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 11 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- iii 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 v 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 Vl 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." Vll 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 71-1 2 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- 3 71-2 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 4 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 5 71-3 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 6 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. 7 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". 71-5 8 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.) 9 71-5 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. 71-6 10 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 II 71-8 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 71-9 12 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- 13 71-10 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. 71-20 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 71-23 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 71-27 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.] 39 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 71-32 44 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 45 71-32 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. 71-33 46 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 47 71-34 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. 71-35 48 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 49 71-36 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" 71-37 50 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- 51 71-39 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. 71-40 52 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 53 71-42 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 71-42 54 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 55 71-43 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 71-44 56 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" 57 71-44 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 71-44 58 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 59 71-45 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). 71-46 60 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. 61 71-48 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- 71-49 62 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). 63 71-50 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. 71-51 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. 65 71-52 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. 71-53 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 67 71-54 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, 71-55 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 69 71-55 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 71-56 70 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 71 71-57 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 73 71-59 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 71-60 74 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 75 71-62 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 71-63 76 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 77 71-65 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 71-65 78 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. 79 71-67 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 71-68 80 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. 81 71-69 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 71-69 82 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 83 71-70 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 71-70 84 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 85 71-71 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 87 71-73 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- 71-74 88 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 89 71-75 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. 71-76 90 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. 91 71-78 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. 71-79 92 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. ..." 93 71-80 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 71-8 I 94 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 95 71-83 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 71-83 96 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). 97 71-84 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. 71-85 98 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). 99 71-85 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 71-86 100 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 101 71-88 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- 71-88 102 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 103 71-89 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- 71-90 104 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, 105 71-91 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. 71-92 106 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- 71-94 108 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 109 71-95 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 71-95 110 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 Ill 71-96 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- 71-97 112 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 113 71-97 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 71-97 114 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 115 71-97 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 71-97 116 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- 117 71-97 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 71-97 118 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. 119 71-n 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. 71-99 120 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 121 71-100 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). 71-101 122 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- 123 71-102 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. 71-102 124 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. 125 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- 71-103 126 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. 127 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. 71-104 128 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 129 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 71-104 130 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 $32,600.00 131 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. 71-112 138 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. 139 71-113 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 71-114 140 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- 141 71-115 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- 71-115 142 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." 143 71-115 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 71-115 144 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- 145 71-115 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 71-115 146 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. 147 71-115 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. 71-116 148 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 149 71-118 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 71-118 150 (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. 151 71-119 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- 71-120 152 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 153 71-121 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 71-121 154 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. 155 71-122 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- 71-123 !56 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 157 71-124 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. 71-125 158 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. 159 71-126 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 . . ." 71-126 160 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- 161 71-128 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- 71-128 162 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, 163 71-129 . 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. 71-130 164 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? 165 71-130 (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 71-131 166 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 167 71-132 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 71-132 168 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. 169 71-133 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 71-133 170 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. 171 71-134 "{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. 71-135 172 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. 173 71-136 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. 71-137 174 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 175 71-137 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. 71-138 176 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 177 71-139 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. 71-139 178 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, 179 71-140 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. 71-140 180 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, 181 71-141 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 71-142 182 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. 183 71-142 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 71-143 184 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 185 71-143 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. 71-144 186 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). 187 71-144 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 71-145 188 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 189 71-145 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 71-146 190 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- 191 71-146 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 71-146 192 "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. 193 71-147 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- 71-147 194 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\\