. II, Par. I of the Georgia Constitution (Ga. Code Ann. 2-5501) provides for what purposes the General As-
sembly may tax. Subsection 7 of that constitutional provision permits taxation for "welfare benefits".
Art. VII, Sec. IV, Par. I and Art. VII, Sec. IV, Par. II of the Georgia Constitution (Ga. Code Ann. 2-5701, 2-5702) give power to the General Assembly to delegate to any county the right to levy a tax for specific purposes listed therein. Paragraph II of that Constitutional provision (Ga. Code Ann. 2-5702) authorizes the county to tax for the purposes listed therein. Subsection 8 of Ga. Code Ann. 2-5702 permits counties to tax to provide "programs of welfare benefits and public assistance as may be provided by law".
To answer the questions you raised, it is pertinent first to determine whether or not such expenditures are permitted by the constitutional provisions cited above.
Unfortunately, no mention of unemployment compensation is

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provided by either Ga. Code Ann. 2-5501 or 2-5702 as authorized purposes for taxation. However, this fact does not provide what might otherwise appear to be a simple solution to the questions you posed. On the contrary, it is my opinion that the expenditure of funds for coverage of said employees by unemployment compensation would be authorized by Ga. Code Ann. 2-5501(7), 2-5702(8) to provide necessary welfare benefits as specified by the General Assembly. Therefore, it is my opinion that a Constitutional Amendment to permit such expenditures will not be necessary if proper legislation is enacted to authorize the expenditures in question.

OPINION 71-36

To: Director, State Department of Family and Children Services

March 3, 1971

Re: Social security for employees of Fulton County department of family and children services.

You have requested an official opinion on the question of whether the State Department of Family and Children Services may reimburse the Fulton County department of family and children services for its share of social security (FICA) employer contributions. Your letter supplies the additional information that the State Department presently reimburses every county other than Fulton for its employer's share of social security (FICA) contributions. The only reason Fulton County is not similarly reimbursed is because of an election not to participate in the Employees Retirement System of Georgia, and your basis for reimbursing social security (FICA) payments has been membership in this retirement system.
As you are aware, an Act was passed by the 1970 session of the General Assembly which provides that as of July 1, 1971, the full cost of administrative and assistance benefits under any of the categorical assistance programs administered by the State Department of Family and Children Services is to be met from State and Federal appropriations. Ga. Laws 1970, p. 451 (Section I, Ga. Code Ann. 99-2916). In the words of the Act, on and after July 1, 1971, "no county shall be required to participate in the cost of such assistance or in the cost of administration thereof." id.
Since your department is presently making Social Security (FICA) employer contributions for all other county departments of Family and Children Services employees other than Fulton County, it is assumed that such contributions can be considered as "costs of administration"

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of public assistance now [i.e., prior to July 1, 1971] made under existing laws, Ga. Laws 1965, pp. 385, 393 (Ga. Code Ann. former 99-2916), which will be superseded by the 1970 Act, supra. There is no provision of law which places the Fulton County department of family and children services in a status different from other county departments so far as the authority and functions of the State Department are concerned.
Therefore, it is my official opinion that the social security (FICA) employer contributions now made at the election of the Fulton County department, would likewise be "costs of administration" and can be properly paid or reimbursed from State and Federal funds as of July 1, 1971, the effective date of Ga. Laws 1970, p. 451.
This opinion is not intended to affect or change the status of the Fulton County department of family and children services under the Acts governing the Employees Retirement System of Georgia, Ga. Laws 1949, p. 138 et seq., as amended (Ga. Code Ann. Chapter 40-25), or any plan or agreement which may now be in effect under these or related laws.
OPINION 71-37

To: Director, State Game and Fish Commission

March 3, 1971

Re: Wildlife rangers; enforcement of compliance with 1970 Litter Control Law.

This is in response to your recent letter wherein you request my official opinion as to whether the law enforcement personnel of your Commission are authorized to enforce the provisions of the 1970 Litter C antral Law.
This law, Ga. Laws 1970, pp. 494-6, after delineating the unlawful activities proscribed therein and specifying the penalties therefor, reads in relevant part on p. 496 (Ga. Code Ann. 85-1606c):

"All law enforcement agencies, officers and officials of this State or any political subdivision thereof, or any enforcement agency, officer or any official of any commission of this State or any political subdivision thereof, are hereby authorized, empowered and directed to enforce compliance with this Act." (Emphasis supplied.)

A cardinal rule of statutory construction mandates that the paramount goal in the interpretation of a statute is the ascertainment of the intention of the Legislature. [See Ga. Code Ann. 102-102(9).] AI-

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though the laws establishing the Game and Fish Commission (Ga. Laws 1955, p. 483; Ga. Code Ann. Chap. 45-1) provide that the officers of the Commission are the chairman, vice chairman and secretary, I feel it manifest here that by "officer" in the quoted portion of the Litter Control Law, supra, the Legislature meant the wildlife rangers employed by the Commission. These rangers are referred to as officers in several portions of the general game and fish laws (see, generally, Ga. Code Ann. Chap. 45-l, as amended) and are specifically given the full authority of peace officers while in the performance of their duties. (See Ga. Code Ann. 45-1180).
For the foregoing reasons, it is my considered opinion that the wildlife rangers of the State Game and Fish Commission are authorized to enforce compliance with the 1970 Litter Control Law.
OPINION 71-38

To: Director, Department of Public Safety

March 3, 1971

Re: Drivers' licenses; the Department of Public Safety may lawfully use a licensee's social security number as his driver's license number.
You have requested my official opinion as to whether the Department of Public Safety may use a driver license applicant's social security number, when voluntarily supplied, as the driver license number.
The Director of the Department of Public Safety has been vested, by law, with wide discretion in the manner of issuing and the content of driver licenses in this State. I call your attention to Ga. Code Ann. 92A-401 (Ga. Laws 1937, p. 322, as amended) and particularly Ga. Code Ann. 92A-408 (Ga. Laws 1935, p. 135, as amended), wherein it provides that the Director may require "such other information as . . . [he] may deem necessary" in the application for a driver license. The information contained on a license is not designated by statute, although the General Assembly has empowered the Director to require a photograph.
Therefore, it is my official opinion that you may administratively initiate the use of an applicant's social security number as his driver license number under the above statutory provisions.
OPINION 71-39

To: State Treasurer

March 4, 1971

Re: State grants to municipalities; sufficiency of joint resolution of both Houses of General Assembly as law to authorize grant.

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This responds to your recent request for an opinion as to whether, essentially, H. R. No. 133-360 (AM) is legally sufficient to enable the Treasurer to perform the indicated activities subject to the limitations and protections set forth in the resolution.
Although there is an apparent lack of judicial comment in Georgia on the requisites and effect of a joint resolution of the General Assembly, the courts of other jurisdictions, generally speaking, have been of the opinion that a joint resolution has the force and effect of law if it is enacted in accordance with formalities and procedures which would suffice to validate a legislative act or statute. 82 C.J.S. Statutes 20, 35, 46, 59, 72, and 269. One of the formalities required by the Constitution of Georgia is that every resolution (with certain exceptions not here relevant) "to which the concurrence of both houses may be necessary ... shall be presented to the Governor, and before it shall take effect be approved by him, or, being disapproved, shaH be repassed by twothirds of each house". Constitution of Georgia, Art. V, Sec. I, Par. XVI; Ga. Code Ann. 2-3016.
Based upon the foregoing, I am of the opinion that H.R. No. 133360 (AM) probably would be considered by the courts to be legally sufficient to direct and protect the Treasurer in the particulars therein set forth if it first is submitted to the Governor and approved by him or, if disapproved, if it is passed again by two-thirds vote of each house.
OPINION 71-40

To: State Treasurer

March 4, 1971

Re: Solicitors general emeritus; compensation not suspended during employment which does not constitute public office.

This responds to your recent inquiry respecting whether or not the State Treasurer must suspend (pursuant to Ga. Laws 1949, p. 780, as amended, Ga. Code Ann. 24-2904a) the salary of a solititor general emeritus during the period he serves as Executive Director of the District Attorney's Association of Georgia.
You acknowledge that the Association is not an agency of the State of Georgia or of the Federal Government, although it does receive, by State law, certain funds allocated to the State of Georgia under the federal Omnibus Crime Control Act.
Becoming Executive Director would result in a suspension of salary as solicitor general emeritus during the holding of the office of Executive Director if that position is "an office of profit or trust under the Constitution of the United States or of the Constitution of Georgia'' (Ga. Code

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Ann. 24-2904a) but I am of the opinion that the position in question should not be construed as one which will invoke a suspension of salary. The statutory reference clearly is to governmental office-holding alone.
Accordingly, I am of the opinion that your question as to whether you may pay this solicitor general emeritus his salary during his holding of the subject position must be answered in the affirmative.

OPINION 71-41

To: Governor, State of Georgia

March 4, 1971

Re: State Court of Hall County; judicial vacancy filled by election, rather than by gubernatorial appointment.
This responds to your inquiry of March 2, 1971, respecting what action, if any, you should take relating to the vacancy on the State Court of Hall County occasioned by the death of Judge Ernest Smith.
I am of the opinion that you should decline to fill the vacancy by appointment pursuant to Ga. Laws 1963, pp. 3229, 3230. The courts could be expected to declare unconstitutional those portions of that Act purporting to authorize the Governor to fill such vacancies by appointment since the notice of local legislation which is a part of the Act refers alone to the fixing of the salaries of the judge and solicitor of that court. Brown v. Clower, 225 Ga. 165 (1969); Ops. Att'y Gen. 67-84.
I am of the opinion that you should notify the Ordinary of Hall County that you are declining to fill the vacancy by appointment so he may proceed to call an election pursuant to Ga. Laws 1916, pp. 226, 228. In accord: Ops. Att'y Gen. 67-84.
In my opinion, you will have discharged your responsibilities respecting this matter upon the completion of the actions stated herein.
OPINION 71-42

To: Joint-Secretary, State Examining Boards

March 5, 1971

Re: Expenditure of public funds; State Board of Accountancy cannot use proceeds of examination fees for awards luncheon.

Pursuant to a recent inquiry of Mr. James E. Bates, Chairman, State Board of Accountancy, this is to respond to his inquiry as to whether or not the State Board of Accountancy could lawfully expend funds, that it receives as fees charged for examinations of candidates for the Certified Public Accountant Certificate, to provide an awards luncheon to

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candidates that passed such examination and are thereby entitled to receive the certified public accountant certificate.
The Joint-Secretary of the State Examining Boards is charged by law with the responsibility of collecting all fees required to be paid to the numerous State trade and profession licensing boards (hereinafter referred to as "Boards"). Upon receipt of such fees, the Joint-Secretary is required to remit the same to the State Treasurer. The funds raised by the licensing laws are used by the State Treasurer to maintain the vital functions of each Board and to pay the necessary expenses and salaries incident to the operation of the State Examining Boards. Ga. Code Ann. 84-101, 84-102 (Ga. Laws 1943, p. 370, as amended).
Under Ga. Code Ann. 84-205 (Ga. Laws 1935, pp. 85, 88, as amended) the State Board of Accountancy is required to pay all fees that it receives to the State Treasurer, "as otherwise provided by law, and same are hereby allocated to said Board, for the purpose of paying the expenses of the Boards and the expenses incurred in the administration of this Chapter."
The essential question to be resolved by this opinion is the question as to whether or not the providing of an awards luncheon would be an appropriate expense to be incurred by the Board and thus warranted as a proper expenditure of State funds.
Although the examination fee is paid by a candidate for licensing, to become a certified public accountant under Ga. Code Ann. 84-205 (Ga. Laws 1935, pp. 85, 88, as amended)~once this fee is paid to said Board, it becomes the property of the State to be used and expended as provided for and regulated by the Georgia Constitution and Georgia statutory law consistent therewith.
Art. VII, Sec. II, Par. III of the Georgia Constitution (Ga. Code Ann. 2-5503) provides:

"All money collected from taxes, fees and assessments for State purposes, as authorized by revenue measures enacted by the General Assembly, shall be paid to the General Fund of the State Treasurer and shall be appropriated therefrom, as required by this Constitution, for the purposes set out in this Section and for these purposes only."

Ga. Constitution, Art. VII, Sec. II, Par. I (Ga. Code Ann.- 2-5501) provides specifically what purposes the General Assembly can levy taxes for. This Constitutional provision, likewise, establishes the purposes for which said funds may be spent. Unfortunately, the providing of funds for awards luncheons are not specifically provided for in this Constitutional provision. Therefore, it is my opinion that State funds could not

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be appropriated to provide such an awards luncheon. See Mulkey v. Quillian, 213 Ga. 507 ( 1957 ). On the contrary. it is my opinion that for the State to provide with State funds such an awards luncheon would violate Art. VII. Sec. L Par. II of the Georgia Constitution (Ga. Code Ann. 2-5402) prohibiting the granting of any donation or gratuity in favor of any person, corporation or association.
Enclosed herein please find an Unofficial Opinion (Ops. Att'y Gen. 68-394) rendered by this office on September 13, 1968. In this Unofficial Opinion it was held that it would have been improper for the Hawkinsville City Board of Education to expend $188.40 for a banquet for honor students of that school system. Although I realize that the question you raised and the situation encountered in the Hawkinsville City Board of Education opinion are slightly different, it is nevertheless my opinion that the reasoning expounded upon in that opinion would still apply to the situation at hand to further prohibit the expenditure of funds for the contemplated awards luncheon.

OPI:\'10~ 71-43

To: State Treasurer

March 5, 1971

Re: State Treasurer; records must be kept in manner provided by statute.

This responds to your letter of February 15, 1971, requesting my opinion as to whether or not, in the interest of economy and efficiency in government, you may dispense with the keeping of certain records which you say your predecessors in office considered necessary for compliance with provisions of law to be found in Ga. Code Ann. 401101(1}(2). as amended by Ga. Laws 1956, p. 802.
Without examining in detail the subject records and obtaining the concurring opinion of a qualified certified public accountant, I would hesitate to furnish you an unequivocal affirmative or negative answer to your question since advice not based on full particulars might not be the best service I can furnish you under the circumstances. Instead, let me state a few general principles of law which should enable you to avoid the serious legal consequences which could flow from a court's judgment determining, after the fact, that you should not have undertaken reform in some particular manner.
I am of the opinion that you should continue to keep the official records of the Treasurer in the manner formerly deemed necessary for compliance with the law (Ga. Code Ann. 40-110 I) until such time as you have obtained from the General Assembly legislative authorization

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to proceed in some other manner. This advice is offered for your own protection since a court could determine that the administrative interpretation given to the subject statute by previous treasurers should prevail until the General Assembly rewrites the law. Undercojler v. Eastern Air Lines, Inc., 221 Ga. 824,831-32 (1966).
The advice I am giving is intended to be more practical then legal. Needless to say, if you obtain the approval of the General Assembly for your modernization efforts, and the Acts changing the record-keeping procedures do not transgress the Constitution, you then would have a degree of legal protection far better than that which could be afforded by my official opinion. In accord: Ops. Att'y Gen. 68-144.

OPINION 71-44

To: Director, State Department of Family and Children Services

March 5, 1971

Re: Department of Family and Children Services and the Division for Children and Youth considered as "single state agency" within meaning of Title IV-A of Social Security Act.

You have requested an official opinion on the following question:

"Considering the provisions of Section 9(g) of the Children and Youth Act [Ga. Laws 1963, p. 81, Ga. Code Ann. 99-209(g)] and the changed circumstances since 1968 regarding our plans and procedures for fulfilling our defined missions, cannot the Department and the Division be considered a single state agency as required by Title IV-A of the Social Security Act?"

According to your letter dated February 22, 1971, this question is asked in light of the following background information.
In 1968, the Social Security Act provided for a single state agency to administer both child welfare services and aid to families with dependent children (AFDC) monetary benefits. Social Security Act, 426(d)(2). However, at that time it was considered advantageous for the Department of Family and Children Services and the Division for Children and Youth to operate as seperate agencies, i.e., the Department to administer the A FDC Program and the Division to provide child welfare services. Accordingly, the Director of the Department requested an official opinion from the Law Department on the question whether the Department and the Division could be considered as "separate" or "different"

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within the meaning of an exception to the "single state agency" requirement of the Social Security Act, 426(d)(2); 426(e)(3).
An official opinion was rendered on June 27, 1968 (Ops. Att'y Gen. 68-271 ), concluding that there were sufficient distinctions between the Department and the Division for the two units to be considered as "separate" or "different" within the meaning of Section 426(e)(3) of the Social Security Act. This exception to the "single state agency" requirement of the Social Security Act allowed the Division to perform child welfare services more or less independently of the Department of Family and Children Services.
At the present time, new administrative liaisons have developed between the Department of Family and Children Services and the Division for Children and Youth. The Children and Youth Board has been guided and bounded by policies established by the Department. Moreover, planning, budgeting, accounting and personnel functions of the Division and the Department have been consolidated under a single Department administration. Workers employed by the Division are employees of the Department and share State and local facilities with other Department employees. In-service training programs are shared as are scholarship programs. Also, the State Appropriations Act makes only one appropriation to be administered by the Department for both Division and Department functions. In short, for all practical purposes the Division for Children and Youth now functions as an integral rather than as an independent unit of the Department.
The Department has recently made application to the Department of Health, Education and Welfare for 75 percent matching Federal funds for certain child welfare services. However, there is a Federal requirement that the child welfare services be administered by a "single state agency", i.e., the Department of Family and Children Services. HEW has informed you that the Department does not qualify for the 75 percent Federal matching funds due to the 1968 Attorney General's opinion discussed above. If the Department and the Division could be considered as a "single state agency" it could claim at least 15 million dollars and possibly 30 million dollars in Federal matching funds.
The question, therefore, is whether the 1968 Attorney General's opinion, under the present changed circumstances, now prevents the Department and the Division from operating as a "single state agency" and being eligible for the 75 percent Federal matching funds under Title IVA of the Social Security Act.
In general, it can be said that the State Department of Family and Children Services and the Division for Children and Youth were created so as to provide the most efficient administration of welfare money

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benefits and child welfare services. Furthermore, the General Assembly intended that the Department and the Division take full advantage of available funds by effecting internal organizational changes, if necessary. For example, Ga. Laws 1963, pp. 81, 94 (Ga. Code Ann. 99209(g)) provides:

"Nothing in this Chapter is intended to conflict with any provision of Federal law or result in loss of eligibility of the Division, the Department of Family and Children Services, or any Department of State Government to any Federal funds. In case such a conflict or loss of Federal funds should occur by virtue of enactment of any portion of this Chapter, then such portion of this Chapter in conflict with such Federal law or otherwise causing loss of such funds is hereby declared of no effect and void. The Board is authorized and impowered in such event to take such action as may be necessary and effect such changes within the Division as may be necessary to prevent loss from such funds to the Division, the Department of Family and Children Services, ... and to secure to the same the full benefit of the Federal laws." [Emphasis added.]

Similar provisions are applicable to the Department. Ga. Laws 1945, pp. 196, 197, as amended (Ga. Code Ann. 99-142, 99-143,99-144,99145); Ga. Laws 1965, pp. 385, 386 (Ga. Code Ann. 99-2903(b )(3)). Other laws authorize the Department to delegate any of its functions to any other agency of State or local government and reallocate functions of divisions within the Department. Ga. Laws 1937, pp. 355, 362 (Ga. Code Ann. 99-124); Ga. Laws 1937 pp. 355, -363 as amended (Ga. Code Ann. 99-129).
In addition, the Division for Children and Youth is specifically authorized to "comply with the terms of [Federal] grants" Ga. Laws 1963, pp. 81,94 (Ga. Code Ann. 99-209(a)(4)), and to consolidate its functions and programs with the Department by contract and other arrangement. Ga. Laws 1963, pp. 81, 94 (Ga. Code Ann. 99-209(e)); Ga. Laws 1963, pp. 81, 116 (Ga. Code Ann. 99-216(b)). In fact, although the Division has a separate Board, it is specifically created as a division "within the Department of Family and Children Services", and with its Director acting only "under the supervision of the Director of the Department of Family and Children Services". Ga. Laws 1963, pp. 81, 86, 91 (Ga. Code Ann. 99-204(a); 99-207).
Thus, the above provisions indicate that it was the intention of the General Assembly that the Department and the Division be authorized to consolidate or separate their respective functions as necessary, in

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order to obtain maximum administrative efficiency or to qualify for available Federal, State and private grants.
Therefore, in view of the presently existing consolidated functions of the Department of Family and Children Services and the Division for Children and Youth as outlined in your letter, and in view of the broad authority granted to the Department and the Division to effect these administrative changes in order to maximize administrative economy and qualify for Federal matching funds, I therefore conclude that the Department and the Division can be considered as a "single state agency" within the meaning of Title IV-A of the Social Security Act as amended.
OPINION 71-45

To: State Department of Family and Children Services

March 8, 1971

Re: Consent to adoption; husband of child's mother presumed father where child born in wedlock; rebuttal presents jury question.

In a recent letter to this office you requested a review of Ops. Att'y Gen. 1947, p. 418. You specifically requested advice on when the consent of a husband of a legal marriage is required to release a child for adoption. You listed several specific instances in which a legal marriage was present and the legal husband or legal wife disclaimed the legal husband as the father of the child. Various circumstances which would tend to support the disclaimant of paternity were set forth.
It is my official opinion that children who are born in wedlock are presumed to be legitimate. This presumption is explicitly provided in the laws of this State. See Ga. Code 74-10 l. I reaffirm Ops. Att'y Gen. 1947, p. 418.
It is my official opinion that the presumption of legitimacy may be rebutted by clear and convincing evidenc. See Ga. Code 74-10 l. The proof must resolve any doubt as to legitimacy. The evidence required will vary with each individual case. See Smith v. Smith, 224 Ga. 442 (162 S.E.2d 379) (1968); Brazziel v. Spivey, 219 Ga. 445 (133 S.E.2d 885) (1963); Gibbons v. Maryland Casualty Co., 114 Ga. App. 788 (152 S.E.2d 815) (1966); Pope v. State, 112 Ga. App. 543 (145 S.E.2d 598) (1965) and Mims v. State, 43 Ga. App. 100 (157 S.E.2d 901) (1931). Also see Stubbs, "Georgia Law of Children," 3, for an excellent discussion on the presumption of legitimacy.
Whether or not the evidence rebuts the presumption of legitimacy is a matter to be determined by a jury or a judge of a competent court of law. See Mims v. State, 43 Ga. App. 100 (157 S.E. 901) (1931).

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OPINION 71-46

To: State Revenue Commissioner

March 9, 1971

Re: Municipal corporations; taxability of city-owned gas facilities.

This is in reply to your letter wherein you requested an opinion as to the liability of a municipality for ad valorem taxes where such municipality owns a gas facility and extends its services outside the county where the municipality is located.
It is my understanding from your letter and the attached correspondence that the gas utility plant owned by the municipality was constructed from the proceeds of revenue certificates and its services were extended beyond the limits of the county in which the city is located from operating funds of the gas system.
The answer to your question is found in Art. VII, Sec. VII, Par. V of the Constitution of Georgia (Ga. Code Ann. 2-6005), which provides, in part, as follows:

" ... 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 there are two distinct and separate conditions that must exist before such property owned by a municipality is taxable. First, the municipality must purchase, construct or operate the gas utility plant from the proceeds of revenue certificates. Second, the municipality must extend its services beyond the limits of the county in which the municipality is located. It is immaterial that the gas lines outside the county may have been constructed from funds other than the proceeds of the revenue certificates provided the gas utility plant was constructed with proceeds from such certificates.
Therefore, it is my official opinion that when a municipality constructs a gas utility plant from the proceeds of revenue certificates and extends its services outside the county where the municipality is located, the property located outside its county is taxable whether or not the extension outside the county was financed from the proceeds of revenue certificates.

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OPINION 71-47

To: The Adjutant General [of Georgia]

March II, 1971

Re: Adjutant General of State and Assistants; annual leave.

Superseded by Op. Att'y Gen. 71-71, dated April 15, 1971, infra.

OPINION 71-48

To: Chairman, State Board of Probation

March II, 1971

Re: Probation of offenders; where sentence provides for certain time to be served in confinement and remainder on probation, probationary supervision begins with release from confinement.

This is in response to your recent inquiry wherein you asked: "Where a period of probation following or consecutive to a prison term is imposed, would the laws of Georgia require that credit towards service of the probated sentence begin on the day following completion of the prison term less good-time allowed?"
In your letter you state that some are of the opinion that service of the probated portion of a sentence should not begin until the full calen~ dar term of the prison sentence expires and, consequently, supervision begins only after expiration of the full calendar term of the sentence originally imposed.
An inmate under the jurisdiction of the State Board of Corrections as well as those under the jurisdiction of a county is entitled to certain statutory and extra good-time allowances, Ga. Code Ann. 77-201 (Ga. Laws 1964, p. 493), 77-320 Ga. Laws 1956, p. 161, as amended); and he shall be released at the expiration of his term of sentence less the time deducted for statutory and extra good-time allowances. Ga. Code Ann. 77-320(d). Each succeeding sentence begins upon the date of the termination of the prior sentence, and this applies whether the period of the prior sentence was shortened because of good behavior or its terms otherwise varied. Todd v. The State, 107 Ga. App. 771 (1963).
I concur with the proposition that the purpose and sense of a probation statute is to give an offender who has possibilities of moral and social rehabilitation an opportunity, under the strict surveillance of the court, to prove his determination and ability to cleanse himself of anti-

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social tendencies and behavior. Sanford v. King, 136 F.2d 106 (5th Cir. 1943 ). The Georgia statutes dealing with probation also suggest that the purpose of probation is to aid and encourage persons on probation and to bring about improvements in their conduct and condition. See Ga.
Code Ann. 27-2710 (Ga. Laws 1956, pp. 27, 32). In furtherance of that view the probating court may prescribe conditions of probation so as to regulate the activities of the probationer and induce his reconciliation with a law abiding society. See Ga. Code Ann. 27-2711 (Ga. Laws
1956, pp. 27, 32, as amended). The one factor that distinguishes probation from suspended sentence is supervision. S. Rubin, The Law Of Criminal Correction. p. 204, 19 (1963).
Accordingly, it is my opinion that where one has a probated sentence to serve upon completion of in-prison time, the probated sentence with its accompanying supervision begins upon the discharge of the inmate from his confinement and continues to run through the period of time originally prescribed for the probated sentence. To allow the inmate to begin his probated sentence when he ordinarily would have been discharged from his in-prison sentence without the good-time allowances, is to allow the inmate to return to society without the benefit and guidance of supervision and without the help the court needs to become aware of violations by the probationer. S. Rubin, The Law Of Criminal Correction, p. 205, 19 (1963). I do not believe it is the intention of this State's probation statutes to allow a probationer to remain unsupervised until some later date where there is the possibility that the probationer will abscond or perform some other act which would be in the nature of a violation of his probation.

OPINION 71-49

To: Director, State Board of Corrections

March II, 1971

Re: Dual employment of State personnel; psychiatrists employed by State Health Department may not act as consultants to Board of Corrections.

This is in response to your recent letter requesting my official opinion as to whether two psychiatrists, currently employees of the State Health Department, can legally provide and be paid for psychiatric consultative services performed for the State Board of Corrections. Upon inquiry, I am informed that these two psychiatrists are presently full-time employees of the State Health Department and want to provide and be paid for their consultation on Saturdays (on which they normally do not work).

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The answer to your question appears to be directly controlled by my former opinion of November 22, 1967 (Ops. Att'y Gen. 67-413), which said, in essence, that a full-time employee of the State would violate the Honesty in Government Act of 1956 (Ga. Laws 1956, p. 60, Ga. Code Ann. 89-913) if he sold additional services to the State after his regular working hours. This Act makes such sale of services a misdemeanor and provides that a State employee violating the provisions thereof shall be immediately discharged from State employment. I have enclosed a copy of the referenced opinion and am unaware of any reason it would not be of equal application to the present situation.
Let me caution you, however, that it is expressly my intent that nothing contained in this opinion be construed to modify or alter my former opinions on this subject, specifically Ops. Att'y. Gen. 68-284 and 69467. In fact, a review of these opinions, copies enclosed, may be helpful in your further consideration of this matter.

OPINION 71-50

To: Comptroller General and Insurance Commissioner

March 12, 1971

Re: Insurers; investments m stock of Puerto Rico corporation not authorized.

You wish to know whether an insurer would be authorized under Ga. Code 56-1020 to invest in the corporate stock of a corporation organized under the laws of the Commonwealth of Puerto Rico.
Under Ga. Code 56-1020, based upon Ga. Laws 1960, pp. 289, 481, an insurer may only invest in nonassessable, dividend paying stocks, common or preferred, of "any solvent corporation (other than a corporation engaged solely in the business of operating real estate or a corporation having substantially all of its assets invested in the shares of such corporation) created or existing under the laws of the United States of America or of any state of the Union or of the District of Columbia." (Emphasis added).
When interpreting a statute, Georgia courts have frequently applied the rule of construction known as expressio unius est exclusio a!terius or, the express mention of one thing implies the exclusion of all others. City of Macon v. Walker, 204 Ga. 810(2), 51 SE 2d 633 (1949); Bailey v. Lumpkin, I Ga. 392, 403 et seq. (1846). In construing the Georgia Insurance Code Statute set out above, it is my opinion that by including only those corporations created under the laws of the United States or of any State or of the District of Columbia, the General Assembly intended to exclude any corporation not within that class and your question would be answered in the negative.

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64

OPII"ION 71-51

To: Secretary of State

March 16, 1971

Re: Elections; in order to qualify for special election held on February 17, notice of candidacy must be filed by close of business on February 1.

You have requested my official opinion on what would be the last day and hour a candidate could qualify and have his name placed on the ballot if a call was issued for a special election to be held on February 17.
The Georgia Election Code, Ga. Laws 1964, Extra. Sess., p. 26 et seq., provides that a candidate must file his notice of candidacy in a special election "at least 15 days prior to the election". Ga. Code 341002(b).
I interpret this provision to mean that a full 15 days must elapse between the last day for filing the notice and the day of holding the election. With this interpretation in mind, the last day would be Febru-
ary 1. See also Ga. Code 102-102(8); Ga. Code Ann. 81A-106(a).
The last hour to qualify would be the hour at which the appropriate office closed its business for the day. Absent some special statutory provision, the business hours of an office are usually left to the discretion of the person in charge of the office.
It is therefore my official opinion that to qualify for a special election to be held on February 17, a candidate must have filed his notice of candidacy at the appropriate office at the close of business on February 1.

OPINIO]\; 71-52

To: Commissioner of Labor

March 16, 1971

Re: Employment agencies; licensed corporation prohibited from conducting employment agency under name other than one in which license issued.

This is in response to your inquiry of March 3, 1971, requesting an opinion from this office as to whether or not a properly licensed private employment agency, operating as a corporation, may elect to do business under another corporate structure which has not been licensed as an employment agency in this State.

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Ga. Code Ann. 84-4102(b) (Ga. Laws 1959, pp. 283, 284; as amended) prohibits any person from opening or operating an employment agency in this State without first procuring a license from the Commissioner of Labor. Subsections (b) through (t) of this statute are quite specific in providing the specific and detailed requirements which must be met before a person may receive a license to operate an employment agency. Subsection (f) permits an applicant for an employment agency license to be a corporation. In so doing, subsection (f) requires that such a corporate applicant "shall state names and addresses of the officers and directors of said corporation and shall be signed and sworn to by the president and treasurer thereof."
Subsection (q) of Ga. Code Ann. 84-4102 strictly limits the transferability of any license granted under the terms of Ga. Code Ann. Chapter 84-41 and requires the approval of the Commissioner of Labor:

"No license granted under the terms of this Chapter shall be transferable, but an employment agency may, with the approval of the Commissioner of Labor, any time, incorporate or admit a partner or partners to the business or profession or make changes in a corporation, but no employment agency shall permit any person not mentioned in the application for a license to become connected with the employment agency, as a partner or as an officer of a corporation, unless the written consent of the Commissioner of Labor shall first be obtained. Such consent may be withheld only for any reason for which an original application for license might have been rejected, if the person or persons in question had been mentioned therein."

It is my opinion that the legislature, in enacting the numerous detailed and restrictive requirements for an applicant to acquire a private employment agency license under the provisions of Ga. Code Ann. 844102, contemplated the tight regulation of the private employment agency business and the tight regulation as to who could operate as a private employment agency. It is my opinion that to allow a corporate entity presently licensed as an employment agency to conduct its business as an employment agency under another corporate structure, not being properly licensed, would be inconsistent with the provisions of the Georgia Private Employment Agencies Act, as enacted by the General Assembly.

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66

OPI~IO~ 71-53

To: State Superintendent of Schools

March 17, 1971

Re: Debts owed to State; statutory collection procedures compared.

This is in answer to your letter of March 10, 1971, concerning the relative merits of House Bills (1971 Session) 724 and 980 in connection with the collection of delinquent teacher scholarship accounts of the State Department of Education. [H.B. 724 is published as Ga. Laws 1971, p. 98. H.B. 980 did not reach a vote in the House.]
Allow me to say at the outset that we are in complete accord with your views on the necessity of collecting these and ail other delinquent accounts. The problem is not in the least peculiar to the State Department of Education. We have in the past spent considerable time writing demand letters and threatening legal action over accounts due a great many State departments and agencies. In some instances, these efforts have met with success and in others they have not.
Perhaps the greatest problem regarding the collection of these accounts concerns our ultimate weapon-the lawsuit. In a great number of delinquent account situations, the individual sums involved have been so small as to cause expenses incidental to litigation (e.g., travel expenses, court costs and man hours) to far exceed any possible recovery. Hence, we were frequently faced with the unpleasant alternatives of either (1) declining to litigate notwithstanding the obviously strong policy reasons for collection even the smallest debts due the State, or (2) initiating a suit knowing full well that the net result would only be an even greater fiscal loss to the State and its taxpayers.
It is my opinion that House Bill 724, which has passed both Houses, should go a long way toward resolving this dilemma. This Bill would authorize the Attorney General, upon the request of any State department or agency, to select private counsel to perform legal services for the department or agency. Hence, it will now be possible, in situations where the amount involved is too small to economically justify litigation by staff members of the State Law Department, to employ local counsel with all of the incidental savings of travel expenses and man hours to the State. For this reason, it seems to me that House Bill 724 substantially covers the objectives of House Bill 980 (which deals with the collection of accounts due the State Department of Education alone).
I do not overlook the fact that House Bill 980, unlike House Bill 724, would expressly authorize the State Board of Education to employ the services of persons or agencies specializing in the tracing of debtors. But

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the omission of this feature from House Bill 724 would really appear to be academic. Where a State agency is legally authorized to engage in activities which routinely result in the existence of overdue accounts receivable, it would seem to follow that the purchase of tracing and locator services to recover the debt is an implied power incidental and necessary to recovery. I see no difference between this situation and the power of a State agency to purchase property insurance being implied from its authority to hold, control (and protect) property. See Ops. Att'y Gen. 1964, pp. 404-406.
We trust that with the assistance of House Bill 724, we will be in a position to effect full recovery of all delinquent accounts of the State Department of Education.
OPINION 71-54

To: Joint-Secretary, State Examining Boards

March 18, 1971

Re: Cosmetologists and barbers; either may perform those services for which he is licensed upon either male or female.

In a recent letter to this office you stated that a person licensed as a cosmetologist wished to pursue part-time employment as a barber. You requested our legal opinion as to whether a licensed cosmetologist is qualified to pursue the occupation of a barber.
The word cosmetologist is defined by Ga. Laws 1963, p. 45, as amended (Ga. Code Ann. 84-4401 ). The definition contained therein is as follows:

"-and shall be any person who cuts or dresses the hair, gives facial or scalp massages, facial or scalp treatment with oils or cream, and other preparations made for this purpose, either by hand or mechanical application, who singes and shampoos the hair, or who dyes the hair, or who does permanent waving of the hair for compensation shall be considered as practicing the occupation of a cosmetologist."

This above quoted section does not specify that the activities of a cosmetologist must be performed on a female.
The occupation of barbering is defined by Ga. Laws 1965, pp. 603, 605 (Ga. Code Ann. 84-40 I). This definition is as follows:

"Barbering shall mean the occupation of shaving or trimming the beard, cutting or dressing the hair, giving facial or scalp massages,

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68

giving facial or scalp treatments with oils or cream or other preparations made for this purpose, either by hand or mechanical appliances, singeing and shampooing the hair or dying the hair of any living person for compensation."

The above quoted section does not specify that the activities of a barber must be performed on a male.
The above cited Code provisions indicate that a person who is licensed as a cosmetologist may cut and dress the hair, give facials or scalp massages or singe and shampoo the hair or dye the hair of a male. These are all services which may also be performed by a barber. A cosmetologist who is performing his services upon a male would not be licensed to shave or trim the beard of a male patron.
A person who is licensed as a barber could cut or dress the hair, give facial or scalp massages, or singe and shampoo or dye the hair of any living female. A barber would not be qualified to give a permanent wave to a female patron.
Therefore, it is my official opinion thata person licensed as a cosmetologist or barber may perform those services for which he is licensed on either a female or male.

OPINION 71-55

To: Commissioner of Labor

March 19, 1971

Re: Local hospital authorities; decision as to coverage of employees by unemployment compensation.

Pursuant to your recent inquiry, this is to respond to the questions you raised as to the appropriate procedure by which a hospital authority and its forming political subdivision or subdivisions may elect to have the employees of the hospital authority covered by unemployment compensation pursuant to Section l08(a)(l2) of Public Laws 91-373 enacted by the 91st Congress.
By the provisions of Section l08(a)(12) "each political subdivision of the State shall have the right to elect . . ." to have unemployment compensation paid to employees of its hospitals and institutions of higher education.
The first question you raise is, "For the purposes of the above cited section, are hospital authorities in Georgia entitled to be treated as 'political subdivisions'?" Unfortunately, the term "political subdivision" has not been defined generally by Georgia statutory law. The only

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statutory definition of "political subdivision" is provided in Ga. Code Ann. Chapter 99-21, Employees Social Security Law. Ga. Code Ann. 99-2l02(f) (Ga. Laws 1953, Nov. Sess., p. 294; as amended) defines "political subdivision":

(f) "The term 'political subdivision' within the terms of this Chapter means counties and incorporated towns and cities and includes an instrumentality of: (A) the State. (B) one or more political subdivisions of the State, or (C) the State and one or more of its political subdivisions ..."

This definition is, however, limited in its application to that Chapter of the Code and can not be relied on to resolve the question you have raised.
Although the term "political subdivision" is not generally defined by Georgia statute, it has been defined by court interpretation. In the case of Richmond County Hospital Authority v. McLain, 112 Ga. App. 209(2), 144 S.E. 2d 565 (1965), the Court defined political subdivision as one having the following characteristics: "Political geographic area, and power to tax and elect officials, are characteristics generally inherent in concept of political subdivisions." The Court in that case also held that a governmental agency is not a political subdivision unless cited to be so in pertinent constitutional or statutory instruments creating it. In so doing, the Court held that a hospital authority is not a political subdivision of this State. See also, Ray v. Cobb County Board of Education, 110 Ga. App. 258, 138 S.E.2d 392, 393 (1964).
Inasmuch as hospital authorities fail to meet the criteria for "political subdivisions", it is my opinion that said hospital authorities would not and should not be classified as "political subdivisions". Therefore, hospital authorities, under the provisions of 108 (a)( 12) of Public Law 91373, could not by themselves elect to have their employees covered by unemployment compensation.
The next question you raised was, "Would the hospital authority be authorized to make the election as to coverage unilaterally or would this be a joint matter requiring the approval of the county(ies) and/ or city(ies) concerned and the authority?"
Under the provisions of Ga. Code Ann. 88-1803 (Ga. Laws 1964, pp. 499, 599; 1965, p. 347), a hospital authority was created in and for each county and municipal corporation of the State. The functions and powers of hospital authorities granted by the General Assembly to such authorities are set forth in Ga. Code Ann. 88-1805 (Ga. Laws 1964, pp. 499, 601, as amended). Subsections (a) through (t) of Ga. Code

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Ann. 88-1805 set forth specifically what powers are delegated to such authorities. There is no specific power granted to such authorities to give them the power to elect to provide coverage of their employees by unemployment compensation.
The election to permit the employees of a hospital authority to be covered by unemployment compensation would undoubtedly increase the need for additional tax revenues to provide funds for such contemplated expenditures. Hospital authorities have no power under Ga. Code Ann. 88-1805, 88-1812 to levy taxes. However, the participating subdivisions creating such authorities are granted the power to tax and provide tax revenues for the support of said authorities under Ga. Code Ann. 88-1812.
Inasmuch as the creation and continued operation of a hospital authority is a joint venture of a hospital authority and its supporting political subdivision or subdivisions, it is my opinion that the determination as to whether or not a hospital authority's employees will be covered by unemployment compensation should be a joint determination made by both the hospital authority and the supporting political subdivision or political subdivisions.
It is also my opinion that inasmuch as the management and operation of hospital authorities have been left to the hospital authorities by law, that the General Assembly did not contemplate political subdivisions making such management decisions on their own to the possible detriment of the hospital authorities involved. Therefore, as stated above, I believe that the election for coverage should be a joint determination between the hospital authority and the political subdivisions contributing to it.

OPINION 71-56

To: State Treasurer

March 22, 1971

Re: State Treasurer; working days for office.

This responds to your letter of March 16, 1971, seeking my official opinion as to whether the Office of the Treasurer must be open on Saturdays, asking me to state "the legal situation" in respect to the lack of appropriations to cover the costs of personnel salaries for keeping the office open on Saturdays, and asking whether the same requirements are imposed by law upon other Constitutional State Officers, notably the Comptroller General.
Legal research indicates that the part of Ga. Code Ann. 40-903 (based upon Ga. Laws 1876, p. 126) stating that the Treasurer shall keep

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his office "open daily, Sundays and holidays excepted" has not been expressly repealed by the General Assembly and that Saturdays are not regarded per seas legal holidays.
The question of whether or not that provision has been repealed by implication through the enactment since 1876 of governmental reorganization measures affecting the Office of the Treasurer is not susceptible of an answer sufficiently definite to be of practical value to you in the performance of your functions as Treasurer. Hence, I am of the opinion that the most valuable legal advice I can provide is to suggest that if you want to be certain that you are authorized to close your office on Saturdays, you should obtain such permission through an Act of the General Assembly.
Your question respecting appropriations to pay your office staff for their Saturday working hours is answered by Ops. Att'y Gen. 69-174 and 69-184, wherein I expressed the opinion that lack of funds will relieve a public official from the performance of his duties only if the lack of funds makes performance impossible.

OPINION 71-57

To: State Treasurer

March 25, 1971

Re: State Treasurer; filing of quarterly reports.

This is in response to your March 16 request for opinion as to whether

or not you are required to submit quarterly reports to the Governor of

the amounts received by you during the quarter, in view of the 10-Day

Treasury Balance Statements required of you by the Governor as State

Budget Director, and as to the legal situation with respect to the non-

filing of such quarterly reports in the past. Although the practical need

for quarterly reports may have been superseded by the 10-day reports,

Georgia Laws 1876, pp. 129, 130, remains in force and effect as para-

graph (8) of Code section 40-110 l. That Code section requires the

submission by the Treasurer to the Governor of quarterly and monthly

reports.

The legal situation with respect to the non-filing of such quarterly

reports in the past is as follows: The requirement of Code section 40-

1101 is upon the State Treasurer. Before you became Treasurer you had

other duties to perform. In my opinion, it should not be necessary for

you now to prepare quarterly reports for periods during which you were

not the Treasurer.

'

71-58

72

OPINIO~ 71-58

To: Secretary of State

March 25, 1971

Re: Administrative procedure; withdrawal of regulations previously filed by state agency.

This is in answer to your letter of March 19, 1971, in which you ask for an opinion as to your authority to comply with a request from the State Board of Education that regulations which it has heretofore filed with your office, ostensibly under the Administrative Procedure Act (Ga. Laws 1964, p. 338, Ga. Code Ann., Chapter 3A-I ), be withdrawn. Attached to your letter is the State Board's request for withdrawal based upon the ground that the regulations and policies in question do not constitute "Rules" within the meaning of the Act [the term "Rule" being defined by Ga. Code Ann. 3A-l 02(f)], hence are not covered by the Act and need never have been filed at all. The State Board's request is accompanied by a statement as to each of its filed regulations and the exemption believed applicable under Ga. Code Ann. 3A-102(f).
While cursory review of the regulations and claimed exceptions would appear to make the Department of Education's position in each instance at least arguable if not probable, the mixed questions of law and fact involved lead one to conclude that ultimate resolution could be achieved only in the courts and with respect to each separate regulation or policy statement. For this office to attempt to reach a conclusion as to each one of the regulations and policy statements in question would obviously involve an inordinate amount of time and energy. Fortunately, however, this rather frightening prospect is wholly avoided by the fact that this task is not necessary to answer the question you pose-which is more simply your authority to comply with the State Board's withdrawal request.
As I see it, the Administrative Procedure Act is rather clear as to whose responsibility and decision it is to say which, if any, of a particular agency's policies and regulations must be kept on file with the Secretary of State. Under the Act, this responsibility belongs to the agency which promulgates the rule. This is seen in Ga. Code Ann. 3A-104 which provides that prior to adoption of a "Rule" the agency must give notice of its intended action, and in Ga. Code Ann. 3A-105 which provides that in order to effectuate its "Rules" the agency must file the same in the office of the Secretary of State. The only penalty which the Administrative Procedure Act provides for an agency's failure to file those policies and regulations which constitute "Rules" under Ga. Code Ann. 3A-102(f) is that any such policy or regulation, if not on file, is invalid. See Ga. Code Ann. 3A-103(4 )(b). This is the risk which the

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agency bears if it is mistaken in its decision as to the Act's inclusion or exclusion of a policy or regulation. While it is true that the language of the Act is geared to the initial filing of a Rule, I am aware of no difference in principle between an initial decision not to file and a subsequent decision to withdraw that which has already been filed. In the context of the purposes for which the Act was adopted, its requirements and its penalties, both situations would seem to be the same. Consequently, I am of the opinion that a State agency, at its own risk (i.e. possible invalidity of a regulation which in law and fact does constitute a "Rule" within the meaning of the Act), may withdraw regulations which it has filed with the Secretary of State if and when it subsequently decides that such regulations are not covered by and need not be filed under the Act.

OPINION 71-59

To: State Treasurer

March 26, 1971

Re: Compensation of Appellate Court Justices and Judges; payment of 75 percent of sum for services rendered to date of payment authorized, but not required.

This responds to your letter of March 12, 1971, requesting my official opinion, essentially, as to whether "there is any requirement of law" that the State Treasurer pay justices and judges of the appellate courts of Georgia certain interim payments (in amounts not to exceed 75 percent of the sum for which service actually shall have been rendered to date of payment) and, if the first question is answered in the affirmative, whether the Treasurer may make "salary payments" twice monthly to these judicial officers.
Section 3 of Ga. Laws 1962, pp. 3, 4 (Ga. Code Ann. 24-3503, 24-4005) provides that the salaries of appellate court judges "shall be paid by the State Treasury in equal monthly installments". However, Ga. Code 40-1101 (11) provides that the Treasurer "is authorized to pay all officers of the State, whose salaries are fixed by law, 75 percent of the amount for which service shall have been actually rendered at the date of said payment. ..."
Construing these two provisians of law together so as to give effect to both, as required, Mayor of Athens v. Wansley, 210 Ga. 174, 177 (1953), it is my opinion that the 1962 Act requires that you make payment to the appellate court judges of their annual salaries in no less than equal monthly installments. Code 40-1101(11) authorizes you to pay

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appellate court judges up to 75 percent of the amount for which service shall have been actually rendered at the time of payment.
That is to say, you are not required to make payment under Code 40-110 l (ll ), but you are, as that section provides, "authorized" to make payment under it.
In response to your second inquiry, if payments are made semimonthly, the mid-monthly payment should not exceed the 75 percent limitation.

OPINION 71-60

To: State Treasurer

March 26, 1971

Re: State Treasurer; no legal requirement that he cash payroll checks or maintain cashier's office.

This responds to your letter of March 12, 1971, requesting my opinion as to whether there is any requirement of law that the Treasurer cash the personal or payroll checks of State officers and employees or that he continue to maintain the cashier's office operated by former Treasurers after the legislative payroll function is transferred from the Treasurer by H.B. 466, Ga. Laws 1971, p. 67, effective April l, 1971.
No provision of Georgia law has been found that requires thty Treasurer to cash the personal or payroll checks of State officers or employees and, accordingly, I am of the opinion that the Treasurer may, if he chooses, decline to continue this service.
Although I have found no express provision of law requiring you to maintain the cashier's office operated by former State Treasurers, I hesitate to give you an unqualified answer to your question or whether after April l, 1971, you may close that office since you have not provided me with a list of, and I do not know, the functions the office performs.
Should it be the case the that the office becomes unnecessary for the performance of your official duties as Treasurer, I am of the opinion that you necessarily would have authority to close it.

OPINION 71-61

To: State Treasurer

March 29, 1971

Re: State Treasurer; working days for office [see also Op. Att'y Gen. 71-56, supra].

It is my best judgment that you have previously received the best

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judgment of the combined best judgment of the best members of my
Staff. [See Op. Att'y Gen. 71-56, supra.] You have my permission to use your own best judgment. RES EST MISERA UBI JUS EST VAGUM ET INCERTUM.

OPINION 71-62

To: Director, State Merit System of Personnel Administration

March 30, 1971

Re: Department of Mines, Mining and Geology; attachment of "prejudice" to record of resigned employee.

This is in answer to your letter wherein you inquired whether the Surface Mined Land Use Board, created as an autonomous division of the Department of Mines, Mining and Geology, is a separate appointing authority from the Department with the power to attach "prejudice" to an employee's record in accordance with paragraph 12.102.2 of the Rules and Regulations of the State Personnel Board.
Upon information, I find the pertinent facts to be as follows: an employee resigned from the Surface Mined Land Use Board to take a position with the Department of Mines, Mining and Geology. The Director of the Board attached "prejudice" to the record of the employee in accordance with the above paragraph of the Rules and Regulations of the State Personnel Board. The Department objects to this action. The specific question then, boiled down, seems to be: which authority-the Board or the Department-has the power of an appointing authority for the attachment of "prejudice" to a resigned employee's record? By "prejudice" I understand you to mean a statement of an opinion that the subject individual should not be reemployed by the State in a merit system position.
I have examined the law creating the Surface Mined Land Use Board, Ga. Laws 1968, pp. 9-19 (Ga. Code Ann. 43-1401 et seq.) and the Rules and Regulations of the State Personnel Board. The above law does not make clear the relationship of the Board to the Department of Mines, Mining and Geology. It states that the Board is to be created under the Department but then specifies (Ga. Code Ann. 43-1402) that the Board is designated as an autonomous division of the Department and may exercise powers and perform duties through such duly authorized agents and employees as it deems necessary and proper. (See Ga. Laws 1968, pp. 9, 16, Ga. Code Ann. 43-1405.)
Because of the ostensible conflict in the law, I feel it necessary to
consult further statutory authority. Ga. Laws 1937, pp. 264-80, as

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amended by Ga. Laws 1943, p. 180 (Ga. Code Ann. 43-101), created the State Division of Conservation, now composed of the Department of Mines, Mining and Geology and the Department of State Parks. (See Ga. Laws 1956, pp. 793-5; see also Ga. Code Ann. 43-120.) Ga. Laws 1937, p. 264 specifies that the Commissioner of Conservation shall control and direct the State Division of Conservation and says, at p. 279 (Ga. Code Ann. 43-105), that the Commissioner is given the right and power to summarily adjudicate the distribution or division of the powers, authority and jurisdiction of each of the Departments composing the Division. The instant question would seem to fall clearly within the ambit of the Commissioner's power and right to adjudicate the distribution or division of the powers and authority of the Department of Mines, Mining and Geology.
For the foregoing reasons, it is my considered opinion that the Commissioner of Conservation should decide who has the specific authority to attach "prejudice" to the record of an employee separated from a division of the Mines, Mining and Geology Department. I have taken the liberty of sending a copy of this opinion to the Governor with a request that he assign the task of making this decision to his Commissioner of Conservation.
OPINION 71-63

To: Director, State Merit System of Personnel Administration

April1, 1971

Re: State employees; health insurance.

This is in response to your recent letter wherein you ask whether a "trainee" awarded a scholarship and stipend by the State Health Department to attend school would be eligible for coverage under the State Employees Health Insurance Program. You advise in your letter that in order to receive this scholarship and stipend these "trainees" sign a contract in which they promise to work for the State Health Department at least one month for each month of training received. You also indicate that each "trainee" does not work for the State Health Department until his training has been completed.
The answer to your inquiry is found in Ga. Laws 1963, pp. 277-9 (Ga. Code Ann. 89-1201, as amended). This law requires that for a person to qualify as a State employee for purposes of the health insurance program he must satisfy two criteria-he must (1) work full-time for the State and (2) receive his compensation in a direct payment from a department, agency or institution of the State Government. In addition

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to these criteria, but not here applicable, the statute enumerates certain specific persons who shall be considered State employees for purposes of the program.
Based upon your furnished information, it seems clear that these "trainees" would not be working full-time for the State during the period of their training. They would, therefore, be ineligible for inclusion in the health insurance program and it is unnecessary for me to decide whether the scholarship and stipend would be considered compensation.
Therefore, in view of the foregoing, it is my considered opinion that "trainees" receiving a scholarship and stipend from the State Health Department who do not work full-time for the State of Georgia are not eligible for coverage under the State Employees Health Insurance Plan.

OPINION 71-64

To: State Treasurer

April6, 1971

Re: State depositories; pledge of collateral.

This responds to your letter of February 15, 1971, requesting my official opinion on three questions predicated upon the assumption that I have ruled that securities pledged by banks as collateral for deposits of state funds by the State Revenue Commissioner must be pledged jointly to the State Revenue Commissioner and the State Treasurer.
I have not expressed such an opinion. The State Depository Law provides that securities utilized in lieu of a surety bond are to be deposited "with the State Treasurer". Ga. Code Ann. 100-108, as amended by Ga. Laws 1968, p. 485. I am sure you will agree that I can not answer questions premised upon an erroneous assumption.

OPINION 71-65

To: State Treasurer

April6, 1971

Re: State depositories; deposits by State Treasurer limited to amount of depository's bond.

This is in answer to your letter of February 15, 1971, in which you refer to Ga. Code Ann. 100-108 [based upon Ga. Laws 1968, p. 485] and ask:

"Does the 10-day period during which the State Treasurer may deposit funds in excess of the bond given by a state depository apply

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to banks in which the State Treasurer has an operating account with a fluctuating balance and, if so, to what extent?"

find considerable difficulty in answering your question because it presupposes that which the law definitely precludes, to wit: that a deposit may be made in excess of the bond (or other authorized security) for a "10-day period". Such is not the case. Ga. Code Ann. 100-108 provides in relevant part:

"The Treasurer of this State shall not deposit at any one time, ... a sum of money belonging to this State that exceeds the bond given by said depository to the State."

The same prohibition is also contained in Ga. Code Ann. 100-104 which in relevant portion declares:

"and in no case shall a larger amount of money be deposited in any depository than the amount of the bond ..." (Emphasis added.)

I assume that the "10-day period" to which you refer is that set forth in the clause indicated by three dots (i.e. intentionally omitted) in the above quotation from Ga. Code Ann. 100-108. The omitted clause reads:

", or have on deposit at any one time in any one of the depositories for a longer time than 10 days," (Emphasis added.)

This provision does not in any way authorize the Treasurer to make a deposit in excess of the bond or other authorized security for a I0-day period. It instead provides for a grace period of 10 days within which the Treasurer (whenever a deposit through accumulation of interest or otherwise grows beyond the amount of the bond) must either withdraw the excess or obtain additional bond (or authorized security) from the depository.
The foregoing clearly applies to all State funds, whether time deposits or fluctuating checking accounts. See Ga. Code Ann. 100-104, 100108. See also 100-111 and 100-117 as amended by Ga. Laws 1960, p. 1144.

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OPI~IO~ 71-66

To: Director, State Game and Fish Commission

April 6, 1971

Re: Game and fish; need for license by nonresident hunting, fishing, or trapping on his own land.

This is in reply to your recent letter requesting my official opinion as to whether a nonresident landowner may hunt on his own land without a proper hunting license.
The answer to your question is found in Ga. Laws 1968, pp. 497, 512 (Ga. Code Ann. 45-205(b), as amended). This law provides in pertinent part:
"It shall be unlawful for any person not a resident of Georgia, who has attained the age of 16 years, to hunt, fish or trap in the jurisdiction of this State without a proper nonresident license as provided in section 45-203, except as otherwise provided by law and interstate agreements...."

The above statute makes it clear that a nonresident must have the proper hunting and fishing license to hunt, fish or trap in Georgia, even on his own land or land owned by members of his immediate family. I have reviewed the applicable statutes and have determined that this matter is not otherwise provided for by law. Also, I have discussed this matter with knowledgeable Game and Fish Commission officials and am informed that they are unaware of any current interstate agreements covering this subject.
Therefore, based on the foregoing, it is my considered opinion that a nonresident landowner who has attained the age of 16 years must have a proper nonresident license to hunt, fish or trap on any land in Georgia, whether or not the nonresident owns the particular land on which he hunts, fishes or traps.
OPINION 71-67

To: Director, State Game and Fish Commission

April8, 1971

Re: Game and fish; holders of honorary licenses relieved of all state license or use fees.

This is in reply to your recent letter wherein you request my official

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opinion on whether the holder of an honorary fishing license must pay the $1.00per day fee for the use of the McDuffie Public Fishing Area.
The aqswer to your question is found in Ga. Laws 1968, pp. 497, 512 [Ga. Code Ann. 45-205(c), as amended], which provides:

"All legal residents of Georgia who are 65 years of age or more and who apply to the commission shall receive an honorary hunting and fishing license which shall entitle the holder thereof to hunt and fish without the payment of any fee whatsoever. . . . " (Emphasis added.)

You inform in your letter that the $1.00 charged for fishing in the McDuffie Public Fishing Area is a specific fee, in addition to any required license, charged each fisherman for fishing in the Area. You indicate that the fee is not for a fishing license and has nothing to do
with licensing requirements. However, please note that the position and sequence of the language in the above statute indicates that the phrase without the payment of any fee whatsoever is designed to modify the infinitive phrase to hunt and fish. The legislative intent of the law then would seem to be that the holder of an honorary license is not to be charged any State-imposed license or use fee for hunting and fishing.
Therefore, based on the foregoing, it is my considered opinion that the bona fide holder of a valid honorary hunting and fishing license should be allowed to hunt and fish in Georgia without the payment of any Stateimposed license or use fee.

OPINION 71-68

To: Secretary-Treasurer, Georgia Firemen's Pension Fund

April8, 1971

Re: Firemen's Pension Fund; change of benefits not applicable to persons not serving as firemen or making contributions at time of statute.

This responds to your letter of March 18, 1971, requesting my opinion on the question of whether or not the amendment by Ga. Laws 1971, p. 332 to the Acts governing the Georgia Firemen's Pension Fund (Ga. Code Ann. Chapter 78-10) (that reduces the commencement age for pensions from age 60 to age 58) properly may be applied to persons awaiting attainment of the age at which their pensions commence who have left service as firemen or volunteer firemen prior to the amendment's effective date after completion of the required 25 years of service, thereupon ceasing their $5.00 monthly contributions to the Fund.

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The appellate courts of Georgia repeatedly have brushed aside allegations that Acts of the General Assembly providing, increasing or improving retirement benefits are unconstitutional grants of gratuities or extra compensation, the judicial rationale being that services rendered and contributions made by the claimant while the Act is in effect provide a legal consideration raising a contract requiring the payment of benefits. Burks v. Board of Trustees, 214 Ga. 251,253 (1958); Webb v. Whitley, 114 Ga. App. 153, 156 (1966). Where, as here, the claimants neither render current services nor make the required contributions while the amendment is in effect, the corollary principal should be that they may not receive the rights or benefits it provides. Davis v. Hunt, 218 Ga. 630 (1963); Ops. Att'y Gen. 67-399. The 1970 Constitutional Amendment allowing the General Assembly to enact laws increasing the retirement benefits of retired persons is not clearly applicable to the Georgia Firemen's Pension Fund, a retirement system to which the General Assembly does not appropriate funds. Ga. Laws 1970, pp. 1153-54, proposing an amendment to Ga. Constitution, Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402).
I am of the opinion, based on the foregoing, that the 1971 amendment to the Georgia Firemen's Pension Fund ought not to be applied by the Board of Trustees to persons neither actively engaged in service as firemen or volunteer firemen nor making monthly contributions to the Fund while the amendment is in effect.
OPINION 71-69

To: Governor of Georgia

AprilS, 1971

Re: State depositories; federally guaranteed notes of Georgia Higher Education Assistance Corporation as collateral.

In your letter of recent date you have stated that Senate Bill 50, Ga. Laws 1971, p. 553, amending Ga. Code 100-108 (relating to state depositories) omitted the following provision from the law which it superseded:

Notes fully guaranteed by the Georgia Higher Education Assistance Corporation and reinsured by the United States Government pursuant to the Higher Education Act of 1965 (P.L. 89-329, 89th Congress), as amended, may without physical transfer and at a value equal to eighty percent of the principal amount thereof be pledged as collateral for state funds on deposit with a depository upon certification by the Corporation as frequently as required that

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according to its records fully guaranteed and reinsured notes in the amounts pledged are owned and in possession of said depository and not subject to any other pledge or assignment (Ga. Laws 1970, p. 467).

The question you raised is whether a general provision of Senate Bill 50, authorizing State Depositories to deposit with the State Treasurer "notes or other obligations of the United States or of this State", in lieu of surety bonds, can be construed to include pledges of notes guaranteed and reinsured according to the provisions of the 1970 amendment quoted above.
I have reached the conclusion that Senate Bill 50 can be so construed based on the following authority.
First of all, the Georgia Higher Education Assistance Corporation (GHEAC) was authorized by constitutional amendment and, by Ga. Laws 1965, p. 217, Ga. Code Ann. Chapter 32-33, created as a Stateoperated nonprofit corporation to provide for a program of guaranteed student loans. Ga. Code Ann. 32-3301. The corporation, in fact, fully guarantees repayment of loans made by private banks to qualified students.
It is true, however, that the law creating the GHEAC specifically provides that "no obligation of the Corporation shall be a debt of the State . . ." Ga. Code Ann. 32-3305(2). Yet it is also true that the guaranteed student loans are reinsured (or guaranteed) by the United States Government under the Higher Education Act of 1965 (P.L. 89329). Ga. Code Ann. 32-3305(11). I am informed that the Federal Government typically reinsures these loans at 80 percent to 100 percent of their value.
Therefore, the question is whether these notes guaranteed by the GHEAC and reinsured by the United States Government are "notes or other obligations of the United States or of this State" within the meaning of Section 6 of Senate Bill 50.
The general law of guaranty holds that a contract of guaranty is a collateral "obligation" which is just as enforceable as any other contract. See 38 Am. Jur. 2d Guaranty 4 et seq.; also, 11 Am. Jur. 2d Bills and Notes 533; [Ga. Code 103-101; Ga. Laws 1962, p. 156, codified in material part as Ga. Code 109A-1-202(40), 109A3-A16 (Contract of Guarantor)]. Therefore, there is little question that the notes guaranteed by the GH EAC and the United States Government are "obligations", respectively.
Secondly, even if notes guaranteed by the GHEAC are, strictly speaking, not obligations of the State [Ga. Code 32-3305(2)], to the extent that such notes are also reinsured or guaranteed by the United States

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Government, they are "obligations" of the United States within the meaning of Senate Bill 50.
Another statute specifically authorizes lenders to pledge or assign loans and interest guaranteed by GHEAC, as security, to the extent permitted by State and Federal law. Ga. Laws 1970, pp. 478, 482 (Ga. Code Ann. 32-3308.3). Therefore, it is my opinion that State Depositories may pledge or assign to the State Treasurer, in lieu of surety bonds, notes fully guaranteed by the GH EAC to the extent that they are reinsured by the United States Government in accordance with the 1970 amendment to the laws creating the State Depository Board.

OPINION 71-70

To: Director, State Highway Department

April 14, 1971

Re: Highways; federal liability for damage to off-system roads as result of hauling operations.

This is in reply to your request that this office review correspondence between the State Highway Department and the Federal Highway Administration and determine whether the State Highway Department has any legal recourse against the Federal Highway Administration to ob-
tain federal participation in the cost of repairing off-system roads which have been damaged as a result of hauling operations for the construction of federal-aid project 1-85-1 (39) 46 Ct. 1, Coweta County.
It is my understanding that as a result of the contractor's hauling operations over off-system county roads from material pits to the construction site of this project that these off-system roads have suffered considerable damage. The State Highway Department has repaired these off-system roads at its expense.
Pursuant to the provisions of the Federal-Aid Highway Act of 1956 (23 U.S.C. 101 et seq.) as amended, the State Highway Department submitted to the Secretary of Transportation for his approval its surveys, plans, specifications and estimates for this project. Included among these was the State Highway Department's Standard Specifications dated January 1, 1966. After approval of this project by the Secretary of Transportation, the State Highway Department entered into a federal-aid project agreement with the U.S. Department ofTransportation for this construction of this project. Under the provisions of 23 U .S.C. l06(a) the approval of the project by the Secretary is deemed a contractual obligation of the Federal Government for the payment of its proportional contribution to the project.
The federal-aid project agreement executed by the State Highway

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Department with the U.S. Department of Transportation for this particular project contains a provision whereby the State Highway Department agreed to perform or cause to be performed the work covered by the project in compliance with the approved plans and specifications which by reference were made a part of the project agreement.
Section 7.01A of the Standard Specifications of the State Highway Department of Georgia dated January I, 1966, provides in pertinent part as follows:
"If material of any kind is hauled by the Contractor over adjacent paved routes or over existing sections of pavement within the limits of the work which are to be retained, it will be the responsibility of the Contractor to reduce his load limit below that provided by law and to arrange his hauling over such routes so as to prevent any damage to the existing pavement. If such pavements are damaged by his forces or equipment, the Contractor shall make the necessary repairs to restore the pavement to its original condition at his own expense in accordance with Article 7.12."
Furthermore, Article 7.12 provides in pertinent part:
"The Contractor shall be respof)sible for the preservation of all public and private property. . "
This same Article also provides:
"If there is no separate pay item for this requirement, all cost to the Contractor in complying with this requirement shall be included in the price bid for other contract items." "The Contractor shall be responsible for all damage or injury to property of any character, during the prosecution of the work, resulting from any act, omission, neglect or misconduct in his manner or method of executing the work, or at any time due to defective work or materials, and said responsibility will not be released until the project shall have been completed and accepted."
Under these circumstances it is my opinion that the State Highway Department would have no legal recourse against the Federal Highway Administration for the cost of repairing these off-system roads. This is due to the fact that the Standard Specifications of the State Highway Department make provision for the repair of these roads at the contractor's expense. The contractor is compensated for these repairs through the price bid for other contract items under Article 7.12. The State

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Highway Department made these repairs at its expense instead ofinsisting on the provisions of the Standard Specifications which require that the contractor make these repairs.
Additionally, you have requested my advice concerning the method for obtaining the financial participation of the Federal Highway Administration in the cost of repairing the roads that may be damaged in the future. The Highway Department must insist that the provisions of Article 7.01A of the Standard Specifications be followed by the contractor. The Federal Highway Administration is thus effectively participating in the cost of these repairs under Article 7.12. If the Highway Department is dissatisfied with this method of providing for the repairs to these off system roads a new specification must be written and submitted to the Secretary for his approval. If the decision of the Secretary in refusing to approve such specification is arbitrary, judicial review can be sought. See Citizens To Preserve Overton Park v. Volpe, __ U.S. __, 91 S.Ct. __, 28 L.Ed. 2d 136 (1971). My assistants will be glad to assist you in preparing such a specification and submitting it to the Secretary for approval.
It is anticipated that the above discussion has fully complied with your request and that the same will be of assistance to you in carrying out the duties of your office.

OPINION 71-71

To: The Adjutant General of Georgia

April 15, 1971

Re: Assistant Adjutants General; annual leave not cumulative.

This is in reply to your recent letter wherein you requested my official opinion as to whether recently enacted H. B. 137 of the 1971 General Assembly changed my opinion of March 11, 1971 (Ops. Att'y Gen. 7147) relating to the payment of accumulated annual leave to Assistant Adjutants General. I have determined that H.B. 137 became Act 32 of the 1971 Georgia General Assembly when signed into law by Governor Jimmy Carter on March 12, 1971. It is published as Ga. Laws 1971, p. 84.
I have reviewed the above Act and am of the firm opinion that it does change my former opinion of March 11, 1971. Basically, that opinion advised that the Assistant Adjutants General of the State Department of Defense were covered under the Merit System of this State and, as such, were entitled upon termination of their employment and leaving State service to be paid for accumulated annual leave. Whereas the former law cited in that opinion (Ga. Laws 1963, pp. 10-12) provided

71-72

expressly that Assistant Adjutants General shall be covered under the State Merit System, Act 32 abrogates that particular provision, amends the law generally and provides that Assistant Adjutants General shall serve at the pleasure of the Governor. The legislative intent of Act 32 then would seem to be that these Assistants should no longer be covered uuder the State Merit System.
Concerning the specific situation about which you inquire, I have consulted with the Governor and am informed that an Assistant Adjutant Ge_neral resigned shortly before his signing of Act 32. Because of this th(\ particular resignee should be treated in accordance with the law applicable at the time of his resignation, rather than subsequently to approved Act 32.
Based on the foregoing, then, it is my opinion that Assistant Adjutants General of the State Department of Defense serve at the pleasure of the Governor, are not covered by the State Merit System and, as such, do not accumulate annual leave in accordance with the Rules and Regulations of the State Personnel Board.
OPINION 71-72

To: Secretary-Treasurer, Georgia Seed Development Commission

April 15, 1971

Re: Sales and use taxes; Georgia Seed Development Commission as subject.

This is in reply to your letter of March 22, 1971, in which you requested an opinion as to whether or not purchases by the Georgia Seed Development Commission were subject to the sales and use tax.
Section 2 of the Act creating the Commission (Ga. Laws 1959, pp. 83, 84, Ga. Code Ann. 5-2702) declares that the Commission is " . . . a body corporate and politic and an instrumentality and public corporation of this State. . . ." It is my opinion that the Commission is included within the definition of "Person" as defined in the Sales and Use Tax Act, Ga. Laws 1951, p. 360, and is subject to the Act unless otherwise exempted. Ga. Code Ann. 92-3403a(A).
The Sales and Use Tax provides an exemption for:

"Sales to the Federal Government, the State of Georgia, any county or municipality of the State of Georgia, or any bona fide department of such government when paid for directly to the seller by warrant on appropriated government funds. " Ga. Code Ann. 92-3403a(C)(2)(d). (Emphasis added.)

I do not find it necessary to consider whether or not the Commission

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comes within the meaning of the exempted governmental departments set out in the above section, since I believe the underlined l{tnguage is dispositive of your question. It is my understanding that the Commission does not operate with appropriated funds, but obtains its funds through the sale to growers of breeder's and foundation seeds. The express qualification required by the above section in order to qualify for the exemption from sales and use taxes is that purchases be paid for by "warrant on appropriated government funds".
Since the Georgia Seed Development Commission does not operate with appropriated government funds, it is my opinion that it is subject to taxes imposed under the Sales and Use Tax Act.

OPINION 71-73

To: Governor, State of Georgia

April 15, 1971

Re: Public school employees retirement; amended law not applicable to persons rendering no service and making no contributions during its effectiveness.

This responds to your letter of April 13, 1971, requesting my official opinion as to whether or not H.B. 13 (Act 809, Ga. Laws 1971, p. 917) 1971 Regular Session of the General Assembly of Georgia, may be constitutionally applied to persons who neither render services as public school employees nor make the required contributions to the Public School Employees Retirement System while the said H. B. 13 is in effect.
The appellate courts of Georgia traditionally have sustained Acts of the General Assembly providing retirement benefits against challenges that they are unconstitutional grants of gratuities or extra compensation on the legal theory that services rendered and contributions made by the employee while the Act is in effect provide legal consideration giving rise to a contract requiring the payment of benefits. Burks v. Board of Trustees, 214 Ga. 251, 253 (1958); Webb v. Whitley, 114 Ga. App. 153, 156 (1966 ). The corollary principal appears to be that in those instances where no services are rendered and no contributions are made while the Act is in effect, the claimant may not receive the rights or benefits it provides. Davis v. Hunt, 218 Ga. 630 (1963); Ops. Att'y Gen. 67-399, 71-68. The 1970 Constitutional Amendment respecting retirement benefits authorizes the General Assembly to increase the retirement benefits of persons retired pursuant to certain retirement systems but does not authorize Acts of the General Assembly granting retirement status in the first instance to formerly employed persons. Ga. Laws 1970, pp. 1153-

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54 proposing an amendment to Ga. Constitution, Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402[15]).
Based on the foregoing, I am of the opinion that H.B. 13, 1971 Regular Session of the General Assembly of Georgia, ought not to be applied to persons who neither render services as public school employees nor make the required contributions to the Public School Employees' Retirement System while the said Bill is law.

OPINION 71-74

To: Director of Corrections

April 20, 1971

Re: Board of Corrections; solicitation of funds for building chapels.

Your letter of April 6, 1971, requested my opinion as to whether it would be illegal for the Chaplain's Department of the State Board of Corrections to solicit funds from outside sources for the purpose of building or furnishing a chapel in any of your penal institutions.
In my predecessor's opinion of April27, 1960 (Ops. Att'y Gen. 196061, p. 361 ), it was concluded that the Board could legally expend State funds to employ chaplains and construct and maintain chapels in the various prisons and prison branches.
Although the Board has no express statutory authority to accept gifts, the State has implicit authority to accept gifts as provided by statute. Ga. Laws 1937, p. 593, Ga. Code Ann. 108-210. As it is permissible to expend State monies to build and maintain chapels, a reasonable extension of this would permit receipt of gifts and donations for the purpose of financing what the Board is presently authorized to finance with State money.
A distinction between authority to accept gifts and authority to solicit gifts would be but a distinction as to degree and not principle. A body openly holding itself as being receptive of gifts and donations is merely soliciting in a passive manner.
Therefore, based on the above, it is my opinion that the State Board of Corrections could legally solicit funds from outside sources for the purpose of building or furnishing chapels in any of its penal institutions.

OPINION 71-75

To: Director, State Highway Department

April21, 1971

Re: State Highway Department's rights and interest in written slope easement; servient owner's use of slope easement area.

This is in response to your inquiry as to the rights the State Highway

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Department may have under a certain written easement. A copy of the deed conveying the interest and describing the purpose of the conveyance was attached and referred to in your letter. You also requested my opinion on the question of whether or not a property owner may install signs or possibly other improvements in areas acquired for slope easements under your standard slope easement form, a copy of which was also attached to your letter. For purposes of clarity, these two questions will be referred to as case No. I and case No. 2, respectively, in the discussion below.

Case No.1
As I understand the factual situation, the State Highway Department is the successor in interest to the rights conveyed by the instrument to Fulton County in 1961.
Since that time the owner of the fee simple interest in the property has constructed certain improvements which now encroach on the easement area.
I have studied the conveyance in question and have concluded that it creates a valid easement, for the purposes described therein, in favor of Fulton County or any of its successors and assigns. Given the validity of the document and identity of the interest conveyed, the problem raised with respect to the encroachment i:> answered by Ops. Att'y Gen. 68498, a copy of which I have enclosed for your convenience.

Case No.2
With respect to the question of whether a servient owner may install signs or other improvements on areas acquired by the State Highway Department as slope easements, it would not seem inconsistent with the purpose for which the easement was acquired to allow the installation of the signs or other improvements once the slope has been created. This conclusion is based on the principal that the servient owner's right to the use of an easement area is restricted only by the purpose for which the easement was created. Conversely, the fee owner may not use an easement in any way which might interfere with a full and free use of the easement by its owner. Georgia Power Co. v. Sullivan, 217 Ga. 699, 701-02 (1962). This is basically a question of fact, however, and your judgment as to which use might in fact interfere with the maintenance of a slope easement should be exercised in this matter.

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OPINION 71-76

To: Director, State Department of Family and Children Services

April21, 1971

Re: Department of Family and Children Services; Payment of travel expenses to volunteer workers.

You have requested a clarification of two previous opinions from this office which state, essentially, that mileage allowances under Ga. Laws 1950, pp. 224, 225, as amended (Ga. Code Ann. 40-2002), cannot be paid to persons who are not "officers", "officials" or "employees" of the State. Ops. Att'y Gen. 69-258, 69-322.
As a result of these opinions, the Department of Family and Children Services has put its volunteer workers on the State payroll at $1.00 per year with exemptMerit System status; this was considered necessary in order to remunerate these volunteer workers for travel expenses. Your letter states that the administrative expense of changing the status of these volunteer workers to nominal State employees is increasing, and an undue amount of time must be spent in filling out the necessary forms.
Your question, therefore, is whether the Department can avoid the additional administrative expense and effort of making "employees" of these volunteer workers, but accomplish the same purpose by individual contract to pay their travel expenses.
The Division for Children and Youth is generally authorized to make use of and pay for private services and "to enter into contracts with ... individuals as may be necessary or desirable" in effectuating its purposes. Ga. Laws 1963, pp. 81, 100, 116, as amended [Ga. Code Ann. 99-211(i), 99-216(a)]. In my previous opinion dated March 5, 1971, Ops. Att'y Gen. 71-44, I discussed the authority of the Department and the Division to consolidate or separate their respective functions, as necessary.
Therefore, it is my opinion that the Division, through its specifically delegated contractual authority, may contract in writing to pay travel expenses to volunteer workers performing work properly authorized by the Department or the Division for Children and Youth. This procedure may be followed as an alternative to making these volunteer workers nominal State employees at $1.00 per year simply for the purpose of paying mileage allowances under Ga. Code Ann. 40-2002.
The answer to your question of whether these volunteer workers would be subject to workman's compensation coverage will depend upon the terms of the contract and other circumstances about which I will need more information. I suggest that if this is a problem of real concern, you contact us to discuss the situation further.

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OPINION 71-77

To: State Treasurer

April21, 1971

Re: Superior Court Judges Retirement Fund; withdrawal of contributions.

This responds to your letter of April 12, 1971, as modified by communications subsequently received from Mr. Blanchard of your office, requesting my official opinion on whether or not the Honorable George P. Whitman may be reimbursed the total amount he has contributed to the Superior Court Judges Retirement Fund.
Among the provisions of the amended Act governing the subject fund is to be found a section which provides that:

"Any judge may after 30 days written notice to the trustees of this fund withdraw his total payments, without interest, from said fund . . . ."Ga. Laws 1945, p. 362, Ga. Code Ann. 24-2614a.

I am of the opinion that the Honorable George P. Whitman is entitled to submit at his pleasure the notice provided in the quoted section and is entitled to withdraw his total payments to the Fund without interest at any time after the passage of 30 days from the receipt by the trustees of the subject notice.

OPINION 71-78

To: State Planning and Community Affairs Officer

April21, 1971

Re: Bureau of State Planning and Community Affairs; acceptance of grants under Federal Housing Act.

This is to certify, and it is my official opinion, that pursuant to Ga. Laws 1967, p. 252, as amended, particularly by Ga. Laws 1970, p. 321 (Ga. Code Ann. 40-2902), the Bureau of State Planning and Community Affairs, formerly the State Planning and Programming Bureau, is authorized to apply for, receive and utilize grants of other financial assistance under Section 701 of the Federal Housing Act of 1954, as amended.
No subsequent legislation or judicial decision has changed the abovereferenced authority of this agency since the original opinion issued by this office on this matter dated June 26, 1967.

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Further, the legal basis of the declaration dated March 31, 1969, titled: Assurance of Compliance With the Department of Housing and Urban Development's Rules and Regulations Under Title VI of the Civil Rights Act of 1964, remains in full force and effect.

OPINION 71-79

To: State Treasurer

April23, 1971

Re: State Depository Board; purchase and sale of certificates of deposit.

This is in response to your request for an opinion on the following questions, posed under Ga. Code Chapter 100-1, as amended by Ga. Laws 1960, p. 1144:

"l. Would the terms 'the most advantageous contracts for interest' and 'time deposit agreements' permit the State Treasurer to purchase negotiable certificates of deposit from state depositories provided said negotiable certificates of deposit were at the rates of interest required by the State Depository Board?
"2. If the answer to No. 1 is in the affirmative, would the State Treasurer have the authority in cases of fiscal necessity and emergency to sell such negotiable certificates of deposit to other state depositories for their face amounts plus interest prorated through the dates of sale?"

As you are aware, Ga. Code Chapter 100-1 neither defines "time deposit" nor "time deposit agreement". Moreover, we are unaware of any Georgia case which defines these terms. However, in State v. Mitchell, 51 So. 4, 9, 96 Miss. 259 (1910), it was asserted:

"In banking circles, deposits are often qualified or distinguished as 'time' and 'call' deposits. The former is for a specified time, and the latter is subject to call at the pleasure of the depositor." Accord, State v. Carson Valley Bank, 47 P.2d 384, 388, 56 Nev. 133 (1935).

The above quotation appears to be in conformity with the intent of Ga. Code 100-111 which provides in pertinent part:

"State depositories shall hold (a) all funds deposited with them as time deposits . . . in accordance with such time deposit agreements . . ., and (b) all other funds . . . subject to the check or order of the State Treasurer. ..."

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It seems, therefore, that State depositories must hold all funds either as time deposits or call deposits. Under Ga. Code 100-105, the State Depository Board is authorized to determine the maximum amount of State money which may be deposited in particular depositories, along with the portion thereof which may be deposited as time deposits and the periods of such deposits.
In answering your first question we assume that negotiable certificates of deposit are either time deposits or call deposits, depending on the specific agreement. Based upon this assumption, the State Depository Board, through the State Treasurer, would be authorized to purchase negotiable certificates of deposit from State depositories, provided rules as to maximum amount and proration of deposits in particular depositories and all relevant statutes are observed. If negotiable certificates of deposit are neither time deposits nor call deposits, of course, then purchase would be unauthorized.
Responding to your second question, I find that Ga. Code 100-113 requires that the State Treasurer "shall, by check or other proper means, draw from State depositories such amounts only, and at such times only, as the necessities of his department may require."
Based upon the foregoing, I am of the opinion that certificates of deposit can be negotiated to other State depositories when necessary, provided other relevant provisions of law are met. However, whether a withdrawal is actually necessary is a factual rather than a legal question and not answerable by this office.
OPINION 71-80

To: Secretary of State

April23, 1971

Re: Justice courts with jurisdictions partly within and partly without Augusta not abolished by Municipal Court Act.

Your inquiry regarding the abolition of Justice Courts which lie partly within and partly without the City of Augusta is answered by Section 33 of the Act establishing the Municipal Court of the City of Augusta, Ga. Laws 1931, p. 270. Section 33 provides that those Justice Courts which are located partly within and partly without the incorporated limits of the City of Augusta shall continue as such within their respective districts outside of the incorporated limits of the City of Augusta. Sections 34 and 35 of the Act establish the means by which cases pending in the Justice Courts abolished or diminished are to be transferred to the Augusta Municipal Court.
Authority to abolish Justice Courts is granted the General Assembly

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by the Georgia Constitution, Art. VI, Sec. VII, Par. I (Ga. Code Ann. 2-420 I). The procedure for providing a justice of the peace for militia districts is found in Ga. Code Ann. Chapter 23-2.

OPINION 71-81

To: Chairman, Georgia Public Service Commission

April 30, 1971

Re: Georgia Public Service Commission; no jurisdiction over resale of utility services by landlord to tenants in the situations submitted for review.

You have requested my opinion as to the jurisdiction of the Public Service Commission over the resale of utility services by a landlord to his tenants; letters from two tenants were enclosed with your request which object to the specific charges presently being made by their landlord for the furnishing of utility services.
After having reviewed the facts as presented by these letters, I am convinced that they are governed by my opinion to the Commission dated January 2 I, 1969 (Ops. Att'y Gen. 69-27). This opinion states generally that the sale of energy to one's tenants is not the kind of service to the public which requires compliance with the State's laws on public utilities. A copy of this opinion is enclosed for your convenience.
Any relief from additional utility charges being made by landlords in this type of case would probably have to be obtained through negotiation or litigation between the tenant and the landlord, based on the terms of the lease agreement.
OPINION 71-82

To: Director, State Board of Corrections

April 30, 1971

Re: Prisons and prisoners; transfer to Board of Corrections pending appeal.

In your letter of April 15, 1971, you requested my opmwn as to whether the Board of Corrections could, consistent with Senate Bill No. 92 (Act No. 302) of the 1971 General Assembly, Ga. Laws 1971, p. 341, require a waiver of supersedeas from the Clerk of the Court, to permit a prisoner to be transferred to a State penal institution during the period when an appeal is pending. You further stated that the bill as drafted

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could permit transfer of a prisoner to a State institution without his consent.
We have examined the above Act and find that one of its primary features is to allow a prisoner to have the option of electing detention in a State penal institution during pendency of an appeal. Section 3 of the Act provides that the prisoner or his attorney or both must request of the trial judge a transfer to a State prison or county work camp pending outcome of an appeal. Without such a request, a prisoner could not be transferred to a State institution while his appeal was pending.
As to requiring a waiver of supersedeas, this would be in compliance of Section 4 of the Act, which directs the Board of Corrections to promulgate reasonable rules and regulations which provide methods and procedures to carry out the Act. However, the waiver of supersedeas should be executed by the prisoner, rather than the clerk of the court. Supersedeas is for the purpose of staying the operation of the order of the trial court during the period of appeal, and is for the benefit of the convicted person. Accordingly, he would be the one to waive supersedeas.
Therefore, in consideration of the above, it is my opinion that the Board of Corrections, consistent with the provisions of the Act, could require a waiver of supersedeas from a prisoner in order for said prisoner to be transferred to State institutions under jurisdiction of the Board during the period of pendency of an appeal.

OPINION 71-83

To: Superintendent of Banks

April 30, 1971

Re: Banks and banking; Superintendent of Banks not authorized to establish regulations regarding commodity loans beyond those sanctioned by statute.

Georgia banking law has established certain loan limits which State banks must observe. Ga. Code 13-2013, as amended by Ga. Laws 1969, p.603. The same law also excepts from these limits bona fide loans made upon the security of agricultural, manufactured or industrial products or livestock if certain conditions and requirements are met. The law itself establishes at least six different conditions before a loan can qualify as an exception to the loan limits, including the requirements that the product have a market value and ready sale in the open market, that title be in the bank's name, that a 20 percent margin between the loan and the value of the products be maintained and that an insurance policy on the product payable to the bank be issued. The Superintendent of Banks

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has issued a Rule which clarifies these requirements of the law. Rule 801-5.01 (c) of the Rules and Regulations of the Department of Banking.
You have requested our opinion on whether the Superintendent of Banks may legally issue a proposed amendment to this Rule.
The proposed amendment, in effect, places additional conditions and limits on commodity loans by requiring the products to be stored in an adequately bonded storage facility independent of the management of the borrower and by requiring the products to be graded or inspected by a licensed grader. Further, the proposed amendment limits commodity loans to 50 percent of the lending bank's capital structure if the loan complies with all the requirements of the Rule and to 20 percent of the capital structure when the requirements for bond and storage arrangements cannot be met. These limits are beyond and in addition to the usual limits set out by the law.
The issue is whether the Superintendent of Banks may adopt a rule which establishes conditions or requirements for a commodity loan in addition to those set out by the General Assembly in its enactment of the law.
The Supreme Court of Georgia has held that "after a legislative enactment has plainly set forth its provisions and marked its limits. it may then authorize designated administrative officers to promulgate rules and regulations within the scope of the legislation to administer fully and give effect to it." (Emphasis supplied). Crawley v. Seignious. 213 Ga. 810, 812-813, 102 S.E. 2d 38 (1958). However, in that same case, the Court invalidated a rule of an administrative board on the ground that the rule attempted to establish requirements and conditions which were in addition to those set out in the law. The Court found nothing in the law which would authorize the Board to establish these additional requirements.
A good exposition of the reasons for this limitation may be found in Glustrom v. State, 206 Ga. 734, 58 S.E. 2d 534, (1950), where the Supreme Court reviewed many of the safeguards against an abuse of legislative power contained in the State Constitution and found an expressed will of the people that the power to make law should be exercised only within well defined limits.
When delegating this jealously guarded power, the General Assembly may only delegate and the administrative agency may only receive those powers expressly or by necessary implication conferred upon it, within the limits of the Constitution.
The Georgia law above expressed is in accord with the general law throughout the United States. I F. Cooper, State Administrative Law, p. 255 (1965); I K. C. Davis, Administrative Law Treatise, Chap. 5 (1958).

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Our research of Georgia law has revealed no authority which could be construed as granting Superintendent of Banks the power to impose requirements in addition to those set out in the law. We are not unmindful of your strong conviction that the additional requirements you are contemplating would be extremely beneficial to both the agricultural and the banking community. Neither are we unmindful of your efforts to seek the implementation of these requirements, including the introduction of Bills in at least three different sessions of the General Assembly.
However, based upon the principles of law set out above, it is our opinion that the Superintendent of Banks may not legally issue the proposed amendment and your question is answered in the negative.

OPINION 71-84

To: State Treasurer

April 30, 1971

Re: Superior Court Judges Retirement Fund; refund of widow's benefit contributions not authorized.

This responds to your letter of April 27, 1971, asking for my opinion as to whether or not the Honorable Dunbar Harrison, Judge of the Superior Courts, Eastern Judicial Circuit, is entitled to a refund of the widow's benefit contributions made by him to the Superior Court Judges Retirement Fund, his wife having predeceased him.
Judge Harrison's letter to you of April 14, 1971, an enclosure with your requesting letter of April 27, 1971, enclosed for your review my official opinion to Honorable Jack B. Ray dated August 9, 1968, Ops. Att'y Gen. 68-338, question 6, wherein I expressed the opinion that the General Assembly had not specifically provided for return of contributions toward widow's benefits in the event that a judge is predeceased by his wife.
Since my opinion of August 9, 1968, the General Assembly has considered the question of withdrawal from the widow's benefit program but has made no change in the law which is material to the instant question. I am, therefore, still of the opinion expressed in Ops. Att'y Gen. 68-338. See Ga. Laws 1970, p. 249, Ga. Code Ann. 24-2610a.2.
Accordingly, I am of the opinion that the General Assembly has not provided for a refund of contributions toward widow's benefits in the event a judge is predeceased by his wife.

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OPI:\'10~ 71-85

To: Director, State Highway Department of Georgia

May 3, 1971

Re: State Highway Department; no funds for TOPICS projects on roads not part of highway system.

This is in reply to the recent request of Emory C. Parrish, Executive Assistant Director, for an opinion of the Attorney General on the following questions:

"Can the State Highway Department legally spend State funds to match Federal funds to purchase rights of way for TOPICS' projects, or any other type Federal-Aid highway improvement project on roads which are not on the official State Highway System of Georgia? If the answer is yes, can the rights of way be purchased in the name of the political subdivision in which the road is located or must it be purchased in the name of the State Highway Department? If the answer to the first question is no, can the State Highway Department legally reimburse a political subdivision for the cost of any rights of way they might buy for a Federal-Aid highway improvement project on a road not on the official State Highway System of Georgia?"

Section lO of the Federal-Aid Highway Act of 1968 approved August 23, 1968, amended Chapter 1 of Title 23, United States Code, by adding a new Section 135, "Urban Area Traffic Operations Improvements Programs".
Policy and Procedure Memorandum No. 21-18 of the Federal Highway Administration, dated May 28, 1970, established the procedures for expending Federal funds for an urban traffic operations program to increase the capacity and safety of existing urban streets. This program has been designated as "TOPICS". Federal funds exclusively provided for this program are to be matched with State funds on a 50-50 basis.
It seems that some of the improvements will be made on roads or streets which are not on the official State Highway System of Georgia.
The authority of the State Highway Department to acquire and condemn land for road purposes is found in Ga. Code Ann. 95-1715 (Ga. Laws 1953,p.421).

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Ga. Code Ann. 95-1724 (Ga. Laws 1919, p. 252) provides:

"The State Highway Board, acting for and in behalf of the State, is hereby authorized and empowered to exercise the right of eminent domain in the condemnation of rights of way and property thereon for the use of the system of State highways . . . . "

The specific powers mentioned herein do not authorize the State Highway Department to match Federal funds or to purchase rights of way on roads which are not on the official State Highway System of Georgia.
The General Assembly of Georgia specifically authorized the State Highway Department to acquire and improve lands for scenic strips within and adjacent to certain roads in 1967 (Ga. Code Ann. 95-1518, 95-1521; Ga. Laws 1967, p. 421). The Department was also vested with the rights to acquire rights of way and easements for the construction of Federal parkways in the State of Georgia. (Ga. Code Ann. Chapter 95-28; Ga. Laws 1969, p. 982).
The powers and duties of the State Highway Department are prescribed by the General Assembly of Georgia. The powers and duties delegated to the Highway Department, especially those concerning appropriations and expenditure of State funds, must be strictly construed.
I am aware of Ga. Code Ann. 95-1609(m) (Ga. Laws 1968, pp. 1055, 1057) which provides:

"The State Highway Department is hereby authorized to take the necessary steps, by appropriate resolutions entered on its minutes, to secure the full benefit of the Federal-aid program and to meet any contingencies not provided for in this Chapter as amended, abiding at all times by a fundamental purpose to plan, survey, construct, reconstruct, maintain, improve and pave, as economically as possible, the roads of Georgia which under the terms of this Chapter are most in need of such work and will best promote the interest, welfare and progress of the citizens of the State of Georgia."

However, this section, being general in nature, is not broad, sweeping authority for the State Highway Department to expend State funds, but is authority to do those things ancillary to the powers and duties specifically authorized by the General Assembly.
Thus, it can be seen that when the General Assembly of Georgia wished to authorize the State Highway Department to have the power to acquire property, in addition to those powers specified in Ga. Code Ann. 95-1715 and 95-1724, a specific Act has been passed. There

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is no Act authorizing the acquisition of property for TOPICS projects or other projects not on the State Highway System. Therefore, it is my opinion that your first question must be answered in the negative.
In view of the answer to question number one, it is not necessary to answer question number two.
In answering question number three, it is my opinion that the State Highway Department of Georgia has no authority legally to reimburse a political subdivision for the cost of any rights of way they may buy for a Federal-Aid highway improvement project on a road not on the official State Highway System. The reasoning found in the answer to question number one is the same for this question, i.e., there is no statutory authority giving the Highway Department the power to reimburse political subdivisions for this type of expenditure.
OPINION 71-86

To: Director, Georgia Department of Public Health

May 4, 1971

Re: Medicaid; Department of Public Health may not delegate responsibility as to allowance of claims.

This is in response to your request for an official opinion whether the Georgia Department of Public Health, the sole designee for management of the State's Title XIX Medical Assistance Program (Medicaid), may by contract delegate to a private foundation the responsibility for making binding decisions as to the allowance or disallowance of Medicaid claims.
Although mere ministerial functions may be delegated, 73 C.J.S. Public Administrative Bodies and Procedure 57, powers which involve the exercise of judgment and discretion are non-delegable, Levine v. Perry, eta/., 204 Ga. 323 (1948). Obviously, the consideration of Medicaid claims involves both discretion and judgment.
Based upon the foregoing, I am of the opinion that the Georgia Department of Public Health may not by contract delegate to a private foundation the responsibility for making binding decisions as to the allowance or disallowance of Medicaid claims.

OPINION 71-87

To: State Superintendent of Schools

May 5, 1971

Re: Public schools; continuous school year.

This responds to your letter of March 19, 1971, requesting my official

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opinion as to whether or not a continuous school year program under which pupils alternately attend school for 60 days and are on vacation for 20 days is violative of State law.
I have been assured by a member of your staff who understands the complicated formulae of the Minimum Foundation Program of Education Act (Ga. Laws 1964, p. 3, as amended, Ga. Code Ann. Chapter 326) that it is quite possible to apply those formulae to determine the local and State funds necessary to support a minimum foundation program of education in a local unit of school administration utilizing the subject year-round school plan and, further, that no problem respecting budgeting, allocation or payment of funds would exist under such a plan which could not be solved in accordance with existing State law. Since I am neither a mathematician nor an accountant, I must assume, for purposes of this opinion, the correctness of those representations.
No problem would appear to exist respecting the minimum statutory requirement of nine months' operation of the schools. Ga. Code Ann. 32-605; Ops. Att'y Gen. 67-427. The present opinion assumes, as above-recited, the existence of a mathematical basis under existing law pursuant to which adjustments can be made. See: Official Opinion to Dr. Jack P. Nix, dated May 12, 1970 (Ops. Att'y Gen. 70-86). No provision of State law would appear to affirmatively bar the adoption of the contemplated continuous school year plan. The power to determine whether or not it would be educationally sound to adopt the subject plan lies, at least in the first instance, with the local board of education. Bedingfield v. Parkerson, 212 Ga. 654, 656 (1956); Davis v. Jarriel, 223 Ga. 624, 625 (1967).
Based upon the foregoing, I am of the opinion that the subject continuous school year plan does not contravene State Ia w unless it is not possible for the Minimum Foundation Program of Education formulae and other provisions to be applied for the allocation and payment of State funds.

OPINION 71-88

To: Director, State Highway Department

May 5, 1971

Re: Highways; access to land by abutting owners.

This is in reply to your letter dated April 1, 1971, requesting an official opinion regarding highway project F 114-1 (3) Cobb County.
It seems that in the process of constructing this highway project, the Highway Department proposes to barricade a certain road and ob1iter-

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ate a portion of the existing roadway. The Department also proposes to erect a fence or other physical barrier along a portion of the right-ofway line.
You request my opinion on whether or not the State Highway Department has the legal right to take such action under the police powers or whether the Department must secure permission or a property right from the adjacent property owner.
In order to provide you with an answer to your question, a statement of the law governing the rights of the owners of lands abutting upon the highway is essential. The most noted case in Georgia on this question is State Highway Board v. Baxter, 167 Ga. 124 (1928). In this case the Supreme Court of Georgia held:

"1. Owners of land abutting upon a highway have the right to use and enjoy the highway in common with other members of the public; and in addition they have an easement of access to their land abutting upon the highway ...
* * *
"4. Such owner, however, is not entitled, as against the public, to access to his land at all points in the boundary between it and the highway, if entire access has not been cut off, and if he is offered a convenient access to his property and to improvements thereon, and his means of ingress and egress are not substantially interfered with by the public."

The Supreme Court, while conceding that the State Highway Department was vested with wide discretion in the location, construction, and maintenance of State roads, pointed out in the Baxter case that it is not authorized to take or damage private property, and stated that the property owner's means of ingress and egress is a property right and must not be substantially interfered with without due compensation. See also Barham v. Grant, 185 Ga. 601 (1938) and Howell v. Board ofCommrs. of Quitman, 169 Ga. 74 (1929).
In addition to the principles stated in the Baxter case, it has been held in the courts of this State that "interfering with access to premises, by impeding or rendering difficult ingress or egress, is such a taking and damaging as entitled to the party injured to compensation under a provision for compensation where property is damaged." Dougherty County v. Hornsby, 213 Ga. 114 (1957); Pause v. The City of Atlanta, 98 Ga. 92 (1895); Mayor & C. of Macon v. Wing, 113 Ga. 90 (1901); City of Atlanta v. Dinkins, 46 Ga. App. 19 (1932).
With these principles of law in mind, it is my opinion that your Department must make the determination as to whether or not the

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proposed changes to be made in the construction of this highway project would substantially interfere with the ingress and egress_ of the pr:operty owner involved and, whether or not he is offered convenient access to his property and to the improvements thereon. If you find that he does have convenient access and that his rights are not substantially interfered with as to ingress and egress, then it is my opinion that the Highway Department has the legal right to take the necessary action under the police powers. However, if you find that these rights have been interfered with, then you may not take the necessary action without paying just and adequate compensation to the property owner pursuant to Art. I, Sec. III, Par. I of the Constitution of Georgia (Ga. Code Ann. 2-301).

OPINION 71-89

To: Secretary-Treasurer, Georgia Firemen's Pension Fund

May 5, 1971

Re: Firemen; retirement for heart disease disability only after five consecutive years as firemen.

This responds to your letter of April 21, 1971, requesting my official opinion respecting a fireman who submitted his application for membership during the 1968 open enrollment period accompanied with a letter from a doctor reciting that the applicant had been his patient for nine years and that the applicant was "fully capable of working full time" with the subject fire department.
As you doubtless are aware, the Board of Trustees of the Georgia Firemen's Pension Fund, under Ga. Laws 1955, p. 339 (Ga. Code Ann. Chapter 78-10) is authorized and empowered to pass upon and determine the eligibility of applicants for membership and has the authority to "order a re-examination of any applicant for membership in the fund by another physician at any time." Ga. Code Ann. 78-1020(1). Further, you probably also know that the Fund is not estopped to deny membership under the facts of this case. Board of Commissioners v. Clay, 214 Ga. 70(2) (1958). However, in the circumstances of the present case, an investigation into whether or not the subject fireman was physically qualified for membership at the time of his application in 1968 really is not necessary in order to determine whether or not he now is entitled to disability benefits on account of heart disease. He could not have served between his application for membership in 1968 and the alleged date of disability in 1971 the minimum period of five consecutive years as a "fireman" immediately preceding the alleged date of disabil-

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ity. Ga. Code Ann. 78-1017(b), as amended by Ga. Laws 1971, p.332; Ops. Att'y Gen. 65-115.
I call your special attention to the fact that although the first clause of Ga. Code Ann. 78-1017(b) has been rewritten by the General Assembly since my 1965 opinion, the proviso clause (not quoted in that opinion) continues the requirement that the minimum five years of consecutive service be as a "fireman". The effect of the quotation marks around that word in the statute is that the General Assembly continues to refer to "firemen" as defined for purposes of this retirement fund, Ga. Code Ann. 78-100 l (I), and as used throughout the amended Act. See, for example, Ga. Code Ann. 78-1007, 78-1017(a), 78-1020.
Based upon the foregoing, I am of the opinion that the subject fireman has not served the minimum five consecutive years as a "fireman" required for eligibility to receive disability benefits for heart disease.
OPI~IO~ 71-90

To: Deputy Director Department of Air Transportation

May 7, 1971

Re: Federal tax on aircraft; claim for state immunity.

This is in response to your request for advice as to the treatment of State-owned aircraft under Section 4491 of the Internal Revenue Code of 1954 added by Section 206 of the Airport and Airway Revenue Act of 1970. Pub. L. 91-258, 206 (May 21, 1970).
Section 4491 (a) imposes a tax "on the use of any taxable civil aircraft during any year." Under the definition in Section 4492(a), aircraft owned by the State of Georgia are "taxable civil aircraft." There is no statutory exemption for State-owned aircraft.
However, the States and their political subdivisions have long enjoyed, as to their essential governmental functions, immunity from the federal taxing power. The immunity was rightly founded in the recognition of the requirements of our system of federalism. Collector v. Day, 78 U.S. (ll Wall.) 113 (1870); Indian Motorcycle Co. v. United States, 283 U.S. 570(1931).
Thus, even though there is no statutory exemption, the tax imposition itself cannot negate the constitutional immunity of States and their political subdivisions as to activities in the performance of essential governmental functions.
However, the immunity from Section 4491 of the Internal Revenue Code has not been affirmatively established in any court or by the Internal Revenue Service. In order to preserve the claim of immunity,

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therefore, a claim for refund of taxes paid should be filed within the time permitted by law. This office will furnish whatever assistance you desire in prosecuting the claim.

OPINION 71-91 To: Comptroller General

May 10, 1971

Re: Taxation of annuities; The premium tax on variable annuities and annual premium deferred annuities is based upon the gross consideration for the annuity.

You have requested an opinion on the question of whether the premium tax, based upon the gross consideration for variable annuities and annual premium deferred annuities, is due the State upon the gross consideration when received by companies, although part or all of the consideration is allocated to and accumulated in a separate account to purchase an annuity at a future date.
According to your letter, the pertinent facts are as follows. A rapidly growing development among insurance companies is the sale of variable annuities as authorized under Georgia Law. Some companies feel that the portion of the gross consideration allocated to a separate account for accumulation to subsequently purchase an annuity should not be consideration subject to the premium tax. Another type of annuity, the annual premium deferred annuity, provides for the annual deposit of the net consideration (usually annual gross consideration less commissions and premium taxes) to be accumulated at a minimum stated rate of interest to retirement age, at which time the accumulated fund will be used to purchase an annuity at a rate guaranteed at the inception of the contract. The companies also feel that this "net consideration" should not be subject to the premium tax.
The answer to your inquiry is contained in the Georgia Insurance Code, Ga. Laws 1960, p.289, Ga. Code Ann. Title 56. Ga. Code 561303 requires that all insurance companies doing business in Georgia must pay a tax of 2 V4 percent upon gross direct premiums received by them upon persons, property or risks in Georgia for each year. The term "gross direct premium" is defined by Ga. Code 56-1303 to include annuity considerations. Further, Ga. Code 56-1303 specifies that the tax shall be imposed upon gross premiums without any deductions whatever except for certain named exceptions, none of which are relevant here. Ga. Code Ann. 56-1304 requires the annual premium tax to be paid to the Insurance Commissioner on or before March 1st following the close of the preceding calendar year upon all premiums collected during that calendar year.

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Therefore, it is my official opinion that, based upon Ga. Code 561303, the tax is due based upon the full gross consideratron received by the companies for variable annuities and annual premium delierred annuities, and is payable by the companies pursuant to Ga. Code ~ $6-1304 on or before March 1st following the close of the preceding calendar year.

OPI~IOl\1 71-92

To: Director, Department of Archives and History

May 10, 1971

Re: Superior Court clerks; storage of obsolete records.

You have requested an opinion on the question of whether or not the clerks of superior courts may store their old and obsolete records in the Archives.
The answer to your inquiry is contained in Ga. Laws 1965, p.625, amending Ga. Code Ann. 24-2714( I), which provides that in the event space at the courthouse or other place where the office of the clerk is located is inadequate to insure the safe storage of records, the clerk may cause said records to be stored at some other place in the county not more than five miles from the courthouse.
Therefore, it is my official opinion, based on the foregoing, that the clerks of superior courts may store their records in the Archives only if their courthouse is within five miles of the Archives Building.
If there are any other questions regarding this matter, please do not hesitate to call upon this Department for assistance.

OPINION 71-93

To: Chancellor, Regents of the University System of Georgia

May 11,1971

Re: University of Georgia; housing of students; discrimination in favor of fraternities as illegal.

You inquire as to the legality of the Department of Housing at the University of Georgia allowing some students who have contracted for dormitory rooms for a full academic year to void such contracts in order to allow them to move into "non-University owned Greek housing" while not granting the same privilege to those who desire to move into any other type of housing without their having to pay the remaining

107
rental due for the full academic year. This question involves the Fourteenth Amendment of the United States Constitution (Ga. Code Ann. 1-815 through 1-819) as well as Art. I, Sec. I, Par. II (Ga. Code Ann. 2-102) of the Georgia Constitution of 1945.
The Fourteenth Amendment prohibits a State from denying equal protection of the laws to any person within its jurisdiction. It should be evident that the proposed action is that of the State. The action is to be taken by a department of the University of Georgia, a State school which is controlled by the Board of Regents, a State agency. Fourteenth Amendment prohibitions extend to all acts of the State, no matter what State agency is taking the action. Cooper v. Aaron, 358 U.S. 1 (1960).
The second issue to be resolved is whether this action is a denial of equal protection. In other words, is this action discriminatory? On its face, it is. Students who are members of a fraternity or sorority and desire to move into Greek housing are granted a special privilege as opposed to those who are not members. This latter group of students must bear a financial burden that is not imposed on the former group-paying rent on their dormitory rooms for the full term of the lease, regardless of whether they occupy these rooms or not.
In Moliere v. Southeast Louisiana College, 304 F. Supp. 826 (E.D. La. 1969) the issue involved whether the school could select a particular group of students and require them to live on campus, not for the welfare of the students, but simply to increase revenue of the housing system. The Court maintained that such irrational discrimination is impermissible under the Fourteenth Amendment. "Since the obligation is essentially mone~ary, then all must pay or none. To select a group less than all is a violation of equal protection." Moliere v. Southeast Louisiana College, 304 F. Supp. 826, 828 (E.D. La. 1969).
The motivation for the contracts proposed by the University does not relate to student welfare but is grounded solely in financial considerations. Thus any exception must be based on sound policy considerations or fall prey to the Fourteenth Amendment's denial of equal protection clause. There appear to be no sound policy considerations. A group less than all has been selected to avoid certain financial burdens placed on other students for no reason other than the type of housing they have chosen in preference to University housing. Greek housing enjoys no special status with the University inasmuch as it has no more approval than private housing in the community. Consequently, there is no criteria upon which to base the distinction.
It is therefore my official opinion that allowing students who move into Greek housing to void their contracts binding them to pay rent for University housing for the entire school year while not extending the same privilege to other students is State action which denies equal pro-

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tection of the laws and as such is contrary to the Fourteenth Amendment of the United States Constitution. "In carrying out their primary mission of education, state owned and operated schools may not disregard Constitutional rights of students." Smith v. University of Tennessee, 300 F. Supp. 777, 780 (E.D. Tenn. 1969).
OPINION 71-94

To: President, Georgia Board of Chiropractic Examiners

May 12, 1971

Re: Death certificates; signing by chiropractors no longer legal.

You have requested my official opinion on the question whether Ga. Code 84-509 now authorizes chiropractors to sign death certificates. Your letter notes that you received an unofficial opinion of Assistant Attorney General, A. Joseph Nardone, dated April21, 1971 (Ops. Att'y Gen. U71-60), advising that Ga. Code 84-509 has been implicitly repealed by the "Georgia Health Code" (Ga. Laws 1964, p.499, officially codified as Ga. Code Title 88).
After having reviewed this unofficial opinion and its supporting authority, it is, likewise, my official opinion that the portion of Ga. Code 84-509 which purports to authorize the signing of death certificates by chiropractors has been repealed by implication by the "Georgia Health Code".
OPINION 71-95

To: Judge, Superior Court

May 13, 1971

Re: Sentence and punishment; validity of sentence containing but one aggregate term of imprisonment, but based upon multiple-court indictment.

You have recently requested my opinion as to whether the use of an aggregate general sentence on a multiple count indictment is lawful; and, if so, whether the State Board of Corrections must assume custody of such inmate under the provisions of Ga. Code Ann. 27-2506(b). In order to answer your questions fully, it is necessary to examine both the legal and practical aspects of'the use of such sentences.
Although the general or "lumped" sentence has been used in Georgia

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for many years, few cases exist on the subject. The Georgia Court of Appeals, in Tooke v. State, 4 Ga. App. 495 (1908) said at page 504:

"On the other hand, where the same indictment really charges a number of distinct and separate transactions, it becomes the duty of the trial court to conduct the case, and of the appellate court to review it, just as if it were a consolidation of separate indictments; and where the defendant was convicted generally-that is to say, on all of the counts-or specifically on more than one of them-it was the course at common law to sentence the defendant on each count; and these sentences might be cumulative. For some reason, it has not been the practice of this State to impose cumulative sentences, upon the different counts of an indictment charging distinct offenses; but we know of no reason why it may not be done; for as to these things we are supposed to follow the common law."

The Court made but a permissive statement saying that there is no reason why separate sentences for each count of an accusation or indictment should not be granted as is the practice under the common law. The Court in Tooke, supra, at page 504, raised the proposition that as to misdemeanors, common law prevails, citing Fortson v. Elbert County, 117 Ga. 149 (1902).
An examination of Fortson v. Elbert County, supra, reveals that the case stands for the common-law principle that "if an imprisonment is to commence on the expiration of another one, the sentence must so state; else the two punishments will be executed simultaneously." Id. at p. 150.
The Georgia Supreme Court in the balance of the opinion in Fortson states that no reason exists in Georgia for not following that commonlaw practice. Thusly, Fortson can really be cited as holding that unless a sentence which contains separate terms of imprisonment for each count specifies when each term is to commence and terminate, then the terms will be considered concurrent. It cannot be properly enlarged into holding that all facets of misdemeanor cases are controlled by the common law.
The only Georgia case dealing squarely with the issue here involved is Miller v. State, 50 Ga. App. 30 (1934). In Miller, supra. at p. 34 the Court said:

'The verdict was: 'We, the jury, find the prisoner guilty on counts 1-2.' The sentence of the court was that the defendant 'be put to work and labor on the public works of the County of Fulton, or otherwise, as the commissioners of said county may direct, for

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the space of twelve months.' The assignment of error is: 'The sentence . . . is indefinite and uncertain as to what offense the defendant was convicted: for what crime or misdemeanor he was sentenced-whether for count one or two of the accusation; or for any offense. Therefore, said sentence is illegal and void.' The sentence is a legal one under the verdict and the law, and is not 'illegal and void' for any reason assigned." (Emphasis added).

Without any further guidance from the appellate courts of Georgia, I must conclude that a general sentence is valid. However, even though such a sentence is valid, the use of a general sentence may cause posttrial problems. Three practical problems, which may result from use of the general sentence are: (1) On appellate review, if any counts of an indictment or accusation under which a person was found guilty prove defective, a new trial must be had for re-sentencing; (2) On attack by habeas corpus, which is so very plentiful of late, the same situation may result as in (l) above; and (3) Unless the sentence on its face indicates a term of imprisonment which is consonant with Ga. Code Ann. 272506(b), then the Board of Corrections cannot take jurisdiction over a prisoner.
The federal courts were faced with the same situation which the Georgia courts now face. The Fifth Circuit, in Benson v. United States, 332 F.2d 288 (5th Cir. 1964), examined the problems with the general sentence used by many United States District Courts, and, while not saying that such sentences were invalid, held that the difficulties which such sentences could cause were sufficient to justify cessation of the practice. At page 291, the Court said:

"There is first the basic idea that a criminal sentence should be plain, unequivocal, and so free from doubt that those concerned-accused, sentencing Court, reviewing Court and prison authorities-will know precisely what the punishment is. One thing
sure about the so-called 'general sentence' for a total term greater than the maximum of one count but less than the aggregate of all maximums is that no one accused, reviewing Court, prison authori-
ties, or sentencing Court-knows what the real sentence is. * * *
It seems to us that everything points to the importance of an articulate, identifiable sentence being imposed. If that is what the law reasonably requires and prefers, then a sentence varying from that standard is in the words of F. R. Crim. P. 'illegal'." See also White v. United States, 396 F.2d 822, 825, 826 (5th Cir. 1968); Walker v. United States, 342 F.2d 22, 27 (5th Cir. 1965).

This action by the Fifth Circuit Court of Appeals appears to be the

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general direction the courts in other jurisdictions are taking. A good discussion of this subject appears in 24 C.J.S. 1567(3) and (4).
The question of whether a misdemeanant comes under the jurisdiction of the Board of Corrections in accordance with Ga. Code Ann. 272506(b) upon receipt of a general sentence addresses itself to one of the potential problems inherent in the use of the general sentence. The referenced Code section can be fairly interpreted to mean that for each misdemeanor a person is convicted of, if his sentence is greater than six months and no more than twelve months, then he can be placed under the jurisdiction of the Board of Corrections. However, where a general sentence is ordered for two or more misdemeanor counts, then the Board of Corrections has no way of knowing how many months of the general sentence are attributable to any specific misdemeanor. Any action the Board would take under such a circumstance would be but speculation. In accordance with Favors v. State. 95 Ga. App. 318 (1957), any ambiguity in a sentence has to be interpreted in favor of the prisoner and accordingly, he could not be placed under the jurisdiction of the Board of Corrections on the basis of speculation as to the composition of his general sentence.
In conclusion, in view of the above, it is my opinion that general sentences are valid in Georgia. Furthermore, if from such a sentence it can be ascertained that a misdemeanor sentence falls within the purview of Ga. Code Ann. 27-2506(b), then the Board of Corrections can take jurisdiction over a prisoner. However, where the sentence is in a form which does not show on its face sentences within the purview of the above Code section, then the Board of Corrections cannot take jurisdiction over a prisoner.
OPI~ION 71-96

To: Director, Department of Public Safety

May 18, 1971

Re: Department of Public Safety and Bureau of Investigation; salary increases as affecting longevity pay.

In your letter of April 29, 1971, you requested my opmwn as to whether the compensation increases for members of the Department of Public Safety and the Georgia Bureau of Investigation, provided by House Bill No. 199 (Act No. 178) of the 1971 Georgia General Assembly, Ga. Laws 1971, p.306, are subject to longevity pay increases.
An examination of the Bill reveals that it completely replaces the existing base compensation schedule with a new compensation schedule. Longevity pay increases are based on a percentage of the base compensa-

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tion schedule. The intent of the General Assembly is manifest upon examination of the manner in which prior compensation increases for the Department of Public Safety were effected. Georgia Laws 1969, page 147 (Ga. Code Ann. 92A-208) replaced the then existing base compensation schedule as does the Bill under consideration. Ga. Laws 1970, page 117, provided a $400 across the board pay increase, specifically exempting the increase from longevity increases, and not changing the base compensation schedule.
Had the 1971 Georgia General Assembly not desired for the compensation increases provided by House Bill No. 199 (Act No. 178) to be subject to longevity pay increases, then they would have enacted an Act similar to the above-mentioned 1970 Act.
Accordingly, in view of the above, it is my opinion that the compensation increases for members of the Department of Public Safety and the Georgia Bureau of Investigation, provided by House Bill No. 199 (Act No. 178) of the 1971 Georgia General Assembly, are subject to longevity pay increases.

OPINION 71-97
To: Chairman, State Board of Pardons and Paroles

May 19, 1971

Re: Pardons and paroles; parole may be granted only to person actually within the confines of a jail, prison, or public works camp.

Reference is made to your letter concerning the viability of the opinion of August 11, 1944 (unpublished) issued by T. Grady Head, then Attorney General, to Honorable Edward B. Everett, then Chairman, State Board of Pardons and Paroles.
You asked whether or not, in view of that opinion, an individual must be confined in a jail, prison, or public work camp of this State for the Board to have jurisdiction. The case in point concerns the eligibility for consideration of parole of a person who is at liberty on bond pending consideration by a federal court of his writ of habeas corpus.
The history of pardon and parole power must be examined in order to reach an accurate conclusion concerning the jurisdiction of the Board under current law.
The power of parole in this State was first granted to an agency by the General Assembly in 1908. An Act was passed " . . . to create a system of parole or conditional pardons of prisoners convicted of crime

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and for other purposes." Ga. Laws 1908, Extra. Sess., pp. 1115-1118. The Prison Commission was given:

" . . . full power to establish rules and regulations under which prisoners within the penitentiary may be allowed to go upon parole outside the confines of said penitentiary, but to remain within the legal custody and under the control of said prison commission and subject at any- time to be taken into custody on order of said commission; . . . ." Id. at 1115. (Emphasis added).

It was thus made very clear at the time the parole power was originated that it could be exercised only with respect to prisoners within the penitentiary. It covered no others. In addition, the whole idea of parole was to permit, by legislative grace, a prisoner to serve some part of his sentence outside the confines of the penitentiary.
The Prison Commission, to which agency this power was given, was created by Ga. Laws 1897, p. 70, but no parole power was delegated to it until the Act of 1908.
The Act also provided that certain crimes were not subject to parole, and that no parole "shall be granted unto any prisoner until he shall have served at least the minimum sentence fixed by law . . .". /d. at 1115-1116. No parole was to be granted a prisoner serving a life sentence until he served at least ten years. Thus, not only was parole a grace which could only be extended "to prisoners within the penitentiary," but the agency was limited with respect to the type of crime and the time at which the power to extend the grace of parole could be exercised.
The Act also covered "applications for parole, how made and when granted". It referred throughout to the potential parolee as "prisoner" and is couched in terms which allow of no interpretation other than that the potential parolee must be a prisoner who is incarcerated.
The Act of 1908 was incorporated into the Penal Code of 1910, 1223 through 1228. Section 1222 incorporated the provision for the Prison Commission, as created in 1897.
As amended in 1919 to reduce from ten to three years the minimum for life sentence prisoners, (Ga. Laws 1919, pp. 106, 107), the 1908 Act was codified in the Ga. Code of 1933 as 77-501 (Old Penal Code 1222) through 77-507 (Old Penal Code 1228).
In the Extraordinary Session of 1937-1938, the General Assembly substituted the "Prison and Parole Commission of the State for Georgia" for the "Prison Commission for the State of Georgia." The Act specified the powers and duties of the new Commission:

"That from and after the effective date of this Act the State Prison and Parole Commission is hereby vested with the power and duty

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to initiate and consider at least once annually without waiting for any application to be filed, the case of each person committed to serve a term in any of the penal institutions of this State and under such conditions as it seems proper, the said Commission may order parole in any such case, providing that no persons shall be released on parole until the said Commission has a reasonable assurance after consideration of all the facts and circumstances, including the prisoner's mental and social attitude, that he will not become a menace to society or to the public safety . . ." Ga. Laws 1937-38, Extra. Sess. pp. 200, 201, Section 4.

All laws and parts in conflict with this Act were repealed, and the Act became effective by its terms on February 15, 1938.
The change in the recitation of the power of the new Commission did not indicate any change in the concept that only prisoners in a penal institution were eligible for parole. The concept expressed in the Act of 1908 was not in conflict with the wording of the Act of 1937-1938 in this regard. However, the previous statutory limitations as to the types of crimes and times at which prisoners were eligible for consideration were omitted. Since those limitations conflicted with the provision that the Commission could order parole in any case of a person committed to serve a term in a penal institution, the limitations were at that time repealed by implication.
By Act of 1941, the Assembly amended the Act of 1937-1938 creating the Prison and Parole Commission, by requiring approval by the Governor of a parole before the prisoner was released. It also transferred "all the duties, powers, and authority of the State Board of Penal Corrections created by [Ga. Laws 1939, pp. 106-110] to the State Prison and Parole Commission." Ga. Laws 1941, pp. 273, 276. SectiQn 4. At that point, then, the Commission had many powers in addition to the authority to grant parole, but it should be noted that no change was made in the extent of the parole power or the concept that it was exercisable only on prisoners located in the State penal institutions.
The Board as it is now constituted was created in 1943 as the State Board of Pardons and Paroles. Ga. Laws 1943, pp. 185-195. This statute was founded on a constitutional amendment of the same year, which amendment transferred the pardoning power held by the Governor, in most cases, to a "State Board of Pardons and Paroles." Ga. Laws 1943, pp. 43-47.
The amendment provided that the Board:

" ... shall have power to grant reprieves, pardons and paroles, to commute penalties, remove disabilities imposed by law, and may remit any part of a sentence for any offense against the State, after

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conviction, except in cases of treason or impeachment [sic], and except in cases in which the Governor refuses to suspend a sentence of death. Provided that such Board shall act on applications within 90 days from the filing of same, and in all cases a majority shall decide the action of the Board. Except if any member for any cause is unable to serve in any case involving capital punishment, the Governor shall act as the third member of said Board and the action so taken in such instances shall be by unanimous vote. . . . the State Board of Pardons and Paroles may make rules and regulations as may be authorized by law. . . . The General Assembly may enact laws in aid of, but not inconsistent with, this amendment." !d. at p. 46. (Emphasis added).

That provision was carried forward verbatim into the Constitution of the State of Georgia of 1945, Art. V, Sec. I, Par. XI, (Ga. Code Ann. 2-30 ll ). It remains unchanged to this date.
In the same year as the adoption of the constitutional amendment, the General Assembly acted on the amendment and repeated the language of the amendment, but for minor changes, in defining the power of the Board. Ga. Laws 1943, pp. 185-195 (Ga. Code Ann. Ch. 77-5); Section ll of Act No. 19.
That Act again and again makes references which clearly indicate that the legislature intended the power of pardon and parole to be exercised only with respect to prisoners:
l. "In the cases which the Board has power to consider, such Board shall be charged with the duty of determinig what prisoners serving sentences in the jails and prisons and public works camps of this State may be released on pardon or parole. . . ." Section 11 (Ga.CodeAnn. 77-511).
2. "It shall be the duty of the Board personally to study those prisoners whose cases the Board has power to consider, who may be confined in the jails, prisons, and public works camps of the State,..."Section ll (Ga. Code Ann. 77-511).
3. "Good conduct and efficient performance of duties by a prisoner shall be considered by the Board in his favor and shall merit consideration of an application for pardon or parole. No prisoner shall be released on probation or placed on parole until and unless the Board shall find that there is reasonable possibility that, if he is so released, he will live and conduct himself as a respectable and law-abiding person, . . ." Section 13 (Ga. Code Ann. 77-514).
4. "In the event a parolee violates the terms of his parole, he shall be subject to rearrest and/ or extradition for placement in the

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actual custody of the Board to be redelivered to any prison or public works camp of this State." Section 13 (Ga. Code Ann. 77-515).
5. "The Board, in considering any case within its .power, shall cause to be brought before it all pertinent information on such person. Included therein shall be a report of the superintendent, warden, or jailer of the jail, prison, or public works camp in which such person has been convicted [sic], . . ." Section 14 (Ga. Code Ann. 77-516).
6. "Notice of such determination [of pardon, parole or other relief] shall be given to such person and to the prison official having him in custody." Section 14 (Ga. Code Ann. 77-516).

The Act of 1943 referred to the pre-existing State Prison and Parole Commission in Section 29 Ga. Code Ann. 77-531. There it provided that:

"All records and documents of the Prison and Parole Commission or any other agency of the State which relate solely to pardons or paroles shall be turned over to the State Board of Pardons and Paroles."

Although the Act creating the Commission was not specifically repealed, Section 33 of the Act of 1943 provided "that all laws and parts of laws in conflict with this Act, be, and the same are, hereby repealed." Id. at 195. This Act also provided in Section I that: "The Governor shall have no authority or power whatever over the granting of pardons and paroles."
In 1956, in an Act (Ga. Laws 1956, p. 161) to "comprehensively exhaustively revise, supersede, and consolidate the laws relating to the State Board of Corrections and to the prisons, public works camp and prisoners" the following Jaws were specifically repealed: Ga. Laws 193738, Extra. Sess., pp. 200-202 (repealed by Item 12, p. 164); Ga. Laws 1939, pp. 106-110 (repealed by Item 15, p. 164).
The State Board of Pardons and Paroles was directed to respect the State Board of Corrections' rules and regulations regarding the computation of time served "and shall cooperate in extending parole and clemency to such as are subject to special consideration." !d. at 178-179, Section 24 (Ga. Code Ann. 77-320(a).
The rule-making power of the agency vested with parole authority also evidences the concept that the prisoner, to be considered, must be incar-

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cerated. In 1919, the indeterminate sentence law was passed. It provided in part:

"The Prison Commission shall fix rules by which said convict, after serving the minimum sentence, may be allowed to complete his term without the confines of the penitentiary upon complying with said rules." Ga. Laws 1919, p. 387; Code of 1933 27-2502. (Emphasis added).

This portion of the provision was omitted in 1950, Ga. Laws 1950, p. 352, 354, but by then the power of parole had been vested in the State Board of Pardons and Paroles, created in 1943. The concept that parole was to be extended to those within the confines of the penal institution, to serve their terms without said confines, was not lost. The rule-making power was carried forward in Section 23 of the Act of 1943. It was more particularly circumscribed in 1964 (Ga. Laws 1943, pp. 185, 194, as amended, Ga. Laws 1964, pp. 487, 488; Ga. Code Ann. 77-525), to require a minimum period of a sentence to be served before a prisoner could be eligible for parole consideration.
Finally, it is important to understand also the history of the phrase "after conviction" so that, seen in the context of its adoption, its current significance is understood. It was apparently added to distinguish the class of cases before conviction from the class of cases after the conviction; only as to the latter group did the power of parole, as well as the power of pardon, exist. This phrase, however, as contained in the present law (Ga. Code Ann. 77-511 ), does not mean that the power to grant parole exists at any and all times following conviction.
The phrase arose in connection with the extent of the power of pardon, and although it must therefore be discussed in terms of that power, the two are not coextensive. The power of pardon has roots independent of the parole power; its history is developed by the Court in Dominick v. Bowdoin, 44 Ga. 357 (1871). Thus, the nature, origin and evolvement of the present pardon power being diverse from that of the parole power, the opinion expressed herein should not be construed to apply also to the power of pardon. With that note of caution, the phrase "after conviction" should be examined.
The Constitution of the State of Georgia of 1798 gave the power to grant pardons to the Governor, in the following language:

"He shall have power to grant reprieves for offenses against the State, except in cases of impeachment, and to grant pardons, or to remit any part of a sentence in all cases, after conviction, except for treason or murder, in which cases he may respite the execution

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and make report thereof to the next General Assembly, by whom a pardon may be granted.

Thus, from that time until the Constitution of 1868, the power of the Governor was limited by the Constitution as to the nature of the offenses to be pardoned, and also as to the time, i.e., "after conviction".
The Constitution of 1868 removed these curtailments and limited the power only in cases of impeachment. It was silent as to the time when the power could be exercised:

"He shall have power to grant reprieves and pardons, to commute penalties, and to remit any part of a sentence for offenses against the State except in cases of impeachment."

In Dominick v. Bowdoin, supra, the Supreme Court of Georgia construed the power given by that Constitution as authorizing the exercise of the pardoning power before, as well as after, conviction. In that case, the Governor had granted and delivered an unconditional pardon to a person subsequent to his arrest but prior to his indictment.
The Court traced the history of the power of pardoning to English authorities and concluded that by the terms of the Georgia Constitution, the Governor's pardon prior to conviction was authorized. A dissent expressed the opinion that pardon could not be granted until the party charged had first been tried and convicted of the offense for which he was pardoned.
It was possibly this case which prompted the inclusion of the words "after conviction" in the 1943 Amendment to the Constitution of 1877. The legislature obviously intended to make it clear that the power of pardon as well as the power of parole, did not extend to persons merely accused or charged with an offense. The theory expounded by the dissenter in Dominick v. Bowdoin thus was implemented, and the amendment specified that the power was limited to cases after conviction.
Thus, it is clear from an examination of this history of the parole power in this State, that it is extendable only to persons who are serving sentences within the confines of a State penal institution. It is, of course, a matter of legislative grace, not of right. Hiatt v. Campagna, 178 F.2d 42 (1950), aff'd 340 U.S. 880, reh. den. 340 U.S. 907.
In sum, the decision reached by the Attorney General in 1944 is still sound. It is our official opinion that in order to be eligible for parole consideration, a person must be confined in a State penal institution. Therefore, the case which you inquired about, concerning a person out on bond, would not in those circumstances be eligible for parole consideration unless and until he is returned to confinement in the State prison system.

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In that case, the contentions of the attorney may be based on a misapplication of Peyton v. Rowe, 391 U.S. 54 (1968), and cases following that decision. Peyton dealt with the jurisdiction of federal courts in habeas corpus cases pursuant to 28 U.S.C. 2241 (c)(3). The statute authorizes the courts to issue writs on behalf of prisoners "in custody" in violation of the Constitution of the United States. "In custody" was construed to mean that a prisoner serving consecutive sentences could attack even those he had not yet begun to serve. No matter what the interpretation of the federal statute is, however, it would have no effect whatsoever on the construction of the parole power as vested in the State Board of Pardons and Paroles by the General Assembly.
OPINION 71-98

To: Director, State Merit System of Personnel Administration

May 20, 1971

Re: Merit System; classification and compensation plan; construction of statutes.

This is in response to your recent letter wherein you inquire whether there is a basic conflict between Act No. 12 (Ga. Laws 1971, p.45) and Act No. 76 (Ga. Laws 1971, p. 204) both passed by the 1971 General Assembly and signed by Governor Carter on March lOth and March 29th respectively.
Act No. 12 provides, inter alia, that the State Personnel Board shall establish and maintain a classification and compensation plan for employees under the State Merit System. Act No. 76 authorizes and directs the State Personnel Board to add two longevity steps to the end of each compensation grade within its classification and compensation plan.
It is an elementary rule of statutory construction that statutes dealing with the same subject matter should be read "in pari materia", construed together and harmonized wherever possible so as to ascertain the legislative intendment and give it effect. [See Ryan v. Commissioners of Chatham County, eta/., 203 Ga. 730 (1948).] Reading and construing these statutes together, it is my opinion that there is no basic conflict between them and the State Personnel Board should establish and maintain a classification and compensation plan which includes two longevity steps at the end of each compensation grade.

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OPINION 71-99

To: Director, State Department of Family and Children Services

May 25, 1971

Re: Contract between Department of Family and Children Services and Georgia Legal Services, Inc.; implementation.

The Director of your Division of Business Administration has raised certain questions with regard to the implementation of an executed contract between the Department of Family and Children Services and Georgia Indigents Legal Services, Inc. (GI LS). This contract provides for the furnishing of legal services to welfare recipients by private attorneys or other legal services organizations employed and supervised by GI LS and paid with State and Federal funds. The questions relate to the propriety of the procedure proposed to be followed by GILS in the payment of private attorneys for legal services rendered pursuant to the contract. One particular concern is a proposal by Gl LS to enter into a contract with a law school, whereby the school would furnish the services of law students in researching legal questions referred to them by GILS' staff attorneys. In consideration for these services, GI LS would reimburse the law school on a monthly basis.
The contract between the Department and GILS was conditionally approved by the Law Department on November 25, 1970. It generally provides that GI LS is to have primary responsibility for selecting attorneys and making legal services available to qualified persons. These "judicare" services under the contract may be provided by private attorneys or legal services organizations employed by GI LS and supervised by the G ILS administrator. Presumably, the administrator of GI LS is also primarily responsible for establishing pay scales and approving expenditures from appropriated funds. The Department has agreed to appropriate to GI LS "such funds as may be necessary for it to perform the functions which are specified by this agreement."
The functions to be performed by an organization such as GILS are outlined in the State Plan requirements promulgated by HEW:

"The services of lawyers will be made available to welfare applicants and recipients who desire them in fair hearings. This may be done through legal service projects under the Office of Economic Opportunity, Legal Aid, or other organizations making legal services available; or through enabling the applicant to engage an attorney or be assigned an attorney in accordance with the procedures of the local bar association; or through the use of law students acting under the supervision of a law teacher or of a legal

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services organization.*** [45 C.F.R. 205.10(a)(2) (effective October I, 1969)]. [Emphasis added.]

Thus it appears that the proposed projects by Gl LS as outlined by Mr. Jackson's letter to the State Auditor, dated February 15, 1971, are within the scope of the contract and the State Plan requirements of HEW. The proper supervisory role of the Department under this contract would be restricted to reviewing expenditures and otherwise seeing that GILS meets its contractual commitments. In addition, it should be noted that if the Department disapproves of any proposed project by Gl LS, it has the option at any time to cancel the contract.

OPINION 71-100

To: State Treasurer

May 26, 1971

Re: Supreme Court and Court of Appeals; fiscal officers.

This responds to your letter of May 5, 1971, asking for my official opinion as to whether the Supreme Court and the Court of Appeals may designate their respective fiscal officers to handle their payrolls and, if so, the procedure by which this may be accomplished in conformity with law.
I am of the opinion that the Acts of the General Assembly [see Ga. Laws 1904, p.72; 1906, p. 24; 1957, p.205; 1962, p.3; 1966, p.72; 1970, p.19] which form the subject matter of Ga. Code Ann. 24-3503 and 24-4005, reciting that the appellate court salaries "herein fixed shall be paid by the State treasury in 12 equal monthly installments", necessarily must be read as authorizations rather than as restrictions or limitations and, hence, that those provisions are not legal impediments to the transfer of the payroll function of the appellate courts from the Treasurer to the fiscal officers of the appellate courts. For the applicable rule of statutory construction, see: Park v. Candler, 113 Ga. 647(3) (1901).
I further am of the opinion that the appellate courts may designate their fiscal officers to handle their payrolls under procedures satisfactory to the appellate courts and the Budget Bureau. In the establishment of these procedures, the Budget Bureau as an arm of the Executive Department of State government must be ever mindful, in my opinion, of the delicate balance of power between the Executive and the Judiciary recognized by the General Assembly in the Budget Act (See, for instance, Ga. Laws 1962, p.17, Ga. Code Ann. 40-409, 40-414 and 40-415) and founded upon the constitutional principle of separation of powers. Georgia Constitution of 1945, Art. I, Sec. I, Par. XXIII (Ga. Code Ann. 2123); Calhoun v. State Highway Department, 223 Ga. 65, 67(2) (1967).

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OPINION 71-101

To: Governor, State of Georgia

May 26, 1971

Re: Public officers and employees; Director of Board of Corrections employed by Georgia Building Authority (Penal).

This is in response to your letter of recent date in which you requested my opinion as to the following questions:

(I) May the Georgia Building Authority employ the Director of the State Board of Corrections for the purpose of working with the Authority on prison design, location, building matters and other related activities; and
(2) If the answer to my first question is in the affirmative, may this Authority accept contributions in the form of gifts or grants from a private source and use such gifts or grants to pay the salary of the Director of the Department of Corrections for the duties rendered the Authority?

According to your letter the pertinent facts are as follows: "You have received information from one or more private sources that they are concerned regarding the Georgia Penal System and desire to make a contribution in the form of a gift or grant to an appropriate State agency for the purpose of up-grading the system, especially the design, location and other similar matters relating to prison buildings and facilities. The gift, however, would be unconditional and left to the discretion of the agency as to how the money should be spent as long as it was used for the purposes specified above."
It is noted that this Authority consists of five members, the Governor, the Lieutenant-Governor, the State Auditor, the Commissioner of Agriculture and the Attorney General, and that, therefore, the Director of the Department of Corrections is not a member, nor is he otherwise employed by this Authority.
The answer to your first question appears to be directly controlled by my former opinion of November 7, 1969, Ops. Att'y Gen., 1969, p. 654
[69-467], which said in essence that Georgia law (Ga. Laws 1968, pp. 1249, 1309, Ga. Code Ann. 26-2309) does not prohibit an employee from holding two employments in the same branch of State government. It prohibits an employee from holding two employments in different branches of State government.
I assume that the Director of the Department of Corrections would not be hired as a consultant but would be an "employee" of the Authority. If this assumption is correct, such employment would not be con-

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trary to another former opinion of this office dated November 22, 1967, Ops. Att'y Gen., 1967, p. 572 [67-414]. which in essence said that a consulting contract between the Board of Regents and a full-time employee of the State Board of Probation would violate the 1956 Honesty in Government Act.
I am enclosing copies of the referenced opinions and am unaware of any reason they would not be of equal application to the present situation.
Georgia Code Ann. 77-1004, based upon Ga. Laws 1960, p. 892, provides for the powers of the Georgia Building Authority (Penal). The pertinent part of this Section provides in subparagraph (4):

"The Authority shall have powers: "(4) to appoint and select officers, agents and employees, and fix their compensation; . . ."

Therefore, it is my official opinion that the described employment by the Georgia Building Authority (Penal) would be permissible.
The answer to your second question is found in Ga. Code Ann. 771025 (Ga. Laws 1960, pp. 892, 907). The pertinent part of this provision provides that-

'The Authority, in addition to the moneys which may be received from the sale of revenue bonds and from the collection of revenues, rents, and earnings derived under the provisions of this Chapter, shall have the authority ... to receive and accept contributions from any source of either money or property or other things of value to be held, used and applied only for the purposes for which such grants or contributions may be made."

Therefore, your second question is answered in the affirmative as it is my official opinion that the Georgia Building Authority (Penal) may accept and receive contributions from any source, and use such contributions to pay the salary of the Director of the Department of Corrections.

OPINION 71-102

To: Superintendent of Banks

May 28, 1971

Re: Banks and banking; where census figures are material to the establishment of bank offices and facilities, any official U.S. census figures apply, whether of a decennial census or not.

Your recent letter requested an opinion on the question of whether Ga.

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Code Ann. 13-203.1 (Ga. Laws 1970, p. 954) permits the use of any future non-decennial official United States census in determining the population for purposes of establishing bank offices and bank facilities, rather than restricting banks to the use of the decennial official United States census.
According to your letter the pertinent facts are as follows: Georgia Code Ann. 13-203(c)(1), as amended by Ga. Laws 1970, p.954, uses the language "located in a county having a population of 250,000 or more according to the 1960 United States Decennial Census and any future such census". Georgia Code Ann. 12-203.1 (c), however, refers in two places to the "1960 official United States census, or any future official United States census". Although it is clear that Ga. Code Ann. 13-203(c)(l) refers only to a decennial census, the language of Ga. Code Ann. 13-203.1(c) may be ambiguous because it refers to the 1960 official United States census, or any future official United States census. The United States Census Bureau, upon the application and payment by private parties, does make official certified nondecennial United States censuses for requested areas.
It was the intent of the Legislature in amending Chapter 13-2 of Title 13 of the Code of Georgia, known as the "Banking Law" of Georgia, in 1970 to prohibit the establishment of new and additional branch banks, Ga. Code Ann. 13-203, and to provide for the establishment and operation of new and additional bank offices and bank facilities, Ga. Code Ann. 13-203.1. This latter section empowered the Superintendent of Banks to regulate the establishment of bank offices and bank facilities and to provide for the criteria of examination and determination of the public need and advantage in the establishment of bank offices and bank facilities. See Ga. Laws 1970, pp. 954-61.
One of the factors used by the Superintendent of Banks in approving the establishment of a new bank office or bank facility is the population of the county in which such office is to be located. Georgia Code Ann. 13-203.1 gives the Superintendent of Banks the authority to use the latter of either the 1960 official United States census or any future official United States census.
Therefore, it is my official opinion, based on the foregoing, that Ga. Code Ann. 13-203.1 (Ga. Laws 1970, p. 958) permits the use of the latter of the 1960 official United States census, or any future official United States census, and is not restricted to the use of the 1960 official United States Decennial census.

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71-103

OPINION 71-103

To: Governor, State of Georgia

May 28, 1971

Re: Supreme Court and Court of Appeals Reports; Reporter as proper budget unit for publication; invalidity of publishing contract obligating state for period in excess of one year.

The State of Georgia is required to have printed Reports of the Supreme Court and the Court of Appeals and to distribute these Reports to certain designated people. Ga. Code Ann. Chap. 90-2; Chap. 101-2. You have addressed inquiries to this office regarding the procedures and responsibilities involved in producing these Reports and the validity of the current contract under which these Reports are produced.
A delineation of the duties and responsibilities of the two persons most directly involved with the Reports, the State Librarian and the State Reporter, should resolve the questions you have presented as well as avert future problems.
The Reporter is primarily responsible for the production of the Reports. He prepares and executes, in conjunction with the Governor, a contract providing for the printing of the Reports. Ga. Code Ann. 90-204, 90-205. There is no authorization for the Reporter to execute or renew a contract without the Governor's approval. His is the responsibility of furnishing a manuscript of the decisions to the State Publisher and of ascertaining proper performance by the Publisher. Ga. Code Ann. 24-4202, 90-208, 90-211, 90-214, 90-220. Failure of a Report to be published is directly attributable to the Reporter. Ga. Code Ann. 90-210. For these reasons the State Reporter is the proper budget unit to which appropriations for the State Reports should be directed.
It is also the duty of the Reporter to determine when reprints of old volumes of the Reports are needed and to make demands on the publisher for such reprints. This duty is not without limitations. Both the determination and the demand require the approval of the Governor. A further limitation is that there must be less than 25 copies of the particular volume in the possession of the State before it can be reprinted. It should be noted that the law does not provide that upon reaching 25 copies of a volume, the Reporter automatically demands a reprint. This provision is a limitation, not a triggering device. Ga. Code Ann. 90222.
The Librarian's primary responsibility relative to the Reports is to furnish to the Publisher, before each new Report is printed, a statement of how many copies are needed for distribution and exchange. Ga. Code Ann. 90-215. To aid the Reporter in preparing his annual budget, the Librarian should transmit a copy of this communication with the Pub-

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lisher to the Reporter. All Reports are delivered to the Librarian since he is in charge of distributing them to all the proper recipients. Ga. Code Ann. 90-215, 101-205, 101-218. In the absence of a designation to the contrary, the State Librarian also serves as custodian of the matrices or plates from which each Report was printed. Ga. Code Ann. 90-220.
In regard to the current contract providing for the publication of the Reports, it is my opinion that the contract is invalid for it financially obligates the State for a period greater than one year. The constitutional provision found in Art. VIL Sec. IlL Par. I (Ga. Code Ann. 2-5601) prohibiting the State from incurring a debt has been construed as prohibiting the incurring of a fiscal liability not to be discharged by taxes levied within the year in which the liability is undertaken. Barwick v. Roberts, 192 Ga. 783, 16 S.E.2d 867 (1941); City of Dawson v. Dawson Water Works, 106 Ga. 696, 32 S.E. 907 (1899). The contract in question provides for the printing of 25 volumes of the two Reports. At an average rate of three volumes a year, this is an eight and one-third year contract through which the State has obligated itself to the purchase of these Reports.
Although the obligation to pay arises only when the publisher has performed and the volumes are printed, the fact that the State has obligated itself beyond one year is not altered.

"The policy of the Constitution is not only against the incurring of liability to be discharged in the future for services rendered concurrently with the liability incurred, or previous thereto, but it is equally against the incurring of a liability which is to be discharged in the future, notwithstanding that it depends upon the performance of some service to be rendered in the future." City Council of Dawson v. Dawson Waterworks Company, 106 Ga. 696,712, 32 S.E. 907,913 (1899).

The question concerning the purchase of 200 reprints of previous volumes should require no answer inasmuch as it has been determined that the entire contract is invalid.

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71-104

OPINION 71-104

To: Chairman. State Commission on Compensation

June2. 1971

Re: State Commission on Compensation; officers covered.

This is in reply to a request from the Secretary of the State Commission on Compensation for my opinion as to who is included within the provisions of the Act which established the commission (Ga. Laws 1971, p. 103, Ga. Code Ann. 89-716 et seq.).
Section 5 of the Act provides that the commission shall make a study of the compensation currently being paid by the state to all constitutional state officers including members of the General Assembly and all full-time heads of state agencies, authorities, boards, bureaus, commissions, committees and departments whose compensation is set by the Constitution, by law or by an Act of the General Assembly.
With his letter the Secretary of the Commission furnished me a list which contained a tentative listing of officers thought to be covered by the Act. I have examined this list and in my opinion all of the officers listed therein are subject to the provisions of the Act.
However. it is my opinion that in addition to those officers set out in the above list, the members of the various boards and commissions which are provided for in the Constitution are subject to the Act and the compensation paid to such members should also be the subject of study by the commission. Although the members of such boards and commissions do not serve full time and are not paid salaries, in most instances they receive a per diem payment for the actual days on which they serve, and these per diem payments constitute compensation for their services. The Act does not require full-time service as a condition of coverage other than for the classification of heads of state agencies, authorities, etc.
I am enclosing a list of officers who in my opinion are subject to the provisions of the Act. For your convenience I have noted by each officer or board the citation to the statutory provision which currently sets the base compensation for that office, preceded where appropriate by a citation to the constitutional provision for creation of the office or board.
I am also returning the list which was furnished to me for examination. If I may be of further assistance please do not hesitate to call upon me.

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128

STATE COMMISSION ON COMPENSATION
(State officials included within the provisions of the Act creating the Commission-citations are to the Code of Georgia Annotated)
GovER~OR- 2-3001; 40-105 LIEUTE~A:"T GOVER~OR- 2-3007; 40-109 ADJUTANT GENERAL- 86-204 COMMISSIONER OF AGRICULTURE- 2-3101; 5-105 ATTORNEY GENERAL- 2-3101; 2-4501; 40-1612.1 STATE AUDITOR- 40-1802.2 COMPTROLLER GE~ERAL- 2-3101; 40-1404 DIRECTOR OF CORRECTIO~s- 77-305 DIRECTOR OF GAME A~D FISH COMMISSIO~- 45-111 DIRECTOR OF STATE HIGHWAY DEPARTME:"T- 95-1602 COMMISSIONER OF LABOR- 2-3101; 54-105 MEMBERS OF THE BOARD OF PARDONS AND PAROLES- 2-3011; 77-503
AND STATE BOARD OF PROBATIO~- 27-2703 DIRECTOR OF PROBATIO~- 27-2704 DIRECTOR OF STATE PARKS- 43-133 DIRECTOR OF PUBLIC SAFETY-Ga. Laws 1971, p. 309 ( 92A-107) MEMBERS OF THE PUBLIC SERVICE COMMISSION- 2-2703; 93-208 STATE REVENUE COMMISSIONER- 92-8402 STATE SUPERINTE~DE:-.!T OF ScHOOLS- 2-6601; 32-510 SECRETARY OF STATE- 2-3102; 40-504 SUPERVISOR OF PURCHASES- 89-707 STATE TREASURER- 2-3102; 40-901 DIRECTOR OF VETERA:-.!S SERVICE- 78-409 JUSTICES OF THE SUPREME COURT- 2-370 I; 24-4005 JUDGES OF THE COURT OF APPELS- 2-3708; 24-3503 JUDGES OF THE SUPERIOR CoURTS- 2-3801; 24-2606 DISTRICT ATTOR:"EYS- 2-4601; 24-2922 MEMBERS OF THE GENERAL ASSEMBLY- 2-1301; 47-107 SPEAKER OF THE HOUSE- 2-1802; 47-107 PRESIDENT PROTEM. OF THE SENATE- 2-2001; 47-210 CLERK OF THE HOUSE- 2-2001; 47-210
SPEAKER PROTEM OF THE HOUSE- 2-2001; 47-107 SECRETARY OF THE SENATE- 2-2001; 47-210
!Additional constitutional boards, members ofwhich are covered by the Act)
STATE BOARD OF EDUCATION- 2-650 I; 32-407 STATE MEDICAL EDUCATION BOARD~- 2-5402; 32-3002 BOARD OF REGENTS- 2-6701; 32-111 STATE BOARD OF CORRECTIONS- 2-3401; 77-302 STATE PERSONNEL BOARD-- 2-8201; 40-2205 BOARD OF COMMISSIONERS OF THE DEPARTMENT OF iNDUSTRY A~D TRADE- 2-
3505; 40-2104 STATE GAME AND FISH COMMISSION- 2-330 I; 45-107 VETERANS SERVICE BOARD- 2-3501; 78-403 STATE HIGHWAY BOARD--- 2-3506; 95-1602

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71-104

STATE COMMISSION ON COMPENSATION

(State Officials' Salaries Fixed by Constitution or by Law)

OFFICER

TOTAL COMPENSATION

Governor Lieutenant Governor

$42,500.00 $20,000.00

Adjutant General Base Salary Quarters Subsistence Allowance Maximum Base Salary

$23,047 0 20 $ 2,412.00 $ 574.56 $28,332.00

Commissioner of Agriculture Base Salary Plus $800.00 for each four years of State service. Present Commissioner receives

$22,500.00 $ 2,400.00

Attorney General Base Salary Plus $800.00 for each four years of State service. Present Attorney General receives

$30,000.00 $ 4,000.00

State Auditor Base Salary Plus $800.00 for each four years of State service. Present State Auditor receives

$28,500.00 $ 4,000.00

Comptroller General

Director of Corrections Base Salary Contingent Expense Allowance

$20,600.00 $ 2,000.00

Director of Game and Fish Commission

Base Salary

$17,500.00

Contingent Expense Allowance $ 3,600. 00

Plus $800.00 for each four

years of State service.

Present Director receives

$ 800.00

Director of State Highway Department

Base Salary

$25,000. 00

Plus $800.00 for each four

years of State service.

Present Director receives

$ 800.00

$26,033 0 76 $24,900 0 00
$34,000.00
$32,500.00
$22,500.00 $22,600 0 00 $21,900.00
$25,800.00

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130

Commissioner of Labor Base State Salary Base Federal Salary Contingent Expense Allowance Plus $800.00 for each four years of State service. Present Commissioner receives

$12,000.00 $ 8,000.00 $ 2,400.00
$ 3,200.00

Members of The Board of Pardons and Paroles

and State Board of Probation

Base Salary

Pardons and Paroles

$ 5,000. 00 each

Probation

$10,000.00 each

Contingent Expense Allowance

Pardons and Paroles

$ 3,600.00 each

Probation

$ 3,600. 00 each

Director of Probation Base Salary Contingent Expense Allowance

$12,000.00 $ 3,600.00

Director of State Parks

Director of Public Safety Base Salary Subsistence Allowance ($5.00 per day)

$22,500.00 $ 1,825.00

Members of The Public Service Commission

Base Salary Plus $800.00 for each four
years of State service. Chairman and two other
members receive Two members receive
State Revenue Commissioner
State Superintendent of Schools
Secretary of State Base Salary Contingent Expense Allowance Keeper of Buildings and Grounds Plus $800.00 for each four years of State service. Present Secretary of State receives

$22,500.00 each
$ 4,000. 00 each $ 2,400. 00 each
$22,500.00 $ 3,600.00 $ 2,500.00
$ 4,000.00

$25,600.00
$ 8,600. 00 each $13,600.00 each
$15,600.00 $20,000.00 $24,325.00 $26.500. 00 3 members $24,900. 00 2 members
$25,000.00 $28,000.00 $32,600.00

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71-104

Supervisor of Purchases Base Salary Coniingent Expense Allowance Plus $1,600.00 for each four years of State service. Present Supervisor of Purchases receives
State Treasurer
Director of Veterans Service Base State Salary Base Federal Salary Contingent Expense Allowance
Justices of The Supreme Court
Judges of The Court of Appeals
Judges of The Superior Courts Base Salary Contingent Expense Allowance
District Attorneys Base Salary Contingent Expense Allowance
Members of The General Assembly
Speaker of The House Base Salary Salary as Member of the General Assembly Plus $800.00 for each four years of State service. Present Speaker receives
President Pro Tern. of The Senate Base Salary Salary as Member of the General Assembly
Speaker Pro Tern. of The House Base Salary Salary as Member of the General Assembly
Secretary of The Senate Base Salary Plus $800.00 for each four years of State service. Present Secretary receives

$18,000.00 $ 2,400.00
$ 1,600.00
$19,000.00 $ 7,416.00 $ 3,600.00
$20,000.00 each $ 4,800. 00 each $18,000.00 each $ 4,800. 00 each
$ 7,800.00 $ 4,200.00
$ 4,000.00 $ 2,400.00 $ 4,200.00
$2,400.00 $ 4,200.00 $10,000.00
$ 1,600.00

$22,000.00
$22,500.00 $30,016.00
$32,500. 00 each $32,500. 00 each $24,800. 00 each $22,800. 00 each $ 4,200. 00 each $16,000.00
$ 6,600.00
$ 6,600.00
$11,600.00

71-105
Clerk of The House Base Salary Plus $800.00 for each four years of State service. Present Clerk receives

$10,000.00 $ 4,000.00

132
$14,000.00

NOTE: Maximum annual payment for prior service to any State official is $4,000.00.

OPINION 71-105

To: State Treasurer

June4, 1971

Re: State Treasurer; necessity that he personally cast vote at meetings of State Depository Board and State Properties Control Commission.

This is in answer to your letter of May 20, 1971, in which you ask whether the Assistant State Treasurer is authorized, in the absence of the State Treasurer, to attend meetings of the State Depository Board and the State Properties Control Commission and cast the State Treasurer's vote on matters coming before these boards.
While Ga. Code Ann. 40-207.1 and 40-207.2 (Ga. Laws 1937, p. 608) provide for a Governor-called council (consisting of the Governor, Secretary of State and Attorney General) to designate the Assistant State Treasurer to perform the State Treasurer's duties if the council deems the Treasurer to be unable to perform the duties of his office due to sickness or other providential cause, I am unaware of any law which would authorize the Assistant State Treasurer to attend meetings of the State Depository Board or State Properties Control Commission and cast the State Treasurer's vote as a member of such board and commission (see Ga. Code Ann. 100-101, as amended by Ga. Laws 1969, p. 681, and 91-103a (Ga. Laws 1964, p. 146; 1965, p. 249; 1965, p. 663)) based upon the simple absence (as opposed to incapacity) of the State Treasurer. For this reason, it is my opinion that the answer to your question is in the negative.

133

71-106

0 PINIO!\i 71-106

To: Director Department of Public Safety

June 7, 1971

Re: Georgia State Patrol; number of noncommissioned officers.

In your letter of May 7, 1971, you requested my opinion as to whether the Department of Public Safety could make noncommissioned officer promotions within the Georgia State Patrol, thereby resulting in a complement of officers exceeding the number set forth in Ga. Code Ann. 92A-208.
The Act of the Georgia General Assembly creating the Department of Public Safety. Ga. Laws 1937, p. 377, provided that the State Patrol should be composed of a battalion of officers and troopers and set forth a specific number of each classificatin. No authorization was contained in the Act for promotions which would result in the battalion being composed of any number of officers and troopers different from that set out in the Act.
However, the Georgia General Assembly, by Ga. Laws 1939, p. 135, added a provision allowing the Department of Public Safety to make promotions of noncommissioned officers as it deems necessary, regardless of the composition of troopers and officers delineated by other Acts of the General Assembly. This provision has remained a part of the law in regard to staffing of the State Patrol, and is unofficially codified as a portion of Ga. Code Ann. 92A-208.
In your letter you stated that the department would like to have two positions of corporal in each of the 45 State Patrol barracks. and that this is impossible under the requirements of that portion of Ga. Code Ann. 92A-208 which states that there shall be 60 corporals in the battalion.
It is fair to surmise that the General Assembly realized that a rigid, inflexible staffing for the State Patrol would not be in the best interest of the state. Accordingly, the 1939 Act provided the Department of Public Safety the flexibility needed in order for the Georgia State Patrol to operate properly and efficiently.
On the basis of the above, it is my opinion that the Department of Public Safety, within its discretion, is authorized to make such promotions of noncommissioned officers as it deems necessary for the proper operation of the Georgia State Patrol.

71-107

134

OPI~IO:'-; 71-107

To: State Treasurer

June 7, 1971

Re: Judges of the Superior Courts Emeritus; age of disability retirement.

This responds to your letter of May 14, 1971, inquiring whether a Judge of the Superior Courts Emeritus must have attained age 62 to be entitled to receive disability benefits based on one-half salary.
No. Please referto Op. Att'y Gen. 68-331 for full particulars.

OPINION 71-108

To: Director, Employees Retirement System of Georgia

June 7, 1971

Re: Employees Retirement System; questions as to election and withdrawal of election of benefits.

This responds to your letter of May 18, 1971. asking for my opinion respecting the following three specific questions posed to you by an Appellate Court Judge who has filed a written notice electing to accept the benefits provided by Ga. Laws 1971, p. 99. Ga. Code Ann. 402535:

"I. If my election is withdrawn at this time. is there any legal bar to my making a final written acceptance at a later time?
"2. What is the latest date on which a final written acceptance may be made by me?
"3. Isn't it true that the 7-1/2% deduction will not be made from my salary. pending the cancellation of my written election and the time of making another election?"

Assuming. as the first question does. an effective withdrawal of the Appellate Court Judge's first written election of benefits, I am of the opinion that there is no legal bar to his making a second written acceptance at a later time. The second question is answered by Section 19(3) of the amended Act governing the retirement system which requires explicitly that the written notice electing benefits be tendered to the
board of trustees "before January I. 1972." In my opinion. this means

135

71-109

on or before December 31, 1971. Assuming, as my answer to the first question does, an effective withdrawal of the first election of benefits, then the third question is answered by my expressing the opinion that the 7.5 percent contribution required under Section 19(4) of the amended Act should be deducted according to that Section "for each pay period or part thereof after the date of his written notice electing benefits" which, in this instance, would be from the date of his effective (i.e., second) election of benefits.
Although no question was posed to me respecting whether or not the subject Appellate Court Judge may withdraw his first written notice electing benefits, I feel constrained to comment that absent the existence of legal justifications not known to me, such a withdrawal (i.e., termination of a contractual relationship) only would seem appropriate if consented to by the Board of Trustees of the Employees Retirement System of Georgia.

OPINION 71-109

To: Executive Assistant Director, State Highway Department

June 10, 1971

Re: Toll bridges; collection of tolls to cease upon retirement of revenue obligations.

This is in reply to your letter wherein you asked whether after the retirement of the revenue certificates issued to finance the construction of the Eugene Talmadge Memorial Bridge tolls can be charged to provide funds for 4-laning U.S. 17.
As noted in your letter the bridge was constructed by the C oasta1 Highway District and pursuant to an agreement between the District and the State Highway Board title to the bridge will vest in the state after the revenue certificates are no longer outstanding.
Ga. Laws 1950, p. 179, relating to the construction of a toll bridge over the Savannah River (Eugene Talmadge Memorial) provides, in part. as follows:

" . . . the toll to be charged for the use of said bridge shall be at a minimum and not exceed the amount required to pay off the principal and interest of revenue certificates issued for the construction of the same and upon retirement of the principal and interest of said certificates said bridge shall immediately become a free bridge." (Emphasis added.)

Therefore, it is my opinion that under existing law tolls may not be

71-110

136

charged for the use of the Eugene Talmadge Memorial Bridge after the revenue certificates issued to construct the bridge have been paid.

OPINION 71-110

To: Secretary of State

June 14. 1971

Re: Municipal elections; absentee ballots.

You have requested an official opinion on the following questions: if a municipality elects to use absenteee ballots. should this be accomplished by a charter or an ordinance. and if the charter of the municipality provides for the use of absentee ballots. can a municipality elect not to use them.
The Georgia Municipal Election Code Chapter on absentee ballots (Ga. Laws 1968. pp. 885.968 et seq.) applies "if the governing authority elects to use absentee ballots." Ga. Code 34A-1301. The Municipal Election Code does not specify whether the governing authority must manifest its choice in any particular manner. that is. by either a charter or an ordinance. Absent any particular requirement. I believe that the governing authority may elect to use absentee ballots by any appropriate action indicating its decision. either by charter amendment. adoption of an ordinance. resolution or regulation. See. in general. the Georgia Municipal Home Rule Act of 1965 (Ga. Laws 1965. p. 298). especially Ga. CodeAnn. 69-1017(a)and69-1018(a)(1).
In response to your second question, if the charter of a municipality requires the use of absentee ballots and nothing contrary appears elsewhere in the laws. then it would seem axiomatic that the municipality must use absentee ballots until the municipality has taken the appropriate steps to amend its charter to eliminate absentee ballots. I am not aware of any provision of law which would authorize a municipality to ignore its charter in this instance.

OPINION 71-111

To: Director. Department of Public Safety

June 18. 1971

Re: Fee allowed for inspection of seasonal farm-commodity vehicles.

This is in response to your letter wherein you requested my official opinion on the question of whether or not an official inspection station can charge a standard $3 fee for the reduced inspection of seasonal farmcommodity vehicles established by Ga. Laws 1971. p. 258 (Ga. Code Ann. 68-1726.7).

137

71-111

The question posed in your letter involves a construction of Section 126 of the Uniform Act Regulating Traffic on Highways. Ga. Laws 1953, Nov.-Dec. Sess. pp. 556,616, as amended (Ga. Code Ann. 681726 through 68-1726.4 ). Generally, this section requires that all motor vehicles be inspected on an annual basis, establishes the motor vehicle equipment which must be inspected and the standards which must be met for such equipment, and provides for the appointment and regulation of official inspection stations by the Director of the Department of Public Safety.
The 1971 amendment to this section merely reduced the scope of the inspection for a particular type of vehicle when engaged in a particular type of activity. Now, trucks and nonpassenger-carrying motor vehicles used solely for transporting seasonal farm commodities to or from markets need only have brakes, turn signals, and lights, if operated at night, Ga. Laws 1971, pp. 258, 259-60. This amendment provides, however, that these vehicles be inspected at official inspection stations and that a regular inspection certificate be obtained and located within the vehicle. Ga. Laws 197l,pp.258,260.
With respect to the fee charged by official inspection stations, Section 126B(c) provides as follows:

"A fee of $3 shall be charged for each certificate of inpection and approval, $.25 of which shall be remitted to the Director as a regulatory fee and the Director shall turn the same into the State Treasury. The Director may promulgate rules and regulations governing the revision of such fees by the person issuing the certificate." Ga. Laws 1970, pp. 438, 440-1 (Ga. Code Ann. 681726.2(c)).

The compensation allowed to the inspection station is not related, then, to the type or amount of equipment inspected, but is related to the issuance of the certificate itself. As to the fee allowed for inspection established by the 1971 amendment to Section 126, the fact that the same certificate of inspection must be obtained is controlling. The amendment does not contain any language which indicates that the fee for the certificate would in any way be different from any other case.
It is, therefore, my official opinion that the fee for the inspection and issuance of an inspection certificate on seasonal farm-commodity vehicles is $3.

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OPINION 71-112

To: Director, State Department of Family and Children Services

June 23, 1971

Re: State depositories; waiver of collateral by State Depository Board.

You have requested my opinion as to whether Ga. Laws 197 L p. 553, requires your department to return collateral pledged by banks holding its demand deposits for operating funds. Your letter correctly notes that this statute, as enacted by the 1971 Session of the General Assembly, changes the requirement of collateral for state depositories (banks) holding demand deposits of state funds. Section 3 of the Act (Ga. Code I00-104) provides that "the State Depository Board may, in its discretion, waive the requirement of [bonds or other securities] as to demand deposits in a depository." This waiver provision also applies to special deposits as well as operating funds placed in demand deposit checking accounts. See Section 4 of the Act (Ga. Code 100-105 ).
I have taken note of Ga. Code 89-812 (Ga. Laws 1933, pp. 78, 83), providing that depositories shall give bond or make security for state or county deposits made in them; also, Ga. Laws 1937, pp. 806, 834 (Ga. Code Ann. 54-645), as amended, requiring security for employment security administration funds placed in state depositories. However, to the extent that these or any other prior laws are irreconcilably inconsistent with Ga. Laws 1971, p. 553, they are superseded or repealed by implication. See Leonard v. State of Georgia. ex ref. Lanier. 204 Ga. 465 (2) (1948). It should be noted, however, that retirement, trust and Authority funds are exempt from the State Depository Board laws. Ga. Laws 1960, pp. 1144. 1148 (Ga. Code Ann. 100-101. note).
It is my opinion that Ga. Laws 197 L p. 553, is controlling; that under its provisions, a majority of the State Depository Board, consisting of the Governor. the Comptroller GeneraL the State Auditor, the Superintendent of Banks, the State Revenue Commissioner and the State Treasurer, may waive the requirement of bond or other authorized securities for state demand deposits now held by a state depository. When the State Depository Board has so acted to waive the bond requirement for a particular depository, it would be appropriate for your department to return any collateral now held as security for demand deposits in that depository. In other words, Ga. Laws 1971, p. 553, does not of itself require the return of collateraL but rather the action of the State Depository Board is required.

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OPINION 71-113

To: State Superintendent of Schools

June 25, 1971

Re: County regulations and ordinances as not binding upon state in absence of consent by General Assembly.

You have requested my official opinion as to the applicability of the DeKalb County requirement that any landowner, including the State of Georgia where it is an owner. of property fronting on a certain portion of North Indian Creek Road in said county must convey to the county sufficient right-of-way to permit the widening of said public road and further. such landowner must bear the expense of paving, curbing and construction of sidewalks within and upon said widened public road.
As a general rule. state property is not subject to regulation by lesser governmental authorities. for the reason that such lesser governmental authorities exercise only the powers delegated to them by the state, and any general delegation of power does not apply to the state or its instrumentalities in the absence of express language or clear implication in the statutes. See Kentucky Instiute for Education of Blind v. City of Louisville. 97 S.W. 402 (Ky. 1906); Paulus v. City of St. Louis, 446 S.W. 2d 144 (Mo. Ct. App. 1969); City of Fulton v. Sims. 106 S.W. 1094 (Mo. Ct. App. 1908); City of Charleston v. Southeastern Construction Co .. 64 S.E. 2d 676 (W. Va. 1950); City of Milwaukee v. McGregor, 121 N.W. 642 (Wise. 1909).
This rule has been adopted in Georgia in Ga. Code Ann. 102-109; City of Atlanta v. State of Georgia. 181 Ga. 346 ( 1935 ); and Mayor and Council of City of Atlanta v. Central Railroad & Banking Co., 53 Ga. 120 (1874). See Op. Att'y Gen. 1958-59, p. 219. The aforementioned Central Railroad case is of special importance as therein the court ruled in part that the City of Atlanta could not take a portion of the Western and Atlantic Railroad property of the State of Georgia for use in connection with the city's public streets without the consent of the state.
As I am informed that fee simple title to the particular property involved here vests in the State of Georgia and as the Department of Education, which has custody of this property, is a nonindependent. inseparable instrumentality of the state, this property is state property and per se exempt from DeKalb County regulation.
It should further be pointed out that the Department of Education Jacks the authority to convey to De Kalb County an irrevocable interest in the requested right-of-way. Such a conveyance can only be authorized by the General Assembly. See Western Union Telegraph Company v. Western and Atlantic Railroad Company, 142 Ga. 532-535 (1914 ).
As to the paving, curbing, and sidewalks, these may arguably be

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necessary and desirable additions to the school to be constructed. The costs therefor could be paid from the funds allocated by the General Assembly for the construction of the proposed facility and off-site appurtenances thereto.
However, the decision to meet DeKalb County's demands for the payment of the cost of these improvements is within the administrative discretion of the Department of Education. As my research has failed to disclose any specific local legislation to the contrary, the Georgia law as hereinabove set out controls and DeKalb County has no power to force the state or its instrumentalities to comply with county ordinances or building requirements.

OPI~IO:\ 71-114

To: Supervisor of Purchases

June 28, 1971

Re: Supervisor of Purchases; establishment of General Services Administration as source of supply.

You advise that by securing "letters of authorization" from specific federal governmental agencies that issue "grant-in-aid" funds to the various agencies of the State of Georgia, these state agencies become eligible to purchase supplies. equipment and services from the General Services Administration (GSA) to the extent of the total dollar value of each grant receiver by each state agency. You request our official opinion on whether the Supervisor of Purchases can establish G.S.A. as a sourceof supply and certify it to the various state agencies which receive grant-in-aid funds for the purchase of supplies, equipment and services.
G.S.A. secures competitive bids. establishes sources of supply. warehouses, sells and delivers supplies and equipment to all federal agencies including the Army and Navy. Apparently. G.S.A. has now extended the privilege of using its facilities to all states who receive "grant-in-aid" funds. This privilege is also extended to federal supply contracts for those items that are not carried in stock by G.S.A.
The Supervisor of Purchases' duty is to seek out sources of supply. Ga. Laws 1950, p. 181 (Ga. Code Ann. 40-1906.1). After the sources of supply have been established and certified by him to the various state agencies, these agencies requisition the supplies, materials or equipment required by them from the source of supply certified by the Supervisor of Purchases. We find nothing in the law which would prohibit you from certifying a governmental agency as a source of supply. Indeed, the Supervisor's own regulations recognize that quite often the Federal Gov-

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ernment's prices. at least on surplus goods. are so desirable that authority is granted to state agencies to buy any needed surplus goods directly. with a confirmation requisition submitted to the Supervisor after the purchase. Rules and Regulations of the Supervisor of Purchases. Article 5. Section 7.
IL by appropriate procedures and investigation. you determine that G.S.A. is an appropriate source of supply for the supplies, materials, equipment or services available from it. then it is our official opinion that it is within your authority to establish G.S.A. as a certified source of supply for state agencies.

OPINION 71-115

To: Commissioner of Securities

June 28. 1971

Re: Gambling; trading in securities by put and call options as not per se gambling.

By letter dated June I0 you have requested my opinion as to whether the sale of so-called put and call options is in violation of those portions of the Criminal Code of Georgia defining and prohibiting gambling and gambling-related offenses. Ga. Code Chapter 26-27. based upon Ga. Laws 1968. pp. 1249. 1320-1322. as amended by Ga. Laws 1969. pp. 857. 866; 1970. pp. 236-240; 1970. p. 690.
In order to formulate and render this opinion. I have examined numerous pamphlets and brochures bearing the imprimatur of various firms. members of either the :\ew York Stock Exchange or the Put and Call Brokers and Dealers Association. Inc. l have also examined certain standard forms of put and call options bearing the imprimatur of the Put and Call Brokers and Dealers Association. Inc., as copyrighted 1957. Because my opinion is necessarily based upon my understanding of the nature and substance of the transactions under review. I am taking the liberty to set forth at some length the details of this understanding. It must be clearly understood that the effect of this opinion is limited absolutely to this basic factual understanding, and any deviation whatsoever from this recited understanding could place a transaction outside the perimeters of this opinion. Because this opinion has been formulated with respect to what appear to be standard practices followed by established organizations within what might be called the recognized and regulated securities industry. it is not to be construed as reaching private transactions in the form of put and call agreements. See Miller v. General Outdoor Advertising Co .. 337 F.2d 944 (2d Cir. 1964).
Generally speaking. a "put" is an option to sell and a "call" is an option to buy a security within a period of time at a stated price. Mich-

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aley & Lee, Put & Call Options: Criteria for Applicability of Section /6(b) o{the Securities Exchange Act of/934, 40 Notre Dame Law. 239 (1965). More specifically, a call is a written contract entitling the holder to buy (call) a specified number of shares of a named stock at an agreed price (the striking price), for a fixed period of time, for which right the buyer or purchaser of the call pays the seller (writer) a sum of money called a premium. In the same vein, a put is a written contract entitling the holder to sell (put) to the seller (writer) of the put option a specified number of shares of a named stock at an agreed price (the striking price), for a fixed period of time, for which privilege the buyer or purchaser of the put pays the seller a sum of money called a premium.
As indicated by these basic definitions, puts and calls may be sold independently of the underlying security. Michaley & Lee, op. cit. supra at 241. See also SEC Division of Trading and Exchanges, Report on Put and Call Options (1961) at pages 11, 12. The publicly offered put and call options are always transferable, being in fact written as negotiable instruments in bearer form.
My highly simplified discussion to this point has envisioned only two parties, the buyer or purchaser and the writer of the option. In reality, the public market involves two additional parties, the endorser and the broker. I will refer to their functional involvements later.
As I previously indicated, a typical call is an option in transferable form entitling the holder to buy certain stock at a set price commonly known as the striking price. This striking price is adjusted for dividends, stock dividends, etc., since an exercising holder is entitled to any and all dividends, rights, splits or other benefits that might have been issued to the stock during the life of the option. The period of the typical call is variable within market limits. Usually, the call option is titled for 30 days, 60 days, 90 days, six months, or one year. and may be exercised for a period slightly in excess of the titled period. (For instance, a sixmonth call is normally good for six months and 10 days, a 90-day call for 95 days.)
For every purchaser of a call, lam given to understand that there must be some other person who is agreeable to selling the underlying security at the striking price upon the demand of the buyer. This person is referred to as the writer of the call. In the case of a calL the seller or writer can hold one of three postures with respect to the underlying security. He can either (I) own the stock or (2) be willing to acquire the stock to support the option outstanding. In either such case he is said to be "long" in the underlying security. In the third instance he can write the option without owning the stock or having any intention to acquire the stock unless and until the option is exercised. In this third instance, the writer is described in the terms of the trade as (3) "writing naked."

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In every case the writer's return is represented by the premium paid to him for the call.
In actual practice the name and identity of the writer of the call does not appear on the negotiable instrument representing the call. What does appear is the name of the endorser. normally a member firm of the New York Stock Exchange. While the endorser is commonly considered to be a guarantor of performance. an examination of the specimen contract would indicate that as to the holder. the endorser is an obligor. Because of this fact, the normal practice of all endorsers is to require the "naked" writer of the call to deposit with the endorser cash in an amount which represents a percentage of the then-current market value of the underlying security and to cover through increased deposits ("mark to the market") increases in the market value of the underlying security during the period of the option. Since I am informed that this is a universal practice. I have not gone into the inticacies of regulation of margin and credit extensions by firms covered by the Securities & Exchange Act of 1934. 15 U.S.C.A. 78a et seq. (1971). a subject area outside the scope of your inquiry.
The broker-dealer is the party who puts the undertaking together. In every case he seeks. sometimes acting through stock brokers and dealers. either a buyer or a writer as the case may be. (I understand that such brokers-dealers may on occasion purchase options with a view toward subsequent sales of these options from house inventory; however. such "special options" comprise only a small part of the option business.) The broker-dealer negotiates the selling price (bid) with the writer and the asking price with the buyer. The spread between the bid and the asking price represents his profit as broker-dealer. Both from the bid and the asking prospective. the premium is a factor established basically by the law of supply and demand. and additionally. can be expected to vary with the quality of the underlying security. the length of time of the option. the market history of the stock. and its market-price leveL
The buyer or any subsequent holder of the call option would appear to have four potential alternatives with respect to the security. Firstly, he might allow his option rights to expire without exercising them. This is a legal possibility and would appear to be warranted where the market price of the underlying security upon expiration of the option is below the striking price at which the security might be called.
Secondly. the holder of the option may "call down" the underlying security by paying the striking price to the endorser in which case the stock is actually delivered to the holder exercising the option. While this sale is an "off-the-floor" transaction. it would be necessary for a "naked writer" to enter the market to purchase at the then-prevailing market price the stock to be delivered. The new owner of the stock may hold the stock for investment purposes or he may immediately (almost

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simultaneously with the exercise of the option) place a "sell" order with his own broker and take his profit or loss, as the case may be, by delivering the stock at the then-prevailing market price to a purchaser in another floor or over-the-counter transaction.
As a third alternative, the holder may at any time transfer by sale his call option with the transferee becoming entitled to exercise and otherwise control the option rights. For federal income-tax purposes, it is quite common for a person who holds an option having a life of more than six months, which would normally be allowed to expire because of a market price below the striking price, to sell the call option to a broker-dealer for a nominal sum. This allows such a holder to treat the matter as a short-term rather than a long-term capital loss. If the broker-dealer buys the call and the market changes suddenly to a point where the call would yield some proceeds, the broker-dealer may call down the stock at the striking price and sell it on the market at the thencurrent market price. In such a case, any profit realized is retained by the broker-dealer.
The fourth alternative is in reality a blend of the second and third alternatives. It is this alternative which particularly gives rise to serious legal questions surrounding the call-option business. In a situation where the market price of the underlying security has advanced beyond the striking price so as to make desirable a calling down of the underlying security, the broker-dealer under certain circumstances will purchase the call option from the holder for the sole purpose of exercising it. Here again, the apparent motivation for this arrangement would appear to be the securing to the holder of federal income-tax long-term capital-gains treatment for the profit realization, this type of transaction being normally reserved for situations where the holder has held the option for six months and desires to realize his profit by call and immediate sale.
The broker-dealer will normally pay the holder the difference between the striking price and the then-current market price less a stock-broker's commission on the on-the-floor purchase (call down and delivery) and less an additional stock-broker's commission on the subsequent sale of the stock. The first such stock-broker's commission is computed on the striking price of the security; the second such stock-broker's commission is computed on the then-current market value of the underlying security. In every case, the broker-dealer, in order to recoup the amount paid, actually must call down and accept delivery of the underlying stock. I am informed that every such transaction involving a broker-dealer results in an actual off-the-floor sale and delivery of stock and receipt thereof by the broker-dealer.
Before proceeding to discuss my understanding of the specific operation of a typical put option, one area of potential misunderstanding must be noted. A put option is not the opposite side of the call option transac-

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tion; put options and call options are each individuaL unilateral. selfsustaining transactions. They are not bilateral transactions, and the writer of a call is not thereby made a holder of a put. The writer's right under either form of option is simply to receive the premium which forms the consideration supporting the rights of the put or call optionee. Even though both the put and the call are separate and distinct unilateral transactions, an understanding of the operation of the call option necessarily simplifies the .explanation of the functions and mechanics of the put option.
The typical put is an option in transferable form entitling the holder to sell (put) certain stock at a set price. Just as in the case of the call option, this set price at which the put may be exercised is commonly known as the striking price and is subject to adjustments for dividends, etc. Again, the period of the typical put is variably within practical market limits, as I have previously discussed with respect to the call option.
In the case of a put. the seller or writer of the put obligates himself, in return for a premium to be paid for the put, to purchase underlying security from the buyer or holder of the put option, at the striking price, any time during the period of the option. subject to the holder's election to exercise. The buyer of the put can hold one of three postures with respect to the underlying security. He can either (I) own the stock or (2) be on the verge of acquiring the stock. In such a case, he is most likely seeking insurance against a decline in the market value of the stock which he desires to hold for investment purposes. In the third instance, he can purchase the put (3) without owning the stock or having any intention to acquire the stock unless and until he is ready to exercise the option to put the stock to the writer at the striking price.
The mechanics with respect to the roles of the endorser and the broker-dealer are similar to those previously discussed with respect to the call option. Again. the endorser is a guarantor of the performance of the writer, i.e., that the writer will be able to pay upon delivery of the stock subject to the put upon the put's exercise. As in the case of the call option, the endorser. as to the holder. is in fact an actual obligor, since the name of the writer and the details of his relationship with the endorser do not appear on the face of the instrument. The role of the broker-dealer in the case of a put option parallels that of the brokerdealer in the case of a call option. The alternatives available to the holder of the put are generally analogous to those available to the holder of the call.
The Criminal Code of Georgia defines and prohibits the establishment and promotion of a lottery. Ga. Code 26-270l(d). 26-2703([), based upon Ga. Laws 1968, pp. 1249. 1317. 1318; 1970, p. 236. The statutory definition of lottery in terms of "chance" is a reference back to the

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settled case law of the state. Russell v. Equitable Loan & Security Co .. 129 Ga. 154 (1907); Equitable Loan & Security Co. v. Waring. 117 Ga. 599 (1903). It is well established by the decisional law that "chance" is not merely the presence of contingencies.

"It was not the mere contingency. but the method of settling the contingency. that introduced the objectionable element of chance. Wherever it is sought to employ the element of chance in any kind of lottery or gambling scheme. show is made of an attempt to displace th exercise of human design and employ in its stead some uncertain scheme or device, which. uninOuenced by any possible design of the parties. may. according to mere blind luck. designate a particular result." Russell v. Equitable Loan & Security Co .. supra at 162.

See also Equitable Loan & Security Co. v. Waring. supra at 658-9. As I understand the cases. under the present and comprehensive Criminal Code. chance may be defined as the use of random methods of settling contingency. It is my opinion that the sale of puts and calls does not constitute the establishment and promotion of a lottery under the laws of this state.
A much more serious and difficult situation involves the potential application of the commercial (option) gambling prohibition of the Criminal Code to transactions of the put and call type. Ga. Code 262703(d) (1968), Ga. Laws 1968, pp. 1249. 1319. as amended by Ga. Laws 1970. pp. 236, 238. This prohibition in pertinent part defines this form of commercial gambling to embrace:

"Contracts to have or give himself or another the option to buy or to sell, or contracts to buy or sell. at a future time, . . . any stock or security of any company, when it is at the time of making such contract intended by both parties thereto that the contract to buy or sell, or the option, whenever exercised, or the contract resulting therefrom, shall be settled, not by the receipt or delivery of such property, but by the payment only of differences in price thereof. . . ."

This difficulty is highlighted by several features of the put and call transactions. Firstly, and as I have previously discussed, calls may be "written naked" by a writer who does not in fact own or intend to acquire, unless the call be exercised, the underlying security. and an analogous situation exists with respect to the purchasers of puts who do not own the underlying security or have any intention of acquiring it unless first he should determine that the put will be exercised.

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Another difficulty surrounds the services performed by the put-andcall brokers dealers as an accommodation for customers in order to make the buying of options more attractive. I refer in particular to the service of repurchasing options from customers at or near the expiration date for the purpose of exercising them. (In addition to the tax advantage, I am aware of the fact that this service permits a speculative customer to avoid certain federally imposed margin requirements.)
After careful consideration and reflection upon the substance of these factors, it is my opinion that they do not per se place put-and-call transactions within the reach of the commercial-gambling prohibition so
long as every exercise of such options in fact results in an actual delivery and receipt of the underlying security. I have been informed that without exception every exercise of a put or call option results in an actual delivery and receipt of the stock named therein, and that every purchase of an option from a customer by a broker-dealer, near the expiration of the option period, for the purpose of exercising the option without exception will result in exercise of the option accompanied by an actual delivery and receipt of the underlying security. In the latter case, the realities of the business would appear to dictate absolutely such an exercise, receipt and delivery involving the purchasing broker-dealer. (I am not unmindful that under certain circumstances federal securities regulation requires such actual receipt and delivery; however, the existence of such regulations is only a backstop for insuring that neither federal nor state law will be violated. The existence of such federal regulation is no guarantee that everything that is labeled a put-and-call will necessarily be lawful.)
It is therefore my opinion that put and call transactions are not unlawful under existing Georgia law so long as it is the intention of the parties that every exercise of such options will be accompanied by an actual sale and delivery of the underlying security as opposed to a settlement between the writer and the holder based only upon the difference in price. The ascertainable and well-formulated practices of the public market as presently understood would appear to insure that the required intention will be present.
I feel constrained to once again point out that this opinion is strictly limited to the recited understanding of the public-market practices and the right and obligations of the parties to put and call transactions in the public market. Any substantive deviation in the public-market practices or any subsequent alternation in Georgia law will necessarily require that this opinion be reassessed and reevaluated in light of such deviations and alterations.

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OPINION 71-116

To: Director, Employees Retirement System of Georgia

June 30, 1971

Re: Employees Retirement System; Service in General Assembly is not "full-time state employment."

This responds to the recent request from Mr. Abe Domain, Deputy Director, Employees Retirement System of Georgia, for my opinion as to whether or not the 1971 Session of the General Assembly intended to include service as a member of the General Assembly within the phrase "full-time state employment" as used in Section 2 of Ga. Laws 1971, p. 96 (Ga. Code Ann. 40-2505.1 ).
I am of the opinion that members of the General Assembly know that their service in the General Assembly is not "full-time" and, hence, that the General Assembly would not have intended the phrase "full-time state employment" to include members of the General Assembly.

0 PI~IO:\' 71-117

To: State Treasurer

June 30, 1971

Re: State Treasurer; draft of warrant on District Attorneys' operating account for needs of Superior Court Judges' operating account.

The situation has arisen in which there is a surplus in the operating account of the District Attorneys, but if a warrant were paid in the full amount of the June 1971 payroll for the Superior Court Judges, a deficit would occur in the operating account of the Superior Court Judges.
As a result of the possible deficit in the appropriations of the Superior Court Judges' operating account, the state will not be able to meet in full the June payroll for the Superior Court Judges. The surplus in the District Attorneys' operating account is adequate to cover the needed funds in the Superior Court Judges' operating account in meeting the June payroll. All warrants of the District Attorneys' operating account have been paid and it appears that unless these funds are not utilized before the end of the fiscal year they will lapse.
In view of the foregoing, you have requested my official opinion on the following question:

Can the State Treasurer, as the statutory paymaster of the various courts, request and pay a warrant drawn on the account of the District Attorneys' operating account to cover the needed funds in

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the operating account of the Superior Court Judges for the final payroll of the fiscal year?

The General Assembly, in the Appropriations Act for the current fiscal year, has authorized the State Treasurer to pay the Superior Court Judges' salaries and expenses as may be authorized by law. Ga. Laws l970,pp. 32,44-45.
The General Assembly of Georgia has established a set amount as the annual salary for each judge of the various superior courts in Georgia and the General Assembly has further provided that this salary fixed shall be paid by the State Treasury in 12 equal monthly installments. This amount is payable for each calendar year until changed by law. Ga. Laws 1969, p. 113 (Ga. Code Ann. 24-2606).
We are informed that the reason for the deficit in the judges' account is that the contributions to the Retirement System were incorrectly computed at the time the appropriation request was made. Therefore, the appropriation request did not include enough money to cover the salaries, expenses and other costs of operating the Superior Courts of the State of Georgia. It thus appears obvious that the General Assembly did not intend to appropriate less than the amount set by law as the annual salary of Superior Court Judges, but rather the deficit is the result of a computation mistake.
For the purposes of the State Budget Act and the various laws concerning appropriations, I believe that the appropriate budget unit in this instance would be the Superior Courts. If this be so, then the amount appropriated to that budget unit is sufficient to pay the salaries of the judges as set by law. Based upon my understanding of the law and upon a consideration of the facts as set out above, it is my official opinion that the State Treasurer as the statutory paymaster may request and pay a warrant drawn on the account of the District Attorneys' operating account to cover the needed funds in the operating account of the Superior Court Judges for the final payroll of the fiscal year.

OPINION 71-118

To: Chairman, Georgia Public Service Commission June 30, 1971

Re: Interstate Commerce; Georgia Public Service Commission may apply safety rules to vehicles in interstate commerce.

You have requested my opinion on the question of whether the Georgia Public Service Commission may apply its motor carrier safety rules to the interstate operations of motor carriers in various "commercial zones" as defined by the Federal Interstate Commerce Commission

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(I.C.C.) and Department of Transportation (D.O.T.) regulations. In particular, you asked whether Rule 3 of the Commission, establishing minimum visual acuity requirements of motor carrier drivers. may be applied to purely interstate operations of such carriers in the defined "commercial zones."
As a general principle, the purely interstate operations of motor carriers are subject to the primary jurisdiction of the I.C.C. or D.O.T. 49 U.S.C. 304. (In 1966, all functions. powers and duties of the I.C.C. with respect to safety regulations were transferred to the newly created D.O.T. by P.L. 89-670,49 U.S.C. 1655).
However, D.O.T., by regulation. has provided that states may adopt safety regulations, even as to purely interstate operations of motor carriers, provided they are not less stringent than federal regulations, 49 C. F.R. 390.30. Furthermore, D.O.T. has adopted a rule requiring that any interstate motor carrier under its jurisdiction "must be operated in accordance with the laws, ordinances, and regulations of the [state] in which it is being operated." 49 C.F.R. 392.2. In addition, the United States Supreme Court has held that even though the federal regulatory agency has prescribed minimum safety qualifications for drivers, the states, in the exercise of their police power, may require additional safety precautions, not inconsistent or in conflict with federal regulations. Buck v. California, 343 U.S. 99, 102, 96 L.Ed. 775, 780 (1952); see also annotation, 97 L.Ed. 176, and Dean v. Public Service Commission, 193 Ga. 401, 402-03 (1942) (dicta), indicating that the Georgia Public Service Commission safety rules may be applied to the interstate operations of motor carriers.
It so happens that with respect to "commercial zones," as defined by federal regulations, the D.O.T. safety regulations, including visual requirements, do not apply. 49 C.F.R. 390.33. Therefore this absence of certain federal safety regulations with respect to "commercial zones," coupled with the specific policy of D.O.T. that state regulations shall apply if not less stringent than federal regulations, not to mention the inherent police power of the State of Georgia, indicates to me that the Georgia Public Service Commission may apply its safety rules and regulations, including Rule 3 pertaining to visual requirements, to the purely interstate operations of motor carriers within the "commercial zones" as defined by federal regulations.

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OPINION 71-119

To: State Revenue Commissioner

June 30, 1971

Re: Banks and banking; determination of surplus for tax purposes.

This in reply to your letter dated June 24, 1971, requesting an official opinion as to how banks should treat their reserve accounts in determining the value of their shares of stock for ad valorem tax purposes under Ga. Code 92-2406, as amended by Ga. Laws 1935, p. II; 1955, p. 450; 1959, p. 327; 1966, p. 284. More specifically, you want to know which type of reserves should be treated as a part of surplus and which should not. Your letter indicates that the banks have not been consistent in their treatment of their reserves.
In answering your question, it should, first, be noted that prior to its amendment in 1966 (Ga. Laws 1966. p. 284), Ga. Code 92-2406 imposed a tax upon the shares of the stockholders of banks, both national and state. measured by the full market value of such shares. While the amended version continues to speak of taxing the shares at "their full market value," the phrase "their full market value" is qualified by the clause "which is hereby fixed, and shall be determined by adding together the amount of the capital, surplus, and undivided profits accounts of the bank." By using the language "capital, surplus, and undivided profits accounts," the legislature, in my opinion, intended to make the banks net worth or proprietorship, as disclosed by its books of account, the measure of the tax. In other words, it substituted book value for market value. See Amoskeag Savings Bank v. Purdy, 231 U.S. 373, 387, 58 L.Ed. 274, 34 Sup. Ct. 114 (1913); National Bank of N.Y. v. Cantor, Ill Misc. Rep. 420, 183 N. Y.S. 443 (1920), affd 195 App. Div. 890, 185 N.Y.S. 949. affd 231 N.Y. 514. 132 N.E. 869 (1921). By specifying the capital, surplus, and undivided profits accounts, the legislature could not have meant that the taxing authorities would be confined to those three accounts and to no others, for, if that were true, the government would be at the mercy of the taxpayers, since the tax could be avoided or minimized by the simple expedient of changing the name of the accounts or transferring a part of one or more to some reserve account. Even tax statutes, which are generally construed in favor of the taxpayer and against the government, should be so construed as to carry into effect the obvious intent of the legislature rather than to defeat that intent by too strict adherence to the letter. Twentieth Century-Fox Film Corp. v. Phillips, 76 Ga. App. 825 (2) (1948).
However, in determining whether a particular reserve account is, in substance, a part of the net worth or proprietorship of the bank, one must keep in mind the fact that, according to generally accepted princi-

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p1es of accounting, reserve accounts fall into one of two broad categories-one category which is frequently referred to as "valuation accounts" and another which is sometimes described as "surplus reserves." Professor Howard S. Noble, former Dean of the College of Business Administration, University of California, Los Angeles, in his text book on accounting, Accounting Principles, Fourth Edition, p. 420, points out the distinction as follows:

"Amounts set aside from earned surplus as reserves for special purposes should not be confused with reserves for depreciation and for bad debts. A surplus reserve represents a part of the proprietorship that is set aside so that it will not be distributed as dividends. Such reserve may be only temporary; in a later period it may be transferred back to unappropriated surplus and thus be made available for dividends. The equity of the stockholders is not reduced by the creation of the surplus reserve. On the other hand, the reserves for depreciation and for bad debts represent deductions from the values of the corresonding assets and at the same time result in deductions from proprietorship."

Therefore, it is my opinion that those reserves which are "valuation reserves" are not a part of a bank's surplus and should not be treated as such in determining the value of its shares of stock under Ga. Code 92-2406 but that those reserve accounts generally described as "surplus reserves" should be so treated.
To the extent unofficial opinion 68-255 (Ops. Att'y Gen. 1968, p. 298) conflicts with this opinion, the unofficial opinion is superseded.

OPINIOJ\' 71-120

To: Chairman, State Board of Pardons and Paroles

July l, 1971

Re: Prisons and prisoners; responsibility for medical expenses of parolee injured in escape attempt.

I write in response to your request of June 11, 1971, for my opinion as to whether the Board of Pardons and Paroles is liable for payment of medical expenses of a parolee injured in an escape attempt from county law enforcement officials prior to revocation of parole.
As I understand the facts, a parolee of the Board of Pardons and Paroles was arrested for commission of state crimes and placed in a county jail. The parolee escaped from the county jail and was wounded during recapture. Subsequent to this, a board member issued a warrant

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for the arrest of the parolee, who was hospitalized at the time. While hospitalized, the parolee signed a waiver of formal hearing before the board, and the board revoked his parole, and ordered him returned to the custody of the State Board of Corrections.
From the summary of facts, it is apparent that the parolee was arrested by and was in custody of county authorities. He escaped while in the custody of county authorities while he was a prisoner in the county jail. Ga. Code 77-llO (Cobb, 858) provides:

"Duties of the sheriff.--lt shall be the duty of the sheriff~
* * *
"To furnish prisoners with medical aid, heat, and blankets, to be reimbursed, if necessary, from the county treasury; and to suffer a penalty for neglect, as prescribed in this Code. . . ."

The referenced Code section clearly places the medical expenses herein involved on the county having custody of the prisoner. The parolee involved did not become a state prisoner until his parole was officially revoked and he was returned to the physical custody of the State Board of Corrections. Prior to that date, the parolee was a prisoner of the county having physical custody, and, accordingly, that county is responsible for all medical expenses which occurred while he remained in physical custody of the county.
In consideration of the above, it is my official opinion that the State Board of Pardons and Paroles is not authorized to expend funds for the payment of medical expenses of a parolee injured in an escape from custody of county law enforcement officials prior to revocation of parole.

OPINION 71-121

To: Director, Department of Defense

July 9, 1971

Re: Civil defense; the Stone Mountain Memorial Association cannot properly be construed to be a "state agency" for the purposes of the Georgia Civil Defense Act of 1951.

This is in reply to your letter of June 1st in which you state that the Civil Defense Division desires to work with the Stone Mountain Memorial Association in developing emergency preparedness procedures and that your authority to do so depends upon whether or not that Association could be considered to be a "state agency." While your letter does

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not specifically so state, it seems apparent that the context in which you present your question is the exercise of your responsibilities under the "Georgia Civil Defense Act of 1951," Ga. Laws 1951, p. 224, as amended (Ga. Code Ann. Chapter 86-18 ). This Act contemplates, among other things,

"a comprehensive plan and program for the civil defense of this State ...", (Ga. Code Ann. 86-1806(2)).

and various portions of the Act refer to the roles to be played by "state agencies" [e.g., Ga. Code Ann. 86-1806(5) and (7); 86-1808).
Although I have been unable to find any decision of the Supreme Court of Georgia dealing with the question of whether the Stone Mountain Memorial Association could be construed to be a "state agency" for the purpose of the "Georgia Civil Defense Act of 1951," it does appear that such a construction would be highly questionable under decisions of the Supreme Court which although arising in different contexts, have broadly stated:

"The Authority is not 'the State or a part of the State, or any agency of the State'." Sheffield v. State School Building Authority, 208 Ga. 575, 583 (1952).

See also, e.g., McLucas v. State Bridge Building Authority, 210 Ga. I, 6 (1953 ). In any event, in view of the fact that the powers of officers of the State of Georgia are limited to those which the law clearly confers upon them, Ga. Code Ann. 89-903; Wood v. Puritan Chemical Co., 178 Ga. 229(2) (1934 ), and since the very least that can be said is that no clear authorization exists for the Director of the Civil Defense Division of the State Department of Defense to deal with "state authorities" as though they were "state agencies." I am regretfully forced to conclude that you cannot properly consider the former to be the latter. The remedy, of course, would be legislative action substituting the phrase "state agencies and authorities" in place of the term "state agencies" in all applicable portions of the Civil Defense Act. See, e.g., Ga. Code Ann. 86-1806(5) and (7); 86-1808.

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OPINION 71-122

To: Chairman, Georgia Real Estate Commission

July9, 1971

Re: "Blockbusting"; duties of Georgia Real Estate Commission.

In 1970 a law was enacted establishing as unlawful the practice of "blockbusting" by real estate salesmen and brokers. Ga. Laws 1970, p. 721 (Ga. Code Ann. 106-901). You have inquired concerning the responsibility of the Georgia Real Estate Commission under this law and the effect this law will have upon a Commission rule which also prohibits "blockbusting" by real estate salesmen and brokers.
The responsibility of the Real Estate Commission under this recent legislation is limited inasmuch as it provides no enforcement or investigatory powers to the Commission. The primary responsibility of the commission under this law is to revoke a salesman's or broker's license after he has been found guilty of its violation. Ga. Laws 1970, p. 721 (Ga. Code Ann. 106-9913). However, this is not to indicate that the passage of the anti-"blockbusting" statute relegates the Real Estate Commission to a passive role in regard to "blockbusting." To the contrary it should provide an impetus for more ardent enforcement of the Commission's own rules relative to this matter.
The Real Estate Commission is charged with the responsibility of protecting the interest of the public by ascertaining that those individuals to whom real estate licenses are issued are trustworthy and competent and bear a good reputation for honesty and fair dealing. Ga. Code 84-1409 (Ga. Laws 1965, p. 629), as amended. The Commission is also vested with the power to promulgate rules and regulations to carry out its duties relative to he issuance and maintenance of these licenses. Pursuant to this authority, a rule was passed by the Commission in July of 1969 which forbids "blockbusting." Rules of the Georgia Real Estate Commission, 520-3-.07.
The fact that the General Assembly passed a criminal law similar to the rule which was already in effect does not alter the duties of the Commission relative to this rule. Repeals by implication are not favored by law, and a subsequent statute repeals prior legislation only when they are clearly contradictory. Mayor and City of Athens v. Wansley, eta!., 210 Ga. 174, 78 S. E.2d 478 (1953 ). The latter criminal statute does not repeal or alter the statute by which authority the commission promulgated this rule forbidding "blockbusting," nor does it repeal the rule. Therefore, the duty and responsibility of enforcing this rule remain with the Commission. Violators of this rule are to be accorded treatment commensurate with the policy and procedures followed by the Commis-

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sion in dealing with violators of all the rules of the Georgia Real Estate Commission.
Although the duties of the Commission under the 1970 law are limited, it is useful to the Commission as an expression of legislative intent regarding minimum standards for the profession. The Commission has been directed by the legislature to revoke and suspend licenses after the Commission has reached the determination that an individual has committed certain acts or has demonstrated unworthiness or incompetency to act as real estate broker or salesman. Ga. Code 84-1417, 84-1418, as amended. This recent expression of public policy in the form of the 1970 legislation is a guide by which the Commission can determine one's
competency or trustworthiness to participate in this profession. Therefore, it is my opinion that the Real Estate Commission has the
duty to enforce its rule forbidding "blockbusting," and the 1970 legislative enactment regarding "blockbusting" reenforces the authority of the Commission to discipline violators of this rule.

OPINION 71-123

To: Director, Georgia Department of Public Health

July9. 1971

Re: Mass Gathering Law; requisites for application.

This is in response to your letter of July 7, 1971, requesting my opinion as to whether the 1971 Mass Gathering Law. Ga. Laws 1971, p. 252, officially codified as Ga. Code Chapter 88-12A. applies to the Can-Am race scheduled for the upcoming weekend of July 9, 10 and ll.
Your letter indicates that the race is to take place in Hall County, Georgia, and that the schedule of activities calls for six hours of practice on Friday. July 9, nine hours of practice and qualifying on Saturday, July 10, and an entire afternoon of racing on Sunday, July ll. Also. you inform that experience at past races indicates that the maximum attendance will be in the neighborhood of 25,000 during the period of the race, but that in all probability, the crowd will drop to around 1,000 persons between the race and the various practices and quaifying time-trials.
The 1971 Mass Gathering Law, Ga. Laws l97L pp. 252-8, Ga. Code Ann. Chapter 88-12A, defines a mass gathering, in essence, as an event likely to attract 5,000 or more persons and to continue for 15 or more consecutive hours. Ga. Code 88-l20la. This definition seems susceptible of two interpretations. Either a mass gathering under this statute is (l) an event likely to attract 5,000 or more persons for 15 or more consecutive hours or (2) an event which is likely to last 15 or more

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consecutive hours during which at some point there will also be 5,000 or more persons in attendance.
A primary rule of statutory construction mandates that the intent of the General Assembly be ascertained in every attempt to interpret a statute. A court should adopt that construction which gives effect to all the statute's provisions and preserves the general legislative scheme. See Williams v. General Finance Corporation, 98 Ga. App. 31 (1958).
In looking at the entire Mass Gathering Law and attempting to determine which construction to give to the definition of a mass gathering, a key or clue can be found in the caption of the Act which states " . . . [A mass gathering is an event] likely to attract 5,000 people or more for 15 consecutive hours or more . . . ." A mass gathering then, to fall under the provisions of this Act, would have to be likely to last 15 or more consecutive hours with 5,000 or more persons attracted to the gathering for the 15 or more hours.
Based upon your information and the foregoing, it is my official opinion that the Can-Am race is composed of three events none of which fall under and make the race subject to the provisions of the 1971 Mass Gathering Law.

OPINION 71-124

To: Secretary of State

July 12, 1971

Re: Public officers and employees; sales to political subdivisions.

You inquired whether the Criminal Code of Georgia prohibits a State legislator from selling personal property to the county for which he serves as Legislator.
The Criminal Code of Georgia specifically prohibits the sale of personal property by public officers and employees to the governmental entity of which they are officers or employees. Ga. Laws 1968, pp. 1249, 1307 (Ga. Code Ann. 26-2306). Subsection (a) of that Jaw prohibits state officers and employees from selling to the state, and subsection (b) prohibits officers and employees of political subdivisions of the state from selling to those particular subdivisions. There is no prohibition in the Code of a state officer or employee selling to a political subdivision of the state, nor is there any prohibition of an officer or employee of a political subdivision selling personal property to the state.
In a prior opinion, it was determined that a legislator is an officer of the state and thereby prohibited from selling personal property to the state. Op. Att'y Gen. 69-444.
In light of the above, a legislator is not prevented from selling personal property to a political subdivision of the state by the Criminal Code of Georgia.

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OPINION 71-125

To: Director, State Highway Department

July 16, 1971

Re: Highways; expenditure of State Highway funds for reconstruction of railroad overpasses on state-aid roads; expenditures by State Highway Authority.

This is in reply to a letter of recent date from Mr. Emory C. Parrish, Executive Assistant Director, requesting my opinion on the question of whether or not the State Highway Department may expend its funds for the reconstruction of existing railroad overpasses on state-aid roads. It is my official opinion that the State Highway Department may expend its funds for the reconstruction of these overpasses under the circumstances as outlined in the following discussion.
Mr. Parrish's letter relates that there are several overpass structures on the State Highway System which the department has determined to be obsolete, inadequate, and unsafe to accommodate current highway traffic, or which have become so costly to maintain as to warrant replacement or reconstruction. These structures carry highway traffic over various railroads operating in this state, and are presently maintained by the State Highway Department.
The Grade Crossing Elimination Law, contained in Chapter 95-19, Ga. Code Ann. (Ga. Laws 1927, p. 300 et seq.) resolves the question pertaining to those overpasses built prior to the approval of that Act, August 23. 1927. Ga. Code Ann. 95-1908 provides that "[w]henever in the judgment of the Department exercised in respect of a State road . . . an existing underpass or overpass, constructed prior to the approval of this Chapter. is unsafe or inadequate to serve the traffic for which it was constructed, the Department may proceed to bring about the improvement or betterment of the existing structure." This Act then provides that the division of the cost of reconstruction will be in accordance with Ga. Code Ann. 95-1905 which provides that the total cost shall be divided. one-half by the department and one-half by the railroad or railroads involved.
For those structures built after August 23, 1927, I find that the Grade Crossing Elimination Law makes no specific provision for their reconstruction or improvement. This being the case. the State Highway Department must treat these overpasses as it would any other portion of the state-aid system, and expend its funds in accordance with the constitution and laws of this state providing for the state-aid system of roads. See Art. Vl L Sec. IL Par. I (Code Ann. 2-5501) and Art. VII. Sec. IX. Par. IV (Code Ann. 2-6204) of the Georgia Constitution; Ga.

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Code Ann. 95-1504, 95-1609 (Ga. Laws 1950, p. 62, as amended), 95-1701 and 95-1714.
The above discussion would also answer the second question posed by Mr. Parrish' letter concerning whether the State Highway Department can expend its funds to construct new overpasses on the same or new locations for the purpose of replacing the existing inadequate overpasses.
Mr. Parrish's letter also poses the question of whether the funds of the Georgia Highway Authority may be expended in reconstructing these overpasses. The answer to this question is also in the affirmative, assuming, of course, that all of the provisions of the Georgia Highway Authority Act (Ga. Laws 1967, p. 385 et seq., Ga. Code Ann. Chapter 95-23, as amended) are followed.

OPINION 71-126

To: State Superintendent of Schools

July 16, 1971

Re: Collection of delinquent teachers' scholarship payments; disposal of funds.

This is in reply to your letter dated July 8, 1971, requesting my official opinion as to whether funds collected from delinquent accounts in the Georgia State Teachers Scholarship Program may be included in making future scholarship commitments or whether such funds must be channeled directly to the State Treasurer.
Article VIL Section II, Paragraph III of the Ga. Constitution, Ga. Code Ann. 2-5503, provides:

"All money collected from taxes, fees and assessments for State purposes, as authorized by revenue measures enacted by the General Assembly, shall be paid into the General Fund of the State Treasury and shall be appropriated therefrom, as required by this Constitution, for the purposes set out in this section and for these purposes only."

Article VII, Section IX, Paragraph IV of the Ga. Constitution, Ga. Code Ann. 2-6204, provides:

the appropriation for each department, officer, bureau, board, commission, agency or institution for which appropriation is made shall be for a specific sum of money, and no appropriation shall allocate to any object, the proceeds of any particular tax, or fund or a part or percentage thereof . . ."

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Article I II, Section VI I, Paragraph XI of the Ga. Constitution, Ga. CodeAnn. 2-1911,provides:

"No money shall be drawn from the treasury except by appropriation made at law."

While the above constitutional provisions concerning collections and appropriations do not specifically provide that money recovered for contractural violations or delinquent accounts be paid into the Treasury, a previous Attorney General's opinion states that such money must be paid into the State Treasury, and not ear-marked. See Op. Att'y Gen. 1954-56, p. 14.
The Supreme Court of Georgia has ruled that legislation attempting to apply rentals received from a railroad to the benefit of the State Ports Authority violated the Constitution. State Ports Authority v. A mall, 201 Ga. 713 (1947). Attorney General opinions have held these constitutional requirements generally prohibit state organizations from collecting money and using that money for their own programs. For example, it has been held that fees received by a state board may not be used by that board for their own purposes, Op. Att'y Gen. 1948-49, p. 631; that funds received by the Department of Health for the sale of mattress stamps must be paid into the General Fund and may not be used for the Mattress Stamp Program, Op. Att'y Gen. 1952-53, p. 280; that penalties collected by the Commissioner of Agriculture must be paid into the treasury to be used as the legislature sees fit, Op. Att'y Gen. 1954-56, p. 14; and that funds deducted from the salary of work release prisoners may not be spent by the Board of Corrections, Op. Att'y Gen. 69-363.
Therefore, refunds you seek to collect could be used by the State Board of Education only if there were specific authority in the Constitution allowing such use. Article VII, Section I, Paragraph I I [8] of the Ga. Constitution, Ga. Code Ann. 2-5402(8), which furnishes the authority for the State Board of Education to grant scholarships for future teachers and to establish terms and conditions for the scholarship program also provides that the board has the duty to pass on applications, regulate contracts and to grant and control funds appropriated for this purpose. The Constitution further provides that the General Assembly shall have the authority to appropriate funds to carry out the program. This constitutional authority does not contain specific authority to collect and reuse delinquent accounts for scholarships. Rather, the Constitution provides that the money to be used in the program must come from appropriations from the legislature.
It is my official opinion that the above-cited constitutional provisions require that any money which is collected by the State Board of Educa-

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tion from delinquent state teachers' scholarships must be paid into the General Fund of the State Treasury and cannot be used in making future scholarship commitments by the State Department of Education.

OPINION 71-127

To: Director, State Game and Fish Commission

July 20, 1971

Re: Hunting and fishing licenses; widows of deceased veterans.

This is in response to your recent letter requesting my official opinion on the question of whether the widow of a deceased veteran is entitled to a free hunting or fishing license.
The answer to your question is contained in Ga. Laws 1968, pp. 497, 512-13, Ga. Code Ann. 45-205, which states in pertinent part:

" . . . Any veteran, who is a legal resident of Georgia, who shall file with the commission a letter from the Veterans Administration stating that he is a totally disabled American veteran shall be issued a permanent honorary fishing license which shall entitle such veteran to fish within this State without the payment of any fee what-
soever.. "
* * *
" ... It shall be unlawful for any person having an honorary fishing license or hunting license to permit the use of same by any other person. It shall also be unlawful for any person to use an honorary hunting and fishing license who is not entitled to the same . . . ."

In view of the foregoing, it is my official opinion that the widow of a deceased veteran is not entitled to a free hunting or fishing license. Of course, if she were 65 years or age or older and a legal resident of Georgia, she would qualify under this same Code section for an honorary hunting and fishing license in her own name.

OPINION 71-128

To: Director, State and Game and Fish Commission July 20, 1971

Re: State Game and Fish Commission; contributions to private organizations prohibited.

This is in response to your recent letter whereby you request my opinion on whether the Game and Fish Commission could make a con-

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tribution to Ducks Unlimited, Inc., and whether the General Assembly could appropriate or specify funds for an organization such as Ducks Unlimited. From your letter I understand that Ducks Unlimited is a private organization apparently not purely charitable in nature.
Art. VII. Sec. I. Par. II of the Ga. Constitution of 1945 [Ga. Code Ann. 2-5402(1 )] seems to expressly prohibit such a contribution or appropriation. It provides in relevant part:

"The General Assembly shall not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association...."

And, of course, unless the General Assembly were to appropriate the state funds to be used, they could not be withdrawn from the State Treasury. [See Ga. Const. of 1945, Art. III, Sec. VII, Par. XI (Ga. Code Ann. 2-1911).]
It is quite possible that the General Assembly could tax for, and appropriate funds for,"the same purposes as may be intended by Ducks Unlimited (e.g., recreation, conservation of the natural resources of the state, etc.). [See Ga. Const. of 1945, Art. VII. Sec. II. Par. I, III (Ga. Code Ann. 2-.5501, 2-5503) and Op. Att'y Gen. 67-189.] However, this does not mean the General Assembly may grant a donation or gratuity, in violation of the state constitutional prohibition, supra, in order to effectuate the purposes for which it is authorized to levy taxes. The monies would still have to be utilized, and the purposes effectuated, in a manner consistent with the prohibition against donations and gratuities.
Further, an opinion atOp. Att'y Gen. 69-203 states, in essence, that neither the Governor nor the State Department of Industry and Trade could contribute state funds to Tallulah Productions, Inc., to build an amphitheater on property leased from Georgia Power Company, despite the fact that this use of state tax money would probably promote tourism, an activity apparently sanctioned by Art. VII, Sec. II, Par. I of the Ga. Constitution of 1945 as a proper purpose for levying taxes. Similarly, the Department of Industry and Trade could not reimburse a "dairy festival" for expenses incurred "in promoting the sale of Georgia dairy products. . . ." Op. Att'y Gen. 68-76. Even were a private theater legally designated the "official" state theater, use of state funds in its operatons would be prohibited. Op. Att'y Gen. 69-329.
Interpreting the Georgia constitutional prohibition of gratuities, the United States Supreme Court held that a conveyance by the state to a privately-owned railroad of a fee interest in state property, expected to result in a great public benefit to the state-owned railroad,

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. was not a gratuity within the meaning of the State Constitution. A conveyance in aid of a public purpose from which great benefits are expected is not within the class of evils that the C onstitution intended to prevent, and in our opinion is not within the meaning of the word as it naturally would be understood." Georgia v. Trustees of the Cincinnati Southern Railway, 248 U.S. 26, 2930(1918).

As noted before, a "public benefit" might arise from the use of state funds by Ducks Unlimited. However, the emphasis of the court in the Cincinnati Southern Railway case, supra, seems to be on "great" benefit as opposed to indirect or incidental benefits.
Op. Att'y Gen. 65-31 held that the Board of Examiners of Nurses for Georgia could not include a questionnaire from a private organization in the same envelopes in which the board mailed annual license renewal applications to nurses in the state. That opinion quoted from 42 Am. Jur. 758 to the effect that " . . . Incidental advantage to the public or to the State, which results from the promotion of private interests ... does not justify their aid by the use of public money." Also, prison labor can be used for work on private property in situations where the "sole benefit flows to the state. . . ."See Op. Att'y Gen. 69-158. The use of prison labor (trainees at the Georgia Training and Development Center) to work on private automobiles (to gain practical experience as a part of training) is prohibited as a gratuity since it is not a "public use."
Based on the foregoing, it is my official opinion that the State Game and Fish Commission cannot make a contribution to Ducks Unlimited nor can the General Assembly appropriate or specify funds for an organization such as Ducks Unlimited.

OPINION 71-129

To: Chairman, State Medical Education Board

July 20, 1971

Re: Medical Scholarships; proration for accelerated program.

In 1952 Article VII, Section I, Paragraph II (Ga. Code Ann. 25402(5 ), 32-300 I et seq.) of the Georgia Constitution of 1945 was amended to provide scholarships to qualified medical students attending accredited, four-year medical colleges. This amendment has been amended itself several times, the most recent being in 1968. Ga. Laws 1968, p. 1686. You have inquired whether these scholarships can be prorated over a three year period thereby allowing those students engaged in a special accelerated program to enjoy the full benefits of the scholarship. It is my opinion that they can be so prorated.

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The applicable portion of the most recent amendment contains the following language:
"Applicants who are granted loans or scholarships by the Board shall receive a loan or scholarship not to exceed $10,000 to any one applicant to be paid at such time and in such manner as may be determined by the Board with which to defray the tuition and other expenses of any such applicant in any responsible, accepted and accredited four-year medical college or school in the United States. The loans and scholarships herein provided shall not exceed the sums herein stated, but they may be prorated in such manner as to pay to the medical college or school to which any applicant is admitted such funds as are required by that college or school, and the balance to be paid direct to the applicant; all of which shall be under such terms and conditions as may be provided under rules and regulations of the Board." Ga. Laws 1968, pp. 1686, 1688 (Ga. Code Ann. 32-3005).

There is no indication as to the time and manner in which these scholarships are to be paid to the recipients except that the board has the authority to make such a determination. Based on this language, the board can provide for payments for any sum and at any interval it deems proper so long as the total does not exceed $10,000.
The provisions that the applicant must attend a four-year medical college does not set forth the number of years over which he is to receive his scholarship payments. This is simply a limiting factor as to the qualifications of the school that the recipient attends. The instigation of a three-year accelerated program does not alter the four-year status of a medical college.

OPINION 71-130

To: Director, State Game and Fish Commission

July21,1971

Re: A discussion of which residents and nonresidents are required to have hunting and fishing licenses and trout stamps.

This is in response to your recent letter wherein you ask my official opinion on the following questons:

(1) Which residents of Georgia are required to have hunting and fishing licenses and trout stamps?
(2) What are the requirements for the holding of hunting and fishing licenses and trout stamps by nonresidents of Georgia?

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(3) Are nonresidents of Georgia who own land in Georgia required to hold the various licenses?

Your questions will be answered in the order posed. The answers to all of your questions are contained in Ga. Laws 1968, pp. 497. 512-13 (Ga. Code Ann. 45-205, as amended) and Ga. Laws 1971. pp. 38-42 (Ga. Code Ann. 45-203).
I. A review of the above Jaws shows that it is unlawful for any resident of Georgia who is 16 years of age or older to hunt, fish or trap without a proper resident license. except on premises owned by him or his immediate family. Also. the law requires that the person hunting. fishing or trapping in Georgia carry the required license upon his person at all times. again except on premises owned by him or his immediate family. In addition. every Georgia resident 16 years old or older who fishes or possesses mountain trout must have in his possession a trout stamp attached to his sport fishing license with his name signed across the face of the stamp. The same is true with regard to the hunting of big game. All residents of Georgia 16 years of age or older must have in their possession a big game license, in addition to a hunting license, before hunting or possessing big game.
2. All nonresidents of Georgia. 16 years of age or older. must have a proper nonresident license to hunt. fish or trap in Georgia and he must carry the required license on his person while hunting. fishing or trapping. However, it is interesting to note here that every nonresident of Georgia. regardless of age, must have a trout stamp to fish or possess mountain trout and this stamp, as in the case of residents. must be attached to the sport fishing license with the name of the holder signed across the face of the stamp. The same is true with regard to big game. Every nonresident, regardless of age, who hunts or possesses big game must. in addition to a hunting license. have in his possession a big game license.
The above presents an interesting situation. Apparently, under the laws as above discussed, a nonresident under the age of 16 would not normally be required to have a fishing license to fish in this state. However. in order to fish for mountain trout he must have. in addition to a fishing license, a trout stamp. This would mean that nonresidents under 16 years of age could fish for other than mountain trout with no license but. when fishing for mountain trout, would have to have both a sport fishing license and a trout stamp. The same peculiar situation is true with regard to big game hunting. A nonresident under the age of 16 would not have to have a license to hunt small game. However, when hunting big game. a nonresident must have a hunting license and a big game license.
3. In answer to your final question, it would appear that under the

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laws discussed, supra. a nonresident who owns land in Georgia would, nevertheless, be required to hold the various nonresident licenses when hunting, fishing or trapping on his own land in Georgia.
Please remember that this opinion does not deal with the specific requirements in Georgia concerning honorary fishing and hunting licenses. The holders of these honorary licenses, as you know, are accorded certain preferential treatment not relevant to the questions you posed in your letter.

OPINION 71-131

To: Director, Georgia Department of Public Health

July 21, 1971

Re: Mentally ill persons; hospitalization procedures.

This is in response to your recent letter wherein you ask for my official opinion on the following questions:

(I) Since Ga. Code Ann. 88-505.2(a) and (b) sets out two methods in which a person may initiate a proceeding for a courtordered evaluation of a patient alleged to be mentally ill, is it probable that one method was intended to be accorded preference and used in most cases to initiate these court-ordered evaluations?
(2) Are "detention orders" issued under the authority of Ga. Code Ann. 49-612 or Ga. Code Ann. 88-508 ofthe "Georgia Health Code" as enacted by Ga. Laws 1964, pp. 499, 539, valid and based on legal authority?

For the purposes of this opinion. I will answer your questions in the order posed.
1. Georgia Code Annotated 88-505.2, based upon Ga. Laws 1969, pp. 505, 522, specifies two methods in which any person may apply for a court-order evaluation of an alleged mentally ill person. He may (1) file an application. executed under oath, with the County Health Department alleging that a patient is mentally ill and is either a danger to himself or others or is incapable of caring for his physical health and safety; or (2) file a petition with the Court of Ordinary, executed under oath, alleging that a patient within the county is mentally ill and is either a danger to himself or others or is incapable of caring for his physical health and safety. This section goes on to delineate certain additional requirements of the application or petition not relevant to this inquiry.
A fair reading of this statute indicates to me that neither method has preference over the other. If the General Assembly had so intended, I

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feel certain they would have specified that preference. Instead, the referenced section provides two methods for court-ordered evaluation of patients alleged to be mentally ill, either of which, apparently, can be used depending on the method chosen by the initiator of the proceedings. A statute couched in plain and unambiguous language needs no interpretation. See Central of Georgia Railroad Company v. Tucker, 99 Ga. App. 52 (1959).
2. Georgia Laws 1969, pp. 505-45 (Ga. Code Chapter 88-5), entitled Hospitalization of Mentally Ill Persons, comprehensively revised the laws relating to the hospitalization and release of mentally ill persons. Enacted as Ga. Code Chapter 88-5, this law specifically repeals the previous Ga. Code Chapter 88-5 and Ga. Code Chapter 49-6, among others, removing these Chapters from the laws of this state. Therefore, it would follow that any orders issued now pursuant to, or under the authority of, these repealed Code Chapters would be void and of no effect. See Lanham and Sons Co. v. City of Rome, eta/., 136 Ga. 398 (1911).

OPINION 71-132

To: Director, Georgia Department of Public Health

July21, 1971

Re: County boards of health, contracts for home health care services; Op. Att'y Gen. U70-215 adopted as official.

This is in response to your letter of June 23, 1971, asking that I refer to an unofficial opinion of November 18, 1970 [Op. Att'y Gen. U70215] to Dr. Elton S. Osborne, Jr., and adopt it as my official opinion.
I have referred to the above opinion, reviewed it and hereby adopt same as of this date as my official opinion to you as Director of the Georgia Department of Public Health. For your information, I have attached a copy of the referenced unofficial opinion. As you know, it states in essence that county boards of health have the authority to make contracts and establish and accept fees for the purpose of providing home health care services, including the service of physical therapy, for the chronically ill and aged.

Complete Text of Unofficial Opinion U70-215 As Officially Adopted.

November 18, 1970

Your letter of October 26, 1970, requested an opinion on the question of whether county boards of health have the authority to make contracts

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and establish fees for the purpose of providing physical therapy services to the ill and aged.
According to your letter. the pertinent facts are that there is a shortage of physical therapists in the various health districts. and therefore. it would be desirable to have the county boards of health contract for these services and charg1 fees to defray the salary of such employees. You state that if such an arrangement is authorized under the 1964 Health Code, the local boards would assure equal treatment for those who are financially able to pay as well as those who are not. These services would be rendered either in the home of the patient or at a center providing care for ambulatory patients.
The answer to your inquiry is contained in Ga. Laws 1964. pp. 499. 513, as amended by Ga. Laws 1966. p. 380. and officially codified as Ga. Code Ann. 88-204(f) which provides as follows:

"The county board of health is hereby empowered to: (f) Make contracts and establish fees for the purpose of .
providing. under direction and supervision of attending physicians. home health care services for the chronically ill and aged for such period of time that such home health care services are not availa-
ble." (Emphasis added.)

This section goes on to provide that those persons unable to pay all or any part of the fee shall be afforded the same services as provided for fee patients.
While the Health Code does not define "home health care services," it is persuasive to note that under Title XVI II of the Social Security Act. i.e .. Public Law 89-97 1861 (m). such term includes "physical. occupational, or speech therapy" provided on a visiting basis in a place of residence used as such individual's home or in a hospital. extended care facility, or rehabilitation center on an outpatient basis.
Therefore. it is my unofficial opinion. based on the foregoing. that county boards of health have the authority to make contracts and establish and accept fees for the purpose of providing home health care services. including the service of physical therapy. for the chronically ill and aged.

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OPINION 71-133

To: Comptroller General

July22, 1971

Re: Physicians; when osteopaths and podiatrists considered as, under insurance laws.

Your recent letter requested an opinion on the question of whether or not osteopaths and podiatrists are "licensed doctors of medicine" or "doctors of medicine licensed to practice medicine and surgery in this State" as those terms are used in Ga. Code Ann. 56-1708 (Ga. Laws 1960, pp. 289, 573); 56-1802(7) (Ga. Laws 1960, pp. 289, 577); and 561811 (Ga. Laws 1960, pp. 289, 582) of the Georgia Insurance Code.
According to your letter, the question has arisen as to the legal authority of hospital service nonprofit corporations (Blue Cross) and nonprofit medical service corporations (Blue Shield) to contract for and make payments to osteopaths and podiatrists for services rendered to subscribers or members of these corporations.
The answer to your inquiry as to osteopaths can be found in Ga. Code Ann. Chapter 84-9, Medical Practitioners (Ga. Laws 1913, p. 101, as amended, particularly by Ga. Laws 1970, p. 301). The amendments to this Chapter which became effective March 16, 1970 provide two methods whereby persons may be licensed to practice osteopathy in this state. Georgia Code Ann. 84-907 provides that any person wishing to obtain the right to practice medicine in this state, who has not heretofore been registered by the State Board of Examiners in Osteopathy, shall, before it shall be lawful for him to practice medicine in this state, make application to the Composite State Board of Medical Examiners and obtain from the board a license to do so.
Georgia Code Ann. 84-907.1 provides that any person who holds a valid license to practice osteopathy in this state as of March 16, 1970, shall be entitled, as a matter of right, to obtain a full practice license under this Chapter upon exhibiting satisfactory evidence to the board, prior to January 1, 1972, of completion of a postgraduate program approved for such purpose by the board and after examination or evaluation by the board of such person. These sections provide for one license to practice medicine for those holding M.D. or D.O. degrees. This type of license is called a full practice license.
Georgia Code Ann. 84-906 provides that nothing in Chapter 84-9 shall be construed as preventing any person holding a valid license as a Doctor of Osteopathy as of March 16, 1970 from engaging in the practice of osteopathy as the same was practiced by such person at said time, subject to annual renewal of his license beginning January 1, 1972, by

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the board. This latter type of license is referred to as a limited renewal license.
Thus, osteopaths who hold a full practice license pursuant to the provisions of Ga. Code Ann. 84-907 and 84-907 .I should be included within the terms "licensed doctors of medicine" or "doctors of medicine licensed to practice medicine and surgery in this state" as those terms are used in Ga. Code Ann. 56-1708, 56-1802(7) and 56-1811 of the Georgia Insurance Code. However, osteopaths not licensed pursuant to Ga. Code Ann. 84-907 and 84-907.1 but only licensed pursuant to the provisions of Ga. Code Ann. Chapter 84-12, Osteopaths (Ga. Laws 1909, pp. 123, 127, as amended), should not be included within the meaning of these terms. See Op. Att'y Gen. 1963, p. 17. This latter distinction remains true even after January I, 1972, when those persons currently licensed under Ga. Code Ann. Chapter 84-12 are then subject to limited license annual renewal pursuant to Ga. Code Ann. 84-906.
The answer to your inquiry as to podiatrists can be found in Ga. Code Ann. Chapter 84-6, Podiatry or Chiropody (Ga. Laws 1933, p. 115, as amended). Georgia Code Ann. 84-601 which defines podiatry reads as follows:

"Podiatry (chiropody), for the purpose of this Chapter, means the diagnosis, medical, surgical, mechanical, manipulative and electrical treatment limited to the ailments of the human foot and leg ..." [Emphasis added.]

This definition of podiatry is clearly within the definition of "practice of medicine" as that term is defined in Ga. Code Ann. 84-901. Georgia Code Ann. 84-603 and 84-607 provide for the licensing of podiatrists to practice in this state. Thus, although licensed only for a limited practice of medicine, podiatrists should be included within the terms "licensed doctors of medicine" or "doctors of medicine licensed to practice medicine in this state" as those terms are used in Ga. Code Ann. 56-1708, 56-1802(7) and 56-1811 of the Georgia Insurance Code.
These conclusions are in keeping with the declaration of policy expressed in Ga. Code Ann. 56-1801 (Ga. Laws 1960, pp. 289, 577) of the Georgia Insurance Code which provides as follows:

"(I) It is declared to be the public policy of this State to conserve its human resources by making available to all its citizens medical and surgical care in keeping with modern scientific practices in the field of medicine, and to this end this law is enacted.

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"{2) This Chapter shall be construed liberally to promote its humanitarian purpose."

Therefore, it is my official opinion, based on the foregoing, that where the terms 'licensed Joctors of medicine" or "doctors of medicine licensed to practice medicine and surgery in this state" are used in sections 56-1708, 56-1802(7) and 56-1811 of the Georgia Insurance Code they include osteopaths who are fully licensed to practice medicine pursuant to Ga. Code Ann. 84-907 and 84-907 .I, and podiatrists who are licensed to practice medicine pursuant to Ga. Code Ann. 84-603 and 84-607.

OPINIO~ 71-134

To: State Revenue Commissioner

July22, 1971

Re: Motor fuel tax; distributor's delivery to dealer as "sale."

This is in response to your request for an opinion as to whether a taxable event under the Georgia Motor-Fuel Tax Law, Code Ch. 92-14, occurs when a distributor delivers motor fuel on "consignment" to a retail dealer, or whether determination of liability must be deferred until the retail sale of such fuel.
The amendments made to the Motor Fuel Tax Law (Ga. Code Ann. 92-1403) by Ga. Laws 1971, p. 81, clearly evidence an intent by the General Assembly to place the legal incidence of the tax on the distributor's "sale or use" of motor fuel, not upon the consumer's retail purchase, and thus to alter to this extent the holding in State of Georgia v. Thoni Oil Magic Benzol Gas Stations, Inc., 226 Ga. 883 (1970), affg 122 Ga. App. 454 (1970).
Your request thus narrows to the sole issue of whether delivery by a distributor on "sale or return," "bailment," or "on consignment" to a dealer is a "sale" of fuel by a distributor. "Sale" is defined in Code 92-1402(1) to include " ... any exchange, gift, or other disposition. . . ."
With respect to this question, your attention is directed to Op. Att'y Gen., 1960-61, p. 533, which rules that any transfer of possession made by a distributor to a dealer in the course of distributing motor-fuel is a taxable event. It is my official opinion that in view of the 1971 amendments to the Motor-Fuel Tax Law, the previous opinion by this office is correct.

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OPINION 71-135

To: Director, Georgia Department of Public Health

July 22, 1971

Re: Vital statistics; use of racial designations on birth certificates and other official documents.

This is in reply to your letter of the 19th in which you refer to the fact that some individuals oppose racial designations on birth certificates and request an opinion as to the authority of the Department of Health in the premises.
The Department of Health is charged by law with the responsibility of maintaining a uniform state-wide system of vital records, including certificates of birth. See the Georgia Health Code, Ga. Laws 1964, p. 499, e.g., Ga. Code Ann. 88-1703. Georgia Code Ann. 88-1708 similarly specifies that the department, to promote and maintain uniformity in the system of vital records, shall prescribe all forms for birth certificates. In your letter you state that you have been using the racial designations listed by the National Center for Health Certificates, Washington, D.C., so that uniformity in coding for statistical applications can be achieved.
So far as I am aware, the legality of using racial designations on birth certificates and other official forms is beyond question. Such forms are routinely used by both State and Federal Governments and in many instances federal authorities affirmatively require the state to provide racial statistics so as to insure compliance with the requirements of the various civil rights acts. School assignments, for example, are routinely required by the Federal Government to be made according to a pupil's race.
In summary, it may well be said that the state of tht: law today is such as not only to permit the use of racial designations on birth certificates and other official documents but federal law affirmatively mandates the use of racial designations in certain areas. Consequently, I am of the opinion that the State Department of Public Health is not acting contrary to law when it insists upon racial designations on birth certificates in accordance with the federal standards you mention.

OPINION 71-136

To: Supervisor of Purchases

July 23, 1971

Re: Workmen's compensation benefits unaffected by pension or retirement income.

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This is in response to your recent letter wherein you request my official opinion on the question of whether the monthly pension granted certain disabled, retired employees of the Department of Public Safety, upon their retirement, could be used in an appropriate Workmen's Compensation proceeding to show that such employee was partially disabled rather than totally disabled.
As you know, the Workmen's Compensation laws of Georgia (Ga. Laws 1920, p. 167, -as amended) specify in Ga. Code Ann. 114-405 that certain benefits be paid partially-disabled employees for a total of 350 weeks from the date of injury, while Ga. Code Ann. 114-404 specifies that a different schedule of benefits be paid a person totally disabled.
An official opinion rendered April 24, 1970 held that an employee could draw Workmen's Compensation benefits in addition to other retirement benefits with the employer receiving no credit for the other retirement benefits drawn by the injured employee. I have reviewed this opinion and know of no reason why the result would not be the same in the situation to which you refer. See Op. Att'y Gen. 70-73 and City Council of Augusta v. Young, 218 Ga. 346 (1962).
Of course, please understand that in no case should Workmen's Compensation benefits be paid unless the injured employee has in fact sustained a compensable injury under Ga. Code Ann. 114-102, as amended. If an injured employee can show a compensable injury arising out of and in the course of his employment, I know of no authority which would allow the employer to receive a credit for an amount paid the injured employee as a disability or retirement benefit. The fact that he is receiving these additional benefits would not, in my view, make him ineligible for a total incapacity rating under Ga. Code Ann. 114-404 (and switch him to eligibility for partial disability under Ga. Code Ann. 114-405) since partial incapacity is determined by the difference between the wages which an employee earns before his injury and which he is able to earn thereafter. I feel certain that under the language of Georgia's Workmen's Compensation laws the word wages would not be synonymous with retirement or disability benefits or other monthly penswns.
I hope the foregoing will assist you in the rendition of your official duties. For your additional information I have attached a copy of the referenced Op. Att'y Gen. 70-73.

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OPINION 71-137

To: Member, Board of Commissioners, Georgia Forestry Commission

July 26, 1971

Re: Director of Georgia Forestry Commission; suspension or removal; effect of Merit System provisions.

This is in response to your recent letter wherein your request my official opinion on several questions arising since the passage of Ga. Laws 1971, pp. 45-55 (Ga. Code Ann. 40-2201 et seq.). The questions contained in your request letter are as follows:

(l) Since Ga. Laws 1971, pp. 45-55, placed the Director of the Georgia Forestry Commission under the Merit System effective March 10, 1971, is the Director currently under a six-month "working test"?
(2) Does the Georgia Forestry Commission, acting through its commissioners, have the authority to suspend the Director pending a complete investigation of the internal affairs of the Com mission?
(3) Does the Georgia Forestry Commission, acting through its commissioners, have the authority to remove the Director from office for cause?
(4) Is Ga. Code Ann. 43-213 (Ga. Laws 1955, pp. 309, 316) still in effect?

Your questions will be answered in the order posed. 1. Pursuant to Ga. Laws 1971, pp. 45-55, the Director of the Georgia Forestry Commission was placed under the classified service of the State Merit System. The Rules and Regulations of the State Personnel Board provide specifically in Rule II that the working test period for an employee under the State Merit System will be the first six months "in a position" unless the State Personnel Board designates differently. Rule 12 states that "At any time during a working test period, an employee may be separated from his position under the Merit System without the right of appeal or hearing." The important item to determine here, in my view, is whether the State Personnel Board intended for the working test period to apply to a person currently "in a position" in state service whose "position" is suddenly, by one way or another, placed under the classified service of the Merit System. The intention of the Board is the primary focal point here and, after conferring with knowledgeable officials at the State Merit System, I am persuaded to the view that the working test period would not apply to an employee employed by the state for a number of years

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whose "position" is by law placed under the jurisdiction of the Merit System.
2. and 3. For the purposes of this opinion, the answers to your questions numbered (2) and (3) will be combined.
The law placing the Director of the Georgia Forestry Commission under the Merit System, supra, specifically repealed the requirement in the law creating the Commission that the Director serve at the pleasure of the Commission .. It would seem then that the Director now can be dismissed or suspended only in accordance with applicable rules and regulations of the State Personnel Board. These rules and regulations provide the reasons for which Merit System employees may be dismissed or suspended. And these rules and regulations have the force and effect of law [Scott v. Undercojler, 108 Ga. App. 460 (1963)].
The real question now becomes whether. because the Commission can only appoint its Director with the advice and consent of the Governor (Ga. Code Ann. 43-209), is it also necessary for the Commission to obtain the advice and consent of the Governor to remove the Director under the Merit System rules? For the following reasons, I am persuaded that the advice and consent of the Governor is not required for removal or suspension of the Director:

A. The law revising the Merit System laws, as discussed above, placed the Forestry Commission Director under the Merit System and abrogated that provision of law mandating that he serve at the pleasure of the Commission. It seems manifest that prior to this law the Commission could remove the Director at any time (pleasure). Since the law put the Director under the Merit System and at the same time repealed the "at the pleasure of the Commission" clause, it seems the intendment of the Act to be that the Commission retain the right to dismiss the Director but now only under Merit System rules.
B. In Myers v. U.S., 272 U.S. 52 (1926), the Supreme Court of the United States, through Mr. Chief Justice Taft, ruled that the President had the executive power of removing executive officers of the United States whom he had appointed by and with the advice and consent of the Senate. The fact that the Senate had to give its advice to the President and consent to his appointee did not require its advice and consent in the removal of the appointee. I think the rationale there is just as cogent in the situation here under consideration.

4. Georgia Code Ann. 43-213 (Ga. Laws 1955, pp. 309, 316) has not been specifically repealed, was not repealed or affected by Ga. Laws 1971, pp. 45-55, and to my knowledge is still in effect.

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OPINION 71-138

To: Director, Division for Children and Youth

July27, 1971

Re: Division for Children and youth; medical services for children in custody of county departments of family and children services.

You have requested my opinion on the question of whether the Division for Children and Youth may provide medical services without parental consent to children in the custody of County Departments of Family and Children Services.
As you are aware, the General Assembly amended the Children and Youth Act in 1971 to provide as follows:

"The Division is authorized to provide all medical, hospital, psychiatric, surgical, or dental services, or payment of the cost of such services, as may be considered appropriate and necessary by competent medical authority to those children subject to the supervision and control of the Division without securing prior consent of parent or legal guardians," (Ga. Laws 1971, p. 351, Ga. Code Ann. 9921l(i)).

Your question may be easily resolved if children in the custody of the County Departments are subject to the "supervision and control" of the Division. My opinion is that they are for the following reasons:
By law (Ga. Laws 1963, p. 81, Ga. Code Ann. Chapter 99-2) the Division for Children and Youth is designated the exclusive state agency for the development and administration of a state-wide public child welfare and youth services program. Ga. Code Ann. 99-209(a)(l ). This function also includes the administration and supervision of local administration of public child welfare and youth services. Ga. Code Ann. 99-209(a)(3).
County or district Departments of Family and Children Services are by law designated as public agencies to administer locally the state plan and program for public child welfare and youth services. Ga. Code Ann. 99-209(b ). The county departments administering these state child welfare services act strictly in accordance with the rules and regulations established by the governing body of the Division for Children and Youth. /d. As of July 1, 1971, the costs of all child welfare services administered at the county level were made a responsibility of the state. Ga. Laws 1970, p. 451 (Ga. Code Ann. 99-209). Likewise, other provisions in the Children and Youth Act clearly indicate that the Division is to supervise and control all state public child welfare and youth

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services functions. which are administered either at the state or county levels of government. Ga. Code Ann. 99-2\0,99-211.
In view of the above provisions of law, it seems reasonably clear that any child committed to the custody of a County Department of Family and Children Services is under the "supervision and control" of the Division for Children and Youth. Therefore, the 1971 amendment authorizing the Division to provide medical services, or the cost of such services, to children subject to its "supervision and control" would apply to children in the custody of County Departments of Family and Children Services.
I have read and hereby approve for legal sufficiency the document entitled "Georgia Department of Family and Children Services; Request To Place Child In Foster Care" which was attached to your letter requesting this opinion.

OPI)'I;ION 71-139

To: General Manager, Stone Mountain Park

July 27, 1971

Re: Sales and use taxes; liability for payment by Stone Mountain Memorial Association.

This is in reply to Mr. William L. Kinney's letter of July 9, 1971, requesting my opinion as to whether the Stone Mountain Memorial Association should be paying Georgia sales tax. He was especially interested in the effect thereon of Section 26 of the Act creating the Stone Mountain Memorial Association (hereinafter, the Act), Ga. Laws 1958, pp. 61, 79, which says:

" . . . the Association shall be required to pay no taxes or assessment upon any of the property acquired or leased by it under its jurisdiction, control, possession or supervision or upon its activities in the operation or maintenance of the project erected by it or any fees, rental or other charges for the use of the facilities or services of the project or other income received by the Association and that the bonds of the Association, their transfer, and the income therefrom shall at all times be exempt from taxation from within the State."

In order to strengthen enforcement of the Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. Laws 1951, p. 360 (Ga. Code Ann. Ch. 92-34A), as amended, both seller and purchaser are made liable for the tax. I will thus answer the question as it relates to the Association's taxpayer status both as a seller and as a purchaser.

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As to sales made by the Association, Ga. Code Ann. 92-3414a provides:

"Inasmuch as it is provided herein that the taxes herein levied upon purchasers and consumers shall be collected by the dealer from the purchaser, or consumer. therefore, notwithstanding any exemption from taxes which any dealer may now or hereafter enjoy under the Constitution or laws of this or any other State, or of the United States, such dealer shall collect the tax imposed hereunder from the purchaser or consumer and shall pay the same over to the State Revenue Commissioner as herein prm.ided." (Emphasis added.)

In addition, Section 26 of the Act provides simply that " . . . the Association shall be required to pay no taxes . . . ." (Emphasis added.) In light of the foregoing, it is my opinion that Section 26 of the Act has no effect on the Association's obligations as a seller, i.e., the tax must be collected on sales by the Association from its purchasers and remitted to the state.
As to purchases made by the Association, a different situation exists. The Stone Mountain Memorial Association would not be included in any of the exemptions contained in Ga. Code Ann. 92-3403a (C)(2) and " . . . the legislature did not intend to give an exemption from the payment of sales and use taxes to any body politic other than those specifically described in Code Ann. 92-3403a (C)(2)." Oxford v. Housing Authority of the City of Barnesville, 104 Ga. App. 797, 798 (1961 ). Thus any exemption the Association may have must be found somewhere other than in the Sales and Use Tax Act.
Section 26 of the Act is in all relevant parts the same as Section 20 (Ga. Code Ann. 43-620a) of the Act amending the Act creating the Jekyll Island-State Park Authority, Ga. Laws 1960, pp. 89, 97. In answer to an inquiry by the Department of Revenue as to whether sales of tangible personal property to the Jekyll Island Authority were taxable under the Sales and Use Tax Act, an opinion of the Attorney General, dated October 24, 1963, was given as follows:

". . . since the purchase of tangible personal property is an activity necessary to the operation and maintenance of the Authority's buildings, I am of the opinion that sales of such property to the Authority are exempt to the extent that they are made for the purposes specified, i.e., carrying on the operation or maintenance of its buildings." Op. Att'y Gen. 1963-June 14, 1965, pp. 287, 289.

In light of the above, it is my opinion that the Stone Mountain Memorial Association is exempt from the payment of sales tax to the extent,

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and only to the extent, of those purchases made for the operaton and maintenance of the "project" (as defined in Section 2(c) of the Act). 1

OPINION 71-140

To: Executive Secretary, Regents of the University System of Georgia

July 27, 1971

Re: Contractors and subcontractors engaged in the construction of a state-owned building upon state property are not exempt from the payment of municipal and county business license taxes.

You requested an opinion as to whether municipalities and counties may legally require and collect business license taxes from contractors and subcontractors engaged in the construction of a state-owned building upon state property.
According to your letter the pertinent facts are as follows: The Board of Regents has contracted with a certain construction company for an addition to the Biological Sciences Building at the University of Georgia. In this regard, the contract contains the following paragraph concerning license permits:

"Neither the contractor nor any subcontractor will be required to pay to any city, town, county, municipality, or political subdivision any charge or fee for the issuance of any permit, license, or franchise for construction to proceed on the site."

In this regard, a certain other company is a subcontractor of this construction company, the general contractor, and except for the work on the Biological Sciences Building, is not otherwise doing business within the corporate limits of the city. In other words, all work performed by the subcontractor is on state property.
The city has attempted to collect a "business license tax" from the subcontractor mentioned above. You then asked my advice as to whether municipalities and counties may legally require and collect "business license taxes" from contractors and subcontractors engaged in the construction of state-owned buildings on state property.
You further asked that in the event my answer to the above question is in the affirmative, may the Board of Regents legally reimburse the contractor or subcontractor for the "business license tax" thus collected?

I. See Op. Att'y Gen. 71-178, infra, for further clarification of this question.

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Although no decision of a Georgia court has addressed itself to this specific question, there is abundant authority upon similar issues which permits an answer with some definiteness. One of the first decisions to establish guidelines in this area was Penick v. Foster, 129 Ga. 217 (1907), in which the Supreme Court held that the state's properties and instrumentalities were exempt from municipal taxation or regulation. This statement of the general rule was buttressed by l\/ewton v. City of Atlanta, 189 Ga. 441 (1939), in which the Supreme Court considered the validity of an ordinance which imposed an occupation tax on wholesale dealers in fruits and produce as it related to those doing business at the State Farmer's Market. The court concluded that instrumentalities and businesses, even though privately owned and used for private gain, if they form an integral and essential part of government functions on government property, and are conducted in accordance with rules prescribed under government authority, are exempt from occupation taxes. The purpose of the Farmer's Market was to provide an outlet for farm produce and since the activity of the wholesalers constituted an essential part of the program of the state in operating the Farmer's Market, they were exempt as instrumentalities of the state.
The Supreme Court clarified its position in Davis v. City of Atlanta, 206 Ga. 652 (1950), in which the Supreme Court stated that Newton v. City oj Atlanta, supra, was based on the grounds that the occupation tax was in substance a tax on a state function or instrumentality. It was a tax upon doing the very thing for which the State Farmer's Market had been created. Thus, it must be determined whether or not an independent contractor who is constructing a state building on state property is an instrumentality of the state.
In City of LaGrange v. Whitley, 180 Ga. 805 (1935), an occupation tax was levied on a contractor engaged in street paving for the municipality. The contractor contended that because he was concerned solely with public works he occupied the status of an agency of the government. The court, rejecting his argument. held at page 812 that the principle here involved has no application to one conducting such business for private gain under contract with the State or Federal Government. The public character of the other contracting party does not operate to relieve a person conducting such business of an occupation tax for which he would otherwise be liable.
In Newton v. City of Atlanta, supra, the Supreme Court distinguished the factual situation in City of LaGrange v. Whitley, supra, stating that the party was not in the exercise of a governmental function, but was a mere independent contractor.
In Davis v. Smith, 197 Ga. 95, 99-100 (1943), the Georgia Supreme Court cited two opinions of the U.S. Supreme Court dealing with the instrumentality with respect to independent contractors. In the first,

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James v. Dravo Contracting Co., 302 U.S. 134 (58 S.Ct. 208, 82 LEd. 155 (1937)), the court held that an independent contractor, engaged under his contract with a governmental entity, is not an instrumentality of that government. In the second, Penn Dairies v. Milk Control Commission, 318 U.S. 261 (63 S.Ct. 617, 87 LEd. 748 (1942)), the court concluded that, "those who contract to furnish supplies or render services to the government are not such agencies and do not perform governmental functions."
In a prior opinion of this office, it was determined that building permit fees could not be legally extracted by municipalities or counties from the state on buildings being constructed for the state on its property. Op. Att'y Gen. 1963-65, p. 493 (June 22, 1964). And in Op. Att'y Gen. 6773 (February 27, 1967) it was concluded that a city cannot affect property owned by the State of Georgia or her agencies and any ordinance affecting such property would be ultra vires and of no effect as far as the state and her property are concerned.
However, these opinions are not applicable to the present situation as the party involved in the present question is admittedly an independent contractor. The above cases indicate that he should not be exempt from payment of the business license tax. The mere fact that the contractor has a contract with a state agency clearly does not make the independent contractor an instrumentality of the state. The payment of the business license tax will not impair governmental functions and thus the contractor should not be considered as exempt under the facts of the present question.
Your second question is answered in the affirmative as this is a contractual matter between the Board of Regents and the contractor.
Therefore, it is my official opinion, based on the foregoing, that contractors and subcontractors engaged in the construction of a state-owned building upon state property are not exempt from the payment of municipal and county business license taxes.
We carefully reviewed the opinion of the city attorney in connection with this matter and believe that the conclusions he reached are correct.

OPINION 71-141

To: Director, State Merit System

July 28,1971

Re: Public officers and employees; payroll deductions.
This responds to your letter of July 9, 1971, requesting my opinion of whether a state agency can make a payroll deduction for the purchase of shares in a mutual fund plan.
As I understand the plan which prompted your question, employees

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who purchased an annuity life insurance policy could then purchase mutual fund shares through the same carrier. making payments by payroll deductions. The insurance carrier would secure prior approval from the agency head and participation would be entirely voluntary. At the employee's request, an agreed upon amount would be deducted from his salary and submitted to the carrier or to a trustee responsible for the insurance and mutual fund payments.
I am not aware of any provision of the law which prohibits a state agency from making a payroll deduction from the salary of an employee as long as the employee has voluntarily consented to the deduction. However, there are other considerations which might cause an agency head to reject a payroll deduction which is not specifically authorized or required by statute. For example, if a program had only a few participants, the administration might be extremely burdensome.
Therefore, it is my official opinion that a state agency could make payroll deductions for the combined life insurance-mutual fund purchase plan provided the agency head has approved the plan and the affected employee has authorized the deduction.

OPINION 71-142

To: Insurance Commissioner

August 2, 1971

Re: Insurance; religious organization not permitted to make contracts relative to church property which amount to insurance without certificate of authority.

You have requested my official opinion as to whether an insurance company writing insurance policies only for the church property of a certain denomination in Georgia may enter into these insurance contracts within this state without having first obtain a certificate of authority to transact insurance.
It is my understanding that the insurer concerned has for some time been issuing insurance policies on church property in this state without being certified by the Insurance Commissioner. Furthermore, the insurer has no agency representation in the state. It is my understanding that the company contends its activity in Georgia is but a form of selfinsurance, based on an alleged affiliation with the religious group which gives the company an insurable interest in the church property it insures.
Georgia law prohibits an insurer from transacting insurance in Georgia unless authorized by a certificate of authority granted by the Insurance Commissioner with certain exceptions not applicable here. Ga. Laws 1960, p. 289, Ga. Code 56-302.

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Insurance is defined as a contract which is an integral part of a plan for distributing individual losses whereby one undertakes to indemnify another to pay a specified amount upon determinable contingencies. Ga. Code 56-102.
Transacting insurance means preliminary negotiations, effectuation of a contract of insurance, and transaction of matters subsequent to effectuation of the contract and arising out of it. Ga. Code 56-105.
Thus any legal entity, with certain exceptions not here applicable, which issues insurance contracts is transacting insurance and as such is subject to the Georgia Insurance Code. Ga. Code 56-103, 56-104, 56-105,56-109, 56-302(1).
A problem similar to the present question arose in Ja/onick v. Green County Oil Co., 7 Ga. App. 309,310,66 S.E. 815 (1909). The court held that " ... no insurance company, domestic or foreign ... can legally transact any insurance business of any kind or character within the state, without first having procured the license required to carry on such business from the insurance commissioner of this state." See also Benevolent Burial Association Incorporated v. Harrison, 181 Ga. 230(1), 181 S.E. 829 (1935 ). The requirement of procuring a license prior to the legal transaction of insurance business was enacted by the Georgia General Assembly in 1887. Ga. Laws 1887, p. 114. In 1960, the General Assembly enacted a new Insurance Code, Title 56, rewording what was then Code 2414 to read "[N]o person shall act as an insurer and no insurer shall transact insurance in Georgia except as authorized by a subsisting Certificate of Authority granted to it by the Commissioner ..." Ga. Laws 1960, pp. 289, 314; Ga. Code 56-302.
The policy of the law in controlling insurance transactions is for the protection of the state's citizens. Citing the U.S. Supreme Court in German Alliance Insurance Company v. Lewis, 233 U.S. 389 (1913), the Georgia Supreme Court has stated that "[T]he business of insurance is one so clothed with a public interest affecting the community at large, as to render it peculiarly subject to proper governmental regulation." CooperCompanyofGainesvil/ev. TheState, 187Ga.497,500, I S.E.2d 436 (1939). If the company is transacting insurance in Georgia, public policy as well as statutory law demands its control by the Insurance Commissioner.
It is the company's contention that it is but a mere self insurer of church property in which it has an interest. Our investigation reveals it is doubtful that the company has any legal interest sufficient to give it an insurable interest in various parcels of church property in Georgia. Even if it does, however, the extent of its insurance goes far beyond any interest it may have. The separate churches, actually owning the insurable property, contract for individual policies with this or other companies. Additionally, it should be noted that the charter of this insurance

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company in the state of its incorporation provides in Article I I I that "[t]he purpose of the corporation is to transact the business of [insurance]. . . .",and in Article IV that the company shall insure not only churches but all kinds of buildings, household furniture, and property of the national church, its organizations and property held by any person, association, or corporation used to promote the interests of the national church. This language of the company's charter indicates not only that it transacts insurance business, but that these transactions are not exclusively confined to church property in which it might have an insurable interest.
It is my opinion that this insurance company is transacting or conducting " . . . the business of insurance [which] consists in accepting a number of risks some of which will involve losses and of spreading such losses over all the risks so as to enable the insurer to accept each risk at a slight fraction of the possibility upon it." Piedmont Life Insurance Co. v. Bell, 109 Ga. App. 251,260 (1954) quoting with approval from Home Title Insurance Co. v. U.S., 50 F.2d 107, 110 (2d Cir. 1931 ). The Georgia law specifically provides that no one shall act as an insurer in Georgia except as authorized by a subsisting certificate of authority granted by the Insurance Commissioner. Ga. Code 56-302(1 ).
I am not aware of any provision which exempts this insurer from this requirement of the Code. As an uncertified insurer transacting insurance in Georgia the company may be deemed guilty of a misdemeanor. Ga. Code 56-9907. Additionally, any contract of insurance effectuated by an unauthorized insurer is voidable. Ga. Code Ann. 56-602; Jalonick v. Green County Oil Co., 7 Ga. App. 309,66 S.E. 185 (1909).
If the company persists in its operations after being made aware of our position, please let me know and further legal action will be taken.

OPINION 71-143

To: Chairman, Stone Mountain Memorial Association

AugustS, 1971

Re: The Stone Mountain Memorial Association may pay the State Law Department a fixed monthly fee for legal services.

At its most recent meeting, the Stone Mountain Memorial Association requested this office's opinion as to whether it could enter into an agreement with the State Law Department to pay the latter a fixed monthly fee for the legal services performed for the Association.
I think the answer is clearly in the affirmative for several reasons. To start with, the "Stone Mountain Memorial Association Act" authorizes the Association to enter into such contracts and agreements as may be

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necessary or convenient in the management of the affairs of the Associatin. Ga. Laws 1958, pp. 61, 67. This would in itself be ample authorization for the Association to retain counsel even if additional statutory authority did not exist. It has long been recognized that legal counsel is an integral and inherent part of management and administration and that the authorization of expenditures for the latter includes the former. E.g. 78 C.J.S. Schools and School Districts, 146, pp. 950-51; Op. Att'y Gen. 1954-56, p. 183; Op. Att'y Gen. 1957, p. 99.
Our view of the Association's authority to enter a contract with the State Law Department for legal services is, however, supported by yet additional statutory authority. Ga. Laws 1969, pp. 484-485 [Ga. Code Ann. 40-1631 to 40-1634], in expressly providing that the Attorney General shall furnish all legal services required by the various State Authorities (including the Stone Mountain Memorial Association), also expressly provides that the Authority receiving such legal services:

" . . . is authorized to reimburse the Department of Law for such services and expenses." [See, Ga. Code Ann. 40-1634.]

It is, therefore, my opinion that the Stone Mountain Memorial Association may pay the State Law Department a fixed monthly fee for the legal services which it receives from the department.
In reviewing the Jaw in connection with this opinion, I also note that the Attorney General is required to furnish the Association with a statement pertaining to such legal services, which must include the names of the attorneys engaged in furnishing or performing the same. See Ga. Code Ann. 40-1634. The attorneys so engaged at this time are as follows:

(I) Arthur K. Bolton, Attorney General (General legal representation)
(2) Alfred L. Evans, Jr., Assistant Attorney General (General legal representation)
(3) J. Robert Coleman, Assistant Attorney General (Real property matters)
(4) Courtney W. Stanton, Assistant Attorney General (Trial counsel in Stone Mountain Railroad v. Stone Moun-
tain Memorial Association)

We have recently furnished the Assistant General Manager of Stone Mountain Park with an up-to-date list of all currently pending litigation involving the Association.

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OPINION 71-144

To: Chairman, Georgia Public Service Commission

August 6, 1971

Re: Public utilities; revocation of telephone company certificate of convenience and necessity for nonuse.

Your recent letter requested an opinion on the question of whether or not a certificate of public convenience and necessity issued by the Georgia Public Service Commission (hereinafter referred to as Commission) to a telephone company can be revoked for nonuse.
The Commission has the power of general supervision of all telephone companies within this State. It is authorized to act upon complaints by the public and to act upon its own initiative to require all telephone companies under its supervision to establish and maintain such public service and facilities as may be reasonable and just. Further, the Commission has the authority to examine into the affairs of telephone companies under its supervision and to keep informed as to their general condition, their capitalization, their franchises, and the manner in which they are managed, conducted, and operated, not only with respect to the adequacy, security, and accommodation afforded by their service to the public, but also with reference to their compliance with all provisions of law, orders of the Commission, and charter requirements. Ga. Code Ann. 93-307 (Ga. Laws 1907, pp. 72, 75, as amended).
The Laws of Georgia provide that no person shall construct or operate any telephone line, plant or system, or any extension thereof,. without first obtaining from the Commission a certificate that the present or future public convenience and necessity require, or will require such construction or operation. Ga. Code Ann. 93-324 (Ga. Laws 1950, p. 311 ); and Public Service Commission Rules and Regulations Governing Issuance of Certificates of Public Convenience and Necessity-Telephone Companies (hereinafter cited P.S.C.-T.Co.-Rule) Rule No. 16. However, the Laws of Georgia do not provide any express provision for the forefeiture or revocation of a certificate of public convenience and necessity after issuance by the Commission, nor have I been able to find any Georgia case on this point. But, from early times, the courts in other states have recognized a tacit condition that a certificate may be forfeited for nonuser in regards to matters which go to the essence of the certificate. New York Electric Lines Co. v. Empire City Subway Co .. 235 U.S. 179, 59 L.Ed. 184 (1914); Public Service Comm. of Puerto Rico v. Havemeyer, 296 U.S. 506, 80 L.Ed. 357, rehearing denied 297 U.S. 727, 80 L.Ed. 1010 (1936); and 36 Am. Jur.2d, Franchises, 54 (1968).

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When a certificate of public convenience and necessity is held for any area, it is the responsibility of the certificate holder to provide service within that area. P.S.C.-T.Co.-Rule No. 18. Further in every grant of a public utility franchise, there is implied an agreement on the part of the grantee that it will be exercised and that all of the duties and conditions prescribed in or inferred from the grant will be performed and discharged. If no time is prescribed, the franchise must be exercised within a reasonable time. New York Electric Lines v. Empire City Subway Co., supra; and 36 Am.Jur.2d, Franchises, 37 (1968). The reason and purpose for granting a right or authority to render a utility service is to meet a public need for service. If the utility holding such grant fails to. serve, the grant should not survive. See Ga. Code Ann. 93-307 (Ga. Laws 1907, pp. 72, 75, as amended).
Franchises granted for useful public purposes should not, in general, be withdrawn by forefeiture, except for abuses of such a nature as injuriously affect the public welfare or as violate the law or contract obligations contained in the grants. Grantee corporations are required to render substantial performance, however, a trifling variation from the requirements of the grant should not cause forfeiture of the franchise. A series of willful persistent franchise breaches may be grounds for forfeiture of the franchise although particular breaches, even if willful, might not be so of themselves. Thus from the standpoint of the State, a public utility which fails to substantially perform its duty to serve the public may forfeit its right to exercise its franchise and therefore be subject to outster. New York Electric Lines Co. v. Empire City Subway Co., supra; Public Service Com. v. Havemeyer, supra; Farmer's Loan & Trust Co. v. Galesburg, 133 U.S. 156, 33 L.Ed. 573 (1890); Re R. V. Taylor, eta!., 69 PUR3d 205 (1967) (telephone company); and 36 Am. Jur. 2d, Franchises, 54 (1968 ).
The public interest requires that public utility companies be held to a strict rational accountability. The terms and conditions of the grant of a certificate being accepted, the grantee should not be allowed to act beyond its scope or fall short in the performance of its obligations. It should be added, however, that courts of law do not favor the forfeiture of franchises. Their object is to uphold and preserve the grant unless it is clear that the rights vesting under it have been improvidently neglected or abused. See 36 Am.Jur.2d, Franchises, 54 (1968).
As an additional safeguard to the public, P.S.C.-T.Co.-Rule No. 12, provides that in the event it is discovered that a certificate was erroneously issued because of false, erroneous, misleading, or ambiguous information, the Commission will withdraw the certificate and may issue a corrected certificate to supersede the certificate previously issued.
Therefore, it is my official opinion, based on the foregoing, that, after a hearing on all of the facts of a particular case, the Commission can

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revoke for nonuse a certificate of public convenience and necessity which it has granted to a telephone company.

OPINION 71-145

To: Director, Legislative Budget Office

August 6, 1971

Re: Medicaid; dispensing of drugs under Medicaid is not a retail sale under Sales and Use Tax Act; pharmicist's disposition is a taxable use other than sale.

This is in response to your inquiry as to whether a retail sale taxable under the Georgia Retailers' and Consumers' Sales and Use Tax Act occurs when a participating pharmacist dispenses drugs to eligible persons under the State Medical Assistance Program (Medicaid) implemented pursuant to Title XIX of the Social Security Act, 42 U .S.C.A. 1396 et seq. For the reasons set forth below it is my official opinion that the transaction does not involve a retail sale but that the pharmacist's disposition is a use other than retail sale and taxable to him.
It is necessary to detail the aspects of the Medicaid Program pertinent to the State's provision of medical assistance with respect to prescription drugs.
The stated Federal purpose of the Medicaid Program is to enable the State "to furnish ... medical assistance on behalf of" eligible individuals. 42 U.S.C.A. 1396. "Medical assistance" means the payment of part or all of the cost of enumerated care and service items, 42 U.S.C.A. 1396d, which under the Georgia plan includes the cost to the eligible individuals of prescription drugs. Georgia Department of Public Health Plan for Medical Assistance Program IV A (1 )(F) (hereinafter "Georgia Plan"). Payment is made to participating vendors, however, not to the recipient.
Payments under the plan may not exceed administratively established "upper limits" of cost which are set essentially on a cost plus dispensing fee basis. The factors included in setting the dispensing fee include the pharmacist's costs for overhead, professional services and profit. 45 C.F.R. 250(b)(2). The Georgia plan provides for payments to participating pharmacist at the pharmacist's unit cost for the smallest unit plus a fixed dispensing fee. Georgia Plan ~ IV B(7 ).
Payment for drugs under the plan is limited to those pharmacies whose application for participation are approved by the Department of Public Health. Department of Public Health, Medical Assistance Program Policies and Procedures (Drugs) (July I, 1970) (hereinafter Department Policy Statement). Participating pharmacies and the department execute a standard form "agreement" which purports to set forth

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the respective obligations. Participating pharmacies must accept, as payment in full, the amounts paid to them in accordance with the fee structure and may not "collect from the recipient or any third party any monies for which the Department assumes responsibility." Standard Form Agreement of Participating Pharmacies .- 6; see also 45 C.F.R. 249.31. On the other hand, a recipient is responsible for payment of any charge for a drug not on the State's Medical Assistance Drug List.
The eligible recipient of assistance may obtain prescription drugs from any qualified vendor who undertakes to fill the prescripion. 42 U.S.C.A. 1396a(a)(23). Delivery of the drug is made directly to the recipient.
While the nature of the transactions thus effected under the Medicaid Program is not entirely clear for the purposes of the Sales and Use Tax Act, it is my opinion that the following conclusions may be drawn.
First, the transactions to which your request relates have not been previously taxed because the dispensing of drugs under the program was considered a sale to the State. Department Policy Statement .- 14. This treatment is erroneous. Even if the relationship between the State and the pharmacist is treated as a consensual "sale" relationship, the state is clearly not a purchaser. See Ga. Laws 1951, pp. 360, 363, Ga. Code Ann. 92-3403a(B). The state does not obtain title or possession of the drugs, it does not acquire any proprietary interest in the drugs or the right to control their use nor does it effect the transfer. Cf. Alabama v. King & Boozer, 314 U.S. I, lO ( 1941 ). But more fundamental to the question is whether the relationship between the pharmacist and the state falls within the scope of the Sales and Use Tax Act. The Act is designed to reach consensual or contractual agreements, however effected, for the transfer of property for a consideration. See Grantham Transfer Co. v. Hawes, 225 Ga. 436, 442 (1969); cf. Undercofler v. Foote & Davies, Inc., 115 Ga. App. 341, 343 (1967); Hopkins v. West Publishing Co., 106 Ga. App. 596, 602 (1962). The relationship, as presently drawn, between the pharmacist and the state and whatever state "obligation" to pay that may result therefrom simply does not fit into the concepts underlying the sales tax. Even though approval of a pharmacy for participation in Medicaid is embodied in a standard form "agreement," the relationship and obligations incident to it result not from the "agreement" but from the statutory and administrative scheme under the Medicaid programs.
Second, while the issue is not free from doubt, it is my official opinion that no retail sale within the meaning of the Sales and Use Tax Act is made by the pharmacist to the eligible recipient. The recipient's acquisition, under the existing Medicaid plan, is not a "transfer of title or possession ... for a consideration...." Code Ann. 92-3403a(B). The recipient in a transfer that complies with the Medicaid standards

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has no obligation to pay and the pharmacist does not expect from him a consideration in money or money's worth. 42 C. F. R. 249.31. Neither the recipient nor the state creates a contractual obligation against the recipient or, as noted above, against the state on his behalf. Although the statutory foundation for the State Medicaid Program refers to a "cost" incurred for medical assistance to an individual for which payments are made "on his behalf," 42 U.S.C.A. 1396, 1396d, the terms do not purport to establish a contractual relationship within the scope of the Sales and Use Tax Act between the recipient and pharmacist or the recipient and the state. Rather, the terms are meant to fix the conditions on which the state will act. Thus, there is no contractual transfer of property for a consideration within the meaning of the tax statute.
Third, the pharmacist's disposition of drugs is a use "other, than retention, demonstration or display while holding [the property] for sale in the regular course of business. . . ." Ga. Laws 1951, pp. 360, 371, Code Ann. 92-3410a(a). The pharmacist with respect to dispensing drugs under Medicaid is thus in a position analogous to that of a dealer who withdraws goods from inventory to provide a service. See Macon Machine Shop v. Hawes, 118 Ga. App. 280 (1968); Craig-Tourial Leather Co. v. Reynolds, 87 Ga. App. 360 (1952). The use is taxable to the pharmacist at his cost. Code Ann. 92-3410a(a).
In sum, it is my official opinion that the transfer of drugs by the pharmacist is not a retail sale but is a use by the pharmacist other than sale in the regular course of business and taxable to the pharmacist at his cost.

OPINION 71-146

To: Chancellor, University System of Georgia

August 9, 1971

Re: Charitable trusts; construction of instruments donating funds to University of Georgia and North Georgia College.

In a letter dated July 15, 1882, Governor Joseph E. Brown established the Charles McDonald Brown Scholarship Fund, the purpose of which was to aid in the education of worthy young men in the state. The original corpus of the trust was $50,000, with management vested in the Trustees of the University of Georgia. A portion of this trust was to be provided for the education of young men at North Georgia College, but the fund was never divided, and since the creation of the trust, it has been located at and controlled by the University of Georgia. You have asked whether or not there should be a fiscal division of the fund with a stipulated amount to be transferred to North Georgia College. To deter-

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mine the propriety of a division of this fund, it will be necessary to construe the instrument creating the fund, the Jetter of Governor Brown dated July 15, 1882.
The first nineteen paragraphs of the letter establishing the trust generally provide the qualifications of the young men to receive loans from the fund, set forth the reasons which prompted Governor Brown to establish this fund, and direct the Trustees of the University in their duty. At the end of the nineteenth paragraph it is stated:

"The provisions above mentioned are subject to the following qualifications:"

Thus, any provisions subsequent to the above statement take precedence over those provisions preceding the statement, and in those cases where there might be some conflict, the subsequent provisions will control.
The first paragraph following this proviso reads:

"I desire that the sum of $1,000, interest accruing annually from the said principal sum of $50,000, as above mentioned, to be used by the Board of Trustees aforesaid, to aid young men to pursue their studies in the North Georgia Agriculture College at Dahlonega, upon the same terms as prescribed for the students at the University, at Athens, except that the students who may participatein the benefits of this fund at Dahlonega must be selected under special rules and regulations as the Board of Trustees of the U niversity may prescribe, ..." (Emphasis added.)

In this initial paragraph following the proviso, a separate fund is established to be loaned to young men attending what is now North Georgia College. That this fund was to be separated from the remaining fund is indicated by the fact that reference is made to "this fund at Dahlonega."
It is further indicated that there are two separate funds in the following paragraph:

"As the amounts loaned students at Dahlonega are returned, I wish them to be added to the principal, which is set apart out of the sum of $50,000 as donated above, to raise the said sum of $1,000 annually for said college at Dahlonega, so that it may accumulate as in the case of the fund set apart for students at the University at Athens, both being placed upon the same principle of accumulation." (Emphasis added.)

The language utilized in this paragraph such as "set apart" and "both" indicates the existence of two separate funds. One fund is located at

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"said college at Dahlonega," and the other fund is located at "the University at Athens, ..."
The following paragraph is also indicative of the existence of two separate funds:

"If unfortunately there should at any time in the future be no such school kept in the same said section of North Georgia for as much as five years, then the fund set apart for that purpose shall be transferred to the University of Georgia at Athens, and become a part of the fund to be expended in aid of the students there in the manner and on the terms mentioned." (Emphasis added.)

This paragraph presents the strongest indication of the intent of Governor Brown that a fund be located at North Georgia College apart from that located at the University of Georgia in Athens. In order for one fund to be transferred and become a part of another fund, there necessarily must have been two separate funds in two separate locations.
The language of the three previously quoted paragraphs combined with other references to "the fund at Dahlonega" and "the fund set apart" is indicative of the existence of two funds, one in Athens and one in Dahlonega. The management of these funds was placed in the Trustees of the University of Georgia. The fact that management is located in one individual or one body does not negate the proposition that there are two funds.
Today, the Board of Regents of the University System of Georgia, as successors to the Trustees of the University of Georgia and the trustees of the various institutions comprising the University System, are vested with title to this trust property and are thereby trustees of this trust. See Ga. Code 32-112 and 32-118. Since the Board of Regents provides for the management of trust funds by the institution that is the beneficiary of the trust, management and control of that fund designated for the use and benefit of North Georgia College should be transferred to that school.
The only remaining problem is the determination of the proper method by which the fund is to be divided. Again the instrument provides direction in this matter. The fund at North Georgia College was to be established with $1,000 taken annually from the interest on the original $50,000 grant. This fund at North Georgia was to accumulate interest on its own. Therefore, the method of determining the value of the fund for North Georgia College would be to take a thousand dollars annually from 1883 and determine how it would have accrued interest up to the present time. Of course, out of this amount necessarily must be taken the amount of loans that have actually gone to North Georgia College students.

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In spite of previous determinations that this fund cannot be divided, it is my opinion that the Charles McDonald Brown Scholarship Fund does indeed consist of two funds, one for the use and benefit of the students at the University of Georgia, and the other for the use and benefit of the students at North Georgia College. Both funds are to be administered by or at the direction of the Board of Regents. The method of dividing the fund consists of determining the amount that $1 ,000 accumulated annually since 1883 would have accrued in interest, less the amount of loans made to North Georgia College students under this trust.

OPINION 71-147
To: Director, State Department of Family and Children Services

August 13, 1971

Re: Scholarship grants by the Department of Family and Children Services to students wishing to prepare for public assistance employment.
You have requested my opinion on the following questions:
"i. Would it be permissible for the University of Georgia
School of Social Work (or another school funded by the state) to make funds available to the State Department of Family and Children Services for matching federal funds for the purpose of making a direct grant from this department to the school for making direct grants to students wishing to prepare for employment in public assistance?
2. If it is permissible to make such grants, could they be made to persons who are not employed by the department or school at the time the grant is made?
3. If a grant can be made, must there be a designated work commitment following completion of the training, and, if so, for what period of time?''

The answer to your first question, in my opinion, is yes. The department is authorized by law to contract or cooperate with the Board of Regents by accepting funds to be used for the purposes you indicated. See Ga. Laws 1937, p. 355, Ga. Code Ann. 99-123,99-124. Furthermore, the department is authorized to accept federal grants for such purposes and to administer the grants according to the terms provided. Ga. Laws 1945, p. 196, Ga. Code Ann. 99-142 through 99-146; see also Ga. Code Ann. 99-118. The Board of Regents may grant schol-

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arships to qualified students under authority of Ga. Constitution, Art. VII, Sec. I, Par. Il[6], Ga. Code Ann. 2-5402 [6].
In answer to your second question, there is no requirement that the recipient of such a scholarship be employed by the department or school at the time the grant is made (compare, however, graduate or postgraduate scholarships made to state employees by the department under authority of Ga. Constitution, Art. VII, Sec. I, Par. II [7], Ga. Code Ann. 2-5402 [7]).
Ho\\<ever, with respect to your third question, if such scholarship grants are made by an institution under the Board of Regents of the University System of Georgia, the Georgia Constitution imposes the following restriction:

" ... [R]ecipients of such scholarships shall, upon the completion of their programs of study, reside in the State of Georgia and engage in activities for which they were prepared through the scholarships for a period of one year for each $1,000 received" [Art. VII, Sec. I, Par. II (6), Ga. Code Ann. 2-5402(6)].

As an alternative to the procedure you described, you may want to consider an entirely separate provision of the Georgia Constitution which provides:

"The General Assembly is hereby authorized to appropriate funds to any State Department or other State agency for the purpose of being used to obtain funds from the Federal Government for educational scholarships, educational loans, and other educational purposes, and all such State departments and other State agencies shall be authorized to use the funds so appropriated and the funds received from the Federal Government for the purposes authorized and directed by the Federal Government in making such funds available" [Ga. Constitution, Art. V1, Sec. I, Par. Il (lOA), Ga. Code Ann. 2-5402(10A)].

Under this provision the General Assembly could appropriate money to the department to be used for federal matching, and the department could make the scholarship directly to the student. Scholarships made under this provision would carry no restriction as to employment or repayment.
As a second alternative, the department could receive funds from the Georgia Higher Education Assistance Authority under the same procedure as suggested with the Board of Regents; and, under the constitutional amendment and laws governing the Authority, there is no requirement that the recipient be a state employee or repay the scholarship by

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working in Georgia. See Ga. Laws 1969, p. 683, Ga. Code Ann. Chapter 32-37.
Also, you may be interested in knowing that the Georgia constitutional prohibition on gratuities does not apply to state grants for educational purposes. Ga. Constitution, Art. VIII, Sec. XIII, Par. L Ga. Code Ann. 2-7502.

OPINION 71-148

To: Director, Georgia Surface Mined Land Use Board

August 16, 1971

Re: Surface Mined Land Use Board; employee uniforms not to be purchased with state funds.

This is in reply to your letter of June 22, 1971, requesting ny opmwn as to whether the Georgia Surface Mined Land Use Board has legal authority to expend state funds for the purchase of employee uniforms.
As a general proposition, executive officers, boards, departments and commissions have no powers beyond those granted by express constitutional or statutory provision or necessary implication. 81 C.J.S., States. 58.
The Game and Fish Commission (Ga. Code Ann. 45-113, Ga. Laws 1955, pp. 483, 488) and the Department of Public Safety (Ga. Code Ann. 92A-226, Ga. Laws 1949, p. 70) are authorized to purchase uniforms for certain personnel under express statutory provisions. The Georgia Forestry Commission is authorized to purchase uniforms by necessary implication because of its power to maintain equipment and personnel for the detention, prevention and combating of forest fires. Such work with its inherent dangers would demand distinct identification of personnel. See Op. Att'y Gen. 1963, June 14, 1965, p. 398.
The Georgia Surface Mined Land Use Board has no express constitutional or statutory authority to purchase uniforms for its employees. Moreover, I do not think such power can be implied. While the board is a regulatory agency, there are no inherent dangers involved in the duties per~rmed by its personnel so as to demand immediate sight identificatfon by the general public.
Therefore, it is my official opinion that the Georgia Surface Mined Land Use Board is not authorized to expend state funds for the purchase of employee uniforms.

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OPINION 71-149

To: Director, Georgia Department of Public Health

August 16, 1971

Re: Air pollution laws; counties not authorized to enforce state law; proper subjects for local ordinances.

This is in reply to your letter dated August 5, 1971, requesting my official opinion on the following questions:

(1) Is Fulton County authorized to enforce state air pollution laws and regulations?
(2) Does the existence of state-wide laws and regulations preclude local ordinances on the same subject and, if not, must such ordinances conform with state requirements?

In answer to your first question, Ga. Laws 1953, Jan.-Feb. Sess., p. 2718, enacted pursuant to a constitutional amendment ratified in 1952 (Ga. Laws 1951, p. 828), authorizes the commissioners of roads and revenues of Fulton County to adopt a system of rules, regulations and orders covering health and sanitation in Fulton County. However, we have been unable to locate any provision either in the Constitution or laws of the state authorizing the county to enforce the state's health laws and regulations in general or state air quality control laws and regulations in particular.
Therefore, it is my official opinion that Fulton County is not authorized to enforce state air pollution laws and regulations.
Regarding your second question, Art. I, Sec. IV, Par. I of the State Constitution (Ga. Code Ann. 2-401) prohibits the enacting of any special law in any case for which provision has been made by an existing general law. Such provision might logically appear to invalidate any local ordinance affecting air pollution control in the face of existing general state laws on this subject. However, in Wright eta/. v. Richmond County Department of Health eta/., 182 Ga. 651 (1936), the Supreme Court upheld on public health and welfare grounds a local ordinance or regulation limiting the radius of inspections to 60 miles for all milk products sold in Augusta and Richmond County. Petitioners had alleged that such ordinance was in violation of Art. I, Sec. IV, Par. I of the Ga. Constitution in that the state had passed sanitary regulations for dairies, milk depots, milk products, etc. See also Thombley eta/. v. Hightower, 52 Ga. App. 716 (1935), wherein the court upheld a municipal ordinance prohibiting the running at large of cattle or other livestock within its own incorporate limits, notwithstanding the fact that there were general laws

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in existence on the subject, on the ground that the municipality had the right to protect the health, safety and comfort of its citizens.
The courts have been more restrictive, however, when applying Code 2-401 to penal ordinances. While not always in complete harmony, the decisions appear to hold that a municipal ordinance punishing an act made penal by a state law then existing, covering the same subject-matter, must yield to the state law. See Giles v. Gibson, 208 Ga. 850 (1952); Jenkins v. Jones, 209 Ga. 758 (1953). Although there have been several holdings to the effect that the General Assembly may by express enactment authorize a municipality to provide by ordinance for the punishment of an act which in its nature affects the health, peace and good order of the community, notwithstanding such an act has already been made penal under a general law of the State [Hood v. Von Glahn, 88 Ga. 405 (1891); Lanford v. A/friend, 147 Ga. 799 (1918)], such holdings were more recently questioned by the Supreme Court in Jenkins v. Jones, supra.
Therefore, based on the above, it is my official opinion that the existence of general air pollution laws does not necessarily preclude the adoption of local ordinances on the same subject provided such ordinances are of a non-penal nature, are provided for the protection of the health, safety and comfort of the community and are not prohibited by express or implied language in the general law. Of course, cities and counties have only such powers as are granted them by the state and, therefore, the controlling factor would be whether or not local governmental units are authorized to adopt such measures under their charters or laws.
The final question raised is whether a local ordinance covering the same subject as a general law must conform with the requirements of the general law. While there appears to be an absence of Georgia authority expressly on point, the following language is found in American Jurisprudence 2d:

"It is a fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of the state. An ordinance in conflict with a state law of general character and statewide application is universally held to be invalid. The principle is frequently expressed in the declaration that municipal authorities, under a general grant of power, cannot adopt ordinances which infringe the spirit of a state law or are repugnant to the general policy of the
state. * ** Accordingly it has often been held that a municipality
cannot lawfully forbid what the legislature has expressly licensed, authorized, permitted, or required, or authorize what the legislature has expressly forbidden. "The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from

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exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal ordinance are not in themselves pernicious as being unreasonable or discriminatory, both will stand. . " 56 Am. Jur. 2d, Municipal Corporations, 374 (1971).

Based on the above language, it is my official opinion that a local ordinance covering the same subject as a general law must conform with the provisions of the general law, but may exact additional requirements.

[For modification of this Opinion as to Fulton County, see Op. Att'y Gen. 71-201, infra.]

OPINION 71-150

To: Director, State Highway Department

August 19, 1971

Re: State Highway Departments; issuance of permits for outdoor advertising signs.

This is in reply to your letter dated August 18, 1971, in which you state that the issuance of permits authorizing the erection and maintenance of outdoor advertising devices along interstate and primary highways has been temporarily suspended. In view of the receipt of several applications for permits for signs in areas subject to regulation by the State Highway Department, you have asked what action, if any, the State Highway Department should take concerning those applications.
On and after January 1, 1968, no sign, with specified exceptions, subject to regulation by the Georgia Outdoor Advertising Act (Ga. Laws 1967, p. 423 (Ga. Code Ann., Chapter 95-20A)] "shall be maintained without a permit issued by the State Highway Department."
After making provision for a permit system, the General Assembly has required that "the State Highway Department shall within 30 days from receipt of application issue a permit for the sign, display or device covered by the application duly made as aforesaid unless it is in violation of this Act." Ga. Laws 1967, pp. 423, 428 (Ga. Code Ann., 952006a).
As for applications for sign permits which are properly executed and received seeking authorization for the erection and maintenance of outdoor advertising devices which comply with the requirements of Ga. Laws 1967, p. 423, the General Assembly has required the issuance of permits. One of the basic rules governing statutory construction is that

"the use of plain and unequivocal language in a legislative enact-

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ment obviates any necessity for judicial" construction, and indeed forbids an interpretation of the meaning of the words employed by the General Assembly." Burnam v. Wilkerson, 217 Ga. 657, 660.

The legislative language employed with respect to the issuance of permits is plain and unambiguous. Therefore that particular language is not subject to construction or interpretation.
It is my opinion that the State Highway Department must grant permits, upon receipt of proper applications, authorizing the erection and maintenance of outdoor advertising devices which comply with the requirements of Ga. Laws 1967, p. 423.

OPINION 71-151

To: Secretary of State

August 20, 1971

Re: Elections; for voting purposes, an 18-year old may establish a residence apart from the residence of his parents.

You have requested an official opinion on whether a student may establish a residence apart from the residence of his parents for the purpose of registering to vote.
"Residence" under Georgia's election laws (Ga. Laws 1964, Extra. Sess., p. 26, Ga. Laws 1968, p. 885, codified respectively as Ga. Code Titles 34 and 34A) means domicile. Ga. Code 34-l03(aa), 34A103(ab). One's domicile is his place of permanent residence and is the result of actual residence without any present intention of leaving, and to which, whenever he is absent, he intends to return. Ga. Code 34632(a); Ga. Code Chapter 79-4; Worsham v. Ligon, 144 Ga. 707, 87 S.E. 1025 (1916). A person may be residing in two or more different counties at the same time, but only one may be his domicile and the person usually has the privilege of electing which shall be his domicile. Ga. Code 79-402.
For general purposes, Georgia, as most states, fixes the domicile of a minor as that of his father. Ga. Code 79-404. Until a minor reaches majority (21 years) or otherwise becomes emancipated, he is not sui juris; that is, he does not possess full social and civil rights. R. Stubbs, A Summary of the Georgia Law of Children, 84, 97 (1969).
The question for us to decide is whether an 18-year old should be considered sui juris for voting purposes, so that he would be allowed to establish his domicile of his own accord.
In 1943, Georgia granted the franchise to its 18-year old citizens. In 1971, the rest of the United States followed this lead and passed the 26th Amendment, which granted the right to vote to all 18-year olds.

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The 26th Amendment decrees:

"The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."

If citizens under 21 years are prohibited from establishing a residence of their own for voting purposes while citizens over 21 years are not, then, in a very real sense, voting rights are being denied to those under 21 on account of their age. The clear language of the Amendment, together with its legislative history, indicates that this result would violate the Jetter and spirit of the Amendment. Senate Judiciary Committee, S. Rep. No. 92-26, 92d Cong., 1st Sess., [Report accompanying S. J. Res. 7 (1971), p. 14]. As further evidence of this intent, see Title III of the Voting Rights Act Amendments of 1970, esp. 302 (42 U.S.C.A. 1973 bb-1) and 42 U.S.C. 1971 (a)(2)(A).
There are numerous reasons why citizens under 21 may validly be treated as sui juris for voting. For census purposes, college students (no matter what age) are considered residents of the college communities in which they were residing while attending college. It is this population figure which determines the amount of state and federal grants to the community, as well as the population figure used in apportionment under the "one man-one vote" principle. If these communities rely on the students to gain more grant money and more representation in apportionment, then it may not be unreasonable to also consider them residents for the purposes of voting.
In a recent U.S. Supreme Court case on the question of whether residents of a federal enclave could vote in state and local elections, the Court decided that the state could not prohibit these residents from voting. The principal reasons relied on by the Court would also apply to college students, that is, they are included in census figures, the state criminal laws apply to them, the use of state courts is available to them and a significant share of the state's revenue is derived from the various taxes paid by them. Evans v. Cornman, 398 U.S. 419 (1970).
A student is affected by the executive, legislative and judicial decisions reached by local and state officials in the community. A student has the same opportunity to observe local conditions, has the same access to the news media and presumably has the same stake in the outcome of the elections as any other citizen in the community. To now decide that a student be treated differently, and made to vote in a community other than where he resides, because of an ancient artificial assumption of residence with parents, would be to deny the teachings of recent history, as well as a likely unconstitutional discrimination. Carrington v. Rash, 380 U.S. 89 (1965).

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After a review of these materials, it is our opinion that a citizen over 18 years but under 21 years is sui juris for voting purposes and that he can establish a residence apart from the residence of his parents. Further, there is no reason to differentiate between students and others under 21. For voting purposes, either may establish a residence separate from his parents.
This opinion is not meant to imply that a student, or anyone, must register in his college town or that any other provision of the election law does not apply to him. A student must still fulfill the residence requirements established by law and each application should be decided by the voter registrars in accordance with established principles of determining residence. Ga. Code 34-632, 34A-523. This opinion only decides that a citizen under 21 is sui juris for voting purposes and is capable under the law of establishing a separate residence if the requisite facts are present.
It should also be stressed that a person may only have one voting residence in Georgia and that voting in more than one election district in the same primary or election is a felony. Ga. Code 34-1930.

OPINION 71-152

To: Chairman, Georgia Peace Officer Standards and Training Council

August 24, 1971

Re: Peace Officer Standards and Training Act; rights of persons employed previously to Act returning from military service.

This replies to your request for my opinion as to whether certain former peace officers are required to comply with pre-employment standards of the Georgia Peace Officer Standards and Training Act. Ga. Laws 1970, p. 208, Ga. Code Ann. Chapter 92A-2l. It is my understanding that you are concerned about certain applicants who were employed by law-enforcement units, as defined in the Act, as peace officers prior to the effective date of the Act (July l, 1970), who left such employment for the purpose of entering the armed services, and, who upon being honorably discharged or having otherwise satisfactorily completed a period of training or service now seek to return to their previous position with their pre-service employer.
The "grandfather clause" (Ga. Code Ann. 92A-2113) contained in the Act covers only peace officers actually employed in the state on the effective date of the Act, and the Act is otherwise silent on the point raised by your inquiry. Thus, where the returning veteran was not employed as a peace officer in the state on the effective date of the Act, any right which he might have to re-employment without meeting the

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pre-employment standards imposed by the Act must be grounded in federal statute.
The Selective Service Act of 1967, 50 U.S.C.A. App. 451 et seq. (1968 Ed.) provides certain re-employment rights for returning veterans. Paragraph (C) of subsection (b) of Section 9 of the Selective Service Act of 1967 declares the sense of the Congress as to the re-employment of persons inducted into the armed forces from positions of employment with a state or political subdivision thereof. 50 U .S.C.A. App. 459 (b)(C) (1968 Ed.). These re-employment rights are predicated upon the person's entitlement to a certificate establishing his completion of his period of training and service for which he was inducted pursuant to the provisions of the federal enactment in question. 50 U .S.C.A. App. 459(a) (b). These rights are further conditioned upon the person in question making application for such re-employment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period not to exceed one year. 50 U .S.C.A. App. 459 (b) (1968 Ed.).
It is thus my opinion that a person who is inducted into the armed forces prior to the effective date of the Georgia Peace Officer Standards and Training Act in accordance with the Selective Service Act of 1967 from a position as a peace officer with a law-enforcement unit of this state, as defined within the Act, is entitled to return to his position as a peace officer by invoking the benefits of the "grandfather clause" which, but for the fact of his induction prior to the effective date of the Act, would have been available to protect his position as a peace officer from the enhanced qualifications of the Act, provided that he complies with the satisfactory-completion and timely-application provisions of the federal statute.
Subsection (g) of Section 9 of the federal statute, 50 U.S.C.A. App. 459 (g), extends identical re-employment benefits to persons enlisting or called to active duty in the armed services subject to certain enumerated time-of-service limitations imposed upon the various categories of enlistment and calls to active duty. In normal circumstances, this time-of-service limitation is pegged at four years; however, it is subject to sufficient variables to make an independent analysis necessary in certain individual instances.
It is my understanding that your inquiry is directed to instances where the peace-officer applicant seeks to return to a peace-officer position with his pre-service employer, and I have limited my opinion to this factual situation. At this time, I express no opinion as to whether such an applicant would be entitled to the benefits of the "grandfather clause" should he seek a position with another law-enforcement unit of this state or any of its political subdivisions. I note in passing that subsection (c) of Section 9 of the federal enactment is expressly inapplic-

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able to persons employed by the states and their political subdivisions; however, it has always been the policy of the State of Georgia to extend its employment benefits and the effect of its laws to returning veterans on a "but for" basis. To the extent that the Act may not accomplish this purpose the Council may desire to seek legislative clarification.

OPINION 71-153

To: Director, Georgia Department of Public Health

August 31, 1971

Re: Medicaid; authority of State Board of Health to limit time in which claims to be presented.

This is in response to your recent letter wherein you inquired whether the State Board of Health can legally pass a resolution limiting the period within which claims must be submitted by providers of Medicaid services in order to receive payment. Your letter advises that if such a limit could be effected, the Board of Health would be better able to determine and plan for the State of Georgia's obligation under the Medicaid program and better fund management would be facilitated.
As you are aware, the State Department of Public Health is authorized to administer the Medical Assistance Program for Georgia (Medicaid) in accordance with Title XIX of the Social Security Act (Pub. L. No. 89-97, 42 U.S.C.A. 1396 et seq.) and Ga. Laws 1967, pp. 87880 (Ga. Code Ann. Chapter 99-29). (See Op. Att'y Gen. 67-273.)
The Code of Federal Regulations, specifically 45 C. F.R. 249.81, provides, in essence, that state vendor payments (payments to providers of Medicaid services) are eligible for Federal financial participation so long as, inter alia, not more than 24 months have elapsed since the month of the latest services for which the particular payment is being made with respect to the individual. This regulation was duly promulgated pursuant to Title XIX of the Social Security Act, supra, and approved on February 5, 1971, by the Secretary of the Department of Health, Education and Welfare. It places a limitation on the time within which a claim of a provider must be presented for payment to be eligible for federal fund participation. We have received a letter, copy attached, from the Regional Office of the Department of Health, Education and Welfare indicating that this "24-month limitation" is a ceiling and that, as far as HEW or federal law is concerned, the state agency administering Georgia's Medical Assistance Program may establish lesser or shorter time limits within which claims must be submitted for payment.
Turning to state law, I have researched the applicable provisions of Georgia statutory law implementing the Social Security Act's Title XIX

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Program (Ga. Laws 1967, pp. 878-80 (Ga. Code Ann. 99-=-2902-992904, 99-2913) and can find no prohibition against the State agency (charged with administration of Medicaid) limiting even further the time within which claims must be presented for payment.
Based on the foregoing, therefore, I am of the opinion that the State Board of Health, as administrator of Georgia's Medicaid program, is not prohibited from limiting the time within which claims of providers of Medicaid services must be presented for payment. Naturally, you would want to be sure that the time limitation left an adequate amount of time for the submission of these claims and that due notice was given all providers of Medicaid services.

OPINION 71-154

To: Director, Department of State Parks

September 1, 1971

Re: Liability insurance; may be purchased by state agency for another party where part of consideration of contract.

You have requested my opinion as to whether or not the Department of State Parks may purchase a policy of liability insurance pursuant to the terms of a lease agreement between the department and the Department of the Army, Corps of Engineers.
The agreement in question is a long term lease pursuant to which the Department of State Parks, as lessee, is given the right to operate a public park on the leased property in consideration of which the department has agreed to comply with certain "conditions." One of these conditions, set out in paragraph 11 of the agreement, is that the lessee obtain liability or indemnity insurance in certain specified amounts.
In compliance with that condition, the Department has previously obtained a policy of liability insurance which designates the Department of the Army, Savannah District Corps of Engineers, as the insured. It is my opinion that the policy conforms to the meaning and intent of paragraph ll of the lease, since the purpose of that paragraph was clearly to protect the lessor and not the lessee.
Although a state agency may not purchase liability insurance to protect itself, since it is immune from suit, I have previously held that such insurance may be purchased to protect another party when the purchase of such insurance is the consideration furnished pursuant to an agreement. See Op. Att'y Gen. 70-57, a copy of which is enclosed for your convenience in reference.
It is therefore my opinion that the Department of State Parks may legally purchase the policy of public liability insurance under the circumstances discussed herein.

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OPINION 71-155

To: Assistant Executive Counsel, Office of the Governor

September 3, 1971

Re: Peace officers; Park Department employees as peace officers, but not eligible for Peace Officers Annuity and Benefit Fund.

This is in reply to your recent memorandum requesting an opinion concerning the appointment of certain Parks Department personnel as peace officers. You have posed two questions which are answered below.

1. Does the Governor have legal authority to designate a member of the Parks Department as a peace officer?

Georgia Code Annotated 43-124, based upon Ga. Laws 1937, p. 264, as amended, in enumerating the powers and duties of the Parks Department, provides:

"G) Rules and regulations; peace officers. To establish and from time to time alter rules and regulations governing the use, occupancy and protection of the land and property under its control and to preserve the peace therein. The Comissioner is hereby empowered to confer on the Director and such other employees as he may designate the full authority of peace officers for all land and property under its control."

The commissioner referred to in the statute as having the power to grant peace officers authority is the Commissioner of the Division of Conservation. Ga. Code Ann. 43-101, Ga. Laws 1943, p. 180. It is my understanding that Mr. Hamilton Jordan was recently appointed by the Governor to act in that capacity and, therefore, would have the authority to make such appointments at the direction of the Governor.

2. Would a Parks Department employee who has been so designated as a peace officer be entitled to participate in the Peace Officers' Annuity Fund?

To be eligible for membership in the Peace Officers' Annuity and Benefit Fund, the applicant must be a "peace officer" as defined in the Peace Officers' Annuity and Benefit Fund Statute, Ga. Laws 1950, p. 50, as amended, Ga. Code Ann. 78-901. As applicable here, that section provides that the term "peace officer" shall mean any peace

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officer employed by the state or a political subdivision thereof who devotes his full time to being a peace officer.
The Georgia Supreme Court has further defined "peace officer" in Board of Commissioners. eta/. v. Clay eta/., 214 Ga. 70 (1958). There the Court held that Motor Carrier Inspectors were not peace officers. They reasoned that eligible persons must be peace officers in a general sense, with broad arrest and investigative powers and activity. This decision has been followed in ruling that fire marshals [Vandiver v. Endicott, 215 Ga. 250 (1959)] and health officers [Connors v. Vandiver, 215 Ga. 371 (1959)] are not peace officers since they have limited direct activity in the broad aspects of law enforcement. This definition has also been followed by an opinion of the Attorney General which held that because a Public Service Commission Enforcement Officer had limited enforcement powers, he was not a "peace officer." Op. Att'y Gen. 67-254.
Since the peace office authority of Parks Department employees is limited by Ga. Code Ann. 43-l24(j) to enforcing laws on State Park property and since the employees will not be devoting full time to work as general law enforcement officers, it is my opinion that they are not eligible for participation in the Peace Officers' Annuity and Benefit Fund.
However, in order to preclude any false impressions on the part of Parks Department employees who might be appointed peace officers, it is my recommendation that, when appointed, each person be advised that his appointment is in addition to his regular duties and that the appointment does not give him the right to participate in the Peace Officers' Annuity and Benefit Fund.

OPINION 71-156

To: Chairman, State Board of Dispensing Opticians

September 10, 1971

Re: Eyeglasses; statutory requirements for safety lenses and nonflammable frames not applied to sunglasses not issued on prescription.

Yo'u have requested my official opinion on the question of whether after July l, 1971, plano noncorretive sunglasses are required to have impact resistant, plastic or laminated lenses (safety lenses), and whether the frames of such sunglasses must be made of nonflammable materials pursuant to Ga. Laws 1970, pp. 30, 31 (Ga. Code Ann. 92A-l90l ). This 1"\.Ct provides as follows:

"(a) No person shall distribute, sell or deliver any prescription eyeglasses or sunglasses unless said eyeglasses or sunglasses are

207
fitted with heat-treated glass lenses . . . plastic lenses, or laminated lenses, except those cases where the physician or optometrist, having found that such lenses will not fulfill the visual requirements of the particular patient, directs in writing the use of other lenses, and gives written notification thereof to the patient," (Emphasis added.)
The Act further pro\(ides:
"(b) No person shall distribute, sell, exchange or deliver . any prescription eyeglass frame or sung/ass frame containing any ... highly flammable materials." (Emphasis added.)
The statutory phrase, "prescription eyeglasses or sunglasses," is grammatically ambiguous as to whether the term "prescription" modifies "sunglasses" as well as "eyeglasses." The resulting construction will determine whether only prescription sunglasses must have safety lenses or whether all plano sunglasses of the ordinary "drugstore" variety must be likewise treated. In questions of this nature, the goal is to find the intent of the General Assembly by examining the statute as a whole rather than isolating its constitutent parts. Ga. Code Ann. 102102(9); City of Macon v. Georgia Power Company, 171 Ga. 40(3) (1930).
I conclude that the General Assembly did not intend that plano noncorrective sunglasses should have safety lenses pursuant to the Act in question for the following reasons:
First, the exception contained in the first paragraph of the Act, i.e., where a physician or optometrist finds that the safety lenses will not meet the visual requirements of the particular patient, would have no meaning with respect to plano noncorrective sunglasses since these are normally sold without professional consultation or a prescription. On the other hand, the exception is completely meaningful if the Act deals only with prescription eyeglasses and prescription sunglasses. This latter interpretation is indicated by the rule of statutory construction that "every part of a statute must be viewed in connection with the whole, so as to harmonize all its parts if practicable and give a sensible and intelligent effect to each, for it is not to be presumed that the legislature intended any part of the statute to be without meaning." State Revenue Commission v. Alexander, 54 Ga. App. 295, 296 (1936).
Secondly, one of the sanctions imposed for violation of this Act is "suspension of the violator's license to practice." Ga. Code Ann. 92A-9931. All licensed professions or occupations concerned with the dispensing of eyeglasses deal only with those of the prescription variety. See Ga. Laws 1916, p. 83, Ga. Code Ann. Chapter 84-11 (Opto-

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metrists) and Ga. Laws 1956, p. 148 Ga. Code Chapter 84-35 (Dispensing Opticians). Thus, the license suspension sanction further indicates that the Act applies only to prescription sunglasses.
Thirdly, violation of the Act carries criminal penalties, Ga. Code Ann. 92A-993l, and cri ~inal statutes must be strictly interpreted. Glustram v. State, 206 Ga. 734 (1950). It is settled law in this state that a criminal statute cannot be expanded by implication or to the point of ambiguity. Wood v. State, 219 Ga. 509 (1963); State v. Schafer, 82 Ga. App. 753, 756 (1950). I an informed by the English Department of Georgia State University that the Act as written is ambiguous; a strict construction, therefore, would limit its application to only prescription sunglasses.
For the reasons discussed in the last two paragraphs, I also conclude that the provision of the Act prohibiting the sale or distribution of prescription eyeglass frames or sunglass frames containing cellulose nitrate or highly flammable materials applies only to prescription sunglass frames.

OPINION 71-157

To: Joint Secretary, State Examining Boards September 10, 1971

Re: Drugs; an intern or resident may prescribe narcotics under certain conditions.

You have requested my opinion on the question of whether interns and residents are authorized under the laws of this state to dispense or prescribe narcotics.
At the outset, the Uniform Narcotic Drug Act, Ga. Laws 1967, pp. 296, 325 (Ga. Code Chapter 79A-8) makes clear that an intern may "administer" narcotic drugs under the direction and supervision of a physician. Ga. Code Ann. 79A-808(1). The word "administration" is defined for purposes of the drug laws as "the giving of a unit dose of medication to an individual patient as a result of an order of an authorized practicioner of the healing arts." Ga. Code Ann. 79A-l02(a).
The next question is whether an intern or resident can also be considered a "physician" authorized by law to practice medicine or treat sick and injured human beings in this state and to prescribe, administer and dispense narcotic drugs in connection with such treatment, pursuant to Ga. Code Ann. 79A-802(2) and 79A-808(1 ).
A person is "practicing medicine" in Georgia if he does, inter alia, the following:

" ... suggest, recommend or prescribe any form of treatment for

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the palliation, relief or cure of any physical or mental ailment of any person with the intention of receiving therefor, either directly or indirectly, any gift, or compensation whatsoever. ..." (Ga. Code Ann. 84-906, as amended by Ga. Laws 1970, p. 301.) (Emphasis added.)

In 1970, the General Assembly added an amendment to this section which, in effect, allows an intern or resident to "practice medicine" in a hospital approved by the Composite State Board of Medical Examiners "to the extent required by the duties of his position or by his program of training for a period of two (2) years and for such additional period as the Board by application may determine." Ga. Laws 1970, pp. 301, 306 (Ga. Code Ann. 84-906). There would appear to be no doubt that a physician is authorized to prescribe such narcotics as are generally accepted as being necessary or incidental to the practice of medicine. Ga. Code Ann. 79A-808(1); Op. Att'y Gen. 1968, p. 72. Therefore, the conclusion seems inescapable that to the extent an intern or resident is authorized by law to practice medicine in this state, i.e., "to the extent required by the duties of his position or by his program of training," he is a "physician authorized by law to treat sick and injured human beings ... and to use narcotic drugs in connection with such treatment" within the meaning of Ga. Code Ann. 79A-802(2) and 79A-808(1).
However, I have also considered the point that the General Assembly, by specifically authorizing an intern to "administer" narcotics under the direction and supervision of a physician, Code 79A-808(l ), may have intended to withhold from an intern the additional authority to "prescribe or dispense" narcotics as a "physician." See doctrine of "expressio unius est exclusio a/terius," Ga. Code Ann. 102-102(9). However, I am persuaded that this doctrine does not apply to this particular case for the following reasons.
First, the Uniform Narcotic Drug Act specially defines the term "physician" in the broad sense as "a person authorized by law to practice medicine in this state and any other person authorized by law to treat sick and injured human beings in this state and to use narcotic drugs in connection with such treatment." Ga. Code Ann. 79A-802. Whereas, other Chapters of the drug laws use the term "physician" in a more restricted sense, i.e., "an individual licensed to practice medicine" [emphasis added], Ga. Code Ann. 79A-102(p). An intern does not, strictly speaking, hold a "license" from the Medical Board, but he is clearly authorized to "practice medicine" and "prescribe any form of treatment," etc., under the conditions noted above. Secondly, the statutory authority of an intern to practice medicine was granted by an Act passed later than the Uniform Narcotic Drug Act; thus, to the extent that there is a conflict between the Uniform Narcotic Drug Act,

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enacted in 1967, ahd the 1970 amendment to the Medical Practice Act, the later in time would control. Ga. Code Ann. 102-102 (general note), anno., "Last expression". Thirdly, the term "intern" as used in Ga. Code Ann. 79A-808(1) could still have meaning with respect to dentists and other classes of practitioners having authority to prescribe narcotics. See State Revenue Commission v. Alexander, 54 Ga. App. 295, 296 (1936).
Finally, I am informed that the practice in many hospitals, particularly the metropolitan hospitals which handle a large volume of emergency cases on a 24-hour basis, would simply grind to a halt if its interns were not allowed to prescribe narcotics. Of course, any restrictions could be placed on the use of narcotics by an intern or resident by his supervising physician in the hospital where he practices or by limitations on the "duties of his position or his program of training." Ga. Laws 1970, pp. 301, 306.
It should also be mentioned that this opinion applies only to state authority and in no way binds the federal authorities who have the responsibility of issuing narcotic permits and enforcing the federal narcotics laws.
In summary, it is my official opinion that an intern or resident accepted for specialty or residency training in a hospital approved by the Composite State Board of Medical Examiners may, within the bounds of the Georgia Uniform Narcotic Drug Act, prescribe, administer and dispense narcotic drugs to the extent required by the duties of his position or by his program of training for a period of two (2) years and for such additional period as the board by application may determine.

OPINION 71-158

To: Joint Secretary, State Examining Boards September 10, 1971

Re: Administrative procedure; a board "resolution" having the effect of a "rule" as defined by the Administrative Procedure Act must be adopted pursuant thereto.

You have requested an official opinion on the following question:

"If a board passes a resolution and enters it into their minutes ... , does a resolution have the same force and effect as a rule and regulation that is adopted under the Administrative Procedure Act?"

The definition of a "rule" under the Administrative Procedure Act, Ga. Laws 1964, p. 338 (Ga. Code Ann. 3A-102) is as follows:

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"(f) 'Rule' means each agency regulation, standard or statement of general applicability that implements, interprets or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term includes the amendment or repeal of a prior rule but does not include the following:
"1. Statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public;
"2. Declaratory rulings issued pursuant to 3A-112~ "3. Intra-agency memoranda; "4. Statements of policy or interpretations that are made in the decision of a contested case; "5. Rules concerning the use or creation of public roads or facilities which are communicated to the public by use of signs or symbols; "6. Rules which relate to the acquiring, sale, development and management of the property (both real and personal) of the state or of an agency; "7. Rules which relate to contracts for the purchases and sales of goods and services by the state or of an agency; "8. Rules which relate to the employment, compensation, tenure, terms, retirement or regulation of the employees of the state or of an agency; "9. Rules relating to loans, grants and benefits by the state or of an agency; "10. The approval or prescription for the future of rates or prices."
Any rule, regulation, resolution, etc., by whatever name called, which falls under the quoted definition of a "rule" must be adopted pursuant to the Administrative Procedure Act if it is to be valid against any person or party. Ga. Code Ann. 3A-103(b). In other words, a board "resolution" having the effect of a "rule" as defined by the Administrative Procedure Act must be adopted pursuant to the procedure for adoption of rules, i.e., Ga. Code Ann. 3A-104 through 3A-107.

OPINION 71-159

To: Director, State Department of Family and Children Services

September 21, 1971

Re: Juvenile offenders; commitment to custody of Department of Corrections.

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This will acknowledge your request of recent date for my official opinion concerning the validity of 24A-2304 of the 1971 Juvenile Court Code of Georgia, officially codified from Ga. Laws 1971, p. 709 as Ga. Code Title 24A.
Ga. Code 24A-2304 states that:

"[i]n event a delinquent or unruly child is found not to be amenable to rehabilitation or treatment, the juvenile court may commit said child to the custody of the Department of Corrections."

At first blush, this Code section appears to be in direct conflict with Ga. Code 24A-2401. The latter Code section reads in its applicable parts, as follows:

"(a) [a]n order of disposition or other adjudication in a proceeding under this Act is not a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction. . . . A child shall not be committed to any penal institution or other facility used primarily for the execution of sentences of persons convicted ofa crime." [Emphasis added.]

Ga. Code 24A-2304 thus provides for commitment to the Department of Corrections whereas Ga. Code 24A-2401 states that no child's disposition shall be to a penal institution which executes sentences given to convicted criminals. The Department of Corrections was created to control the state penal system and its inmates (Ga. Constitution of 1945, Art. V, Sec. V, Par. I, Ga. Code Ann. 2-3401 ), with no mention made of responsibility to treat and rehabilitate children. This latter duty is the responsibility of the Department of Children and Youth, Ga. Laws 1963, pp. 81, 82, 83 (Ga. Code Ann. 99-202).
The settled law of this state, however, is that in the construction of a statute, all parts of the statute should be construed so as to be given their full force. Bibb County v. Hancock, 211 Ga. 429,86 S.E.2d 511 (1955); Daniel v. Citizens & Southern Nat/. Bank, 182 Ga. 384, 185 S.E. 696 (1936); Undercofler v. Capital Auto. Co., lll Ga. App. 709, 143 S.E.2d 206 (1965).
Construing these sections together, it is our opinion that a child could be committed to the Department of Corrections if the department can place the child in an institution other than one prohibited by Ga. Code 24-240 I, i.e. the child may not be placed in an institution which is used primarily for the execution of sentences of persons convicted of a crime. If the department now has or will have in the future any such institutions, then a juvenile could be committed to it. If the department has no such institutions, then the prohibition in the Jaw would prevent placing a child with the department.

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OPINION 71-160

To: Director of Corrections

September 29, 1971

Re: Prisons pnd prisoners; transfer by Board of Corrections pending habeas corpus adjudication.

By letter you have requested my opinion as to whether there are any legal restrictions regarding the transfer of inmates from one institution to another subsequent to an application for a writ of habeas corpus having been filed. You indicate that the problem is most acute with respect to the Georgia Diagnostic and Classification Center, the distinct possibility existing that if inmates must be retained at the institution from which they have filed their application for a writ of habeas corpus pending the disposition of such an application that the facility may become overcrowded and unable to receive new inmates entering the system.
The Habeas Corpus Act of 1967 provides that the custody and control of a petitioner for habeas:.corpus relief shall be retained by the Board of Corrections or such other authority having custody of petitioner and that it shall be the duty of the Board or such other authority to produce the applicant at such time and places as the habeas corpus court may direct. Ga. Laws 1967, pp. 835, 836, Ga. Code Ann. 50-127(5). This provision of the statute is silent as to any requirement that once the jurisdiction of a habeas corpus court attaches that the prisoner must be retained within that jurisdiction.
There is no comparably identical provision in the federal habeas corpus procedure. The federal law does not appear to contemplate a freeze of an applicant's status merely upon the filing of an application. 28 U.S.C.A. 2243 (1971 Rev.). The federal statute would appear to be satisfied so long as the person having custody of the particular inmate makes him available for such proceedings as the court may by order require. Since, as a practical matter, most, if not all, applications for habeas corpus relief are being transferred to the United States District Court for the district wherein the inmate was convicted and sentenced, there would appear to be no reason for fixing custody in the original district of filing at the time of filing. 28 U.S.C.A. 2241 (d) (1971 Rev.). A transfer pending issuance of an order to show cause would not have the effect of defeating the court's jurisdiction, and a transfer following an order to show cause can probably be cleared with the federal court without much difficulty.
It is therefore my opinion that an applicant for habeas corpus relief may be transferred from one institution to another so long as ( 1) the board retains custody of the petitioner, and (2) that the authority pro-

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duce the petitioner at such time and places as the habeas corpus court may direct. It is therefore my opinion that you may continue to operate your system in an efficient and intelligent manner subject to the sole restriction that an applicant for habeas corpus relief becomes ineligible during the pendency of his application for transfer to a county work camp or other institution or form of restraint not maintained by the Board of Corrections.

OPINION 71-161

To: Director, Department of Family and Children Services

October I, 1971

Re: State Board for Children and Youth; establishment of admission procedures for regional detention c~nters.

Your letter of September 13,1971 requested an opinion on the question of whether or not the State Board for Children and Youth has the right to set admission procedures and policies for regional detention centers.
The answer to this question is found in Ga. Code Ann. 99-206(b) (Ga. Laws 1963, pp. 81, 91) which reads as follows:

"(b) The board shall establish rules and regulations for the government, operation and maintenance of all training schools, facilities and institutions now or hereafter under the jurisdiction and control of the board, bearing in mind at all times that the purpose for existence and operation of such schools. facilities and institutions, and all activities carried on therein, shall be to carry out the rehabilitative program provided for by this Chapter, and to restore and build up the self-respect and self-reliance of children and youth lodged therein so as to qualify and equip them for good citizenship and honorable employment."

A 1964 Opinion of the Attorney General (Op. Att'y Gen. 1963-65, p. 476, 481 ), a copy of which is enclosed, concluded that the admission procedures and policies pertaining to training schools were matters exclusively within the discretion of the Board for Children and Youth's rule-making power.
Based upon this conclusion and the fact that Ga. Code Ann. 99206(b) expressly extends this rule-making power not only to the operation and maintenance of training schools but also to any facility or institution under the jurisdiction and control of the Division for Children and Youth, it is my opinion that the admission procedures and policies

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pertaining to regional detention centers are likewise within the discretion of the division.

OPINION 71-162

To: Superintendent of Banks

October 4. 1971

Re: Banks and banking; state banks in places exceeding 5,000 inhabitants prohibited from acting as insurance agents.

You request our official opinion on two questions as follows: first, whether a state bank may act as an insurance agent for any insurance company authorized to do business in Georgia and second, whether a state bank could legally own stock in a subsidiary corporation organized for the purpose of acting as insurance agent, particularly with respect to the sale of ordinary life insurance.
State banks are not explicitly authorized to act as insurance agents for the purpose of soliciting or selling life insurance policies. Ga. Code 13-1801. Any authority to act as insurance agent must come from the so-called "incidental powers" provision of the Georgia banking law. This provision states that a bank has the corporate power to exercise.

"all such incidental powers as shall be necessary to carry on the business of banking when approved by the Superintendent of Banks: Provided. however, that such incidental powers shall not be greater than the powers and activities permitted to National Banking Associations under the laws of the United States." Ga. Code 13-1802.

It is therefore necessary to examine national banking laws to determine what powers and activities are permitted to national banks.
The national banking laws prohibit a bank located and doing business in a place which exceeds the population of 5,000 inhabitants from acting as an insurance agent for any fire. life or other insurance company. 12 U.S.C.A. 92; Ga. Ass'n of Independent Ins. Agents v. Saxon, 268 F. Supp. 236 (N.D. Ga. 1967), affd, 399 F.2d 1010 (1968).
Since Georgia's "incidental powers" provision limits a state bank's incidental powers to those no greater than the powers and activities of national banks and it is clear that national banks may not act as insurance agents in communities exceeding 5,000 inhabitants, it follows that a state bank must be limited in the same manner. Those state banks doing business in locations having a population of 5,000 inhabitants or less would have the incidental power to act as an insurance agent if this

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activity is approved by the Superintendent of Banks. Ga. Code 131802, Ga. Laws 1968, p. 1044.
As for purchasing stock in a subsidiary corporation organized for the same purpose, Georgia law limits a bank's purchase of stock of a subsidiary corporation to a subsidiary which is organized for the purpose of exercising the incidental powers authorized under section 13-1802. Since we have determined that the activity of acting as an insurance agent must be limited to communities not exceeding 5,000 inhabitants, it follows that no bank may invest in a subsidiary under Georgia banking law unless the subsidiary is also operating in a community having 5,000 inhabitants or less. Ga. Code 13-2023(h), Ga. Laws 1968, p. 1162.
It is therefore our official opinion that state banks doing business in a place exceeding 5,000 inhabitants may not act as the agent in soliciting and selling insurance policies for any insurance company.

OPINION 71-163

To: Joint-Secretary, State Examining Boards

October 4, 1971

Re: Used car dealers; same licensing procedure for retail and wholesale dealers.

You have asked whether the Used Car Dealers' Registration Act requires that board to issue a wholesale dealers license. The provisions of that Act relative to licensing refer only to used car dealers and do not distinguish between wholesale and retail. Ga. Laws 1958, pp. 55, 58, as amended (Ga. Code Ann. 84-3907(a) and 84-3908(a)). The only distinction made between the two types of dealers is that a retail dealer must maintain an established place of business which must be shown on the retail dealer's license application, whereas a wholesale dealer need not maintain such an establishment. Ga. Laws 1958, pp. 55, 58, as amended (Ga. Code Ann. 84-3902(d) and 84-3908(b )).
Therefore, each type of used car dealer should receive equal treatment and consideration from the board in all circumstances with the single exception of requiring an established place of business.
As a practical consideration, it should be recognized that since the license requirements are less demanding on the wholesale dealers, some distinction must be made to distinguish between the two types of licenses. This does not mean, however, that these dealers are not subject to the same laws and regulations as retail dealers.

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OPINIO~ 71-164

To: Director, State Highway Department

October 5, 1971

Re: State Highway Department; inability to comply with Uniform Relocation Assistance and Real Property Acquisition Policy Act where same conflicts with state law.

This is in response to your letter dated September 29, 1971, wherein you request my opinion as to whether the State Highway Department could comply, under existing State law, with Sections 301 and 302 of Public Law 91-646.
Section 301 (3), Public Law 91-646, requires that to the greatest extent practicable any decrease or increase in the fair market value of real property prior to the date of valuation caused by the public improvement for which such property is acquired or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner, be disregarded in determining the compensation for the property. In addition, 36 Fed. Reg. 9190 (1971), requires that at any time an offer is made to purchase real property a written statement shall be provided to the owner of that property which shall contain among other things a statement that the basis for the amount estimated to be just compensation disregards any decrease or increase in the fair market value caused by the project for which the property is being acquired.
Decisions of the Supreme Court of Georgia hold that in determining just and adequate compensation for condemned property under the Georgia Constitution, Art. I, Sec. Ill, Par. I (Ga. Code Ann. 2-301 ), the test shall be the value of such property at the time of its actual taking. Hard v. Housing Authority of Atlanta, 219 Ga. 74 (1963); Housing Authority of Decatur v. Schroeder, 222 Ga. 417 (1966); Calhoun v. State Highway Department, 223 Ga. 65 (1967). However, the "enhancement doctrine" as set out in the above cited cases is basically a rule of evidence and does not require the State Highway Department to include in their appraisals conjectural decreases or increases in fair market value caused by the project for which the property is being acquired.
It should be noted that the revised State Highway Department form, "Statement of Estimated Values," contains the following statement: "This value is the amount approved by the State for the purchase of your property and does not contain conjectural decreases or increases in value caused by this project." This statement would not violate Georgia law and should be sufficient to satisfy the intent of Section 301 (3 ),

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Public Law 91-646. However, this latter determination will have to be made by the proper federal authorities.
Section 301(9), Public Law 91-646, requires that if the acquisition of only part of a property would leave its owner with an uneconomic remnant, then an offer shall be made to acquire the entire property.
The State Highway Department may comply with the above requirement if the State Highway Department is in the process of acquiring property or property rights for any limited-access facility or portion thereof, or service road in connection therewith. Ga. Code Ann. 95l704a, Ga. Laws 1955, p. 559. However, there appears to be no legislative authority for the State Highway Department to acquire or offer to acquire an uneconomic remnant when the initial property acquisition is for other than limited access purposes.
The powers of a public officer are defined by law and he may not perform an act not legitimately within the scope of the authority granted. Hunter v. City of Atlanta, 212 Ga. 179 (1956); Board of Commissioners of Peace Officers Annuity & Benefit Fund v. Clay, 214 Ga. 70 (1958).
In view of the foregoing considerations, it is my official opinion that the State Highway Department may not, in the absence of legislative authority, offer to acquire uneconomic remnants of property when such property was acquired for purposes other than limited access.
It appears that the State Highway Department, under existing State law, may comply with the other requirements of Sections 301 and 302 of Public Law 91-646.

OPINION 71-165

To: Director, State Highway Department

October6, 1971

Re: State Highway Department; improvement of private property by placing wall on slope easement.
This is in reply to your request for my opinion as to whether the State Highway Department can legally place a wall on a slope easement and whether proper procedures are being followed on building retaining walls where easements have been previously acquired.
A review of the documents and correspondence attached with your letter of request discloses that the Federal Highway Administration has questioned the legality of constructing a masonry retaining wall on a slope easement. As I understand the particular situation, it was discovered by the Highway Department that the slope easement was inadequate to contain the required slope and that it would be necessary to

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condemn the owner for the second time to acquire additional easement width. You state that the additional easement would encroach within close proximity of a dwelling located on the property and result in considerable proximity damage. You indicate that the Highway Department constructed the wall, feeling that such procedure would be more economical considering the additional condemnation expense; and, you further indicate that the owner favored such construction of the retaining wall. I take note of the special circumstances of this situation, there being inadequate fee simple right-of-way for construction of a retaining wall. I also take note of your statement that such retaining walls are usually and preferably constructed on fee simple rights-of-way.
Ga. Code Ann. 91-117, Ga. Laws 1961, p. 47, prohibits improving property which is not held in fee simple by the state. However, it appears to me that the State Highway Department is exempted from Code 91117 in the particular situation in question. The State Highway Department is permitted to improve property for highway purposes under provisions of Ga. Code Ann. 95-2907, Ga. Laws 1969, p. 492.
This interpretation of Ga. Code Ann. 95-2907 would be consistent with statutory construction in that it is the latest expression of the legislature, creating an exception to Ga. Code Ann. 91-117. Also, this interpretation involves utilization of the property definition contained in Ga. Code Ann. 95-2904 which includes interests in land. As an easement is an interest in land, it would appear to be included in this definition.
An easement is the right to use the land of another for a special purpose, not inconsistent with the general property of the owner. Hollomon v. The Board of Education, 168 Ga. 359 (1929). The right to an easement and the right to an underlying fee in the same realty are independent of each other. An easement is usually limited to a special purpose or use. Southern Railway Co. v. Wages, 203 Ga. 502 (1948). Therefore, the State Highway Department cannot build a wall upon a slope easement without a specific grant of authority from the owner of the underlying fee. One alternative would be to obtain an additional easement for the building of the wall but the best alternative is to acquire permission from the property owner to erect such a wall.
It is my official opinion that a retaining wall can be built upon a slope easement if permission of the owner of the underlying fee estate, whether parol or in writing, has been expressly given to the State Highway Department for such a wall to be built. Though written permission would be preferable, your letter indicates that oral permission was given to the State Highway Department by the property owner in question, allowing the State Highway Department to erect a wall upon the slope easement. Such permission licensed the State Highway Department to build a retaining wall upon the land of the property owner without

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possessing any estate or interest therein other than the slope easement. Ga. Code Ann. 85-1404 reads as follows:

"A parol license is primarily revocable at any time, if its revocation does no harm to the person to whom it has been granted; but is not revocable when the licensee has executed it and in so doing has incurred expense. In such case it becomes an easement running with the land."

The Georgia courts have interpreted the above Code section to mean that where a licensee has expended money for the enjoyment of a license, whether parol or in writing, the owner of the land could not then revoke the license and it becomes an easement running with the land. Bell Industries, Inc. v. Jones, 220 Ga. 684 (1965); Nassar v. Salter, 213 Ga. 253 (1957).
The State Highway Department of Georgia is charged with the responsibility of acquiring the proper permission from a property owner in the form of a license for the erection of a retaining wall upon a slope easement. After permission is acquired, a wall may be erected and the original license is converted into an easement by operation law. Permission for the erection of retaining walls should be in writing in order to avoid the necessity of a factual determination by a court as to whether permission was granted in the first instance.

OPINION 71-166

To: Director, State Highway Department

October 7, 1971

Re: Abandoned vehicles on state highway rights-of-way to be removed by Uniform Division, Department of Public Safety.

In response to a request from the State Highway Department, I have reviewed Georgia law with respect to disposition of vehicles which have been abandoned on state highway rights-of-way. I have made the following determination as to procedure which should be followed by the Highway Department.
Ga. Code Ann. 95-608 based upon Ga. Laws 1956, p. 615, reads as follows:

"Parking vehicle upon right-of-way of State highway. It shall be unlawful for any person to park or leave unattended any vehicle upon the right-of-way of any State highway for over 48 hours."

Ga. Code Ann. 95-611 places the responsibility for enforcement of

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the above Code section upon the Uniform Division of the Department of Public Safety along with city and county officers. Therefore, it is my official opinion that the State Highway Department should request that the Department of Public Safety assure prompt removal of vehicles which remain upon the right-of-way of any state highway for over 48 hours.
It may be within the authority of the State Highway Department to self-remove these vehicles. However, if the State Highway Department removes such vehicles, problems of storage and costs thereof may remain unresolved. The responsibility of removal has been specifically placed upon the Department of Public Safety.

OPINION 71-167

To: Director, Georgia Bureau of Investigation

October 8, 1971

Re: Gambling devices; electronic slot machines as subject to seizure without showing as to illicit operation.

I write in response to your letter of September 24, 1971, wherein you requested my opinion as to the legality of electronic slot machines in Georgia, and as to whether the operation of each of said machines must be demonstrated in order to justify seizure of the machines or prosecution of person for possession of said machines.
As I understand the facts, the gambling devices in question are electronic slot machines. Furthermore, I understand that the pay-off from such machines is accomplished by means of a bartender or attendant, rather than automatically as is the method of pay-off of older slot machines. Such machines apparently are second-generation "one-armed bandits," a product of technological improvement, although no more legal than their mechanical predecessors.
A logical point of departure in analyzing this situation is to examine the relevant portions of the statutory law concerning "Gambling and Related Offenses," found in Ga. Laws 1968, pp. 1249, 1318, officially codified as Ga. Code Chapter 26-27. Ga. Code Ann. 26-2701 (c) provides:

"'Gambling device.' A gambling device is any contrivance which for a consideration affords the player an opportunity to obtain money, or other thing of value, the award of which is determined by chance, even though accompanied by some skill, and whether or no not the prize is automatically paid by the contrivance."

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The possession of such a device is a defined crime in Georgia, as stated in Ga. Code Ann. 26-2707, which provides, in part:
"Possession of gambling device or equipment.-A person who knowingly owns, . . . or possesses any device which he knows is designed for gambling purposes . . . is guilty of a misdemeanor of a high and aggravated nature."

Furthermore, statutory law provides for seizure of such devices as contraband. Ga. Code Ann. 26-2708 states in part:
"Seizure and destruction of gambling devices.-Every gambling device is hereby declared to be contraband and subject to seizure and confiscation. "

The above statutes amply and clearly establish that possession of gambling devices is a crime, and that gambling devices, being contraband, are subject to seizure and confiscation by State or local authorities. Accordingly, the Georgia Bureau of Investigation can pursue illegal gambling operations by:

( l) Prosecution of those persons knowingly possessing gambling devices; and
(2) Seizure of gambling devices, the same being contraband.
Your first question, as to whether an electronic game, in the form of an electronic slot machine, is a prohibited gambling device, has been previously resolved by this office. As was stated in an unofficial opinion, dated October 20, 1970, U70-202:

"Electronic games which are not games of skill and which are worthless except as games of chance are gambling devices per se and the ownership, manufacture, transfer commercially or possession of the same within the state is prohibited by Georgia law."

The fact that a gambling device now does electronically what a predecessor gambling device did mechanically is of no consequence. A modern electronic adding machine is no less an adding machine than a manually operated mechanical adding machine. The electronic slot machine you describe requires no skill, is a contrivance which for a consideration, affords a player an opportunity to obtain money, or other thing of value, the award of which is determined by chance. Accordingly, there can be no doubt that the device which you describe is a gambling device per se. See Davis v. State, 77 Ga. App. 541 at 550 (1948).

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The fact that the electronic slot machines do not pay off directly when the player wins does not vitiate the fact that the machines are gambling devices. Ga. Code Ann. 26-270 l (c) provides in part: " . . . whether or not the prize is automatically paid by the contrivance." Furthermore, the Georgia Court of Appeals has held that the delivery of money to the winner, whether by a natural person or by a mechanical device which is a part of the machine, does not change the fact that the machine is a gambling device. Davis v. State, 77 Ga. App. 541, 549 (1948).
Accordingly, the described mechanical contrivance is a gambling device as defined in Ga. Code Ann. 26-270l(c) although the actual payoff is made by a person and not by the device itself.
Although I have concluded that the method of pay-off is of no consequence in determining whether the machine is a gambling device, the underlying fact is that no monetary pay-off is necessary for such a machine to be classified a gambling device. The statutory definition of a gambling device encompasses the winning of money, or other things of value, the award of which is determined by chance. The winning of a free game on a gambling device has been determined to be a thing of value. Health Safes Company, Inc., et a/. v. Bloodworth, 221 Ga. 567 (1965); Jenner v. The State, 173 Ga. 86 (1931). Accordingly, an electronic slot machine is an illegal gambling device, regardless of whether
the winnings are in the form of free games or money, and regardless of
what vehicle is employed for delivery of monetary winnings. As to the second question posed in your letter, the Supreme Court and
Court of Appeals of Georgia have repeatedly held that it is not necessary that a gambling device, whether merely seized as contraband or utilized as the basis for prosecution for possession of a gambling device, be actually operated or made to pay off when played. Elder v. Camp, 193 Ga. 320,321 (1942); Estes v. State, 98 Ga. App. 521,524 (1958).
Under the law in effect when Elder, supra, and Estes, supra, were decided, the operative portions of the gambling law were "keeping of a device for the hazarding of money." The present terminology under our new Criminal Code is "knowingly owning or possessing any device which is known to be designed for gambling purposes." Accordingly, as no material difference exists between the gambling laws in effect when Elder, supra, and Estes, supra, were decided, and those in effect today, the holdings in those cases remain in effect and are controlling on the issue now being considered.
Based on the foregoing, it is my opinion that electronic slot machines are gambling devices per se; that they are contraband; that they can be seized and destroyed as contraband; that possession of such devices is a crime; that no demonstration of the operation of any such device is necessary antecedent to its seizure, nor is any demonstration necessary

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to establish the basis of a criminal prosecution for possession of said device.

OPINION 71-168

To: Governor of Georgia

October 13, 1971

Re: Elections; registration of voters; selection of places for registration by chief registrar of county.

You have asked our official opinion on several questions concerning county voter registrars and their authority and responsibility under existing law. We will restate each of your questions and reply immediately following the question.
You first wish to know whether the registrar is prevented in any way from designating places at shopping centers, apartment complexes, club houses, health centers. fire stations, libraries, civic club houses, meeting halls. county fairs or other public locations throughout the county, where people can be registered at designated times. In this respect, you wish to know whether there is any difference in the registrar's authority between even-numbered and odd-numbered years.
Georgia law does not prevent the registrar from designating the public locations you mentioned as places where people can be registered at designated times. Georgia law authorizes the chief registrar of each county to "designate other fixed places in the county [other than the main office] to be used for the purpose of receiving applications for registration and for the registration of electors." Ga. Code 34-610(a) (Ga. Laws 1964. Extra. Sess., pp. 26, 54). A prior opinion of our office held that the word "fixed" in the above law was to be contrasted with "mobile" so as to require any place or registration to be immovable. Thus the Election Code would not permit the registration of electors by having the registration official go from door to door for the purpose of registering voters. Opinion 66-163, Op. Att'y Gen., June 15, 1965, to December 31, 1966, p. 406. On the question of whether there is any difference between even-numbered and odd-numbered years, the Election Code does require that a county having a population of more than 100,000 in each even-numbered year must designate and staff, on a full or part-time basis, additional voter registration places within the county at least six months prior to the voter registration deadline for the November election in that year. Ga. Code 34-610(a). Hence. the use of the mandatory language indicates that in even-numbered years, the chief registrar of a county of more than 100,000 must choose additional voter registration places within the county as set out in the law.

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You further ask whether the registrar has a discretion with respect to designating places and if so what legal principles would apply to this discretion.
Ordinarily, the discretion to be used by a public official is sound discretion, not willful or arbitrary, but what appears just and proper under the circumstances. Discretion is the responsible exercise of official conscience on all facts of a particular situation in the light of the purpose for which the power exists. Bowles v. Goebel, 151 F.2d 671, 674 (8th Cir. 1945). By allowing discretion, the law implies the absence of a fixed rule. The Styria, 186 U.S. I, 9 (1902).
Georgia law authorizes the remedy of mandamus where an official's discretion has been arbitrarily and capriciously exercised so as to constitute gross abuse of discretion. Bryant v. Bd. of Education, !56 Ga. 688(2), 119 S.E. 601 (1923); Ga. Code 64-101.
The discretion given a chief registrar in designating places for registration does not specify that he has an uncontrolled discretion and we must therefore assume that his discretion is limited in the same manner as discretion is ordinarily limited. Therefore, his designations should be based upon the purpose for which the power exists, the chief purpose being that of registering voters. However, we should remember that Georgia courts have consistently ruled that they will not interfere unless there has been a gross abuse of discretion and that public officers are to be given some latitude in making decisions where discretion is vested in the official. Douglas v. Bd. of Education, 164 Ga. 271, 138 S. E. 226 (1927).
You next wish to know whether there is any prohibition against a registrar appointing as deputy registrars, persons who are willing to perform this duty without compensation and who otherwise possess all qualifications of persons whom the registrar has so appointed to serve with compensation.
So long as the deputy registrars possess the qualifications requird by the Georgia Election Code, there is no prohibition against these persons serving without compensation. Ga. Code 34-605.
Finally, you ask whether a registrar may be removed by the superior court judge merely for nonfeasance or because the judge finds that the registrar is not doing an effective job, or must removal require proof of malfeasance in office.
Each registrar serves for a term of four years and is removable by the superior court judge "for cause after notice and hearing." Ga. Code 34-603(a). The Georgia Supreme Court has held that the "cause" in a similar statute must relate to the administration of the official's office, affecting the rights and interest of the public. Lancaster v. Hill, 136 Ga. 405,71 S.E. 731 (1911). Other courts have held that the cause for which an officer is removed must be one which the law and

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sound public policy will recognize as cause for the official no longer occupying his office. Napolitano v. Ward, 317 F. Supp. 79,81 (N.D. Ill. 1970) (three judge court). To our mind, nonfeasance or any instance where the registrar might not be doing an effective job would be as much a cause for removal from office as malfeasance in office. Of course, each decision would have to proceed on its own facts as found by the judge in a proper hearing.

OPINION 71-169

To: All Heads of State Departments

October 15, 1971

Re: Consolidated city-county government of Columbus, Georgia; general discussion.

Several questions have been asked of me pertaining to the status of the consolidated city-county government of Columbus, Georgia (effective, January 1, 1971 ). Therefore, the purposes of this general Jetter are to briefly review the legal authority leading up to the creation of the consolidated city-county government of Columbus, Georgia (hereinafter referred to as Columbus, Georgia), to analyze the relationship of the consolidated government to the former City of Columbus and Muscogee County governments; and finally, to determine what, if any, changes have occurred with respect to the State's relationship with Columbus, Georgia. Please be cautioned, however, that this opinion is limited to a statement of general principles and is not intended to answer all future questions which may necessarily be affected by particular facts.
I. On November 5, 1968, a constitutional amendment was ratified which authorized the Muscogee County Charter Commission. Ga. Laws 1968, p. 1508, amending Ga. Constitution, Art. XI, Sec. I, Par. VII (Ga. Code Ann. 2-7807). This constitutional amendment was unusual in that it expressly authorized the General Assembly to "delegate its powers" to the Charter Commission to draft a sweeping charter consolidating the governments of Muscogee County and the City of Columbus. The Charter Commission was actually created by the General Assembly on April 25, 1969 by Ga. Laws 1969, p. 3571. Very few restrictions were placed upon the delegated authority of the Charter Commission to establish a consolidated county-wide government for Muscogee County with the approval of the affected voters. In addition, both the enabling constitutional amendment and the Act of the General Assembly emphasized repeatedly that there was not to be a lapse or hiatus in the transfer of government functions to the consolidated government; in other words, the new charter would be self-executing, and all existing rights, powers,

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duties and obligations of the predecessor governments of Muscogee County and the City of Columbus would become the property or responsibility of the consolidated government "without the necessity or formality of deed, a bill of sale, or other instrument of transfer." Ga. Laws 1969, pp. 3571, 3575; see also Ga. Laws 1968, pp. 1508, 1510-12.
The proposed Charter for Columbus, Georgia, as drafted by the Charter Commission, was approved by the voters of Muscogee County on November 3, 1970, and became effective on January 1, 1971. Charter ofthe Consolidated Government. Columbus, Georgia, 1-100; 9-101; Municipal Code Corporation, Tallahassee, Florida (1971) (hereinafter referred to as the Charter).
II.
The status of the consolidated government of Columbus, Georgia, was succinctly stated by the enabling constitutional amendment, as follows:

" . . . a new single government having all powers formerly exercised by the City of Columbus and the County of Muscogee and having such other powers as may be necessary or desirable, including such rights, powers, duties and liabilities as are now or may hereafter be vested in municipalities or counties, or both, by the Constitution of Georgia or by other provision of law; the form and composition of said new government to be as said Charter shall provide" [Ga. Laws 1968, pp. 1508, 1510].

The Charter vested in Columbus, Georgia, all rights, powers, privileges, properties, authority, assets, contracts, franchises, immunities, as well as duties, functions, obligations and liabilities of the former governments of the City of Columbus and Muscogee County. Charter, 1100; 2-100. Whatever rights, privileges, etc., were being exercised by the predecessor governments at the time of adoption of the Charter were carried over to the consolidated government without the necessity of an additional instrument of transfer or further formality. Charter, 1100; 8-501; Ga. Laws 1969. pp. 3571, 3575. For example, the bonded indebtedness of the former governments was carried over to the new government, Charter, Chap. 2. All contracts, orders. leases and other obligations or instruments of the predecessor governments were made to continue in effect according to their terms as obligations of the successor government. Charter 9-105. Existing ordinances, resolutions, rules and regulations not in conflict w1th the new Charter were made automatically effective under the new Government. Charter, 9-104; 8-200.
Thus, the consolidation of the predecessor governments of Muscogee County and the City of Columbus into Columbus, Georgia, was to be complete upon the adoption of the Charter with no lapse in government functions or responsibilities. See Charter, 2-100(1 ); 9-107.

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III. Insofar as general state law relating to counties and municipalities is concerned, provision was likewise made in the Charter. State criminal laws were made applicable to and within the limits of the consolidated government. Charter 8-200. Specific rules were adopted for determining the applicability of general laws of local application through classification by population. Charter, 8-200( 1). In construing the applicability of the Georgia Constitution and general laws which apply to counties or municipalities, the following terms as used in such laws relate to the consolidated government of Columbus, Georgia, as follows:

"(a) 'County' shall be construed to include Columbus, Georgia;
(b) 'City,' 'town,' 'municipal corporation,' or 'municipality' shall be construed to include Columbus, Georgia;
(c) 'Commissioners of roads and revenues' and 'board of county commissioners' shall be construed to include the Council of Columbus, Georgia;
(d) 'Council' 'mayor and council', 'aldermen' and 'board of aldermen' shall be construed to include the Council of Columbus, Georgia;
(e) 'Chairman of the commissioners of roads and revenues', 'chairman of the board of county commissioners' and 'mayor' shall be construed to include the mayor of Columbus, Georgia;
(f) Any other terms and provisions as used in such laws to refer specifically to counties, municipalities, or both, and the officers, employees, departments and agencies thereof shall be construed to include Columbus, Georgia, and its officers, employees, departments and agencies" [Charter 8-200(2)].

Likewise, specific provision was made for implementing local Acts previously applicable to the former governments of Muscogee County and the City of Columbus. Charter, 8-200(3).
Where there is a conflict between general and local laws relating only to counties and those laws relating only to cities or municipalities, the "urban services district" of the consolidated government is to be considered as a municipality, and the "general services district" is to be considered as a county. Charter, 8-203. For example, the tort liability of the consolidated government shall be that of a municipality, except in the case of the territory of the consolidated government located outside the "urban services district," which shall be governed by the rules of tort liability applicable to counties. Charter 8-202.
The consolidated government is to continue to remain eligible for state

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and federal grants to cities or counties. or both, and is entitled "to receive the same without diminution or loss by reason of consolidation." Charter, 8-206( I). The population references for determining the amount of such grants are the "urban services district" and the "general services district." Charter, 8-206(3)(4).
Great care was also taken in the Charter that the existing pension and Social Security plans for employees of the predecessor governments would not be curtailed or diminished as a result of consolidation. It was specifically provided that the former City of Columbus employees should retain all rights which accrued to them under the "Employees Retirement Fund," established pursuant to Ga. Laws 1951, p. 2790 et sq., as amended. Charter, 8-300(1 ). Identical carryover provisions were made for employees of the former government of Muscogee County under the "Muscogee County, Georgia, Pension System," established pursuant to Ga. Laws 1945, p. 1110 et seq., as amended. Charter, 8300(2). These pension systems were to remain unaffected pending the establishment of a new pension system for the consolidated government. Charter, 8-300. In no event were any state or federal rights under any existing pension plan to be adversely affected by consolidation:

" ... whenever Social Security provisions are legally available to employees or any group of employees of the consolidated government, [the Council may] provide for the integration of such Social Security provisions with any existent or new pension systems; provided however, that in no event shall any revision, combination or consolidation of any existing pension system in effect when this Charter is adopted result in the curtailment or diminishment ofany right accrued under any existing pension system to any person heretofore employed by the City of Columbus. Muscogee County, or of any agency oj such former government" [Charter, 8-301] [Emphasis added]; see also, Charter, 8-501.

In summary, it may be taken as a rule of thumb that most, if not all, of the state and federal relationships to the consolidated government of Columbus, Georgia, will require no material action or change from that previously existing with the predecessor governments. Any change in procedures will probably be restricted to recognition of the consolidated government, since all formal transfers of authority were accomplished by the Charter and authorized by constitutional amendment. In most cases, the questions inevitably arising out of the consolidation were anticipated and answered by the very carefully drawn Charter (which will be made available to you on request). However, if there are any other questions regarding this matter, please contact this Department for assistance.

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OPINION 71-170

To: Comptroller General

October 18, 1971

Re: Insurance companies; investment in common stocks; acceptability of stocks as deposits.

All Code references herein are to Ga. Laws 1960, p. 289 et seq., as amended, officially codified as Ga. Code Title 56.
You have requested my opinion with respect to the application of Ga. Code 56-1002 to the reserve distribution requirements imposed upon insurers by Ga. Code 56-1005(4 ). The reserve distribution requirement provides that an insurer, after meeting the minimum capital investment requirements of Ga. Code 56-1005(3):

"shall invest and keep invested its funds in amount not less than 100 per cent. of the reserves provided for by this Title in cash or the securities or investments authorized under this Chapter: Provided, however, that an amount equal to not less than 75 per cent. of such reserves shall be invested in securities other than common stocks."

A Georgia mutual insurer has discovered that, after satisfying the requirements of 56-1005(3), the securities held by it, other than common stocks, amount to less than 75 percent of the required reserves. The insurer, however, has taken the position that it is not in contravention of these reserve distribution requirements, in view of Ga. Code 561002(2) which provides:

"Any particular investment held by an insurer on the effective date of this Act, and which was a legal investment at the time it was made, and which the insurer was legally entitled to possess immediately prior to such effective date, shall be deemed to be an eligible investment."

The insurer's contention is not well founded. Under prior law, Ga. Code 56-224 (1933), insurers were authorized to invest in a rather wide variety of securities, including common stocks of utility and industrial corporations, subject to certain restrictions. The authorization to hold common stocks was continued in the Insurance Code of 1960, Ga. Code 56-1020, subject to somewhat liberalized restrictions. Presumably, the common stock holdings of the insurer in question met the requirements of the prior law and, per force, the requirements of the present law.

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With respect to reserve holdings, there were no reserve distribution requirements under prior law. Ga. Code 56-229 (1933). The current reserve distribution requirements, contained in Ga. Code 56-1005(4), are quoted above.
Analysis of these four Code sections compels the conclusion that the drafters of the Insurance Code of 1960 did not intend that the provisions of Ga. Code 56-1002(2) should be applicable to the reserve distribution requirements of Ga. Code 56-1005(4). Inasmuch as the legislature elsewhere authorized the holding of common stocks, subject to somewhat liberalized restrictions, Ga. Code 56-1020, they clearly did not intend that the generalized "savings clause" contained in 561002(2) apply to the specific quantitative restrictions on the holding of common stocks contained in the reserve distribution requirements of 56-1005(4). Stated differently, the legislature, while liberalizing the restrictions upon the quality of common stocks which could be held, on the one hand, imposed more rigid restrictions with respect to the quantitative portfolio distribution of such common stock holdings, on the other hand.
The proper application of the "savings clause" of 56-1002(2) is to that general group of assets, including common stock, which an insurer may lawfully hold, insofar as the qualitative restrictions contained in the Insurance Code of 1960 raise or alter the qualitative restrictions of the prior law. Any attempt to apply the "savings clause" of 56-1002(2) to the reserve distribution requirements of 56-1005(4) renders the latter section largely meaningless and is inconsistent with the general tenor of 56-1020.
Although one would normally expect the insurer in this case to adjust its asset distribution by selling or exchanging the common stock in question, such is not necessarily the case, and this is a matter for decision by the management of the insurer. An order that the insurer comply with a particular provision of the law need not specify a particular course of action for so doing.
You have also requested my opinion with respect to the application of the "savings clause" of 56-1002(2) to the deposit requirements contained in Ga. Code 56-309 and 56-310. All insurers are required by 56-309 to deposit in trust with the state certain securities "eligible for the investment of capital funds of domestic insurers under this Title." However, with respect to foreign and alien insurers, the Commissioner is authorized by the same section to accept, in lieu of such deposit, the certificate of a proper public official of the foreign jurisdiction that the insurer concerned maintains funds on deposit for the protection of its policy holders or other creditors. The "savings clause" of 561002(2) is applicable only to domestic insurers, see Ga. Code 56100 l, and, as mentioned above, it properly extends to that general group

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of assets which an insurer may lawfully hold. It is my opinion, therefore, that the "savings clause" does extend to any securities which a domestic insurer may have had on deposit with the State of Georgia prior to the Insurance Code of 1960, and that such securities are "eligible for the investment of capital funds of domestic insurers" within the meaning of 56-309, although such securities may not meet specific qualitative restrictions elsewhere contained in the Insurance Code of 1960.
In addition to the requirement of 56-309, foreign and alien insurers are required by 56-310 to maintain on deposit with the Treasurer of this state certain securities "eligible for the investment of capital funds." While the savings clause of 56-1002(2) applies only to domestic insurers, Ga. Code 56-1036 specifically provides:

"The investments of foreign and alien insurers shall be as permitted by the laws of their domicile but shall be of a quality substantially as high as those required under this Chapter for similar funds of like domestic insurers."

In my opinion, this provision vests in the Insurance Commissioner the discretionary determination whether securities deposited in this state by foreign or alien insurers are "of a quality substantially as high" as those required of domestic insurers under 56-309, as herein construed in conjunction with 56-1002(2) and this is true even though such securities may not meet the specific qualitative restrictions contained in the Insurance Code of 1960, provided such securities are authorized by the law of the insurer's domicile.

OPINION 71-171

To: Director, State Highway Department

October 20, 1971

Re: Appropriations; money appropriated for airport purposes, and to be expended during fiscal year, not diverted to another program after end of fiscal year.

This is in reply to your request for an opm10n in which you ask whether funds on hand in the State Highway Department in the amount of $14,612 which were received for construction improvements at Savannah Municipal Airport, and were not used for that purpose, may be transferred to an engineering and planning contract pertaining to that airport.
While the correspondence file repeatedly indicates that this sum of money was made available by the Governor from funds other than the motor fuel tax, upon examination we find that the actual source of this

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sum of money is Section 16 of Ga. Laws 1970, pp. 32, 40, the same being an amendment to the General Appropriations Act of 1969 (Ga. Laws 1969, p. 880).
This particular fund was appropriated for capital outlay during the
fiscal year 1969-1970. Ga. Laws 1970, pp. 32, 40. A request for the allotment of these funds was made to the State
Budget Bureau on March 17, 1970. The allotment was approved by the Budget Bureau on March 31, 1970. As early as May 27, 1970, the State Highway Department be.came aware that because of the extreme urgency of the project, the Airport Commission entered into a contract for the intended improvements. Therefore, the State Highway Department never entered into a contractual arrangement with the Savannah Airport Commission for the improvements for which the sum of $14,612 had been appropriated by the General Assembly.
On March 18, 1971, the Savannah Airport Commission entered into a contract with an engineering firm for planning and engineering services for the rehabilitation and development of Savannah Municipal Airport. The precise question to be answered is whether the $14,612 currently on hand in the State Highway Department may be applied toward part of the engineering fees which arise from the contract entered into by the Savannah Airport Commission on March 18, 1971.
Although the $14,612 appropriation was made for fiscal year 19691970 and was allotted by the Budget Bureau on March 31, 1970, the money has never been spent and has never been c0ntractually obligated. As you know, all appropriated funds, with certain exceptions not here applicable, "remaining unexpended and not contractually obligated at the expiration of such General Appropriations Act, shall lapse." Ga. Laws 1962, pp. 17, 30 (Ga. Code Ann., 40-420). Therefore, it is my opinion that the $14,612 appropriation lapsed, as a matter of law, on June 30, 1971, the same being the end of the second fiscal year of the biennium covered by the General Appropriations Act of 1969.
While it is not necessary to the formulation of the advice set out in this opinion, I note in passing that the correspondence file indicates that the first request to the State Highway Department for diversion of these funds was on April 21, 1971, and that the request was for participation in engineering and planning costs associated with a program then in progress. Of course, the program referred to arises from the engineering and planning contract executed on March 18, 1971. As the contract of March 18, 1971, relates to comprehensive engineering and planning activities and was fully executed prior to the time a request for a contractual undertaking was made to the State Highway Department, there is a considerable question in my mind as to whether this fund could ever have been applied to those costs as there was nothing for the State to purchase which had not already been purchased under a preexisting contract.

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OPINION 71-172

To: Director, State Highway Department

October 20, 1971

Re: Overlength motor vehicles; vehicle which may be readily dismantled or separated not qualified for special permit.

This is in reply to a recent request by Emory C. Parrish, Executive Assistant Director, for my opinion as to whether special permits may be issued for the movement of unloaded automobile carriers with an overall vehicle length of 60 feet. These carriers are to be manufactured in Georgia and then transported out of State. Mr. Parrish states that it appears that the automobile carrier could be transported in two separate loads without the necessity of overlength permits.
The statute which establishes the maximum length of motor vehicles on Georgia highways is Ga. Laws 1968, p. 30 (Ga. Code Ann. 68405). This statute provides that no vehicle or combination of vehicles shall exceed a total length of 55 feet. However, the General Assembly proceeds in this section to make certain specific exceptions. One of these exceptions is as follows:

"Also further provided that vehicles transporting motor vehicles (commonly known as automobile carriers), may exceed the length herein fixed, but the total length of vehicle and load shall not exceed sixty (60) feet." Ga. Laws 1968, pp. 30, 32, Section l(a).

It is a general principle of statutory construction that ordinary signification shall be applied to all words except words of art or words connected with a particular trade of subject-matter. See Ga. Code Ann. 102-102; Thacker v. Morris, 196 Ga. 167, 173 (1943). It is my opinion that the General Assembly intended that the 60 feet exception quoted hereinabove apply to the vehicle and load and not just the vehicle. The use of the words "vehicle and load" supports this conclusion. Thus, an unloaded automobile carrier which is 60 feet in length would not come within this exception.
It becomes necessary for the automobile carrier to comply with the general length provisions of this law, i.e., 55 feet, or in the alternative attempt to come within one of the other exceptions to the overlength proVISiOnS.
The only other possible exception within which an overlength vehicle might fall would be the provision of Section 1(a) of this statute which states:

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" . single trip movements for necessary purposes of materials, objects or vehicles of dimensions which exceed the limits herein provided and which are of such nature that they cannot be readily dismantled or seperated may be permitted but only upon the issuance of a special permit for such purpose, for a fee determined by the scale in Subsection (d); . . ."

The determinatiofl of whether this particular automobile carrier could be readily dismantled or separated is a factual question to be decided by your office as a part of its administrative duties. If you decide that the vehicle and trailer could be readily dismantled or separated, then the automobile carrier would not come within this second exception.
It is my opinion that if you determine that the automobile carrier could be readily dismantled or separated, then this vehicle could not legally qualify for the issuance of a special permit for movement over the highways of this state.

OPINION 71-173

To: Director, State Board of Corrections

October 21, 1971

Re: Prisons and prisoners; assent by Department of Corrections to publication of photographs of persons under death sentence does not infringe right of privacy.

Your recent letter requested my opinion relative to the legal implications associated with the assent, by the Department of Corrections, to the request of the news media for photographs of condemned inmates.
Although there is no explicit prohibition which, per se, prohibits the Department of Corrections from making such photographs available to the news media, the potential infringement of such inmates' possible right of privacy should be considered.
To avoid a collision between right of privacy and the constitutional guaranty of free speech and freedom of the press, the courts recognize that an exception to the right of privacy normally exists in the form of a privilege to publish information (including photographs) regarding matters of public interest, at least where such a report is not published with knowledge of its falsity, if any, and is not so outrageous as to offend public notions of decency. Time, Inc. v. Hill, 385 U.S. 374 (1967); Trammel v. Citizens News Co., 285 Ky. 529, 148 S.W.2d 708 (1941). Indeed, it has been noted that one who becomes an actor in an occurrence of public or general interest no longer enjoys the right of privacy. Meetze v. Associated Press, 95 S.E.2d 606 (S.C., 1956).

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The condemned inmates in question are obviously actors in an occurrence of general interest.
Therefore, it is my opinion that the assent, by the Department of Corrections, to the request of the news media for photographs of inmates under sentence of death is not prohibited, and the use of such photographs in the public interest by the news media does not infringe any right of privacy of such inmates.
OPINION 71-173.1

To: Chairman, State Commission on Compensation

October 22, 1971

Re: Authority of State Commission on Compensation to make recommendations concerning compensation to be paid to superior court judges, district attorneys, and others.

This is in reply to your letter of October 13, 197 I, in which you requested my opinion on several questions concerning the authority of the State Commission on Compensation. Outlined below are these questions, together with my opinion:
I. Does the commission have the authority to recommend the state allocate funds to a superior court judge for his use in hiring a secretary?
The authority of the commission concerning recommendations for compensation is contained in Sections 1, 5 and 6 of the Act creating the State Commission on Compensation, Ga. Laws 1971, pp. I03-105, Ga. Code Ann. 89-716 to 89-722. These sections point out that the commission is to study and file a report concerning the recommended compensation for each "constitutional state officer."
Superior court judges are constitutional officers under Art. VI, Sec. III, Par. I of the Ga. Constitution, Ga. Code Ann. 2-3801. Therefore, their salaries are within the purview of your commission's recommendations.
The plan outlined in Paragraph I of your letter would not allocate funds to a superior court judge as compensation to him, but rather for his use in acquiring a secretary. If the judge did not expend the money for secretarial services, he would not receive the allocation. Since the compensation would be paid to a secretary and not to a superior court judge, the recommendation does not fall within the kind of recommendation covered by the statute. However, the statute does not prohibit making recommendations to the General Assembly which, although not strictly within the purview of the commission, might serve to improve the efficient operation of constitutional officers.
Consequently, it is my opinion that the recommendation to provide

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allocations for secretarial services to superior court judges is not directly within the statutory authority of the commission, but could be made on an informal basis.
2. Could the commission recommend that the annual contingent expense allowance of $4,800 per year for each superior court judge be eliminated so that each judge would receive a flat salary?
A contingent expense allowance for superior court judges in the amount of $4,800 is established by Ga. Laws 1969, pp. 113, 114, Ga. Code Ann. 24-2606.2. Since payment is made to each judge and is not contingent upon any actual expenses, it is in effect an additional portion of his salary. Consequently, it is within the authority of the commission to recommend elimination of the expense allowance.
It must be recognized, of course, that the power of the General Assembly to alter salaries is subject to the constitutional limitation set forth in Ga. Constitution, Art. II L Sec. XL Par. I, Ga. Code Ann. 2-2301 which prohibits the diminishing of the amount of any salary set forth in the Constitution for an elective officer.
3. What effect would the elimination of the contingent expense allowance and an increase in the salaries of superior court judges and district attorneys have on retirement of present and future superior court judges and district attorneys?
The retirement of both superior court judges and district attorneys is governed by the provisions of the Trial Judges and Solicitors Retirement Fund law, Ga. Laws 1968, p. 259, Ga. Code Ann. 78-1301 et seq. This retirement system provides for a monthly retirement benefit based upon an actuarial equivalent of the member's accumulated contributions at the time of his retirement and a matching monthly benefit derived from the contributions of the employer. Ga. Code Ann. 78-1318.
In the case of a superior court judge, his monthly contribution is 10 percent of his monthly salary which is paid from state funds. "Salary" as used in this statute has been interpreted by the Board of Trustees of this retirement system to mean the fixed salary of $20,000 per year
excluding his contingent expense allowance. (In the interest of time in getting this response to you, this interpretation is not here questioned.) In the case of the district attorney, his monthly contribution is 10 percent of $ 1,000 regardless of his salary, fees or expense allowances.
In both cases, the employer pays to the retirement fund an amount equal to the member's contribution. Ga. Code Ann. 78-1311.
Since a transfer of the contingent expense allowance into the fixed salary of a superior court judge and any other increase in his salary would result in an increased monthly "salary" as that expression is used in calculating monthly contributions to the fund, such a transfer would increase both the judges and the employers' contributions to the fund with a resulting increase in retirement benefits. However, since under

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current statutory provisions, the district attorney's monthly contribution is fixed at lO percent of $1,000 regardless of his salary or expenses, any such transfer or increase would not increase his retirement benefit.
4. Does the commission have authority to recommend that longevity allowances of state officials be discontinued?
Many state officials receive compensation in addition to their base salaries and expenses. This longevity allowance is based on the length of their state service. For example, Ga. Laws 1970, p. 119, Ga. Code Ann. 89-715, provides that certain officials shall receive $800 per year for each four years of state service up to a maximum of 20 years service. A list showing amounts currently being received by constitutional state officers is attached to my opinion to the State Commission on Compensation dated June 2, 1971. Op. Att'y Gen. 71-104.
Such amounts are clearly compensation and therefore, your statutory authority to make recommendations concerning compensation would extend to the longevity allowances.
5. Does the commission have the authority to regulate supplements paid by counties to superior court judges and district attorneys?
Art. VI, Sec. XII, Par. I of the Georgia Constitution, Ga. Code Ann. 2-4701, establishes the minimum state salaries for judges of the superior courts and district attorneys. The paragraph also provides that the General Assembly may authorize any county to supplement the salary of a superior court judge or a district attorney of the judicial circuit in which the county lies, out of county funds. The Georgia Supreme Court has held that this provision requires concurrence of both the General Assembly and the county authorities to make a salary supplement. Houlihan v. Ryan, 205 Ga. 720 (1949).
I am, therefore, of the opinion that the commission may make recommendations to the General Assembly concerning the elimination, increase or decrease of county supplements.
6. Can the commission recommend a limit on total salaries and supplements of superior court judges and district attorneys?
In my opinion, the commission may recommend to the General Assembly a limit on the total salaries and supplements to be paid to superior court judges and district attorneys. Once again, it must be remembered, of course, that the power of the General Assembly to reduce the total compensation is subject to the constitutional limitation set forth in Ga. Code Ann. 2-2301.
With respect to your request for information as to the supplements (including amounts) paid to the various superior court judges of this state, we do not at the present time have this information, but will do our best to get it for you with as much dispatch as possible.

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OPINION 71-174

To: Deputy Director, State Department of Air Transportation

November 1, 1971

Re: Public Officers; conflicts of interest; member of Board of Air Transportation should not be employed as pilot by state.

This is in response to your request for an official opinion on whether a member of the Board of Air Transportation can legally be employed as a pilot for the Department of Air Transportation.
The State Department of Air Transportation was created by Ga. Laws 1968, p. 130 (Ga. Code Ann. Ch. 40-30) to, inter alia, supervise, maintain. and schedule all state aircraft. This statute also mandates that the department shall be under the direction of the State Board of Air Transportation and provides how this board shall be selected. As I understand your question, you inquire whether a member of this board, who receives no compensation but is raid actual expenses incurred in the performance of official duties, may be employed by the department as a pilot.
Although I know of no statutory provision expressly prohibiting the above, the situation in which the board member would find himself is replete with possibilities for conflicts of interest. These are always present when a person undertakes to become at one time both the master and the servant. See 67 C.J.S .. Officers, 23. As analogous references, please find enclosed copies of Ops. Atty. Gen. 69-105, 69-109, and 69110. all of which involved similar factual situations. I direct your attention especially to Op. Att'y Gen. 69-105 wherein I held that this possible conflict of interest should probably prohibit a member of a city council from also being employed by the city as a policeman.
Therefore, based on the foregoing. it is my official opinion that a member of the Board of Air Transportation should not be employed as a pilot for the Department of Air Transportation as the incompatible position of being both master and servant provides too many possibilities for conflicts of interest.

OPINION 71-175

To: Comptroller General and Insurance Commissioner

November 1, 1971

Re: Annuity contracts; a proposed investment annuity contract to be offered for sale in Georgia must comply with Georgia insurance reserve requirements.

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You advise that for several years, an insurance company licensed in Georgia has attempted to gain your office's approval of a proposed investment annuity contract for sale in Georgia. For reasons set out in this opinion, your office has taken the position that the reserves established by the company are not adequate under Georgia law and you have requested our opinion on this question. You point out that there may be other reasons for disapproving the contract which rest with the discretionary authority of your office, particularly whether the condition or method of operation in connection with the issuance of such contracts would render the operation hazardous to the public or policyholders in Georgia. Ga. Code Ann. 56-l038(g), 56-1040(m). (All references herein to the Georgia Insurance Code are to Ga. Laws 1960, p. 289, as amended, and as officially codified as Ga. Code Title 56.)
The investment annuity is a contract under which a purchaser for its own account, or for the account of others, deposits cash and/ or securities pursuant to an irrevocable agreement with a bank or trust company unaffiliated with the insurance company. The assets in the acount held by the bank or trust company are to be used during the annuitant's lifetime to pay an initial and annual premium to the insurance company and to pay investment expenses relating to the annuitant's account including the fees of the trustee or custodian bank. Upon the annuitant's death, all of the assets in this account are to be paid to the insurance company as a "terminal premium." The company is not responsible to and will not handle the investment management of the assets in the account created in connection with the investment annuity; there is no profit-sharing among annuitants, and the annuitants do not share in any of the profits of the insurance company.
Once each year, on the annual evaluation date (which is the anniversary of the commencement date), a sum of money is withdrawn from the irrevocable account and is paid to the company. This sum is called the annual premium. It is a specific stated percent of the market value of the assets in the account. In addition, upon the death of the annuitant, all of the assets still in the account are paid over to the company as a "terminal premium." Upon receipt of each annual premium, the company becomes bound to pay to the annuitant 12 consecutive monthly retirement annuity income payments of a level, fixed amount. The company will create insurance reserves in respect of this 12-month obligation, and the annual premiums it receives will be invested by the company in traditional reserve assets. The amount of each successive annual premium will reflect the then current market value of the assets in the irrevocable account, and the amount of the ensuing 12 monthly annuity payments will depend upon the amount of the annual premium. The table in the contract, which sets forth the percentage of the assets in the account to be withdrawn on each successive annual valuation date, has

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been so constructed that if the contract holder achieves by the end of the year an increase in the value of the assets that were present in the account at the beginning of the year, equal to the percentage increase assumed in the contract's premium rate structure. the new annual premium will
produce a monthly annuity for the ensuing year which will be equal in amount to the monthly annuity paid in the preceding year. If the increment in value is more, the new year's annuity payments are more; and, vice versa.
Based on its understanding of the operation as set out above and relying on the opinion of the company's counsel, the Securities and Exchange Commission has apparently decided that the investment annuity is not a "security" under the federal securities laws and that it is insurance. But cf S.E.C. v. United Benefit Life Ins. Co., 387 U.S. 202 (1967); S.E.C. v. Variable Annuity Life Ins. Co., 359 U.S. 65 (1959).
However, having convinced the federal authorities that the investment annuity is not a "security" but "insurance" instead, the company must now stand ready to abide by the insurance laws of Georgia if it desires to sell this program in Georgia.
Georgia requires that each annuity program must establish and maintain certain reserves with regard to benefits or funds guaranteed as to amount and duration. Ga. Code Ann. 56-1038(b ), 56-1040(c).
The purpose of requiring reserves is to protect the policyholders and creditors of the company so the company will have sufficient assets to pay its liabilities. Hence, a reserve is defined as an accumulated amount of money at any given time which, with the future premiums and the future net investment yield, will be sufficient to enable the company to pay the policy obligations as they mature and meet the expenses of carrying on the business. 19 J. Appleman, Insurance Law and Practice, 10483 (1971 Supplement).
By the device of only requiring an annual premium from the custodian, the company argues that its reserves need only be sufficient to meet its liability for the 12-month period for which the annual premium has been paid. This argument is supposedly buttressed by calling the contract a "term annuity renewing annually for life" and introducing a custodian other than the insurance company to hold the funds paid by the annuitant. The company argues that it has no interest in the fund other than its right to receive annual premiums. for which it has established a reserve.
The argument is worthy of a Philadelphia lawyer. However, whatever else may be said of the argument, it is obvious that the insurance company's notion of its liability under the program is sorely amiss. While it may be true that the company receives a premium for only 12-months' coverage at a time, the contract itself provides that the company guarantees payments to the annuitant for periods up to 15

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years. In addition, the company is apparently required to provide that in the event the custodial account fails for reasons other than a decline in security values (e.g., involvency or defalcation of the custodian), the company will continue the benefits payable. There are possibly other benefits or funds guaranteed under the contract which could be determined by an insurance expert to require reserves.
Our point is that establishing limited reserves based only on a possible liability of 12 months annuity payments is not in accordance with Georgia's reserve laws because, in fact, the company's liability is not so limited. The exact amount of reserves required is a matter for actuaries.
In closing, we note that there has been a good deal of correspondence between the company and your department concerning the exact nature of the so-called "terminal or final premium," the premium to be paid to the company in the event of the annuitant's death during the course of the current year or at the end of the contract. For the most part, this "premium" would equal whatever sums remained in the annuitant's custodial account. There is no cash value provision nor any similar refund to the annuitant or his beneficiaries. If the annuitant should die prematurely (at least for him), this "premium" goes to the company. The concept is supposedly required to make the program actuarially sound.
Your department has thought that this "premium" is nothing more than a release of reserves, which reserves are not in the hands of the company prior to the release by the custodian, and therefore in violation of the law requiring reserves to be in the custody of the insurance company. Ga. Code Ann. 56-905(3), 56-1038(e), 56-l040(k). In our view of the problem, we do not find it necessary to resolve the question of whether or not this deferred "premium" is, in fact, a release of reserves and a violation of Georgia law. However, we would like to point out that calling a sum of money a "premium" is no more conclusive on the question than calling a hen an egg is conclusive on the question of how long to cook it.
It is therefore our opinion that the proposed investment annuity contract discussed in this opinion must comply with Georgia's reserve requirements before it can be offered for sale in Georgia. Shoud you encounter any further difficulty in this question, please let us know.

OPINION 71-176

To: Director, State Highway Department

November 1, 1971

Re: Georgia Highway Authority; reconveyance by quitclaim of roads to counties when bonds paid off.

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This is in reply to your letter wherein you ask whether the Georgia Highway Authority is authorized to convey to counties by quitclaim deed the rights-of-way covering certain rural road projects.
You stated in your letter that the rights-of-way were previously deeded to the Georgia Rural Roads Authority, now the Georgia Highway Authority, for the purpose of constructing rural roads with the proceeds of bonds issued by the Authority. Georgia Rural Roads Authority Bonds, Series 1955 and 1956, which were issued to construct or improve the projects in question, have been paid in full.
The lease agreements between the Georgia Rural Roads Authority and the State Highway Department and the State of Georgia dated October 1, 1955 and June 1, 1956, which are security for the Series 1955 and 1956 Bonds, respectively provide that the term of the lease ends upon the cessation of obligation to pay rentals. Other provisions of the leases provide that the obligation to make rental payments ceases when the bonds, both principal and interest, have been paid in full. Both the. deeds conveying the property to the Authority and the leases covering the projects have been examined and they contain no provision pertaining to conveying the property back to the county after the bonds issued to construct the projects have been paid.
The Georgia Highway Authority Act (Ga. Laws 1967, p. 385, Ga. Code Ann. Ch. 95-23) provides in part as follows:

"The Authority shall have, in addition to any other powers conferred in this Chapter, the following powers:
* * **
"(b) To acquire, by purchase, lease, or otherwise, and to hold, lease and dispose of, in any manner, real and personal property of every kind and character for its corporate purposes." (Ga. Code Ann. 95-2304). (Emphasis added.)
"Each rural road project leased by the Authority to the State and the State Highway Department shall, upon completion of the action with respect thereto undertaken by the Authority, be a part of the system of public roads of the State and of the county or counties wherein the project is located ..." (Ga. Code Ann. 95-2309).

Therefore, based on the foregoing, it is my official opinion that the Georgia Highway Authority is authorized to convey to counties by quitclaim deed the rights-of-way to rural road projects after the bonds issued by the Authority to construct such projects have been paid in full.

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OPINION 71-177

To: Director, Georgia Department of Public Health

November 3, 1971

Re: Department of Public Health; persons eligible for family planning services.

This is in response to your request for my opinion as to who is eligible under Georgia law to receive family planning services, and consent to medical treatment thereunder, from the Georgia Department of Public Health.
The answer to your question is contained in the Family Planning Services Act, Ga. Laws 1966, pp. 228-31, as amended by Ga. Laws 1968, pp. 558-9 (Ga. Code Ann. Ch. 99-31, as amended). This law provides that the Georgia Department of Public Health, among other agencies, is authorized to offer family planning services to persons in any one or more of the following classifications:

"(I) Married. (2) The parent of at least one child. (3) Pregnant. (4) Any person requesting such services." See Ga. Code Ann. 99-3103, as amended. (Emphasis added.)

The above subsection (4) was added to the original 1966 Family Planning Services Act in 1968 by amendment. (See Ga. Laws 1968, pp. 5589.)
In my opinion the statutory designation that "any person requesting such services" may be offered family planning services means just what it says. A statute couched in plain and unambiguous language needs no further interpretation. Central of Georgia Railroad Company v. Tucker, 99 Ga. App. 52 (1959). In concluding this I am not unmindful of the concept of statutory construction known as ejusdem generis. Basically, this concept often leads a court to construe a general term at the end of a list of specific terms to be limited by those specific terms preceding it. See, e.g., Board of Chiropractic Examiners v. Ball, 224 Ga. 85 (1968). Nevertheless, ejusdem generis as an aid in the determination of legislative intent will not be applied to limit a statute where, as here, it appears the legislature intended a broader meaning. Beavers v. LeSueur, 188 Ga. 393, 403 (1939). It appears by unambiguous language that the legislature intended to make any person requesting family planning services eligible to receive them regardless of whether that person is married, pregnant, or the parent of at least one child. My opinion in this regard is further

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supported by Section 9 (Ga. Code Ann. 99-3109) of the Act, supra, which provides at pp. 230-1 that " . . . This Act shall be liberally construed to . . . respect the right of every individual to self determination in the procreation of children. . . ." (Emphasis added.)
The second part of yo~u inquiry asks in what cases minors can consent to medical treatment when given as part of authorized family planning services.
The answer to this portion of your question is found in Georgia's recently enacted Medical Consent Law, copy enclosed, found at Ga. Laws 1971, pp. 439-41, Ga. Code Ann. Ch. 88-29. This law authorizes and empowers the following persons to consent to medical treatment suggested, recommended, prescribed or directed by a duly licensed physician:

"(a) Any adult, for himself; (b) Any parent, whether an adult or a minor, for his minor
child; (c) Any married persons, whether an adult or a minor, for
himself, and for his spouse; (d) Any person temporarily standing in loco parentis whether
formally serving or not, for the minor under his care and any guardian, for his ward;
(e) Any minor 18 years of age or over, for himself; (f) Any female regardless of age or marital status, for herself when given in connection with pregnancy or childbirth; (g) In the absence of a parent, any adult, for his minor brother or sister; (h) In the absence of a parent, any grandparent for his minor grandchild."

Under the laws of Georgia a person is a minor until he reaches the age of 21 years. Ga. Code Ann. 74-104. With this law in mind, and reading it in conjunction with the above-quoted enumerations of the Medical Consent Law, supra, those persons who can consent to medical treatment (including that given by a duly-licensed physician in connection with family planning services) would seem to be clearly designated with the exception of one situation about which you appear, from your letter, to be vitally interested. That is whether a minor, unmarried female under the age of 18 years can consent to such medical treatment for herself.
Subsection (e) of the enumerations under the Medical Consent Law, supra, apparently allows any minor who is 18 years of age or older to give such consent. This would be true regardless of the marital status of the minor over 18 years of age. However, if this minor, unmarried female

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is not yet 18 years of age a different situation is presented. The only subsection of the Medical Consent Law which here applies would be subsection (f), supra, which says, in essence, that regardless of age or marital status, any female may consent when (such consent is) given in. connection with pregnancy or childbirth. The question then becomes, as I see it, whether medical treatment given as a part of family planning services is given in connection with pregnancy or childbirth. The myriad types and possibilities of medical treatment which may be offered as an adjunct to family planning services, along with the absence of any court decisions construing which medical treatments are given in connection with pregnancy or childbirth, make it impossible for me to resolve this question at this time with any concrete, helpful answer.
Therefore, based on the foregoing, it is my official opinion that (I) the Georgia Department of Public Health may offer family planning services to anyone requesting them, subject to the limitations herein stated; (2) any minor 18 years of age or older may consent for himself or herself to medical treatment offered as part of family planning services, regardless of marital status; and (3) the answer to the question of whether a minor, unmarried female under the age of 18 years can consent to medical treatment for herself when offered in conjunction with family planning services would depend in each instance on a determination of whether the medical treatment was given in connection with pregnancy or childbirth.

OPINION 71-178

To: State Revenue Commissioner

November4, 1971

Re: Stone Mountain Memorial Association; exemption from sales and use tax; Op. Att'y Gen. 71-139 clarified.

This is in response to your request for a clarification of the opinion dated July 27, 1971, Op. Att'y Gen. 71-139, dealing with the exemption from the Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. Laws 1951, p. 360 (Ga. Code Ann. Ch. 92-34A) enjoyed by the Stone Mountain Memorial Association.
The opinion in paraphrasing Section 26 of the Act creating the Association states that the Association is exempt from tax on its purchases for use in the maintenance and operation of the project as defined in Section 2(c) of the Act. Ga. Laws 1958, p. 61. Section 26, however, expressly states that the exemption includes

" . . . activities in the operation or maintenance of the project erected by it . ..."(Emphasis added.)

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While the term "project" as defined in Section 2(c) apparently encompasses any activity useful to operating Stone Mountain, the phrase "project erected by it" in Section 26 would indicate a limitation on the activities for which an exemption is granted. This is true especially in light of the requirement that exemptions be strictly construed against a taxpayer. See State v. Cherokee Brick & Tile Co., 89 Ga. App. 235 (1953).
The qualifying word "erect," employed in the exemption, in its general usage means "to raise, as a building; to build; construct. ..." Webster's New International Dictionary (2d Ed.).
Thus, it is my opinion that the Association's exemption applies to purchases for the maintenance or operation of that part of its project which meets the qualification above-stated. A determination of whether a particular purchase falls within the exemption must, of course, depend on the facts.
OPINION 71-179

To: Director of Corrections

November 5, 1971

Re: Pardons and paroles; prisoner paroled while on extended reprieve not entitled to travel pay and certain other benefits.

Statute provides that certain enumerated benefits be furnished to prisoners "paroled from any state institution or other place of detention . . . ." Ga. Laws 1969, pp. 600, 601; Ga. Code Ann. 77-317. You have requested my opinion whether an inmate who is granted parole while at home (or at a fixed address) while on extended, supervised reprieve is entitled to the statutory benefits.
An analysis of the statute in question indicates that the key phrase is "from any state institution or other place of detention...." The term "from" has been judicially defined as " ... away from contact with or proximity to, out of, as released from, etc." In re Warner's Estate, 35 So.2d 296 (Fla. 1948). It thus appears that the entitlement arises when an inmate is paroled from an institution in the sense that he is released from that institution to parole status.
It is my understanding that extended, supervised reprieves are occasionally granted by the Board of Pardons and Paroles only where arrangements have been made for supervision by a parole officer and where the inmate will be able to sustain himself, or be cared for, upon reprieve. These extended, supervised reprieves are to be distinguished from brief reprieves occasionally granted in order to allow inmates to travel from, and remain outside, a penal institution for relatively short periods of time.

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Based upon this understanding, I am unable to characterize a person granted parole while on extended, supervised reprieve as a prisoner released from a state institution or other place of detention. It is therefore my opinion that the statutory benefits provided by Ga. Laws 1969, pp. 600, 601; Ga. Code Ann. 77-317, do not apply to an inmate who is paroled while on extended, supervised reprieve.

OPINION 71-180

To: President, State Board of Examiners in Optometry

November 5, 1971

Re: Optometry; authority of State Board of Examiners to regulate names of professional corporations.

You have requested my official opinion on two questions, as follows:

"(1) Does the Georgia State Board of Examiners in Optometry have the authority to require optometrists who incorporate under the Georgia Professional Corporation Act to use only their personal names in naming the professional corporation?
(2) Does the Georgia Professional Corporation Act supersede or repeal any of the rule-making powers of the Georgia State Board of Examiners in Optometry?"

The Georgia Professional Corporation Act, Ga. Laws 1970, p. 243 (Ga. Code Ann. Ch. 84-54), effective March 11, 1970, provides for the incorporation of certain listed professions, including that of optometry. Ga. Code Ann. 84-5402(a). The Act further provides that the name of a professional corporation shall comply with pertinent provisions of the Georgia Business Corporation Code, namely Ga. Code Ann. 22301 (officially codified from Ga. Laws 1968, p. 565) except that in lieu of the usual designations, "Inc.," or "Corp.," the phrases "associated," "professional association," or "professional corporation" (or abbreviations) shall be used. Ga. Code Ann. 84-5406. Generally speaking, the "name" provisions of the Business Corporation Code do not require any particular type of name, only that it be distinguishable, not deceptive and not an infringement of other corporate names. See generally Ga. Code Ann. 22-301.
The question then is whether these "name" requirements for professional corporations are irreconcilably in conflict with a rule adopted by the Georgia State Board of Examiners in Optometry which forbids the following:

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"the practice of optometry under any name other than [the optometrist's] own proper name, and the name used in the practice of optometry shall be the same name as used in his or her license or certificate issued by the Board." [Effective December 21, 1970.]

Presumably, this rule is a valid rule, and as such has all the force and effect of law. Pearle Optical of Monroeville, Inc., eta/., v. State Board of Examiners in Optometry, 219 Ga. 364 (5) (1963).
In my opinion it is not necessary to determine whether the Georgia Professional Corporation Act implicitly repealed the rule, or vice versa, because I find that the two are not in conflict. Moreover, the Professional Corporation Code specifically provides that "nothing contained [therein] shall limit the authority and duty of any regulating board to regulate the several professions, including the right to establish and enforce standards of practice. . . ." See also notes to Ga. Code Ann. 2-1916, "Implication," for the proposition that every effort should be made to harmonize two apparently inconsistent statutes.
In other words, it is possible to comply with every provision of the Georgia Professional Corporation Act and still be bound by the board rule that the name(s) used in the practice of optometry shall be the same as that shown on the license issued by the board. I understand that the typiCal method of doing this is by listing names in the corporate title in the manner of "Doe, Roe and Smith, P.C.," or similar variations.
Therefore, it is my official opinion that the Georgia State Board of Examiners in Optometry has the authority to require optometrists who incorporate under the Georgia Professional Corporation Act to use only their personal names in naming the professional corporation.
The answer to your second question is contained in the provision of the Professional Corporation Act, quoted above, to the effect that such Act was not intended to limit the authority of any regulating board to establish standards of .practice for the several professions. See also my opinion to the Podiatrists in Op. Att'y Gen. 70-107.

OPINION 71-181

To: Supervisor of Purchases

November 5, 1971

Re: Supervisor of Purchases may enter into an agreement with the General Services Administration to operate a self-service store.

The General Services Administration (GSA) has presented the Supervisor of Purchases with a plan to locate a self-service store within the Capitol Hill complex. The store would have approximately 15,000

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square feet of floor space and carry approximately 4,000 common use items of office supplies, maintenance supplies, etc., which can be purchased by federal and eligible state agencies in small and normal quantities at the same unit price as large purchases from the GSA catalog. The General Services Administration is the purchasing arm of the Federal Government and the store would be operated for the convenience of all the agencies it serves since the store would issue credit cards to and in the name of the eligible agencies, and these agencies would be able to go to the store, make selections and receive the items immediately.
The General Services Administration presently operates a self-service store, but its location does not lend itself to use by the various eligible state agencies except in extreme emergencies.
In the proposed operation, the state would pay one-half the costs of rent and overhead expenses for the leased premises and furnish not more than one-half of the personnel for the operation. GSA would furnish the balance of costs and personnel and everything else needed to operate the store. The store, and all its employees, would be under the general supervision of GSA.
You have asked our official opinion on whether or not the Supervisor of Purchases could enter into an agreement with the General Services Administration for the operation of a self-service store as described above.
In a previous opinion, our office has decided that the GSA could be established as a source of supply from which eligible agencies of the state could purchase supplies, materials or equipment. Op. Att'y Gen. 71-114, dated June 28, 1971. We assume GSA would be properly established as a legal source of supply for all items purchased by the state agencies.
After a review of the relevant provisions of the State Constitution and laws, we have not found any provision of law which would prohibit your participation in a self-service store as described. The economies to the participating state agencies are readily apparent and the various constitutional restrictions on the state entering into an arrangement with a private corporation or individual would not apply since GSA is a federal agency. See Ga. Constitution, Art. VII, Sec. III, Par. IV (Ga. Code Ann. 2-5604). Under the general powers and authority granted to the Supervisor of Purchases by the General Assembly you have authority to enter into this arrangement for the purchase of needed items by state agencies. Ga. Laws 1937, pp. 503, 505, as amended (Ga. Code Ann. 40-1902). Apparently, impetus for this arrangement from the federal sector has been supplied by various sources, particularly the recent federal drive for economy in operation and the Intergovernmental Cooperation Act of 1968, 42 U.S.C. 4201 et seq.
It is therefore our opinion that the Supervisor of Purchases may enter into an agreement with the General Services Administration to operate

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a self-service store as described in this opinion. While this opinion generally concerns the concept of the agreement, it is obvious that the exact details of the operation are yet to be worked out by all parties. Should you encounter any problems or questions in the execution of the plan, please let us know.

OPINION 71-182

To: Director, State Board of Probation

November 8, 1971

Re: Probation on condition that restitution be made; procedure where intended recipient cannot be found.

This is in response to your request for an opinion as to the proper disposition of funds collected from a probationer which by order of the court granting probation were to be used in making reparation or restituton for the damage or loss caused to the person aggrieved by the probationer's offense, but which have not been so used because of the absence of the intended recipient.
As I understand the general facts, sums of money have been collected by one of your probation supervisors from probationers pursuant to court orders granting probation but conditioning it on the defendants' making restitution to persons who suffered loss or damage as a result of the offenses committed. The sums were collected in 1960-61, but have not been disbursed to the intended recipients because they cannot be found.
A court granting probation is authorized to require as a condition of probation that the probationer make reparation or restitution to any aggrieved person for the damage or loss caused by the probationer's offense. Ga. Laws 1958, pp. 15, 23, as amended (Ga. Code Ann. 272711). O'Quinn v. State, 121 Ga. App. 231(3) (1970); see also Falkenhaimer v. State, 122 Ga. App. 478 (1970). Probation officers are not authorized to collect or disburse any funds except by written order of the court granting probation. Ga. Laws 1960, pp. 1092, 1095 (Ga. Code Ann. 27-2726).
Although the above statutory provisions do not deal directly with the problem of funds which have been collected by probation officers for the purpose of restitution but which cannot be disbursed because the intended recipient cannot be found, the answer to your inquiry is implicit therein. The specific grant of authority in the section codified as Ga. Code Ann. 27-2711 makes no provision for the use of funds collected pursuant to that section, other than reparation or restitution to a person aggrieved by the probationer's offense. Therefore, funds collected for the purpose of restitution may be used only for that purpose. The funds are

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held in the nature of a trust, so when it fails of accomplishment, the funds should be returned to the probationer who is, in this situation, similar to the grantor of an implied or resulting trust. See Ga. Code Ann. 108-104, 108-106, 108-110.
It is. therefore my official opinion that funds collected pursuant to an order of a court granting probation for the purpose of restitution of persons aggrieved by the offense of the probationer must be retained and used only for that purpose. Should the absence of the intended recipient preclude such use, the court granting probation could consider returning the funds to the probationer since payment by the probationer constitutes compliance with the condition of probation imposed by the court and the absence of the intended recipient is in no way the fault of the probationeL
Where neither the intended recipient nor the probationer can be found, and the sum is quite small, the money should continue to be held, since the present ~scheat procedure would consume the fund. See Ga. Code Ann. Ch. 85~11; Op. Att'y Gen. 70-167 .

. OPINION 71-183

To: Director, State Merit System

November 10, 1971

Re: State Personnel Board; authority to establish a Suggestions Program for classified employees.

This is in respons\! to your letter of October 5, 1971, in which you asked my opinion of whether there are constitutional or statutory prohibitions to an Employees Suggestions Program similar to the program established by Ga. Laws 1957; p. 336 (Ga. Code Ann. Ch. 89-ll). You suggested that such a program might include compensation to eligible employees who submit money saving suggestions. Such compensation would be in addition to their regular wages.
Art. VII, Sec. I, Par. II of the Ga. Constitution, Ga. Code Ann. 2..; 5402, provides that the General Assembly may not grant gifts or gratuities. However, since a Merit System employee would be re~eiving compensation for his suggestion only after the suggestion has been made and after it has been shown that the suggestion would result in increased efficiency or cost savings to the State, it is my opinion that such compensation would be payment for a service which has been performed by the employee and would not fall into the category. of a gift or gratuity.
The General Assembly has delegated authority to the State Personnel Board to develop a compensation plan for Merit System employees, provided that any changes in the plan are subject to the approval of the Director of the State Budget Bureau. Ga. Laws 1971, pp. 45,49-50 (Ga.

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Code Ann. Ch. 40-22). In my opinion, this legislative enactment provides authority for the State Personnel Board to develop and implement a suggestion plan for Merit System employees which could include monetary payment to classified employees for suggestions which result in substantial monetary services to the state.

OPINION 71-184

To: State Revenue Commissioner

November 12, 1971

Re: State Revenue Commissioner; secrecy of income tax returns.

This is in response to your letter of recent date wherein you request my advice regarding a subpoena duces tecum which was served upon you from the Criminal Court of Fulton County. You state that you are most anxious to respond to this subpoena but that you are aware of the confidential nature of this materiaL
You ask that I examine the subpoena and advise you of your authority under the law to respond to it.
According to the subpoena you are required in your capacity as Revenue Commissioner to be and appear at Criminal Court of Fulton County and bring with you certain certified copies of the State of Georgia corporation income tax returns for certain corporations to be used as evidence by the state in a criminal case pending in that court. No appearance date is stated in the subpoena due to the fact that an assistant solicitor of this court, who served the subpoena, stated that he would give you an opportunity in which to respond without actually making an appearance in court.
Georgia Code 92-3216 and 92-9914, based upon Ga. Laws 1931, Extra. Sess., pp. 24, 57, provide that income tax returns shall be privileged, and information contained therein shall not be divulged under penalty of fine or imprisonment, and if the offender is an employee of the state, he shall be dismissed from his employment and rendered incapable of holding public office for five years thereafter.
Code 92-8414, based upon Ga. Laws 1937-38, Extra Sess., p. 77, provides that tax information generally shall be confidential and privileged. There is a provision in Code 92-3216 (Ga. Laws 1931, Extra Sess., pp. 24, 57) which provides that information may be released "in accordance with proper judicial order or as otherwise provided by law...."Code 92-8414 provides that information may be released "to any officer of the state or local government entitled in his official capacity to have access thereto...."
These apparent exceptions may be misleading. It is my opinion that they do not authorize the release of tax information for use in any

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manner other than a case involving the integrity of the tax return itself as the main issue, and not merely as a collateral issue.
New York authorities would probably be the best source and most persuasive in construing our law as they are almost identical on these subjects. Georgia's statute, passed six years after the New York statute, was probably copied from New York.
In People v. Isaac G. Johnson & Co., 210 N.Y. Supp. 92 (1925), the court construed the secrecy provisions of the New York statute and held that a taxpayer who is required to bare his secrets to the state is given a pledge of inviolatable secrecy. The court construed the words "proper judicial order" as follows:

"I am of the opinion that the order therein referred to is one made by the court which becomes necessary in the actions or proceedings set forth in (the stated exceptions) where the publicity of the report is an inevitable incident to, and consequence of, the judicial proceeding, which would be valueless and ineffective without the publicity of the report which attend the determination of the issue and be an essential factor therein. "It would also justify an order for publicity in proceedings affecting the truthfulness, validity and legality of the report itself; as, for example, in a criminal prosecution for forgery or perjury arising out of the false report. "But in my opinion. no 'proper judicial order' can be made except in an event when the integrity of the report itself is attacked or defended as the main. and not as a merely collateral. issue. "To permit the use of such reports in an ordinary case is to destroy the secrecy attaching to them and to break down the protection which the statute gives the taxpayers in the disclosure of their most intimate business affairs to the taxing power."

This case has been followed in Application of Manufacturer's Trust Company, 53 N.Y. Supp. 2d 923 (1945); In re Fowlkes Estate, 185 N.Y. Supp. 2d 373 (1959).
The judicial construction applied to the New York statute would be apparently binding on the Georgia courts, if in fact Georgia copied its Act from the New York Act which apparently it did. See Seaboard Airline Railway Company v. Fountain, 173 Ga. 593 (1931); Tamiami Trail Tours v. Georgia Public Service Commission, 213 Ga. 418 (1957).
It is therefore my opinion, based on the above authorities, that you and your staff are prohibited from producing the documents called for in the subpoena. However, in the future when subpoenae for tax documents and related matters are received, it is my recommendation that you contact the Law Department as soon as possible after which we will

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file a Motion to Quash, or other appropriate legal response in the proper court, as we will do in the case under consideration.

OPINION 71-185

To: Secretary of State

November 12, 1971

Re: Municipal elections; method of placing name on ballot when nominating petitions not provided for.

You have asked if a candidate for municipal office might have his name placed on the general election ballot although he has not been nominated by a political party or group when the city charter of that municipality does not provide for a nominating petition as an alternative means of having a candidate's name placed on the ballot.
The Georgia Municipal Election Code (Ga. Laws 1968, p. 885, officially codified as Ga. Code Title 34A) sets forth two methods by which an individual might have his name placed on a municipal election ballot. Ga. Code Ann. 34A-90 I. The first method entails a candidate's filing notice of his candidacy in the office of the municipal superintendent within a prescribed time limit. The second method involves the nomination of a candidate by a political party or body. The Code further provides in regard to the first method:

"Candidates not having been nominated in a party primary may also be required to accompany notice of candidacy with a nominating petition if the municipality's charter or ordinance now or as may be amended in the future so requires." Ga. Code Ann. 34A90 l (d).
Thus, a nominating petition is necessary only if the municipality's charter or ordinance so requires it, and it must be in the form prescribed by the law. Ga. Code Ann. 34A-910.
If a city charter provides no means for a candidate to have his name placed on the ballot in a municipal general election other than being nominated by a political party or body, that candidate can file notice with an affidavit as prescribed in the Georgia Municipal Election Code and have his name placed on the ballot. A city charter cannot eliminate one of the methods by which a candidate might have his name placed on the ballot. It can impose the additional requirement that a nominating petition be presented by those not nominated by a political party, but this is possible only because authorized by the law. Local legislation

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cannot be enacted which runs counter to the general law of the state. Moore, et a/. v. Howard, 181 Ga. 605 (1936); Ga. Constitution, Art. XII, Sec. I, Par. IV (Ga. Code Ann. 2-8004).
Even without the guidelines of the Georgia Municipal Election Code, a municipality would be precluded from limiting access to the ballot solely to political party nominees. Such a law would most likely be considered as imposing a burden on the right to vote which is invidious discrimination and a denial of equal protection. Williams v. Rhodes, 393 U.S. 23 (1968). See also Thompson v. Willson, et a/., 223 Ga. 370 (1967 ). In Williams, an Ohio law which in effect limited access to the ballot to the two major political parties was deemed to be such a burden as to result in a denial of equal protection. This law provided for a nominating petition, but the cumulative effect of all the requirements imposed upon a party seeking a place on the ballot by means of a petition denied access to the ballot. If a law allowing a nominating petition as an alternative to nomination by a major political party is considered invidious discrimination because it effectively precludes access to the ballot, there should be little doubt that one providing no alternative to nomination by a political party would likewise constitute such discrimination.
Therefore, it is my official opinion that the Georgia Municipal Election Code provides an alternative to nomination by a political party as a means by which a candidate can have his name placed on a ballot, and a municipality can require a nominating petition in conjunction with that alternative method but cannot eliminate it.

OPINION 71-186

To: Director, State Merit System

November 12, 1971

Re: State Merit System as administering agency under Federal Intergovernmental Personnel Act of 1970.

This is in response to your letter of October 29, 1971, in which you asked my official opinion of whether the State Personnel Board Act, Ga. Laws 1971, pp. 45,51 (Ga. Code Ann. 40-2201 et seq.) authorizes the State Merit System to be the administering agency for the State of Georgia under the Federal Inter-governmental Personnel Act of 1970, P. L. 91-648. Attached to your request was a copy of a letter from Governor Carter to the Chairman of the U.S. Civil Service Commission designating the State Merit System as the state office having the authority and responsibility for the administration of the federal statute.
The Inter-governmental Personnel Act of 1970 is designed to provide federal aid to state and local governments to strengthen the personnel

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resources of these governments and to improve inter-governmental cooperation. Section 202(b) of the federal statute provides that an application for a grant to state governments must include a designation by the Governor as to which state office will have primary authority and responsibility for the development and administration of an approved personnel program or project at the state level. Section 303(b )( l) contains a similar requirement for applications for grants to state governments for training programs.
The State Personnel Board Act, Ga. Laws 1971, p. 45, became effective when approved by the Governor on March 10, 1971. Section 3 of that Act lists the powers and duties of the board, and provides inter alia:

"(f) To administer such federal laws relating to personnel administration as the Governor may direct, including the Intergovernmental Personnel Act of 1970." (Ga. Code Ann. 402203.)

On March 31, 1971, Governor Carter submitted a letter to the Honorable Robert E. Hampton, Chairman of the U.S. Civil Service Commission, designating the State Merit System of Personnel Administration as the state office having the responsibility and authority for the development and administration of the several applicable titles of the Intergovernmental Personnel Act of 1970.
Therefore, it is my opinion that the State Merit System, acting on behalf of the State Personnel Board and by direction of the Governor, is authorized under Georgia law to act as the administering agency for the State of Georgia under the Federal Inter-governmental Personnel Act of 1970.
OPINION 71-187

To: Director, State Merit System

November 12, 1971

Re: Merit System; continuation of classified service of officer who was under system prior to 1971 Act.

This is in response to your letter of November l, 1971, in which you requested my opinion as to whether under the provisions of the State Personnel Board Act of 1971, Ga. Laws 1971, Mr. W.M. Jackson, State Superintendent of Banks, is in the classified service of the State Merit System. You advised that both Mr. Jackson and the position of Superintendent of Banks were in the classified service prior to the 1971 Act.
Section 4 of the 1971 Act, Ga. Laws 1971, pp. 45,51 (Ga. Code Ann. Ch. 40-22) defines classified and unclassified service. Paragraph (a) of

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Section 4 (Ga. Code Ann. 40-2204), in defining the classified service, provides inter alia:

"Further, any officer or employee who has acquired a valid permanent status under the State Merit System existing on the effective date of this Act shall continue in such status, and shall not be required to take further or new examinations in order to retain such status."

Therefore, under this provision of the Act, Mr. Jackson remains in the classified service and subject to the rules, regulations and statutes pertaining to the State Merit System.
It should be noted that this opinion is limited to the status of Mr. Jackson and is not concerned with whether the position of State Superintendent of Banks remains in the classified service.

OPINION 71-188

To: Director, State Board of Corrections

November 15, 1971

Re: Board of Corrections; custody of prisoners under death sentence.

By letter of August 4, you request an opinion regarding (1) the proper place of confinement for death-sentenced prisoners whose execution dates were stayed and for whom no new execution dates have been set, and (2) the liability and responsibility for such prisoners while in the custody of the Department of Corrections.
As to the first question, Ga. Code Ann. 27-2514 and 27-2518 control. Section 27-2514, as pertinent here, provides that a prisoner under sentence of death shall be conveyed to the penitentiary and thus to the custody of the department:

" . . . not more than 20 days nor less than two days prior to the time fixed in the judgment for the execution of such condemned person, unless otherwise directed by the Governor, or unless a stay of execution has been caused by appeal, granting of a new trial, or other order of a court of competent jurisdiction, ..." Ga. Laws 1924, p. 195 (Ga. Code Ann. 27-2514).

Thus, the department has authority to accept such prisoner within the time limits prescribed, unless there is a direction or stay as specified, in which case the department is not authorized to exercise custody. The situation you describe, then, is confined to those cases where there is no

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supervening impediment to your custody subsequent to the entry of the sentence and judgment, and custody is assumed for the purposes of carrying out the sentence.
Please note that the supervening events do not include the filing of a motion for new trial so that such non-finality of conviction which, by the terms of Code 77-309(c), precludes acceptance of custody of prisoners "sentenced to serve time" ( 77-309[b]), does not in the case of prisoners sentenced to be executed, preclude acceptance of custody. That is to say, the procedure of retention of convicted prisoners in the county jails until their convictions have become final, as provided in Code 77-309(c), does not apply to persons sentenced to death, because (l) they are not "sentenced to serve time" ( 77-309[b]) and therefore do not have "such a sentence," in the words of 77-309[c], and (2) 27-2514 specifically requires the sheriff to convey them to the penitentiary unless (a) the Governor directs otherwise, or (b) a stay has been caused by appeal, or (c) a new trial has been granted, or (d) a court orders otherwise.
Having thus obtained custody, it remains until execution and so long as the sentence is valid. Ga. Code Ann. 27-2518, which provides for a new date, omits any requirement for return of the prisoner to the county officials. Also, there is no express provision for return of custody to the sheriff if the sentence is not carried out on the court-ordered date. Of course, if the sentence is invalidated by reversal or voided for some other reason, there would be no underlying authority to hold the prisoner and he should be returned to the county for retrial or resentencing, or released. This dissimilar situation obtained in the case of Roy Dale Chatterton, regarding whose custody we wrote to your predecessor on February 2 I, 1969.
In the instances currently under consideration, however, the prisoners need not be returned for a new date of execution if the original date passes. The sentence itself is not invalidated and remains of full force and effect:

" 'One sentence is all that is ever imposed in a capital case. Such sentence is to be executed at the time fixed therein, or at such other time as the judge shall fix thereafter.' " Smith v. Henderson, 190 Ga. 886 (1940), and cases cited therein.

The Act of 1924 specifically provides that if the date for execution passes, the judge shall set a new date, without requiring the prisoner to be present, and:

"a certified copy of said order shall be sent immediately to the

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Superintendent of the State Penitentiary at the place of execution." Ga. Laws 1924, pp. 195, 197} (Ga. Code 27-2518).
The absence of the prisoner at such new-date settings was upheld in Smith v. Henderson, supra; Fowler v. Grimes. 198 Ga. 84 (l944); McLendon v. Balkcom, 207 Ga. 100, 101(4) (1950), c.c. 207 Ga. 328; McBurnett v. Balkcom, 207 Ga. 452 (1950).
Thus, it is clear that custody remains in the department and is not to be shifted back to the county under such circumstances. Such deathsentenced persons who do not have a definite and imminent execution date should of course not be placed in the same class as those with a set date in the near future. The former group, whose dates have passed without execution, should be maintained instead in the general prison population if possible, but with security measures consistent with their status as death-sentenced prisoners. The Opinion of the Attorney General in Op. Att'y Gen. 1958-59, p. 245, is expressly withdrawn.
With custody remaining in the department, the answer to the second question is that the department continues to bear responsibility and liability for the prisoner.
OPINION 71-189

To: State Superintendent of Schools

November 15, 1971

Re: Public School Employees Retirement System; eligibility of teacher aids and para-professionals for membership.

This is in reply to your letter of October 5, 1971, in which you requested my opinion concerning the eligibility of teacher aides and paraprofessionals for coverage under the Public School Employees Retirement System. Since employees in these classifications may, or may not, be eligible for the retirement plan depending upon their particular situation, I have outlined below the applicable statutory rules.
Ga. Code Ann. 32-3804, based upon Ga. Laws 1969, p. 998, spells out the requirements for membership in the Public School Employees Retirement System. Basically, these requirements provide that any person who is a "public school employee" shall be a member of the retirement system as a condition of employment as long as the employee is employed by a local unit of administration which does not have a local
I. Section 27-2521, which is referred to in 27-2518, is not a part of" the Act of 1924, It israther a part of the Penal Code of 1910 (par. 1072) and was referred to as such in the Act of 1924. Its habeas corpus procedure is specifically not required for the setting of a new <fate for execution (Ga. Laws 1924, p. 197, Sec. 7), and if it is inconsistent with Section 7, it is repealed by Section 8. which provides that "all laws and parts of laws in conflict with the provisions of this Act . . . are . . . repealed." Thus, it is questionable whether it is still extant, despite its later inclusion in the Code of 1933.

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retirement system, or is employed by a local unit of administration which has a local retirement system which has elected to come under the Public School Employees Retirement System.
A "public school employee" is defined in Ga. Code Ann. 32-3802 as follows:

"(3) 'Public school employee' or 'employee' shall mean all those employees of public schools who are not eligible for membership in the Teachers Retirement System of Georgia. The term specifically includes, but is not limited to, school bus drivers, school lunchroom personnel, school maintenance personnel, and school custodial personnel. The term does not include teachers or any school personnel who are now, or may hereafter become, covered by the Teachers Retirement System of Georgia."

To be eligible for the Teachers Retirement System, the person must be employed not less than half time in public day schools as a classroom teacher, or in a clerical position, or a school librarian, or a supervisor. The definition of teacher does not include an emergency or temporary employee. Ga. Code Ann. 32-2901, based upon Ga. Laws 1943, p. 640, as amended.
Therefore, assuming that a teacher's aid or para-professional meets the requirements set forth above, it is my opinion that that person is eligible for coverage under the Public School Employees Retirement System.

OPINION 71-190

To: Director, Georgia Department of Public Health

November 17, 1971

Re: Hospital authorities; erection of office building unauthorized; leasing of property.

You have asked for my opinion on a number of questions, all of which relate to a hospital authority constructing, operating, and leasing an office building to be utilized primarily by members of a hospital's medical staff for offices.
The Hospital Authorities Law (Ga. Laws 1964, pp. 499, 598 as amended, officially codified as Ga. Code Ch. 88-18) created a hospital authority in each county and municipal corporation of the state subject to an approving resolution by the applicable governing body. Each authority was granted the power, among others, to (I) acquire by purchase. lease or otherwise and to operate projects; (2) construct, reconstruct,

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improve, alter and repair projects; and (3) sell to others, or to lease to others, with certain restrictions, lands, buildingt:;, structures or facilities constituting all or any part of any existing or later established projects. The initial question to be answered, therefore, is whether or not an office building to be used by members of the hospital's medical staff for offices is among the authorized projects.
Smith v. Hospital Authority, 210 Ga. 801 (1954), does not answer the question. In Smith, the court held that an office building was not one of the purposes for which revenue-anticipation certificates had been validated and the proceeds could not, therefore, be used for such construction. Whether or not the office building was an "authorized project" was not determined.
The Act defines the word "project" as including:

"The acquisition and construction of hospitals, sanitariums, dormitories, clinics, housing accommodations, ... and other public health facilities for the use of patients and officers and employees of any institution under the supervision and control of any hospital authority or leased by the hospital authority for operation by others to promote the public health needs of the community and all utilities and facilities deemed by the authority necessary or convenient for the efficient operation thereof." Ga. Code Ann. 88l802(a).

The only words in the definition of "project" which could encompass office buildings are "clinics," "public health facilities," and "all utilities and facilities deemed by the authority necessary or convenient for the efficient operation thereof." Legal definitions do not exist for each of these words. Webster states that a clinic is "an institution . . . for the examination and treatment of out-patients." (Emphasis added.) Webster's New International Dictionary (2d ed. 1945). The construction rule of ejusdem generis would also limit the term "and other public health facilities" to similar "institutions." See, e.g., Schultz v. Hinojsa, 432 F.2d 259,267 (5th Cir. 1970). I do not believe that an office building would qualify as an institution, nor do I believe that patients visiting in the offices would be classed as out-patients.
Although the Hospital Authority Law provides that it should be liberally construed to effect the purposes of the law, Ga. Code Ann. 881819, the broad language of "all utilities and facilities deemed by the authority necessary or convenient for the efficient operation" of the listed institutions is not sufficient to encompass an office building. A facility necessary and convenient for the efficient operation of any of the listed institutions would have to be one which supplied a direct, integral benefit to the operation of the institution. I think the tangential benefits

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flowing from the availability of a doctor because the authority supplied him with an office building would not provide a legally sufficient correlation with the "efficient operation" of the institutions to be considered as included within the meaning of the statute.
I am, therefore, of the official opinion that a building used primarily as an office building for doctors is not a permitted project under the Hospital Authorities Law. Since it is not a permitted project, a hospital authority would not have the power to build and operate an office building, nor could it issue bonds for the construction of an office building.
You also asked whether or not a hospital authority could lease to third parties, for a nominal consideration, unimproved real property on which an office building would be constructed. Ga. Code Ann. 88-1805 states that hospital authorities are given the power to "lease to others for any number of years up to a maximum of 40 years, any lands ... constituting all or any part of any existing or hereafter established project. . . ." Ga. Laws 1964, p. 499, as amended. I do not perceive any ambiguity in these words and believe a literal interpretation would permit the leasing of unimproved real property. The rates charged, however, would have to comply with any trust indentures or lease agreements covering the property which may be in existence. Additionally, the authority would have to consider the prohibition against gratuities contained in Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402) of the Constitution of the State of Georgia. Cf. McLucas v. State Bridge Bldg. Authority, 210 Ga. 1, 10 (1953), (dicta). The exact lease rental requirements, of course, will be dependent on the nature of the lease.
Based on the foregoing, it is my official opinion that a hospital authority can lease unimproved land to a third party.

OPINION. 71-191

To: Chairman, Georgia Peace Officer Standards and Training Council

November 24, 1971

Re: Peace officers; certification of officer with misdemeanor conviction.

This is in response to your inquiry concerning the question of whether or not the Georgia Peace Officer Standards and Training Act allows the certification as a peace officer of a person with a record of one misdemeanor conviction.
As I understand the factual situation, a candidate has applied for certification as a peace officer who has a record of one arrest for the offense of burglary. This charge was ultimately reduced to malicious mischief, a misdemeanor under Georgia law at the time of the convic-

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tion. Earlier correspondence from your office reveals not only that this was a Georgia criminal proceeding, but also that the sentence was imposed on August 18, 1964.
In order for a person to be employed or certified as a peace officer under the Georgia Peace Officer Standards and Training Act he shall:

" . . . not have been convicted, by any State or by the Federal Government, of any crime, the punishment for which could have been imprisonment in the Federal or State prison or institution; nor shall he have been convicted of sufficient misdemeanors to establish a pattern of disregard for the law. . . ." Ga. Laws 1970, pp. 208, 212 (Ga. Code Ann. 92A-2108[d]).

The first portion of the quoted subsection describes a generic class of crime, characterized by the possible place of incarceration, the single conviction of which is considered serious enough to disqualify an individual from being employed as a peace officer. At the time of this conviction, crimes in Georgia were divided into felonies and misdemeanors, and a felony was specifically defined as an offense for which the convicted person could be punished by death or imprisonment in the penitentiary. Ga. Code of 1933, 26-101 (Ga. Code Ann. 26-101) (repealed by Ga. Laws 1968, pp. 1249, 1337). [For present definitions, see Ga. Code Ann. 26-40l(e) through (h).] Further and by definition, a penitentiary is "any place where felony prisoners exclusively are confined at hard labor. . . ." Ga. Laws 1957, pp. 477, 482 (Ga. Code Ann. 102-103). Since the Georgia Peace Officer Standards and Training Act uses the word "prison" and not the word "penitentiary," it should be noted the two are interchangeable and the variation, therefore, is legally insignificant. See United States v. Smith, 40 Fed. 755, 759-60 (C.C.E.D. Va. 1889); State v. Burnett, 115 S.E. 57, 58 (N.C. 1922).
While this discussion indicates that the first portion of the section refers to the more serious and higher crimes known in Georgia as felonies, the matter is complicated somewhat by this state's statute providing for the punishment of misdemeanors. Ga. Laws 1964, p. 485; 1970, pp. 236, 241 (Ga. Code Ann. 27-2506). This latter provision authorizes the Director of Corrections to assign a misdemeanant to any state institution, including the penitentiary, if the individual is sentenced to confinement under the jurisdiction of the State Board of Corrections. The individual described in your letter "could" have been punished, then, by imprisonment in the state prison, in the sense that after being sentenced to confinement under the jurisdiction of the State Board of Corrections, he might have been assigned to such an institution.
The presence of this possibility does not compel, however, the conclu-

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sion that both felony and misdemeanor convictions serve to disqualify an individual from certification under the first part of the subsection. In the first place, if one misdemeanor conviction can disqualify a candidate, of what significance is the second portion of the subsection, which clearly implies that misdemeanor convictions shall only be considered to determine if an individual has established a pattern of disregard for the law? Ga. Laws 1970, pp. 208, 212 (Ga. Code Ann. 92A-2108[d]). The word "could" in the language under consideration simply refers, then, to the possibility that an individual convicted of a felony might not and often does not serve time on the sentence (i.e., the sentence might be probated or suspended). In this light, the first part of the subsection specifies the generic class of crime, felonies in Georgia, of which a person cannot have been convicted and, further, emphasizes that is it the conviction for the felony and not the ultimate disposition of the sentence that controls. Such a construction harmonizes and gives effect to all parts of the subsection, which is the required approach where ambiguity exists. See Gainesville v. Smith, 121 Ga. App. 117, 119 (1970); State Revenue Commission v. Alexander, 54 Ga. App. 295, 296 (1936).
It is, therefore, my official opinion that in order for the described individual to be disqualified from employment or certification under the Georgia Peace Officer Standards and Training Act, the single 1964 conviction would have to have been for a felony and not a misdemeanor.

OPINION 71-192

To: State Revenue Commissioner

November 29, 1971

Re: Intangibles taxes; "promissory thrift notes" considered as bonds.

You have asked for my opinion on the classification for intangible tax purposes of particular corporate "promissory thrift notes." With your request, you enclosed a copy of the document in question.
The document, which is in the form of a commercially printed certificate and is issued as one of many such certificates, contains an unconditional promise to pay to order a sum certain in money, with interest payable quarterly, on a due date to be inserted when issued. The document also states that "[n]otwithstanding the due date specified, the within note shall be due upon demand of the holder at any time prior thereto, and shall be paid, with unpaid accrued interest, upon presentation of the said note, at the office of the maker." The document is to be executed by the signatures of two corporate officers with the corporate seal affixed. Your question is whether this document represents a note, taxable at the rate of 10 cents per $1,000, or a bond, taxable at the rate

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of $1 per $1,000 under Ga. Laws 1953, Nov. Sess., p. 379 (Ga. Code Ann. 92-161, 92-162).
Research of the statutes and case law of Georgia and the case law of other states failed to produce clear definitions which would permit differentiation between bonds and notes. As a general proposition, bonds are formal instruments issued as a part of a series and administered through the offices of a trustee. The issuance is attended by the formalized signing of documents and the legal opinion of a "bond counsel." Notes, on the other hand, normally are not attended by such formalities. When such factors exist, it is not difficult to determine if a particular document is a bond or a note. Bonds, however, do not necessarily have to be formalized documents; when they are not, only a fine line, if any, exists between bonds and notes.
Although few cases consider the distinction between bonds and notes with any specificity, there is ample authority to support the proposition that a bond is a distinct form of instrument. See, e.g., Cosgro v. Quinn, 219 Ga. 272 (1963) (dictum); Tandy's Ex'rs v. Carlisle County, 296 Ky. 743, 178 S.W. 2d 591 (1944). Georgia Code Ann. 92-161 and 92162 also clearly recognize a distinction between bonds and notes. However, Ga. Code Ann. Ch. 92-1 does not contain a definition of either "bond" or "note," and the cases do not establish a definitive difference. The Louisiana Supreme Court has even stated that:

'The words 'bonds' and 'notes' have been used interchangeably in the business world and no distinction exists as a matter of law for the reason that the essence of each is to pay a certain sum to the bearer." Miller v. Greater Baton Ruge Port Comm., 225 La. 1095, 74 So. 2d 387 (1954).

The Uniform Commercial Code, Ga. Laws 1962, p. 156 (Ga. Code Ann. Title 109A) makes a distinction between notes and bonds by providing that notes are to be treated as commercial paper, Ga. Code Ann. 109A-3-104(d), and a bond is grouped with investment securities. See Ga. Code Ann. Ch. 109A-8; G. Kock, Georgia Commercial Practice, 10-5 (1964). The Uniform Commercial Code, however, was not adopted by the legislature until 1962, whereas the present Ga. Code Ann. 92-161 and 92-162 were adopted by the legislature in 1953. It cannot, therefore, be said that the legislature intended to observe the distinctions of the Uniform Commercial Code in establishing the intangible tax rates.
An indication of the statutory intent can be derived by examining the classes of intangible property which are taxed at the rate of $1 per thousand. Georgia Code Ann. 92-162 provides that "bonds and debentures," "stocks in foreign corporations," and "stocks in foreign

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domesticated corporations" are included in the class. The common characteristic of bonds, debentures, and stocks is that they are used by corporations and other business entities as a means of obtaining longterm financing. Thus, they represent a form of investment by the holder. On the other hand, money, accou,1ts receivable, and notes receivable not secured by real estate are taxed at the rate of 10 cents for each $1,000 of fair market value. Ga. Code Ann. 92-161. These intangibles do not represent a form of long-term financing by corporations and other business entities and the holders thereof are not considered to have an investment in the business.
The distinction is not, however, a simple one of ascertaining the term of the instrument, or whether it is classed as a current liability or longterm liability of the issuer. Instruments which are clearly bonds can have a maturity of less than one year and notes can have a maturity of more than one year. Also, the portion of a bond or note which is due within one year will be accounted for as a current liability. See 44 AICPA, Accounting Research Bulletin 22 (1961 ).
The term of the debt or the distinction between current liabilities and long-term liabilities or capital stock is, therefore, only the starting point. It appears that the legislative intent was to tax at the higher rate that intangible property which represented an investment by the holder of such property. The crux of the matter thus rests in what gave rise to the intangible property. If the intangible property arose as the result of an investment in the reporting entity, either through debt or equity, then this intangible property should be taxed at the rate of $1 per $1,000 of fair market value. If, however, the intangible property arose as the result of normal trading or business activities, then the intangible property should be taxed at the rate of 10 cents per $1,000 of fair market value.
The word "investment" is rather broad, but as used here, it expresses the concept of placing idle or excess money with another person with the intent of deriving some income from the placement. This differs from payables and receivables which arise during the normal course of trading or business activities in that the latter usually involves the placement of goods and services rather than money.
The "promissory thrift notes" which you specifically asked about appear to fall in the investment category. Arguably, these notes serve the same purpose as certificates of deposit and other interest bearing deposits with savings and loan associations and banks and should be treated the same. It must be remembered, however, that the statutes contain specific reference to savings and loan associations and banks and they thus warrant different treatment for their depositors. Ga. Code Ann. 92-161 (b) specifically includes the "credits of account holders (however evidenced) with every building and loan association incorporated under [Code] Chapters 16-2 and 16-4, and every Federal savings

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and loan association having its principal office or place of business in this State." The specific recognition of such deposits evidences a legislative recognition of this difference and precludes the analogy between the "promissory thrift notes" and these deposits.
Absent clear definitions in the statutes and case law on the matter, the decision of whether a particular instrument is a bond or a note becomes an administrative one which is subject to the requirement of reasonableness. Using the guidelines and approach that have been discussed, [am, however, of the official opinion that the specific "promissory thrift notes" which you have asked about can be taxed as bonds at the rate of $1 on each $1,000 of the fair market value.

OPINION 71-193

To: State Superintendent of Schools

November 29, 1971

Re: Wage-price freeze; increased compensation to public school employees.

This is in response to your inquiry in which you asked my opinion of whether, under Phase Two of the Economic Stabilization Program, local boards of education in Georgia could pay teachers and other public school employees the salary increases set forth in contracts which were executed prior to August 14, 1971.
Applicable rules and regulations concerning the stabilization of wages and salaries are set forth in Title 6, Part 201, of the Code of Federal Regulations which were published in the Federal Register on November 13, 1971. Section 201.14, entitled "Wage and salary increases effective after November 13, 1971" provides:

"Existing contracts and pay practices previously set forth will be allowed to operate according to their terms except that specific contracts or pay practices are subject to review, when challenged by a party at interest or by five or more members of the Pay Board, to determine whether any increase is unreasonably inconsistent with the criteria established by this Board. ln reviewing existing contracts and pay practices, the Pay Board will consider ongoing collective bargaining and pay practices and the equitable position of the employees involved, including the impact of recent changes in the cost of living upon the employee's compensation."

Therefore, it is my opinion that local school boards may, beginning November 14, 1971, pay increased wage rates which were authorized in contracts or in other pay practices established prior to August 14, 1971,

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the date the wage-price freeze went into effect. These increases may include such items as longevity and pay increases as a result of increased educational background, provided such increases are part of the previously established pay plan.

OPINION 71-194

To: Secretary of State Commissioner of Securities

December 1, 1971

Re: Securities; exemption from law of employee stock-option plans.

This is in response to your request for an official opinion on the question of whether a stock-option plan is exempt from registration under the Georgia Securities Act. Ga. Laws 1957, p. 134, as amended; Ga. Code Ann. Ch. 97-1.
As I understand it, an employee stock-option plan involves the acquisition of stock through options granted by a company to employees of the company.
Subsection (k) of section 6 of the Georgia Securities Act of 1957, as amended, exempts from registration "any transaction involving the issance of a security (1) in connection with an employees' pension, profit sharing, stock bonus, thrift, savings, or stock purchase plan ...." Ga. Laws 1969, pp. 235, 236; Ga. Code Ann. 97-107(k).
The language of this provision does not expressly exempt "employees' . . . stock option plans" from registration and our research has not revealed any judicial decisions construing this provision so as to exempt such plans. However, the Act does specifically exempt any transaction involving the issuance of a security in connection with an employees' stock purchase plan. Stock-purchase plans are not defined in the Securities Act and there seem to be no judicial decisions defining such plans. Accordingly, whether or not "employees' ... stock purchase plans" encompasses and includes "employees' ... stock option plans" would involve construction of the provision in question.
Georgia courts have recognized certain general rules of statutory construction. Generally, the intention of the General Assembly in passing an Act is determinative of the construction to be given the Act. Plantation Pipeline Company v. City of Bremen, 227 Ga. l (1970); Boyles v. Steine, 224 Ga. 392 (1969); see also Ga. Code Ann. 102102(9) (1933). In determining the intent of the legislature, the court must look first to the language of the statute and if words are plain and unambiguous and intent may be gathered therefrom, the court need look no further. Stone Mountain Memorial Ass'n v. Herrington, 225 Ga. 746 (1969). Also, "the ordinary signification shall be applied to all words

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except words ot art or words connected with a particular phrase or subject matter, when they shall have the signification attached to them by experts in such trade or with reference to such subject matter." Ga. Code Ann. 102-102(1) (1933); Citizens and Southern National Bank
v. Fulton County, 123 Ga. App. 323 (1970). Application of the rules of construction just described to subsection
(k) of section 6 of the Securities Act provides the answer to the question you have posed.
The term "employees' . . . stock purchase plan" in its ordinary signification refers to any plan whereby stock may be purchased. As indi-
cated in the statute, however, this exemption from registration extends only to "employees' " stock-purchase plans. Therefore, any employee stock-option plan which by its terms may be characterized as a stockpurchase plan would be exempt from registration under subsection (k) of section 6.
It is my official opinion that any transaction involving the issuance of a security in connection with an employees' stock option plan is exempt from registration under the authority of section 6, subsection (k), of the Georgia Securities Act. This, of course, does not involve the status of subsequent transactions involving the security which may follow its issuance to the employee pursuant to the plan.

OPINION 71-195

To: Director, State Highway Department of Georgia

December 7, 1971

Re: State Highway Department; airport improvement contract with Jekyll Island State Park Authority.

By correspondence of November 15, 1971, you requested my official opinion as to whether or not the State Highway Department may legally enter into a contract with the Jekyll Island State Park Authority covering improvements to the Jekyll Island Airport. You enclosed the following data for my review in arriving at an opinion as to the legality of processing the contract in question:

(1) A request from the Department of Industry and Trade, dated November 10, 1971, to the State Highway Department submitting project data and requesting that the subject contract be prepared.
(2) Jekyll Island State Park Authority letter dated October 18, 1971 to the low bidder on this project regarding beginning of planning and execution of the proposed work.

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(3) November 11, 1971 State Highway Department authorization for the preparation of an airport contract with the Je-kyll Island State Park Authority.
(4) A title opinion signed by a past Attorney General of the State of Georgia regarding the site of proposed improvements from a previous contract.

The State Highway Department of Georgia is authorized to construct and maintain airports by Ga. Code Ann. 11-301, as amended by Ga. Laws 1965, p. 449, which reads as follows:

"The State Highway Department is hereby authorized and empowered to construct and maintain airports, landing fields, air navigation facilities, and lighting and lighting fixtures, and to contract with the counties and municipalities of the State for the construction and maintenance of such airports, landing fields, air navigation facilities, and lighting and lighting fixtures, all in accordance with the Federal Aviation Agency's specifications and regulations of the United States Government, and upon such terms and conditions as said State Highway Department may determine."

The Supreme Court of Georgia follows the rule of construction that general and unlimited terms are restrained and limited by particular recitals when used in connection with them. This rule applies to, among other things, all constitutions, statutes, and contracts. Mayor, &c. of Savannah v. Savannah Electric and Power Company, 205 Ga. 429 (1949). By the terms of Ga. Code Ann. 11-301, the State Highway Department of Georgia would seem to be limited to contracts "with the counties and municipalities of the state for the construction and maintenance of such airports." A case is presently pending in the Supreme Court of Georgia in which a determination will be made as to whether the Jekyll Island Authority fits within the definition of "municipality." Glynn County, Ga. v. Mary Jo Davis, eta/., No. 26859 (S.Ct. Ga., Sept. 23, 1971). 1
Notwithstanding such limiting language as that of Ga. Code Ann. 11-301, a statute is presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. Code 11-301 is therefore to be construed in connection with

I. After the issuance of this Opinion the Supreme Court rendered decision in this case (January 19, 1972). The authority was not specifically held to be a "municipality," but was held to have power to license intoxicating liquor sales on the island to the exclusion
of the county. See 228 Ga. 588.

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and in harmony with the existing law and as a part of a general and

uniform system of jurisprudence. The meaning and effect of this statute

is to be determined in connection, not only with the common law and

the constitution, but also with reference to other statutes and decisions

of the court. See Botts v. Southeastern Pipe-Line, 190 Ga. 689 (1940);

Thornton v. Anderson, 207 Ga. 714 (1951); Spence v. Rowell, 213 Ga.

145 (1957).

Ga. Constitution, Art. VII, Sec. VI, Par. I (Ga. Code Ann. 2-

5901) reads in part as follows:



"The state, state institutions, any city, town, municipality, or county of this state may contract for any period not exceeding fifty years with each other or with any public agency, public corporation or authority now or hereafter created for the use by such subdivisions or the residents thereof of any facilities or services of the state, state institutions, any city, town, municipality, county, public agency, public corporation or: authority, provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake."

Ga. Code Ann. 2-5901 (a) authorizes the state and state institutions to contract with an authority if the contract deals with activities and transactions which the authority is otherwise authorized by law to undertake. The State Highway Department has such power as the Supreme Court of Georgia has recognized that the State Highway Department is the state itself. See Elberton Southern Railway Company v. State Highway Department of Georgia, 211 Ga. 838 (1955), and Southern Railway Company v. State Highway Department, 219 Ga. 435 (1963).
According to Ga. Code Ann. 43-606a(d), based upon Ga. Laws 1950, p. 152, the Jekyll Island Authority has the following power, among others:

"to make contracts, and to execute all instruments necessary or convenient, including contracts for construction of projects or contracts with respect to the leasing or use of projects which it caused to be subdivided, erected or acquired."

The word "project" is defined by Ga. Code Ann. 43-602a(b), based upon the same statute, as follows:

"The word 'project' shall be deemed to include any subdivision, hotel, cottage, apartment house, public buildings, school, utility, dock, facility, water course, airport, bridge, golf course, tennis court, or other resort recreational facility."

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It is my official opinion that the State Highway Department may legally enter into an airport contract with the Jekyll Island State Park Authority covering improvements to the Jekyll Island Airport. The State Highway Department by definition is the state. Therefore, by virtue of 2-5901 (a) of the Constitution of Georgia, the State Highway Department may contract with an authority if the particular authority is otherwise authorized by law to enter into such a contract. The Jekyll Island Authority may contract for airport construction through power granted in Ga. Code Ann. 43-606a(d). For the purposes of this opinion, a determination of whether the Jekyll Island State Park Authority fits within the definition of "municipality" need not be made.

OPINION 71-196

To: State Records Management Officer, Department of Archives and History

December 9, 1971

Re: State Board of Pardons and Paroles; destruction of misdemeanor case records.

Your letter of September 10, 1971 requests my opinion as to whether closed misdemeanor case files presently kept by the State Board of Pardons and Paroles may be destroyed after five years, as proposed by the Application for Records Disposition Standard attached to your letter. If my reply to the foregoing question is negative, you further inquire whether the files may be moved to the Records Center or Archives for permanent retention after a temporary holding period by the board. Your letter also enclosed a copy of the opinion of my predecessor, dated December 12, 1963 (Op. Att'y Gen. 1963-65, p. 318) stating that misdemeanant files must be permanently maintained by the board under Ga. Laws 1943, p. 185, Ga. Code Ann. 77-512.
Subsequent to the December 12, 1963 opinion, I considered the disposition of closed files maintained by the State Board of Pardons and Paroles in an opinion dated March 5, 1970 (Op. Att'y Gen. 70-26). I am enclosing a copy of this Opinion for your further reference. The later Opinion points out that while the board is required by statute to preserve on file all documents on which it has acted in the granting of clemency, reprieve, pardon or parole, Section l of Ga. Laws 1960, pp. 780, 781 (Ga. Code Ann. 40-809) provides, as your letter suggests, that the board may procure the destruction of its records, through the ultimate agency of the Governor, if the prescribed conditions of that statute are met.
I again emphasize that by statute all information received by the

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board, with certain stated exceptions, shall be regarded as confidential state secrets. Ga. Code Ann. 77-533. Therefore, as stated in my previous opinion, the board must declassify, by a resolution passed at a duly constituted session of the board, all records which it seeks to have destroyed that are not included in one of the statutory exceptions relating to records of the board. Ga. Code Ann. 77-533(b), based upon Ga. Laws 1953, Nov. Sess., p. 210.
Therefore, in my opinion, disposition may be made of the closed misdemeanor case files maintained by the Board of Pardons and Paroles in the manner proposed, adhering to the procedure set forth in Ga. Code Ann. 40-809, provided that those records classified as confidential state secrets are declassified by a resolution of the board passed at a duly constituted session.
The foregoing opinion renders an answer to your second question unnecessary. Should you require additional guidance in this matter, however, please do not hesitate to let me know.

OPINION 71-197

To: Insurance Commissioner

December 10, 1971

Re: Insurance companies may adopt trade names so long as the result is not misleading or confusing.

Your office has been requested to approve an insurance contract form pursuant to Ga. Code Ann. 56-2410, based upon Ga. Laws 1960, pp. 289, 661. The contract form bears a trade name which includes the word "life" in addition to the name of the authorized insurer proposing to issue the contract. It appears that the insurer authorized to do business in Georgia has merged with another insurance company and the insurer authorized in Georgia will continue business under its name. However, the Georgia insurer is anxious to continue to use the trade name in certain of its insurance sales since the name is a respected, wellestablished name in the group insurance business. The policy form, as indicated above, would contain the trade name in addition to the name of the insurer authorized to do business in Georgia.
You are concerned that the public may be misled and unaware of the
true identity of the authorized insurer with which the public is dealing. You have therefore requested our opinion on whether you are authorized to approve an insurance contract form which bears a trade name of a company not licensed and qualified to transact an insurance business in Georgia, although the name of the licensed insurer proposing to issue the contract also appears on the form.
At the outset, we should recognize that insurance companies organ-

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ized in Georgia have the same corporate powers as are conferred upon private corporations except where these powers are inconsistent with the Georgia Insurance Code. Ga. Code 56-1508, based upon Ga. Laws 1960, pp. 289, 540.
There is little question that corporations, including insurance companies, may acquire a trade name which would distinguish that corporation from others in the same general market area. Ga. Laws 1968, p. 565, codified in material part as Ga. Code Ann. 22-202(q)(5), 22301(b)(3), 22-1403(b)(3). See also Ga. Code Ann. Ch. 106-3; 52 Am. Jur., Trademarks, etc., 23; 87 C.J.S., Trademarks, etc., 29.
At this point, we should note that the proposed use of a trade name would be by an insurance corporation which is licensed in Georgia. Although the name formerly belonged to an insurer not authorized to do business in Georgia, the authorized insurer would not use the trade name until the company from which the name has been acquired is already merged into the authorized Georgia insurer. Hence, the use of the name would only be as a trade name by the authorized Georgia insurer.
Having established that the use of a trade name is proper, it then becomes necessary to determine whether there is any limitation on the use of this name in an insurance contract form. From your letter it appears that you are most concerned about the possibility of misleading the general public as to the true identity of the authorized insurer with whom the public is dealing. As you are aware, you have the authority to disapprove any form filed with you if it has a misleading title or provisions which are unclear, deceptively worded or which encourage misrepresentation. Ga. Code Ann. 56-2411, based upon Ga. Laws 1960,pp.289,662.
The decision on whether it is misleading to use the trade name in conjunction with the name of the authorized insurer in the contract form is a decision which is personal to the Insurance Commissioner, a decision to be made after consideration of all facts and reliance upon your office's expertise in this area. Perhaps, if you decide the present form is misleading, changes could be made in the form to correct any misleading Impression.
However, it is our official opinion that you are authorized to approve the use of a trade name by an insurance company if the use of this trade name does not violate the applicable provisions of the insurance code, particularly provisions concerning misleading terms.

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OPINION 71-198

To: State Budget Officer

December 10, 1971

Re: Georgia Building Authority (Markets); return of funds to State Treasury.

This is in reply to your letter dated December 6, 1971, wherein you state "that the Department of Agriculture received an appropriation of $150,000 in FY 1971 for Authority lease rentals and the payment was made to the Authority."
The question is: "Can we legally lapse the FY 1971 payment of $150,000 since the bonds were not marketed in FY 1971 and still allow them to market this issue in FY 1972 as planned?"
As you know, the $150,000 appropriated for such purposes in FY 1971 was not lapsed at the end of that fiscal year because a lease contract between the Georgia Building Authority (Markets) and Department of Agriculture dated as of June 1, 1971, has been entered into committing these funds for lease rentals for the proposed Series 1971 Bond Issue and pursuant to this contract the funds were paid to the authority. At this point it should be mentioned that pursuant to the terms of the lease a rental payment was required to be made in July 1971 from funds appropriated for FY 1972. The funds paid to the authority pursuant to the lease commitment cannot be lapsed. However, should the authority and the Department of Agriculture agree to cancel the lease contract providing for the construction of certain projects, it is my opinion that neither the "Georgia Building Authority (Markets) Act," (Ga. Laws 1955, p. 224, as amended, Ga. Code Ann. Ch. 65-3), nor the lease agreement prevent the authority from returning the funds already collected under the lease. This opinion is based on the fact that the proposed bonds have not been issued and the projects leased have not been constructed.
If the lease dated as of June 1, 1971 is cancelled and the funds returned to the Department of Agriculture, the funds attributable to the 1971 FY appropriations could be lapsed. The funds attributable to the 1972 FY appropriations could be utilized for lease rentals for new projects if the General Assembly amends the Appropriations Act to provide that these funds may be used for this purpose. As a matter of fact, this would not require an increase in the appropriation to the Department of Agriculture for FY 1972, but merely a change in the authorized use of the funds. The authority and the Department of Agriculture could then enter into a new lease and proceed, if other problems can be resolved, to issue Series 1972 Bonds to provide for the construction of the projects.

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OPINION 71-199

To: Director, Georgia Department of Public Health

December 21, 1971

Re: Medicaid; payments for services of podiatrists should be included under Georgia's Medicaid program.

This is in reply to your request that I advise you as to whether payments for the services of podiatrists should be included under Georgia's Medicaid program. I have chosen to make my response by official opinion in order to assist you in the rendition of your official duties. For the reasons discussed hereinafter, it is my judgment that payments for services of podiatrists should be included.
Title XIX of the Social Security Act, which sanctions grants to states for medical assistance programs, specifies that if a state sets up and administers a state plan for medical assistance, that plan must, inter alia, provide for making medicaltlssiS((in'ce available to (certain persons which are includable under Georgia's plan). [See 42 U.S.C.A., 1396a(a)(l0).] Further, medical assistance is defined by the Act as including " ... physicians' services, whether furnished in the office, the patient's home, a hospital, or a skilled nursing home, or elsewhere. . . ." [See U.S.C.A., 1396d(a)(5).] Going a step further, the definition of physicians' services (for purposes of Medicaid) is contained in the relevant regulations of the Department of HEW .[CFR 249.10(b)(5)], promulgated' pursuant to Title XIX of the Social Security Act, and is as follows:

" 'Physicians' services are those services provided, within the scope of practice of his profession as defined by State law, by or under the personal supervision of an in9ividual licensed under State law to practice medicine or osteopathy.' "

This section of the Code of Federal Regulations additionally provides that a plan such as Georgia's must include payments for these physicians' services as above defined. [See CFR 249.10(a)(1).] It should also be pointed out that the foregoing definitions contained in the Social Security Act have been adopted by the Georgia General Assembly in this state's statutory implementation of the Act. (See Ga. Laws 1965, p. 385, as amended; Ga. Code 99-2902, as amended.)
The practice of podiatry in Georgia is defined by law as:

" ... the diagnosis, medical, surgical, mechanical, manipulative and electrical treatment limited to the ailments of the human foot

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and leg. . . ." Ga. Laws 1933, p. 115, as amended, Ga. Code Ann. 84-601.

In short, podiatrists are licensed to perform, with the exception of amputation or the use of any anaesthetic other than local, the same medical treatment as M.D.'s, so long as the treatment is confined to the human foot and leg.
The practice of medicine is defined rather broadly in Georgia by Ga. Code Ann. 84-901, as amended by Ga. Laws 1970, p. 301, and reads in relevant part:

"The terms 'practice of medicine,' 'to practice medicine,' 'practicing medicine,' and 'practice medicine,' as used in this Chapter, are hereby defined to mean holding one's self out to the public as being engaged in the diagnosis or treatment of disease, defects or injuries of human beings, or the suggestion, recommendation or prescribing of any form of treatment for the intended paliation, relief or cure of any physical, mental or functional ailment or defect of any person . . . ."

Based on the foregoing, it is my judgment that the definition of podiatry places the activities of practitioners of that profession clearly within the definition of "medical practice" as that term is defined in Ga. Code
Ann. 84-90 I. This would mean that the practice of podiatrists is
includable as physicians' services, in the broad sense, under the Social Security Act, C FR and Georgia statutory law relating to and implementing the Georgia Medicaid plan. It is, therefore, my official opinion that payments for services of podiatrists should be included under Georgia's Medicaid program.
This opinion is in accord with my opinion of July 22, 1971 (Op. Att'y Gen. 71-133) that podiatrists practice medicine for purposes of coverage under Blue Cross and Blue Shield hospital and medical insurance.

OPINION 71-200

To: Comptroller General

December 30, 1971

Re: Insurance companies; deductibility of fees paid municipalities from state premium tax liability.

You have requested my opinion whether life insurance companies may, in a particular tax year, deduct from their premium tax liability to the state those amounts paid to qualifying municipalities during the

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immediately preceding calendar year in settlement of license fee and tax liabilities which accrued during prior years. It is my official opinion that they may.
The relevant statute is Ga. Code Ann. 56-1310(3) (Ga. Laws 1964, p. 122) which provides:

"Life insurance companies may, after January 1, 1966, deduct from premium taxes otherwise payable to this State under section 56-1303, in addition to all credits and abatements allowed by law, the license fees and taxes imposed pursuant to this section and paid to any municipal corporation during the preceding calendar year, ...."

This language must be construed in the light of "the old law, the evil, and the remedy." Ga. Code Ann. 102-102(9). See Wall v. Youmans, 223 Ga. 191, 154 S.E.2d 191 (1967).
Prior to 1964, municipal taxation of life insurance companies in Georgia was highly varied, being authorized and governed by the individual municipal charters. Two adverse consequences flowed from this situation. Life insurance companies were unable to project accurately their tax liabilities when calculating premiums. More important, Georgia life insurance companies which were expanding into the national market were encountering retaliatory taxes in other states.
By the 1964 Act, the state pre-empted the field of taxation of life insurance companies, but conferred upon qualifying municipalities explicitly limited authority to impose certain license fees and taxes upon insurance companies doing business within their corporate limits. The overall tax liability of the companies involved was stabilized, however, by allowing them to deduct from their state premium tax liability the amounts so paid to the municipalities.
The two stated conditions of deductibility are, first, that the amounts paid must have been in settlement of liabilities imposed by the municipality pursuant to the 1964 Act. Second, the amounts must actually have been paid in the preceding calendar year. These conditions are consistent with the stated legislative intent:

"to establish a uniform policy in this state with respect to the methods and rates of taxation of life insurance companies by municipal corporations of the state, and to provide a fair distribution of such taxes as between the state and such municipal corporations." Ga. Laws 1964, p. 122.

To deny deductibility to payments which meet the two stated conditions but which were made in settlement of liabilities accruing during

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prior years since 1964 and which, for some reason, were not then paid, would be clearly inconsistent with the stated legislative intent and would, in some measure, resurrect the evils sought to be remedied in the 1964 legislation. The cardinal rule of statutory construction is to determine and carry into effect the intention of the General Assembly. Ga. Code Ann. 102-102(9). It follows that the amounts described are deductible.

OPINION 71-201

To: Director, Georgia Department of Public Health

December 30, 1971

Re: Air Pollution; violations of Fulton County air pollution control ordinances constitute a misdemeanor.

Your memorandum of December 13, 1971 requested an opinion as to whether Fulton County can by ordinance impose misdemeanor penalties for violations of its air pollution control ordinances.
As mentioned in your memorandum, this office recently issued an official opinion to the effect that counties may adopt air pollution control ordinances under certain conditions provided such ordinances are of a nonpenal nature. Op. Att'y Gen. 71-149, Aug. 16, 1971. This Opinion was based on various court holdings that a municipal ordinance punishing an act made penal by a state law then existing, covering the same subject-matter, must yield to the state law. As you are aware, Ga. Laws 1967, pp. 581, 590, officially codified as Ga. Code Ann. 88-916, provides that any person who violates any provision of Chapter 88-9, i.e., the state-wide air pollution control Act, shall be guilty of a misdemeanor.
With regard to Fulton County, Ga. Laws 1953, Jan.-Feb. Sess., p. 2718, enacted pursuant to an amendment to Ga. Constitution, Art. XI, ratified in 1952 (Ga. Laws 1951, p. 828), authorizes its commissioners to adopt a system of rules; regulations and orders covering health and sanitation in Fulton County and declares the violation of any such rule, regulation or order to be a misdemeanor. Since such violations are made a misdmeanor by local Act and the provisions of such Act are authorized by constitutional amendment, the principles set out in the August 16, 1971, Opinion would appear to be inapplicable here.
Therefore, based on the above, it is my official opinion that violations of air pollution control rules and regulations adopted by the Fulton county commissioners constitute a misdemeanor, and any person, upon conviction thereof in any court of competent jurisdiction, shall be punished as for a misdemeanor.

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OPI~IO~ 71-202

To: Director, State Board of Corrections

December 30, 1971

Re: Taxation; exemption of public property; building owned by Georgia Prison Industries Administration.

This is in reply to a recent letter from Mr. David England requesting an opinion on whether or not a building would be subject to Fulton county and city of Atlanta ad valorem taxation if purchased by the Georgia Prison Industries Administration. Mr. England states that such a purchase is being considered and that the taxability of the property is an element to be considered in making the decision. He further states that the building would be used to house the Board of Corrections and Prison Industries central office staff and, additionally, serve as a warehouse for Prison Industries' products.
The Georgia Prison Industries Administration was created by the Georgia Prison Industries Act, Ga. Laws 1960, p. 880 (Ga. Code Ann. Ch. 77-9). Section 2 of the Act (Ga. Code Ann. 77-902) states:

"There is hereby created a body corporate and politic, an instrumentality and public corporation of this State to be known as the 'Georgia Prison Industries Admmistration' ".(Emphasis added.)

Determining the taxability of property owned by another entity which was created by the General Assembly as a public corporation and instrumentality of this state, my predecessor in office concluded, in an Opinion dated March 5, 1964, that such property was public property and therefore exempt from ad valorem taxation. Op. Att'y Gen. 1963-June 14, 1965, p. 390. I have reviewed that Opinion, a copy of which is enclosed, and concur in its reasoning and conclusion.
Therefore, based upon the reasoning of the above-mentioned Opinion, it is my opinion that the building being considered for purchase by the Georgia Prison Industries Administration would be exempt from ad valorem taxation if so purchased.

OPINION 71-203

To: Appellate Court Judge

December 30, 1971

Re: Retirement benefits for Appellate Court Judges.
This is in response to your letter of December 28, 1971 in which you requested my opinion on two questions which you posed concerning the

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interpretation of 1971 statute providing optional retirement benefits for Appellate Court judges, Ga. Laws 1971, p. 99 (Ga. Code Ann. 402535.) Your questions, together with my opinion, are stated below.
The 1971 statute providing certain benefits for Appellate Judges and their widows was deliberately designed to significantly increase the amount of benefits paid to Appellate Judges or their widows upon the retirement of such judges. The basic issue raised by your questions is whether the term "Appellate Court Judges" as used in the Act includes Appellate Court Judges who have completed at least 10 years of service and who have stepped down from the bench, but not yet reached age 65. It is conceivable that the definition of Appellate Court Judges could be construed narrowly to include only a judge currently serving on an appellate bench, or more liberally to include a judge who has met all the requirements for retirement and is waiting until his benefits begin at age 65.
If the narrow construction were to be applied, subsection (5) of Ga. Laws 1971, pp. 99, 101 (Ga. Code Ann. 40-2535(5)), which provides that a judge becomes entitled to a benefit after 10 years of service, but no benefit shall be payable until age 65, is meaningless, and certainly not in keeping with the intent of the statute.
In interpretating retirement statutes, the Georgia Appellate Courts have ruled that such statutes are to be liberally construed in favor of the beneficiary. City of Macon v. Herrington, 198 Ga. 576 (1944), Burks v. Board of Trustees, 214 Ga. 251 (1958), Golphin v. City Council of Augusta, 103 Ga. App. 53 (1961), City Council of Augusta v. Wilhelm, Ill Ga. App. 234 (1965).
In City of Macon v. Herrington, 198 Ga. 576 (1944 ), a widow was seeking benefits under a retirement statute which allowed widow's benefits if the deceased husband was a "member" of the City Retirement Fund. In that case, the fireman husband had worked a sufficient length of time to be eligible to retire but had not done so, had become sick with a terminal illness and had gone on a sick leave. One day prior to his death, the city unilaterially retired him, and paid retirement benefits. The city then claimed that "member" meant "active member" or active employee, and that since the husband was an inactive, retired member, the widow was not eligible for benefits.
In holding the widow was eligible, the Supreme Court said at p. 589:

"As will be noticed, this provision [which required the deceased spouse to be a member] refers without qualification to 'any member,' and while other portions of the act may on technical analysis contain some implications favorable to the contention made, yet there are still other parts that contain stronger implications to the contrary. It is generally held that statutes of this nature should be

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liberally construed; and considering this act as a whole, we are of the opinion that, even if it might be inferred that the petitioner's husband had been duly placed on pension, this fact would not prevent him from being a member of the fire department at the time of his death within the meaning of such statute. As to liberal construction, see Van Treeck v. Travelers Insurance Co., 157 Ga. 204 (1924); 40 Am. Jur., 363, 962; 48 C.J., 787, 4."

Your questions are as follows:

l. After lO years of service as an Appellate Court Judge, can the judge retire at any age and be entitled at the age of 65 to receive during life a retirement benefit of 75 percent of the salary of an appellate court judge then serving in the office from which he retired?

Subsection (5) of the retirement Act, Ga. Laws 1971, p. lO l (Ga. Code Ann. 40-2535 (5)) provides in essence that an Appellate Court Judge must serve at least lO years and then he shall be entitled to retirement benefits, but that such benefits may not be payable until the judge has reached age 65. It is our interpretation that there is no requirement in the statute that the judge must be in active service as a judge at age 65 when he becomes entitled to receive benefits. Rather, the statute merely requires that he must have, at some time, completed at least 10 years of service and attained age 65.
The statute further provides that upon becoming eligible to receive benefits, the amount of those benefits shall be the monthly equivalent of 75 percent of the salary of an Appellate Court Judge then serving in the office from which the judge has retired. Such payments shall be monthly and continue for life.

2. If an Appellate Court Judge with lO years of service retires prior to age 65 and later died prior to attaining age 65, would his widow be entitled under the benefits provided under the Act (50 percent of the benefits to which her spouse would have been entitled based upon his years of service as an Appellate Court Judge and without regard to whether he had attained age 65 )?

Ga. Laws 1971, pp. 99, 102 (Ga. Code Ann. 40-2535(5)), provides that the widow of an Appellate Court Judge will receive benefits from the date of death of her spouse without regard to his age, provided they had been married at least five years at the date of his death.
The situation in the Herrington case, supra, is similar to the one proposed by your question in that in both instances the employee had

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completed the necessary years of service and was no longer actively serving as either a fireman or a judge. In both instances the statute was silent on the question of whether the widow of such an employee was prohibited from receiving the widow's benefits which were clearly payable if the husband had been actively working.
On the basis of the Herrington case and the mandate from the appellate courts that any question of construction of retirement statutes is to be construed liberally in favor of the rights of the beneficiary, it is my opinion that the widow of a judge who had completed lO years of service, then stepped down from the bench, and died prior to attaining age 65, would be entitled to the benefits provided for under the Act.

285
PREFACE TO UNOFFICIAL
OPINIONS
In addition to the "Official Opinions" published in the first part of this volume, the Attorney General renders "Unofficial Opinions" to state officers other than department heads (e.g., to legislators, district attorneys) and to county and municipal attorneys on questions involving the general laws of the State.
The "Unofficial Opinions" as published herein have been digested in order to save time to the reader and expense to the State. Every effort has been made to set forth in each digest all points of law and all citations of authority contained in the original opinion.
A complete copy of each Unofficial Opinion is on file in the Attorney General's office under a number corresponding with that of the digested opinion here published. Copies of such complete opinions may be obtained from the office of the Attorney General. A nominal charge of one dollar ($1.00) for each copy must be made to cover photography and mailing. Check or money order for this amount should accompany the request.
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."

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286

DIGESTS OF UNOFFICIAL OPINIONS
UNOFFICIAL OPINION U71-1 (1/4/71)
Public officer selling services to political subdivision of which he is an official: This practice has been consistently condemned by the courts of Georgia. Montgomery v. City of Atlanta, 162 Ga. 534, 546 (1926). While Ga. Laws 1968, pp. 1249, 1307, officially codified as Ga. Code 26-2306(b) specifically relates only to the sale of personal property, it does not change the rule of law previously laid down. See also, Ops. Att'y Gen. 66-41,69-343, U70-116.
UNOFFICIAL OPINION U71-2 (1/6/71)
Traffic regulation by state park rangers: The Commissioner of Conservation may vest in the employees of his department the full authority of peace officers over land and property under the control of the department. Ga. Laws 1937, p. 264; 1943, p. 180; 1951, p. 788; 1958, p. 634 [Ga. Code Ann. 43-124(j)]. Further, under Ga. Laws 1969, p. 759 (Ga. Code Ann. 27-222), a law enforcement officer can always arrest for traffic offenses committed in his presence. Therefore, a park ranger could legally be invested with power to regulate traffic within a State park.

UNOFFICIAL OPINION U71-3 (1/8/71)
Municipal corporations; regulation of traffic on State highways: A city may not enact an ordinance regulating parking on a State highway without first receiving the permission of the State Highway Board. Ga. Laws 1953, Nov. Sess. p. 556 (Ga. Code Ann. Chapters 68-15, 68-16, 68-17). See especially Ga. Code Ann. 68-1606. See also Ga. Code Ann. 68-1671 (c); Mayor and Council of Woodbury v. State Highway Department, 225 Ga. 723 (1969).

UNOFFICIAL OPINION U71-4 (1/14/71)
Pharmacists; assistance by unregistered persons: Code references herein are to Ga. Laws 1967, p. 296, officially codified as Code Title 79A. Under Ga. Code 79A-4lO(d), any person, working under the personal supervision of a licensed pharmacist, who is actually present and observ-

287

U71-8

ing the actions of such person, may assist in measuring quantities of medications and typing labels. This activity does not constitute compounding, mixing or dispensing drugs or poisons, which, under Ga. Code 79A-519, 79A-520, can be done only by a registered pharmacist or a registered pharmacy intern.

UNOFFICIAL OPINION U71-5 (1/18/71)
Ordinaries; gratuities for performing marriage ceremonies: While Ga. Laws 1959, p. 2047, places the ordinary of Catoosa County on a salary basis, and provides that all fees collected by him as a prerequisite to the performance of official duties be turned over to the county treasurer, this , law does not apply to gratuities which are voluntarily given him for performing marriage ceremonies. These may be accepted and retained as long as the crime of bribery is not committed. See Ga. Laws 1968, pp. 1249, 1305, officially codified as Ga. Code 26-2301.

UNOFFICIAL OPINION U71-6 (1/18/71)
Homestead exemption: While Ga. Constitution, Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404) grants a tax exemption on personalty (excluding motor vehicles) of $300, plus a homestead exemption on certain realty of $2,000, the homestead exemption contains a specific exception as to municipal school taxes and taxes to pay interest on and retire bonded indebtedness. Taxes for these purposes must be paid without regard to the homestead exemption.

UNOFFICIAL OPINION U71-7 (l/19j71)
Justices of the peace; residence requirements: Where a justice of the peace removes from the militia district in which he was elected, the office becomes vacant. Ga. Code 89-501 (5).

UNOFFICIAL OPINION U71-8 (1/21/71)
Intoxicating liquor; licensing by county to exclusion of municipality: The legalization and sale of distilled spirits is controlled by Ga. Laws 1937-38, Extra. Sess., p. 103, codified as Ga. Code Ann. Chapter 5810. The method of legalization by counties is provided by Ga. Code Ann.

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288

58-1002. Ga. Code Ann. 58-1028 gives to municipalities the power to regulate liquor sales within their limits, and Ga. Code Ann. 581032 and 58-1038 provides for licenses and excise taxes by municipalities as well as by counties. Ga. Constitution, Art. I, Sec. IV, Par. I (Ga. Code Ann. 2-401) provides that no special law may be enacted in any case for which provision has been made by an existing general law. See Civil Service Board of Fulton County v. MacNeill, 201 Ga. 643 (1946); Thomas v. Ragsdale, 188 Ga. 238 (1939). Therefore, no valid local or special law could be enacted which would give a county power to tax and regulate liquor therein to the exclusion of such power in municipalities within the county.

U~OFFICIAL OPINION U71-9 (1/22/71)
Inspection of records; open records law: Note-It is customary to digest Unofficial Opinions, but the following presents an unusually complete and useful discussion of the open records law. It is, therefore, being set out in full.
To private inquirer:
Reference is made to your notation inquiring about the unavailability of copies of Department of Public Safety Form SR-13, and to our interim reply of December 23, 1970.
Form SR-13 is an accident report required by Ga. Laws 1951, p. 565, Ga. Code Ann. 92A-604 to be filed with the Department of Public Safety as part of the procedure under the Motor Vehicle Safety Responsibility law. The statute provides that the form of the report be prescribed by the Director. The purpose of the report is to allow the Director to determine whether and to what extent the requirements of the Safety Responsibility law need be enforced in a particular accident case. The report is:
"To be executed by operator or owner, where operator is incapable of making such report, within a period of ten days from date of accident. . . ." Rules and Regulations of State of Georgia, 5706-.21(4).
As you know, the report calls for factual information concerning the vehicles and persons involved in the accident, as well as the reporter's description of what occurred and what injury andjor damage resulted.
There is no requirement that the Department furnish copies of the

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reports filed to persons requesting them. Although Code 92A-603 instructs the Director to furnish certain information upon request and payment therefor, it does not apply to the SR-13 accident reports. Ga. Laws 1951, pp. 565, 567, Ga. Code Ann. 92A-603, refers specifically and exclusively to abstracts of a person's operating record, or absence thereof, and to status reports iOncerning accident records processed by the Department and action taken with respect thereto. Form SR-13 is neither an abstract of an operating record nor a status report made by the Department concerning an accident.
Ga. Laws 1952, p. 290, Ga. Code Ann. 92A-128 authorizes the Department to furnish copies of accident or other reports of the Department for a fee, and it empowers the Department to charge up to $2.00 for each page furnished. Neither this section nor any other requires the Department to furnish reports. Furthermore, the reports contemplated by this section are those of the Department rather than those made by private persons, as would be true in the case of Form SR-13. The statute has been implemented by Rule 570-2-.01 t, setting the fee for copies of an investigating officer's accident report, and by Rule 570-3-.161, concerning the fees for information relative to driving convictions and accident records of a Georgia licensed driver. None of these involve the reports made to the Department by private persons involved in accidents.
Thus, there is no provision in the law requiring the Department of Public Safety to make available to the public copies of all documents in its custody or control, nor is there any such provision specifically encompassing accident report form SR-13.
This situation differs, for example, from that of the Insurance Commissioner. With respect to his office, it is provided that records of the official transactions, filings, examinations, investigations and proceedings shall be deemed public records, copies of which shall be supplied upon request and the payment of an applicable fee. Ga. Laws 1960, pp. 289, 298, Ga. Code Ann. 56-203. The absence of such a directive to the Department of Public Safety, which directive was most recently amended after the Safety Responsibility law was passed, is an indication that the legislature did not intend such a sweeping availability provision to apply to the Department of Public Safety.
The application of the "Open Inspection" law, passed in 1959 (Ga. Laws 1959, p. 88, Ga. Code Ann. 40-2701 to 40-2703), was also considered. This law provides that State records, among others, are open to inspection by any citizen of Georgia. Section 40-2702 provides for the making of copies and the taking of extracts from such records. Section 40-2703, which was added by Ga. Laws 1967, p. 455, excepts records specifically required by the Federal Government to be kept confidential,

I. Rules and Regulations ofthe State of Georgia.

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290

as well as medical records and similar files "the disclosure of which would be an invasion of personal privacy". The question, then, is whether the accident report form SR-13 is a State record, contemplated to be a "public record", the nature of which is open to inspection.
There is no definition by statute or case law in this State of the word "record" as it pertains to State records. Op. Att'y Gen. 70-213, December 18, 1970. Although Ga. Laws 1943, p.468, Ga. Code Ann. 40809 provides for the destruction of State "records" and the procedure therefor, it does not define "records".
Although there is no clear definition of "public records", either, in Georgia, the term is referred to in several cases. In City of Atlanta v. Hawkins, 45 Ga. App. 847, 850(3) (1932), water meter books kept by the city water meter inspectors were held not to be such "public records" as would allow a witness who had examined the books to testify as to their content, to the effect that no repairs had been made on a particular water meter. Thus, not all documents kept by a governmental agency are "public records". In Brusnighan v. State, Ross v. State, 86 Ga. App. 340 (1952), indictments for procuring the withdrawal of public records were challenged. The court held that certain letters and minutes of meetings came within the meaning of the "public records" provision applying to the Insurance Commissioner( 56-101, now 56-201 thru 56206) and consequently within the prohibition in Ga. Code 89-9903. Thus, the specific character imprinted on certain documents of the Insurance Commissioner by statute fails to apply to all papers kept by the Department of Public Safety.
The meaning of "public record" has been discussed in other states. The comments of the Iowa Supreme Court in Linder v. Eckard, 152 N. W.2d 833, 836 (1967) are appropriate. After recognizing that there is no single definition of "public record" which is applicable in all situations and under all circumstances, the Court held:

"We prefer the narrower and more prevalent view that a public record or writing is one which an officer is required by law to keep or which is intended to serve as a memorial and evidence of something written, said, or done by the officer or public agency." See 45 Am. Jur. 420, Records and Recording Laws, 2.

ln People v. Olson, 42 Cal. Rptr. 760, 764-765 (1965), it was recognized that the mere fact that a writing is in possession of a public officer or a public agency does not make it a "public record". Therefore, the Court held that:

"A public record, strictly speaking, is one made by a public officer in pursuance of a duty, the immediate purpose of which is to dis-

291

U71-11

seminate information to the public or to serve as a memorial of official transactions for public reference."

Accord: Morris v. Smiley, 378 S.W.2d 149, 152 (Texas Civ. App. 1964); Amos v. Gunn, 84 Fla. 285, 94 So. 615, 634 (1922). Since the S R-13 is not intended to be a memorial of official transaction for public reference, but its purpose is to give a basis on which the Director can determine if the Safety Responsibility Law should be brought in force, it does not come within this widely accepted definition of "public record".
Moreover, it also fails to meet the definition, as it is not made pursuant to the statutory duty of a public officer. The distinction between this and a policeman's accident report is illustrated by State v. Stone, 452 P.2d 513, 517 (Ariz. 1969), where it was held that the policeman's accident report was a public record because it was kept pursuant to the statutory duty of public officers. On the other hand, the Army Board's investigation report of a plane crash was held not to be a "public record" since it contained expression of opinion and the exercise of judgment and discretion, and was therefore inadmissible in evidence, in Barnes v. Northwest Airlines, Inc., 47 N.W.2d 180, 193 (Minn. 1951).
It is therefore our unofficial opinion that, since the report is not made by a public officer, is not evidence of something written, said, or done by an officer, and contains only the opinions of a private citizen, it is not a record such as would be open for inspection and/ or copying pursuant to the Open Inspection Law of Georgia, nor is the Department required to provide copies.
U;\;OFFICIAL OPI~ION U71-10 (1/22/71)

Pardons; effect upon civil disabilities; licenses to carry weapons: All pardons relieve from civil and political disabilities. Ga. Laws 1943, pp. 185, 195 (Ga. Code Ann. 77-528). See also Ga. Constitution Art. II, Sec. II, Par. I (Ga. Code Ann. 2-801). This relief also applies to those disabilities placed upon persons who have been convicted of felony or forcible misdemeanor and are seeking to secure a license to carry a pistol under Ga. Laws 1968, pp. 1249, 1324, officially codified as Ga. Code 26-2904.

UNOFFICIAL OPINION C71-11 (1/26/71)
County officers and employees; secretary for sheriff: Georgia Laws 1968, p. 447 (Ga. Code Ann. 23-3003) authorizes the county commissioners to employ a secretary for the sheriff on a temporary basis.

U7l-l2

292

UNOFFICIAL OPINION U71-12 (1/26/71)
Municipal corporations; airports: Municipal corporations can erect and maintain airports and levy taxes for the same subject to the State Constitution and in accordance with Ga. Laws 1933, p. 102; 1941, p. 380 (Ga. Code Ann. Chapter 11-2, see especially 11-201).

UNOFFICIAL OPINION U71-13 (1/26/71)
Peace officers; oath of office: Special deputies, special constables, policemen, detectives, or other peace officers appointed pursuant to Ga. Laws 1968, pp. 1249, 1336, officially codified as Ga. Code 26-9904, should be administered an oath by the ordinary, and this oath is valid for the duration of the appointment. The term of a subordinate peace officer appointed by the sheriff is determined by the sheriff. See Drost v. Robinson, 194 Ga. 703 (1942).

UNOFFICIAL OPINION U71-14 (1/26/71)
Municipal corporations; zoning; definition of "subdivision": The Attorney General is informed that two different interpretations of the word "subdivision" are being applied to that word as it is defined in Section 26 of Ga. Laws 1957, pp. 420,441 (Ga. Code Ann. 69-1226). These interpretations are: (1) "an intent of sale, legacy, or building development must be established as the purpose of subdivision before the regulations would apply"; and (2) "that once a parcel of land is divided into two or more pieces not specifically excluded in the definition, the act of subdivision is made which would require invoking the regulations." The first of these interpretations is the correct one, since 691226 specifically provides that division of the land shall be "for the purpose" of certain named objectives, and the establishment of the purpose is therefore essential to the application of the statute. In construing a statute, words generally should be given their ordinary interpretation. See Ga. Code 102-102; Wellborn v. Estes, 70 Ga. 390, 396 (1883).

UNOFFICIAL OPINION U71-14.1 (1/26/71)
School board elections; "One-man, one-vote" principle: The selection of a county board of education can be changed from an appointive method to an elective one by complying with Ga. Constitution, Art.

293

U71-16

VIII, Sec. V, Par. II (Ga. Code Ann. 2-6802). Where this is done, the "one-man, one-vote" principle of the Fourteenth Amendment (Ga. CodeAnn. 1-815to 1-819)asenunciatedinBakerv. Carr,369U.S. 186 (1962) is not violated by a requirement that members reside in particular militia districts, so long as their election is on a county-wide basis. St:e Fortson v. Dorsey, 379 U.S. 433, 438 (1965); Dusch v. Davis, 387 U.S. 112 (1967); Hadley v. Junior College District, 397 U.S. 50, 58 (1970).
UNOFFICIAL OPINION U71-15 (1/18/71)

Firemen's Pension Fund; eligibility of fireman utilized by city as policeman: A fireman, employed full-time as such, in accordance with Ga. Laws 1955, p. 339 (Ga. Code Ann. 78-1001) would probably not lose his right to membership in the Firemen's Pension Fund if the employing city utilized him as a policeman. This, however, has not been positively adjudicated. For solution of a similar question as to a police radio operator's status as a "peace officer," see Fleming v. Maddox, 225 Ga. 737 (1969). As to instant question, "fact-finder" relating to concerned persons is suggested. See Op. Att'y Gen. 68-56.

UNOFFICIAL OPINION U71-16 (l/28/71)
Income tax; taxability of payments of questionable legality to municipal officers and employees: Payments by check have been tendered by a municipal corporation to its officers and employees for unused sick leave. A question has been raised as to the legality of these payments, which question is under consideration by the city attorney, and will not be decided in this Opinion. A further question of state income tax law, however, arises from this situation, and is subject to the following observations:
First, if the payments are legal: They would quite obviously be income and subject to taxation under our income tax law, Ga. Laws 1931, Extra. Sess., p. 26, as amended (Ga. Code Ann. Chapter 92-31; see especially 92-3101, 92-3107, 92-3108 ). If the payments are legal, they would apparently be taxable even if the checks were not cashed and an attempt were made to waive them. In a similar situation under the federal income tax laws, there was an attempted waiver of earned commissions by a trustee. The commissions were not only held to be a part of the trustee's ~ross income, but their transfer to the estate was held to be subject to gift tax. See Rev. Rul. 64-225, CB 1964-2, p. 15.
Second, if the payments are illegal: If the checks are cashed and the payments accepted, they constitute taxable income, even though the recipient is not legally entitled to retain the money. See National City

U71-17

294

Bank of Helvering, 98 F.2d 93 (C.A. 2d 1938). On the other hand, if the checks are not cashed and the payments are refused they are not taxable income.

UNOFFICIAL OPINION U71-17 (1/28/71)
State property; swap of one parcel of land for another in order to relocate Jesup State Farmers Market: State property may be disposed of by the legislature by sale or exchange. See 81 C.J .S., States, 107, p. 1079; Western Union Telegraph Co. v. Western and Atlantic R. Co., 142 Ga. 532-535 (1914). Care must be taken in any exchange or other negotiation to see that the State receives full value for any property conveyed; otherwise a grant or gift contrary to the terms of Ga. Constitution, Art. VII, Sec. I, Par. 11(1) [Ga. Code Ann. 2-5402(1)] would result. Note that the constitutional prohibition against donations by the State applies to gifts to political subdivisions as well as to those to individuals. See Op. Att'y Gen. 68-305. It is suggested that any legislation introduced in this matter delegate power to named state officials to effectuate the land exchange, and that the State Properties Acquisition Law, Ga. Laws 1965, pp. 396, 397 (Ga. Code Ann. Chapter 36-1A) be followed as to procedure.

UNOFFICIAL OPINION U71-18 (1/29/71)
State property; adjoining landowners: Where boundary line between state property and that of adjoining landowner has been plainly marked with concrete markers for 10 years and acquiesced in by the adjoining landowner, a new survey conducted by the landowner indicating that he should originally have had more of the land will not operate to give him title to it. Ga. Code 85-1602; Tietjen v. Dobson, 170 Ga. 123, 126 (1930); Peacock v. Boatright, 221 Ga. 661 (1966). It is suggested that agreement from adjoining landowner establishing marked line be obtained or that litigation to establish this line be instituted.

UNOFFICIAL OPINION U71-l9 (2/1/71)
Homestead exemption; persons over 65 years of age: Persons over 65 years of age, under Ga. Constitution, Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404), may claim tax homesteads of $4,000 if they meet certain conditions. Among these conditions is the requirement that the

295

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net income of the applicant, together with that of his spouse not exceed $4,000 for the preceding year. There is no restriction based upon the applicant's bank account.

UNOFFICIAL OPINION U71-20 (2/2/71)
Municipal professional licenses: The statute (Ga. Laws 195~, p. 207, Ga. Code Ann. 92-307) relating to occupational taxes irrtposed by municipalities, as a general rule, permits a levy upon individuals, whether they practice as sole proprietors or as members of firms. There are, however, highly individual conditions under which the levy could not be made upon employees of firms. See City of Atlanta v. Georgia Society of Professional Engineers, 220 Ga. 62 (1964).

UNOFFICIAL OPINION U71-21 (2/3/71)
Motor vehicle license tags; decal showing county: A vehicle owner has the mandatory responsibility to affix the county name decal to 1971 license plates in the space provided. Ga. Laws 1927, pp. 226, 233, as amended, particularly by Ga. Laws 1969, pp. 266, 268 (Ga. Code Ann. 68-214(b),(e)). See, further, Official Rules and Regulations of the State of Georgia, Dept. of Revenue Rule No. 560-10-10-.05. On the matter of construction of statutes, see Williams v. Bear's Den, Inc., 214 Ga. 240 (1958); Stroud v. Doolittle, 213 Ga. 32 (1957); Moore v. Baldwin County, 209 Ga. 541 (1953).

UNOFFICIAL OPINION U71-22 (2/5/71)
Homestead exemption; disabled veterans: For a veteran to be eligible for the special $12,500 homestead exemption granted to disabled veterans by Ga. Constitution, Art. VII, Sec. I, Par. IV (Ga. Code Ann. 25404), the veteran's disability must be connected with service by him during the period of a war or armed conflict in which a branch of the armed forces of the United States has engaged. The matter of serviceconnected disability is a question of fact, and must be established according to Ga. Laws 1959, p. 170 (Ga. Code Ann. 92-238).
UNOFFICIAL OPINION U71~23 (2/5/71)
Municipal elections; "one-man-one-vote": United States Supreme

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296

Court decisions require that local governmental units be apportioned on the basis of "one-man-one-vote". A very v. Midland County, 390 U.S. 474 (1968). Municipal commissioners may be elected on either a citywide or a ward-by-ward basis, but if the latter system is used, the wards must be apportioned by population with as near mathematical exactness as possible.

UNOFFICIAL OPINION U71-24 (2/5/71)
Education; regulation of normal schools: A normal school is defined as a "two-year, college level, teacher education program". The provisions of Ga. Laws 1937, pp. 864, 868 (Ga. Code Ann. 32-415) requiring the State Board of Education to regulate colleges, normal, and professional schools, have not been repealed, and remain in effect. See Ga. Laws 1943, pp. 636, 638 (Ga. Code Ann. 32-401); Ga. Laws 1967, pp. 153, 154 (Ga. Code Ann. 9-40l.l(c)(3)); Collins v. McPhail, 213 Ga. 626 (1957).

UNOFFICIAL OPINION U71-25 (2/8/71)
Justices of the peace; fees from fines and forfeiture fund: This matter is governed by the following statutes and Code sections.
Ga. Laws 1967, p. 469 (Ga. Code Ann. 24-1601) governs justices' fees in all cases, including fees to be paid from the fine and forfeiture fund.
Ga. Laws 1876, p. 109 (Ga. Code 27-2906) prescribes the general procedure for payments from the fund.
Ga. Laws 1876, p. 109 (Ga. Code 27-2909) provides that the general procedure is not applicable when the defendant in a criminal case has been acquitted. In such case, the procedure is governed by Ga. Laws 1874, p. 90, as amended (Ga. Code 27-2913).
Ga. Laws 1943, p. 539 (Ga. Code Ann. 27-2928 through 27-2933) governs the procedure where warrants have been drawn and this has resulted in an indictment and conviction. Where this result is not reached, the procedure under 27-2913 applies.
Ga. Code 27-2801 governs the point at which costs accrue. Ga. Laws 1949, p. 1168 (Ga. Code Ann. 27-2915, 27-2916) prescribes a seven-year limitation of actions for claims against the fine and forfeiture fund. An extension of time may be obtained under Ga. Code Ann. 27-2917.

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U71-28

UNOFFICIAL OPINION U7l-26 (2/9/71)
Malt beverages; regulation by municipalities: The governing authority of a city has discretionary powers to grant or refuse a license to sell malt beverages. Ga. Laws 1935, p. 73 (Ga. Code Ann. 58-718). This is true regardless of a city charter provision (Ga. Laws 1925, pp. 1217, 1240, 1241) that the city may regulate the "sale of near beer and similar nonintoxicating beverages", etc. In the first place, the charter does not positively prohibit the sale of alcoholic beverages. In the second place, the Act of 1935 is later in date than the charter provision, and, being a general law, will take precedence over an existing special law in conflict therewith. Nash v. National Preferred Life Insurance Co., 222 Ga. 14, 21 (1966).
UNOFFICIAL OPINION U7l-27 (2/9(71)
Consolidation of governments; method of holding referendum: Under the local amendment to the Constitution, Art. XI, Sec. I, Par. VII (Ga. Code Ann. 2-7807), proposed by Ga. Laws 1966, p. 1050, the General Assembly is authorized to provide by local Act that the proposed charter creating a county-wide government in Clarke County be submitted to the voters and approved by a concurrent majority of the voters residing inside the City of Athens and a majority of the voters residing in Clarke County outside the City. Apparently none of the "one-man-one-vote" decisions rendered by the Supreme Court of the United States would invalidate this plan.

UNOFFICIAL OPINION U71-28 (2/10/71)
Education; junior colleges; status of Georgia Military College: As to whether Georgia Military College is entitled to the benefits of the "Junior College Act of 1958," Ga. Laws 1958, p. 47 (Ga. Code Ann. 32156 through 32-164): it apparently is not. Under Ga. Code Ann. 32157(b) an institution covered by the Act must be operated by a "local operating unit". Subsection (c) of the same section defines "local operating unit", and among other requirements for such a unit is the power to tax. GMC has no such power. It is further apparent that this institution is not a county school system or an area school system. See Op. Att'y Gen. 69-419. Further, it is not a school system established prior to the Constitution of 1877, but had its genesis in Ga. Laws 1878-9, p.
91.

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298

UNOFFICIAL OPINION U71-29 (2/ 12/71)
Sterilization of mental incompetents; right to counsel: The sterilization of mental incompetents is governed by the "Voluntary Sterilization Act", Ga. Laws 1970, p. 683 (Ga. Code Ann. 84-931 through 84935.2). Under Ga. Code Ann. 84-933(c)(i) a director of a county department of family and children services is a proper person to file a petition for the sterilization of an incompetent. Subsection (c) (vi) of the same section gives the incompetent right to counsel. This subsection does not specifically state that, if indigent, he has a right to appointed counsel, but appointed counsel is provided as a right of persons under commitment proceedings for insanity. See Ga. Laws 1969, p. 505, officially codified in material part as Ga. Code 88-506.4, 88-507.3. See also 87 A.L.R. 2d 951 (1963); 44 C.J.S. Insane Persons, 20 (1945). Since sterilization is of even greater finality than hospitalization, the subject party should have at least as much protection as a hospitalized person. The federal courts have resolved a similar ambiguity by requiring appointment of counsel. See Dooling v. Overholser, 243 F.2d 825 (D.C. Cir. 1957).

UNOFFICIAL OPINION u71-30 (2/16/71)
Municipal Home Rule Act; authority of city to alter court system: Ga. Laws 1967, p. 3360, a general Act, establishes a system of traffic courts with jurisdiction to enforce state traffic laws in cities in excess of 300,000 in population. Under the Municipal Home Rule Act of 1965, Ga. Laws 1965, p. 298 (Ga. Code Ann. 69-1015 through 69-1020) municipalities have broad powers, but these are concerned with matters not covered by general law. See Ga. Code Ann. 69-1017 (a). Further, 69-1018(a) (6) precludes any city acting under the Home Rule Act from taking any action affecting any court other than a court having jurisdiction over municipal ordinances only. Therefore, no city acting under the Home Rule Act could alter a court having jurisdiction over state offenses.

UNOFFICIAL OPINION u71-31 (2/18/71)
Intoxicating liquor; liquor store licenses: An applicant for a liquor store license is required to obtain only one local license-from the municipality if within the corporate limits, and from the county if outside any municipality. He would not need to obtain both. See Ga. Laws 1937-

299

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38, Extra. Sess., pp. 103, 112 (Ga. Code Ann. 58-1031). A local Act in contravention of this general statute apparently would not be valid. See Op. Att'y Gen. U71-8.

UNOFFICIAL OPINION t:71-32 (2/23/71)
Coastal marshlands; definition of "mean tide level": The phrase "mean tide level" found in Section 2(b) of the Coastal Marshlands Protection Act of 1970, Ga. Laws 1970, pp. 939, 941 (in definition of "Estuarine area", Ga. Code Ann. 45-137(b)), means a plane midway between mean high tide and mean low tide. See The American Geological Institute, Glossary of Geology and Related Sciences (2d Ed. 1960) p. 180; Bureau of Mines, U. S. Dept. of Interior, A Dictionary of Mining, Mineral and Related Terms (1968).
U;\;OFFICIAL OPt\iiON C71-33 (2/24/71)
Marriage; issuance of license and performance of ceremony: A marriage license can be issued only by the ordinary or his clerk. When a minister can perform the ceremony depends upon whether the individual is authorized by his church to proclaim and minister the gospel. Ga. Laws 1965, pp. 335, 338 (Ga. Code Ann. 53-201). On interpretation of statutes, see Ga. Code 102-102(1).

UNOFFICIAL OPI;\;ION t:71-34 (2/25/71)
Public officers; simultaneously holding two county offices; effect of special enactment; use of school funds for paving: Generally, it is illegal for the same person to hold two county offices at the same time. Ops. Att'y Gen. 1954-56, p. 7'15, citing Ga. Code 89-103. Note, however, that the cited Code section prohibits holding more than one office "except by special enactment of the legislature". A special enactment may, therefore, authorize a plurality of offices, and since the section, itself, contemplates a special enactment, such an enactment may be made without violating the constitutional prohibition against enactment of special laws where provision has been made by general law. See Dallis v. Griffin, 117 Ga. 408, 410 (1903). For this reason, it appears that a local Act could authorize the president of the school board to serve upon the board of health in a given county.
As to the second question in same communication: School funds might be legally expended for acquisition of right-of-way and pavement of a driveway on school property, but not for improvement of a public road only used incidentally for transportation of pupils. See Ops. Att'y Gen. 1962, p. 189.

U71-35

300

UNOFFICIAL OPINION U71-35 (3/2/71)

Taxation by political subdivision; local taxes collected by installments, but not those of State: Ga. Laws 1968, p. 1508, proposing an amendment to Ga. Constitution Art. XI, Sec. I, Par. VII (Ga. Code Ann. 2-7807), and the enabling Act thereunder, Ga. Laws 1969, p. 3571, sets up the Muscogee County-City of Columbus Charter Commission. The political subdivision resulting from this constitutional provision and legislation is neither a city nor a county in a strict sense, but is a new type of political entity. The authority as to taxing procedure given the Council of the subdivision by the Charter is quite broad, and it would appear that it would be carried out by functionaries analogous to county tax commissioners and county boards i of tax assessors. It would further appear that the council could require local property taxes to be paid in installments.
The portion of property taxes due the State, however, could not be collected by any installment system which would require payment prior to December 20 in any year, since that is the due date for taxes fixed by general statute. See Ga. Code 92-5001, 92-5102. Further, under Ga. Code 92-5601, collection of taxes is prohibited until the tax digest is filed, and under Ga. Code 92-6917, as amended by Ga. Laws 1945, p. 251, filing could not be required until June 1. Note that the constitutional amendment proposed by Ga. Laws 1968, p. 1508, above referred to, was not ratified by the people of the whole State, but was voted upon by the people of Muscogee County only (see tabulation, Ga. Laws 1969, p. 4426). Therefore, under Ga. Constitution, Art. XIII, Sec. I, Par. I (Ga. Code Ann. 2-8101), it is not a general, but\ is a local amendment. It could alter the local taxing procedure, but could not alter that in which the state as a whole has an interest.

UNOFFICIAL OPINION U71-36 (3/2/71)
University System of Georgia; use of campuses for meetings: Apparently, under applicable federal holdings, there is no way in which political organizations can be prohibited from holding fund raising meetings on State owned university premises, even though such organizations be communist or otherwise subversive.

UNOFFICIAL OPINION U71-37 (3/3/71) Workmen's compensation for members of county board of education:

301

U71-39

Members of county boards of education are ordinarily county officers. Clark v. Long, 152 Ga. 619 (1921); Stanford v. Lynch, 147 Ga. 518 (1917); Coleman v. Glenn, 103 Ga. 458 (1897); Smith v. Bohler, 72 Ga. 546 (1884). Elected county officers are included with "employees" covered by the Workmen's Compensation Act where proper provision is made for such coverage by the county governing authority. Ga. Code 114-101, as amended by Ga. Laws 1968, p. 1163. The proper "governing authority" for this purpose would be the county commissioners. Any resolution by the governing authority for inclusion of the board members should include all board members. A member wishing not to be included could then file a rejection of the Act under Ga. Code 114201. While, in ordinary industry, the coverage of the Act is not limited to full-time employees (see Lokey and Simpson v. Hightower, 57 Ga. App. 577 (1938)), note that Ga. Code 114-101, in dealing specifically with county employees, limits coverage to "full-time county employees"
UNOFFICIAL OPII";ION U71-38 (3/3/71)

Federal constitutional convention; agenda cannot be restricted: The Constitution of the United States, Art. V (Ga. Code Ann. 1-501), provides that Congress shall call a constitutidnal convention on the application of the legislatures of two-thirds of the States. This provision is silent as to whether the agenda for such a convention could be restricted, but it would appear that it could not. Once submitted to the people and ratified by them as the sovereign power, a constitution becomes the organic law of the nation, deriving its authority from the people and not from the convention. Therefore, an attempt to limit the agenda when delegates to a convention are chosen would probably be of no effect. See Wheeler v. Trustees of Fargo School District, 200 Ga. 323 (1946). See also C. Antieau, Modern Constitutional Law (1969), 12:175.

UNOFFICIAL OPINION U71-39 (3/5/71)
Real estate salesmen cannot incorporate: The licensing of real estate brokers and salesmen is governed by Ga. Code 84-1410, as based upon Ga. Laws 1925, p. 325. Subsection (c) of that Code section contemplates that real estate brokers may practice in the corporate form, but this power is not extended to salesmen (agents). It is indicated by subsection (e) of 84-1410 that salesmen will be employed by brokers. Further, the Georgia Professional Corporation Act, Ga. Laws 1970, p. 243 (Ga. Code Ann. 84-5402(a)) lists the professions which may be incorporated, but real estate salesmen are not included.

U71-40

302

UNOFFICIAL OPINION U71-40 (3/9/71)

County records; authority to destroy: Certain statutes permit the recording of specified documents in the offices of the ordinary and of the clerk of the superior court by photography. See Ga. Laws 1950, p. 414 (Ga. Code Ann. 24-1805); Ga. Laws 1957, p. 121 (Ga. Code Ann. 24-2747). There is, however, no general law which permits the destruction of records at any given time. In fact, the statutes specifically forbid the destruction of records. See Ga. Code 89-9903, construed in Brusnighan v. State, 86 Ga. App. 340, 349 (1952). See also Op. Att'y Gen. 67-136; 76 C.J.S., Records, 1 (1952). In some cases, local legislation has been enacted to help alleviate the county record problem. See, for instance, Ga. Laws 1970, p. 2941. It is useful to distinguish between mere papers on file and true "records." See Ops. Att'y Gen. 70-213, U71-9.
UNOFFICIAL OPINION U71-41 (3/11/71)

Pecans as property; ownership of nuts falling upon highway right-ofway from trees of adjoining landowner: Pecans are "crops" according to Ga. Code 85-1902, and are personalty under Ga. Code 85-1901. See Milfer v. Jackson, 190 Ga. 668 (1940). There is authority to the effect that the owner of trees producing fruit retains ownership of the fruit even though it falls upon the land of another. See 76 A.L.R. 1111 (1932). No stranger would acquire title to pecans falling from trees of adjoining landowner upon highway right-of-way.

UNOFFICIAL OPINION U71-42 (3/11/71)
Forfeited criminal bonds; disposal of funds; fees of justices of the peace: The procedure to be followed by a justice of the peace with respect to costs at a commitment hearing is prescribed by Ga. Code 27-421. Fines and forfeitures of bonds are collected by the courts and held in the fine and forfeiture fund. See Ga. Code 27-2902, 27-2912. The ultimate responsibility for costs in a criminal case will fall upon the defendant, the prosecutor, or the fine and forfeiture fund, depending upon the circumstances. See Ga. Code 27-2801, 27-2805, 27-2913, 27-2929.

UNOFFICIAL OPINION U71-43 (3/12/71)
University System of Georgia; campus policemen not certified as peace officers: According to the Georgia Peace Officers Standards and Training Act (Ga. Laws 1970, p. 208, Ga. Code Ann. 92A-2102(a))

303

071-45

a "candidate" is a prospective peace officer. Subsection (d) of the same Code section defines "peace officer" as "any officer or member of a law enforcement unit employed full time by the Department of Public Safety, a municipality or a county...".Certificates are issued only to candidates qualified under the peace officers' program. Ga. Code Ann. 92A-2106(e). Policemen employed by the University System do not meet the requirements as to employment here set out, and consequently cannot be qualified as "peace officers" under the Standards and Training Act. Where a statute is clear and unambiguous, it should not be construed to mean other than what is declared. New Amsterdam Casualty Co. v. McFarley, 191 Ga. 334, 337 (1940).

UNOFFICIAL OPINION U71-44 (3/12/71)
Thomas County; general obligation bonds for educational purposes: Thomas County is authorized to issue general obligation bonds for the purpose of establishing educational facilities beyond the twelfth grade. This authority is based upon a local amendment to Ga. Constitution Art. VII, Sec. VII, Par. I (Ga. Code Ann. 2-6001). The amendment was proposed by Ga. Laws 1964, p. 809, and, according to the tabulation published in Ga. Laws 1966, p. 1298, was ratified.

UNOFFICIAL OPINION U71-45 (3/18/71)
Processioning; fees of county surveyor: Ga. Code Ann. 85-1610, as amended by Ga. Laws 1953, p. 202, provides that the applicant in a processioning proceeding shall pay the fees of the processioners. A county, therefore, could not pay such fees unless it is the applicant, for, otherwise, the payment would constitute a gratuity to the applicant in violation of Ga. Constitution, Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402). See Grand Lodge of Georgia, Independent Order of Odd Fellows v. City of Thomasville, 226 Ga. 4 (1970); Atlanta Chamber of Commerce v. McRae, 174 Ga. 590 (1932). Ga. Code 85-1610, cited above, states that in a processioning proceeding a county surveyor shall receive "not less than $12 per day for his services". This establishes a minimum fee; it does not imply that a greater fee is prohibited. See Hankins v. People, 106 Ill. 628 (1883); Paul/us v. Fowler, 59 Wash. 2d 204, 367 P.2d 130 (1961); Arnold v. State, 86 Ga. App. 160 (1952). Further, Ga. Code Ann. 23-1109(i), based upon Ga. Laws 1968, p. 1413, permits a county surveyor to establish a reasonable fee for "any other survey he may be called upon or required to perform", which would include processioning. There does not appear to be any conflict

071-46

304

between Ga. Code 23-1109 and 85-1610, but, even if there were one, 23-1109, being based upon a more recent statute, would apparently govern.

UNOFFICIAL OPINION U71-46 (3/24/71)
Ad valorem taxes; nonprofit corporation operating swimming pool facility not exempt: The fact that a community swimming pool is operated by a nonprofit corporation does not authorize a municipality to exempt the facility from ad valorem taxes where the facility is not used as a purely public charity. The mere nonprofit nature of the operation is not sufficient to bring it within the exemption provisions of Ga. Laws 1946, p. 12 (Ga. Code Ann. 92-201), nor is it within the rule stated in Peachtree on Peachtree Inn, Inc. v. Camp, 120 Ga. App. 403 (1969) or Central Board on Care of Jewish Aged, Inc. v. Henson, 120 Ga. App. 627 (1969).

UNOFFICIAL OPINION U71-47 (3/25/71)
Weights and measures; supervision by State Department of Agriculture: Ga. Code 112-102 requiring the several ordinaries to acquire for their counties instruments for marking weights and measures does not appear to have been specifically repealed, but it is not currently exercised. Presently, in accord with Ga. Laws 1941, p. 510 (Ga. Code Ann. 112-107 through 112-115), the supervision of all matters relating to weights and measures within this State is under the jurisdiction of the State Commissioner of Agriculture.

UNOFFICIAL OPINION U71-48 (3/29/71)
Referendum elections; classification .of voters: Where provision for a local referendum requires submission to the "qualified voters of Richmond County residing outside the corporate limits of the City of Augusta, and the qualified voters of Richmond County residing inside the corporate limits of the, City of Augusta", two classes of voters are created. Qualified voters of Richmond County living within incorporated municipalities other than Augusta should be allowed to vote in the referendum, since they fall within the class of persons living within the county but outside of Augusta.

305

U71-52

UNOFFICIAL OPINION U71-49 (3/31/71)

Peace Officers Standards and Training Act; inclusion of deputy sheriffs of Municipal Court of Savannah: The deputy sheriffs of the Municipal Court of Savannah are full-time employees of Chatham County and among their other duties is the duty of making arrests. This brings them within the coverage of Section 2, subsections (d) and (e) (Ga. Code Ann. 92A-2102(d), (e)) of Ga. Laws 1970, p. 208, the Peace Officers Standards and Training Act. Section 13 of the Act (Ga. Code Ann. 92A2113), however, exempts officers already employed on the effective date of the Act (July 1, 1970) from the requirements of the law. Deputy sheriffs employed as such before July 1, 1970, therefore, need not be certified under the Act, but persons so employed on or after that date must be certified.

UNOFFICIAL OPINION U71-50 (4/2/71)
Justices of the peace; fees: Under Ga. Code Ann. 24-1601, as amended by Ga. Laws 1967, p. 469, a justice of the peace is limited to a fee of 50 cents for each criminal warrant issued under the Uniform Act Regulating Traffic on Highways (Ga. Laws 1953, Nov. Sess., p. 556, Ga. Code Ann. Chapters 68-15 through 68-17; 68-9926, 68-9927).

UNOFFICIAL OPINION U71-51 (4/5/71)
Exemptions from taxation; household goods: Section 1 of Ga. Laws 1971, p. 3, exempts all personal property used within the home from taxation. This Act is amendatory of Ga. Laws 1946, p. 12 (Ga. Code Ann. 92-239), and implements the change in Ga. Constitution, Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404) proposed by Ga. Laws 1970, p. 990. The 1971 Act exempts all property above described, rather than such property up to the value of $300, as was formerly provided. Since Ga. Constitution, Art. VII, Sec. I, Par. III (Ga. Code Ann. 2-5403) requires uniformity of taxation upon the same class of property within the territorial limits of the taxing authority, and since the law contains no exceptions as to towns or other governmental units, the 1971 statute is effective throughout the state as to all units of government.
UNOFFICIAL OPINION U7152 (4/6/71)
Taxation; mobile homes and trailers: All real and personal property

U71-53

306

is subject to taxation except as otherwise provided by law. Ga. Code 92-101. This principle applies to mobile homes and trailers, regardless of whether tires are retained upon them. The question of whether mobile homes and trailers should be returned as personal or real property should be worked out with local authorities. Tax liens attach to all property, whether or not the property was returned for taxation. See Ga. Code Ann. 92-5707, as amended by Ga. Laws 1953, Nov. Sess., pp.168, 169.
UNOFFICIAL OPINION U71-53 (4/6/71)

Homestead exemption for persons over 65 years of age: In determining whether a person meets the net income requirement for the special $4,000 homestead exemption allowed certain persons who are 65 or over, payments received by the person under a retirement or pension program or the federal social security program must be taken into account if the payments are based upon contributions made to those programs by the person or his spouse. Ga. Constitution, Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404) as amended by proposal of Ga. Laws 1968, p. 1690. It is true that this constitutional section first refers to "net income", which would not include certain of these retirement or pension payments. The general, however, must yield to the specific in construing constitutions as well as statutes. Torrance v. McDougald, 12 Ga. 526(2) (1852). Since the constitution specifically refers to these pension and retirement payments, they must be included.

UNOFFICIAL OPINION U71-54 (4/9/71)
Bonds; general obligations for educational purposes: The governing authority of Decatur County does not have the authority to issue general obligation bonds for the purpose of establishing educational facilities beyond the twelfth grade to be operated as a unit of the University System of Georgia. This for the reason that under Ga. Constitution, Art. VII, Sec. VII, Par. II (Ga. Code Ann. 2-6002) no political subdivision may incur bonded indebtedness unless it also provides for taxation to pay the indebtedness. The governing authorities may not levy an educational tax in addition to that recommended by the county board of education. See Board of Commissioners of Roads and Revenues of Twiggs County v. Bond, 203 Ga. 558 (1948), citing Ga. Constitution, Art. VII, Sec. IV, Par. I (Ga. Code Ann. 2-5701). A different situation exists where the issuance of bonds is authorized by a local constitutional amendment. See Op. Att'y Gen. U71-44.

307

U71-57

UNOFFICIAL OPINION U71-55 (4/12/71)

Board of tax equalizers; quorum: A board of tax assessors, (equalizers) consisting of three members, and sitting in accordance with Ga. Code Ann. 92-6911, as amended by Ga. Laws 1970, pp. 580, 581, can legally act in the absence of one of its members. See Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531,547 (1913); NLRB v. Ohio Calcium Co., 133 F.2d 721 (6th Cir. 1943); Austin- Western Road Machinery Co. v. Fayett County, 99 F.2d 565 (5th Cir. 1938). The absence of a member could be for "any reason". Hutchens v. Williams, 212 Ga. 754(7)(1956). Joint authority given to any number of persons, or officers, may be executed by a majority of them unless it is otherwise declared. Ga. Code Ann. 102-102(5). Code Chapter 92-69 does not contain any provision which would take meetings of equalizers out of this rule.

UNOFFICIAL OPINION U71-56 (4/14/71)
Coroners; fees for investigating death: A coroner is entitled to only one fee of $25 for investigating a death, whether a coroner's jury is empaneled or not. See Ga. Laws 1953, p. 210 (Ga. Code Ann. 21-105); Ga. Laws 1953, p. 602 (Ga. Code Ann. 21-205, 21-206). Ops. Att'y Gen. 1963-65, p. 780, to same effect, reaffirmed.

UNOFFICIAL OPINION U71-57 (4/20/71)
Peace officers; witness fees and expenses: A peace officer, who, required by subpoena, attends court on behalf of the state during any hours except regular duty hours, is entitled to mileage as provided by Ga. Laws 1966, p. 502 (Ga. Code Ann. 38-801 (d)). Under these conditions, he is also entitled to per diem as provided in Ga. Laws 1968, p. 434 (Ga. Code Ann. 38-801 (h)). The officer is not entitled to mileage when appearing during regular duty hours. See Ops. Att'y Gen. 67-311, U70-ll. It is academically possible that Ga. Laws 1968, p. 434, might not have repealed Ga. Laws 1967, p. 2820, setting up a different rate of per diem in certain counties having a given population bracket. Bibb County, however, while within the population bracket, does not comply with certain other requirements of the 1967 Act, and is, therefore, governed by the general law~that of 1968. Where there is irreconcilable conflict between two statutes, the latest legislative expression prevails. Sutherland, Statutes and Statutory Construction, pp. 464,466, cited in Leonard v. State, 204 Ga. 465 (1948).

U71-58

308

UNOFFICIAL OPINION U71-58 (4/20/71)

Estate taxes where "no administration necessary"; duty of ordinary: Where application for distribution of an estate, "no administration necessary" is filed, it is the duty of the ordinary, under Ga. Laws 1958, p. 355 (Ga. Code Ann. 113-1235), to ascertain that there are no unpaid debts. If the estate exceeds the exemptions granted by state and federal law for estate taxes, he should ascertain that there is no indebtedness arising from such taxes. While there are holdings to the effect that taxes are not strictly debts (Sanders v. Fulton County, 111 Ga. App. 434 (1965)), a term should be given a meaning consistent with the intent of the statute. See Undercojler v. Capital Automobile Co., 111 Ga. App. 709, 716 (1965). Note, also, that Acts 1937-38, Extra. Sess., pp. 77, 98 (Ga. Code Ann. 92-8443), makes taxes a personal debt of the person obligated to pay. See further Price v. United States, 269 U.S. 492, 70 LEd. 373, 46 S.Ct. 180 (1926) construing "debts" as applied to R.S. 3466 (31 U.S.C.A. 191).

UNOFFICIAL OPINION U71-59 (4/20/71)
Peace Officers Standards and Training Act; no application to civil defense auxiliary police: The Peace Officers Standards and Training Act, Ga. Laws 1970, p. 208, at Section 14 (Ga. Code Ann. 92A-2114) expressly provides that the Act is not applicable to emergency peace officers. Civil defense auxiliary police, as authorized by Ga. Laws 1951, p. 224 (Ga. Code Ann. 86-1801 et seq.; see especially 86-1809(2)), are clearly emergency peace officers. They do not have general powers of arrest under either the Civil Defense statutes or under Ga. Code Chapter 27-2.

UNOFFICIAL OPINION U71-60 (4/21/71)
Chiropractors; authority to sign death certificates repealed: While Ga. Code 84-509, based upon Ga. Laws 1921, p. 171, purports to authorize chiropractors to sign death certificates, this provision has been superseded and repealed by the Georgia Health Code, Ga. Laws 1964, p. 499, officially codified as Ga. Code Title 88. Ga. Code 88-1715(c) requires that a death certificate be executed by a physician or osteopath. Definitions of "physician" and "osteopath" for Health Code purposes do not include chiropractors. See Ga. Code 88-1701(i), (j). The purpose of Chapter 88-17 is "to provide a complete and comprehensive vital records law" according to Ga. Code 88-1701, and 88-1724([) for-

309

U71-63

bids any person to execute any certificate required by the Health Code except as therein authorized. While repeals by implication are not favored, they will result where a later statute is manifestly intended to cover the subject-matter of the former, and to act as a substitute for it. Johnson v. Southern Mutual Building and Loan Association, 97 Ga. 622 (1895). [Confirmed in Official Opinion. See Op. Att'y Gen. 71-94.)
UNOFFICIAL OPINION U71-61 (4/22/71)

Superior Court Clerks Retirement Fund; additional benefits: The five percent additional benefits (provided under Ga. Laws 1971, p. 228, amending the Superior Court Clerks Retirement Fund law (Ga. Code Ann. 24-2732 et seq.)) for each year of service in excess of 20, must be based, under the express language of the 1971 Act, upon the amount the clerk would have been entitled to receive had he retired at the end of 20 years of service.

UNOFFICIAL OPINION U71-62 (4/23/71)
Augusta-Richmond County Government; homestead exemptions: Question as to whether ratification of Ga. Laws 1971, p. 2123, the enabling Act creating the Augusta-Richmond County Government, would have any effect on the homestead exemption laws. It is to be noted that Ga. Laws 1968, p. 1787, proposing the amendment to Ga. Constitution, Art. XI, Sec. I, Par. VII (Ga. Code Ann. 2-7SU7), which amendment permitted the consolidation of Augusta and Richmond County Governments, contained provisions to the effect that the status of the Richmond County board of education should not be altered, and that constitutional provisions as to tax homestead exemptions should not be impaired. It is to be further noted that Richmond County has an independent school system created by Ga. Laws 1872, p. 456. Section 8.07 of the 1971 enabling Act, which deals with homestead exemptions, must, therefore, be interpreted in the light of the constitutional amendment limitations.
UNOFFICIAL OPINION U71-63 (4/26/71)
Costs in garnishment cases: This question involved the correlation of Ga. Laws 1970, p. 724 (Ga. Code Ann. 46-409), requiring deposit of costs in garnishment cases with Ga. Laws 1971, p. 214, amending Ga. Code Ann. 24-2727, and requiring a $20 deposit in all civil cases filed in superior court. Ga. Laws 1971, p. 214, however, was repealed, insofar as material to this question, before its effective date (see Op. Att'y Gen. U71-90, infra). The correlation, therefore, would be of no effect.

310
UNOFFICIAL OPINION U71-64 (4/26/71)
Withdrawn.
UNOFFICIAL OPINION U71-65 (4/28/71)
Water quality control; application of grants: Certain sums which the legislature appropriated for F.Y. 1972 for State Water Quality Control grants cannot be used as matching funds against Federal monies but can only be used for grants to local projects which completely qualify for, are eligible for, and entitled to, 30 percent or 33 percent Federal matching grants under the Federal Water Pollution Control Act, as amended (Public Law 84-660, as amended; 33 U.S.C. 466 et seq.), but for which no Federal funds are available. See Ga. Laws 1971, pp. Ill, 127, Section 17-D.
UNOFFICIAL OPINION U71-66 (4/30/71)
Juvenile offenders; transfer to Board of Corrections: The transfer of juveniles by the Division for Children and Youth to the Board of Corrections, authorized by Section 3, Ga. Laws 1969, p. 996 (Ga. Code Ann., Editorial Notes following 99-209, 99-222) is authorized only to obtain needed facilities, and does not transform the Board of Corrections into an agency authorized to care for children within the meaning of Ga. Laws 1968, pp. 1013, 1028 (Ga. Code Ann. 24-2421 (l)(b)). See also Ops. Att'y Gen. 70-65, 70-89.
UNOFFICIAL OPINION U71-67 (5/3/71)
Sales and use taxes; purchases by churches not exempt: The Sales and Use Tax Act, Ga. Laws 1951, p. 360, Ga. Code Ann. Chapter 92-34A, contains no exemption as to purchases by churches. In the absence of such an exemption the sales tax must be imposed upon their purchases. See Ops. Att'y Gen. 1952-53, p. 229.
UNOFFICIAL OPINION U71-68 (5/4/71)
Malt beverages; sale by cooperative association not authorized: The intoxicating liquor laws (Ga. Code Ann. Title 58) appear to contain no

311

U71-71

specific prohibition against the sale of malt beverages by a non-profit cooperative marketing association organized under Ga. Laws 1921, p. 139 (Ga. Code Ann. Chapter 65-2). On the other hand the powers of such an association are strictly prescribed by Ga. Code Ann. 65-213 and 65-214, as amended by Ga. Laws 1937, p. 473, and there is no authorization for the sale of such beverages. Purchase of beer from wholesalers and retail selling of the same by associations, therefore, would not be legal.

UNOFFICIAL OPINION U71-69 (5/5/71)
Municipal taxation; traveling salesmen of distilled spirits: In determining whether a municipality may impose a license fee upon a wholesale distributor of distilled spirits with a business situs elsewhere, Ga. Code 92-4105, which restricts the taxation of traveling salesmen by municipal corporations, is applicable.

UNOFFICIAL OPINION U71-70 (5/6/71)
Criminal procedure; Soldiers and Sailors Civil Relief Act as not applicable: The Soldiers and Sailors Civil Relief Act of 1940 (see 50 U.S.C.A. 510 (1968 ed.)) applies to civil proceedings against servicemen. It has no applicability to criminal proceedings. See Dotseth v. Justice Court, 5 Ariz. App. 424,427 P.2d 558, 562-3 (1967).

UNOFFICIAL OPINION U71-71 (5/6/71)
Superior court clerks and ordinaries; closing offices on Saturday: There is no general statute which requires that offices of superior court clerks be open at specific times, and if they remain open for sufficient periods to enable them to perform their fuhctions, there is no statutory objection to their being closed on Saturday. See Op. Att'y Gen. 69-497. Under Ga. Code Ann. 24-2104, as amended by Ga. Laws 1952, p. 213 and 1967, p. 731, the ordinary can transact business at any time except Sunday, and may close his office for one additional day each week. He may choose to close on Saturday if he so desires.

U71-72

312

UNOFFICIAL OPINION U71-72 (5/10/71)
Automobile license tags; purchase by mail: The collection of the county tax commissioner's 50 cent fee for mailing license plates, as prescribed by Ga. Laws 1957, p. 454, as amended (Ga. Code Ann. 68253), is mandatory and not optional.

UNOFFICIAL OPINION U71-73 (5/10/71)
Superior court clerks' fees; latest expression of legislative intent as controlling: Ga. Code Ann. 24-2727, relating to the fees of superior court clerks, was amended twice at the 1971 legislative session: by S.B. 104 (Ga. Laws 1971, p. 699) and by S.B. 135 (Ga. Laws 1971, p. 774). The two Bills are inconsistent, and, unfortunately, were both approved on April 10, 1971. The Governor's office, however, states that the Bills were approved in numerical order. Ga. Laws 1971, p. 774, therefore, is the latest expression of the legislative intent, repeals and supersedes former Code 24-2727, and is controlling as to that section.' See J. Sutherland, Statutes and Statutory Construction, 276 (1943).

l. Note, however, that Ga. Laws 1971, p. 774, does not completely repeal Ga. Laws 1971, p. 699. The Act on p. 774 is confined to a superedeas of Code 24-2727, whereas the Act on p. 699 contains other provisions which would not be repealed unless inconsistent with the later law. See Ops. Att'y Gen. U71-75, U71-90, infra.
UNOFFICIAL OPINION U71-74 (5/13/71)
Reapportionment; variance between most and least populous congressional and legislative districts: There is no specific variance permissible between districts. Each district must be apportioned equally "as nearly as practicable". Kirkpatrick v. Preisler, 394 U.S. 526 (1969); Wells v. Rockefeller, 394 U.S. 542 (1969). There does not appear to be any court ruling prohibiting an irregular shape of a congressional district, as long as there is no unconstitutional motivation for the shape.
UNOFFICIAL OPINION U71-75 (5/14/71)
Superior court clerks; filing and indexing fees: Prior to July I, 1971, the effective date of certain Acts hereinafter discussed, which amended Ga. Code Ann. 24-2727, the clerk was entitled to an indexing fee of

313

U7l-76

10 cents per entry for keeping the index of direct and reverse reference to deeds, mortgages or other instruments. See Ga. Code Ann. 39-705, as amended throughGa. Laws 1950, p. 107. Ga. Code Ann. 39-705 is based upon the same Act (Ga. Laws 1888-89, p. 106) as Code 67250 l, which states the effective date of filing deeds, mortgages, and liens; it is, therefore, considered to relate to the index of these documents, rather than to the general execution docket. See further, Ga. Code Ann. 24-2715(8), based upon Ga. Laws 1887, p. 53; 1961, p. 116; 1963, p. 188; and 1964, p. 412. This last mentioned Code section requires the grantor-grantee index for the above described documents.
Ga. Laws 1971, p. 699, however, amended Code 39-705 by striking the 10 cent entry fee, and by substituting therefor "the fees enumerated in Code section 24-2727 for". The same Act of 1971 then amended Code 24-2727, but did not add therein any provision for indexing fees. The result of this was to leave no provision for the collection of such fees after July 1, 1971, the effective date of the amendatory Act. See Ga. Laws 1968, p. 1364; 1969, p. 7 (Ga. Code Ann. 102-111). Ga. Laws 1971, p. 774, again repealed and superseded Code 24-2727, but still did not add any provision for indexing fees. 1

I. For discussion of correlation of Ga. Laws 1971, p. 699 with the Act on p. 774, see Ops. Att 'y Gen. U71-73 and its footnote, supra; U7l-90, infra.

UNOFFICIAL OPINION U71-76 (5/18/71)
Drug violations; punishment for sale of narcotics: The question is as to the punishment for the illegal sale, barter, or exchange of narcotics under Ga. Laws 1967, p. 296, as amended, officially codified as Ga. Code Title 79A. Code 79A-8Q2. prohibits, among other things, the unauthorized sale of narcotics. The first paragraph of 79A-9911 prescribes a blanket punishment for violations of Code Chapter 79A-8 of a fine of $2,000 and two to five years in the penitentiary for the first offense and increased penalties for subsequent offenses. The third paragraph of the same Code section, as amended by Ga. Laws 1970, p. 470, prescribes a punishment for the first offense of selling narcotics of imprisonment for five to ten years. Without more, the inconsistency would require a restriction to the lesser punishment prescribed by the first paragraph under the holding in Gee v. State, 225 Ga. 669, 676 (1969). It must be noted, however, that the third paragraph begins with the words, "Provided, however, any other provision of this section to the contrary notwithstanding." This proviso is sufficient to make the greater punishment of the third paragraph apply.

U7l-77

314

U~OFFICIAL OPINION U71-77 (5/21/71)
Public officers and employees: A county may contract with an individual for the performance of services within the authority of the county. That the individual contracted with is manager of the county chamber of commerce is immaterial.

U~OFFICIAL OPI~ION U71-78 (5/24/71)
Sheriff, State Court of Chatham County; compensation: Ga. Laws 1971, p. 380, set up a schedule of minimum fees for county sheriffs. The question is whether this applies to the sheriff of the State Court of Chatham County. It is true that Ga. Laws 1819, p. 16, the Act creating the Court of Common Pleas and of Oyer and Terminer of the City of Savannah, the predecessor of the present State Court of Chatham County, provided for the sheriff of said court the same fees as are provided for sheriffs of the superior and inferior courts of the State. On the other hand, there has been a great deal of intervening legislation which must be considered. Ga. Laws 1847, p. 281, added certain fees for the Savannah sheriff and raised others. Ga. Laws 1853-54, p. 281, changed the name of the court to the City Court of Savannah. Ga. Laws 1925, p. 498, abolished fees for the sheriff of that court, and provided a salary to be paid from the county treasury. Ga. Laws 1933, p. 353, changed the method of fixing the salary. Ga. Laws 1949, p. 403, set the salary at a fixed amount. Ga. Laws 1964, p. 2511, raised the amount of this salary. Ga. Laws 1970, p. 679 (Ga. Code Ann. Chapter 24-21A) changed the designation of "city courts" to "state courts", but did not affect this sheriff. The sheriff of the State Court of Chatham County is, therefore, not such a "county sheriff' as is governed by Ga. Code Ann. Chapter 24-28, or by Ga. laws 1971, p. 380. His salary is fixed, rather, by the specific statutes relating thereto.

U~OFFICIAL OPINION U71-79 (5/28/71)
Intangible taxes; valuation of restricted stock: The tax upon stock in foreign corporations imposed by Ga. Laws 1953, Nov. Sess., p. 379 (Ga. Code Ann. 92-162) is at the rate of $1 per $1,000 of fair market value. The question of value is one of fact. Sapp v. Howe, 79 Ga. App. 1 (1949); Hay v. Carter, 91 Ga. App. 540 (1955). This question is to be resolved by the State Revenue Commissioner. Ga. Laws 1937-38, Extra. Sess., p. 156 (Ga. Code Ann. 92-139). A broad range of evidence is admissi-

315

U71-81

ble on questions of this kind. See Mertens, Law of Federal Income Taxation, 59.02-59.11; Sam Goldstein, T.C. Memo 1965, 223. Once a determination is made, it is presumptively correct. Twentieth Century Fox Film Corp. v. C.I.R., 372 F.2d 281 (2) (2d Cir. 1967). If, in considering this matter, the Revenue Commissioner should determine that the restrictions adversely affect the value of the stock, this should be reflected in the appraisal. This opinion is distinguishable from Ops. Att'y Gen. 70-197 in that the earlier opinion dealt with a personal restriction as to stock, whereas the instant Opinion considers restrictions "running with the stock".

UNOFFICIAL OPINION U71-80 (5/28/71)
Elections; necessity for municipality to hold special statutory election on date set: Ga. Laws 1970, p. 2067, authorized the City of Jesup to hold a referendum election as to the de-annexation of certain land. The election was to be held "not less than five days nor more than ten days after the approval of this Act." No election was called within the prescribed period, however, and, therefore cannot be called under this Act on a later date. An election held at any time other than that authorized is absolutely void. Davis v. Page, 217 Ga. 751 (1962). 1
I. Although a liquor election should be held within 30 days after the petition is filed, circumstances may cause some modification of this rule. "Where an election is not required by statute to be held on a date certain, and where the election is prevented by court order, it is permissible to reschedule the election after the expiration of the court's injunction, even though the 30-day period for holding the election also has expired." Committee for New Cobb County Revenue v. Brown, 228 Ga. 364(3b) (1971).

UNOFFICIAL OPINION U71-81 (6/4/71)
Crime control: Municipal and county governments, which are grantees of "Omnibus Crime Control Action Funds" may contract with area planning and development commissions for technical assistance and services relating to the formulation of area crime control programs, but not with respect to the actual administration of such programs. See Op. Att'y Gen. 69-141. Note that Ga. Laws 1970, p. 321 (Ga. Code Ann. 40-2920(g), (h)) empowers the commissions to cooperate in research and technical assistance and to render certain other like services to the county or city involved, but under the doctrine of ejusdem generis (see Davis v. Dougherty County, 116 Ga. 491, 493 (1902)), this would not extend the authority of a commission actually to operate a crime control program.

U7l-82

316

UNOFFICIAL OPii\iiON t:71-82 (6/7 /71)
Retirement of judges: Ga. Laws 1971, p. 99 (Ga. Code Ann. 402535) providing retirement benefits for Appellate Court Judges expressly states that benefits under that Act shall be in lieu of the appointment to or the holding of any emeritus office. An Appellate Court Judge, therefore, who has formerly served as Judge of the Superior Court would have to resign as Judge of the Superior Courts Emeritus before taking advantage of the 1971 Act, and could not receive the per diem allowance granted Emeritus Judges in his former circuit.

UNOFFICIAL OPI;\;IOi\i C71-83 (6/ 10/71)
Probation; foreign travel by probationer: Probationer has applied to his probation officer for permission to travel in Europe. How can this be granted? The State Board of Probation administers the state-wide probation system, and supervises probationers. Ga. Laws 1956, p. 27; 1958, p. 15; 1962, p. 16; 1966, p. 56 (Ga. Code Ann. 27-2703). The board, however, does not have power to change the conditions of probation. These, including travel restrictions, could be changed only by order of the sentencing court. See Acts cited above and also Ga. Laws 1960, p. 1148 (Ga. Code Ann. 27-2709, 27-2712, 27-2723).

Ui\iOFFICIAL OPii\iiON C71-84 (6/11/71)
Deputy sheriffs; oaths of office: A deputy sheriff appointed for emergency work should qualify in each county of anticipated service. Op. Att'y Gen. 69-473. A deputy must take the same oath as the sheriff. Ga. Code 89-308. The sheriffs oath must be taken before the judge of the superior court or ordinary of the county in which service is to be performed. Ga. Code 24-2804. See also Howell v. State, 164 Ga. 204, 214 (1927). There appears to be no requirement that a deputy be a resident of the county to be served as long as he is a citizen of the state. See Ga. Laws 1968, pp. 1249, 1336, officially codified as Ga. Code 26-9904. It follows that where a number of emergency deputies are to be appointed, they may all be qualified at a joint meeting by a superior court judge if all counties involved are within his circuit. If, however, other counties are to be served, proper oath must be taken within each such county.

317

U7l-87

UNOFFICIAL OPINION {;71-85 (6/11/71)
Taxes collected by county; distribution of funds: Questions are: ( l) Do taxes collected by the county tax commissioner go through the county commissioners? (2) Is the county school board required to furnish a budget to the county commissioners? The answer to both questions is "no." Assuming that the office of the county treasurer has not been abolished by local law, and that the county follows the general statute, the county tax collector will pay over the state and county funds (other than school taxes) to the state and county treasurers, respectively. Ga. Code 92-490 l (I). He will pay directly to the county board of education the school taxes collected, payments to be made monthly. Ga. Code Ann. 32-1106, as amended by Ga. Laws 1946, p. 206. The county board of education makes recommendations to the county fiscal authorities as to the amount of school tax to be levied. Ga. Constitution, Art. VIII. Sec. XII, Par. I (Ga. Code Ann. 2-7501); Ga. Code Ann. 32-1118, as amended by Ga. Laws 1946, p. 206. According to Smith v. Board of Education of Washington County, 153 Ga. 758 (II) (1922), the commissioners must levy the recommended tax, no discretion being vested in the board of commissioners. It is, therefore, apparent that there is no requirement that the board of education submit a budget to the commissioners.

UNOFFICIAL OPINION U71-86 (6/11/71)
Public officers and employees; dual employment: There is no general law which would prohibit a person from holding both the office of city building inspector and county voter registrar.

UNOFFICIAL OPINION U71-87 (6/17/71)
Probation; "First Offender Act": A person who has entered a plea of guilty of a felony and been placed upon probation under the "First Offender Act," Ga. Laws 1968, p. 324 (Ga. Code Ann. 27-2727), has not under the terms of said Act been "convicted of a felony," as such term is used in a Federal Government application. Note that Ga. Code Ann. 27-2727 provides that when a plea is entered thereunder, the court may refrain from entering judgment, and need never enter judgment if the terms of probation are met. Judgment will be entered, however, if probation is violated or if there is conviction of another crime. Ga. Code Ann. 27-2728 indicates that the statute is intended to preserve the civil rights of the accused. A plea of guilty under this statute does not fall under the rule that such a plea, when accepted and entered

U7l-88

318

up, IS tantamount to a conviction. for examples of that rule see Rowland v. State, 72 Ga. App. 793 (1.945); Cummings v. Perry, 194 Ga. 424 (1942); Jackson v. Lowry, 171 Ga. 349 (1930); Huffv. Anderson,
212 Ga. 32 (1955); 14 Am. Jur., Criminal Law, 272. It follows, rather, the rule that the word "conviction" does not always mean the same thing, but that its interpretation may depend upon other factors in the case. See Summerour v. Cartrett, 220 Ga. 31 (1964); Cantrel v. State, 141 Ga. 98, 104 (1913); Renfroe v. Colquitt, 74 Ga. 618 (2a) (1885); Roby v. Newton, 121 Ga. 679, 682 (1904). Croker v. Smith, 225 Ga. 529 (1969) discusses the meaning of "conviction" under the prior conviction statute, Ga. Code Ann. 27-2511, as amended by Ga. Laws 1953, Nov. Sess., p. 289.

UNOFFICIAL OPINION U71-88 (6/21/71)
Superior court clerks; filing fees: Ga. Code Ann. 24-2727, as amended through Ga. Laws 1971, p. 774, permits the clerk to charge a filing fee of $2 per page for each lien, mortgage and deed recorded. This fee is based upon original (typed) pages, and if the matter is printed so as to reduce the number of pages filed, the fee should still be based upon what space would have been occupied by the material if on original pages. For further legislative history of Code 24-2727, see Ops. Att'y Gen. U71-73, U71-75, supra; U7l-90, infra.

UNOFFICIAL OPINION U71-89 (6/22/71)
Prisons and prisoners; custody by Board of Corrections: The custody of prisoners by the Board of Corrections is governed generally by Ga. Laws 1956, p. 161; 1964, p. 489; 1968, p. 1399, and 1969, p. 602 (Ga. Code Ann. 77-309(c), (d)). Briefly, it may be stated that the board accepts custody when all motions and appeals after conviction have been exhausted. If an appeal is filed after custody is assumed, the board should notify the sheriff of the sentencing county to resume custody. There is an exception to this general rule made by Ga. Laws 1971, p. 341 (Ga. Code Ann. 77-338 et seq.), whereunder a prisoner, pending appeal, may be transferred to the board at his own request. For discussion of this Act see Op. Att'y Gen. 71-82, supra. This statute has been implemented by the board by rule (Rules and Regulations of the State of Georgia 125-1-2-.01) promulgated under the authority of Ga. Laws 1956, p. 161; 1969, p. 598 (Ga. Code Ann. 77-307).

319

U71-92

UNOFFICIAL OPINION U71-90 (6/24/71)
Superior court clerks; fees; advance costs in civil cases: Ga. Laws 1971, p. 214, amended Ga. Code 24-3406 by providing that the clerk need not file any civil case until the deposit required by Code 24-2727 has been paid (with proviso for pauper's affidavit). The same Act amended Code 24-2727 by striking a former provision for a $20 deposit in divorce cases, and substituting a requirement for $20 deposit in all civil cases. Acts 1971, p. 774, however, which was later in date than the Act on p. 214, struck and superseded Code 24-2727, as amended, in its entirety, and as the Code section was rewritten in this Act, the $20 deposit again referred only to divorce cases. The result of this was to repeal the requirement for deposit in all civil cases and to confine the requirement to divorce cases. In case of conflict between two Acts, the one later in date will prevail. J. Sutherland, Statutes and Statutory Construction, 276 (1943). For further legislative history of Ga. Code 24-2727, see Ops. Att'y Gen. U71-73, U71-75, supra.

U:"'iOFFICIAL OPI:\fiON U71-91 (6/30/71)
Municipal taxes; interest upon pa~t due: Where municipal taxes are due and unpaid, where the municipality does not impose penalties for failure to pay, and where execution has issued, the legal rate of interest is seven percent. Ga. Laws 1889, p. 31 (Ga. Code Ann. 92-7601). This is not to be confused with the higher rate for state and county taxes permitted by Ga. Code 92-5001, as amended by Ga. Laws 1970, p. 446. For discussion, see Ops. Att'y Gen. 70-99, U70-139.

UNOFFICIAL OPINION U71-92 (7 /2/71)
Sales and use taxes: The sales tax applies to the purchase of machinery in Georgia by an out-of-state purchaser if the title passes in Georgia, even if the property is immediately removed from the state. See Ga. Laws 1951, p. 360, as amended, Ga. Code Ann. Chapter 92-34A, particularly 92-3402a and 92-3403a(B). This is in accord with federal holdings. See Tax Commission of Utah v. Pacific Pipe Co., 372 U.S. 605 (1963).

U71-93

320

UNOFFICIAL OPINION U71-93 (7/2/71)

Superior court clerks; fees for recording papers filed in civil actions; status of interrogatories as records: Ga. Laws 1970, p. 497, as amended by Ga. Laws 1971, p. 774 (Ga. Code Ann. 24-2727), which provides the fees of clerks, does not prescribe a fee for the filing of interrogatories. No fee can be collected in the absence of clear statutory authority. Stamper v. State, 11 Ga. 643, 645 (1852); Walton County v. Dean, 23 Ga. App. 97, 99 (1918). It is true that Ga. Code 24-2715(1) requires that the clerk keep a permanent record of all proceedings in civil cases, so that there will be a precise history of a suit. State v. A /len, 117 Ohio St. 470, 159 N. E. 591 (1927), cited in De Kalb County v. Deason, 221 Ga. 237, 238 (1965). On the other hand, interrogatories are evidence, rather than part of the record, and while, under Ga. Laws 1966, p. 609 (Ga. Code Ann. 81A-131(b)), they must be filed with the clerk, there is no requirement that they be recorded. Dyal v. Dyal, 223 Ga. 592, 593 (1967); Adams v. Morgan, 114 Ga. App. 180, 181 (1966). As to what pleadings, orders, and process do need to be recorded, see White v. Newton Mfg. Co., 38 Ga. 587 (1869); Cloer v. Vulcan Electric Co., 113 Ga. App. 766 (1966); Op. Att'y Gen. U70-232. It is to be noted that the foregoing relates to a case insofar as the trial court record is concerned. It does not relate to the record on appeal or any matters subsequent to the lower court proceeding.
Where a case is settled or dismissed, a proper notation of the settlement or dismissal should be made on the record, and nothing else need be recorded. When a suit is dismissed or settled, no record should be made of any proceedings not already recorded at the time of dismissal. Atlanta Coach Co. v. Simmons, 184 Ga. 1 (1937), interpreting Ga. Code Ann. 24-2715(7).

UNOFFICIAL OPINION U71-94 (7/9/71)
Public officers and employees; compelling compliance with statutory duty: Question: What action may be taken where a county official refuses to comply with Section 4 of Ga. Laws 1971, p. 3425, which requires that he make available to the county commission on efficiency and economy in government all necessary and pertinent information on request? The statute in question does not include either sanction or enforcement procedure, and is, in this respect, quite similar to the Public Records Law, Ga. Laws 1959, p. 88 (Ga. Code Ann. 40-2701). It would appear that there being no other specific legal remedy, action for mandamus would lie. For procedure, see Ga. Code Chapter 64-l.

321

U71-97

UNOFFICIAL OPINION U71-95 (7/9/71)

Municipal elections; expenses of holding party primaries: Municipal elections are governed by Ga. Laws 1968, p. 885, officially codified as Ga. Code Title 34A. The expenses of a municipal primary held by a political party shall be borne by the political party holding the primary, except that the expenses of providing polling places on public premises and electors' lists shall be paid by the municipality. Ga. Code 34A909. This differs from a municipal nonpartisan primary, wherein the municipality calling the primary may (not shall) pay the expenses. Here, again, however, the expenses of providing polling places on public premises and electors' lists must be paid by the municipality. Ga. Code 34A-914.

UNOFFICIAL OPINION U71-96 (7/12/71)
Georgia Criminal Justice Act; compensation of attorneys for representing indigents on appeal: Ga. Laws 1968, p. 999 (Ga. Code Ann. Chapter 27-32), the Criminal Justice Act, authorizes compensation for representation of indigents in appellate proceedings. While this is not spelled out in the Act, it is apparent from the policy of the Act and from federal holdings. Thus, Ga. Code Ann. 27-3204 provides for additional compensation "for protracted representation" and 27-3208 provides for the substitution of attorneys when necessary "at any stage including appeal or other post-conviction proceedings." In interpreting any ambiguous statute, the general policy of the law must be taken into consideration. 50 Am. Jur., Statutes, 229. The federal courts hold that an indigent defendant is entitled to adequate representation at every critical stage of criminal proceedings, including appeal. Smart v. Balcom, 352 F.2d 502 (1965); Byrd v. Smiih, 407 F.2d 363 (1969).

UNOFFICIAL OPINION U71-97 (7/13/71)
Medicaid; legality of reduction in benefits: The State Department of Public Health is authorized to administer the Medicaid program for Georgia under Title XIX of the Social Security Act (Public Law 89-97, 42 U .S.C.A. 1396 et seq.) See Op. Att'y Gen. 67-273. Upon the submission of a state plan for medical assistance, Georgia is receiving Title XIX grants from the Federal Government, but the amount of state assistance to be furnished was left to Georgia. The state, therefore, may reduce the benefits paid by it by 10 percent if it so desires. The Supreme

U71-98

322

Court of the United States has upheld a similar reduction by a state in assistance to families with dependent children (Title IV, Social Security Act, 42 U.S.C. 601-609). King v. Smith, 392 U.S. 309 (1968). Nothing in the Appropriations Act of 1971, Ga. Laws 1971, p. 111, would appear to prohibit the reduction.

UNOFFICIAL OPINION C71-98 (7/16/71 J
Taxation; homestead exemptions for persons 65 years of age or older: Art. VII, Sec. I, Par. IV, Ga. Constitution (Ga. Code Ann. 2-5404) grants to persons over 65 years of age a $4,000 homestead exemption upon the residence owned and occupied by these persons if income limitations are met. The homestead exemption provided in this portion of the constitutional section relates only to real property and to state and county taxes. If a city wished to extend this or a similar exemption to municipal taxes, a constitutional amendment would be needed. Note, however, that the same section, as amended by proposal of Ga. Laws 1970, p. 990, ratified 1970 (see tabulation, Ga. Laws 1971, p. 4406), authorizes the legislature to exempt all personal clothing and effects, household furniture, furnishings, equipment, appliances and other personal property used within the home, if not held for sale, resale, or other commercial use from all ad valorem taxation. The same amendment authorized the exemption of implements of trade of manual laborers as well as domestic animals in an amount up to $300. This amendment was implemented by Ga. Laws 1971, p. 3 (Ga. Code Ann. 92-239). Since the phrase "all ad valorem taxes" is used in this amendment and in the enabling Act, this latter personal property exemption applies to municipal, as well as to state and county taxes.

UNOFFICIAL OPINION u71-99 (7 /19/71)
Employees Retirement System: death benefits: A state employee began work for the state on May 6, 1953. On June 22, 1953, he signed an election of nonmembership in the Retirement System, but on August 11, 1956, he joined the Retirement System and remained a member until his death on April 16, 1971. Under the law, Ga._Laws 1949, p. 138, as amended (Ga. Code Ann. Chapter 40-25), this employee could not, prior to March 12, 1971, do anything to obtain creditable service for any period prior to August 11, 1956, the date of his joining the system. However, Ga. Laws 1971; p. 93 (Ga. Code Ann. 40-2503(14)) was approved on March 12, 1971, and, under this law, he could have ob-

323

U71-101

tained coverage back to December 31, 1953 by paying in the contributions which he would have made had he been a member during that period. He did not do this. Question: Can his beneficiary obtain additional death benefits by making the contributions after the death of the employee? No. Death benefits become vested at the time of the death. Ga. Code Ann. 40-2505(3); 52 A.L.R. 2d 455. Nothing done by the beneficiary after this event could change the benefits. See Op. Att'y Gen. 67-201.

U;\;OFFICIAL OPI;\;ION t:71-100 (7I 19/71)
Taxation by county for fire protection: Under Ga. Constitution, Art. XI, Sec. L Par. I (Ga. Code Ann. 2-7801), a county has only such powers and limitations as may be prescribed by law. It can only exercise such powers of taxation as may be conferred on it by the Constitution or by the General Assembly as authorized by the Constitution. Commissioners of Chatham County v. Savannah Electric & Power Co., 215 Ga. 636,637 (1960). Ga. Constitution, Art. VII. Sec. IV. Par. I (Ga. Code Ann. 2-5701 ), authorizes counties to exercise taxing power as authorized by general law or "by this Constitution." Ga. Constitution, Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702), enumerates the purposes of county taxation. Only subsection (9) of this section refers to fire protection, and here it is confined to forest fire prevention. Art. VII, Sec. IV, Par. III (Ga. Code Ann. 2-5703) permits the establishment of districts for stipulated purposes within counties, including fire protection, but this can be done only by Act of the General Assembly. Therefore, as a general rule, and absent any appropriate legislation, a county cannot levy a tax for general fire protection. In the particular case of Douglas County, this can be done by virtue of a local amendment to Ga. Constitution, Art. VIL Sec. VII. Par. I (Ga. Code Ann. 26001), proposed by Ga. Laws 1968, p. 1791, ratified, November 5, 1968.

U;\;OFFICIAL OPI;\;ION U71-101 (7/30/71)
Assistant district attorneys; travel and subsistence expenses: Ga. Laws 1971, p. 305 (Ga. Code Ann. 24-2928.1) provides a travel and subsistence allowance from state funds, to be paid in lieu of funds from local authorities, for district attorneys required by official business to be absent from the counties of their residence. This Act was approved March 30, 1971, and being silent as to an effective date, became effective July 1, 1971. See Ga. Laws 1968, p. 1364 (Ga. Code Ann. 102-111). The

071-102

324

Act in question applies only to district attorneys, and makes no provision for assistant district attorneys. In interpreting statutes, the examiner must look diligently for the legislative intent. See Ga. Code Ann. 102-102(9). Where a statute is clear and unambiguous, it must be taken to mean what has been clearly expressed, and no occasion for construction exists. Forrester v. Continental Gin Co, 67 Ga. App. 119 (1942). Further, it should not be construed to mean other than what is declared. New Amsterdam Casualty Co. v. McFarley, 191 Ga. 334, 337 (1940). It follows that the law does not grant any expense allowance from state funds to assistant district attorneys.

UNOFFICIAL OPINION U71-102 (8/4/71)
Public officers and employees; age discrimination in hiring: Question as to whether either Ga. Laws 1971, p. 45 (Ga. Code Ann. 40-2201 et seq.) or Ga. Laws 1971, p. 384 (Ga. Code Ann. 54-1101, 54-9927) prohibits the State Department of Education from discriminating by age when hiring new employees. This discrimination is clearly prohibited by Ga. Laws 1971, pp. 45, 50, as implemented by State Personnel Board Rule 2.103 E. Age discrimination is permitted only in hiring certain types of personnel, such as state troopers, wherein the age bracket forms a factor of the qualifications.

U:";OFFICIAL OPI:";IOl\i l"71-103 (8/5/71)
Traffic violations; jurisdiction of recorders' courts: Courts of ordinary, police courts, and municipal judges have jurisdiction to try violations of the state traffic laws only in those counties having neither a city (now state) court nor county court. Ga. Constitution, Art. VI, Sec. VI, Par. II (Ga. Code Ann. 2-4102), implemented by Ga. Laws 1937-38, Extra. Sess., p. 558 (Ga. Code Ann. 92A-501 through 92A-504). See also Gibson v. Gober, 204 Ga. 714, 716 (1949). There is a city (now state) court in Columbus, created by Ga. Laws 1884-85, p. 455, having misdemeanor jurisdiction, and the jurisdiction of this court was not impaired by the 1970 Columbus Charter. Consequently, the recorder's court of Columbus has no jurisdiction of state traffic offenses, and the Department of Public Safety has no authority to suspend drivers' licenses pursuant to Ga. Laws 1964, p. 225 (Ga. Code Ann. 92A-608) based upon convictions in that court.

325

U71-l06

L~OFFICIAL OPI~IO~ L71-104 (8/ 11/71)

Superior court clerks' retirement; death benefits: The retirement benefits for superior court clerks are prescribed by Ga. Laws 1952, p. 238 (Ga. Code Ann. 24-2732 et seq.) A clerk may retire after 20 years service upon reaching age 55. Ga. Code Ann. 24-2740.3. Further, he may terminate his duties and still be eligible for retirement if he has fulfilled all of the requirements for retirement except arrival at age 55, but will not receive any benefits until he reaches that age. Ga. Code Ann. 24-2746. Ga. Code Ann. 24-2740.1 and 24-2740.4 prescribe death benefits for widows of clerks under certain conditions, but under these sections the clerk must have retired or be eligible to retire. The widow of a clerk who terminated his duties under 24-2746, but who had not reached age 55, would not be eligible for death benefits, since the clerk was not eligible for retirement.

L~OFFICIAL OPI~IO~ l'71-105 (8/12/71)
District attorneys, expenses: Ga. Laws 1969. p. 383, provides for the reimbursement of the district attorney of the Ocmulgee circuit for travel, meals, and lodging. to be paid by the counties of the circuit. Ga. Laws 1971, p. 305 (Ga. Code Ann. 24-2928.1) provides for the reimbursement of the expenses of district attorneys from state funds, but such reimbursement is to be in lieu of any other reimbursement. There is no language in the 1971 Act which repeals the 1969 Act by necessary implication; therefore, no such repeal will be construed to have occurred. See State Board of Education v. County Board of Education of Richmond County, 190 Ga. 588, 592 (1940). The ordinary signification is generally applied to all words. Ga. Code Ann. 102-102(1 ). "In lieu" means "instead of." Black's Law Dictionary. It follows that since a district attorney can receive funds under the 1971 Act only in lieu of other funds, and since the 1969 Act still requires payment from another source, the district attorney of the Ocmulgee circuit cannot receive funds under the Act of 1971.

u~OFFICIAL OPI~IO;\; l'71-106 (8/ 12/71)
Taxation; effect of easements and zoning controls upon valuation: Ga. Code Ann. 92-101. based upon Ga. Laws 1851-52, p. 288, provides for the taxation of all property "except as otherwise provided by law." There appears to be no provision for any exemption based upon ease-

U7l-107

326

ments or zoning controls. Ga. Laws 1968, p. 358 (Ga. Code Ann. 92-5702, 92-5703). requires that property be returned at its market value, and then assessed at 40 percent of the market value. Easements and zoning controls would, therefore, affect the ta.x assessment only insofar as they may affect market value.

uNOFFICIAL OPINION lJ71-107 (8/13/71)
Public officers and employees; dual employment; splitting of judicial circuits by legislature: A member of a city commission may not so serve and at the same time serve on a city planning and zoning board. See Ga. Laws 1889, p. 181 (Ga. Code Ann. 69-201 ). The city commission member is also prohibited from sitting on a draft board, since holders of any civil office are generally prohibited from holding any office of profit or trust under the Federal Government by Ga. Laws 1787, Cobb, 366. amended by Ga. Laws 1925. p. 77 (Ga. Code Ann. 89-101(4)). Membership on a draft board is an "office of trust," regardless of any financial consideration. See P. Mechem, Public Offices and Officers, 3, 4, 5, 16 (1890); 42 Am. Jur. Public Officers, 3-9, 12, 13, 31; 67 C.J.S. Officers, 2, 3. As to appointment of draft boards see 50 U .S.C.A. App. 460; In re Opinion of the Justices. 307 Mass. 613, 29 N. E.2d 738 (1940). On federal appointments of state officers, generally. see Op. Att'y Gen. 70-137.
The General Assembly may split judicial circuits by legislative Act. See Ga. Laws 1910, p. 63, as amended (Ga. Code Ann. 24-2501). See, further, Norris v. McDaniel, 207 Ga. 232, 60 S.E.2d 329 (1950).

lJNOFFICIAL OPINION ll71-108 (8/ 13/71)
County commissioners; reapportionment: The General Assembly has power to create county commissioners in such counties as require them. Ga. Constitution. Art. VI, Sec. XVII, Par. I (Ga. Code Ann. 2520 I); Ga. Constitution, Art. XL Sec. I. Par. VI (Ga. Code Ann. 27806). Reapportionment of commissioners can be accomplished by local Act, introduced and enacted according to Ga. Constitution, Art. IlL Sec. VII. Par. XV (Ga. Code Ann. 2-1915). There is no requirement for a referendum as to the reapportionment.

UNOFFICIAL OPINION ll71-109 (8/13/71) Municipal corporations; change from city manager to mayorial form

327

U71-112

of government: If the City of Eastman wishes to change the form of its government from that of city manager to that of elected mayor, this must be accomplished by a charter amendment enacted by the General
Assembly pursuant to Ga. Constitution, Art. IlL Sec. VII, Par. XV
(Ga. Code Ann. 2-1915). While under the Home Rule Act, Ga. Laws 1965, p. 298 (Ga. Code Ann. 69-1015 et seq.; note especially 6910 17), the municipal governing authority can amend the city charter in certain respects, 69-1018 excepts from this authority the power to change the form of government, which is reserved to the legislature. At one time the form of city government could be changed only upon referendum. See Ga. Laws 1925, p. 136 (Ga. Code Ann. former 69103). This law, however, was repealed by Ga. Laws 1958, p. 200. If a referendum is desired, a requirement therefor may be included in the proposed legislation, but there is no general law requiring such a referendum.

UNOFFICIAL OPINION U71-110 (8/19/71)
Peace officers Standards and Training Act; sheriffs and candidates for sheriff not affected. Sheriffs are considered as "peace officers" for certain purposes. Elder v. Camp, 193 Ga. 320, 322, 323 (1942). They are, however, specifically exempted from coverage by the Peace Officers Standards and Training Act, Ga. Laws 1970, p. 208 (Ga. Code Ann. 92A-2 102(d)). It follows that a candidate for sheriff is, likewise, not affected by the Act.

UNOFFICIAL OPINION tJ71-111 (8/20/71)
Public officers and employees; compensation of deputy superior court clerk: The compensation of the deputy clerk of the superior court of Randolph County has been fixed by Ga. Laws 1967, p. 2239, as amended by Ga. Laws 1969, p. 2276. Ga. Constitution, Art. XV. Sec. 11-A. Par. I (Ga. Code Ann. 2-8402(C)(7)) reserves to the General Assembly "action affecting any court or the personnel thereof." Further, a county can exercise only such powers as are conferred on it by law. Beasley v. De Kalb County, 210 Ga. 41, 43 (1953 ). The compensation of the deputy clerk, therefore, can only be changed by further legislation.

UNOFFICIAL OPINION U71-112 (8/25/71) Sales and use taxes; nonprofit corporations; Georgia Legal Services

U71-113

328

Inc. (GI LS ), a nonprofit corporation, has contracted with the Department of Family and Children Services to su_p_ply legal services to welfare
recipients, and the contract designates GILS as a "state institution" in accordance with Ga. Laws 1937, p. 355 (Ga. Code Ann. 99-122). Does this exempt GI LS from payment of sales and use taxes? No. The Sales and Use Tax Act, Ga. Laws 1951, p. 360 (Ga. Code Ann. 923403a(C) (2)(d)), exempts the state and bona fide departments thereof from payment of the tax when goods are paid for "by warrant on appropriated government funds." GI LS does not receive any appropriation, and, therefore, is not exempt. See Op. Att'y Gen. 66-32; Oxford v. Housing Authority of City of Barnsvil!e, 104 Ga. App. 797,798 (1961).

U~OFFICIAL OPI:'\10~ L71-113 (8/27 /71)
Prisons and prisoners; escape: A convicted adult prisoner who intentionally leaves a detention center without permission can be charged with escape under Ga. Laws 1968, pp. 1249, 1312, officially codified as Ga. Code 26-250 l. Attention is called to the fact that an administrative entry in the prisoner's record noting the escape does not have the effect of a conviction.

U:'\OFFICIAL OPI:'\10;\; L71-114 (8/27 /71)
Public officers and employees; effect of President's wage freeze on compensation: Under the interpretations of the President's Cost of Living Council, a state emloyee should not receive an automatic step increase in salary during the current wage freeze. It is true that salaries of employees of the Court of Appeals may be fixed by the judges of that court. Ga. Laws 1957, p. 205 (Ga. Code Ann. 24-3503). Ga. Constitution, Art. XII, Sec. I, Par. I (Ga. Code Ann. 2-8001), however, provides that, after the Constitution of the United States, the laws of the United States in pursuance thereof are the supreme law of the state. State laws, therefore, must yield to valid federal enactments. See Grayson-Robinson Stores v. Oneida, 209 Ga. 613 (1953). The Economic Stabilization Act of 1970, Pub. Law 91-379, authorizes the President, among other things, to stabilize prices, rents, wages, and salaries. His Executive Order 11615, made pursuant to that Act, stabilized wages and salaries at their highest level during the 30-day period ending August 14, 1971.

329

U71-118

UNOFFICIAL OPINION U71-115 (8/30/71)

Municipal corporations; deposit of funds in credit unions: Ga. Laws 1925, p. 165 (Ga. Code Ann. 25-108), prescribing what persons or entities may become members of credit unions, does not either specifically authorize or prohibit a city from becoming a member. The general powers of municipalities are quite broad. See Ga. Laws 1962. p. 140 (Ga. Code Ann. 69-309,69-310,69-314, 69-316). This Act of 1962 is also silent as to deposit of funds in credit unions. Under Ga. Laws 1965, p. 298 (Ga. Code Ann. 69-1017(a)), a municipality may regulate its property, affairs, and local government by reasonable ordinances as long as they do not conflict with the Constitution or the general law. It would appear, therefore, that a municipality may place funds in a credit union if it sees fit.

UNOFFICIAL OPINION U71-116 (9/2/71)
Drivers licenses; authority of county police officers: Ga. Laws 1937, p. 322 (Ga. Code Ann. Chapter 92A-4), requires drivers licenses, and 92A-432 of that Chapter gives concurrent jurisdiction to the U niform Division and to other police officers charged with enforcing criminal laws to enforce the Chapter. The only requirement peculiar to local officers is that they report prosecutions to the Department of Public Safety. County police, therefore, may set up road blocks for the purpose of checking licenses without the presence of a state officer.

UNOFFICIAL OPINION U71-ll7 (9/3/71)
District attorneys; expense allowance: Ga. Laws 1968, p. 992 (Ga. Code Ann. 24-2922 through 24-2930), as amended by Ga. Laws 1971, p. 305, provides travel expenses for district attorneys from state funds for service in counties in their circuit other than the county of residence. That statute does not provide state expense money for travel to the State Capital. Expenses for the latter type of travel should be paid from county funds under Ga. Code Ann. 24-2928.

UNOFFICIAL OPINION U71-ll8 (9/9/71)
Securities: An agreement to purchase specifically identified parcels of land which purchasers are to hold as tenants in common with the hope

U71-119

330

of increase in price is not per se a security, as regulated by Ga. Laws 1957, p. 134(Ga. Code Ann. Title 97). Note, however, that 97-102(i) defines securities among other things as "investment contracts." If the purchasers are passive in the operation, and depend primarily upon the efforts of promoters of the enterprise for their profits, the transaction may well constitute the sale of a "security." See Georgia Market Centers, Inc. v. Fortson, Commissioner, 225 Ga. 854, 857 (1969), quoting Securities and Exchange Com'n v. W.J. Howey Co., 328 U.S. 293 (1946).

UNOFFICIAL OPINION U71-119 (9/ 10/71)
Law libraries financed from costs; court of ordinary is not "state court": Ga. Laws 1971, pp. 180, 181 (Ga. Code Ann. 23-3101 et seq.) provides for county law libraries to be financed by a sum to be added to costs in all civil and criminal cases in superior and state courts. "State courts" are created by Ga. Laws 1970, p. 679 (Ga. Code Ann. Chapter 24-21 \ ). By 24-2101 a it is provided that the term "state court" shall apply to a category of courts which, generally stated, have jurisdiction concurrent with that of the superior court insofar as may be constitutionally allowed. The Ga. Constitution, Art. VI, Sec. VI, Par. I I (Ga. Code Ann. 2-4102), shows clearly that the court of ordinary does not have comparable powers to those of the superior court. The court of ordinary, therefore, is not governed by the above-cited library statute.

UNOFFICIAL OPINION U71-120 (9/ 14/71)
County boards of health; disposition of funds: County boards of health exist under the authority of the Georgia Health Code. Ga. Laws 1964, p. 499, officially codified as Ga. Code Title 88; see particularly Chapter 88-2. As to whether they are required to pay over money received for services performed by the board to the county commissioners or the county treasury, they are not. Code 88-204(e) authorizes the boards to receive and administer all grants, gifts, moneys. and donations. They are required to keep records and make financial reports by 88-207 (b), and to make a budget indicating anticipated income and expenditures by 88-214. All of these sections indicate that the board shall maintain its funds separate from those of the county, rather than that its funds should be paid into general county funds. Code 88204(d) gives the board rule-making power. and this might be used to direct the handling of funds. (This Opinion applied specifically to Laurens County.)

331

U7l-l23

UNOFFICIAL OPINION U71-121 (9/27/71)
Sales and use taxes; inclusion of federal excise tax on tires in base price: Section 4071 of the Internal Revenue Code imposes an excise tax upon the manufacturer, producer or importer of tires. If a tax is imposed on an event prior to a retail sale, that tax must be included in the base on which the sales tax is computed. See Ga. Laws 1951, p. 360 (Ga. Code Ann. Chapter 92-34A); Undercojler v. Capital Automobile Co., Ill Ga. App. 709 (1965 ).

UNOFFICIAL OPINION ll71-122 (9/29/71)
Superior court clerks retirement; interpretation of statutes: Retirement of superior court clerks is governed by Ga. Laws 1952, p. 238, as amended (Ga. Code Ann. 24-2732 et seq.). Question is whether one who has served eight years as deputy clerk and eight years as clerk is eligible for disability retirement. He is not. Under 24-2740, in order for retirement there must be: (I) at least 20 years as clerk or deputy clerk; (2) at least 12 years as clerk; (3) the last four years to be spent as clerk. It is true that Ga. Code Ann. 24-2740.2, based upon Ga. Laws 1964, p. 202, has reduced the grand total of required service from 20 to 16 years, but that section does not change the other two factors, which remain as requirements. Note that under (2) above, there must be 12 years service as clerk. Where a general term in a statute is inconsistent with a more specific provision in another part, the specific portion will govern. Undercojler v. Capital Automobile Co., Ill Ga. App. 709, 716 (1965).

U~OFFICIAL OPINION U71-123 (10/6/71)
Probation: When a county probation system ceases its operations the State Board of Probation is authorized to take custody of probationers and employ such former county probation officers as are qualified to serve as circuit probation officers. County probation officers were employed under the provisions of the former law, Ga. Laws 1913, p. 112, and under that statute, the terms of county probation officers should bt terminated by order of the superior court. Probation within that county can then be administered by the State Board under the Statewide Proba tion Act, Ga. Laws 1956, p. 27 (Ga. Code Ann. 27-2702 et seq.). Circuit probation officers were already in a liaison position between county officers and the State Board under Ga. Code Ann. 27-2716. If former county officers are to be appointed by the State Board, the

071-124

332

terms of employment must be according to Ga. Code Ann. 27-2707, as amended by Ga. Laws 1958, p. 15; 1960, p. 1092; 1965, p. 413; and 1967, p. 86.

UNOFFICIAL OPINION U71-124 (10/ 15/71)
State Board of Education; qualification of members: Receipt by an attorney at law under a legal partnership agreement of a prorated share of a fee for legal services furnished by his partner to a local board of education does not disqualify him from appointment to the State Board of Education under Ga. Constitution, Art. VIII, Sec. II. Par. I (Ga. Code Ann. 2-6501) or under Ga. Laws 1937, p. 864 (Ga. Code Ann. 32-404 ). The cited constitutional and statutory provisions prohibit the appointment to the State Board of persons "employed in a professional capacity by a private or public educational institution," but the word "professional" within the context of these sections refers to educational, rather than to legal capacity. Further, a local board is not an "educational institution." Georgia courts are reluctant to impose disqualifications upon officers not specifically declared in the Constitution or laws. McLendon v. Everett. 205 Ga. 713 (1949). There appears to be no conflict of interest which would disqualify the attorney. For a discussion of conflicts of interest see Ops. Att'y Gen. 68-58, 68-493, 68499, 69-475, 69-476.

tJNOFFICIAL OPINION U71-125 I 10/21/71)
County law libraries: These libraries are funded from additional fees and costs imposed in court proceedings, and the authorizing statute, Ga. Laws 1971, p. 180 (Ga. Code Ann. 23-3101 et seq.) is effective within a county only when implemented by an order of the senior superior court judge of the circuit, finding that a need for the library exists. These additional fees should not be assessed in cases pending at the time of implementation, but only in those filed after implementation. In the absence of imperative. contrary language, a statute is construed to operate prospectively and not retrospectively. See Ga. Code Ann. 102104; Rhyne v. ?rice, 82 Ga. App. 691,695 (1950).
UNOFFICIAL OPINION U71-126 (11/4/71)
Criminal law; age at which person held responsible for crime: No person can be found guilty of a crime unless he shall have attained the

333

U71-129

age of 13 years at the date of the act committed. Ga. Laws 1968, pp. 1249, 1270, officially codified as Ga. Code 26-701. This provision eliminates the presumption under the former law of incapacity to commit crime between the ages of 10 and 14. See Committee Notes to Ga. Code Ann. Ch. 26-7. As to jurisdictional effect of non-age of the accused, see Armstrong v. State, 90 Ga. App. 173 (1954); Jackson v. Balkcom, 210 Ga. 412 (1954).

UNOFFICIAL OPINION U71-l27 (11/5/71)
Elections; list of voters who voted absentee ballots: Under the Election Code, Ga. Laws 1964, Extra. Sess., p. 26, officially codified as Ga. Code Title 34, a "numbered list of voters" is defined by Ga. Code 34103(n). Persons who vote by absentee ballot must be included on the list. Ga. Code 34-1407(b). One copy of the list of absentee electors must be forwarded to the Secretary of State. Ga. Code 34-1507.

UNOFFICIAL OPINION U71-128 (11/12/71)
Peace Officer Standards and Training Act; application to deputy sheriffs acting as jailers: Question is as to whether a deputy sheriff who has responsibility for the county jail is subject to Ga. Laws 1970, p. 208 (Ga. Code Ann. Ch. 92A-21) and whether a person can be so employed without the certificate required by Ga. Code Ann. 92A-2ll3. It appears that the sheriffs department in question is a law enforcement unit, and that deputies have power of arrest. This brings the deputy within the definition of "peace officer" in Ga. Code Ann. 92A-2l 02(d); he is covered and must comply with the law. This would not necessarily apply to a guard at a county public works camp, since such a guard would probably not be employed by a "law enforcement unit." The Peace Officer Standards and Training Act does not apply to special deputies, bank guards, special police or civil defense auxiliary police. See Ops. Att'y Gen. 70-179,70-181, U7l-59.

UNOFFICIAL OPINION U71-129 (11/15/71)
Dead bodies; paupers buried at county expense: A county has fulfilled its responsibility under Ga. Code Ann. 23-2304, as amended by Ga. Laws 1967, p. 616, when it makes available from county funds at least $75, but not more than $125 to provide a decent interment for a deceased

U71-l30

334

pauper. Whether these funds are used to provide a lined pine coffin, plus normal burial expenses, or any other means of decent interment, would seem to be at the option of the county. On construction of statutes, see Ga. Code Ann. 102-102.

U~OFFICIAL OPINIO~ t:71-l30 (11/16/71)
Court reporters; compensation: Ga. Code Ann. 24-3104, as amended by Ga. Laws 1968, p. 1230, provides a per diem of $30 for reporters taking testimony in certain criminal cases as required by statute. See Ga. Code Ann. 24-3101,24-3102,27-2401. See also Walden v. Nichols, 201 Ga. 568, 571-3 (1946). Section 24-3104 also provides a $30 per diem for attendance upon court when ordered by the judge in other cases. The reporter is entitled to only one per diem of $30; he cannot charge two fees for the same day, regardless of whether he was required to attend court by statute, by the court, or both. This fee is for a day of eight hours, and the reporter is entitled to an additional $30 for any time, however short, in excess of eight hours actually spent in attendance on court. This does not apply to time spent in transcribing proceedings, however. For this, he is entitled to be paid at the rate of $30 per eight-hour day, but where Jess than eight hours is spent the compensation should be prorated. See Op. Att'y Gen. 68-448.

UNOFFICIAL OPINION L71-l31 (11/ 16/71)
University System of Georgia; compliance by Regents with Uniform Relocation Assistance and Real Properties Acquisition Act of 1970: The Regents of the University System may, at their discretion, and in order to secure federal funds, comply with the subject Act of Congress (P.L. 91-646, 84 Stat. 1894). The Regents constitute a distinct corporate entity with broad constitutional and statutory powers. Ga. Constitution, Art. VIII, Sec. IV, Par. I (Ga. Code Ann. 2-6701); Ga. Laws 1931, pp. 7, 24 (Ga. Code Ann. 32-121). It has been held that in determining the powers of the Regents, it is "necessary to look for limitation, rather than authority to do specific acts." State of Georgia v. Regents of the University System of Georgia, 179 Ga. 210, 227 (1934). It appears, therefore, that there is no legal reason to prevent their compliance with the federal statute in question.

335

U7l-l35

UNOFFICIAL OPINION U71-132 (11/19/71)

City of Griffin; commissioners: New commissioners of the City of Griffin properly took office at the first regular meeting in December l97l. Ga. Laws 1970, p. 2651. Ga. Laws 1961, p. 2299, was repealed by implication insofar as it conflicts with the 1970 Act.

UNOFFICIAL OPINION U71-I33 (11/22/71)
Municipal elections: Under Ga. Code Ann. 34A-50l, based upon Ga. Laws 1968, pp. 885, 897, a city may elect either to maintain its own registration list or use that of the county. Despite certain apparently ambiguous language in Ga. Code Ann. 34A-502 (based upon the same statute), the city cannot both maintain its own list and also require voters to register with the county. It must adopt one procedure or the other under the principle of expressio unius est exc/usio alterius. For discussion of this principle see City of Macon v. Walker, 204 Ga. 810(a) (1949).

UNOFFICIAL OPINION U71-I34 (11/29/71)
Uniform Relocation Assistance and Real Properties Acquisition Policies Act of 1970; application to urban renewal projects: The provisions of the subject federal Act (P.L. 91-646) are now, and have been since January 2, 1971, fully applicable to urban renewal projects in Georgia, and persons displaced on and after January 2, 1971 by federally assisted urban renewal undertakings are, and have been since that date, entitled to the full benefits of P. L. 91-646. Comparison and distinctions as to compensation requirements of federal Act and of Bowers v. Fulton County, 221 Ga. 731 (1966). The following Georgia constitutional provisions are construed with reference to the federal Act: Art. I, Sec. I I I, Par. I (Ga. Code Ann. 2-301); Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402); Art. VII, Sec. II, Par. I (Ga. Code Ann. 2-550 I); Art. XVI (Ga. Code Ann. 2-850 I).

UNOFFICIAL OPINION U71-I35 (12/2/71)
Ordinaries' fees: Ga. Laws 1937-38, Extra. Sess., p. 558 (Ga. Code Ann. 92A-502) gives to certain ordinaries jurisdiction to try traffic violations, and the same statute prescribes certain costs in such cases.

U71-136

336

The general law, however, provides the amount of fee the ordinary shall receive for filing and docketing cases. See Op. Att'y Gen. 67-5. Under Ga. Code Ann. 24-1716, as amended by Ga. Laws 1971, p. 591, the ordinary is entitled to a fee of $4 for receiving a case where no other fee
is prescribed and an additional $4 for docketing a case where no other fee is prescribed. These two procedures are separate acts on his part. See Sikes eta/. v. Charlton County eta/., 103 Ga. App. 251 (1961). Attention is also called to provisions for payment into the Ordinaries Retirement Fund. See Ga. Laws 1959, p. 354 (Ga. Code Ann. 24-1716a).

UNOFFICIAL OPINION U71-136 (12/8/71)
Municipal Home Rule Act; application to city-county of Columbus: The city-county of Columbus is chartered by virtue of Ga. Laws 1968, p. 1508, amending the Ga. Constitution (Ed. Note, Ga. Code Ann. 27807) and by the enabling Act, Ga. Laws 1969, p. 3571. The charter provides for its amendment by: (1) Act of the legislature; (2) ordinance of counsel subject to referendum; (3) inauguration by petition of 10 percent of electors. If the Resolution creating the charter provided that these methods were the exclusive means of amendment, earlier statutes would apparently be repealed by necessary implication insofar as they set up different methods of amendment. See Leonard v. State of Georgia ex ref. Lanier, 204 Ga. 465 (1948). This is not the case, however, since Section 12 of Ga. Laws 1968, p. 1508, contemplates continued amendment of the charter by existing law. The charter, therefore, is also amendable under the Municipal Home Rule Act of 1965, Ga. Laws 1965, p. 298 (Ga. Code Ann. 69-1015 to 69-1020). See especially 69-1017 (b)(l), 69-1018.

UNOFFICIAL OPINION U71-137 (12/8/71)
Workmen's compensation; not applicable to volunteer firemen: Ga. Code Ann. 114-101 states that the Workmen's Compensation Law covers: "All firemen and policemen whose compensation is paid by the State or any county or municipality . . ." and further " . . . all fulltime county employees . . .". Since a volunteer fireman is neither fulltime nor compensated, he is not covered. See Ga. Ry. & Power Co. v. Middlebrooks, 34 Ga. App. 156 (1925); Jones v. Lumberman's Mut. Cas. Co. 58 Ga. App. 713 (1938). This is in accord with Opinions holding that volunteer forest fire fighters and volunteer civil defense workers are not covered by workmen's compensation. See Ops. Att'y Gen. 1955, p. 351; 1962, p. 611.

337

U71-140

U~OFFICIAL OPI~IO~ l"71-138 (12/8/71)

Homestead exemption: Question as to number of homestead exemptions which may be claimed when two separate families jointly own and occupy a single building as their home (ref. Ga. Constitution, Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404); Ga. Laws 1946, p. 12 (Ga. Code Ann. 92-219 et seq.)). Not more than one homestead exemption may be claimed in connection with the occupancy of one building except in the case of duplex or double occupancy dwellings when the line of division follows a natural and bona fide plan as to both land and buildings and the two units thus formed are separately owned and occupied. See Ops. Att'y Gen. 1954-56, p. 723; 1954-56, p. 735.

UNOFFICIAL OPINION U71-139 (12/9/71)
Riparian rights; ownership of Chattahoochee River bed: A grant out of the State of Georgia prior to the adoption of the first Code of Georgia in 1863 to land adjacent to the Chattahoochee River in the reach that forms the boundary between Georgia and Alabama carried title to the entire bed, i.e., to the boundary of Georgia on the western bank. Jones v. The Water Lot Co. of Columbus, 18 Ga. 539 (1855). As to boundary between Georgia and Alabama, see Clayton's Compilation of Georgia Laws, 1801-1810, p. 48 (1812). Under the Code, the titles of owners of land adjacent to streams not navigable extend to the thread of the stream. Ga. Code Ann. 85-1302. Under state grants made since the adoption of the Code, the title of owners of land adjacent to navigable (but not tidal) streams extends to the low water mark. Ga. Code Ann. 85-1304. For definition of navigable stream, see 85-1303. As to tidal streams, titles of landowners extend only to high water mark. See Position Paper, Op. Att'y Gen. 1970, p. 279. History of Georgia-Florida boundary, see 8 Stat. 82; ld. 140. Georgia-South Carolina boundary, Digest of Laws of the State of Georgia, 1755-1800, p. 662.

U~OFFICIAL OPI~IO~ C7l-l40 (12/9/71)
Elections; voters lists: It would be illegal to remove voter registration cards from the office of the board of registrars to the office of a private firm for the purpose of setting up a list on computers. See Op. Att'y Gen. 67-118. There seems to be no legal reason preventing a board of registrars from selling surplus voters lists. They are open to inspection

U71-141

338

by the public. Ga. Laws 1964, Extra. Sess., pp. 26, 73 (Ga. Code Ann. 34-633 ). The law authorizes the custodian of public records to make a charge against anyone desiring a copy. Ga. Laws 1959, p. 88 (Ga. Code Ann. 40-2702).

UNOFFICIAL OPINION U71-141 (12/10/71)
Social security; state-paid assistant district attorneys: The only state employees covered by social security are those designated by Ga. Code Ann. 99-2110 to 99-2115, based in material part on Ga. Laws 1956, p. 75; 1958, p. 172. Assistant district attorneys for certain circuits, authorized by Ga. Laws 1970, p. 716, although paid by the state, do not fall within the designated category, and deductions should not be made from their salaries.

UNOFFICIAL OPINION U71-142 (12/14/71)
Teachers Retirement System; interest upon purchase of out-of-state service credit: According to Ga. Code Ann. 32-2904 (5-A), a teacher with out-of-state service may, under certain conditions, acquire credit under the Teachers Retirement System by making the employer and employee contributions to the system with interest. Under the section as amended by Ga. Laws 1968, p. 543, the amount of interest was three percent compounded annually. Under the amendment of Ga. Laws 1969, p. 582, the amount of interest was made eight percent simple interest; then by Ga. Laws 1971, p. 627, it was made 3 1/2 percent compound interest. This last figure is what must be paid by a teacher with out-ofstate service wishing to obtain credit within the system now. This is true notwithstanding the fact that the teacher could have purchased credit in the system at eight percent simple interest prior to 1971. He has no vested right to an earlier interest rate unless it was exercised.

UNOFFICIAL OPINION U71-143 (12/16/71)
Sales and use taxes; nonprofit organizations: Nonprofit organizations are not, because of their status as such, exempt from sales and use taxes. See Op. Att'y Gen. 66-32. When the organization is not registered with the Revenue Commissioner as a dealer, one who sells to it must collect the tax. Ga. Laws 1951, p. 360, as amended. See especially Ga. Code Ann. 92-3403a (C) (d.1 ), 92-3407a.

339

U7l-l46

UNOFFICIAL OPINION U71-144 (12/22/71 l

Constables; interference with duties by judge of state court: Constables are required to execute and return all warrants, summonses, executions and other processes to them directed by Iawful authority. Ga. Code Ann. 24-817(5). As to jurisdiction of justices of the peace to issue such processes and to require constables to execute them, see Ga. Constitution, Art. VI, Sec. VII (Ga. Code Ann. Ch. 2-42); Ga. Code Ann. 24-601, 24-1102, 24-1501; Fitzgerald v. Adams eta/., 9 Ga. 471 (1851 ). The jurisdiction of a state court judge is prescribed by Ga. Laws 1970, p. 679 (Ga. Code Ann. Ch. 24-21A). Such a judge cannot suspend the operation of statutory law by court rule unless the statute so provides. Boston Insurance Co. v. Harmon eta/., 66 Ga. App. 383, 390 ( 1941 ). There is no provision in the law relating to constables which would authorize such a suspension, and the state court judge cannot legally interfere with the performance of duty by a constable.

UNOFFICIAL OPINION U71-145 (12/27/71)
Liquor referendum; conduct of election: Ga. Laws 1937-38, Extra. Sess., p. 103 (Ga. Code Ann. 58-1003) provides that petitions for liquor referendums shall be filed with the ordinary of the county. Ga. Laws 1967, p. 3280, however, provides that in all counties within the 250,000 to 500,000 population bracket, according to the census of 1960 or any future census, all duties respecting elections shall be carried out by a county board of elections in lieu of the ordinary. This population bracket includes DeKalb, the county in question. The 1967 Act has specific reference to the Georgia Election Code, Ga. Laws 1964, Extra. Sess., p. 26, officially codified as Ga. Code Title 34, and particularly to the definition section, 34-103. Where two Acts are in irreconciliable conflict, the latter will prevail. Atlanta Finance Company v. Brown, 187 Ga. 729, 731 (1939). The population Act of 1967, therefore, being later in date, and assuming it is constitutional, will prevail over the Act of the 1937-38 Session, and the petition should apparently be filed with the board of elections, rather than the ordinary. Counsel for petitioners, however, are cautioned to collaborate with the county attorney before filing so that questions of validity may be worked out in advance.

UNOFFICIAL OPINION U71-146 (12/30/71) Drunken driving; penalties for repeated offenses: Ga. Laws 1968, p.

U71-147

340

448 (Ga. Code Ann. 68-9927 (3)) provides special penalties for persons convicted of drunken driving for the third or more times during a three-year period. Since the section refers specifically to persons "convicted ... within a period of three years," the period should be computed from the date of the first conviction~not from the date of the first violation.

UNOFFICIAL OPINION L71-147 (12/31/71)
Habeas corpus; appointment of counsel: There is no requirement of law that counsel be appointed for an indigent habeas corpus petitioner. Op. Att'y Gen. 1954-56, p. 133; Croker v. Smith, 225 Ga. 529 (1969); Cash v. Smith, 226 Ga. 318 (1970). A judge might, as a matter of discretion, appoint counsel in such a case, but if this were done, counsel could not be compensated from public funds. Ga. Laws 1953, Nov. Sess., p. 478 (Ga. Code Ann. 27-3001 to 27-3003) and Ga. Laws 1968, p. 999 (Ga. Code Ann. 27-3201 to 27-3215) authorize compensation of counsel from public funds, but only in criminal prosecutions, which habeas corpus is not.

TABLES OF CONSTITUTIONAL PROVISIONS,
GEORGIA LAWS AND CODE SECTIONS
Table 1 United States Constitutional Provisions Cited Table 2 Georgia Constitutional Provisions Cited Table 3 Georgia Laws Cited Table 4 Georgia Code Annotated Sections Cited

343
TABLE 1 UNITED STATES CONSTITUTIONAL PROVISIONS CITED
OP. No. Art. V ............................................. 071-38 Amend. 14 .................................. 71-93, 071-14.1 Amend. 26 .......................................... 71-151
TABLE2 GEORGIA CONSTITUTIONAL PROVISIONS CITED
OP. No. Art. I, Sec. I, Par. II ................,................... 71-93 Art. I, Sec. I, Par. XXIII .............................. 71-100 Art. I, Sec. III, Par. I ................... 71-88,71-164,071-134 Art. I, Sec. IV, Par. I ..................... 71-32,71-149,071-8 Art. II, Sec. II, Par. I ................................ 071-10 Art. III, Sec. IV, Par. VI ............................... 71-18 Art. III, Sec. VII, Par. XI ....................... 71-126,71-128 Art. Ill, Sec. VII, Par. XV ................... 071-108,071-109 Art. Ill, Sec. VII, Par. XVI ............................. 71-16 Art. Ill, Sec. XI, Par. I .............................. 71-173.1 Art. V, Sec. I, Par. XI .................................. 71-97 Art. V. Sec. I, Par. XVI ................................ 71-39 Art. V, Sec. V, Par. I ................................. 71-159 Art. VI, Sec. III, Par. I .............................. 71-173.1 Art. VI, Sec. VI, Par. II ..................... 071-103,071-119 Art. VI, Sec. VII .................................... 071-144 Art. VI, Sec. VII. Par. I ................................ 71-80 Art. VI, Sec. XII, Par. I ............................. 71-173.1 Art. VI, Sec. XVII, Par. I ............................ 071-108 Art. VII, Sec. I, Par. II ........ 71-13,71-42,71-68,71-73,71-126,
71-128, 71-129, 71-147, 71-183, 71-190,071-17, 071-45, 071-134

344
GEORGIA CONSTITUTIONAL PROVISIONS-Continued OP. No.
Art. VII, Sec. I, Par. III . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-51 Art. VII, Sec. I, Par. IV ......... U71-6, U71-19, U71-22, U71-51,
U71-53, U71-98, U71-138 Art. VII, Sec. II, Par. I ..................... 71-10,71-12,71-35,
71-42,71-125, 71-128, U71-134 Art. VII, Sec. II, Par. III .................. 71-42,71-126,71-128 Art. VII, Sec. III, Par. I ............................... 71-103 Art. VII, Sec. III, Par. IV ............................. 71-181 Art. VII, Sec. IV, Par. I ................ 71-35, U71-54, U71-100 Art. VII, Sec. IV, Par. II ................. 71-12,71-35, U71-100 Art. VII, Sec. IV, Par. III ............................ U71-100 Art. VII, Sec. VI, Par. I ............................... 71-195 Art. VII, Sec. VII, Par. I ..................... U71-44, U71-100 Art. VII, Sec. VII, Par. II ............................. U71-54 Art. VII, Sec. VII, Par. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-46 Art. VII. Sec. IX, Par. IV ....................... 71-125,71-126 Art. VIII, Sec. II, Par. I ............................. U71-124 Art. VIII, Sec. IV, Par. I ............................ U71-131 Art. VIII. Sec. V, Par. II ............................ U71-14.1 Art. VIII, Sec. IX, Par. II ............................... 71-9 Art. VII I, Sec. XII, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-85 Art. VIII, Sec. XIII, Par. I ............................ 71-147 Art. XI ............................................. 71-201 Art. XI, Sec. I, Par. I ............................... U71-100 Art. XI, Sec. I, Par. VI .............................. U71-108 Art. XI, Sec. I, Par. VII ......... 71-169, U71-27, U71-35, U71-62 Art.XII,Sec.I,Par.I ............................... U71-114 Art. XII, Sec. I, Par. III ................................ 71-32 Art. XII, Sec. I, Par. IV ............................... 71-185 Art. XIII, Sec. I, Par. I ............................... U71-35 Art. XV, Sec. II-A, Par. I ............................ U71-111 Art. XVI .......................................... U71-134

345

TABLE3

AcT PAGE

GEORGIA LAWS CITED

OP. No.

16 . . . . .

0



0

0

Ga. Laws 1819
Ga. La~s i847 U71-78

281 . . . . . . . . . . .

0



288.........

Ga. Laws.J85J.52. .. .. U71-78

......G a. L a0 ~~-iss3-s4........ U71-106

281 ...









0



Ga. Laws i86o . U71-78

31 ..... 0



195 ................

1868 Ga. Laws

........... 71-20

Ga.



L a0 w. ~is72































.

71-32

456 ... . . . . . . . . . . . . Ga. Laws is74 U71-62

91009. . . . . . . . . . . . . . .

.









...... 0Ga. La..:, i87(; ........











U71-25

126 ............ .

. ... U71-25

129 :::: .......... . .....

. . . . . . . . . . .

. ......... 71-56

. . . . .

Ga. Laws 1878:79 71-57

91

Ga. Laws iss4~ss 0





0



0



U71-28

455 ............... Ga.0L. ~~s iss7 ......... U71-103

53 ......... .

.ISSS~s9 114



















. . . ...... Ga. Laws

. ..... U71-75

0



71-142

106



0 0

31 ...........

Ga.La..:~i889.

0

.. .. U71-75

118016, .1.0.7.... .. ... .... .......... ...... . . . ...................U71-9116
Ga. Laws is97 U71-107

.. 70 ................ 0 G~ L~~~. i9o4

.......... 71-97

72



0



. ........... 71-100

346

AcT PAGE 24 .............. .

GEORGIA LAWS- Contm. ued Ga.Lawsl906

OP. No.

Ga. 0 Laws .i9o7 .. 71-100

La~~ 908; [~~;~; s~;;. .. 72



0





0



1115 . . . . . . . . . . . . Ga:

j

71- 144

G~.i~~~i9o9 .... 71-97

. . . . . . . . . 123













0



G~.i~~~i9io ....... 71-133

63 ..



0



101 . . . . .





0



... Ga.

L. a.~s

i9jj



U71-107

i9i6 112

. . .

. .

......... .. .0
.

. . . . . . .

. . . . . . . . . Ga. Laws

. ................ 71-133 U71-123

82326 . . . . . . ........ .





0



. . . . . .

. ............. 71-156

Ga. Laws t.9t.9 71-41

215026 ............... .

0 0 ............. 71-97

387 ........ .
.........

. ............ 71-85

.....
0 Ga. i~~~i9io

.......... 71-97

167 . 139

Ga. L~~;i9ii

71-136

i9i4 ........ 166' 171 .. .. .. .. .... . ...... .

. . Ga.

L. ~~.s..

.

.

..

.

.

. . ...











.

U71-68 U71-60

119975 . . . ...... ............

...

. ............ 71-188

77 . . . . . . . . .

Ga. Laws i9i5 71-188

~265 ~~ ~~ 136

. . . . . . . . . . . ........ .

: : : : : : : : : : : : : : : . . . . ............ . .:. : : : : : : : : : : : :

110097

4958........... . . . . ....... . . . .

. .... U71-11l

1217, 1i,jQ,"124 .... ........ ::::::: .... U71-39

226,233.

i9i7 1 . ....... Ga. Laws.

. . . U71-78 U71-26

300 ................................. .. .. . . . . . . ... . U71-21

Ga. Laws t93i 71-125

722, 124 ....... . ........ .

270

0



. ..... U71-131

. . . . . . . . . . . . ...... 71-24

.....

. . . . . . . . . . . . . 71-80







0



347

ACT PAGE

GEORGIA LAWS-Continued

OP. No.

Ga. Laws 1931, Extra. Sess.

24,26 .............................................. U71-16

24, 57 .............................................. 71-184

Ga. Laws 1933

78 ................................................. 71-112

102 ................................................ U71-12

115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-4' 71-13 3' 71- 199

353 ................................................ U71-78

Ga. Laws 1935

11 ................................................. 71-119

73 ................................................. U71-26

85 .................................................. 71-42

135 ................................................. 71-38

Ga.Lawsl937

230 ................................................. 71-28

264 .................................... 71-62,71-155, U71-2

322 ......................................... 71-38, U71-116

355 .................................. 71-44, 71-147, U71-112

377 ................................................ 71-106

473 ................................................ U71-68

503 ................................................ 71-181

593 ................................................. 71-74

608 ................................................ 71-105

806 ................................................ 71-112

864 ....................................... U71-24, U71-124

901 ................................................. 71-20

Ga. Laws 1937-38, Extra. Sess.

77 ................................................. 71-184

77,98 .............................................. U71-58

103 ................................. U71-8, U71-31, U71-145

156 ................................................ U71-79

200 ................................................. 71-97

322 ................................................. 71-20

558 ...................................... U71-l03, U71-135

Ga. Laws 1939

106 ................................................. 71-97

135 ................................................ 71-106

Ga. Laws 1941

273 ................................................. 71-97

380 ................................................ U71-12

510 ................................................ U71-47

348

GEORGIA LAWS-Continued

ACT PAGE

OP. No.

Ga.Lawsl943

43 .................................................. 71-97

180 .................................... 71-62, 71-155, U71-2

185 ........................................... 71-97' 71-196

185, 195 ............................................ U71-10

370 ................................................. 71-42

468 ................................................. U71-9

539 ................................................ U71-25

636,638 ............................................ U71-24

640 ................................................ 71-189

640, 657 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1-1

Ga. Laws 1945

196 ........................................... 71-44,71-147

251 ................................................ U71-35

362 ................................................. 71-77

1110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71- 169

Ga.Lawsl946

12 ................................. U71-46, U71-51, U71-138

67, 68 ............................................... 71-15

206 ................................................ U71-85

Ga.Lawsl947

1461 ................................................. 71-9

Ga.Lawsl949

70 ................................................. 71-148

138 ..................... 71-5, 71-6, 71-21, 71-26,71-36, U71-99

403 ................................................ U71-78

780 ................................................. 71-40

1009, 1020 ........................................... 71-20

1168 ............................................... U71-25

Ga.Lawsl950

50 ................................................. 71-155

62 ................................................. 71-125

107 .......................................... 71-16, U71-75

152 ................................................ 71-195

179 ................................................ 71-109

181 ................................................ 71-114

224 ................................................. 71-76

311 ................................................ 71-144

352 ................................................. 71-97

414 ................................................ U7l-40

349

GEORGIA LAWS-Continued

AcT PAGE

OP. No.

Ga.Laws1951

224 ......................................... 71-121, U71-59

360 ..................... 71-72,71-139,71-145,71-178, U71-67,

U71-92, U71-112, 071-121, U71-143

565 ................................................. !J71-9

668 ................................................. 71-21

788 ................................................. U71-2

828 .......................................... 71-149,71-201

2790 ............................................... 71-169

Ga.Laws1952

213 ................................................ U71-71

238 ...................................... U71-104, U71-122

290 .................................................. U71-9

Ga. Laws 1953, Jan.-Feb. Sess.

108 ................................................. 71-20

202 ................................................ U71-45

207 ................................................ U71-20

210 ................................................ U71-56

421 ................................................. 71-85

602 ................................................ U71-56

2718 ......................................... 71-149,71-201

Ga. Laws 1953, Nov.-Dec. Sess.

160, 163 .............................................. 71-5

168, 169 ............................................ U71-52

210 ................................................ 71-196

289 ................................................ U71-87

294 ................................................. 71-55

379 ......................................... 71-192, U71-79

478 ............................................... U71-147

556 ............................. 71-22,71-111, U71-3, U71-50

Ga. Laws 1955

224 ................................................ 71-198

309 ................................................ 71-137

339 .......................................... 71-89, U71-15

450 ................................................ 71-119

483 ........................................... 71-37,71-148

559 ................................................ 71-164

Ga.Laws1956

27 ................................... 71-48, U71-83, U71-123

60 ....................................... 71-11,71-29,71-49

75 ................................................ U71-141

350

ACT PAGE

GEORGIA LAWS-Continued Ga. Laws 1956-Continued

OP. No.

148 ................................................ 71~156 161 ................................ 71~2, 71-48,71-97, U71-89 615 ........................................... 71-24, 71~166 793 ................................................. 71-62 802 ................................................. 71-43
Ga.Lawsl957
121 .. : . ............................................ U71-40 134 ........................................ 71-194, U71-118 205 ........................................ 71-100, U71-114 336 ................................................ 71-183 420,441 ............................................ U71-14 454 ................................................ U71-72 477 ................................................ 71-191 596 ................................................. 71-32
Ga. Laws 1958
15 .................................. 71-182, U71-83, U71-123 47 ................................................. U71-28 55 ................................................. 71-163 61 .................................... 71-139,71-143,71-178 172 ............................................... U71-141 174, 175 .............................................. 71-4 200 ............................................... U71-109 355 ................................................ U71-58 634 ................................................. U71-2
Ga.Lawsl959
83 .............................. . .................. 71-72 88 .................................. U71-9, U71-94, U71-140 170 ................................................ U71-22 283 ............................................ 71-28,71-52 327 ................................................ 71-119 354 ............................................... U71-135 2047 ................................................ U7l-5
Ga.Lawsl960
89 ................................................. 71-139 289 ............................. 71-91,71-142,71-170,71-175 289, 298 ............................................. U71-9 289, 481 ............................................. 71-50 289, 540 ............................................ 71-197 289, 573 ............................................ 71-133 289, 577 ............................................ 71-133 289, 582 ............................................ 71-133

351

AcT PAGE

GEORGIA LAWS-Continued

OP. No.

Ga. Laws 1960-Continued

289, 661

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-197

780

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-196

880

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-202

892

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-101

1092 ....................................... 71-182, U71-123

1144 71-65,71-79 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1148 ............................................... U71-83

Ga. Laws 1961

47

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-165

116 ................................................ U71-75

2299 .............................................. U71-132

Ga. Laws 1962

3 71-59,71-100 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

16 ................................................. U71-83

17 71-100,71-171 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

140 ............................................... U71-115

156 71-69,71-192 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

Ga.Laws1963

10

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-71

45 71-14,71-54 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

81 71-44,71-76,71-138,71-159,71-161 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

188 ................................................ U71-75

277

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-63

333

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-22

608

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-17

3229

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-41

Ga.Laws1964

3 71-1,71-9,71-87 0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

122

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-200

146

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-105

225 ............................................... U71-103

338 71-58,71-158 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

412 ................................................ U71-75

485

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-191

487

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-97

489 ................................................ U71-89

493

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0.

0

0

0

0

0

0

0

0

71-48

499

0

0

0

0

0

0

0

0

0

0

0

0

71-94, 71-131, 71-132, 71-135, 071-60, 071-120

499, 598

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-190

499, 599

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-55

809 ................................................ TJ71-44

352 AcT PAGE

GEORGIA LAWS-Continued Ga. Laws 1964-Continued

OP. No.

2511 ............................................... U71-78

Ga. Laws 1964, Extra. Sess.

26 ..................... ; ..... 71-51,71-151, U71-127, U71-145

26, 54 .............................................. 71-168

26, 73 ............................................. U71-140

Ga. Laws 1965 106 .................................................. 71-5

188 ................................................. 71-22 199 .................................................. 71-5

217 ............................................ 71-13,71-69

249 ................................................ 71-105

298 ................ 71-110, U71-30, U71-109, U71-115, U71-136

335 ........................................... 71-3, U71-33

347 ................................................. 71-55

385 ..................................... 71-36,71-44,71-199

396,397 ............................................ U71-17

413 ............................................... U71-123

449 ................................................ 71-195

458 ............................................ 71-17' 71-19 603 ................................................. 71-54

625 ................................................. 71-92

629 ................................................ 71-122

663 ................................................ 71-105

Ga. Laws 1966

56 ................................................. U71-83

72 ................................................. 71-100

195 ................................................. 71-14

228 ................................................ 71-177

284 ................................................ 71-119

380 ................................................ 71-132

502 ................................................ U71-57

609 ................................................ U71-93 1050 ............................................... U71-27

1298 ............................................... U71-44

Ga. Laws 1967

86 ................................................ U71-123

153, 154 ............................................ U71-24

252 ................................................. 71-78

296 ................................... 71-157, U7l-4, U71-76

385 .......................................... 71-125,71-176

421 ................................................. 71-85

353

AcT PAGE

GEORGIA LAWS-Continued Ga. Laws 1967-Continued

OP. No.

423 ........................................... 71-24,71-150 455 ................................................. U71-9 469 ........................................ U71-25, U71-50 581, 590 ............................................ 71-201 616 ............................................... U71-129 731 ................................................ U71-71 835 ................................................ 71-160 871 ................................................. 71-30 878 ................................................ 71-153 889 ............................................ 71-17,71-19 940 ............................................ 71-10,71-12 2239 .............................................. U71-111 2820 ............................................... U71-57 3280 .............................................. U71-145 3360 ............................................... U71-30
Ga. Laws 1968 9 ................................................... 71-62 30 ................................................. 71-172 130 ................................................ 71-174 259 ............................................... 71-173.1 324 ................................................ U71-87 358 ............................................... U71-106 434 ................................................ U71-57 447 ................................................. U71-11 448 ............................................... U71-146 485 ............................................ 71-64,71-65 497 .......................................... 71-127,71-130 497' 512 ........................................ 71-66, 71-67 543 ............................................... U71-142 558 ................................................ 71-177 565 .......................................... 71-180,71-197 885 .......................... 71-151,71-185, U71-95, U71-l33 885, 968 ............................................ 71-110 992 ............................................... U71-117 999 ....................................... U71-96, U71-147 1013, 1028 .......................................... U71-66 1044 ..... : .......................... , .............. 71-162 1055 ................................ ................ 71-85 1082 ................................................ 71-13 1162 ............................................... 71-162 1163 ......................................... 71-29, U71-37

354

AcT PAGE

GEORGIA LAWS-Continued Ga. Laws 1968-Continued

OP. No.

1230 .............................................. U71-130

1249 ......................................... U71-l, U71-5 1249, 1270 ......................................... U71-126

1249, 1307 ..................................... 71-11,71-124 1249, 1309 .......................................... 71-101 1249, 1312 ......................................... U71-113 1249, 1318 .......................................... 71-167 1249, 1320 .......................................... 71-115 1249, 1324 .......................................... U71-l0

1249, 1336 .................................. U71-13, U71-84 1249, 1337 .......................................... 71-191

1364 ...................................... U71-75, U71-l01

1399 ............................................... U71-89 1413 ............................................... U71-45 1508 ................................ 71-169, U71-35, U71-136 1686 ............................................... 71-129 1690 ............................................... U71-53 1787 ............................................... U71-62

1791 .............................................. U71-100 Ga. Laws 1969

7 .................................................. U71-75

113 ......................................... 71-117,71-173.1 147 ................................................. 71-96 235 ................................................ 71-194

266,268 ............................................ U71-21

383 ............................................... U71-l05

484 ................................................ 71-143

492 ................................................ 71-165

495 ............................................ 71-27,71-31

505 ......................................... 71-131, U71-29 582 ............................................... U71-142

598 ................................................ U71-89 600 ................................................ 71-179

602 ................................................ U71-89 603 ................................................. 71-83

681 ................................................ 71-105

683 ........................................... 71-13,71-147 721 ................................................. 71-10

759 .................... : ............................ U71-2 857 ................................................ 71-115 880 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-171

355

AcT PAGE

GEORGIA LAWS-Continued Ga. Laws 1969-Continued

OP. No.

963 ................................................. 71-20 982 ................................................. 71-85 996 ................................................ U71-66 998 ................................................ 71-189 2276 .............................................. U71-lll 3571 ................................ 71-169, U71-35, U71-136 4426 ............................................... U71-35
Ga. Laws 1970
19 ..... ....... 71-100 30 ................................................. 71-156 32 ........................................... 71-117, 71-171 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-96 119 ............................................... 71-173.1 208 .......................... 71-152,71-191, U71-43, U71-49,
U71-59, U71-110, U71-128 235 ................................................. 71-29 236 .......................................... 71-115,71-191 243 ......................................... 71-180, U71-39 249 ................................................. 71-84 301 ................................... 71-133,71-157,71-199 321 .......................................... 71-78, U71-81 438 ................................................ 71-111 446 ................................................ U71-91 451 ........................................... 71-36,71-138 467 ................................................. 71-69 470 ................................................ U71-76 478 ................................................. 71-69 494 ................................................. 71-37 497,498 ...................................... 71-16, U71-93 580, 581 ............................................ U71-55 679 ............................... U71-78. U71-119, U71-144 683 ................................................ U71-29 690 ................................................ 71-115 716 ............................................... U71-141 721 ................................................ 71-122 724 ................................................ U71-63 939 .......................................... 71-25, U71-32 954 ................................................ 71-102 990 ........................................ U7l-5l, U71-98 1153 ........................................... 71-68,71-73 2067 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-80

356

AcT PAGE

GEORGIA LAWS-Continued Ga. Laws 1970-Continued

OP. No.

2651 .............................................. U71-132 2941 ............................................... U71-40
Ga. Laws 1971 3 .......................................... U71-51, U71-98 38 ................................................. 71-130 42 .................................................. 71-39 45 ............... 71-98,71-137,71-183,71-186,71-187, U71-102 67 .................................................. 71-60 81 ................................................. 71-134 84 .................................................. 71-71 93 ................................................. U71-99 96 ................................................. 71-116 98 .................................................. 71-53 99 ................................... 71-108,71-203, U71-82 103 ........................................ 71-104,71-173.1 111 ........................................ U71-65, U71-97
180 ...................................... U71-119, U71-125 204 ................................................. 71-98 214 ........................................ U71-63, U71-90 228 ................................................ U71-61 252 ................................................ 71-123 258 ................................................ 71-111 305 .............................. U71-101, U71-105, U71-117 306 ................................................. 71-96 332 ............................................ 71-68,71-89 341 .......................................... 71-82, U71-89

351 71-138 380 ................................................ U71-78 384 ............................................... U71-102 439 ................................................ 71-177 553 ........................................... 71-69,71-112 591 ............................................... U71-135 627 ............................................... ,U71-142 699 ........................................ U71-73, U71-75 709 ................................................ 71-159 774 .................. U71-73, U71-75, U71-88, U71-90, U71-93 917 ................................................. 71-73 2123 ............................................... U71-62 3425 ............................................... U71-94 4406 ............................................... U71-98

357

TABLE4

GEORGIA CODE ANNOTATED SECTIONS CITED

CooE SEcTIONS

OP. No.

1-501 .............................................. U71-38 1-815 to 1-819 ............................... 71-93, U71-14.1

2-102

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-93

2-123

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-100

2-301 ................................. 71-88,71-164, U71-134

2-401 ................................... 71-32,71-149, U71-8

2-801 .............................................. U71-10

2-1606 71-18 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

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0

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0

0

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2-1911

0

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0

0

0

0

0

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0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0.

0

0

0

0

0

0

0

71-126,71-128

2-1915 .................................... U71-108, U71-109

2-1916 71-16, 71-180 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0.

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2-2301 2-3011

0

0

0

0

0

0

0.

0

0

0.

0

0

0

0

0

0

0

0

0

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0

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0

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0

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0

0

0

0

0

0

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0



71-173.1

0

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0

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0

0

0

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0

0

0

0

0

71-97

2-3016 71-39 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

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0

0

0

0

0

0

0

0

0

0

0

0.

0

0

0

0

0

0

0

0

0

0

0

2-3401 71-159 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0. 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2-3801

0

0

0

0

0

0.

0

0

0

0

0

0

0. 0

0

0

0

0

0 0. 0

0

0

0.

0

0

0

0

0

0

0

0

0

0.

0

0

0

0

0

71-173.1

2-4102 .................................... U71-103, U71-119

Ch.2-42 .......................................... U71-144

2-4201

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-80

2-4701

0

0

0.

0

0

0.

0

0

0

0

0

0

0

0

0

0

0

0

0

0.

0

0. 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0.

0

0

71-173.1

2-5201 ............................................ U71-108

2-5402 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 71-13,71-42,71-68,71-73,71-126,71-128, 71-129,71-147,71-183,71-190,

U71-17, U71-45, U71-134

2-5403 ............................................. U71-51

2-5404 ....................... U71-6, U71-19, U71-22, U71-51,

U7l-53, U71-98, U71-l38

2-5501 ........ 71-10,71-12,71-35,71-42,71-125,71-128, U71-134

2-5503 71-42, 71-126, 71-128 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0.

0

0

2-5601 71-103 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2-5604 71-181 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2-5701 ............................... 71-35, U7l-54, U71-100

2-5702 ................................. 71-12,71-35, U71-100

2-5703 ............................................ U71-100

2-5901 71-195 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0.

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2-6001 ..................................... U71-44, U71-100

2-6002 ............................................. U71-54

358

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

0P. No.

2-6005 ............................................... 71-46 2-6204 ....................................... 71-125,71-126 2-6501 ............................................ U71-124 2-6701 ............................................ U71-131 2-6802 ........................................... 071-14.1 2-7202 ................................................ 71-9 2-7501 ............................................. U71-85 2-7502 .............................................. 71-147 2-7801 ............................................ U71-IOO 2-7806 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l T71-108 2-7807 ............... 71-169, U71-27, U71-35, U71-62, U71-136 2-8001 ............................................ U71-114 2-8003 ............................................... 71-32 2-8004 .............................................. 71-185 2-8101 ............................................. U71-35 2-8402 ............................................ U71-111 2-850 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-134 Ch. 3A-l ............................................ 71-58 3A-102 ....................................... 71-58, 71-158 3A-103 ....................................... 71-58,71-158

3A-104 to 3A-107 .............................. 71-58, 71-158 3A-105 .............................................. 71-58 3A-112 ............................................. 71-158 5-2702 ............................................... 71-72 9-401.1 ............................................ U71-24 Ch. 11-2 ........................................... U71-12 11-201 ............................................. U71-12 11-301 .............................................. 71-195 Title 13 ............................................. 71-102 13-203 .............................................. 71-102 13-203.1 ............................................ 71-102 13-180 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-162 13-1802 ............................................. 71-162 13-2013 .............................................. 71-83 13-2023 ............................................. 71-162 Ch. 16-2 ............................................ 71-192 Ch. 16-4 ............................................ 71-192 16-437 ............................................... 71-20 16-438 ............................................... 71-20 21-105 ............................................. U71-56 21-205 ............................................. U71-56

359

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

0P. No.

21-206 ..................... ' ....................... 071-56 22-202 .............................................. 71-197

22-301 ....................................... 71-180, 71-197 22-1403 ............................................. 71-197

Ch. 23-2 ............................................. 71-80 23-1109 ............................................ 071-45 23-2304 ........................................... 071-129 23-3003 ............................................ 071-11 23-3101 ................................... 071-119, 071-125 24-60 I ............................................ 071-144 24-805 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-7

24-817 ....................................... 71-7, 071-144 24-1102 ........................................... 071-144

24-150 I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 071-144 24-1601..... . ............................. 071-25,071-50 24-1716 ........................................... 071-135

24-1716a .......................................... 071-135 24-1805 ............................................ 071-40

24-2104 ............................................ 071-71 Ch. 24-21A ........................ 071-78, 071-119, 071-144

24-2101a .......................................... 071-119

24-2401 ............................................. 71-159 24-2421 ............................................ 071-66 24-250 I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 071-107 24-2606 ............................................. 71-117 24-2606.2 ......................................... 71-173.1 24-2610a.2 ........................................... 71-84 24-2614a ............................................. 71-77 24-2714 ............................... , ........ 71-16, 71 192 24-2715 ..................................... 071-75, 071~93 24-2727 .............................. 71-16, 071-63, 071-73,
071-75, 071-88, 071-90, 071-93 24-2732 ........................... 071-61, 071-104, 071-122 24-2740 ........................................... 071-122 24-2740.1 ......................................... 071-104 24-2740.2 ......................................... 071-122 24-2740.3 ......................................... 071-104 24-2740.4 ......................................... 071-104

24-2746 ........................................... 071-104 24-2747 ............................................ 071-40 Ch. 24-28 .......................................... 071-78 24-2804 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 071-84

360

GEORGIA CODE ANNOTATED SECTIONS-continued

CooE SEcTioNs

OP. No.

24-2922to24-2930 .................................. 071-117 24-2928 ........................................... 071-117 24-2928.1 ................................. 071-101, 071-105 24-2930 ........................................... 071-117 24-2904a ............................................. 71-40 24-3101 ........................................... 071-130 24-3102 ........................................... 071-130 24-3104 ........................................... 071-130 24-3201 ............................................... 71-7 24-3379 ............................................... 71-7 24-3406 ..................................... 071-63, 071-90 24-3503 ............................... 71-59,71-100, 071-114 24-4005 ....................................... 71-59, 71~100 24-4202 ............................................. 71-103 24A-2304 ........................................... 71-159 24A-240 I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-159 25-108 ............................................ 07l-ll5 26-101 .............................................. 71-191 26-401 .............................................. 71-191 Ch. 26-7 .......................................... 071-126 26-701 ............................................ 071-126 26-2301 ............................................. 071-5 26-2306 ................................. 71-11,71-124,071-1 26-2309 ............................................. 71-101 2.6-2501 ........................................... 071-113 Ch. 26-27 .................................... 71-115, 71-167 26-2701 ...................................... 71-115, 71-167 26-2703 ............................................. 71-115 26-2707 ............................................. 71-167 26-2708 ............................................. 71-167 26-2904 ............................................ 071-10 26-9904 ..................................... 071-13, 071-84 Ch. 27-2 ........................................... 071-59 27-222 .............................................. 071-2 27-421 ............................................. 071-42 27-2401 ........................................... 071-130 27-2502 ............. ................................. 71-97 27-2506 ....................................... 71-95, 71-191 27-2511 ............................................ 071-87 27-2514 ............................................. 71-188

361

GEORGIA CODE ANNOTATED SECTIONS-Continued

CooE SECTIONS

OP. No.

27-2518 ............................................. 71-188

27-2521 ............................................. 71-188

27-2702 ........................................... U71-123

27-2703 ............................................ U71-83

27-,2707 ........................................... U71-123

27-2709 ............................................ U71-83

27-2710 .............................................. 71-48

27-2711 ....................................... 71-48, 71-182

27-2712 ............................................ U71-83

27-2716 ........................................... U71-123

27-2723 ............................................ U71-83

27-2726 ............................................. 71-182

27-2727 ............................................ U71-87

27-2728 ............................................ U71-87

27-2801 ..................................... U71-25, U71-42

27-2805 ............................................ U71-42

27-2902 ............................................ U71-42

27-2906 ............................................ U71-25

27-2909 ............................................ U71-25

27-2912 ............................................ U71-42

27-2913 ..................................... U71-25, U71-42

27-2915 ............................................ U71-25

27-2916 ............................................ U71-25

27-2917 ............................................ U71-25

27-2928 to 27-2933 ................................... U71-25

27-2929 ............................................ U71-42

27-3001 to 27-3003 .................................. U71-147

Ch. 27-32 .......................................... U71-96

27-3201 to27-3215 .................................. U71-147

27-3204 ............................................ U71-96

27-3208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-96

32-112 .............................................. 71-146

32-118 .............................................. 71-146

32-121 ............................................ U71-131

32-144 ............................................... 71-20

32~156 to 32-164 ..................................... U71-28

32-157 ............................................. U71-28

32-120a .............................................. 71-20

32-401 ............................................. U71-24

32-404 ............................................ U71-124

32-415 ............................................. U71-24

362

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

0P. No.

32-423 to 32-427 ....................................... 71-9

Ch. 32-6 ............................................. 71-87

32-605 ............................................... 71-87

32-607 ................................................ 71-1

32-618 ................................................ 71-9

32-942 ......................................... 71-10, 71-12

32-1106 ............................................ U71-85

32-1118 ............................................ U71-85

Ch. 32-14A .......................................... 71-30

32-1901 .............................................. 71-10 32-2901 ........................................ 71-1,71-189

32-2904 ........................................... U71-142

32-2911 ............................................... 71-1

32-2921 ............................................... 71-1

32-3001 ............................................. 71-129

32-3005 ............................................. 71-129

Ch. 32-33 ............................................ 71-69

32-3301 ........................................ 71-13,71-69 32-3305 .............................................. 71-69

32-3306 .............................................. 71-13

32-3308.3 ............................................ 71-69

Ch. 32-34 ............................................ 71-13

Ch. 32-37 ..................................... 71-13, 71-147

32-3802 ............................................. 71-189

32-3804 ............................................. 71-189

Title 34 ........................................... U71-145

34-103 ............................. 71-151, U71-127, U71-145

34-603 .............................................. 71-168

34-605 ............................................... 71-168

34-610 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-168

34-632 .............................................. 71-151

34-633 ............................................ U71-140

34-1002 .............................................. 71-51

34-1407 ........................................... U71-127

34-1507 ........................................... U71-127

34-1930 ............................................. 71-151

Title 34A ........................................... U71-95

34A-103 ............................................ 71-151

34A-501 .......................................... U71-133

34A-502 .......................................... U71-133

363

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SEcTioNs

OP. No.

34A-523 ............................................ 71-151

34A-901 ............................................ 71-185

34A-909 ........................................... U71-95

34A-910 ............................................ 71-185

34A-914 ........................................... U71-95

34A-1301 ........................................... 71-110

Ch. 36-1A .......................................... U71-17

38-80 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-57

39-101 ............................................... 71-16

39-705 ....................................... 71-16, U71-75

40-205 ............................................... 71-23

40-207.1 ............................................ 71-105

40-207.2 ............................................ 71-105

40-409 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71- 100

40-414 .............................................. 71-100

40-415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71- 100

40-420 .............................................. 71-171

40-809 ....................................... 71-196, U71-9

40-903 ............................................... 71-56

40-1101 .................................. 71-43, 71-57, 71-59

40-1631 to 40-1634 ................................... 71-143

40-1902 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-181

40-1906.1 ........................................... 71-114

40-2002 .............................................. 71-76

Ch. 40-22 .................................... 71-183, 71-187

40-2201 .............................. 71-137,71-186, U71-102

40-2203 ............................................. 71-186

40-2204 ............................................. 71-187

40-2240 .............................................. 71-21

40-2241 .............................................. 71-21

Ch. 40-25 ..................................... 71-36, U71-99

40-2501 .................................... 71-5, 71-6, 71-26

40-2503 ................................... 71-5, 71-21, 71-26

40-2504 ............................................... 71-5

40-2505 ....................................... 71-5, U71-99

40-2505.1 ........................................... 71-116

40-2509 ..'............................................ 71-26

40-2529 .............................................. 71-21

40-2535 ............................... 71-108, 71-203, U71-82

40-2701 ........................ ; ................... U71-94

40-2701 to 40-2703 .................................... U71-9

364

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

0P. No.

40-2702 ........................................... U71-140 40-2703 .......................................... : . . U71-9 40-2902 .............................................. 71-78 40-2920 ............................................ U71-81 Ch. 40-30 ........................................... 71-174 43-101 ........................................ 71-62, 71-155

43-105 ............................................... 71-62 43-120 ............................................... 71-62

43-124 ....................................... 71-155, U71-2 43-209 .............................................. 71-137 43-213 .............................................. 71-137 43-602a ............................................. 71-195 43-606a ............................................. 71-195 43-620a ............................................. 71-139

43-1401 .............................................. 71-62 43-1402 .............................................. 71-62

43-1405 .............................................. 71-62 Ch.45-l ............................................. 71-37

45-113 .............................................. 71-148 45-118 ............................................... 71-37

45-137 ....................................... 71-25, U71-32 45-138 ............................................... 71-25

45-203 ........................................ 71-66, 71-130 45-205 ............................ 71-66,71-67,71-127,71-130 46-409 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-63

Ch. 49-6 ............................................ 71-131 49-612 .............................................. 71-131 50-127 .............................................. 71-160 53-102 ................................................ 71-3 53-201 ............................................. U71-33 53-204 ................................................ 71-3 54-122 ............................................... 71-28 54-301 ............................................... 71-15 54-303 ............................................... 71-15

54-307 ............................................... 71-15 54-308 ............................................... 71-15

54-310 ............................................... 71-15 54-645 .............................................. 71-112

54-1102 ........................................... U71-102 54-9927 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-1 02 Title 56 .............................................. 71-91

365

GEORGIA CODE ANNOTATED SECTIONS-continued

CODE SECTIONS

0P. No.

56-101 .............................................. U71-9

56-102 .............................................. 71-142

56-103 .............................................. 71-142

56-104 .............................................. 71-142

56-105 .............................................. 71-142

56-109 .............................................. 71-142

56-201 to 56-206 ...................................... U71-9

56-203 .............................................. U71-9 56-224 .............................................. 71-170

56-229 .............................................. 71-170

56-302 .............................................. 71-142

56-309 .............................................. 71-170

56-310 .............................................. 71-170

56-602 .............................................. 71-142

56-905 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-1 75

56-1001 ............................................. 71-170

56-1002 ............................................. 71-170

56-1005 ............................................. 71-170

56-1020 ....................................... 71-50,71-170

56-1036 ............................................. 71-170

56-1038 ............................................. 71-175

56-1040 ............................................. 71-175

56-1303 ....................................... 71-91, 71-200

56-1304 .............................................. 71-91

56-1310 ............................................. 71-200

56-1508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-197

56-1708 ............................................. 71-133

56-1801 ............................................. 71-133

56-1802 ............................................. 71-133

56-1811 ............................................. 71-133

56-2410 ............................................. 71-197

56-2411 ............................................. 71-197

56-9907 ............................................. 71-142

Title 58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-68

58-718 ............................................. U71-26

Ch. 58-10 ........................................... U71-8

58-1002 ............................................. U71-8

58-1003 ........................................... U71-145

58-1028 ............................................. U71-8

58-1031 ............................................ U71-31

58-1032 ............................................. U71-8

366

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

0P. No.

58-1038 ............................................. U71-8

59-717

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71-7

Ch. 64-1 ........................................... U71-94

64-101

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71-168

Ch. 65-2 ........................................... U71-68

65-213 ............................................. U71-68

65-214 ............................................. U71-68

Ch. 65-3 ............................................ 71-198

67-2501 ............................................ U71-75

68-214 ............................................. U71-21

68-253 ............................................. U71-72

68-405 71-172 0

0

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Chs. 68-15 to 68-17 ...................... 71-22, U71-3, U71-50

68-1502 71-22 0

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68-1606 ............................................. U71-3

68-1671 ............................................. U71-3

68-1723 to 68-1726.6 ................................... 71-22

68-1726 71-22,71-111 0

0

0

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68-1726.2 71-111 0

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68-1726.4 ........................................... 71-111

68-1726.6 71-22 0

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68-9907 71-22 0

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68-9926 ...................................... 71-22, U71-50

68-9927 .................................... U71-50, U71-146

69-1Q3 ............................................ U71-109

69-201 ............................................ U71-107

69-309 ............................................ U71-115

69-310 ............................................ U71-115

69-314 ............................................ U71-115

69-316 ............................................ U71-115

69-1015 ........................................... U71-109

69-1015 to 69-1020 .......................... U71-30, U71-136

69-1017 ............ 71-110, U71-30, U71-109, U71-115, U71-136

69-1018 ..................... 71-110, U71-30, U71-109, U71-136

69-1226 ............................................ U71-14

69-1302 71-17 0

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69-1305 71-19 0

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69-1603 71-17 0

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69-1606 71-19 0

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74-101

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71-45

74-104 71-177 0

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367

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

0P. No.

77-110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-120

77-201 ............................................... 71-48

77-307 ............................................. U71-89

77-309 .................................. 71-2,71-188, U71-89

77-317 .............................................. 71-179

77-320 ......................................... 71-48, 71-97 Ch. 77-5 ............................................. 71-97

77-501 ............................................... 71-97

77-507 ............................................... 71-97

77-511 ............................................... 71-97

77-512 .............................................. 71-196

77-514 ............................................... 71-97

77-515 ............................................... 71-97

77-516 ............................................... 71-97

77-525 ............................................... 71-97

77-528 ............................................. U71-10

77-531 ............................................... 71-97

77-533 .............................................. 71-196

Ch. 77-9 ............................................ 71-202

77-902 .............................................. 71-202

77-1004 ............................................. 71-101

77-1025 ............................................. 71-10 I

78-901 , ............................................. 71-155

Ch. 78-10 ...................................... 71-68, 71-89

78-1001 ...................................... 71-89, U71-15

78-1007 .............................................. 71-89

78-1017 .............................................. 71-89

78-1020 .............................................. 71-89

78-1301 ........................................... 71-173.1

78-1311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-17 3.1 78-1318 ........................................... 71-173.1

Ch. 79-4 ............................................ 71-151

79-402 .............................................. 71-151

79-404 .............................................. 71-151

Title 79A ........................................... U71-76

79A-102 ............................................ 71-157

79A-410 ............................................ U71-4

79A-519 ............................................ U71-4

79A-520 ............................................ U71-4

Ch. 79A-8 ................................... 71-157, U71-76

79A-802 ............................................ 71-157

368

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

0P. No.

79A-803 ........................................... U71-76

79A-808 ............................................ 71-157

79A-9911 .......................................... U71-76

81A-106 ............................................. 71-51

81A-131 ........................................... U71-93

84-101

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71-42

84-102

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84-205

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71-42

84-401

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71-54

84-509 ....................................... 71-94, U71-60

Ch. 84-6 ............................................ 71-133

84-601 71-4, 71-133, 71-199 0

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84-603 71-133 0

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84-607 71-133 0

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0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

Ch.84-9 ............................................ 71-133

84-901 71-133,71-199 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

84-906 71-133, 71-157 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

84-907 71-133 0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

84-907.1 ........... 71-133 0

0

0



0

0



84-931 to 84-935.2 ................................... U71-29

Ch. 84-11 ........................................... 71-156

Ch. 84-12 ........................................... 71-133

84-1409 71-122 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

84-1410 ............................................ U71-39

84-1417 71-122 0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

84-1418 71-122 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

Ch. 84-35 ........................................... 71-156

84-3902 71-163 0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

84-3907 71-163 0

0

0

0

0

0

0

0

0

0

0 0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0 0

84-3908 71-163 0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

84-4101

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

71-28

84-4102 71-52 0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

84-4112 71-14 0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0 0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

84-4401

0

0

0

0

0

0

0

0

0

0 0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

71-54

84-4403 71-14 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

84-4405 71-14 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

84-4408 71-14 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

84-4413 71-14 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

Ch. 84-54 ........................................... 71-180

84-5402 ..................................... 71-180, U71-39

84-5406 71-180 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

369

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

0P. No.

Ch. 85-11 ........................................... 71-182

85-1302 ........................................... U71-139

85-1303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-139

85-1304 ........................................... U71-139

85-1404 ............................................. 71-165

85-1602 ............................................ U71-18

85-1610 ............................................ U71-45

85-1606c ............................................. 71-37

85-1901 ............................................ U71-41

85-1902 ............................................ U71-41

Ch. 86-18 ........................................... 71-121

86-1801 ............................................ U71-59

86-1806 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-121

86-1808 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-121

86-1809 ............................................ U71-59

Title 88 .............................. 71-94, U71-60, U71-120

Ch. 88-2 .......................................... U71-120

88-204 ..................................... 71-132, U71-120

88-207 ............................................ U71-120

88-214 ............................................ U71-120

Ch. 88-5 ............................................ 71-131

88-505.2 ............................................ 71-131

88-506.4 ............................................ U71-29

88-507.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-29

88-508 .............................................. 71-131

Ch. 88-9 ....................................... -..... 71-201

88-916 .............................................. 71-201

Ch. 88-12A ......................................... 71-123

88-1201a ............................................ 71-123

Ch. 88-17 .......................................... U71-60

88-1701 ............................................ U71-60

88-1703 ............................................. 71-135

88-1708 ............................................. 71-135

88-1715 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-60

88-1724 ............................................ U71-60

Ch. 88-18 ........................................... 71-190

88-1802 ............................................. 71-190

88-1803 .............................................. 71-55

88-1805 ....................................... 71-55,71-190

88-1812 .............................................. 71-55

88-1819 ............................................. 71-190

370

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

0P. No.

Ch. 88-29 ........................................... 71-177 89-101 ...................................... 71-18, U71-107

89-103 ............................................. U71-34 89-308 ............................................. U71-84 89-501 .............................................. U71-7

89-715 ............................................ 71-173.1 89-716 .............................................. 71-104
89-716 to 89-722 .................................... 71-173.1 89-812 .............................................. 71-112

89-903 ................................... 71-9,71-12,71-121 89-913 ......................................... 71-29,71-49 89-913 to 89-918 ...................................... 71-11

Ch. 89-11 ........................................... 71-183 89-1201 .............................................. 71-63

89-9903 ...................................... U71-9, U71-40 Ch. 90-2 ............................................ 71-103 90-204 .............................................. 71-103 90-205 .............................................. 71-103 90-208 .............................................. 71-103 90-210 .............................................. 71-103 90-211 .............................................. 71-103

90-214 .............................................. 71-103 90-215 .............................................. 71-103 90-220 .............................................. 71-103 90-222 .............................................. 71-103 91-117 .............................................. 71-165 91-103a ............................................. 71-105 92-101 ..................................... U71-52, U71-106 92-139 ............................................. U71-79

92-161 .............................................. 71-192 92-162 ...................................... 71-192, U71-79 92-201 ............................................. U71-46 92-219 ............................................ U71-l38 92-238 ............................................. U71-22 92-239 ...................................... U71-51, U71-98

92-307 ............................................. U71-20 92-1403 ............................................. 71-134 92-2406 ............................................. 71-119 Ch. 92-31 .......................................... U71-16

92-3101 ............................................ U71-16

371

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

0P. No.

92-3107 ............................................ 071-I6

92-3108 ............................................ 07I-I6

92-3216 ............................................. 71-184

Ch. 92-34A ............ 7I-I39, 71-I78, 071-67,071-92, 071-I21

92-3402a ........................................... 071-92

92-3403a ....... 7I-72, 7I-139, 71-145, 07I-92, 071-I12, 071-I43

92-3407a .......................................... 071-143

92-3410a ............................................ 71-145

92-34I4a ............................................ 71-I39

92-4I05 ............................................ 071-69

92-490 I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 071-85

92-500I ..................................... 07I-35, 071-91

92-5102 ............................................ 07I-35

92-560 I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 071-35

92-5702 ........................................... 07I-106

92-5703 ........................................... 07I-106

92-5707 ............................................ 071-52

Ch. 92-69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 071-55

92-69II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 071-55

92-6917 ............................................. 07I-35

92-760I ............................................ 07I-9I

92-8414 ............................................. 71-I84

92-8443 ............................................ 071-58

92-99I4 ............................................. 7I-I84

92A-128 ............................................. 071-9

92A-208 ...................................... 71-96, 7I-106

92A-226 ............................................ 71-I48

Ch. 92A-4 ......................................... 071-116

92A-401 ............................................. 71-38

92A-408 ............................................. 71-38

92A-432 .......................................... 071-116

92A-50I to 92A-504 ................................ 071-103

92A-502 ............................................ 071-135

92A-504 .......................................... 071-103

92A-603 ............................................ 071-9

92A-604 ............................................ 071-9

92A-608 .......................................... 071-I03

92A-I90I ........................................... 71-156

Ch. 92A-21 ................................. 71-152, 071-I28

92A-2102 .................. 07I-43, 071-49, 07I-110, 07I-128

92A-2106 .......................................... 07I-43

372

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

0P. No.

92A-2108 ........................................... 71-191

92A-2113 ........................... 71-152, U71-49, U71-128

92A-2114 .......................................... U71-59

92A-9931 ........................................... 71-156

93-307 71-144 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

93-324 71-144 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

95-608 71-166 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

95-609

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-24

95-611 71-24,71-166 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

95-1504 71-125 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

95-1516 71-27,71-31 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

95-1517 71-27 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

95-1518 71-85 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

95-1521

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

71-85

95-1609 71-85, 71-125 0 0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

95-1701 71-125 0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0 0

0

0

0

0

0

0

0

95-1714 71-125 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

95-1715 71-85 0

0

0 0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

95-1724 71-85 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

95-1704a ............................................ 71-164

Ch. 95-19 ........................................... 71-125

95-1905 71-125 0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

95-1908 71-125 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

95-2002 71-24 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

95-2006 71-24 0

0

0

0

0

0

0

0

0 0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

Ch. 95-20A ......................................... 71-150

95-2006a ............................................ 71-150

95-2011a ................................... __ ....... 71-24

Ch. 95-23 .................................... 71-125,71-176

95-2304 71-176 0

0 0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0 0

0

0

0

0 0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

95-2309 71-176 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

Ch. 95-28 ............................................ 71-85

95-2904 71-165 0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

0

0

0

0

0

0 0

0

0

0

0

0

0

0

0

95-2907 71-165 0

0

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95-9914 71-24 0

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0

Title 97 ........................................... U71-118

Ch. 97-1 ............................................ 71-194

97-102 ............................................ U71-118

97-107 71-194 0

0

0

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99-118 71-147 0

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99-122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-112

373

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

0P. No.

99-123 .............................................. 71-147

99-124 ........................................ 71-44, 71-147

99-129 ............................................... 71-44

99-142to99-146 ................................ 71-44,71-147

99-143 ............................................... 71-44

99-144 ............................................... 71-44

99-145 ............................................... 71-44

99-146 .............................................. 71-147 Ch. 99-2 ............................................ 71-138

99-202 ............................................. 71-159

99-204 ............................................. .. 71-44

99-206 .............................................. 71-161

99-207 ............................................... 71-44

99-209 ................................. 71-44,71-138, U71-66

99-210 .............................................. 71-138

99-211 ........................................ 71-76, 71-138

99-216 ......................................... 71-44, 71-76

99-222 ............................................. U71-66

99-2102 .............................................. 71-55

99-2110 to 99-2115 .................................. U71-141

Ch. 99-29 ........................................... 71-153

99-2902 ...................................... 71-153, 71-199

99-2903 .............................................. 71-44

99-2904 ............................................. 71-153

99-2913 ............................................. 71-153

99-2916 .............................................. 71-36

Ch. 99-31 ........................................... 71-177

99-3103 ............................................. 71-177

99-3109 ............................................. 71-177

Ch. 100-1 ............................................ 71-79

100-10 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-105

100-104 ....................................... 71-65, 71-112

100-105 ....................................... 71-79,71-112

100-108 .................................. 71-64, 71-65, 71-69

100-111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-65' 71-79 100-113 .............................................. 71-79

100-117 .............................................. 71-65

Ch. 101-2 ........................................... 71-103

101-205 ....................................... 71-32, 71-103

101-218 ............................................. 71-103

374

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SECTIONs

OP. No.

102-102 ............................ 71-4,71-37,71-51,71-156,

71-157,71-172,71-194,71-200, U71-14,

U71-33, U71-55, U71-101, U71-105, U71-I29 102-103 ....................................... 71-17,71-191

102-104 ........................................... U7I-I25

102-109 ................ ....................... 71-113

102-III .................................... U7I-75, U7I-101

103-101 .............................................. 71-69

Ch. 106-3 ........................................... 71-197

106-90 I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7I-I22

106-9913 ............................................ 71-122

108-104 ............................................. 71-182

108-106 ............................................. 71-182

I08-II 0 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7I-I82

108-210 .............................................. 7I-74

108-417 .............................................. 71-20

I08-420 .............................................. 7I-20

I09-5I2 .............................................. 7I-20

Title 109A .......................................... 71-192

109A-1-202 ......................................... 71-69

109A-3-104 ........................................ 7I-192

109A-3-416 ......................................... 71-69

Ch. 109A-8 ......................................... 71-192

112-102 ............................................ U71-47

112-107to 112-115 ................................... U71-47

113-1235 ........................................... U71-58

114-101 .............................. 71-29, U71-37, U71-137

114-201 ............................................ U71-37

114-404 ............................................. 71-136

114-405 ............................................. 71-136

375
INDEX
OP. No. ABANDONMENT. Vehicles, removal from highways ........................ 71-166 ABUTTING OWNERS. Highways, access to ................................... 71-88 ACCOUNTANCY. STATE BOARD OF. Luncheons, public funds not to be used for ................. 71-42 ACTIONS. Dismissal, record to be maintained upon ................. U71-93 AD VALOREM TAXES. Banks, surplus, determination of for tax purposes .......... 71-119 Mobile homes ....................................... U71-52 Public property exempt ................................ 71-202 Swimming pool operated by nonprofit corporation not
exempt ........................................ U71-46 Trailers ............................................ U71-52 Valuation-
Easements, effect of ............................... U71-106 Zoning control, effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-106 ADJUTANT GENERAL. AssistantsAnnual leave for .................................... 71-71 Merit System, not covered by ......................... 71-71 ADMINISTRATION OF ESTATES. "No administration necessary," duty of ordinary
as to estate taxes ................................. U71-58 ADMINISTRATIVE PROCEDURE. Rule, procedure to promulgate .......................... 71-158 Withdrawal of regulations previously filed ................. 71-58 ADOPTION. Consent to ........................................... 71-45 Legitimacy of child, presumption ........................ 71-45 AGE OF PERSONS. Crime, capacity to commit ........................... U71-126 Employment by state, discrimination prohibited ......... U71-102 Homestead exemption for persons over 65 years
of age .................................. U71-19, U71-53 Marriage, for .......................................... 71-3 Minor, what constitutes ............................... 71-177 Newspapers, sale by children under 14 years of age .......... 71-15 Voting, establishment by 18-year-olds of residence, for ...... 71-151

376

INDEX

OP. No.
AGRICULTURE, COMMISSIONER OF. Weights and measures, administration of ................ U7l-47 AGRICULTURE, STATE DEPARTMENT OF. Weights and measures, supervision of ................... U7l-47 AIR POLLUTION. Counties, authority of, as to laws and ordinances .... 71-149,71-201 Fulton County ordinance, violation as misdemeanor ........ 71-201 AIR TRANSPORTATION BOARD, STATE. Pilot, member not to be employed as ..................... 71-174 AIRCRAFT. State-owned, claim for immunity from federal tax ........... 71-90 AIRPORTS. Approprirations, for, expenditure of ..................... 71-171 Jekyll Island State Park Authority, contract with State Highway
Department as to improvement ..................... 71-195 Municipal corporations, authority to build and maintain ... U71-12 ANNUITIES. Taxation of .......................................... 71-91 ANNUITY CONTRACTS. Reserve insurance requirements, necessity for
complying with .................................. 71-175 APPEALS. Attorney for indigent defendant in criminal case,
compensation of ................................. U71-96 Prisoners, transferred to Board of Corrections, pending ...... 71-82 APPORTIONMENT. Variance between districts not permitted ................. U71-74 APPROPRIATIONS. Farmers markets, return of funds where projects not
constructed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-198 Fiscal year, necessity for spending, during ................ 71-171 ARCHIVES. Superior court records, restrictions on storage .............. 71-92 AREA PLANNING AND DEVELOPMENT COMMISSIONS. Crime control, functions with respect to ................. U7l-8l ARMED SERVICES. Peace Officers Standards and Training Act, rights of
persons returning from, under ...................... 71-152 ASSISTANT DISTRICT ATTORNEYS. Expenses for travel and subsistence .................... U71-101

INDEX

377

OP. No. ATTORNEY AND CLIENT. Education, State Board of, member of, where representing
local board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-124 Habeas corpus cases, no provisiQn for appointment
of counsel ..................................... U71-147 Indigent defendants in criminal cases, compensation
of attorney on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-96 Mental incompetent, right to counsel upon sterilization ..... U71-29 AUGUSTA. Justice courts, partially within, not abolished ............... 71-80 AUGUSTA-RICHMOND COUNTY. Homestead exemption, effect of law upon ................ U71-62 AUTHORITIES. Membership on, as not constituting public office ............ 71-18 Sales and use taxes, liabilities as to payment ............... 71-139 State agencies, as not ................................. 71-121 Transfer of state employee, to, effect ...................... 71-30 BAILIFFS. Duties of .............................................. 71-7 BANKS AND BANKING. Branch banks, census figures applicable .................. 71-102 Commodity loans, no regulations except as provided
by statute ........................................ 71-83 Insurance agents, banks acting as ....................... 71-162 Surplus, determination of for tax purposes ................ 71-119 Taxation, determination of surplus for purposes of ......... 71-119 BANKS, SUPERINTENDENT OF. Commodity loans, no regulation as to, except as
authorized by statute ............................... 71-83 BARBERS.
Male or female, services for ............................. 71-54 Services which may be performed ........................ 71-54 BASTARDS. Legitimacy, presumption of ............................. 71-45 BIRTH CERTIFICATES. Racial designations, on, validity ........................ 71-135 BLOCKBUSTING. Duties of Georgia Real Estate Commission, as to .......... 71-122

378

INDEX

OP. No.
BONDS. Educational purposes, when permitted for ................ U71-54 Failure to issue, return of funds where .................... 71-198 Taxation to pay, homestead exemption not applicable to ..... U71-6 Thomas County, issuance for educational purposes ........ U71-44 BOUNDARIES OF STATE. History of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-139 BUDGET BUREAU. Appellate courts, fiscal officer for ....................... 71-100 CAPITAL PUNISHMENT. Custody of prisoner under death sentence ................. 71-188 Photographs of condemned prisoners, publication .......... 71-173 CENSUS. Branch banks, as applicable to ........................... 71-102 Report effective, when .................................. 71-17 CHAMBER OF COMMERCE. Manager is not public employee ........................ U71-77 CHARITABLE TRUSTS. North Georgia College, construction of instrument
donating funds to ................................. 71-146 University of Georgia, construction of instrument donating
funds to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-146 CHARITIES. Swimming pool, operation by nonprofit corporation,
as not constituting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-46 CHATHAM COUNTY, STATE COURT OF. Sheriff, compensation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-78 CHATTAHOOCHEE RIVER. Ownership of property adjacent to ..................... U71-139 CHILD LABOR. Newspapers, sale or delivery by children under
14 years of age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-15 CHILDREN. Legitimacy, presumption of ............................. 71-45 CHILDREN AND YOUTH, STATE BOARD FOR. Regional detention centers, establishment of
admission procedure .............................. 71-161 CHILDREN AND YOUTH, STATE DIVISION FOR. Corrections, State Board of, transfer of juveniles, to ....... U71-66 Medical services for children in custody of county
departments of family and children services ........... 71-138 Social security purposes, considered as single agency with
Department of Family and Children Services ........... 71-44

INDEX

379

OP. No. CHILDREN AND YOUTH, STATE DIVISION FOR-Cont'd Volunteer workers, travel expenses for .................... 71-76 CHIROPODISTS. See Podia.trists. CHIROPRACTORS. Death certificates, not signed by .................. 71-94, U71-60 CHURCHES. Sales and use taxes, purchases by, subject ................ U71-67 CITY-COUNTY GOVERNMENTS. Columbus-Muscogee County, general discussion ........... 71-169 CIVIL DEFENSE. Auxiliary police, not considered as peace officers .... , ..... U71-59 State agency, what constitutes under statute ............... 71-121 COASTAL MARSHLANDS PROTECTION ACT OF 1970. "Mean tide level," definition of ........................ U71-32 COASTAL MARSHLANDS PROTECTION AGENCY. Game and Fish Commission, resignation by chairman,
from, effect ...................................... 71-25 COLUMBUS-MUSCOGEE COUNTY. Government, status of ................................. 71-169 Home Rule Act, Municipal, application to .............. U71-l36 Taxation, by ........................................ U71-35 Traffic offenses, state, trial not permitted in recorders'
court ......................................... U71-103 COMPENSATION, STATE COMMISSION ON. Officers covered ...................................... 71-104 Powers, generally ................................... 71-17 3.1 COMPTROLLER GENERAL. Employees Retirement System, inclusion of employees in . . . . . 71-21 CONDEMNATION. Eminent domain, under power, of, see Eminent Domain. Gambling devices .................................... 71-167 CONFLICTS OF INTEREST. Air transportation board member employed as pilot ........ 71-174 Attorney representing local board of education as
member of State Board .......................... U71-124 Employees, of, see Officers and Employees, Public. Employment, psychiatrists of State Health Department not to
serve as consultants to Board of Corrections ........... 71-49 Sales-
Municipal officer selling services to his political subdivision .................................... U71-1

380

INDEX

OP. No.
CONFLICTS OF INTEREST-Continued Sales-Continued
Services to the state by part-time employees .............. 71-11 State employees selling to political subdivision ........... 71-124 CONGRESSIONAL DISTRICTS. Variance not permitted in population .................... U71-74 CONSOLIDATION OF GOVERNMENTS. Referendum, manner of holding ........................ U71-27 CONSTABLES. Duties ................................................ 71-7 Special, time of appointment .......................... U71-13 State court judges not to interfere with duties ............ U71-144 CONSTITUTION OF UNITED STATES. Convention, agenda cannot be restricted ................. U71-38 CONTRACTS. Annuity, necessity of complying with insurance reserve
requirements before issuing ........................ 71-175 Counties, with individual, for county services ............. U71-77 Family and Children Services, Department of, with Georgia
Legal Services, Inc., implementation .................. 71-99 State, excess of one year, obligating state for .............. 71-103 CONTRIBUTIONS. State or its agencies, not authorized, by .................. 71-128 CONVICTION OF CRIME. Peace officer, effect of misdemeanor conviction upon
eligibility ....................................... 71-191 CORONERS. Fees for investigating death ............................ U71-56 CORPORATIONS. Employment agencies, operation only in corporate name ..... 71-52 Nonprofit-
Sales and use taxes, required to pay .................. U71-l12 Swimming pool operated by, as not public charity to qualify
for tax exemption .............................. U71-46 Professional, optometry, names regulated ................ 71-180 Real estate salesmen not authorized to practice in
corporate form .................................. U71-39 Stock as insurance company investments ................. 71-170 CORRECTIONS, STATE BOARD OF. Chapel, solicitation of funds for building .................. 71-74 Custody of prisoners, when taken ....................... U71-89 Death sentence, custody of prisoners under ................ 71-188

INDEX

381

OP. No.
CORRECTIONS, STATE BOARD OF-Continued Director, employment by Georgia Building Authority
(Penal) ......................................... 71-101 Funds, solicitation of, for building chapels ................. 71-74 Habeas corpus, transfer of prisoners pending .............. 71-160 Juvenile offenders~
Committed to, when ................................ 71-159 Transfer, to ....................................... U71-66 Psychiatrists of State Health Department not to
serve as consultants ................................ 71-49 Transfer of prisoners to, pending appeal ................... 71-82 COSMETOLOGISTS. Male or female, services for ............................. 71-54 Services which may be performed ........................ 71-54 COSMETOLOGY, STATE BOARD OF. Study courses, authority to prescribe ...................... 71-14 COSTS. Deposit in superior court ...................... U71-63, U7l-90 Law libraries, county, used for purposes of ...... U71-ll9, U7l-125 COUNTIES. Air pollution, authority of, as to ........................ 71-149 Bonds for educational purposes, when permitted ... U71-44, U71-54 City-county governments, discussion of .................. 71-169 Commissioners, see County Commissioners. Fire protection, taxation for .......................... U71-l00
Funds~
Distribution of those collected by taxes ................ U71-85 Health board funds, not part of general ............... U71-120 Individual, contract with, for services ................... U71-77 Intoxicating liquor, not regulated by, to exclusion of
municipality ..................................... U71-8 Law libraries~
Casesuponwhichcostsimposed ..................... U71-125 Courts from which funds derived .................... U71-119 Licenses, contractors engaged in state-owned buildings ...... 71-140 Paupers, burial of ................................... U71-129 Police officers, jurisdiction with respect to drivers
licenses ....................................... U71-l16 Records, necessity for preservation ..................... U71-40 Roads, reconveyance to, by Highway Authority when
bonds paid off ................................... 71-176

382

INDEX

COUNTIES-Continued

OP. No.

School boards, see Education, County Boards of.

State, as not bound by ordinances or regulations ........... 71-113

COUNTY COMMISSIONERS.

Reapportionment, method of ......................... U71-108

Temporary employees, employment of .................. U71-11

COUNTY SURVEYORS.

See Surveyors, County.

COURT OF APPEALS.

Fiscal officers, appointment ............................ 71-100

Judges-

Compensation, how paid ............................. 71-59

Retirement benefits ................................. 71-203

Opinions, see Reports, infra.

Reports-

Furnishing to counties ................................ 71-32

Publishing contract as invalid ........................ 71-103

Reporter, court, as proper budget unit .................. 71-103

COURT REPORTERS.

Compensation ..................................... U71-130

COURT REPORTS.

Furnishing to counties .................................. 71-32

Publishing contracts and procedure ...................... 71-103

COURTS.

See State Courts; Superior Courts; etc. See also specific

courts by place-name, e.g., Hall County, State Court of.

Appellate, see Court of Appeals; Supreme Court.

Municipal corporations, authority to regulate under

Municipal Home Rule Act ........................ U71-30

CREDIT UNIONS.

Municipal corporations, deposit of funds in ............. U71-115

CRIME CONTROL.

Area planning and development commissions, functions

with respect to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-81

CRIMES.

See Criminal Law.

CRIMINAL JUSTICE ACT.

Appeals, compensation of attorneys, on ................. U71-96

CRIMINAL LAW.

Age of persons who may commit crime ................. U71-126

Air pollution ordinance of Fulton County, violation .... .... 71-201

Gambling devices, possession of ........................ 71-167

INDEX

383

OP. No. CRIMINAL PROCEDURE. Attorney for indigent accused, compensation of ........... U71-96 Guilty plea under "First Offender Act" ................. U71-87 Habeas corpus as not ................................ U71-147 Inconsistent provisions as to punishment, effect ........... U71-76 Multiple-count indictment, sentence based upon ............ 71-95 Probation on condition of restitution .................... 71-182 Soldiers and Sailors Civil Relief Act, not applicable to ..... U71-70 DEAD BODIES. Paupers, obligation of county to bury .................. U71-129 DEATH. Certificates, signing by chiropractors not legal ...... 71-94, U71-60 Coroner, fee for investigating .......................... U71-56 DEBTOR AND CREDITOR. State, procedure for collecting debts owed to ............... 71-53 DEKALB COUNTY. Hospital Authority, acquisition of surplus federal property .... 71-8 DELEGATION OF AUTHORITY. Medicaid, Department of Public Health not delegate
re.sponsibility as to allowance ........................ 71-86 DEPOSITORIES. STATE. Board, certificates of deposit, purchase and sale of .......... 71-79 Bond, amount of ...................................... 71-65 Collateral-
Georgia Higher Education Assistance Corporation notes, as ............................................ 71-69
Pledge of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-64 Treasurer, State, deposit with .......................... 71-65 Waiver by State Depository Board .................... 71-112 Depository Board, State, waiver of collateral by ........... 71-112 Georgia Higher Education Assistance Corporation, notes
of, as collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-69 Treasurer, State-
Certificates of deposit, purchase and sale ................ 71-79 Voting at meetings of Board ........................... 71-105 DEPUTY SHERIFFS. Duties ................................................ 71-7 Oath of office, where taken ............................ U71-84 Park rangers, prohibited from serving as .................. 71-34 Peace Officers Standards and Training ActInclusion of Chatham County deputies within .......... U71-49

384

INDEX

OP. No.
DEPUTY SHERIFFS-Continued Peace Officers Standards and Training Act-Continued
When applied to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-128 Special deputies, time of appointment . . . . . . . . . . . . . . . . . . . U71-13 DETECTIVES. Oath .............................................. U71-13 DETENTION CENTERS. State Board for Children and Youth, establishment
ofprocedures, by ................................. 71-161 DISTRICT ATTORNEYS. Assistants, social security not authorized for certain ...... U71-141 Compensation, authority of State Commission on
Compensation ................................. 71-173.1 Expensesfortravelandsubsistence .... U71-l01, U71-l05, U71-117 Social security not authorized for certain assistants ....... U71-141 DISTRICT ATTORNEYS ASSOCIATION
OF GEORGIA. Public office, chairmanship, as not ....................... 71-40 DIVORCE. Costs, deposit of ............................. U71-63, U71-90 DRAFT BOARDS. Public officers of state subdivisions not to sit upon . . . . . . . U71-l07 DRIVERS LICENSES. County police officers, authority with respect to .......... U71-116 Revocation only upon conviction in court with proper
jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-l03 Social security number, use ofupon ...................... 71-38 DRUGS. Dispensing, see Pharmacists. Illegal sale, penalties ................................. U71-76 Intern prescribing narcotics ............................ 71-157 Resident, prescribing narcotic .......................... 71-157 DRUNKEN DRIVING. Repeated offenses, how time as to, computed ............ U71-146 DUCKS UNLIMITED. Contributions by state agency, to, not authorized .......... 71-128 EASEMENTS. Highway Department improving private property, upon ..... 71-165 Tax valuation, effect upon ............................ U71-l06 EDUCATION. Higher learning, institutions of, unemployment compensation
for employees ..................................... 71-35

INDEX

385

OP. No.
EDUCATION-Continued Loans, authority of Higher Education Assistance
Authority to make ................................. 71-13 Scholarship grants-
Department of Family and Children Services, by, to students preparing for public assistance employment .. 71-147
Medical Scholarships, proration for accelerated program ...................................... 71-129
EDUCATION, COUNTY BOARDS OF. Attorney representing, as member of State Board ......... 071-124 Election of ........................................ 071-14.1 "One-man, one-vote," principle in election ............. 071-14.1 Tax funds, receipt of ................................. 071-85 Workmen's compensation for members ......... , ....... 071-37 EDUCATION, STATE BOARD OF. Attorney representmg local board, qualifications
as member .................................... 071-124 Normal schools, regulation of ......................... 071-24 Professional schools, regulation of ....................... 071-24 School funds, use for transportation of independent city
school systems puupils .............................. 71-9 Teachers Retirement System, contributions not paid,
action to be taken .................................. 71-1 EDUCATION, STATE DEPARTMENT OF. Age discrimination as to employees prohibited ........... 071-102 EJUSDEM GENERIS. Principle applied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 071-81 ELECTIONS. Absentee ballots, filing list of persons who voted with
Secretary of State ............................... 071-127 Candidates, special elections, time of qualification for ....... 71-51 Consolidation of governments, method of holding
referendum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 071-27 Eighteen-year-olds, choice of residence ................... 71-151 Hall County, state court judge ........................... 71-41 Intoxicating liquors, see Intoxicating Liquor. List of voters, filing with Secretary of State for
absentees ...................................... 071-127 Municipal corporations, see Municipal Corporations. Primaries, municipal, expense of holding ................. 071-95 Referendum elections-
Classification of voters by geographical districts . . . . . . . . 071-48

386

INDEX

OP. No. ELECTIONS-Continued Referendum elections-Continued
County commissioners, reapportionment, not necessary for ......................................... U71-108
Municipal corporation, change in form of government, not necessary for ................................. U71-109
Registrars, places for registration, designation ............. 71-168 Registration of electors, places for, selection of ............ 71-168 Residence, establishment by 18-year olds ................. 71-151 Special, time for candidate to qualify ..................... 71-51 Statutes, population bracket, as affecting general law ..... U7l-l45 Time, void when not held according to law ............... U7l-80 Voters' lists-
Removal of cards from office of board, not authorized .. U71-l40 Sale by registrars of surplus ........................ U71-140 EMERITUS OFFICERS. See Superior Courts. Waiver of benefits upon adoption of other retirement plan ... U7l-82 EMINENT DOMAIN. Relocation Assistance and Real Properties Acquisition Act,
compliance with ........................ U71-13l, U71-134 EMPLOYEES RETIREMENT SYSTEM. Comptroller General, inclusion of employees of ............. 71-21 Contributions, when made to .......................... U7l-99 Death benefits, when vested ............................ U7l-99 Election of benefits ............................ 71-108, U7l-99 General Assembly-
Rights under 1965 amendment .......................... 71-5 Service in, as not "full-time state employment" .......... 71-116 Interest when member is not in service ..................... 71-26 Involuntary separation at end of definite term, effect .......... 71-6 Merit System, operation under, as prerequisite for
membership ...................................... 71-21 Vested rights, effect of repeal of statute upon ................ 71-5 Withdrawal of election of benefits ....................... 71-108 EMPLOYMENT AGENCIES. Corporations prohibited from conducting business other than
in corporate name ................................. 71-52 Talent agencies, considered as ........................... 71-28 ESCAPE. Detention center, from, effect ......................... U71-113 ESTATE TAXES. "No administration necessary" duty of ordinary .......... U71-58

INDEX

387

OP. No. EUGENE TALMADGE MEMORIAL BRIDGE. Tolls not to be collected after revenue obligations
retired .......................................... 71-109 EXCISE TAXES. Sales tax. included in price for computation, when ........ U71-121 EXECUTIONS. Fees of Superior Court Clerks for filing ................... 71-16 EXEMPTIONS FROM TAXATION. Suspension of taxes by Governor as not constituting ......... 71-23 EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS. Principle applied ............................... 71-50, 71-157 EYEGLASSES. Safety requirements, statutory. when applicable ........... 71-156 FAMILY AND CHILDREN SERVICES, COUNTY DEPART-
MENTS OF. Medical services for children in custody of ................ 71-138 Social security as to Fulton County employees .............. 71-36 FAMILY AND CHILDREN SERVICES, STATE
DEPARTMENT OF. Division for Children and Youth, considered with, as single
state agency, for social security purposes .............. 71-44 Funds, expenses of volunteer workers ..................... 71-76 Georgia Legal Services, Inc., implementation of contract
with ............................................. 71-99 Scholarship grants to students preparing for public
assistance employment ............................ 71-147 Social Security, how considered for purposes of ............. 71-44 Volunteer workers, travel expenses for .................... 71-76 FAMILY PLANNING SERVICES. Eligibility to receive ................................... 71-177 FARMERS MARKETS. Funds return of where projects not constructed ............ 71-198 FEDERAL GOVERNMENT. Inter-governmental Personnel Act, administering
agency ......................................... 71-186 Property, hospital authorities, acquisition of surplus .......... 71-8 Relocation Assistance and Real Properties Acquisition Act, see
Relocation Assistance, Etc., Act. FEDERAL HOUSING ACT. Bureau of State Planning and Community Affairs, acceptance
of grants ......................................... 71-78

388

INDEX

FIDUCIARIES.

OP. No.

Investments by, authorized .............................. 71-20

FI~E A~D FORFEITURE FUND.

Disposal, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-42

Justices of the peace, fees to be paid from ................ U71-25

FIRE PROTECTION.

Taxation by county, for .............................. U71-l00

FIREMEN.

Retirement-

Benefits, change of, to whom applicable ................. 71-68

Heart disease, eligibility for retirement .................. 71-89

Volunteer, workmen's compensation law not applicable

to ............................................ U71-137

FIREMEN'S PENSION FUND.

Benefits, change of, to whom applicable ................... 71-68

Heart disease, eligibility to draw benefits .................. 71-89

Policeman, eligibility of fireman utilized as ............... U71-15

FIRST OFFENDER ACT.

Guilty plea, under, effect .............................. U71-87

Plea of guilty, under, effect ............................ U71-87

FISHING.

See Game and Fish.

FORESTRY COMMISSION, STATE.

Director, suspension or removal ......................... 71-137

FRATERNITIES.

University, discrimination in favor of, as to housing

students, illegal ................................... 71-93

FULTON COUNTY.

Air pollution ordinance, violation as misdemeanor ......... 71-201

Social security for employees of Department of Family and

Children Services .................................. 71-36

FUNDS, PUBLIC.

Accountancy, State Board of, prohibited from using funds

for luncheons ..................................... 71-42

School funds, see Schools, Public.

GAMBLING.

Call options, trading in, as not necessarily ................ 71-115

Devices-

Possession, prosecution for ........................... 71-167

Seizure of ......................................... 71-167

INDEX

389

OP. No. GAMBLING-Continued Put options, trading in, as not necessarily, ................ 71-115 Slot machines, effect of possession, ...................... 71-167 GAME AND FISH. Licenses-
General considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-130 Honorary, rights of holders ........................... 71-67 Nonresident, needed by owner of land ................... 71-66 Trout stamps, when needed .......................... 71-130 Widows of deceased veterans ......................... 71-127 GAME AND FISH COMMISSION. Coastal Marshlands Protection Agency, resignation by
chairman, from, effect ............................. 71-25 Contributions, by, not authorized ....................... 71-128 Wildlife rangers, Litter Control Law, enforcement of ........ 71-37 GARNISHMENT. Costs, deposit of .............................. , ...... U71-63 GENERAL ASSEMBLY. Employees Retirement System, rights under .......... 71-5, 71-116 "Full-time state employment," membership in, as not ...... 71-116 Joint resolutions, effect of ............................... 71-39 Judicial circuits, authority to split ..................... U71- 107 GENERAL SERVICES ADMINISTRATION. Supervisor of Purchases-
Contract with, as to operation of store ................. 71-181 Establishment, by, as source of supply ................. 71-114 GEORGIA BUILDING AUTHORITY (PENAL). Corrections, Director of State Board, Employment ......... 71-101 GEORGIA LEGAL SERVICES, INC. Family and Children Services, State Department of, implemen-
tation of contract, with ............................. 71-99 Sales and use taxes, required to pay .................... U71-112 GEORGIA MILITARY COLLEGE. Status of ........................................... U71-28 GEORGIA, STATE OF. See State of Georgia. GOVERNOR. Suspension of taxation as not constituting exemption ........ 71-23 GRIFFIN, CITY OF. Commissioners take office, when ...................... U71-132 HABEAS CORPUS. Bond, applicant released on, not eligible for parole .......... 71-97

390

INDEX

OP. No. HABEAS CORPUS-Continued Counsel, no provision for appointment for indigent ....... U71-147 Transfer of prisoners by Board of Corrections pending ...... 71-160 HALL COUNTY. State court, see HaJJ County, State Court of. HALL COUNTY, STATE COURT OF. Vacancy in judgeship, how filled ......................... 71-41 HEALTH. Children in custody of county departments of family and children
services, medical assistance for ...................... 71-138 Home care services, county boards of health, contracted
for ............................................. 71-132 Mass Gathering Law, application ....................... 71-123 HEALTH, COUNTY BOARDS OF. Funds, administration of ............................. U71-120 Home health care services, contracts for .................. 71-132 HEALTH, STATE BOARD OF. Medicaid claims, authority to limit time for presentation .... 71-153 HEALTH, STATE DEPARTMENT OF PUBLIC. Family planning services, persons eligible for .............. 71-177 Medicaid, responsibility as to claims not delegated .......... 71-86 Psychiatrists of, not to serve as consultants to Board of
Corrections ...................................... 71-49 HIGHER EDUCATION ASSISTANCE AUTHORITY. Loans, educational, authority to make .................... 71-13 HIGHER EDUCATION ASSISTANCE CORPORATION. Depositories; state, notes as collateral for .................. 71-69 HIGHWAY AUTHORITY, STATE. Bonds, reconveyance of roads to counties when paid off ..... 71-176 Railroad overpasses, expenditure of funds for
reconstruction ................................... 71-125 Reconveyance of roads to counties when bonds paid off ..... 71-176 HIGHWAY DEPARTMENT, STATE. Abandoned vehicles, how removed from highways .......... 71-166 Airports, Jekyll Island State Park Authority, contract
with, as to ....................................... 71-195 Easements-
Placing improvements upon private property ............ 71-165 Rights over ......................................... 71-75 Federal lawConflicting with state law, effect ...................... 71-164

INDEX

391

OP. No. HIGHWAY DEPARTMENT, STATE-Continued Federal law-Continued
Implementation of, in absence of Georgia statutory authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-27, 71-31
Improvements upon private property, placing ............. 71-165 Matching funds, off-system road, not authorized for ......... 71-85 Off-system roads, funds for, not authorized ................ 71-85 Outdoor advertising signs--
Disposal of ......................................... 71-24 Issuance of permits ........................... ...... 71-150 Railroad overpasses, expenditures for reconstruction ....... 71-125 Slope easementsControl of ......................................... 71-75 Placing wall on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-165 TOPICS, funds for, not authorized ....................... 71-85 Uniform Relocation Assistance and Real Property Acquisition
Policy Act, not complied with, where in conflict with state law ........................................ 71-164 HIGHWAYS. Abandoned vehicles, removal ........................... 71-166 Abutting owners, access to lands ......................... 71-88 Damage to off-system roads by hauling operations, liabilities ......................................... 71-70 Federal liability for damage to off-system roads ............ 71-70 Funds, railroad overpasses, expenditures for repairs ........ 71-125 Municipal corporations, regulation of traffic by ............ U71-3 Pecans falling upon rights-of-way ...................... U71-41 Reconveyance to counties by Highway Authority when bonds paid off ......................................... 71-176 HOME RULE. See Municipal Home Rule Act. HOMESTEAD EXEMPTIONS. Augusta- Richmond County, effect of creation upon ....... U71-62 Bonded indebtedness, exception as to ..................... U71-6 Disabled veterans, eligibility ........................... U71-22 Jointly owned property .............................. U71-138 Persons over 65 years of ageMunicipal taxes, exemption not applicable to ........... U71-98 Pension payments as income ......................... U71-53 Requirements for .................................. U71-19 Retirement payments as income ...................... U71-53 School taxes, exceptions as to ........................... U71-6 Veterans, disabled, for ................................ U71-22

392

INDEX

OP. No. HONESTY IN GOVERNME~T. Employment, psychiatrists of State Health Department not to
serve as consultants to Board of Corrections ........... 71-49 Municipal officer selling services to his political subdivision .. U71-l Officers, public, see Officers and Employees, Public. Part-time consultants selling services to state ............... 71-11 HOSPITAL AUTHORITIES. Federal property, surplus, acquisition of .................... 71-8 Leasing of property ................................... 71-190 Office building, erection unauthorized .................... 71-190 Unemployment compensation for employees ............... 71-55 HOSPITALS, PUBLIC. Unemployment compensation for employees ............... 71-35 HOUSEHOLD GOODS. Exemption from taxation ............................. U71-51 HUNTING. See Game and Fish. INCOME TAX. Illegal payments, taxability of ......................... U71-16 Returns, secrecy, preservation of ........................ 71-184 INDICTMENT. Sentence based upon multiple-count ...................... 71-95 INSURANCE. Annuities, taxation of .................................. 71-91 Annuity contracts, necessity for complying with reserve
requirements before issuing . . . . . . . . . . . . . . . . . . . . . . . . 71-175 Athletes, school funds not used to purchase for ............. 71-12 Banks acting as insurance agents ........................ 71-162 Liability, purchased by state agency, when ................ 71-154 Physicians, when osteopaths and podiatrists considered
as ............................................. 71-133 State employees, requirements to qualify .................. 71-63 INSURANCE COMMISSIONER. Names of companies regulated .......................... 71-197 INSURANCE COMPANIES. Banks acting as agents ................................ 71-162 Certificate of authority, necessity for ..................... 71-142 Deposits, statutory, common stocks as ................... 71-170 Investments-
Common stocks, in ................................. 71-170 Puerto Rico corporation, stock of, not authorized ......... 71-50

INDEX

393

OP. No.
INSURANCE COMPANIES-Continued Religious organizations not authorized to act as, without
certificate of authority ............................ 71-142 Taxation, deduction from state taxes of license fees and taxes
paid municipalities ............................... 71-200 Trade names, adopted ................................. 71-197 INTANGIBLE TAXES. Bonds, promissory thrift notes, as ....................... 71-192 Promissory thrift notes, of ............................. 71-192 Restricted stock, evaluation of ......................... U71-79 INTEREST. Taxes, past due, upon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-91 Teachers Retirement System, payment upon purchase of
out-of-state service credits ........................ U71-142 INTER-GOVERNMENTAL PERSONNEL ACT. Merit System, State, as administering agency ............. 71-186 INTERROGATORIES. Records, status as ................................... U71-93 INTERSTATE COMMERCE. Safety rules applied to vehicles in, by Public Service
Commission ..................................... 71-118 INTOXICATING LIQUOR. County, regulation by, to exclusion of municipality ......... U71-8 Elections, petition, officer with whom filed .............. U71-145 Licensing-
County, by, to exclusion of municipality ................ U71-8 Liquor store licenses, authority to issue ................ U71-31 MunicipalityExclusion of, as to licensing .......................... U71-8 Restrictions upon, as to taxing ....................... U71-69 Statute, population bracket, as affecting general law
as to referendums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-145 INVESTIGATION, GEORGIA BUREAU OF. Longevity pay, salary increases as affecting ................ 71-96 INVESTMENT CONTRACTS. Securities, when constituting .......................... U71-118 INVESTMENTS. Fiduciaries, by ................... , .................... 71-20 Insurers, by .......................................... 71-50 JAILERS. Peace Officers Standards and Training Act, when
appliedto ..................................... U71~128

394

INDEX

OP. No.
JEKYLL ISLAND STATE PARK AUTHORITY. Airport, contract with State Highway Department as to
improvement .................................... 71-195 Powers of ........................................... 71-195 JESUP STATE FARMERS MARKET. Exchange of property, for ............................. U71-17 JOINT RESOLUTIONS. Law, effect as ......................................... 71-39 JUNIOR COLLEGE ACT OF 1958. Georgia Military College, status of ..................... U7l-28 JUSTICE COURTS. Augusta, jurisdictions partially within and partially without,
not abolished ..................................... 71-80 State courts not to interfere with constables in
executing process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U7l-l44 JUSTICES OF THE PEACE. Fees-
Fines and forfeiture fund, from ............... U7l-25, U7l-42 Traffic cases, in ................................... U7l-50 Residence requirements ................................. U71-7 JUVENILE OFFENDERS. Board of Corrections, commitment to ............ 71-159, U7l-66 Regional detention centers, procedures established by State
Board for Children and Youth ...................... 71-161 LABOR. Child labor, newspapers, sale or delivery by children under
14 .............................................. 71-15 LABOR, COMMISSIONER OF. Talent agencies, jurisdiction over ......................... 71-28 LANDLORD AND TENANT. Utility services, not regulated by Public Service
Commission ...................................... 71-81 LAURENS COUNTY. Health board funds, disposal ......................... U71-120 LAW DEPARTMENT, STATE. Stone Mountain Memorial Association, payment by of
monthly fee ..................................... 71-143 LAW LIBRARIES. Cases upon which costs imposed ....................... U71-125 Courts from which funds are derived ................... U71-119

INDEX

395

OP. No.
LEASES. Hospital authorities, by ............................... 71-190 LEGAL SERVICES, INC., GEORGIA. See Georgia Legal Services, Inc. LEGISLATIVE DISTRICTS. Variance not permitted in population .................... U71-74 LIBRARIAN, STATE. Reports of Appellate Courts, furnishing to counties ......... 71-32 LICENSES. Contractors, of, where engaged in state-owned
buildings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71- 140 Drivers, see Drivers Licenses. Employment agencies, corporate name, effect of issuing in .... 71-52 Liquor store licenses, authority to issue .................. U7l-31 Marriage, issuance of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-33
Municipal, firms, where members are licensees ............ U71-20 Real property, in, becoming easement, when .............. 71-165 Used car dealers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-163 LITTER CONTROL LAW. Wildlife rangers, enforcement by ......................... 71-37 LOANS. Commodity, not regulated except by statute ................ 71-83 Higher Education Assistance Authority, authority
to make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-13 MALT BEVERAGES. Cooperative associations not authorized to sell ............ U71-68 Marketing cooperatives not authorized to sell ............. U71-68 Municipalities, regulation by .......................... U71-26 MANDAMUS. Remedy, when proper, as ............................. U71-94 MARKETING ASSOCIATIONS. Malt beverages, cooperatives not authorized to sell ........ U71-68 MARKETS, GEORGIA BUILDING AUTHORITY. See Farmers Markets. MARRIAGE. Age of parties .......................................... 71-3 Ceremony, performance of ...................... U71-5, U71-33 License, issuance of .................................. U71-33 Ordinaries, acceptance of gratuities for performing ......... U71-5

396

INDEX

OP. No. MARSHLANDS. See Coastal Marshlands Protection Act of 1970; Coastal
Marshlands Protection Agency. "Mean tide level," definition of term .................... U71-32 MASS GATH ERIN G LAW. Application of ....................................... 71-123 MEASURES. See Weights and Measures. MEDICAID. Claims, Department of Public Health may not delegate
.responsibility for allowing .......................... 71-86 Health, State Board of, authority to limit time for claims .... 71-153 Podiatrists, payments for services of, included in program ... 71-199 Reduction in benefits, legality of ........................ U71-97 Sales tax collected upon drugs dispensed under ............ 71-145 Time within which claims to be presented ................. 71-153 MEDICAL SCHOLARSHIPS. Proration for excelerated program ....................... 71-129 MENTAL ILLNESS. Hospitalization procedures ............................. 71-131 Incompetents, sterilization of, right to counsel ............ U71-29 MERIT SYSTEM. STATE. Adjutant General, assistants not covered .................. 71-71 Classification plan ..................................... 71-98 Classified service-
Continued where officer under system prior to 1971 Act ... 71-187 What constitutes ................................... 71-187 Compensation plan .................................... 71-98 Employees Retirement System, correlations between
systems .......................................... 71-21 Federal Inter-governmental Personnel Act,
administering agency, under ........................ 71-186 Forestry Commission, Director, status of, with respect
to ............................................. 71-137 Leave, annual, transfer of employee, effect ........... 71-30,71-33 Transferring employee, payment of accumulated annual
leave ............................................ 71-30 MILITARY SERVICE. Peace Officers Standards and Training Act, rights of persons
returning from, under ............................. 71-152

INDEX

397

OP. No. MINES, MINING, AND GEOLOGY, STATE
DEPARTMENT OF. Employee, attachment of "prejudice" to records ............ 71-62 Surface Mined Land Use Board, status of ................. 71-62 MINIMUM FOUNDATION PROGRAM. Continuous school year, financing ........................ 71-87 MINISTERS OF THE GOSPEL. Marriages, performance, by ........................... U71-33 MINORS. Age of .............................................. 71-177 Crime, capacity to commit ........................... U71-126 Delinquent, see Juvenile Offenders. Family and planning services, eligibility to receive .......... 71-177 Residence for voting purposes, establishment by ........... 71-151 MISDEMEANORS. Peace officer, effect of conviction upon capacity to serve
as ............................................. 71-191 Records of, destruction by State Board of Pardons and
Paroles ......................................... 71-196 MOBILE HOMES. Taxation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-52 MOTOR FUEL. Taxation, incidents of ................................. 71-134 MOTOR VEHICLES. Abandoned, removal from state highways ................ 71-166 Inspection-
Dealers in new and used cars, necessity for making inspection ...................................... 71-22
Farm-commodity vehicles, fee for inspecting ............ 71-111 Interstate commerce, application of safety rules to vehicles,
in .............................................. 71-118 License tags-
Decal showing county, obligation of drivers to attach .... U71-21 Mail, mandatory fee where purchased by ............... U71-72 Overlength, permit not granted where readily dismantled
or separated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-172 Permits, overlength, not granted where vehicle readily
dismantled or separated ........................... 71-172 Races, is not within purview of Mass Gathering Law ........ 71-123 MUNICIPAL CORPORATIONS. Airports, authority to build and maintain ................ U71-12

398

INDEX

OP. No. MUNICIPAL CORPORATIONS-Continued County-city governments, general discussion .............. 71-169 Credit unions, deposit of funds in ...................... U71-115 Elections-
Absentee ballots ................................... 71-110 City-wide, conduct on basis .......................... U71-23 Name on ballot, placing where no nomination petition
provided for ................................... 71-185 Nomination of candidates ........................... 71-185 One-man, one-vote requirement ............... U71-23, U71-27 Primaries, expenses of holding ....................... U71-95 Registration list, effect of maintaing ................. U71-133 Registration of voters, not required to register
with county .................................. U71-133 Time of holding must be according to law .............. U71-80 Ward-by-ward basis ............................... U71-23 Form of government, how changed .................... U71-l09 Funds, deposit in credit unions ........................ U71-115 Gas facilities, taxability of .............................. 71-46 Government, how form changed ....................... U71-l09 Home Rule Act, see Municipal Home Rule Act. Illegal payments to employees, income tax ............... U71-16 Insurance companies, deductibility of fees paid municipalities
from state premium liability ........................ 71-200 Intoxicating liquor-
Authority to regulate sale ............................ U71-8 Taxation of dealers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-69 Licenses, contractors engaged in state-owned buildings ...... 71-140 Malt beverages, regulation of .......................... U71-26 Professional licenses, where licensees are members of
firms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-20 State, as not bound by ordinances or regulations ........... 71-113 State grants to-
Census report, effective ............................... 71-17 Certificate, failure to file in time ....................... 71-19 Joint resolution, effect as to authorizing ................. 71-39 TaxationInterest upon passed due ............................ U71-91 Intoxicating liquors, restriction upon taxation of ........ U71-69 TrafficState highways, regulation upon ....................... U71-3 Violations, jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-l03

INDEX

399

MU~ICIPAL CORPORATIONS-Continued

OP. No.

Urban renewal governed by Relocation Assistance Act .... U71-134

Zoning, subdiv.ision, definition of ....................... U71-14

MUNICIPAL HOME RULE ACT.

Columbus, city-county of, application to ................ U7l-136

Courts, authority to regulate, under ..................... U71-30

Form of Government, changing ....................... U71-109

Powers, generally ................................... U71-115

MUSCOGEE COUNTY-CITY OF COLUMBUS.

See Columbus-Muscogee County.

NARCOTICS.

Interns, prescribing ................................... 71-157

Penalties for illegal sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-76

Resident, prescribing .................................. 71-157

NEWSPAPERS.

Children under 14 years of age. sale or delivery ............. 71-15

NONPROFIT CORPORATIONS.

See Corporations.

Sales and use taxes, not exempt from ................... U71-143

NORMAL SCHOOLS.

Regulation by State Board of Education ................. U71-24

NORTH GEORGIA COLLEGE.

Trust, construction of instrument donating funds to ........ 71-146

OATHS.

Deputy sheriffs, where taken ........................... U71-84

Peace officers, of .................................... U7l-13

OFFICERS AND EMPLOYEES, PUBLIC.

Age discrimination in hiring prohibited ................. U71-l02

Bailiffs, duties of ....................................... 71-7

Compelling compliance with duty . . . . . . . . . . . . . . . . . . . . . . U71-94

Compensation-

Deputy clerk of superior court ...................... U71-111

State commission on-

Coverage by ................................... U71-104

Powers of ..................................... 71-173.1 Wage freeze, effect ................................ U7l-114

Conflict of interest, see Sales; Simultaneous employment, infra.

Constables, duties of .................................... 71-7

Deputy sheriffs, duties of ................................ 71-7

Employees Retirement System, see Employees

Retirement System.

"Full-time," member of General Assembly, as not ......... 71-116

400

INDEX

OP. No. OFFICERS AND EMPLOYEES, PUBLIC-Continued Health insurance-
Compensation, requirements as to ...................... 71-63 Full-time, necessity for employees to be ................. 71-63 Honesty in government, see Sales; Simultaneous
employment, infra. Illegal payments to, income tax liability ................. U71-16 Leave, annual-
Assistant Adjutants General .......................... 71-71 Transfer, effect ................................ 71-30,71-33 Liability, personal, for illegal payments ................... 71-12 Mandamus to compel compliance with duty .............. 071-94 Payroll deductions, when authorized ..................... 71-141 Ports Authority, membership upon, as not constituting
civil office ........................................ 71-18
President's wage freeze, effect upon compensation ........................... 71-193,071-114
SalesMunicipal officer selling services to his political subdivision .................................... 071-l Political subdivision, state employee selling to ........... 71-124
Simultaneous employmentAir transportation board member employed as pilot ...... 71-174 Attorney representing local board of education as member of State Board ........................ 071-124 City building inspector and county voter registrar ....... 071-86 City commission memberDraft board, serving on .......................... 071-107 Planning and zoning board, serving on ............. U71-1 07 Department of Corrections, Director, employed by Georgia Building Authority (Penal) ....................... 71-10 l Park ranger prohibited from serving as special deputy sheriff ......................................... 71-34 Part-time consultants, selling services to state ............ 71-11 Psychiatrists of State Health Department not to act as consultants to Board of Corrections ................ 71-49 Special legislative enactment, effect of ................. 071-34
Suggestions program for classified employees ............. 71-183 Wage-price freeze, effect upon salaries ........... 71-193, 071-114 Workmen's compensation, employer, nor employee, official
as not ........................................... 71-29

INDEX

401

OP. No.

"ONE-MAN, ONE-VOTE."

County boards of education, principle

applied to ..................................... U71-14.1

OPEN RECORDS LAW.

.

Generally ........................................... U71-9

OPINIONS.

Courts, of, see Court of Appeals; Supreme Court.

OPTICIANS.

Safety requirements, when applicable to eyeglasses ......... 71-156

OPTOMETRISTS.

Professional corporations, for practice by, names

regulated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-180

Safety requirements, when applicable to eyeglasses ......... 71-156

OPTOMETRY, STATE BOARD OF.

Names of professional corporations, regulating ............ 71-180

ORDINANCES.

Statute covering same subject-matter, effect ............... 71-149

ORDINARIES.

Fees, traffic violation cases, in ........................ U71-135

Marriage ceremonies, gratuities for performing ............ U71-5

"No administration necessary," duty as to estate taxes ..... U71-58

Saturday, closing offices on . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-71

State court, court of, as not constituting ................ U71-119

Traffic violations-

Fees ............................................ U71-135

Jurisdiction ...................................... U71-103

Weights and measures, not concerned with supervision ..... U71-47

OSTEOPATHS.

Physicians, when considered as ......................... 71-133

OUTDOOR ADVERTISING SIGNS.

Permits for signs, issuance by State Highway

Department . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-150

State Highway Department, disposal of, by ................ 71-24

PARDONS AND PAROLES.

Financial benefits, when prisoner entitled to upon

leaving institution ................................ 71-179

History and background ................................ 71-97

Incarcerated, necessity that one be in order to secure

parole ........................................... 71-97

Medical expenses of parolee injured in escape attempt,

liability for ...................................... 71-120

402

INDEX

OP. No. PARDONS AND PAROLES-Continued Pardons, specifically-
Civil disabilities, effect upon ......................... U71-l0 Weapons, effect upon disabilities as to carrying ......... U71-l0 PARDONS AND PAROLES, STATE BOARD OF. History .............................................. 71-97 Medical expenses of parolee injured in escape attempt,
liability for ...................................... 71-120 Records, misdemeanor cases, destruction of ............... 71-196 PARK RANGERS.
Special deputy sheriffs, prohibited from serving as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-34
PARKING. Municipal corporations, attempts to regulate upon
state highway .................................... U71-3 PARKS DEPARTMENT, STATE. Liability insurance, when purchased by ................... 71-154 Peace officers, status of employees, as .................... 71-155 PARKS, STATE. Traffic regulation by park rangers ....................... U71-2 PATROL, GEORGIA STATE. Noncommissioned officers, number of ................... 71-106 PAUPERS. Burial by county .................................... U71-129 PEACE OFFICERS. Civil defense auxiliary police, as not ..................... U71-59 Misdemeanor conviction, effect as to eligibility ............ 71-191 Oath of office ....................................... U71-13 Parks Department employees, status ..................... 71-155 Retirement, see Peace Officers Annuity and Benefit Fund. University system policemen, not regarded as ............. U71-43 Witness fees and expenses ............................. U71-57 PEACE OFFICERS ANNUITY AND BENEFIT FUND. Parks Department employees, status of ................... 71-155 PEACE OFFICERS STANDARDS AND TRAINING ACT. Civil defense auxiliary police, not covered ................ U71-59 Deputy sheriffs-
Jailers, acting as, applied to ........................ U71-128 Municipal court of Savannah, of, inclusion ............. U71-49 Employment requirements for coverage .......... U71-43, U71-49 Jailers, when applied to .............................. U71-128 Military service, rights of persons returning from .......... 71-152

INDEX

403

OP. No. PEACE OFFICERS STANDARDS AND TRAINING
ACT-Continued Misdemeanor conviction, effect upon eligibility of
applicant officers ................................. 71-191 Sheriffs and candidates for sheriff not affect by .......... U71-110 University of Georgia campus policemen not
covered by ...................................... U71-43 PECANS. Highway right-of-way falling upon ..................... U71-41 PENSIONS. Workmen's compensation, effect of, upon ................ 71-136 PERSONNEL BOARD, STATE. Suggestions program for classified employees ............. 71-183 PHARMACISTS. Assistance by unregistered persons . . . . . . . . . . . . . . . . . . . . . . . U71-4 Medicaid, sales tax upon drugs dispensed under ............ 71-145 PHYSICIANS. Interns prescribing narcotics . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-157 Osteopaths, when considered, as ........................ 71-133 Podiatrists, when considered, as ......................... 71-133 PISTOLS. Pardons, effect upon disabilities as to carrying ............ U71-10
PLANNING AND COMMUNITY AFFAIRS, BUREAU OF STATE.
Grants under Federal Housing Act, acceptance of ........... 71-78 PODIATRISTS. Anesthetics, local, limited to use of ........................ 71-4 Definition ........................................... 71-199 Medicaid, payments to, included in program .............. 71-199 Physicians, when considered, as ......................... 71-133 POLICEMEN. Firemen, utilized as, effect upon eligibility for retirement .... U71-15 Oath .............................................. U71-13 PORTS AUTHORITY, GEORGIA. Membership on, as not constituting public office ............ 71-18 PRESCRIPTION. Adjoining landowners, title by ......................... U71-18 PRESCRIPTIONS. Eyeglasses, when safety requirements applicable to,
issued upon ..................................... 71-156 PRESIDENT OF THE UNITED STATES. Price and wage freeze, effect upon
state employees .......................... 71-193, U71-114

404

INDEX

OP. No. PRISON INDUSTRIES ADMINISTRATION, GEORGIA. Tax exempt status of property .......................... 71-202 PRISONS AND PRISONERS. Concurrent sentences, federal and state, custody where
servtng ........................................... 71-2 Corrections, Board of-
Custody, by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-89 Transferred to ...................................... 71-82 Death sentence, custody of prisoner under ................ 71-188 Escape from detention center, effect .................... U71-ll3 Financial benefits, when prisoner entitled to, upon leaving
institution ....................................... 71-179 Habeas corpus proceedings, transfer by Board of
Corrections, pending .............................. 71-160 Medical expenses of parolee injured in escape.
liability for ...................................... 71-120 Parole, necessity that one be incarcerated in order
to obtain ......................................... 71-97 Photographs of persons under death sentence,
publication ...................................... 71-173 Privacy, right of, as to prisoners ........................ 71-17 3 Probation, see Probation. Restitution to injured person, probation on
condition of ..................................... 71-182 PRIVACY, RIGHT OF. Prisoners under death sentence, publication of
photographs ..................................... 71-173 PRIVILEGED COMMUNICATIONS. Income tax returns ................................... 71-184 PROBATION. County system terminated, functions of State Board ...... U71-123 First Offender Act, under, effect ........................ U71-87 Guilty plea under "First Offender Act," effect of .......... U71-87 Restitution, condition of making ........................ 71-182 Sentence, construction, where to be served partially upon ..... 71-48 Supervision, commences when ........................... 71-48 Suspended sentence distinguished . . . . . . . . . . . . . . . . . . . . . . . . 71-48
ravel, foreign, how permission for, obtained by probationer ..................................... U71-83
PROBATION, STATE BOARD OF. County system ceasing to function, procedure, by ......... U71-123

INDEX

405

OP. No. PROBATION, STATE BOARD OF-Continued Funds paid in for restitution, disposal of .................. 71-182 PROCESSIONING. County surveyor, fees of .............................. U71-45 PROFESSIONAL CORPORATIONS. Optometry, for practice of, names regulated ............... 71-180 PROPERTIES CONTROL COMMISSION, STATE. Treasurer, State, voting at meetings, by .................. 71-105 PROPERTY. Abutting owner, access to highways ...................... 71-88 Pecans, as .......................................... U71-41 Public, taxation, exemption as to ........................ 71-202 State-
Adjoining landowners, rights of ...................... U71-18 Aircraft, claim for immunity from federal tax ............ 71-90 Exchange of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-17 Highway Department placing wall upon slope
easement ...................................... 71-165
PUBLIC RECORDS. See Records. PUBLIC SCHOOL EMPLOYEES RETIREMENT SYSTEM. Benefits added by statute, persons entitled to ............... 71-73 Para-professionals, eligibility for membership ............. 71-189 Teacher aides, eligibility for membership ................. 71-189 PUBLIC SERVICE COMMISSION. Interstate commerce, application of safety rules to
vehicles in ....................................... 71-118 Resale of services, no jurisdiction over .................... 71-81 Telephone company, revocation of certificate of convenience
and necessity for nonuse ........................... 71-144 PUBLIC UTILITIES. See Utilities, Public. PUERTO RICO. Corporations, stock of, not authorized as insurance
investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-50 PURCHASES, SUPERVISOR OF. General Services Administration, establishment as source
ofsupply ........................................ 71-114 QUORUM. What constitutes, generally ............................ U71-55

406

INDEX

OP. No. RAILROADS. Overpasses, expenditure of highway funds for
reconstruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-125 RANDOLPH COUNTY. Deputy clerk of superior court, compensation ............ U71-111 REAL ESTATE. Adjoining landowners, rights of ........................ U71-18 Chattahoochee River, adjacent to, boundaries of
property ...................................... U71-139 Easements, how created . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-165 Jointly owned, homestead exemption ................... U71-138 License becoming easement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-165 Prescription, title by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-18 Real Properties Acquisition Act, see Relocation Assistance,
Etc., Act. Riparian rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-139 Securities, when purchase contract may constitute ........ U7l-118 State property-
Adjoining landowners .............................. U71-l8 Exchange of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-17 Stream, boundaries of land adjacent to ................. U7l-139 Tax valuation, effect of easements and zoning controls
upon ......................................... U71-l06 REAL ESTATE COMMISSION, GEORGIA. Blockbusting, duties as to .............................. 71-122 REAL ESTATE SALESMEN. Blockbusting, regulations as to ......................... 71-122 Corporate form, not authorized to practice in ............. U71-39 REAPPORTIONMENT. County commissioners, how accomplished .............. U71-l08 Variance between districts by population not authorized
by law ......................................... U71-74 RECORDS. Charge by custodian for copies ........................ U71-140 Counties, preservation by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-40 Destruction, when authorized ........................... 71-196 Evidence, status as, in court proceedings ................. U71-93 Inspection of ......................................... U71-9 Obsolete, storage by superior court clerks .................. 71-92 Open records law ..................................... U71-9

INDEX

407

OP. No. RECORDS-Continued Pardons and Paroles, State Board of, destruction of
misdemeanor records ............................. 71-196 Superior court clerks, storage of obsolete .................. 71-92 Superior court proceedings, what constitutes, in ........... U71-93 Treasurer, State, how kept .............................. 71-43 REFERENDUM ELECTIONS. Classification of voters by geographical districts .......... U71-48 Intoxicating liquor, see Intoxicating Liquor. RELIGIOUS ORGANIZATIONS. Insurance business, not authorized to conduct without
certificate of authority ............................ 71-142 RELOCATION ASSISTANCE, ETC., ACT. Highway Department, State, inability to comply when
state law conflicts ................................ 71-164 State law conflicting, effect ............................ 71-164 University system regents, compliance with ............. U71-131 Urban renewal, when governed by ..................... U71-134 REPORTS. Appellate court-
Contract for publishing .............................. 71-103 Furnishing to counties ................................ 71-32 RESIDENCE. Eighteen-year olds, establishment for voting purposes ....... 71-151 Justices of the peace, requirements for .................... U71-7 R ESTITUTI0 N. Probation of prisoner on conditions that he make .......... 71-182 RETIREMENT. Additional benefits, eligibility for ....................... U71-61 Appellate court judges, time of retirement ................ 71-203 Benefits, added by statute, persons entitled to ............... 71-73 Firemen utilized as policemen, eligibility ................. U71-15 Judges, waiver of emeritus benefits upon election of
another plan .................................... U71-82 Liberal construction of statutes ......................... 71-203 School employees, see Public School Employees Retirement
System; Teachers Retirement System. REVENUE COMMISSIONER, STATE. Secrecy of income tax returns, maintaining ............... 71-184 Valuation of property, duties as to ...................... U71-79 RIPARIAN RIGHTS. Chattahoochee, ownership of land adjacent to ........... U71-139

408

INDEX

ROADS, PUBLIC.

OP. No.

Reconveyance to county by Highway Authority when bonds

paid off ......................................... 71-176

RULES AND REGULATIONS.

Statute, confined to those authorized by ................... 71-83

What constitutes, under Administrative Procedure Act ...... 71-158

Withdrawal, where previously filed ....................... 71-58

SAFETY, DEPARTMENT OF PUBLIC.

Abandoned vehicles, removal from highways .............. 71-166

Drivers licenses not suspended except upon conviction in court

with jurisdiction ................................ U71-l03

Longevity pay, salary increases as affecting ................ 71-96

Noncommissioned officers in Georgia State Patrol,

creation of ...................................... 71-106

Records, inspection of ................................. U71-9

SALES AND USE TAXES.

Authorities, liability for payment ....................... 71-139

Basis for .......................................... U71-12l

Churches, purchases by, not exempt ..................... U71-67

Excise taxs, when included in price for computation ....... U71-121

Federal excise tax included in base ..................... U71-12l

Georgia Legal Services, Inc., required to pay ............ U71-112

Medicaid, collected upon drugs dispensed under ........... 71-145

Motor fuel, incidents of tax ............................ 71-134

Nonprofit corporations, when required to pay ........... U71-112

Nonprofit organizations, not exempt from .............. U71-143

Out-of-state, where property immediately shipped ......... U71-92

Sale, what constitutes ................................. 71-134

Seed Development Commission, Georgia, as subject to ....... 71-72

State instrumentalities, which are exempt ............... U71-112

Stone Mountain Memorial Association, liabilities

as to ..................................... 71-139,71-178

SATURDAYS.

Treasurer, State, opening of office on ................ 71-56, 71-61

SAVANNAH.

Airport, expenditure of appropriations, for ............... 71-171

Municipal court, see Savannah, Municipal Court of.

SAVANNAH, MUNICIPAL COURT OF.

Deputy sheriffs, inclusion within Peace Officers Standards

and Training Act ................................ U7l-49

INDEX

409

SCHOLARSHIP GRANTS.

OP. No.

Medical, for accelerated program ....................... 71-129

Public assistance employment, to students preparing for ..... 71-147

SCHOOL FUNDS.

See Schools, Public.

SCHOOLS, PUBLIC.

Continuous school year ................................. 71-87

Days of attendance .................................... 71-87

Employees, effect of w-p-rice freezr ~

compensation .................................... 71-193

Funds-

Athletic teams, extracurricular, expenditures for .......... 71-10

Insurance for athletes, not used for ..................... 71-12

Noneducational purposes, expenditures for,

held illegal ........................... 71-9,71-10,71-12

Paving, expenditures for ............................ U71-34

Transportation of independent city school system

pupils, use for .................................... 71-9

Retirement of personnel, see Public School Employees Retirement

System; Teachers Retirement System.

Additional benefits, persons entitled to .................. 71-73

SEARCHES AND SEIZURES.

Gamtilng devices, seizure of ............................ 71-167

SECRETARY OF STATE.

Rules and regulations, withdrawal by state agency ........... 71-58

Voters list, when filed with ........................... U71-127

SECURITIES.

Employees stock-option plans as exempt from law ......... 71-194

Investment contracts as constituting ................... U71-118 Put and call options~trading in, as not necessarily

gambling ....................................... 71-115

Real estate purchase contract, when constituting ......... U71-118

SEED DEVELOPMENT COMMISSION, GEORGIA.

Sales and use taxes, as subject to ......................... 71-72

SENTENCE AND PUNISHMENT.

Concurrent sentences, state and federal, custody of

prisoner serving .................................... 71-2

Death, custody of prisoner under ........................ 71-188

Drunken driving, how time between repeated offenses

computed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-146

Inconsistent statutory provisions, effect .................. U71-76

410

INDEX

OP. No. SENTENCE AND PUNISHMENT-Continued Multiple-count indictment, based upon .................... 71-95 Narcotics, illegal sale of .............................. U71-76 Probation, construction where served partially upon ......... 71-48
Suspended sentence, probation distinguished from ........... 71-48 SHERIFFS. Compensation .. : ................................... U71-79 Deputies, duties of, 71-7. See Deputy Sheriffs. Peace Officers Standards and Training Act, not
affected by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71- 110 Secretary, authority to employ ......................... U71-11 Special deputies, time of appointment ................... U71-13 SLOT MACHINES. Seizure of ........................................... 71-167 SOCIAL SECURITY. Assistant district attorneys, not authorized for ........... U71-141 Drivers' licenses, use of number upon ..................... 71-38 Family and Children Services, Fulton County Department
of, for employees .................................. 71-36 Family and Children Services, State Department of, how
considered for purposes of .......................... 71-44 SOLDIERS AND SAILORS CIVIL RELIEF ACT. Criminal procedure, not applicable to ................... U71-70 SOLICITORS GENERAL EMERITUS. Compensation not suspended during nonpublic
employment ...................................... 71-40 SPECTACLES. See Eyeglasses. STATE COURTS. Judges, constables not to be interfered with, by, in execution
of duties ...................................... U71-144 Ordinaries' courts, not constituting .................... U71-ll9 STATE OF GEORGIA. Boundaries ........................................ U71-139 Debts owed to, provisions for collecting ................... 71-53 Funds-
Disposal of where collected ........................... 71-126 State contributions not authorized ..................... 71-128 Grants to municipal corporations, see Municipal Corporations. Liabilitity insurance, when purchased by ................. 71-154 Ordinances and regulations, local, as not bound by ......... 71-113

INDEX

411

OP. No.
STATE OF GEORGIA-Continued Property, of, see Property. Supreme law, what constitutes ........................ U71-114 STATE PROPERTY. See Property. STATUTES. Conflicting, reconciliation ............................... 71-3 Construction-
Foreignjurisdiction, adopted from law, of ......... 71-31,71-184 l n pari materia ...................................... 71-98 Latest expression of legislative intent .... 71-157, U71-7 3, U71-90 Prospective, rather than retrospective . . . . . . . . . . . . . . . . U71-125 Specific provision given preference over unspecific ...... U71-122 Expressio unius est exclusio alterius ................ 71-50,71-157 Failure to comply with, by officer, effect ................. U71-94 FederalConflicting with state, effect .......................... 71-164 Precedence over state, takes, when ................... U71-114 Uniform Relocation Assistance and Real Property
Acquisition Policy Act, see Relocation Assistance, Etc., Act. Foreign statutes, adoption by specific reference ............. 71-31 Joint resolutions, effect of ............................... 71-39 Ordinances covering same subject-matterConstitutional amendment permitting ................. 71-201 Effect ............................................ 71-149 Population bracket, when general law affected by ......... U71-145 Prospective construction ............................. U7l-l25 Reconciliation of conflicts ............................... 71-3
RepealEffect of .......................................... 71-131 Implication, by ..................................... 71-16
Special, where general existingContemplated by original statute, when ................ U71-34 General rule ................................ U71-8, U71-31
Specific reference, adoption by ........................... 71-31
STERILIZATION. Mental incompetents, right to counsel upon .............. U71-29 STOCK-OPTION PLANS. Employee, exempt from security law ..................... 71-194 STONE MOUNTAIN MEMORIAL ASSOCIATION. Law Department, State, payment of monthly fee to ......... 71-143 Sales and use taxes, liability as to payment ......... 71-139,71-178

412

INDEX

OP. No. STONE MOUNTAIN MEMORIAL ASSOCIATION-Cont'd State agency, as not ................................... 71-121 SUBDIVISION. Definition of, as to zoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-14 SUPERIOR COURT CLERKS. Deposit of costs in civil cases . . . . . . . . . . . . . . . . . . . U71-63, U71-90 Deputies, compensation, how fixed .................... U71-111 Dismissal of case, procedure upon ...................... U71-93 Fees-
Advance costs in civil cases ................... U71-63, U71-90 Civil proceedings, for filing papers .................... U71-93 Executions, filing of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-16 Filing ............................... 71-16, U71-75, U71-88 Indexing, for ................................ 71-16, U71-75 Statute controlling . . . . . . . . . . . . . . . . . . . . . . . . . U71-73, U71-75 Indexing, fees for .............................. 71-16, U71-75 Interrogatories, functions as to ......................... U71-93 RecordsCivil cases, what constitute, in ....................... U71-93 Obsolete, storage of .................................. 71-92 Retirement, see Superior Court Clerks Retirement Fund. Saturdays, closing offices on ........................... U71-71 SUPERIOR COURT CLERKS RETIREMENT FUND. Additional benefits, eligibility for ....................... U71-61 Death benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-l04 Disability retirement, requirements for ................. U71-122 Eligibility for retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-l04 SUPERIOR COURT JUDGES RETIREMENT FUND. Widow's benefit contributions, not withdrawable ........... 71-84
Withdrawal of contributionsGenerally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-77 Widow's benefit contributions not refunded .............. 71-84
SUPERIOR COURTS. Clerks, see Superior Court Clerks. Deposit of costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-63 Funds, draft of warrant on district attorneys' operating
account for needs of judges ......................... 71-117 Judges-
Compensation, authority of State Commission on Compensation ............................... 71-173.1
Secretaries for, procedure for recommending .......... 71-173.1 Judges emeritus-
Disability benefits, age to receive ...................... 71-107

INDEX

413

SUPERIOR COURTS-Continued

OP. No.

Judges emeritus-Continued

Waiver of emeritus status upon acceptance of other

retirement benefits ............................. U71-82

Judicial circuits, splitting by General Assembly .......... U71-107

Retirement of Judges, see Judges emeritus, supra. See also

Superior Court Judges Retirement Fund.

SUPERVISOR OF PURCHASES.

General Services Administration-

Contract with, as to operation of store ................. 71-181

Establishment as source of supply ..................... 71-114

SUPREME COURT.

Fiscal officers, appointment ............................ 71-100

Justices-

Compensation, how paid ............................. 71-59

Retirement benefits ................................. 71-203

Opinions, see Reports, infra.

Reports-

Furnishing to counties ................................ 71-32

Publishing contract as invalid ........................ 71-103

Reporter, court, as proper budget unit .................. 71-103

SUPREME LAW.

State, of, what constitutes ............................ U71-ll4

SURFACE MINED LAND USE BOARD.

Status of, as relating to Department of Mines,

Mining, and Geology .............................. 71-62

Uniforms for employees not purchased with state funds ..... 71-148

SURVEYORS, COUNTY.

Processioning, fees in ................................. U71-45

SWIMMING POOLS.

Nonprofit corporations, operation by, as not constituting

public charity ................................... U71-46

TALENT AGENCIES.

Employment agencies, considered as ...................... 71-28

TAX ASSESSORS.

Quorum of board .................................... U71-55

TAX COMMISSIONERS.

Motor vehicle license tags, fee where purchased

by mail ........................................ U71-72

TAX EQUALIZERS.

Quorum ofboard .................................... U71-55

TAXATION.

Annuities, of ......................................... 71-91

414

INDEX

TAXATION -Continued

OP. No.

Confidential information, preserving ..................... 71-184

Debts, when taxes constitute ........................... U71-58

Distribution of funds collected by county ................. U7l-85

Equalizers, quorum of board .......................... U71-55

Estate taxes, where "no administration necessary," duty of

ordinary ....................................... U71-58

Exemptions from-

Constitutional provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-98

Homestead, see Homestead Exemptions.

Household goods ........................... U71-5l, U7l-98

Public property, as to ............................... 71-202

Suspension of taxes by Governor, as not

constituting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-23

Swimming pool operated by nonprofit corporation

not exempt ................................... U7l-46

Federal, on state-owned aircraft, claim for immunity ........ 71-90

Fire protection, for, by county ....................... U7l-l00

Gas facilities of municipal corporations ................... 71-46

Homestead exemption, see Homestead Exemptions.

Income, see Income Tax.

Installment payments, when authorized .................. U7l-35

Insurance companies, deductibility of fees paid municipalities

from state premium tax liability ..................... 71-200

Interest upon past due taxes ........................... U7l-9l

Mobile homes ....................................... U7l-52

Motor fuel tax, distributor's delivery to dealer as sale ....... 71-134

Municipal corporations, see Municipal Corporations.

Muscogee County-City of Columbus, by ................. U7l-35

Public property, exemption as to ........................ 71-202

Sales, see Sales and Use Taxes.

Suspension of by Governor, as not constituting exemption .... 71-23

Trailers ............................................ U7l-52

Utilities, city-owned ................................... 71-46

TEACHERS.

Scholarship funds, disposal of delinquent where

collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-126

TEACHERS RETIREMENT SYSTEM.

See Public School Employees Retirement System.

Contributions, delinquent, recovery of ..................... 71-l

INDEX

415

TEACHERS RETIREMENT SYSTEM-Continued

OP. No.

Ineligible school employees, see Public School Employees

Retirement System.

Interest upon purchase of out-of-state's service

credits ........................................ U71-142

Out-of-state service credit, interest upon purchase ........ U71-142

TELEPHONE COMPANIES.

Revocation of certificate of convenience and the

necessity for nonuse ............................... 71-144

TOLL BRIDGES.

Collection of tolls to cease upon retirement of revenue

obligations ...................................... 71-109

TOPICS.

Highway funds not authorized for ........................ 71-85

TRADE NAMES.

Insurance companies, of ............................... 71-197

TRAFFIC CONTROL.

Abandoned vehicles, removal from highways .............. 71-166

Drivers licenses, jurisdiction of county police ............ U71-116

Parking, regulation by municipal corporations on state

highways ........................................ U71-3

Parks, state, regulation within .......................... U71-2

Roadblock set up by county police to check drivers

licenses ....................................... U71-116

Violations-

Jurisdiction of recorders' courts . . . . . . . . . . . . . . . . . . . . . U71-103

Justices of the peace, fees ............................ U71-50

Ordinaries, fees of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-135

Recorders' courts, jurisdiction of .................... U71-103

TREASURER, STATE.

Appellate Court Justices and Judges, payment of

compensation ..................................... 71-59

Cashier's office, maintaining ............................ 71-60

Depositories, state-

Certificates of deposit, purchase and sale ................ 71-79

Collateral, requirements as to .................... 71-64,71-65

Deposit of collateral with ............................. 71-64

Depository Board, State, voting at meetings, of ............ 71-105

Payroll checks, cashing ................................. 71-60

Properties Control Commission, State, voting at

meetings, of ..................................... 71-105

Records, manner of keeping ............................. 71-43

416

INDEX

OP. No. TREASURER, STATE-Continued
Reports, quarterly, filing of ............................. 71-57 Saturdays, opening office on ....................... 71-56, 71-61 Superior court funds, warrant on district attorneys' operating
account for needs of judges ......................... 71-117 Time deposits, negotiation of certificates ................... 71-79 Teachers scholarship payments, disposal of ................ 71-126 Working days for office ........................... 71-56,71-61 TRUSTS. Construction of instruments ............................ 71-146 UNEMPLOYMENT COMPENSATIO!\;. Higher learning, for employees of institutions .............. 71-35 Hospital authorities, local, coverage of employees ........... 71-55 Hospitals, public, for employees of ....................... 71-35 UNIFORM RELOCATION ASSISTA:\'CE AND REAL
PROPERTIES ACQUISITION ACT. See Relocation Assistance, Etc., Act. UNIFORMS. Surface Mined Land Use Board, not purchased by
for employees .................................... 71-148 UNITED STATE5s. See Federal Government. Federal constitutional convention, agenda not restricted .... U71-38 UNIVERSITY SYSTEM OF GEORGIA. Housing of students, discrimination in favor of fraternities
as illegal ......................................... 71-93 Policemen, campus, not certified as peace officers ......... U71-43 Political meetings, use of campuses for .................. U71-36 Regents-
Federal statutes, power to comply with ............... U71-131 Investments, by, authorized ........................... 71-20 Powers of ....................................... U71-131 Relocation Assistance Act, compliance with ............. U71-131 Trusts, construction of instrument conveying funds to
branches ........................................ 71-146 URBAN RENEWAL. Relocation Assistance Act, governed by ................ U71-134 USED CAR DEALERS. Inspection certificate, responsibility to attach .............. 71-22 Licensing procedure .................................. 71-163 UTILITIES, PUBLIC.
Municipal, taxability of city-owned gas facilities ............ 71-46

INDEX

417

UTILITIES, PUBLIC-continued

OP. No.

Telephone company, revocation of certificate of convenience and

necessity for nonuse ............................... 71-144

VETERANS.

Homestead exemption, for, qualifications ................ U71-22

Widows, not entitled to honorary hunting and fishing

licenses ......................................... 71-127

VITAL STATISTICS.

Death certiicates, who may sign ........................ U71-60

Racial designations on birth certificates, validity of ......... 71-135

WAGE-PRICE FREEZE.

School employees, public, effect upon .................... 71-193

WATER.

Property adjacent to water courses, boundaries .......... U71-l39

WATER QUALITY CONTROL.

Grants, application of ................................ U71-65

WEAPONS.

Pardons, effect upon disabilities as to carrying ............ U71-l 0

WEIGHTS AND MEASURES.

Agriculture, State Department of, supervision ............ U71-47

WILDLIFE RANGERS.

Litter Control Law, enforcement ......................... 71-37

WITNESSES.

Fees, peace officers, of ................................ U71-57

WORDS AND PHRASES.

Annuity contracts .................................... 71-175

Call options ......................................... 71-115.

Census .............................................. 71-17

Classified service under Merit System .................... 71-187

Conviction of crime .................................. 071-87

Domicile ............................................ 71-151

Educational institution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-124

Mean tide level ...................................... 071-32

Normal school ...................................... 071-24

Peace officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 071-43

Physician ........................................... 71-157

Podiatry ............................................ 71- 199

Promissory thrift notes ................................ 71- 192 Put options .......................................... 71-115

Residence ........................................... 71-151

Rule ............................................... 71-158

Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U71-118

418

INDEX

WORDS AND PHRASES-Continued

OP. No.

State agency ......................................... 71-121

State court ........................................ U71-ll9

Subdivision, as to zoning .............................. U7l-l4

Time deposits ......................................... 71-79

WORKMEN'S COMPENSATION.

Education, for members of county boards ................ U7l-37

Officials, state, usually neither "employers" nor "employees" ..................................... 71-29

Pension benefits, effect of .............................. 71-136

Requisites for coverage .............................. U71-l37

Retirement income, effect of ............................ 71-136

Volunteer firemen, not applicable to ................... U7l-l37

ZONING.

Subdivision, definition ................................ U7l-l4

Taxation, effect upon valuation for .................... U7l-l06