OPINIONS of THE ATTORNEY GENERAL 1973 ARTHUR K. BOLTON ATTORNEY GENERAL CURTISS PRINTING CO., INC. 62 ELLIS STREET, N. E. ATLANTA, GEORGIA TABLE OF CONTENTS PAGE OFFICIAL OPINIONS, 1973........................... . . . . 1 PREFACE TO UNOFFICIAL OPINIONS................... 333 DIGESTS OF UNOFFICIAL OPINIONS ................... 334 TABLE 1. UNITED STATES CONSTITUTIONAL PROVISIONS CITED ................................... 391 TABLE 2. GEORGIA CONSTITUTIONAL PROVISIONS CITED ................................... 391 TABLE 3. GEORGIA LAWS CITED ....................... 393 TABLE 4. GEORGIA CODE ANNOTATED SECTIONS CITED ..................................... 409 INDEX .................................................. 429 ll ATTORNEYS GENERAL OF GEORGIA HENRY P. 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- Ill ARTHUR K. BOLTON The Attorney General LEGAL STAFF OF DEPARTMENT OF LAW DURING CALENDAR YEAR 1973 NAME TITLE Bolton, Arthur K. Stubbs, Robert S., II Andrews, Gary B. Bailey, David J. Ballard, John B. Barmeyer, Patricia T, Bartee, William F., Jr. Beasley, Dorothy T. Bennett, Roberts 0. Bomar, Robert S. Bowers, Michael J. Bowling, Gerald W. Buckland, Lauren 0. Burke, Thomas P. Castellani, Robert J. Chambers, Richard L. Coleman, John R. Davis, George T. Davis, Wiley H. Durham, Bryant L. Dyer, Michael W. Evans, Alfred L., Jr. Gordon, Marion 0. Greene, Thomas W. Grindle, B. Dean, Jr. Hall, Robert Edward Hallman, Edwin F., Jr. Harris, W. Hensell, Jr. Jones, Carl C., III Joy, William C. King, David L. G., Jr. Kirkley, Dorothy M. Y. Kleckley, D. Daniel Attorney General Executive Assistant Attorney General Assistant Attorney General Assistant Attorney General Deputy Assistant Attorney General Deputy Assistant Attorney General Assistant Attorney General Assistant Attorney General Deputy Assistant Attorney General Assistant Attorney General Law Assistant Deputy Assistant Attorney Genera] Assistant Attorney General Deputy Assistant Attorney Genera] Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Attorney Deputy Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Deputy Assistant Attorney General Attorney Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Deputy Assistant Attorney General v LEGAL STAFF-Continued NAME TITLE Lackey, R. Douglas Langham, Don Arthur Macintyre, Daniel Irwin Matson, Roland F. Michael, H. Perry Odom, Donn L. Owen, H. Andrew, Jr. Palmour, Frank M. Parker, Geoffrey S. Perry, James L. Petersen, R. David Roach, Hal, Jr. Runnion, David Alan Ruskaup, Larry D. Shell, Robert H. Spivey, Verley J. Stanton, Courtney Wilder Stone, Glenna L. Sullivan, Michael Ernest Sweeney, Timothy J. Tripp, David A. Walden, John C. Yancey, Wayne P. Attorney 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 Deputy 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 VI 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. 1. 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, "U70-1," "U70-2," ... "U7l-1," "U71-2," etc., refer to "unofficial opinions." Vll OFFICIAL OPINIONS of THE ATTORNEY GENERAL 1973 1 73-1 OPINION 73-1 To: Commissioner, Department of Offender Rehabilitation January 5, 1973 Re: Sentence and punishment; credit for jail time prior to trial and prior to revocation of probation. The Department of Offender Rehabilitation has asked whether it should allow jail time credit in several situations involving probated or suspended sentences. In each situation, a defendant was either in jail awaiting his initial trial, at which a probated or suspended sentence was imposed, or was awaiting the hearing at which the suspension or probation was revoked. In 1970 the General Assembly provided as follows for "Credit for Time Spent Awaiting Trial": "Each criminal defendant convicted ... shall be given full credit for ... confinement awaiting trial ... ; such credit ... shall be applied towards the ... defendant's sentence ..." Ga. Laws 1970, p. 692, as amended (Ga. Code Ann. 27-2530). This is a remedial statute, which should be read in the light of the old law and needed corrections. Cf. Murphey v. Lowry, 178 Ga. 138 (1933). Prior to passage of 27-2530, a prisoner's jail time did not begin to count toward his sentence until after the date of the sentence. Ga. Code 27-2505 (1933). Thus, the remedial change made by 27-2530 is to allow credit for jail time served before formal implementation of the sentence. Cf. Murphey v. Lowry, supra. Almost certainly this provision was intended to credit a defendant, whose suspended sentence is revoked, with the time he spent in jail prior to his original trial and prior to his revocation. In the case of pretrial jail time, credit should be allowed under the literal language of the Act. As to pre-revocation jail time, there appears to be no compelling reason to interpret "trial," as used in 27-2530, as referring only to the original trial. The revocation "hearing" is a judicial examination and settling of issues and is, in that sense, a "trial." See Miller v. Tobin, 18 F. 609, 616 (1883); Black's Law Dictionary 1675 (4th ed. 1957). Moreover, the revocation proceeding is realistically viewed as an extension of the original trial, whose purpose is to reconsider the suspension of sentence. Upon revocation, what once was suspended has gone into effect, and there is no reason, in the absence of contrary language, to disallow what would have been allowed had there been no suspension, i.e., jail time credit prior to implementation of sentence. 73-2 2 I have ruled earlier that 27-2530 is not retroactive and does not apply to jail time prior to sentences arising before July 1, 1970, the date 27-2530 became effective. Op. Att'y Gen. 70-85. Materials in your request for an opinion suggest the possibility of a suspension of sentence before 27-2530 became effective and a revocation afterwards. In that case I believe 27-2530 allows credit for pre-revocation jail time occurring after the effective date. As I have indicated, the revocation hearing is a "trial" covered by the Act. My analysis of jail time credit in the setting of probation is somewhat different. After revocation of a probated sentence, the court may order a period of confinement for all the remaining balance of the sentence or "any portion" of it. Ga. Laws 1956, pp. 27, 32, as amended by Ga. Laws 1966, p. 440 (Ga. Code Ann. 27-2713). In determining the remaining balance of the sentence, the defendant is credited with time on probation. Id. Pre-revocation jail time would be included in such credit since probation continues until the judgment of revocation. Op. Att'y Gen. 67-391. Therefore, if you were to credit pre-revocation jail time toward the period of confinement ordered after revocation, you would be allowing a defendant double credit for such time. The purpose of 27-2530 had already been accomplished when the pre-revocation jail time was applied toward the probated sentence. Hence, you should not award jail time credit toward the period of confinement ordered after revocation of a probated sentence. In summary, then, it is my official opinion that you should, under 27-2530, credit pre-revocation and pre-trial jail time toward service of a defendant's original sentence as a whole. However, when a period of confinement is ordered after revocation of a probated sentence, you should not under 27-2530 apply jail time credit toward service of the confinement. OPINION 73-2 To: State Revenue Commissioner January 8, 1973 Re: Constitutional law; homestead exemptions; constitutional amendments as drafted require enabling legislation. This is in reply to several questions you have asked concerning the provisions of the constitutional amendments found in Ga. Laws 1972, p. 1460; and Ga. Laws 1972, p. 1463, respectively (Ga. Const., Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404)) which authorized homestead exemptions from school taxes for certain elderly persons. It is my official opinion that neither of these two amendments is selfexecuting but would require further legislative action to become 3 73-2 effective. I base my opinion both on the language and legislative history of each amendment. It is significant that the exemptions authorized in each amendment are phrased by use of the words "may be exempt" instead of "shall be exempt." There is a difference in the use of the verbs "shall be" and "may be" in a statute, since the former is mandatory and the latter is permissive. Modern Coach Corp. v. Faver, 87 Ga. App. 221 (1952). Since, under the language of these amendments, the question of these exemptions is not mandatory, it would appear that the decision as to whether to grant exemptions has been left to the discretion of the legislature. The legislative history of these amendments is probably even more significant in determining the meaning to be applied to the words authorizing these exemptions. Both amendments were originated and passed in the House of Representatives as resolutions for amendments of local application creating homestead exemptions for certain residents of Carroll County. As origi.nally passed by the House of Representatives, both resolutions used the phrase " ... shall be exempt ..." when referring to the homestead exemption. Substitute resolutions were then introduced in the Senate changing the references in the House resolutions from " ... each resident of the City of Carrollton ..."and"... each resident of Carroll County..." to read " ... each resident of each independent school district ... " and " ... each resident of each county school district ..." respectively, therefore making the resolutions general instead of local. Of utmost significance is the fact that the Senate substitute resolutions were then amended from the floor. Senate substitute HR 768 was amended by deleting from lines six and 19, page one, and line six, page three, the word "shall" and inserting in lieu thereof the word "may." Likewise, Senate substitute HR 767 was amended by striking the word "shall" from lines six and 20, page one, and line nine, page three, and inserting the word "may" in lieu thereof. The resolutions as amended were then passed by both Houses of the General Assembly and then voted upon by the people of Georgia. Even though there is some language in the amendments which may make them appear to be self-executing, the fact that the language authorizing the exemptions was deliberately changed from mandatory to permissive phrasing shows that the overriding intent of the amendments was that further legislative action would be necessary before the exemptions would be effective. 73-3 4 OPINION 73-3 To: Governor, State of Georgia January 9, 1973 Re: Officers and employees, public; appointments based on congressional districts. The Georgia Ports Authority has two of its seven members appointed on the basis of congressional districts. Ga. Laws 1966, p. 457 (Ga. Code Ann. 98-203). You ask our official opinion on whether future appointments to the authority should be made from the old congressional districts, that is, as they existed in 1966, or from the congressional districts existing on the date of the appointment. Ga. Laws 1971, Extra. Sess., p. 89 (Ga. Code Ann. 34-1801), adopting the decennial reapportionment, provides, at Section 3 of said law the method to be used in making new appointments or filling vacancies in those boards where membership depends upon the congressional districts. The law is slightly different depending on whether the board is created by the State Constitution or by a statute. The Georgia Ports Authority is a statutory body; the law provides that on the expiration of the terms of the present members or in the event a vacancy occurs in the term of any member presently serving, the successor shall be reappointed pursuant to the current reapportionment. The law further provides that for the purpose of appointing or electing members of boards, authorities, etc., the law becomes effective on January 1, 1973. It is therefore our official opinion that appointments to the various boards based on congressional districts should be made from the congressional district as it exists under the current reapportionment. OPINION 73-4 To: Division of Investigation, Department of Public Safety January 10, 1973 Re: Ticket sales; additional charge prohibited on sale of tickets to certain athletic contests. This is in response to your recent letter requesting my official opinion on a construction of Ga. Laws 1970, p. 172 (Ga. Code Ann. 96-602), which regulates the sale of tickets to certain athletic contests. That law reads in part: "It shall be unlawful for any person to sell, or offer for sale, any ticket of admission or other evidence of the right of entry to any foot- 5 73-4 ball game, basketball game, baseball game, soccer game, or golf tournament for a price in excess of the price printed on the ticket." Ga. Laws 1970, p. 172, Section 1. (Emphasis added.) That Act further provides, at Section 2 (Ga. Code Ann. 96-9903), that violations of it shall be punished as for a misdemeanor. Your question relates to a private corporation which apparently is providing a service by offering for sale tickets, through computer printouts, to various events, including those listed in the above Act, at various locations. I understand that the corporation offers the tickets for sale at the price of the ticket, plus 35 cents, which the firm contends is a "service charge" and thus does not constitute an increase in the price of the ticket. The question, then, is: Does the addition of this "service charge" constitute a violation of the above Act? The Act in question, at Section 3, specifically repealed former Ga. Laws 1966, p. 207, which read in part: " ... [I]t shall be unlawful for any person, firm, or corporation to sell, offer for sale, conduct the business of selling, or offering for sale, or soliciting any person to purchase any ticket of admission or other evidence of the right of entry to any opera, football game, basketball game, baseball game, or golf tournament at a price more than $1, plus lawful taxes, in excess of the maximum price printed on the ticket." Ga. Laws 1966, p. 207, Section 1. (Emphasis added.) The "legislative purpose" of the 1966 Act, which also was repealed by the 1970 Act, was outlined in Section 2 as: "Because the admission price for opera, football games, basketball games, baseball games and golf tournaments, which are open to the general public, is a matter affected with the public interest, this statute is enacted to safeguard the public interest against fraud, extortion, exorbitant rates, and similar abuses by limiting the price at which tickets to said contest can be resold." Since the 1970 Act, which provides for no increase in the price of tickets to listed athletic events, specifically repealed the 1966 Act, which did allow an increase of up to $1, it would appear to be the clear intent of the General Assembly that no ticket to any athletic event listed in the Act be sold at a price beyond that printed on the ticket. The "service charge" not being extricable from the price of the ticket, it would appear that it is not allowed. There also may be a question raised as to whether the General Assembly limited application of the 1970 Act to individuals only, since the language in Section 1 reads only "any person," while the 1966 Act, 73-5 6 in Section 1, read "any person, firm, or corporation." However, the title to the 1970 Act reads, in part, that it is: "An Act to regulate the sale of admission tickets to athletic contests by providing that no ticket to any athletic contest shall be sold for an amount in excess of the price printed on the ticket ..." Ga. Laws 1970, p. 172. (Emphasis added.) In addition, the criminal law expressly defines "person" as "an individual, a public or private corporation, an unincorporated association, government, government agency, partnership or unincorporated association." Criminal Code of Georgia 26-401(1), based upon Ga. Laws 1968, pp. 1249, 1263; 1970, pp. 236, 237. It is, therefore, my official opinion that in passing the 1970 Act regulating the sale of tickets to named athletic events, lihe General Assembly provided that such tickets be sold at no more than their listed price. The question of intent to violate the law also was raised in your letter. I cannot, in an official opinion or otherwise, determine that question, since it would be one for the trier of the facts (jury or judge) in any criminal prosecution. However, the general rule in this state is that unlawful acts are presumed to have been eriminally intended. See Dixon v. State, 105 Ga. 787 (1898). OPINION 73-5 To: Commissioner, Department of Offender Rehabilitation January 11, 1973 Re: Prisons and prisoners; credit for time spent m eonfinement awaiting extradition. In your letter of November 9, 1972, you ask our opinion as to whether or not credit for time spent in confinement while awaiting extradition should be granted pursuant to Ga. Laws 1972, pp. 742, 743 (Ga. Code Ann. 27-2530, 27-2532). At issue here is the meaning of "credit for each day spent in confinement." Do these words require that an inmate be granted credit for the time spent in confinement in jails outside this state while awaiting extradition to this state? Although our courts have not considered this question, courts in other jurisdictions have eonstrued sentence-credit statutes very similar to our own. Almost invariably these courts have concluded that the legislative body intended to allow credit for time spent in confinement awaiting extradition. 7 73-5 In People v. Nagler, 251 N.Y.S.2d 107 (1964), the defendant was credited with jail time served in France while awaiting extradition to this country. The applicable statute, based upon former Penal Law 2193, reads as follows: * * * "3. Jail time. The term of a definite sentence or the maximum term of an indeterminate sentence imposed on a person shall be credited with and diminished by the amount of time the person spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence." Penal Law 70.30. (Emphasis added.) The Pennsylvania statute concerning credit for pre-sentence custody is as follows: "Any person who has been convicted of an offense in any court in this Commonwealth and sentenced to a term of imprisonment shall be given credit toward the service of his sentence for any days spent in custody on this offense prior to the imposition of his sentence..." 19 P.S. 898. (Emphasis added.) In Commonwealth v. Rundle, 207 Pa. Super. 443, 217 A.2d 772 (1966), confinement awaiting extradition was found to be imprisonment "by reason of the offenses charged" and it was held that, under the above statute, the legislature intended credit to be allowed for time spent in confinement awaiting extradition. The Michigan courts have also concluded that the legislative intent was to allow credit for time spent in confinement awaiting extradition. See People v. Havey, 11 Mich. App. 69, 160 N.W.2d 629 (1968). The statute construed provides: "Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing." Mich. Stats. Ann. 28.1083 (2). (Emphasis added.) In Georgia, our statute reads, in part, as follows: "Each criminal defendant convicted of a crime in this state shall be given full credit for each day spent in confinement awaiting trial . . ." Ga. Laws 1972, p. 742 (Ga. Code Ann. 27-2530). Nothing in the statute restricts credit to time spent in Georgia facilities. Indeed, it is a rule of statutory construction that a penal law be construed strictly in favor of a criminal defendant. See Matthews v. Everett, 201 Ga. 730, 41 S.E.2d 148 (1947); Balkcom v. Defore, 219 Ga. 73-6 8 641, 135 S.E.2d 425 (1964); Johnson v. State, 118 Ga. App. 448, 164 S.E.2d 353 (1968). Therefore, it is my opinion that a defendant is entitled to receive credit for time spent in confinement awaiting extradition. OPINION 73-6 To: Chairman, Georgia Public Service Commission January 18, 1973 Re: Public utilities; effect of Ga. Code Ann. 93-307.1 on power of Public Service Commission to examine changes in tariffs. This is in reply to your request for an opinion on the effect which Ga. Code Ann. 93-307.1, based upon Ga. Laws 1972, p. 137, has on certain procedures followed by the Georgia Public Service Commission. The situation arises in which the commission has, during the 30-day period prescribed by 93-307.1 (a), conditionally approved a tariff change proposed by a utility, the condition being stated as "subject to complaint and further order." You ask whether upon its own initiative or upon receipt and evaluation of a complaint, the commission may subsequently conduct hearings on the provision and, pending a final decision, require the utility to reinstate the tariff provisions in effect prior to the amendment so conditionally approved. For the reasons stated hereinafter, it is my opinion that while such conditional approval does not affect the commission's power later to examine the tariff amendment, the commission may not prior to a final determination as a result of such examination suspend the implementation of the amendment except as provided in 93-307.1. Under the commission's practice prior to the enactment of Ga. Code Ann. 93-307.1 by Ga. Laws 1972, p. 137, a tariff amendment did not become effective, and was not to be implemented by a public utility, prior to commission approval of the amendment. The scheme of Ga. Code Ann. 93-307.1 substantially alters that practice and finds statutory precedent in other jurisdictions. See 49 U.S.C.A. 15(7), 316(g); Ala. Code Ann. Ch. 48, 53; Cal. Pub. Util. Code, Art. 2, 455, 591; Ill. Rev. Stat. 1953, Ch. 111%, ~ 36; Ky. Rev. Stat. 276.150-276.170; Mass. Ann. Laws Ch. 159, 20; N. C. Gen. Stat. 62-134, 62-135. The procedural scheme adopted by Ga. Code Ann. 93-307.1 generally permits a utility to implement a tariff change without~com mission approval unless the commission affirmatively acts to suspend its implementation. After the expiration of 30 days following notice of the change by the utility to the commission and the public, the utility 9 73-6 may implement the change in its tariff. During the 30-day period, however, the commission may suspend the operation of the proposed amendment for a period not in excess of an additional five months. At the end of that period, if the commission has not made a final determination on the tariff revision, the utility may implement it. The language of Ga. Code Ann. 93-307.1 " ... seems clearly to contemplate that the [commission] shall analyze a proposed . . . change, and reach a conclusion as to whether it is to be permitted to go into effect without a formal hearing or whether it is to be suspended until a formal hearing has been had." Antioch Milling Co. v. Public Service Co. of North, Ill., 123 N.E.2d 302, 304-305 (Ill. 1954). See also, M. C. Kiser Co. v. Central of Ga. Ry., 236 F. 573 (S.D. Ga. 1916); aff'd, 239 F. 718 (5th Cir. 1917). If the commission in the exercise of its discretion determines that a tariff revision should not be suspended under Ga. Code Ann. 93-307.1, it is my opinion that the commission is not foreclosed from later examining the tariff provision, on its own initiative or upon the filing of a complaint. SeeM. C. Kiser Co. v. Central of Ga. Ry., supra, 236 F. 573, 578 (S.D. Ga. 1916). Nothing in the procedural mechanism of Ga. Code Ann. 93-307.1 alters the substantive, constitutional and statutory authority and responsibility of the commission. For the same reason, the conditional approval by the commission of a tariff amendment during the 30-day period provided by Ga. Code Ann. 93-307.1(a) does not alter the substantive responsibility and authority of the commission. It is my opinion, therefore, that the commission may later examine, and, if found necessary, disapprove of tariff provision implemented by a utility by vii tue of the provisions of Ga. Code Ann. 93-307.1(a) or under a conditional approval by the commission during the 30-day period prescribed by that provision. It is my opinion, however, that a tariff amendment which has been implemented by a utility, either by virtue of the expiration of the 30day period without commission action under 93-307.1(a), or by vjrtue of such conditional approval by the commission during that period, may not be later suspended by the commission during subsequent examination pending a final determination by the commission. Ga. Code Ann. 93-307.1 is the exclusive method by which the commission may suspend the implementation of a tariff revision. Considering the legislative purpose and language, it is my opinion that the General Assembly intended that once a tariff change had been implemented in accordance with 93-307.1, only a final determination of the commission disapproving the provision operates to prevent the utility from acting in accordance with it. 73-7 10 It is my opinion, therefore, that a conditional approval by the commission of a tariff provision does not alter its authority and responsibility to examine the provision but that it may not, except in accordance with Ga. Code Ann. 93-307.1, suspend a tariff amendment during such an examination. OPINION 73-7 To: Director of Corrections January 19, 1973 Re: Prisons and prisoners; work-release program does not authorize compensation for work performed in institutions. You have requested my opinion as to whether those amendments to the basic correctional legislation, commonly referred to as the Work Release Act, authorize the Director of Corrections to employ inmates within the confines of their institutions. I understand that your request is specifically directed to certain inmates having highly specialized skills which are in short supply and which are necessary to the orderly and efficient administration of the institutions. The law in question authorizes the Director of Corrections to " ... extend the limits of the place of confinement of a prisoner ... [in order to enable the prisoner to] ... work at paid employment ... in the community on a voluntary basis while continuing as a prisoner of the institution to which he is committed ..."Ga. Laws 1968, pp. 1399, 1400-01, as amended, Ga. Laws 1969, p. 602 (Ga. Code Ann. 77-309 (b)). The key limitation by which your proposal must be evaluated is to be found in the statutory meaning of the phrase "in the community." It is my opinion that this phrase limits the authority of the Director of Corrections so as to proscribe work at paid employment in the institution to which the inmate is assigned. The expressed legislative purpose is "to provide for a work release plan for certain inmates ..." Ga. Laws 1968, p. 1399. Throughout the statutory scheme the words "community" and "institution" are used within a mutually exclusive context. Elsewhere in the amendments the term "free community" is employed in a manner which is sufficient to convince me that the General Assembly has expressed the legislative intention of limiting the authority of the Director of Corrections so as to preclude the operation of a "work-release" program within the confines of an institution. As you are aware, it is a basic rule of statutory interpretation that a statute will be construed in its entirety so as to give full force and effect to all the words employed by the General Assembly in expressing the 11 73-8 legislative intent. To authorize the Director of Corrections to extend the limits of an inmate's place of confinement to the place of confinement would seem to do rather fundamental violence to this essential principle. To construe the term "in the community" to include both the free and the institutional communities would render this qualification upon the director's authority meaningless, since it would effectively read the phrase right out of the statute. To construe an act establishing a "work-release" program as establishing a non-release compensation program simply goes beyond the expressed intention of the General Assembly. My opinion is further reinforced by the fact that the very same amendment to the basic correctional statutes which established all authorization for the maintenance of a work-release program also provided, as an amendment to other portions of the statutes, a method for compensating certain inmates employed within the prisons. Ga. Laws 1968, pp. 1399, 1402-03 (Ga. Code 77-318(c)). Again, it is a basic rule of statutory construction that where the General Assembly has made specific authorizations within a subject-matter area of legislative cognizance, it has by a rule of exclusion precluded general authorizations within the same area. Consequently, I feel it would do extreme violence to the statutory scheme to interpret the work-release provisions as establishing a method for compensating inmates for work done within the confines of the institutions to which they are assigned. Consequently, it is my opinion that the work-release program does not constitute a vehicle for engaging the services of inmates within certain specialized skills subject to state compensation. OPINION 73-8 To: Commissioner of Agriculture January 19, 1973 Re: Pesticides; license, surety bond, and insurance coverage of licensee. This is in reply to your request for my official opinion as to the minimum amount and extent of coverage of surety bond or liability insurance required of licensees under the Georgia Pesticide Use and Application Act, Ga. Laws 1972, p. 849 (Ga. Code Ann. Ch. 5-15A). Section lO(a) of the Act (Ga. Code Ann. 5-1510a) provides, in pertinent part, that: " ... The amount of the surety bond or liability insurance as provided for in this section shall be not less than $10,000 for property damage and public liability insurance, each separately, and in- 73-9 12 eluding loss or damage arising, out of the actual use of any pesticide ..." (Emphasis added.) I understand that certain insurers have advanced the view that the minimum coverage amount of $10,000 refers to the aggregate amount required for both property damage and public liability insurance. The insurers have also contended that the Act authorizes restricted chemical coverage, which would exclude coverage for certain potentially hazardous chemicals. I find that the clear wording and intent of the Act are contrary to such interpretation. The Act requires a minimum of $10,000 coverage for property damage and public liability insurance, "each separately." Had the quoted words not been included in the section, it could be argued that the specified minimum coverage referred to an aggregate amount. However, the inclusion of this language clearly states the intent of the General Assembly that the specified minimum amount of coverage shall be obtained for property damage and shall also be obtained for public liability insurance, i.e., an aggregate amount of $20,000. The Act also provides that such surety bond or liability insurance shall include loss or damage arising out of the actual use of "any" pesticide. Contrary to authorizing chemical exclusion or limited chemical coverage, the term "any" is all inclusive and requires coverage for all pesticides actually used by a licensed applicator. It is my official opinion that the surety bond or insurance coverage required by the Act must be in the minimum amount of $10,000 each for property damage and public liability, and that such coverage may not restrict or exclude any pesticide actually used by a licensee. OPINION 73-9 To: Director, Division of Investigation January 22, 1973 Re: Female employees; appointment of female members of the State Crime Laboratory as agents of the Division of Investigation. This is in response to your recent letter wherein you seek my opinion as to the appointment of female staff members of the State Crime Laboratory as agents of the Division of Investigation. Initially, it should be noted that the functions of the Bureau of Investigation, provided for in Ga. Laws 1937, pp. 322, 340 (Ga. Code Ann. 92A-301 et seq.), as amended, were transferred to the Division of Investigation by the Executive Reorganization Act of 1972. Ga. Laws 1972, pp. 1015, 1060 Ga. Code Ann. 40-35171). Additionally, the functions of the State Crime Laboratory, referred to in Ga. Laws 1953, p. 602 (Ga. Code Ann. 21-203 et seq.), as amended, were assigned to 13 73-9 the Division of Investigation. Ga. Laws 1972, pp. 1015, 1060 (Ga. Code Ann. 40-35172). To be eligible for appointment as an agent of the Division of Investigation, generally one must meet the qualifications set forth in Ga. Laws 1949, p. 1177 (Ga. Code Ann. 92A-305), as amended. However, "when necessary to the performance of their official duties," male staff members shall be sworn in as special agents of the Division of Investigation. Ga. Laws 1957, pp. 647, 648 (Ga. Code Ann. 92A-306). The question then arises as to whether you may distinguish between males and females when appointing members of the Crime Laboratory as agents of the Division of Investigation under the exception provided in Ga. Laws 1957, pp. 647, 648 (Ga. Code Ann. 92A-306). A recent amendment to the Civil Rights Act of 1964 makes the equal employment opportunity provisions of this Act applicable to states and their political subdivisions. Pub. L. No. 92-261, 1972 U. S. Code Gong. and Adm. News, p. 814. Thus, a state cannot now: " ... limit, segregate, or classify employees in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin." 42 U.S.C.A. 2000e-2(a)(2)(1964). Discriminatory employment practices based on sex are permissible only where sex is a bona fide occupational qualification. 42 U.S.C.A. 2000e-2(e) (1964). The cases interpreting this provision have generally concluded that an employer must show that sexual characteristics are necessary for safe and efficient job performance; but, groupings based on stereotyped characterizations of the sexes will not suffice; rather, individuals must be considered on their individual capabilities and merits. See Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969); Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971); Ridinger v. General Motors Corp., 325 F. Supp. 1089 (S.D. Ohio 1971). In view of the fact that male and female members on the staff of the Crime Laboratory have the same job title and classification and, most importantly, perform the same duties, it is my opinion that the provision of Ga. Laws 1957, pp. 647, 648 (Ga. Code Ann. 92A-306), which restricts appointment as agents of the Division of Investigation to male staff members of the Crime Laboratory, is in violation of the Civil Rights Act of 1964, as amended. 42 U.S.C.A. 2000e-2(a)(1964). Therefore, female staff members of the Crime Laboratory may be appointed as special agents of the Division of Investigation when you deem such action "necessary to the performance of their official duties." 73-10 14 OPINION 73-10 To: Director, Office of Highway Safety January 24, 1973 Re: Counties; contracts for ambulance services. This is in response to your recent letter asking my opinion as to whether a county board of commissioners may contract with a funeral director to furnish an ambulance service for the county where the county supplies the necessary equipment and allows the funeral director to collect fees for the service; you also asked my opinion as to whether a county board of commissioners may employ a funeral director to operate and manage an ambulance service for the county where the county supplies the necessary equipment, collects and retains the fees for the service, and remits to the funeral director a fee which shall include all costs of operation and management. As you know, the Highway Safety Act of 1966 required each state to have a highway safety program. 23 U.S.C.A. 402 (1966). The Secretary of Transportation is authorized to promulgate uniform standards with respect to, among other things, emergency servjces; these standards are found in 23 C.F.R. 204.4 (Standard No. 11). The basis of our highway safety program in Georgia is the Highway Safety Coordination Act of 1967. Ga. Laws 1967, p. 708 (Ga. Code Ann. Ch. 92A-10). The Executive Reorganization Act of 1972 made some administrative changes in the Highway Safety Coordination Act of 1967; however, substantive provisions were unaffected. Ga. Laws 1972, pp. 1015, 1059-1060 (Ga. Code Ann. 40-35167). The governing authorities of the various counties are empowered to contract with private agencies and organizations as well as a number of public agencies to insure participation to the fullest extent possible in the Highway Safety Act of 1966. Ga. Laws 1967, pp. 708, 710 (Ga. Code Ann. 92A-1007). It is my opinion that this allows the appropriate governing authority to contract with a funeral director to operate an ambulance service for the county if the service is in compliance with the uniform standards promulgated by the Secretary of Transportation. The operation of an ambulance service by any county is deemed to be a public purpose and a county is authorized to levy and collect taxes for the operation of such a service. Ga. Laws 1970, p. 582 (Ga. Code Ann. 92-3701 (19)). Further, an amendment to the State Constitution permits "any county ... to determine and fix reasonable charges and fees for such services." Ga. Canst., Art. IX, Sec. III, Par. I (Ga. Laws 1972, p. 1552) (Ga. Code Ann. 2-7603). This amendment was ratified at the last general election. Therefore, based on the above, it is my opinion that a county may 15 73-11 contract with a funeral director for the operation of an ambulance service. A county would be authorized to fix charges and fees for such a service. It is also my opinion that a county may delegate the duty of fee collection to the operator of the ambulance service because mere collection would be a ministerial act involving little judgment or discretion. See Mobley v. Marlin, 166 Ga. 820, 822 (1928). Bear in mind that the county must set a reasonable fee; the operator can only collect, when authorized by the county. Whether the board of commissioners of a particular county may execute a contract with an individual to operate an ambulance service for the county is dependent upon local legislation. When the affairs of a county are administered by a board of commissioners, their powers are prescribed in the act creating the board, and such boards have no powers except such as are conferred by statute. Town of Decatur v. DeKalb County, 130 Ga. 483 (1908); Wood v. Puritan Chemical Co., 178 Ga. 229 (2) (1933). Generally, the board of commissioners has jurisdiction over revenue and health matters for the county. As for the commissioners in any particular county, however, the statute creating the board should be consulted. The county or counties involved should seek the advice of their county attorneys in this regard. It should be noted in passing that a county would not be exempt from the licensing provision of Ga. Laws 1972, pp. 625, 631 (Ga. Code Ann. 88-3111). OPINION 73-11 To: Commissioner, Department of Banking and Finance January 26, 1973 Re: Disposition of unclaimed property. The Department of Banking and Finance has requested information on eight questions involving the Disposition of Unclaimed Property Act, Ga. Laws 1972, p. 762 (Ga. Code Ann. Ch. 85-20). For clarity, we will restate each question and then give our answer immediately after each question. Previous to the Act the Department of Banking and Finance had adopted rules under the authority of Ga. Code Ann. 13-2067, based upon Ga. Laws 1966, pp. 590, 601, concerning service charges on dormant bank accounts. (Rules of the Department of Banking and Finance, Chapter 80-1-8.) Most of the questions you ask concern the application of the 1972 Act to situations formerly covered by these Rules. "1. Under the former Act, banks were authorized to levy a service charge on accounts which were inactive or dormant for a 73-11 16 period of 12 months without any obligation to restore those charges to the depositor should he subsequently seek to withdraw his deposit. Under the new Act, no charges may be levied against the account after the first 12 months of its dormancy. Is a bank obligated to restore charges lawfully made prior to the effective date of the new Act and on accounts which are now or hereafter may become unclaimed property?" I do not believe a bank is obligated to restore charges lawfully made prior to the effective date of the 1972 Act, January 1, 1973. As a general rule, statutes prescribe only for the future and they do not have a retrospective operation. Ga. Code 102-104. Further, when the 1972 Act describes abandoned property, it specifically excludes any charges that may lawfully be withheld. Id., Section 3(a), (b) (Ga. Code Ann. 85-2003). If the charges were lawfully withheld, they need not be restored. "2. On time and savings accounts, a bank was previously permitted to levy service charges on accounts which have been dormant for not less than five years. However, these charges were distinguished from charges levied against demand accounts by the fact that the bank was required to maintain permanent records of the charges made in order that they might be refunded to the depositor should he ever make a demand for withdrawal of his funds. Must these charges which were lawfully made under the former Act now be restored to the books and records of the bank and reported as unclaimed property under the new Act? We realize that the charges would be refundable to the depositor upon his demand regardless of whether or not they are unclaimed property as defined in the Act." Under this fact situation, the critical point is that if the owner made a claim for the money, the bank would refund the charges to the owner. As we noted above, the 1972 Act excludes any charges that may lawfully be withheld when it discusses abandoned property which must be reported. Id., at Section 3(a), (b) (Ga. Code Ann. 85-2003). If the charges may not be withheld, then the amount should be included in the amount of property reported. The 1972 Act is custodial in nature-it does not result in the loss of the owner's property rights. The bank takes custody and remains the custodian of the property in perpetuity. See 8 Uniform Laws Annotated, Estate, Probate and Related Laws (1972), Commissioners' Prefatory Note to the Uniform Disposition of Unclaimed Property Act. See also, Douglas Aircraft Co. v. Cranston, 374 P.2d 819 (Cal. 1962). Since the bank is acting as custodian for the owner, we do not believe the bank should be allowed to claim those service charges if the bank 17 73-11 could not claim the service charges against the owner. "3. Under the former Act, official checks (cashiers' checks, dividend checks, etc.) outstanding for seven years or more were subject to service charge up to their face amount. As in the case of time and savings deposits, however, the service charges were refundable to the payee of the item upon presentation of the instrument. These instruments are now under the provisions of the new Act. Must the amount of these checks which have been taken by service charges be restored to the records of the bank and reported as unclaimed property?" Applying the same reasoning as set out in question 2, we believe the amount of the service charges must be restored and reported as unclaimed property. As further basis for this conclusion, we note that the provision of law describing these particular instruments makes no provision for imposing any service charges. Id., Section 3(c) (Ga. Code Ann. 85-2003). Since there are two other classes of property which specifically allow the imposition of service charges, [ld., Section 3(a), (b)], under the doctrine of expressio unius, exclusio alterius, the bank would not be authorized in making a service charge deduction in this case. "4. In determining the date for the beginning of the 15-year dormancy period, is the date of the last activity initiated by the customer the date to be used or may the date of the last legal service charge by the bank be the date of last activity if it is subsequent to activity by the customer?" The law itself specifies how the 15-year dormancy period is computed; the manner differs for different situations and we would refer you to the language of Section 3 (Ga. Code Ann. 85-2003) of the Act. "5. Under Section 3(c) of the new Act, are checks written by a bank and drawn upon another bank in payment of operating expenses or any liability other than the deposit liability and outstanding for 15 years considered to be unclaimed property?" This is a difficult question and one not easily answered by mere reference to the language of the Act. The literal language might possibly support the position that any check written by a bank is a written instrument on which a banking organization is directly liable and thus would be presumed abandoned after 15 years but would never be extinguished. I believe the better and more reasoned interpretation would be to look at the actual relationship involved and restrict this Section to those instances expressly set out in this Section or the Act, or instances closely akin to the relationships expressed in this Section, that is, certificates of deposit, drafts or travelers checks. The entire 73-11 18 tenor of this Section, and the Act as a whole, has to do with property which is left with a holder. If we extend the Act to cover situations where a bank issues a check in payment of a debt contracted in the ordinary course of business, e.g., for rent, I believe we would be misconstruing this Act. The cardinal rule in the interpretation of statutes is to look diligently for the intention of the General Assembly. Ga. Code 102-102 (9). The construction must square with common sense and sound reasoning. Blalock v. State, 166 Ga. 465, 470 (1928). However, thi:o; is a close question and the person who is responsible for the administration may wish to seek legislative clarification of the question. Question No.6 is not applicable because question No.5 is answered in the negative. "7. If, prior to the effective date of the Disposition of Unclaimed Property Act, a bank was allowed to destroy records containing information required by Section 13 (Ga. Code Ann. 85-2013) of the Act, is the bank responsible for filing of such information at this time?" The bank is responsible for filing such information as it can make available. Section 29 (Ga. Code Ann. 85-2028) of the Act gives the administrators of the Act the right to make necessary rules to carry out the provisions of the Act. I suggest this is an appropriate area for the adoption of an interpretative rule. "8. Section 12 of the Act governs the Report of Abandoned Property as defined in Section 8 as the Act pertains to fiduciaries. Section 13 governs Reporting of Abandoned Property as defined in Section 3 as the Act pertains to banking or financial organizations. Is Section 12 or 13 applicable to banking organization (definition at Section 2(a) includes trust companies) which have trust departments and thereby hold property 'in a fiduciary capacity' (Section 8)?" Section 12 (Ga. Code Ann. 85-2012) requires that property presumed abandoned under Section 8 (Ga. Code Ann. 85-2008) must be reported under Section 12. Section 8 specifically includes banking organizations. If the property is property included in Sections 4 through 10 of the Act (Ga. Code Ann. 85-2004 through 85-2010), the bank reports under Section 12. If the property is property under Section 3 of the Act (Ga. Code Ann. 85-2003), the bank reports under Section 13 of the Act (Ga. Code Ann. 85-2013). 19 73-13 OPINION 73-12 To: Commissioner, Department of Public Safety February 8, 1973 Re: Drivers licenses; special training of school bus drivers not required. On December 20, 1972, you wrote a letter to me inquiring whether under the existing laws special training can be required of school bus drivers prior to their being issued a class 3 license. It was indicated that you thought this training might be mandated by the promulgation of rules and regulations of the Department of Public Safety. Georgia Laws 1972, p. 1078 (Ga. Code Ann. 92A-401), provides that the Commissioner of the Department of Public Safety shall: "formulate and prescribe the rules and regulations under which licenses to operate motor vehicles within this state shall be granted, suspended, revoked, or cancelled, except as otherwise provided." (Emphasis added.) The requirements for obtaining a class 3 license having been specifically delineated, the broad powers to formulate rules and regulations do not encompass requiring additional qualifications. Under Ga. Laws 1972, p. 1078, the only additional qualification that may be demanded of an applicant for a class 3 license is a supplemental written test; no driving test other than that required for a class 1 license may be compelled. In answer to your question, then, for school bus drivers within class 3, only an additional written examination may be required and it is not possible to demand special training by issuing rules and regulations. If special training requirements are to be imposed on a candidate for a class 3 license, or for school bus drivers, additional legislation must be forthcoming. OPINION 73-13 To: Commissioner, Department of Human Resources February 12, 1973 Re: Adoption; court acknowledgment of written consent not required; father of illegitimate child not necessarily entitled to notice. You have requested an opinion on two questions which have recently arisen in adoption proceedings: (1) Does the Juvenile Court Code, 24A-3201(a) (3) as based on Ga. 73-13 20 Laws 1971, p. 709, reqmre court acknowledgment of consent to an adoption; and (2) What are the rights of a putative father of an illegitimate child in adoption proceedings? The first question has arisen because 24A-3201(a) of the Juvenile Court Code provides that: "The court by order may terminate the parental rights of a parent with respect to his child if ... (3) the written consent of the parent acknowledged before the court has been given; ..." The adoption law of Georgia, Ga. Code Ann. 74-403 (as based upon Ga. Laws 1941, pp. 300, 301), as amended, however, provides: "(1) Except as otherwise specified in the following subsections, no adoption shall be permitted except with the written consent of the living parents of a child. Said consent, when given freely, voluntarily, may not be revoked by the parents as a matter of right." Some judges have questioned whether the Juvenile Court Code, enacted in 1971, alters the long standing rule that written consent is sufficient to bind the natural parents to the adoption of their child. In my opinion the rule has not been altered and therefore court acknowledgment is not required. Proceedings for adoption and termination of parental rights are distinct types of legal proceedings. In the adoption laws, passed in 1941, consent to adoption was not required "in the case of parents whose parental rights have been terminated by an order of a juvenile or other court of competent jurisdiction ..." Ga. Code Ann. 74-403(2). One of the results of the termination of parental rights is that "the parent is not thereafter entitled to notice of proceedings for the adoption of a child by another, nor has he any right to object to the adoption or otherwise to participate in the proceedings." Ga. Code Ann. 24A-3203 (as based upon Ga. Laws 1971, pp. 709, 748). Thus, the statutory provisions establishing each type of proceeding explicitly recognize the existence of the other. Also, the effects of the two proceedings differ. If a child is adopted, Georgia follows the common-law rule in holding that the child is still the heir of his natural parents. Sears v. Minchew, 94 Ga. App. 126 (1956). However, if the parental rights have been terminated, the child is no longer the heir of its natural parents as provided by Ga. Code Ann. 24A-3203. Since the two proceedings are distinct under Georgia law and have different effects, the provision in the 1971 Juvenile Court Code regarding termination of parental rights does not apply to adoption proceedings. Therefore, the written consent of a natural parent to the adoption of his child is binding as provided by the adoption law. Ga. Code Ann. 74-403 (Ga. Laws 1941, pp. 300, 301). 21 73-13 The second question involves the rights of the father of an illegitimate child in adoption proceedings. Under Georgia law, the father of an illegitimate child has no parental rights and the mother's consent to adoption is legally sufficient. Ga. Code Ann. 74-403(3) (Ga. Laws 1941, pp. 300, 301). In a recent case, the United States Supreme Court ruled that the unwed father of three children could not be denied custody without, a hearing on his fitness. Stanley v. Illinois, 405 U.S. 645 (1972). Stanley had lived with the mother of the children, had supported them intermittently for 18 years, and there was no question about his paternity. vVhen the mother died, the children were declared state wards without a hearing on the father's fitness under an Illinois statute which did not provide any rights to the unwed father. The court held that the statutes violated both due process and equal protection. Shortly after Stanley, the Supreme Court vacated the judgment in Rothstein v. Lutheran Social Services of Wisconsin, 405 U.S. 1051 (1972). The Rothstein case explicitly raised the issue of whether the father of an illegitimate child has the right to notice and a hearing before his child could be placed for adoption. The Supreme Court vacated the judgment and remanded the father's case for reconsideration in light of Stanley "with due consideration for the completion of the adoption proceedings and the fact that the child has apparently lived with the adopted family for the intervening period of time." The remand of Rothstein in light of Stanley indicates that the Supreme Court has questions about current adoption procedures which deny notice to the father of an illegitimate child. However, the remand does not indicate the full scope of the rights of the putative father. There are obvious factual distinctions between the Stanley situation and the ordinary adoption situation since Stanley had lived with and supported the children for some time. Further, there is no discussion in Stanley about the possibility of legitimation proceedings. Ga. Code Ann. 74-103 establishes a simple procedure by which a child may be legitimated. Thereafter, the father will be entitled to notice of adoption proceedings even through the mother and father of the child remain unmarried. Very recently, the Supreme Court held that a state must provide an illegitimate child a cause of action for support against its natural father, Gomez v. Perez, 409 U.S. 535 (1973). The court finds no rational basis for distinguishing between the fathers of legitimate and illegitimate children. Extending this logic, if all fathers are bound to support, then perhaps all should be entitled to notice of adoption proceedings. However, this logic would not require that an illegitimate father consent to an adoption but only that he be notified by the best means available. When this line of cases is considered, it is my opinion that the department should attempt to notify all fathers of adoption proceedings. The department should also attempt to obtain the written consent of the 73-14 22 father as well as the mother. Additionally, the department should urge mothers placing children to identify the father so that the department can notify him. If the father objects to the adoption, it would be well to advise him of his right to legitimate the child under Ga. Code Ann. 74-103. OPINION 73-14 To: State Superintendent of Schools February 13, 1973 Re: County boards of education; lease of facilities from county. This is in reply to your letter of February 6, 1973, in which you ask for an official opinion as to whether moneys made available to a county school system from the Governor's "emergency fund" (i.e., disbursed through the State Department of Education under Ga. Code Ann. 40-408, as based upon Ga. Laws 1962, pp. 17, 25) may be expended by the local school system to rent county-owned buildings for use as school facilities. To your letter you attached a copy of a proposed agreement between the county school board and county commissioners. From this agreement, the factual situation appears to be as follows: (1) The county is renovating an abandoned high school building and constructing a new auditorium-gymnasium on county-owned property. (2) The county board of education desires to lease these facilities from the county for use as a school facility during ordinary school hours, the county to retain the right to use the same as a neighborhood facilities center when not being used for school purposes. (3) The county board of education is willing to pay to the county the sum of $32,000 as consideiation for this lease of the facilities for a term which is indefinite but cancellable at will by either party upon 90 days notice in writing. In answering this question I shall assume that the use of the sum in question as consideration for a lease of the specified school facilities is within the ambit of the purposes for which the Governor authorized the disbursement from his emergency fund and that the Governor does not object to the use of the funds for this purpose. There is no question, of course, as to the legal power of a county board of education to rent county-owned property for use as school facilities. In addition to the authorization of such contracts with counties or municipalities under Ga. Canst., Art. VII, Sec. VI, Par. I (Ga. Code Ann. 2-5901) [pertaining to contracts for the use of facilities], Ga. Code Ann. 32-909 (as based upon Ga. Laws 1919, p. 288, amended by Ga. Laws 1961, p. 35) expressly provides: "The county boards of education shall have the power to purchase, lease, or rent school sites, build, repair or rent schoolhouses ... and 23 73-15 make all arrangements necessary to the efficient operation of the schools . . . ." The mere fact that such a lease is unwise or represents an unsound business judgment would not ordinarily cause the lease agreement to be subject to attack in the courts since the school board's discretion in such matters is broad and will be interfered with only where it is shown that the board has grossly abused its discretion. See, e.g., McKenzie v. Walker, 210 Ga. 189 (2) (1953). On the other hand, the fact that discretion is broad does not mean that it is without any limitation whatsoever. As the proposed lease agreement between the parties is now written, the county school board would be paying $32,000 for a rental term which although having no maximum period would be cancellable at will by the county upon 90 days notice in writing. The school board could, in other words, end up paying $32,000 for a mere 90 days lease of the school and auditorium-gymnasium facilities. Although I cannot predict with certainty that a court would do so, it is certainly a possibility that a court might construe such an "exercise of discretion" by a local school board to go beyond the boundaries of mere "bad business judgment" and into the area of "gross abuse of discretion." It is consequently my opinion and conclusion (1) that a county board of education may lawfully lease school buildings or facilities from the county, (2) that such a lease is subject to attack, however, if it is so unreasonable as to constitute its execution by the board to be a gross abuse of the board's discretion, and (3) that the safer course of action with respect to the proposed lease agreement attached to your letter of the 6th would be to redraft it so as to provide the county school board with a leasehold term which is commensurate with the consideration it is paying and noncancellable by the owner (i.e., the county) during this term. OPINION 73-15 To: Adjutant General of Georgia, Department of Defense February 14, 1973 Re: National Guard; funds for organizations. This is in response to your request for my opinion as to whether counties and municipalities may legally appropriate funds and donate property for the support and maintenance of local National Guard organizations throughout the state. From your letter, I understand that several county and municipal attorneys have advised their respective commissions that they are forbidden to make appropriations or donate property without a special charter provision or some provision of general law allowing such an appropriation or donation. 73-16 24 Of course, the county and municipal attorneys are correct in ruling that appropriations without authority are forbidden. However, it is apparent from a reading of the Georgia Military Forces Reorganization Act of 1955 (Ga. Laws 1955, p. 10 (Ga. Code Ann. Chs. 86-1 through 86-14)) that it is the clear intent and desire of the General Assembly to authorize local support of the National Guard. For example, the General Assembly has expressly provided that: "The governing authorities of the counties and municipal corporations of the state are authorized to make appropriations from the funds of such counties and municipal corporations and donate property, both real and personal, of such counties and municipal corporations for the support and maintenance of local forces of the organized militia as, in their discretion, they may deem meet and proper." (Ga. Laws 1955, pp. 10, 92 (Ga. Code Ann. 86-806).) The wording of the above provision by itself clearly authorizes appropriations and donations of property by counties and municipalities. Whether the county or municipal corporation makes an appropriation or donation, or how much they appropriate or donate, remains a matter solely within the discretion of the county or municipality. In summary, it is my opinion that counties and municipalities of this state are authorized to make appropriations and to donate property for the support and maintenance of local National Guard organizations throughout the state. OPINION 73-16 To: Secretary of State February 14, 1973 Re: Reorganization; effect as to persons constituting the Claims Advisory Board. This is in response to your inquiry as to what persons, under reorganization, should serve on the Claims Advisory Board's positions which were originally designated for the Director of the Highway Department and the Director of the Department of Public Health. The Executive Reorganization Act of 1972, Ga. Laws 1972, pp. 1015, 1064, specifically provides, in Section 2003 (Ga. Code Ann. 40-35190), that: "The position of Director of the State Highway Department of Georgia . . . shall be renamed Director of the Department of Transportation. Unless inconsistent with this Act, any reference in Georgia laws to the Director of the State Highway Department of Georgia means the Director of the Department of Transportation created in this Act." 25 73-17 This means that the person presently serving as Director of the Department of Transportation should sit on the Claims Advisory Board in the position originally designated for the Director of the Highway Department. As for the position originally designated for the Director of the Department of Public Health, the present counterpart to the Department of Public Health is the Department of Human Resources. Ga. Laws 1972, pp. 1015, 1046, Section 1201 (Ga. Code Ann. 40-35101); Ga. Laws 1972, p. 1069, Section 3 (Ga. Code Ann. 40-35123.2). Prior to reorganization, the Director of the Department of Public Health served as the" ... chief executive of the department." Ga. Code Ann. 88-112, as based upon Ga. Laws 1964, pp. 499, 508; 1967, pp. 26, 27. Similarly, the Commissioner of Human Resources serves as the "chief administrative officer" of the Department of Human Resources and is vested with the authority to execute the functions of the department, including those formerly vested in the Department of Public Health. It is, therefore, my official opinion that the Commissioner of Human Resources replaces the Director of the Department of Public Health as a member of the Claims Advisory Board. While it may have been the General Assembly's purpose in designating the Director of the Department of Public Health as a member of the board to make available his medical expertise, such a purpose was not recognized in the Reorganization Acts and would be appropriately expressed by the General Assembly in any future legislation. OPINION 73-17 To: Chairman, State Board of Pardons and Paroles February 16, 1973 Re: Courts of record; preservation of acts and proceedings is required of a "court of record." This is in response to your recent letter wherein you seek my opinion as to the construction of "court of record" as it appears in Ga. Laws 1965, pp. 478, 480 (Ga. Code Ann. 77-519). The term "court of record" is not defined in the Constitution of Georgia, nor in our statutes. Blackstone defines a court of record as follows: "A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the records of the court, and are of such high and supereminent authority that their truth is not to be called in question." 3 Blackstone's Commentaries, pp. 23, 24. 73-18 26 In determining whether a particular court is a court of record, the Supreme Court of Georgia has been influenced by Blackstone and the notion of permanency of records. See DeKalb County v. Deason, 221 Ga. 237 (1965). Inasmuch as our statutes and Constitution do not define "court of record," it has been held that the General Assembly may declare what courts it deems to be courts of record. Crosby v. Dixie Metal Co., 227 Ga. 541 (1971). Further, it has been held that: " ... the legislature may declare ... what records such court shall keep so long as such records appear reasonably calculated to preserve as a perpetual memorial the acts and judicial proceedings of such courts including a precise history of suits brought therein from their commencement to their termination including conclusions of law thereon drawn by the proper officer." Id. at 544. (Emphasis added.) It should be borne in mind that the General Assembly does not have to declare that a particular court is of record for that court to be of record; rather, the legislative declaration may be helpful in ascertaining whether a particular court is of record. For example, the superior courts are courts of record although the General Assembly has not made such a declaration. Courts of ordinary are also courts of record even though a legislative declaration is lacking. Bragg v. Bragg, 225 Ga. 494 (1969). As to whether any particular inferior tribunal is a court of record, the legislation creating the particular court should be consulted so as to determine if the record keeping requirements imposed on the court are sufficient to meet the standards alluded to by the Supreme Court of Georgia. Based upon the above, if a particular court keeps such records as appear reasonably calculated to preserve as a perpetual memorial the acts and judicial proceedings of such court, then for purposes of Ga. Laws 1965, pp. 478,480 (Ga. Code Ann. 77-519), it is my opinion that the court is a "court of record." OPINION 73-18 To: Commissioner, Department of Public Safety February 16, 1973 Re: Recorders courts; compliance with system of uniform traffic citations and reports. This opinion is issued in response to your letter of January 12, 1973, inquiring whether recorders courts are required to comply with Ga. 27 73-19 Laws 1972, p. 1148 (Ga. Code Ann. 92A-2701 to 92A-2704), regarding uniform traffic citations. The intent of the General Assembly regarding Ga. Laws 1972, p. 1148, appears to be clear from the law itself. Section 1 (Ga. Code Ann. 92A-2701) provides that all law enforcement officers empowered to enforce the traffic laws and ordinances in effect in the state must use the uniform traffic citation promulgated by the Commissioner of the Department of Public Safety. Since no exceptions to compliance are made, all law officers must use the uniform traffic citation when enforcing traffic laws and ordinances. Moreover, the recorders court, being a court with jurisdiction over traffic offenses, must comply with the reporting requirements of Ga. Laws 1972, p. 1148, Section 4 (Ga. Code Ann. 92A-2704). See Ga. Laws 1937-38, Extra. Sess., p. 558 (Ga. Code Ann. 92A-501, 92A-503). OPINION 73-19 To: Commissioner, Department of Public Safety February 16, 1973 Re: Motor vehicle safety responsibility; self-insurance. Your letter of January 16 inquires whether a person whose vehicles are not registered in Georgia may be issued a certificate of self-insurance. Ga. Laws 1951, p. 565, Section 16, as amended by Ga. Laws 1956, p. 543, Section 20 (unofficially codified as Ga. Code Ann. 92A-616), specifies that any person in whose name more than 10 vehicles are registered is eligible for consideration as a self-insurer. "Registration" is defined by Ga. Laws 1951, p. 565, Section 1 (unofficially codified as Ga. Code Ann. 92A-601 (8)), to mean registered under the laws of the State of Georgia. The preface to the definitions in this section states that for purposes of the Act, a word must be construed as defined in Section 1, unless another meaning is obviously intended. Since the word "registered" is the verb form of the noun "registration" and no intention of a contrary meaning is present, the definition, as set forth in Ga. Laws 1951, p. 565, Section 1, is controlling. It follows that no certificate of self-insurance may be issued to one who does not have 10 vehicles registered in Georgia. Your letter also raised the question of granting reciprocity if a person operating under a certificate of self-insurance issued by another state was involved in an accident in Georgia. Ga. Laws 1951, p. 565, Section 8, as specifically amended by Ga. Laws 1958, p. 694 (Ga. Code Ann. 92A-609), establishes the practice of granting reciprocity in suspen- 73-19 28 sion of drivers licenses when a state with which Georgia has an agreement furnishes certification that an operating privilege of a Georgia licensee has been revoked in that state. This indicates that it is the policy of Georgia to cooperate with other states regarding safety responsibility. It is provided by Ga. Laws 1951, p. 565, Section 5, as specifically amended by Ga. Laws 1969, p. 819 (Ga. Code Ann. 92A-605), that if a vehicle registered in another state is covered by a presently effective policy of insurance, then no bond need be posted in the event of an accident. Although the section refers specifically to insurance policies or other form of liability insurance without mentioning self-insurance, it would appear that self-insurance certificates were intended as an equivalent to insurance policies and, therefore, if Georgia will recognize an out-of-state registrant's insurance policy it should recognize his certificate of self-insurance, at least where the state issuing the certificate is one to which Georgia grants reciprocity. It should be noted that under the provisions of the law in question, the out-of-state vehicle's policy does not operate to except the owner or operator from the requirements of the Safety Responsibility Law unless " ... the insurance company or surety company, if not authorized to do business in this state, shall execute a power of attorney authorizing the director [commissioner] to accept service on its behalf of notice or process in any action upon such policy or bond arising out of such accident...." [Ga. Code Ann. 92A-605(c)]. Since a certificate of self-insurance issued by another state seems to be analogous to an insurance policy issued by an insurance company not authorized to do business in Georgia for the purposes of the Safety Responsibility Law, the commissioner could accept out-of-state selfinsurance certificates from those states to which it grants reciprocity. This should be done only upon the further requirement, which would be authorized under the rule-making power, that the person who qualifies as a self-insurer under the laws of his state execute a power of attorney authorizing the commissioner to accept service or process in his behalf. In answer to the question, then, it would appear that reciprocity may be granted to out-of-state self-insurance certificates provided that Georgia citizens will be protected by the consent of the nonresident self-insurer to have the commissioner accept service for him. 29 73-20 OPINION 73-20 To: Representative, District 5 February 19, 1973 Re: Prisons and prisoners; propriety of use by Georgia Correctional Industries Administration of revolving funds for construction of prison facilities. This is in reply to your request for an opinion on the propriety of the use by Georgia Correctional Industries Administration of "revolving funds" to aid in the completion of prison facilities by the Georgia Building Authority (Penal) for the State Board of Corrections. In order to answer the question presented, it was necessary that we review the facts surrounding the transactions involved. In sum, in the fiscal year 1972, the Georgia Correctional Industries Administration transferred approximately $231,000 to the Georgia Building Authority (Penal) to enable the Authority to complete construction of the Walker and Montgomery Correctional Institutes. The funds were drawn from a revolving fund of $500,000 appropriated by the General Assembly through the State Board of Corrections, as a budget unit, by Ga. Laws 1965, p. 44, for the fiscal year 1965-66. The purpose of the appropriation, according to the budget reports submitted that year, was "to establish a prison industries revolving fund to operate the various industries at Georgia State Prison in Reidsville." In 1971, the amount of $231,000 was drawn from this fund as stated above. The withdrawal was conceived in September 1971, after bids received for the construction of the two prison facilities made it apparent that insufficient funds had been allocated for the construction of the facilities. The Director of the State Department of Corrections, who is also Director of the Georgia Correctional Industries Administration, conferred with the then State Budget Officer and with the State Auditor, who is also Secretary-Treasurer of the Georgia Building Authority (Penal). As a result of this conference, the Correction officials involved determined that they had authority to use Correctional Industries funds for the construction. Further, correspondence by Correction officials with the State Auditor and by the State Auditor with the Authority in September 1971 strengthened this understanding. As a result, Georgia Correctional Industries Administration made the transfer in question of funds from its revolving account to the Georgia Building Authority (Penal). The audit of the Department of Corrections for the fiscal year 1972 took exception to this transaction. As a result, the Department of Corrections transferred to Georgia Correctional Industries Administration an amount equal to the amount previously transferred by Correctional Industries to the Building Authority. 73-21 30 As a result of our investigation, we have determined that all parties involved acted in the utmost good faith, securing apparent approval from the officials they thought involved, and that all funds involved were expended for public purposes. Also, as a result of investigation, we have determined that all parties are in a position substantially similar to that occupied by them before these transactions occurred. While there may be some question as to the authority of the parties involved to engage in these transactions, it it my opinion that the matter has resolved itself into essentially a question of accounting. While that question also appears to have been resolved, I suggest that you confer with the State Auditor, who is responsible for such matters. OPINION 73-21 To: Commissioner, Department of Transportation February 20, 1973 Re: Outdoor advertising; devices in existence prior to present law. This is in reply to your letter of January 12, 1973, requesting my official opinion as to the application of Sections 9 and 11 (Ga. Code Ann. 95-2009a, 95-201la) of the Outdoor Advertising Control Act (Ga. Laws 1971, Extra. Sess., p. 5) to outdoor advertising devices lawfully in existence on the effective date of the Act (October 6, 1971), and meeting the design and location criteria of the Act, but for which no permit has been obtained. You wish to know whether, under the provisions of Section 9(b), such devices became illegal after January 1, 1972, and whether Section 11 requires compensation to be paid for these devices. No outdoor advertising device for which a permit is required can be lawfully maintained without said permit, or a renewal thereof. Ga. Laws 1971, Extra. Sess., pp. 5, 20, Section 15 (Ga. Code Ann. 95-2015a). If a permit has not been issued, either because the device fails to meet the design or location requirements of the Act or because the owner has not applied for one, the device is being unlawfully maintained. This is true even though the device was lawfully in existence on the effective date of the Act. Section 11 of the Act (Ga. Laws 1971, Extra. Sess., pp. 5, 17 (Ga. Code Ann. 95-2011a)) requires the department to pay just compensation for any property rights in outdoor advertising devices " ... which are lawfully in existence on the effective date of this Act but which do not conform to the provisions of this Act." This section applies to all devices lawfully in existence on October 6, 1971, but which now are required to be removed because they do not meet the specifications of 31 73-22 lawful advertising devices. This compensation is due because the owner has had his right to maintain that particular device at that location taken by the state. In the situation posed by your inquiry the state would not be taking any property or property right from the owner. Section 11 does not require compensation to be paid owners of devices which meet design and location requirements, but for which no permit has been sought. Compensation is required only when private property or property rights are taken for a public purpose. Ga. Code Ann. 2-301 (Ga. Const., Art. I, Sec. III, Par. I). Where the device meets the design and location requirements of the Act it may be lawfully maintained at its present location provided the owner applies for and obtains the necessary permit. Therefore, there has been no taking of property or property rights for which compensation is due. The Department of Transportation would merely insist that the owner either apply for and obtain a permit, thereby fully complying with the 1971 Act, or that he remove the advertising device. The requirement of a license or permit for engaging in a particular occupation or activity is not a taking of private property without compensation unless it amounts, in effect, to confiscation of the taxpayer's property. See Leonard & Leonard v. Earle, 279 U.S. 392 (1928); City of Thomson v. Davis, 92 Ga. App. 216 (1955). To enforce the permit provisions of the Act, as it is the department's duty to do (Ga. Laws 1971, Extra. Sess., pp. 5, 20 (Ga. Code Ann. 95-2015a, 95-9924.1)), would not be a taking or damaging of property or property rights in devices which could be permitted if application were made. Therefore, no compensation would be due the owners of such devices. It is, therefore, my official opinion that any presently existing outdoor advertising device, for which a permit is required but for which a permit has not been issued, is being unlawfully maintained. If that device meets the design and location requirements of the Outdoor Advertising Control Act, no compensation is due the owner because no property or property right has been taken from him. OPINION 73-22 To: Chairman, State Board of Pardons and Paroles February 21, 1973 Re: Sex criminals; personnel employed to examine. This is in response to your recent letter wherein you requested my opinion on certain matters concerning the examination of persons convicted of sex crimes. As you know, the authority of the board pertaining to the examination of persons convicted of sex crimes is found in Ga. Laws 1956, 73-22 32 pp. 580, 582 (Ga. Code Ann. 77-539), as amended. When required, the examination formerly was to be performed by the advisory staff created in Section 1 of Ga. Laws 1956, pp. 580, 581 (see Ga. Code Ann. 77-535). Provisions as to qualifications of appointees, appointments, term of office, and per diem expenses are also found in this statute. The advisory staff was subsequently abolished and the Board of Pardons and Paroles was authorized to "employ personnel to perform the duties and make examinations" previously performed by the advisory staff. Ga. Laws 1959, p. 24, amending Ga. Code Ann. 77-535. However, employment of such personnel was authorized "only for specific cases and only when felt absolutely needed by the board ..." Ga. Laws 1959, p. 24 (Ga. Code Ann. former 77-535). More recently, however, this statute was amended so as to repeal the specific case and absolute need restrictions. Ga. Laws 1972, p. 1011. The board has always had the power to appoint such expert assistants as deemed necessary. Ga. Laws 1943, pp. 185, 186 (Ga. Code Ann. 77-509). Further, the board may make investigations as deemed necessary so as to be fully informed about persons seeking parole. Ga. Laws 1943, pp. 185, 190 (Ga. Code Ann. 77-516). Therefore, the board may continue to require examination of sex crime offenders pursuant to Ga. Laws 1972, pp. 1158, 1160 (Ga. Code Ann. 77-539) with personnel appointed under the authority of the above-cited statutes. It should be noted that an examination of a sex crjme offender is required only upon request made by the Board of Pardons and Paroles. Thus, such examinations are discretionary and not mandatory. Therefore, based on the above, it is my opinion that the board may appoint one or more expert assjstants to perform any examination of a sex crime offender deemed necessary. Further, it is my opinion that the provisions as to qualifications, appointments, term of office, and per diem expenses of members of the advisory staff created by Ga. Laws 1956, pp. 580, 581, are of no effect because the advisory staff was subsequently abolished. You also ask whether the Executive Reorganization Act of 1972 (Ga. Laws 1972, p. 1015) transfers the responsibility for the examination of sex crime offenders from the Board of Pardons and Paroles. The quasi-judicial functions of the board were expressly continued by the Reorganization Act. Ga. Laws 1972, pp. 1069, 1074-1075 (Ga. Code Ann. 40-35162.4). An examination of a sex crime offender would be precedent to parole consideration and thus within the scope of "quasi-judicial functions." Therefore, it is my opinion that the board has the authority to require an examination of a sex crime offender pursuant to the statutes discussed earlier. Also, as previously noted, such an examination is discretionary with the board. 33 73-23 OPINION 73-23 To: Commissioner, Department of Public Safety February 23, 1973 Re: Motor vehicle equipment; flashing lights for university campus security officers. This responds to your letter of January 31, 1973, requesting my official opinion concerning the status of campus security agencies under the law regulating the use of flashing blue lights, Ga. Laws 1972, p. 1092 (Ga. Code Ann. 68-414). It is my official opinion that flashing or revolving blue lights can be operated on motor vehicles belonging to campus police and security departments of the University System of Georgia. The emergency light statute about which you are concerned declares in relevant part: "It shall be unlawful for any person, firm or corporation to operate any motor vehicle with flashing or revolving blue lights, except motor vehicles belonging to any federal, state or local law enforcement agency." Ga. Laws 1972, pp. 1092, 1093 (Ga. Code Ann. 68-414). The first question that must be answered, therefore, is whether the campus security agencies about which you ask are "law enforcement agencies" within the contemplation of this statute. Under Georgia law, anyone who is charged by law with the enforcing of the laws of the state is considered a law enforcement officer. Vandiver v. Williams, 106 Ga. App. 435 (1962). The law from which campus security personnel derive their law enforcement authority provides: "The campus policemen and other security personnel of the University System of Georgia who are regular employees of the University System of Georgia shall have the power to make arrests for offenses committed upon any property under the jurisdiction of the Board of Regents of the University System of Georgia." Ga. Laws 1966, p. 370 (Ga. Code Ann. 32-168). Campus security personnel, being thus charged with enforcing the laws of this state (to the extent they are violated on university property), should certainly be considered law enforcement officers, and the Board of Regents, as the agency responsible for such security personnel, is pro tanto a law enforcement agency. It follows, therefore, that it is not violative of the law for a motor vehicle which belongs to the Board of Regents and serves a law enforcement function to operate with a flashing or revolving blue light. 73-24 34 Two important limitations on the scope of this opinion need to be emphasized. The first is that the vehicle must belong to the Board of Regents for this opinion to be applicable. The second is that this opinion is applicable only to the University System, not to other schools, colleges, or campuses which are not under the jurisdiction of the Board of Regents. In response to your question whether emergency light permits should be issued for campus security vehicles, your attention is called to the unofficial opinion rendered by this office on December 21, 1972. See Op. Att'y Gen. U72-130. As that opinion points out, the only "permits" provided for by the statute are special use permits for amber lights, and no "permit" is required for vehicles authorized by law to use blue or red lights. This December 21, 1972 opinion is equally applicable to campus security vehicles. Blue light stickers can be supplied as identification, but no sticker or permit can be required under the law. In summary, campus security vehicles belonging to the Board of Regents are authorized by law to operate blue flashing or rotating lights, and should be treated by the department in the same way as vehicles belonging to other law enforcement agencies. OPINION 73-24 To: Commissioner, Department of Human Resources February 26, 1973 Re: Abortion; authority of Board of Human Resources to regulate. We have delayed responding to your request until now, because of the then pending nature of the broad attack on Georgia's law on abortion as found in the Criminal Code of Georgia, 26-1201 et seq., based on Ga. Laws 1968, pp. 1249, 1277. As you know, the decision in the case of Doe v. Bolton, 410 U.S. 179 (1973), as well as the decision in the related Texas case of Roe v. Wade, 410 U.S. 113 (1973), was rendered on January 22, 1973. In Doe, the court expressly struck certain portions of the statute but recognized the state's legitimate interest in regulating certain aspects of abortion procedures at designated stages of fetal development. Although we have filed a petition for rehearing, the board may wish to proceed with its rule-making deliberations. Neither under the statute as passed by the General Assembly in 1968 (Ga. Laws 1968, pp. 1249, 1280), nor under those portions of the statute which were not excised by the judicial scalpel, does the Georgia Board of Human Resources have any regulatory or licensing powers directly. Its only direct, statutorily expressed connection is, and was, the collection of certain documents after an abortion is performed (Criminal Code 26-1202[b](8)). 35 73-24 We must turn, then, to the regulatory and licensing powers of the board generally. The functions of the Department of Human Resources are those previously belonging to the Department of Public Health and transferred to the Department of Human Resources by the 1972 reorganization of public health administration. Ga. Laws 1972, p. 1069 (Ga. Code Ann. 40-35123.2). The policy-making authority of the previous Board of Health with respect to those functions, including the power to promulgate regulations, was transferred by the same Act to the Board of Human Resources. Ga. Laws 1972, pp. 1069, 1072 (Ga. Code Ann. 40-35123.3). The duty, functions and powers of the Department of Human Resources are set out in the Georgia Health Code (Ga. Code Ann. 88-108, as based upon Ga. Laws 1964, pp. 499, 505; 1971, p. 669); rule-making authority, with respect to those functions, is set out in the same Code (Ga. Code Ann. 88-1110, as based upon Ga. Laws 1964, pp. 499, 507). It is my opinion that by virtue of these two expressly broad provisions, the board does have the power to promulgate rules and regulations governing abortions where it finds such regulation appropriate to promote or safeguard the public health. This power is founded upon the authority given by the General Assembly: "to adopt and promulgate rules and regulations to effect prevention, correction, and abatement of such situations and conditions [i. e., those which, if not promptly checked, would militate against the health of its constituents]." Ga. Code Ann. 88-110. Note that the General Assembly not only gave authority to do this but actually directed that it be done. The "situations and conditions" referred to are exemplified in a nonexhaustive list in Ga. Code Ann. 88-108. Although nowhere in the itemization does it refer to abortion procedures specifically or maternal health generally, 1 it is evident that such matters would be within the scope of the rule-making power. Such a conclusion is mandated by the clear language of the statute: "The department is created and established to safeguard and promote the health of the people of this state, and is hereby empowered to employ all legal means appropriate to that end. "Illustrating without limiting the foregoing grant of authority, the department is hereby empowered to: [then follows the list]." Ga. Code Ann. 88-108. 1 Maternal health services are specifically mentioned, however, with respect to the department's involvement with federal funds. See Georgia Health Code 88-lll(a) and Ga. Laws 1972, p. 635 (Ga. Code Ann. Ch. 40-34, Council on Maternal Health). Whether "maternal health care" embraces abortion services, inasmuch as the patient abrogates and wishes to end her "maternal" status, is questionablP. 73-24 36 The broad rule-making power is given because: "Manifestly, no legislative body can foresee or cope with all situations and conditions, which, if not promptly checked, would militate against the health of its constituents ..." Ga. Code Ann. 88-110. However, it is to be noted that a cautionary measure is included: "Such rules and regulations must be adopted to the purposes intended and be within the purview of the powers and duties imposed upon said department by this Title." Ga. Code Ann. 88-110. This limitation requires that the board exercise its regulatory authority to safeguard the public health in a manner designed to achieve that purpose. Moreover, in addition to the broad mandate of Ga. Code Ann. 88-108 through 88-111, the board is given, for public health purposes, express regulatory authority over specific areas of the health care field in which the board may find regulation of abortion procedure appropriate. Chapter 88-19 is particularly in point. It deals with the regulation of hospitals and related institutions. While this Code Chapter authorizes the department through the board to promulgate rules and regulations to protect patients of institutions, and requires prior consultation with the Hospital Advisory Council in this regard, such authority would extend only to abortions performed in "institutions," that is in: "(a) ... (1) any community mental health and mental retardation facility; or (2) any building, facility, or place in which is provided two or more beds and other facilities and services that are used for persons received for either examination, diagnosis, treatment, surgery, maternity care, nursing care, or personal care for periods continuing for 24 hours or longer and which are classified by the Department of Health, as provided for herein, as either a hospital, nursing home, or personal care home." Ga. Code Ann. 88-1901, based upon Ga. Laws 1964, pp. 499, 611; 1969, pp. 715, 716. The board would therefore have broad power to regulate abortions in these institutions. By definition, however, the provisions of Chapter 88-19 of the Georgia Health Code could not be utilized by the board to extend regulation to abortions performed in facilities other than those embraced by the term "institution." Note also that the regulations concerning abortion which are to apply to "institutions" must be "reasonable" and are to be "necessary to protect the health and lives of patients" (pregnant women and, when applicable, viable fetuses). Georgia Health Code 88-1902 and 88-1903, based upon Ga. Laws 37 73-24 1964, pp. 499, 612. The rules and regulations made in this regard would be enforceable against "institutions" by way of the issuance, refusal, and revocation of permits, as well as by any other general sanctions provided by law. See Georgia Health Code 88-1905 and 88-1906, based upon Ga. Laws 1964, pp. 499, 612, 613. The board also has rule-making power with respect to standards, the qualification of personnel, and the performance of personnel in clinical laboratories, as that term is defined in Ga. Laws 1970, pp. 531, 532, as amended (Ga. Code Ann. 84-5502(d)). See especially the section unofficially codified as Ga. Code Ann. 84-5503. However, the board would have to determine whether and in what manner such laboratories are related to abortion practices and procedures, if at all. With respect to the regulation of abortion clinics or other facilities which are not statutorily included in Code Chapter 88-19, or in Code Chapter 84-55, the board does have the power to regulate these facilities as well as the performance of abortions generally, by virtue of the powers vested by Chapter 88-1 of the Georgia Health Code. vVe have discussed these provisions earlier. Of course, such regulations would have to meet the qualifications set out in that chapter and not exceed the scope allowed. In addition, abortions in facilities or institutions which are under the supervision and administrative control of the department may be regulated. See Ga. Code Ann. 88-115, as based upon Ga. Laws 1964, pp. 499, 509. The department has extensive powers to enforce any rules and regulations adopted by the board pursuant to the Georgia Health Code. Chapter 88-3 thereof, based upon Ga. Laws 1964, pp. 499, 518-523, declares any violation to be a misdemeanor and provides the additional sanction of suits for injunction. Revocations or suspension of permits or licenses is another available sanction. See Georgia Health Code 88-304, 88-1906. See also Ga. Code Ann. 84-5504, as based upon Ga. Laws 1970, pp. 531, 534. Finally, it is important that the board recognize that any regulations which it promulgates will have to be consistent with the final holding of the United States Supreme Court in the abortion cases. We will keep you advised of the court's action with regard to the petition for rehearmg. In sum, the Board of Human Resources is given the specific but nonetheless broad authorization by Code 88-108 to "safeguard and promote" the health of the people of this state, and is empowered to employ its rule-making authority to that end. It is therefore my official opinion that under its purposely broad statutory authority to safeguard the public health as well as under its statutory authority in specific areas of the public health field, the Board of Human Resources may regulate, for public health purposes, the performance of abortion procedures, limited, however, by the con- 73-25 38 stitutional doctrines enunciated by the Supreme Court of the United States. We have not addressed ourselves to the extent, if any, of regulation in this area which may be undertaken by the Composite State Board of Medical Examiners. Since your inquiry preceded the Supreme Court's action and since your department may now have some more definitive concept of its desires with respect to abortion regulation, we will leave further exploration to any questions which may arise. OPINION 73-25 To: Commissioner of Securities March 5, 1973 Re: Securities; question as to whether shares m recreational land development scheme are governed by statute. By letter you have asked my opinion as to certain matters involving the administration of the securities laws of this state. Specifically, you have been approached by certain promoters with plans to form a "nonprofit" recreational corporation (hereinafter called the "club"), who have asked whether the sale of club memberships would be subject to "Blue Sky" regulation under the Securities Act of 1957, as amended. Ga. Laws 1957, p. 134 et seq., as amended (Ga. Code Ann. Title 97). The important first issue in such a problem is whether the instruments sold, here represented by "memberships" in the club, are securities within the meaning of the Blue Sky definition of the term. In deciding this issue, one considers the substance and economic reality of a plan, rather than merely the legal form it may take. E.g., Georgia Market Centers, Inc. v. Fortson, 225 Ga. 854 (1969); Op. Att'y Gen. 69-471. The Proposal: The proposed plan, about which you have been asked, would begin with the sale of lake and forest land to a limited partnership, whose business purpose is to develop and manage recreational sites, and one of whose general partners is the landowner. The "developer," i.e., the limited partnership, would, in turn, sell the property at a profit to the recreational club, in a manner coordinated with the sale of memberships in the club and more fully described below. The developer also would enter into a contract by which it would manage both the sale of club memberships and also the operation of its recreational facility. This also is more fully described below. A proposed information circular describes a membership as being evidenced by a certificate of stock, representing a "proprietary interest" in the club. Along with the "pro rata right of ownership" in club property, a member will obtain use of recreational facilities of the clubpursuant to its bylaws and regulations. 39 73-25 The information circular indicates that purchasers should be interested in outdoor recreation and should intend to obtain the membership for their own personal use. An increase in the value of the proprietary interest is said to be uncertain and speculative. Purchase with a profit motive is discouraged. Indeed, there is a restriction on transfer of a membership, in that the transferee must qualify as a member, and also in that the board of directors must approve the transfer. (Their approval is not to be withheld unreasonably.) Beyond membership qualifications already discussed, the member must own camping equipment, be more than 21 years old, visit the property and have an annual income exceeding $10,000. A membership, apparently including the proprietary interest, may be lost for failure to pay club dues and assessments or for failure to make installment payments towards purchase of the membership. Dues and assessments will be set by the board, which also may set a reasonable charge for use of club facilities. Development and operation of the club will be keyed to various levels m the sales of these memberships. Under the terms of a sales contract to be entered into between the club and the developer, various documents and membership proceeds would be placed in escrow. If 200 memberships are not sold within 12 months, purchasers will receive a refund. If the requirement is met, the plan will take effect. Under it the recreation site would be divided into eight parcels representing "eight phases of development." Seven of these parcels will contain camp sites and trails. The eighth will be a common facility, including buildings, beach and lake. "To provide for an orderly and continuous development of the campgrounds," it is planned, but not required (as explained below), that these parcels be acquired by the club as sales of its memberships reach successive plateaus. Thus, the escrow agent will convey parcel one to the club when the first 200 members subscribe. By terms of the sales contract, the club will then have options to purchase campsite parcels one through seven, which options must be exercised by specified dates over a period of about 21 months. It is contemplated that similar escrow arrangements would be used to buy these parcels "except, of course, the club reserves the right to make other financial arrangements for the purchase of the various parcels from the developer." As planned, successive plateaus of 116 to 118 memberships would be passed en route to a tentative total of 900 members before the club acquires the seventh and final campsite parcel. When it does acquire the seventh campsite parcel, the club also would receive the common facility, thus owning the entire development. In the meantime, however, the developer would continue to own the common area and other unsold parcels. It is specifically provided that the developer will retain the right to commercial use of unsold parcels. 73-25 40 Club members would obtain use of the common facility through a use agreement "in the nature of an easement," which would take effect on purchase of the first parcel. They would share the facility with commercial customers of the developer and bear their pro rata share of costs. The developer would obligate itself to make certain improvements to the common facility by the time the club begins. These improvements would be financed by a loan for which the developer alone is to be liable. We are not told whether the lender would retain a security interest in the property. We are told that promissory notes given to purchase memberships will be secured by the property and also by the developer. Other improvements will be keyed to sales of memberships. An adult lodge must be built by the developer, along with tennis courts, within 60 days of the sale of 550 memberships (if weather permits). The beach will be extended at 600 memberships. The developer will be obligated to construct campsites and trails on parcels one through seven within 60 days after each parcel is sold. As has been indicated, the club will have a minimum of 200 memberships, and it will need a planned 900 to buy the entire property. The board is given authority to terminate membership sales at any time, and it may authorize sales beyond 900 memberships. In addition: "Once 600 proprietary interests have been sold, the board ... may, in conjunction with (the developer), acquire property in other locations for similar purposes and authorize the sale of additional proprietary interests sufficient to acquire and develop the other properties." (Emphasis added.) The developer will be under contract to manage the club's recreational program as well as the sale of its memberships. (Membership sales will be by "agents" of the club, hired and supervised by the developer.) This management contract will run six years after sale of the last membership. In addition to proceeds from the sales of memberships, the developer will receive a management fee of five percent of the club's gross revenues from dues, assessments, and fees. This revenue also will cover operating expense. The developer will cover any firstyear operating deficit. The board will set the dues and assessments of the club and promulgate its regulation. The general partners of the developer will constitute a majority of the initial board of directors of the club. This board will sit until 850 memberships are sold, after which board composition will be determined by elections. The following helps characterize the plan somewhat more fully: The purchase price to the developer will be about $400,000. The price to the club-about $1,840,000. This is about $24,000 per acre. Memberships 41 73-25 would average about $3,150. Dues are estimated from $8 - $15 per month. Other assessments and fees are not estimated. The Securities Act Discussed: The Georgia Securities Act is typical in that it defines "security," exempts (to an extent) certain transactions and securities, and then provides for regulation of the remainder. Under the Act, " 'Security' shall mean any ... stock ... certificate of interest or participation ... preorganization certificate ... preincorporation certificate ... investment contract ... beneficial interest in title to property, profits or earnings, or any other instrument commonly known as a security...." Ga. Laws 1957, pp. 134, 135, as amended (Ga. Code Ann. 97-102 (i)). Again, the Act is typical in that its definition first lists "instruments having a rather fixed meaning such as stocks ... which traditionally have been recognized as securities." See Long, "An Attempt to Return 'Investment Contracts' to the Mainstream of Securities Regulation," 24 Okla. L. Rev. 135, 160 (1971). Then the list follows with incremental elements of the definition, which themselves have less generally accepted meanings. To be a security, it is not necessary that an instrument "be susceptible to exact classification coextensive with one or more" of these incremental clauses, and, in addition, since securities regulation is a function of substance, one should hesitate to hand down any conclusive, all-purpose formalae. Op. Att'y Gen. 69-471. The rule of substance arguably works in both directions. If nontraditional situations are found to involve a security by a test of substance, then presumably the same test might remove what appears to be a security from the reach of the Act. There is authority each way. One might feel that "stock," for example, necessarily constitutes a "security." See Note, "Cooperative Housing Corporations and the Federal Securities Laws," 71 Colum. L. Rev. 118, 127 (1971), discussing wenig and Schulz, "Government Regulation of the Condominium in California," 14 Hart. L. J. 222, 233 (1963); Justus v. Bowers, 148 N.E.2d 917 (Ohio 1958) (Cone. op.). In contrast to this "formal" approach, even where stock is involved, some authorities argue that the underlying events still must satisfy the "substantive" requirements of a "security" definition. Compare Hacker v. Goldberg, 263 Ill. App. 73 (1931); see Note, 71 Colum. L. Rev. 118, 127-132 (1971). The problem of determining the "substance" of the "securities" definition has had its greatest development in regard to the less welldefined elements of the definition, and of these, the term "investment contract" has engendered by far the most litigation and discussion. 73-25 42 Its classic definition was given in Securities and Exchange Commission v. W. J. Howey Co., 328 U.S. 293 (1945), which, as adopted by the Supreme Court of Georgia, characterizes an investment contract as "a scheme involving an investment of money in a common enterprise with profits to come solely from the efforts of others." Georgia Market Centers, Inc. v. Fortson, 225 Ga. 854 (1969). Howey involved the sale of small units of orange grove property, whose values were dependent upon collective management by others. Thus, it has become well accepted that "investment contract" includes many situations where investors are offered land in such a way that its value is dependent on management by others. Compare also Sire Plan Portfolios, Inc. v. Carpentier, 132 N.E.2d 78 (Ill. App. 1956). The facts in the instant problem clearly are within the rationale of these cases, except that the profit motive, if any, does not take the traditional form of a chance at monetary gain. Investors in the club expressly are told not to expect an increase in value of the proprietary interest. Indeed, given the price of the land to the club, it is unlikely the value will appreciate significantly. Almost certainly, any increase in value at all would be dependent upon success of the developer in managing the recreational program. This is exactly the benefit sought by the members: a viable recreation program. Whether such a nonpecuniary benefit satisfies the profit test has been troublesome, particularly where property is sold and then managed by others. One leading case held that its state's Blue Sky law did not require that an instrument offer a hope of material gain to be a security. Silver Hills Country Club v. Sobieski, 361 P.2d 906 (Cal. 1961); but compare Hacker v. Goldberg, 263 Ill. App. 73 (1931). In administering the Federal Securities Act of 1933, the Securities and Exchange Commission recently narrowed the situations in which it will consider the sale of a condominium, coupled with collateral arrangements for services by others, to be within the scope of the 1933 Act. In part, the SEC will not require registration where income from common facilities is used only to offset common area expenses and is not a "primary income source for individual owners." Release No. 5347, Sec. Reg. L. Rptr. No. 184 D-1 (1973). In line with this general approach is a series of cases refusing Blue Sky treatment of cooperative apartment sales. See Willmont v. Tellone, 137 So. 2d 610 (Fla. 1962); State v. Silberberg, 131 N.E.2d 342 (Ohio 1956); Brothers v. McMahon, 115 N.E.2d 116 (Ill. 1953); State v. Hirsch, 131 N.E.2d 419 (Ohio 1956); Note, 71 Colum. L. Rev. 118, 127-132 (1971); Miller, Cooperative Apartments: Real Estate or Securities?, 45 Boston U.L. Rev. 465, 474-477 (1965). The cases have been explained as denying coverage because of the absence of a profit motive. A more accurate description of the approach they share, however, "is that the cooperative housing share is not a 43 73-25 security because of the underlying transaction's similarity to an ordinary real estate transaction involving the purchase of an individual home." Note, 71 Colum. L. Rev. 118, 131 (1971). Explanation of these cases in terms of homebuying rather than absence of profit motive is in better keeping with the rule of substance. Indeed, the "profit motive" test may be so narrow as to be unfair and erroneous. A Blue Sky Act is meant to protect the public in certain situations where individuals are asked to allow other persons to have the management of their capital. Traditionally, there has been a promise of monetary returns. This is not surprising. What strikes me as surprising is the argument that an Act meant to guard against certain schemes where there is an inducement of money is not meant to guard against schemes exactly the same with the exception that there is not even the hope of monetary return. Absence of a possibility of monetary profit, where otherwise the substance of a security is present, ought to be an argument for coverage, not against it. To illustrate by hyperbole, if a corporation were to offer stock whose sole rights were a vote and the right to participate in liquidation, up to stated value only, I do not believe it could be said that such an offer did not involve a security. A significant departure from the traditional "investment contracts" approach was the Silver Hills case, supra. As indicated, that case held that there was no profit motive requirement under the California Act. It also is significant for its presentation of the "risk capital" approach to securities definition and for its application of the phrase, "beneficial interest in title to property," as an element of the securities definition. In Silver Hills promoters made a relatively small down payment on a country club facility and were financing its purchase and development through sales of memberships. Members acquired no proprietary interest in the land or the business of the promoters, which was to operate the club for profit. The court, speaking through Justice Traynor, held, firstly, that members had acquired a beneficial interest in title to property "within the literal language" of the definitions. The more difficult and crucial question was whether the instrument-though within the languagewas also "within the regulatory purpose of the" Act. In explaining that it was, the court said: "We have here nothing like the ordinary sale of a right to use existing facilities. Petitioners are seeking the risk capital with which to develop a business for profit . . . Only because [the purchaser] risks his capital along with other purchasers can there be any chance that the benefits of club membership will materialize." Because this approach went to the basic regulatory intent of the Act 73-25 44 and its entire definition, the risk-capital approach has been tested in other settings~notably in the regulation of franchises and pyramid sales. Recently it has found increasing favor. E.g., Securities and Exchange Commission v. Glenn W. Turner Enter., Inc., 348 F. Supp. 766 (Ore. 1972) (alternative rationale). In the problem under discussion, as in the Silver Hills case, there clearly is a "beneficial interest in title to property," within the literal language of the Act. Title is in one person and the right to enjoyment is in another and this right would be enforceable by the courts. Compare .Montana Catholic Missions v. Missoula County, 200 U.S. 118 (1906). It is true that this phrase, in the securities context, has often signified a business trust. E.g., Mary Pickford Co. v. Bayly Bros., Inc., 86 P.2d 102 (Cal. 1939). On the other hand, it applies where the purchaser acquires rights to participate in a contested estate by supplying funds for the litigation. People v. Sawall, 271 N.W. 751 (Mich. 1937); compare, Securities and Exchange Commission v. Latta, 250 F. Supp. 170 (N.D. Ga. 1965) ("investment contract"). The Securities Act Applied: The question remains whether the membership being discussed, although a beneficial interest in title to property, is within the regulatory intent of the Act. Again, as in Silver Hills, we do not have here "the ordinary sale of a right to use existing facilities." vVhile the reasons for this do not exactly track the facts in Silver Hills, they do bear sufficient analogy to that case and Sire Plans to consider them as outlining a transactional scheme in the securities definition. In Silver Hills the developer sold a membership which did not include a proprietary interest. To that extent, the court did have before it a sale of a right to use the facility, analogous to a ticket to use a public golf course. It was an absence of any proprietary interest which made coverage difficult~not just absence of profit incentive. That caused the hurdle for which "risk capital" concepts were necessary. Securities regulation was appropriate, in part, because the promotion was so immature that ordinary remedies for a buyer of rights to use a facility were inadequate. Here, those remedies are not even available. The developer has insulated itself by offering a proprietary interest in a "nonprofit" corporation. In one sense, that puts the present member ahead of the Silver Hills member. On the other hand, he also has more clearly committed his capital to an enterprise managed by others~and largely for their own gain. The present member, to the extent he is treated as a stockholder, lacks the more direct and clear-cut, legal relationships with the developer a direct customer of the developer would have. The argument is made that Silver Hills does not apply because independently borrowed funds will finance initial improvements to the common facility. Yet other improvements are geared to the sale of 45 73-26 memberships, suggesting "orderly development" means acquisition of funds. (It is clear the members are supplying the club's capital.) Moreover, to the extent that this is a Sire Plans, land management situation, the "existing facilities" problem is minimized. If the transaction otherwise constitutes a security, it does not matter that proceeds were not used to develop the common facility. Compare Securities and Exchange Commission v. Lake Havasu Estates, 340 F. Supp. 1318 (Minn. 1972). In Lake Havasu Estates the promoter selected land and a land purchaser, made the contract, and sold it to the investor. Reliance on others was held controlling: the promoter guaranteed payments, made collections and replaced an agreement in default. The significance of the case is that the promoter argued there was no continuing reinvestment of funds of investors. "[The] fact that the initial land purchase, which underlies the investment contract, has taken place prior to the execution of the investment contract ... is ... without relevance." Id. at 1322, N. 13. In the instant problem, the club property will be the chief capital asset of a recreational program conducted by the developer for profit. In this sense, the members are asked to allow a business to use their capital without allowing the members a return on the business. Members also must supply operating capital, because they are obligated to pay dues and assessments. Thus, the proposed memberships are in my opinion securities. They are not exempt as securities of a nonprofit corporation because a substantial purpose of the enterprise is profit for the promoter. Securities and Exchange Commission v. Children's Hospital, 214 F. Supp. 883 (Ariz. 1963). This opinion is specifically limited to the factual presentation which I have set out in detail, and I have specifically refrained from extending the opinion to transactional schemes, other than those involved in the question posed. OPINION 73-26 To: Executive Director, State Scholarship Commission March 5, 1973 Re: Scholarships for children of law enforcement officers, firemen, and prison guards. In 1972 the Georgia General Assembly enacted legislation that provides scholarship assistance for children of law enforcement officers, firemen and prison guards permanently disabled or killed in the line of duty. Ga. Code Ann. Ch. 32-41, based upon Ga. Laws 1972, p. 1133 et seq. This Act is rather unusual inasmuch as it provides an effective 73-26 46 date of July 1, 1972, but further declares "that the children of law enforcement officers, firemen and prison guards who have been permanently disabled or killed subsequent to January 1, 1969, shall be eligible for future scholarships." Ga. Laws 1972, pp. 1133, 1138. You have asked whether or not it is necessary that the death or disability of the designated individuals covered by the Act be attributable to the occurrence of a specific accident or event that occurred on a given date, and, if so, whether that date must be subsequent to January 1, 1969. As is evidenced by your request for guidance in this matter, the Act does not clearly set forth those conditions which must be met in order for an individual to be eligible for these scholarships. In resolving any ambiguity in a statute, the entire provisions of a statute should be construed together. Freeman et al. v. Woodmen of the World Life Ins. Society, 200 Ga. 1 (1945). In addition to the provision set forth above, this Act has the following provisions in regard to when death or permanent disability must occur: "Section 3. No scholarship shall be granted or extended to any person who fails to meet any of the following qualifications or restrictions: (a) Such person must be the child ... of a law enforcement officer, fireman or prison guard who has been permanently disabled or killed in the line of duty or while performing the duties to which he was assigned in the normal course of employment. * * * (d) The deceased or disabled law enforcement officer, fireman or prison guard parent of such person must have been an employee ... of the State of Georgia ... on the date of the accident or event from which death or permanent disability resulted." Ga. Laws 1972, pp. 1133, 1136 (Ga. Code Ann. 32-4103). As can be seen from the above, two determinations must be made in order to establish eligibility. The first determination is that the parent was killed or permanently disabled in the line of duty or while performing the duties to which he was assigned in the normal course of employment. The second determination is that he was an employee of a particular public body on the date of the accident or event from which death or permanent disability resulted. In order to make these determinations, the exact time of the event which resulted in death or permanent disability must be known. An exact time cannot be known if there were no specific event. Consequently, death or permanent disability must be directly attributable to a specific occurrence to 47 73-27 determine if these conditions are met. This is not to say that death or permanent disability must be attributable to a single occurrence, but only to specific events which would satisfy the conditions to eligibility set forth in the law. You have further inquired whether or not such occurrence or occurrences must have taken place subsequent to January 1, 1969. Again, the law itself is not a model of lucidity on the matter and is capable of varying interpretations. However, the primary objective of statutory construction is to determine the intent of the legislature when it is ascertainable. Moore et al. v. Baldwin County et al., 209 Ga. 541, 545 (1953). In this Act the General Assembly specifically set a date different from the effective date of the Act and provided that eligibility depended upon an applicant's parent being killed or permanently disabled subsequent to the former date. To provide a specific cut-off date apart from and prior to the effective date of the Act reflects an intention to establish an absolute time after which all events must occur in order to be eligible under the Act. Therefore, it is my opinion that the parent of an applicant for a scholarship under Ga. Laws 1972, p. 1133, must have been killed or permanently disabled in a specific occurrence which transpired after January 1, 1969. OPINION 73-27 To: Commissioner, Department of Transportation March 5, 1973 Re: Highway projects; use of funds of private individuals, with pledge of reimbursement, as unconstitutional. In your request for an official opinion dated February 16, 1973 you present the following facts: the Department of Transportation is planning to construct a federal-aid secondary highway project in fiscal year 1976 or 1977. Certain individuals owning property in the vicinity of the proposed project, wishing to accelerate construction thereof, have requested that their individual funds be used for construction and that they be reimbursed for their expenditures when federal-aid funds become available. You ask whether the department may legally contract with these private individuals to accept their funds and pledge to reimburse them when federal funds become available. The acts of the Department of Transportation are the acts of the State of Georgia (State Highway Department v. Parker, 75 Ga. App. 237, 241 (1947)), and the facts you relate would give rise to a state debt. With the adoption of the constitutional amendment establishing the Georgia State Financing and Investment Commission, the state may incur general obligation debt for construction of highways. Ga. Const., 73-28 48 Art. VII, Sec. III, Par. I (Ga. Code Ann. 2-5601) (proposed by Ga. Laws 1972, pp. 1523, 1524). However, the Department of Transportation is not authorized to incur this debt on behalf of the state. The constitutional amendment gives this power only to the aforementioned Financing and Investment Commission. "The commission shall be responsible for the issuance of all public debt incurred hereunder and for the proper application of the proceeds of such debt to the purposes for which it is incurred ..." Ga. Const., Art. VII, Sec. III, Par. III (Ga. Code Ann. 2-5603) (proposed by Ga. Laws 1972, pp. 1523, 1531). Therefore, it is my official opinion that the Department of Transportation could not use the funds of private individuals to construct a project and agree to reimburse individuals at a later date. OPINION 73-28 To: Insurance Commissioner March 5, 1973 He: Uninsured motorists; exclusions by insurance companies. The Georgia Insurance Code requires insurers in the State of Georgia to offer uninsured motorists coverage in every policy of automobile liability insurance issued or delivered in this state. Ga. Code Ann. 56-407.1, based upon Ga. Laws 1963, p. 588, as amended. This coverage requires the insurer to pay the insured any sum of money to which he is legally entitled as damages from the owner or operator of an uninsured motor vehicle. An uninsured motor vehicle is defined in essence as a motor vehicle other than one owned by the named insured on which there is no or only limited bodily injury and property damage liability insurance or on which there is no fund or deposit in lieu of such liability insurance. Ga. Code Ann. 56-407.1 (b). There is but one exclusion from the requirements of this law and that is a motor vehicle the owner of which has deposited security in accordance with the Motor Vehicle Safety Responsibility Act. Ga. Code Ann. Ch. 92A-6, based upon Ga. Laws 1951, p. 565 et seq., as amended. You have indicated in your letter that many motor vehicle insurers exclude from the operation of the uninsured motorist coverage in their policies highway vehicles which are owned or operated by self-insurers or which are owned by the United States of America, Canada, a state, a political subdivision or agency of one of these governments. You have inquired as to whether or not such exclusions are valid under the law providing uninsured motorist coverage. It is my opinion that such exclusions are invalid. The law in question provides but one exclusion to uninsured motorist 49 73-28 coverage, and that applies to those motor vehicles the owner of which has deposited security under the Motor Vehicle Safety Responsibility Act. Ga. Code Ann. Ch. 92A-6. Exclusions and uninsured motorists endorsements cannot withhold protection required by this law, and those clauses in a policy inconsistent with the controlling statutory language must be rejected. State Farm Mutual Automobile Ins. Co. v. Barnard, 115 Ga. App. 857, 858 (1967); see also, Travelers Indemnity Co. v. Williams et al., 119 Ga. App. 414 (1969). I am aware that the argument can be made that motor vehicles owned by a self-insurer or by a governmental entity do in effect have liability insurance such as would preclude uninsured motorists coverage. However, the law providing uninsured motorist coverage does not mention motor vehicles owned by self-insurers or governmental entities, and, so, provides no guidance as to whether such vehicles are exempt from its operation. Thus, it becomes necessary to go outside that law to determine if governmental vehicles or vehicles owned by self-insurers are considered as having liability insurance such as would preclude uninsured motorist coverage. A statute should be construed in relation to other statutes pertaining to the same subject-matter so as to ascertain the legislative intent and give it effect. Ryan v. Commissioners of Chatham County et al., 203 Ga. 730 (1948). There should be no question that the Uninsured Motorist Law and the Motor Vehicle Safety Responsibility Act are in pari materia and are to be construed together when resolving ambiguities in either. Under this Act, a distinction is made between those motor vehicles on which there is a policy of liability insurance and motor vehicles owned by self-insurers and governmental entities. In providing for exceptions to its operation, the Motor Vehicle Safety Responsibility Act lists owners who have liability insurance on their motor vehicles and any person qualifying as a self-insurer. Ga. Code Ann. 92A-605(c). This Act further provides that it shall not apply with respect to any motor vehicle owned by the United States, the State of Georgia, or political subdivisions of the state. Ga. Code Ann. 92A-615. Applying this same distinction to the law providing uninsured motorist coverage, motor vehicles owned by self-insurers and governmental entities are not considered motor vehicles on which there is a policy of liability msurance. Therefore, it is my opinion that motor vehicles owned or operated by self-insurers or governmental entities do not possess such liability insurance as precludes uninsured motorist coverage, and the exclusion of such vehicles from the operation of this coverage by an insurance company IS contrary to the provisions of the law providing such coverage. 73-29 50 OPINION 73-29 To: Commissioner, Department of Public Safety March 8, 1973 Re: Motor vehicle inspection and operating offenses; jurisdiction of municipal courts. You have asked two questions of this office: (1) Can the municipal court of Willacoochee, Georgia try cases for the violation of state laws requiring motor vehicle inspection? (2) Can the municipal court of Willacoochee try cases for the violation of the state law prohibiting driving a motor vehicle while under the influence of alcohol or drugs? For the reasons discussed below, I answer both of your questions in the affirmative. The Ga. Const., Art. VI, Sec. VI, Par. II (Ga. Code Ann. 2-4102), provides that "The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentences thereon in all misdemeanor cases arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws, ... in all counties of this state in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts of incorporated cities and municipal court judges for offenses arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws of the state within their respective jurisdiction." The above constitutional provision has been implemented in Ga. Laws 1937-38, Extra. Sess., p. 558 et seq. (Ga. Code Ann. 92A-501 through 92A-504). The Supreme Court of Georgia, in Gibson v. Gober, 204 Ga. 714 (1949), has held that the above constitutional and statutory provisions limit the jurisdiction of a municipal court to the situation in which there is no city or county court existing in the locality. See also, Hannah v. State, 97 Ga. App. 188 (1958), as well as Ops. Att'y Gen. 69-429, U71-103, 72-79. Atkinson County, in which Willacoochee is located, formerly had a county court, namely the county court of Atkinson County. This court, however, was abolished as of January 1, 1967, pursuant to Ga. Laws 1966, p. 2107, and approval by the county voters in a referendum conducted in the November 1966 general election. Therefore, absent any city or county court covering the territory within the corporate limits of Willacoochee, the municipal court of Willacoochee possesses 51 73-30 jurisdiction to try traffic cases authorized by the constitutional provision discussed above. The remaining requirements for jurisdiction of the Willacoochee municipal court are: (1) that the defendant waive in writing a jury trial, Ga. Code Ann. 92A-504; (2) that the jurisdiction of the municipal court shall extend only to cases originating inside the corporate limits of the municipality, Ga. Code Ann. 92A-511 (other cases originating within the county, but not within the corporate limits of the municipality, being vested in the court of ordinary, Ga. Code Ann. 92A-311 and the superior court) ; and (3) that the case being tried carry with it a statutory penalty no higher than that for a misdemeanor, Ga. Code Ann. 92A-501. Georgia Code Ann. 63-1725 makes it unlawful for any person driving a vehicle to refuse to submit such vehicle to an inspection and test when required to do so by the Department of Public Safety. Section 68-1726 requires that the Commissioner of the Department of Public Safety shall once each year require that every motor vehicle registered in the state be inspected and that an official certificate of inspection and approval be obtained for such vehicle. Section 68-9926 makes it a misdemeanor for any person to do any act forbidden or fail to perform any act required by the above Code sections. Likewise, persons who are convicted of driving under the influence of intoxicating liquor or drugs are punishable as for a misdemeanor. Ga. Code Ann. 68-9927. (The above mentioned Code Title 68 sections are based upon Ga. Laws 1953, Nov. Sess., p. 556 et seq., as amended.) In view of the foregoing, it is my official opinion that the municipal court of Willacoochee, Georgia possesses jurisdiction to try all misdemeanor cases originating within the corporate limits of Willacoochee which concern violations of the laws of this state relating to traffic upon the public roads, streets and highways. This includes the laws requiring annual inspections of motor vehicles, as well as the laws prohibiting driving under the influence of intoxicating liquor or drugs. OPINION 73-30 To: Commissioner, Georgia Department of Community Development March 12, 1973 Re: Tourism; expenditure of state funds; construction of facilities not authorized where property not owned by state. This is in answer to your letter of March 7, 1973, in which you request 73-31 52 our opinion as to whether a 1966 amendment to Ga. Const., Art. V, Sec. X, Par. II (Ga. Code Ann. 2-3505.1, proposed by Ga. Laws 1966, p. 1024), would authorize the Department of Community Development to expend state funds to assist the "Brunswick-Golden Isles Chamber of Commerce" (for the purposes of this opinion, I shall assume that the Golden Isles Chamber of Commerce is a "nonprofit organization") in the construction of a proposed welcome Center. It is the general rule, of course, that state funds can be used to improve only that property to which the state holds a fee simple title or long-term lease from the Federal Government. See, e.g., Ga. Code Ann. 91-117, based upon Ga. Laws 1961, p. 47; 1972, p. 927. Although the constitutional provision to which you refer does authorize the Department of Community Development "to participate with any county, municipality, nonprofit organization, or any combination thereof, in the operation of any of the facilities operated by such agencies for the purpose of encouraging and promoting tomism in this state," it would be my view that the authorization to participate in the operation of a "Welcome Center" would not be inclusive of an authorization to utilize state funds for the construction of a Welcome Center on property not owned by the state or otherwise permitted under Ga. Code Ann. 91-117. Consequently, it is my opinion that the expenditure to which you refer would not be authorized by the cited constitutional provision. OPINION 73-31 To: Joint Secretary, State Examining Boards March 15, 1973 Re: Osteopaths; licenses by reciprocity to practice medicine. You have asked whether the Composite Board of Medical Examiners possesses the authority to issue by reciprocity licenses to practice medicine to persons who graduated from osteopathic schools of medicine prior to July 1, 1963. For the reasons stated below, I answer your question in the negative. The Medical Practice Act, Ga. Code Ann. 84-914 (b), amended by Ga. Laws 1970, pp. 301, 310, specifically provides "that the applicant [for reciprocity] shall not be granted a license by reciprocity if the date of such applicant's graduation from such medical or osteopathic college shall have occurred prior to July 1, 1963, unless such medical or osteopathic college was approved for the purposes of this Chapter by the Board of Medical Examiners as of the date of such graduation; ..." 53 73-31 The above-quoted provision apparently excludes pre-July 1, 1963 osteopathic graduates from reciprocity privileges unless such persons graduated from schools which were approved at the time of their graduation. The problem, as you know, is that the Board of Medical Examiners never approved, nor did it have any duty or power to approve, any osteopathic college until passage of the 1970 Act creating the Composite Board of Medical Examiners. See Ga. Laws 1970, pp. 301, 309 (Ga. Code Ann. 84-910). Likewise, the Board of Osteopathic Examiners never was required or empowered by its statute, Ga. Code Ann. Ch. 84-12, based upon Ga. Laws 1909, p. 123, as amended, to inspect or pass upon the good standing of an osteopathic college. It would therefore seem that 84-914 (b), even though apparently displaying a legislative intent to grant reciprocity to some pre-July 1, 1963 osteopathic graduates (i.e., ones who graduated from schools which were approved at the time of graduation), effectively excludes all such graduates from reciprocity privileges, since neither the Osteopathic Board, the Medical Board, nor the Composite Board (created in 1970 to perform the functions of both the old Osteopathic Board and the old Medical Board) ever officially approved an osteopathic college prior to 1971. See an official opinion of the Attorney General, issued to your office on November 12, 1970, Op. Att'y Gen. 70-188. Given the above-described "gap" in the statute, it might be argued that what the General Assembly really intended was for the pre-July 1, 1963 osteopathic graduate to be entitled to reciprocity if the old Board of Osteopathic Examiners had indicated in some official record its approval of the school from which the applicant graduated, even though the statute creating the Board of Osteopathic Examiners provided no duty or power to approve a school. The Georgia Supreme Court has recognized that a statute must be construed with reference to the whole system of which it forms a part. McDougald v. Dougherty, 14 Ga. 674 (5) (1854); Lucas v. Smith, 201 Ga. 834, 837 (1947). I understand, however, that a thorough search of the minutes of the Board of Osteopathic Examiners, dating back to its inception in 1909, has produced no such statement by the board of its official approval of any osteopathic college. Absent any such record of approval of a school prior to July 1, 1963, I am compelled to the conclusion that no reciprocity can be given to graduates of osteopathic colleges graduated prior to July 1, 1963. 73-32 54 OPINION 73-32 To: Commissioner, Department of Banking and Finance March 21, 1973 Re: Credit union's proposed bylaw amendments; rules setting criteria for approval or disapproval by Commissioner, Department of Banking and Finance. You state that a credit union under the supervision and regulation of your department has submitted a proposed amendment to its bylaws for the commissioner's approval. The amendment would have the effect of expanding the scope of membership of the credit union to certain occupational groups whose credit union needs are already being met by another credit union supervised by your department. You ask whether the commissioner possesses the legal authority to disapprove the proposed bylaw amendment on the ground that "such an amendment ... might do undue harm to the potential growth of the other credit union." You ask, further, whether the commissioner would be within his legal authority to modify the proposed bylaw amendment in a fashion which would limit the proposed scope of membership to those occupational groups "which are not within the existing field of membership of any other credit union and which ... lack the qualifications required for approval of their own credit union organization." Georgia Code Ann. 25-127 (based upon Ga. Laws 1967, pp. 595, 596) specifically provides that the commissioner: " ... shall pass upon every ... proposed amendment to the bylaws of a credit union, within 30 days after the same is submitted to him by the Secretary of State, and shall, within that time, advise the Secretary of State in writing of his approval or disapproval of such ... amendment. He shall state the reasons for his disapproval of any such ... amendment." The above Code section clearly gives the commissioner the authority to disapprove a credit union's proposed bylaw amendment. See also Ga. Code Ann. 25-104 (based upon Ga. Laws 1925, pp. 165, 169). Chapter 25-1 of the Code, concerning credit unions, offers few specific, express criteria by which the commissioner can exercise his discretion to approve or disapprove bylaw amendments.! It does, however, provide 1 Credit union acts in other states, for example, as well as the Federal Credit Union Act, normally provide that a credit union's charter or proposed bylaws will not be approved unless the membership is limited to groups having a "common bond" of occupation, association or well-defined geographical area. Federal Credit Union Act, Section 9, 12 U.S.C.A. 1759; New York Banking Laws, 451, 4 McKinney's Cons. Laws of N.Y., 451. Georgia's Credit Union Act does not specifically contain the "common bond" concept found in most statutes. 55 73-32 some guidance by which the commissioner might judge proposed bylaw amendments. Ga. Code Ann. 25-103 (based upon Ga. Laws 1925, pp. 165, 167; 1967, pp. 595, 596) provides that the commissioner: "shall promptly consider [proposed bylaws], and, after making such changes therein, with the consent of petitioners, ... as he may deem necessary, in writing approve the same, if he is satisfied that the proposed field of operation is favorable to the success of said corporation, and that the standing of the proposed incorporators is such as to give assurance that its affairs will be properly administered.'' Georgia Code Ann. 25-103 specifically applies to the system for approving proposed bylaws of a newly-organized credit union. It follows that an amendment to the bylaws must meet the same test. It is, therefore, my official opinion that, in passing upon proposed amendments to the bylaws of a credit union, the commissioner should be guided by the "field of operation" standard enunciated in Ga. Code Ann. 25-103, coupled with the general purpose of proper and safe administration of credit union members' funds suggested in the regulatory scheme of the Credit Union Act as a whole. If in the commissioner's judgment the field of operation enumerated in a credit union's proposed bylaw amendments is not favorable to its success, or to the continued success of a previously approved credit union, then the commissioner is entitled to disapprove the bylaw amendment on that ground. As for your second question, there appears to be no explicit authority for the commissioner to impose modifications on proposed bylaw amendments, although there is such authority concerning the proposed bylaws of a previously unorganized credit union, provided it is "with the consent of petitioners." Ga. Code Ann. 25-103. The commissioner is, however, required by law to state the reasons for his disapproval of any proposed bylaw amendment. Therefore, I think it would be reasonable for him in doing so to suggest language which would be acceptable to him. Ga. Code Ann. 25-127. Your letter, in addition to the above inquiries, indicated that the department has had difficulty with these bylaw approval situations in the past, due to the few specific, express criteria in the law. In passing, I might point out that the commissioner under Code 25-123.1 (based upon Ga. Laws 1968, pp. 465, 466), is "authorized to promulgate such rules and regulations to carry out the provisions of this Chapter as he may consider reasonable and proper." It would seem, therefore, that the commissioner would be at liberty to adopt rules, pursuant to the Administrative Procedure Act (Ga. Code Ann. Title 3A, based upon Ga. Laws 1964, p. 338 et seq.; 1965, p. 283 et seq., as amended), 73-33 56 setting out such criteria as he deems necessary to effectuate the purpose of the Credit Union Act. OPINION 73-33 To: Chairman, State Board of Pardons and Paroles March 22, 1973 Re: Sentence and punishment; release of prisoner held under indeterminate sentence law after expiration of minimum term but prior to expiration of maximum term. You have requested an official opinion in regard to the indeterminate sentence law which was repealed by Ga. Laws 1964, p. 483. That law allowed juries in all cases of felonies not punishable by life imprisonment to impose a sentence composed of maximum and minimum terms. It gave the predecessor of the State Board of Pardons and Paroles the power to "fix rules by which [persons sentenced under the law], after serving the minimum sentence may be allowed to complete his term without the confines of the penitentiary." For present law, see Ga. Code Ann. 27-2502, based upon Ga. Laws 1919, p. 387, amended 1964, pp. 483, 484. The board succeeded to this power when it was created. See Matthews v. Everett, 201 Ga. 730, 735 (1947). You have cited a 1943 Opinion of the Attorney General which stated that the General Assembly "intended that each and every prisoner [sentenced in that way, who abided] by the rules of the [State Board of Pardons and Paroles] ... would be released upon completion of the minimum term set by the verdict of the jury.'' Your question is whether the General Assembly intended that such a person who did not abide by those rules and therefore was not released after serving his minimum term should be released before the end of his maximum term based on his subsequent compliance with the rules. The manifest purpose of the indeterminate sentence law was to offer a convict the chance to earn a conditional liberty at a relatively early date, while reserving in the state the power to confine him for a longer period if his conduct indicated a continuing disinclination to obey the law. It is consistent with this purpose that a convict who redeemed himself after an earlier failure to follow the rules of the board might be released before the end of his maximum term. There is nothing in the law that would suggest that a convict could be eligible for conditional release only upon the expiration of his minimum term. It is therefore my opinion that, when it enacted the indeterminate sentence law, the General Assembly intended to give the Board of Pardons and Paroles discretion to release a person sentenced under the 57 73-34 law at any time between the expiration of the minimum and maximum terms, in accordance with rules promulgated by the board. I would also point out that it has been held that the board's power to grant pardons, paroles, and remissions of sentence was in no way restricted by the indeterminate sentence law. In Matthews v. Everett, 201 Ga. 730 (1947), the Georgia Supreme Court declared that the board could consider the parole of a person sentenced under the indeterminate sentence law even before he had completed the minimum term set for him by his jury. See also, Todd v. State, 75 Ga. App. 711 (5) (1947). Since this is so, then, of course, the board could also consider such a person for parole before the end of his maximum term without regard to the "indeterminate" nature of his sentence. OPINION 73-34 To: Deputy Director, State Merit System of Personnel Administration March 23, 1973 Re: Public officers and employees; procedure with respect to salary increases; correction of clerical errors. This is in response to your letter of March 13, 1973, concerning an error in salary payments to a state employee whose position is classified under the State Merit System. The employee's supervisor had approved a pay raise on October 30, 1972, to be effective November 1, 1972. In accordance with standard procedures, the personnel action and appropriate data cards were prepared and manually posted to the records in her department's personnel office. Through error, however, the salary advancement was nor processed further, and the employee did not receive the additional salary she was supposed to have received. You wish an opinion as to whether this error may now be corrected and the employee receive the total advancement due her since November 1. You request this opinion in light of an official opinion rendered by this office on Aug,ust 21, 1972. See Op. Att'y Gen. 72-110. The opinion you cite provided in essence that a discretionary pay increase may not be granted after the effective date and then be paid on a retroactive basis to employees in the classified service of the State Merit System. However, in the present instance, the salary increase in fact was authorized prior to the effective date, and since that time has been erroneously withheld due to causes beyond the control of the supervisor. Thus, the earlier opinion is not relevant. This office has expressed an earlier official opinion that the State Treasurer has the authority to correct an error made in the administration of the District Attorney Emeritus Retirement Program. Op. 73-35 58 Att'y Gen. 72-13. The legal concept expressed in that opinion would seem to apply to the State Merit System unless there is a statute denying the merit system the authority to correct administrative errors. Since I have been unable to discover any statute which would prevent the State Merit System from rectifying administrative errors, it is my official opinion that the State Merit System may correct administrative errors in the processing of pay advancements by giving the employee the full amount of her pay increase from the effective date, provided that there is evidence of an approval of the raise by the proper authority prior to its effective date. OPINION 73-35 To: Commissioner, Department of Natural Resources March 26, 1973 Re: Game and fish; game animals as state property. You recently requested my opinion as to the legality of an individual's selling deer which he was holding on his property. In order to fully explain my opinion on this matter, it is necessary to trace the history of the ownership and control of wildlife, or animals ferae naturae, the development of the theory of "property rights" in animals ferae naturae, and the history of Georgia's game laws. I. Common Law Doctrine of Ownership and Control of Animals Ferae Naturae. Animals ferae naturae are defined as animals "of a wild nature or disposition." Black's Law Dictionary 747 (4th ed. 1968). Game animals are those birds and beasts of a wild nature obtained by fowling and hunting. 38 C. J. S., Game, 1. From the time of early common law, it has been recognized that "the ownership of game is vested in the sovereign power, and individual right thereto has always been held subject either to regulation or restriction." 2 Blackstone's Commentaries 394, 410. The Supreme Court of the United States has consistently upheld the control of animals ferae naturae by the various states and has based this control on the ownership of the animals by the state and on the police power of the state. Toomer v. Witsell, 334 U.S. 385 (1947); reh. den. 335 U.S. 837; Lacoste v. Department of Conservation, State of Louisiana, 263 U.S. 545 (1923); Geer v. Connecticut, 161 U.S. 519 (1896). This ownership and control of animals ferae naturae in the sovereign is of a special nature. The United States Supreme Court in Geer v. Connecticut, supra, stated that: " ... the power or control lodged in the state, resulting from this 59 73-35 common ownership, is to be exercised like all other powers of government as a trust for the benefit of the people, and not as a prerogative for the advantage of the government as distinct from the people, or for the benefit of private individuals as distinguished from the public good. Therefore, for the purpose of exercising this power, the state ... represents its people, and the ownership is that of the people in their united sovereignity." Geer v. Connecticut, supra, at 529. In summary, it appears that, at common law and in early American law, the ownership of and control over animals ferae naturae rested in the governing power for the benefit of the people. II. Development of Common Law Doctrine of Ownership by the Government and Game Laws in Georgia. Georgia, as one of the original13 colonies, adopted the common law as it existed prior to May 14, 1776, except where modified by statute or not adjusted to the situation in Georgia. Ga. Const., Art. XII, Sec. I, Par. III (Ga. Code Ann. 2-8003); Harris v. Powers, 129 Ga. 74 (1907). Therefore, there being no statutory modifications, the common-law doctrine regarding animals ferae naturae discussed above became part of the law of Georgia. Pursuant to the theory of state control and ownership of animals ferae naturae, the legislature began regulating the hunting of game animals as early as 1893. Ga. Laws 1893, p. 127 et seq. (setting seasons for hunting of game animals). In 1911, the Game and Fish Department was established for the purpose of enforcing the laws for the protection, propagation and preservation of game animals. Ga. Laws 1911, p. 137 et seq. In 1912, the Georgia Court of Appeals, in Allen v. State, 11 Ga. App. 75 (1912), a case involving a violation of the 1911 game law, reaffirmed the doctrine of the state's ownership of and right to control game animals. The court stated: "[i]n the United States the ownership of game is in the people of each state, and no person has any private right in or title to the game, and it is held by the state as the sovereign authority, in trust for all the people in the state ... [E]ach state has a right to enact such laws for the protection of its game as to it seems best for the accomplishment of that purpose and this includes the right not only to prohibit the killing or taking of the game by the citizen, but its importation or exportation." Allen v. State, supra. In 1955, the legislature passed an Act intended " . . . to completely and exhaustively revise, supersede and consolidate the laws relating to the State Game and Fish Commission, to game and fish, and to wildlife, 73-35 60 whether codified or statutory ..." Ga. Laws 1955, p. 483 et seq. (Ga. Code Ann. Title 45). In this Act, the Game and Fish Commission was directed and authorized to regulate the manner of " ... killing, taking, storing, selling, using, and consuming wildlife ..." Ga. Laws 1955, pp. 483, 489 (Ga. Code Ann. 45-114 (3), as amended). In addition, the commission was directed to designate wildlife which would be called and regulated as "game animals." (Ga. Code Ann. 45-114 (5), as amended). Pursuant to this directive, deer were specifically designated as game animals by the Game and Fish Commission. Rules of State Game and Fish Commission 260-2-.16. The 1955 Act made it unlawful to hunt or fish without a license, to transport wildlife without a permit, to possess wildlife taken contrary to the wildlife laws, and to sell or purchase any of the game animals of Georgia. Ga. Laws 1955, pp. 483, 506, 514, 516 (Ga. Code Ann. 45-205, 45-401, 45-503, 45-505, as amended). It is apparent from the extent of the coverage of the 1955 Act that the General Assembly intended to make all individual claims to and rights in any of the wildlife of the state subject to the overriding rights of the state in the wildlife and that wildlife could be possessed, killed, or otherwise taken from the public domain only pursuant to the laws of the state and the rules and regulations adopted pursuant thereto. In 1968, the General Assembly further clarified the source of control by the state over wildlife by enacting an amendment to the 1955 Act, Section 1A, which reads, in pertinent part, as follows: "(a) The ownership, jurisdiction over, and control of all wildlife ... are hereby declared to be in the State of Georgia, in its sovereign capacity, to be controlled, regulated, and disposed of in accordance with the provisions of this Act. (b) To hunt, fish or trap, or to capture or kill wildlife ..., or to possess or transport the same is hereby declared to be a privilege to be exercised only in accordance with the laws granting such privilege. Every person exercising this privilege does so subject to the right of the state to regulate the hunting, fishing, trapping, capturing and killing of wildlife ..." Ga. Laws 1968, pp. 497, 501 (Ga. Code Ann. 45-101.1). That Section 1A is merely a clarification of existing law is shown by the fact that the 1955 Act, previously discussed, included provisions dealing with the purchase, sale, possession, and transportation of wildlife. Thus, it is evident that Georgia laws regulating the use of wildlife originated in the common law and are based on the ownership of wildlife by the state and the state's right to control wildlife through its police power. 61 73-35 III. Common-Law Property Doctrines Relating to Wildlife. You have raised the question as to whether two Code sections conflict with the game and wildlife laws discussed above. These sections read as follows: "Property may exist in all animals, birds, and fishes. To constitute property in those which are wild by nature, as distinguished from domestic animals, one must have them within his actual possession, custody, or control; this he may obtain either by taming or domesticating them, or by confining them within restricted limits, or by killing or capturing them." Ga. Code Ann. 85-1703. "The increase of all animals follow the ownership of the mother and belong to the owner of the mother at the time of birth." Ga. Code Ann. 85-1705. The above statutes were originally enacted in the Georgia Code of 1863, 2220 and 2222, and reflect the common law regarding the reduction to possession of animals ferae naturae and the resulting property rights therein. Swift v. Gifford, 2 Low Dec. 110, Fed. Case No. 13,696 (1872); Annot., 49 A.L.R. 1498. In my opinion, the above statutes do not conflict with the state's exercise of control over and ownership of animals ferae naturae, but merely set out the method by which individuals may gain property rights in such animals when allowed to do so by the laws of the state. Therefore, when an individual has complied with the law and rules and regulations of the state in hunting or capturing a game or wild animal, then, under the above statute, he obtains a property right in the animal good against any other person. See Shelley v. Queen, 104 Ga. App. 837 (1961). "When an animal ferae naturae is captured or reduced to possession in violation of the applicable laws and rules and regulations, however, no property right vests in the person capturing or killing such animal. Creaser v. Durant, 197 Ga. 531 (1944); James v. Wood, 19 A. 160 (Me. 1889); Jones v. Metcalf, 119 A. 430 (Vt. 192~~); see generally 4 Am. Jur. 2d, Animals, 17; 2 E. G. L. Animals, 3. IV. Legality of Sale of Game Animals Held in Captivity Legally or Illegally. You specifically ask my opinion as to whether game animals held in captivity by a person other than the state, either legally or illegally, may be legally sold under the laws of Georgia. It is my official opinion that such animals, whether held legally or illegally, may not be sold by one other than the state under the present laws of the State of Georgia. 73-36 62 The present law regarding the purchase and sale of game animals reads in relevant part: "Except as otherwise specifically provided, it shall be unlawful for any person in this state to barter or sell or offer to barter or sell, or to purchase or offer to purchase, any of the game birds, game animals or game fish of this state ..." Ga. Laws 1955, pp. 483, 516, as amended (Ga. Code Ann. 45-505). (NOTE: The duties of the Game and Fish Commission have been transferred to the Department of Natural Resources. Ga. Code Ann. 40-35155 (based upon Ga. Laws 1972, pp. 1015, 1056); Ga. Const., Art. V, Sec. IV, Par. I (Ga. Code Ann. 2-3301, proposed by Ga. Laws 1972, pp. 1576, 1577). As discussed above, a person illegally possessing game animals obtains no property rights therein and, in addition to the prohibition in Ga. Code Ann. 45-505, has no property rights in the game animals which can be sold. If a person has legally imported and is legally holding game animals so that he would have a property right pursuant to Ga. Code Ann. 85-1703 and a property right to the young of such animals as provided in Ga. Code Ann. 85-1705, it is still not possible for such animals to be legally sold. As discussed above, individuals may take wildlife and reduce same to possession only pursuant to the restrictions placed thereon by the state. Georgia has seen fit to prohibit the sale of all game animals, and the statute makes no exceptions for those lawfully held in captivity or which may be "domesticated." Thus, in my opinion, deer lawfully held in captivity may not be legally sold. Whether the deer are domesticated would not, in my view, affect my opinion. Domestication is merely one means by which a person may obtain a "property right" in a wild animal under Ga. Code Ann. 85-1703. I do not feel that domestication, in and of itself, can divest the state of the interest in these animals which it holds in trust for all the people of the state, and the possession of a domesticated game animal is still subject to all applicable laws regarding game animals. OPINION 73-36 To: Director of Corrections March 27, 1973 Re: Juvenile offenders; construction of sentences under Youthful Offender Act. You have requested my official opinion as to the effect of a certain sentence imposed in the language of the Georgia Youthful Offender Act of 1972 (Ga. Code Ann. 77-345 to 77-360, based upon Ga. Laws 1972, p. 592 et seq.) but specifying that the 18-year-old recipient of the 63 73-36 sentence shall remain in the custody of the Youthful Offender Division for not less than two years. Section 15 (Ga. Code Ann. 77-359) of the Georgia Youthful Offender Act gives two options to a judge faced with the problem of sentencing an 18-year-old who has been convicted of a felony. First, he may find that particular 18-year-old would not benefit from the special provisions of the Act. Upon such a finding, he might then sentence him "under any other applicable penalty provision provided by law." That is, he might either place the offender on probation or commit him to the penitentiary for a definite term, just as he would for any adult convicted of a similar offense. Alternatively, he may sentence him as a youthful offender and commit him "indefinitely to the custody of the [Youthful Offender] Division for treatment and supervision pursuant to the [Youthful Offender] Act until discharge. " The sentence you have asked me to consider evidences an intent to combine the two options described above by ordering the offender "indefinitely to the custody of the Youthful Offender Division," yet instructing that division to hold him for at least two years. The question posed by this sentence is whether the indefinite custody envisioned by the Act is of such a nature that its indefiniteness could begin only after a definite period prescribed by the sentencing judge. As yet the Georgia Appellate Courts have not had occasion to construe Section 15 of the Youthful Offender Act. However, since Section 15 was modeled after the "Federal Youth Corrections Act" of 1950, 18 U.S.C.A. 5010, federal cases which have considered that statute should be persuasive authority on the effect of its Georgia counterpart. See United States Security Warehouse, Inc. v. Tasty Sandwich Co., 115 Ga. App. 764 (1) (1967). Two such cases have dealt with a sentence such as the one in question. In Tatum v. United States, 310 F.2d 854, 855 (D.C. 1962), the United States Court of Appeals for the District of Columbia found that a sentence under the Federal Act "which undertook to fix a three-year minimum" was erroneous. Eight years later, that same court made the following observation in United States v. Waters, 437 F.2d 722, 726 (D.C. 1970): "It would appear that the District Court not only desired rehabilitative treatment for this particular youth offender, but also desired to impose a stringent penalty to serve as a deterrent to other potential offenders, therefore the 4 to 12 year sentence plus the recommendation for confinement in a youth institution. However, the statutory scheme does not envisage this particular combination of rehabilitation and deterrence. It appears that once it is determined that the convicted person is a youth offender ..., then Congress has decreed priority for the goal of rehabilitation." 73-36 64 Neither the Tatum nor the Waters decision provides any real insight into the reasons why a contrary interpretation of the sentencing provisions of both federal and the Georgia Act would conflict with the purposes of those statutes. Those reasons become apparent upon a study of Section 11 (Ga. Code Ann. 77-355) of the Youthful Offender Act (see 18 U.S.C.A. 5017), which p10vides for a special device called "conditional release." That section gives a youthful offender an opportunity which he would not have under any other form of sentence. Through "conditional release" he is offered the prospect of regaining his liberty far in advance of the date on which an adult convicted of the same offense would become eligible for parole. This prospect was evidently intended as an incentive for youthful offenders to participate in rehabilitative programs to the fullest possible extent. If a sentencing judge could postpone conditional release for a stated period, its value as a reward for achievement in those programs could be considerably diminished. In the sentence in question, the judge ordered a two-year term of confinement. If such an order is permissible under the Act, then a youthful offender could just as easily be sentenced to a minimum term of four years. However, since Ga. Code Ann. 77-355 (b) of the Youthful Offender Act requires the Youthful Offender Division to grant conditional release on the expiration of four years from the date of conviction, such a sentence might destroy the effect of conditional release as an incentive device. The recipient of that four-year "indefinite" sentence could not help but realize that the period of his confinement would be calculated without regard to his response to treatment. His situation would be substantially the same as that of an offender sentenced to a definite four-year term in the penitentiary. Because of this his attitude toward rehabilitation could be expected to be no different from the attitude of an ordinary prison inmate. The special rehabilitation potential of the Youthful Offender Act would then be seriously eroded. (See Judge Luther \V. Youngdahl's address to the United States Judicial Conference's Pilot Institute on Sentencing, reported at 26 F.R.D. 300, 306-307.) It is for this reason that I feel that the notion of a judicially-imposed minimum term of confinement does not comport with the statutory scheme of the Georgia Youthful Offender Act. It is therefore my opinion that when the legislature provided that a youthful offender should be sentenced "indefinitely to the custody of the [Youthful Offender] Division," it intended the duration of that custody to become "indefinite" as soon as the division receives the report and recommendation of the Director of Corrections described in Section 9 (Ga. Code Ann. 77-353). At that time the division (subject to final approval by the director) has the discretion to grant a conditional release to the youthful offender who is the subject of the 65 73-38 report. It follows that language in a youthful offender's sentence which purports to order a minimum term of custody can have no binding effect on the division. While the division should regard such language as an authoritative recommendation that it postpone the conditional release of a particular youthful offender, the division may deal with that offender in accordance with its normal procedures. OPINION 73-37 To: Commissioner, Georgia Public Service Commission March 28, 1973 Re: Eavesdropping and surveillance; exceptions as to Public Service Commission. This is in reply to your request for advice with respect to whether Ga. Code Ann. 26-3005, based upon Ga. Laws 1968, pp. 1249, 1331, may conflict with a right to privacy and whether the Georgia Public Service Commission's interpretation of that provision is correct. With respect to your first inquiry, it is evident that Ga. Code Ann. 26-3005 is an exception to Ga. Code Ann. 26-3001, based upon Ga. Laws 1968, pp. 1249, 1327, which provides criminal penalties for enumerated invasions of privacy. The full ramifications of that exception could not be stated, however, absent a particular set of circumstances as to which such a discourse would be appropriate. With respect to your second question, I note the commission promulgated rules governing telephonic interception devices on May 10, 1967, less than a month after the approval of the predecessor to Ga. Code Ann. 26-3005, Ga. Laws 1967, p. 844 (approved April 19, 1967, repealed by the present Criminal Code). It is a well-established principle of statutory construction that contemporaneous administrative construction of statutes is to be accorded great deference. Undercojler v. Eastern Air Lines, Inc., 221 Ga. 824 (1966). OPINION 73-38 To: State Revenue Commissioner March 29, 1973 Re: Homestead exemptions; consideration of benefits received pursuant to the Railroad Retirement Act. This is in reply to your letter asking whether the 1972 amendment to Ga. Const., Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404) (proposed by Ga. Laws 1971, p. 947), authorizes applicants for the in- 73-38 66 creased homestead exemption of $4,000 to exclude benefits received under the Railroad Retirement Act in determining their eligibility for such exemption. The above amendment provides, in part, as follows: "Each person who is 65 years of age or over is hereby granted an exemption from all state and county ad valorem taxes in the amount of $4,000 on a homestead owned and occupied by him as a residence if his net income, together with the net income of his spouse who also occupies and resides at such homestead, as net income is defined by Georgia law, from all sources, including benefits received from any retirement or pension fund when such benefits are based on contributions made thereto by such person or his spouse, but not including any federal old-age, survivor or disability benefits, does not exceed $4,000 for the immediately preceding taxable year for income tax purposes." (Emphasis added.) Prior to the 1972 amendment all income including federal old-age, survivor or disability benefits was included in income in determining whether a person met the income requirements for the increased homestead exemption. See Op. Att'y Gen. 72-28 to the Director of the Department of Veterans Service holding that nonservice connected pensions received by world War I veterans must be considered i,n determining an applicant's eligibility. The reasoning set forth in this opinion is still applicable. The change made by the 1972 amendment, insofar as the income requirements are concerned, was to provide specifically that federal oldage, survivor or disability benefits would not be included in income for such purposes. Since federal old-age, survivor and disability benefits and benefits received pursuant to the Railroad Retirement Act are not one and the same, the 1972 amendment did not have the effect of providing that benefits received pursuant to the Railroad Retirement Act would be excluded from income in determining an applicant's eligibility for such exemption. See 42 U.S.C.A. 401 et seq., relating to federal old-age, survivor's and disability insurance benefits, and 42 U.S.C.A. 228, relating to the Railroad Retirement Act. Therefore, it is my opinion that benefits received pursuant to the Railroad Retirement Act must be considered in determining whether a person meets the income requirements for the increased homestead exemption of $4,000. 67 73-39 OPINION 73-39 To: Governor of Georgia March 30, 1973 Re: Employees Retirement System; inclusion of all officials and employees whether in classified or unclassified service. This responds to your recent letter requesting my opinion on whether the employees of the office of the Governor are covered under the provisions of the Employees Retirement System of Georgia, even though no employees of your office are presently in the classified service of the State Merit System of Personnel Administration. You inform that until recently your office has had several employees in classified positions, but these employees have now left state service. The answer to your question can be found in the laws governing the Employees Retirement System. (Ga. Laws 1949, p. 138 et seq., Ga. Code Ann. Ch. 40-25, both as amended). Those laws read in relevant part: " 'Employer' shall mean the State of Georgia or any department, bureau, institution, board, or commission of the state authorized by law, or any county, city-county, or city board having its employees under a state merit system of personnel administration ... [Ga. Code Ann. 40-2501 (3), as amended]. * * * " 'Employee' shall mean any regularly classified or unclassified worker, officer, elected or appointed, or employee of state agencies, and employees of the local boards in accordance with the provisions of subsection (3) under a state merit system of personnel administration . . . who receives payment for performance of personal services from the State of Georgia or any department, bureau, institution, board, or commission of the state, or from the local boards that are classified as an 'employer' under this Chapter, who is employed in a position normally requiring actual performance of duty during not less than nine months of the year ... [Ga. Code Ann. 40-2501 (4), as amended]. * * * "Any person who becomes an employee after January 1, 1950, in any department, political subdivision or instrumentality of the state or local government 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 ..." [Ga. Code Ann. 40-2503 (1), as amended]. 73-39 68 Your question involves, basically, the construction of the above statutory provisions. In such construction, a cardinal rule holds that courts should ascertain the intention of the General Assembly in enacting the statute. [Ga. Code Ann. 102-102 (9) ]. The cases affirming this rule are legion. See, e.g., Gazan v. Heery, 183 Ga. 30 (1936). Also, to determine such intent, the language of the statute should be closely analyzed. See, e.g., Drake v. Beck, 129 Ga. 466 (1907). Applying these rules of construction to the statute defining "employee," and considering the grammatical construction and syntax of the language used, I am persuaded that "employee" means: (1) any regularly classified or unclassified worker, officer, elected or appointed, or employee of state agencies, and (2) employees of local boards in accordance with the provisions of subsection three [40-2501 (3)] under a state merit system of personnel administration, and (3) other classes of individuals not relevant here. I am further persuaded to this view upon reference to the other portions of statutes addressed herein, reading them "in pari materia" with the definition of "employee." Ga. Code Ann. 40-2501 (3), as amended, defines "employer" as the State of Georgia or any department, bureau, board, or commission of the state authorized by law, or (in addition) any county, city-county, or city board having its employees under a state merit system of personnel administration. (That definition also includes other "employers" not here relevant.) Further, Ga. Code Ann. 40-2503 (1), as amended, requires membership in the Employees Retirement System, as a condition of employment, as to all persons employed after January 1, 1950 in any department, political subdivision or instrumentality of the state or local government operating under a merit system or personnel administration and covered by the Employees Retirement System. The structure of this sentence indicates the "operating under" clause to be subordinate, modifying and applying only to "local government." Based on the foregoing, it l.s my official opinion that all officials and employees of any state department or agency are included within the Employees Retirement System of Georgia, whether such officials and employees are in the classified or unclassified service under the State Merit System of Personnel Administration. Your office would certainly be includable as a department or agency within the meaning of the Retirement System Act. 69 73-40 OPINION 73-40 To: Commissioner, Department of Public Safety April 2, 1973 Re: Drunken driving; jurisdiction to try cases involving the offense of driving under the influence of intoxicating liquor or drugs. This is in response to your letter of February 27, 1973 inquiring whether the Recorders Court of Columbus has jurisdiction to try cases involving the offense of driving under the influence of intoxicants or drugs. Jurisdiction to try traffic-related offenses is normally granted to a recorders or other municipal court only if no city or county court exists. Ga. Const., Art. VI, Sec. VI, Par. II (unofficially codified as Ga. Code Ann. 2-4102). However, an exception granting certain recorders courts jurisdiction over traffic offenses is found in Ga. Laws 1955, p. 736, as amended (unofficially codified as Ga. Code Ann. 68-1680, 68-1681), which provides: "Section 1. Cities and local authorities may adopt traffic regulations which are not in conflict with the provisions of this Act and may, in order to insure complete uniformity and expedite enforcement, adopt all or such portions of this Act as to them may seem appropriate as city ordinances for such cities, and the recorder or city judge may punish violations thereof by fines not to exceed those set forth in this Act, and by sentences within the limits of the respective city charters. Provided, however, that if an offense charged constitutes a violation of any provision of this Act, and the defendant elects to have the charge treated as a state offense and waives commitment, the recorder or city judge shall summarily fix his bond and bind his case over to the appropriate state tribunal. Provided, however, that this section shall not apply in counties having a population of less than 108,000 according to the 1950 U. S. census or any future census. 1 "Section 2. No person tried in any court for a violation of this Act, or any municipal ordinance adopted pursuant thereto, shall thereafter be tried in any court for the same offense. A conviction for the violation of an ordinance adopted pursuant to this Act shall be considered a prior conviction for all purposes under this Act and under the Act to create the Department of Public Safety for Georgia, approved March 13, 1937, and the several Acts amendatory thereof." 1 Ga. Laws 1973, H. B. No. 410, removes the requirement that the county in which the city is located have a population in excess of 108,000. 73-41 70 According to the 1970 census, Muscogee County, wherein Columbus is located, has a population of 167,377. In 1971 the consolidated government of Columbus-Muscogee County adopted ordinances goverrnng traffic regulations and violations in Columbus. Columbus is, then, within the purview of Ga. Laws 1955, p. 736, supra. The Supreme Court of Georgia has specifically ruled that cities qualifying under Ga. Laws 1955, p. 736, may properly prosecute ordinance violations in their recorders court. Gordon v. Green, 228 Ga. 505 (1972); Hannah v. State, 97 Ga. App. 188 (1958). Moreover, the court has declared that no constitutional questions prevent the recorders court from having such jurisdiction. Sandmann v. Smith, 229 Ga. 335, 337 (1972); Gordon v. Green, supra, at 511. Ga. Laws 1955, p. 736, does not require that a municipality "adopt" the Uniform Act Regulating Traffic on Highways [Ga. Laws 1953, Nov. Sess. p. 556 (unofficially codified as Ga. Code Ann. Ch. 68-16)]; rather it grants qualifying local governments the right to promulgate ordinances which do not "conflict" with the Act. As long as the ordinances enacted by Columbus are consistent with the offenses specified in the Uniform Act, no difficulty is presented by the fact that Columbus did not "adopt" the Act. We have not made a detailed comparison of the Columbus ordinances with the Uniform Act but suggest that this might be undertaken by the city to assure the absence of conflicting law. In answer to your inquiry, then, the recorders court of Columbus does have jurisdiction to try driving under the influence cases, as long as its ordinance govE;rning the offense does not conflict with the state ordinance. An unofficial opinion of this office issued August 5, 1971 (Op. Att'y Gen. U71-103) is inconsistent with this official opinion and is hereby withdrawn. OPINION 73-41 To: Commissioner, Department of Offender Rehabilitation April 2, 1973 Re: Prisons and prisoners; qualifications of wardens. In your letter of February 21, 1973, as supplemented by your letter of March 1, 1973, you inquire what may be considered as "other experience" which would be "equivalent" to graduation from a recognized senior high school for purposes of qualifying an applicant for the position of warden of a county correctional institution. The letter also seeks an opinion as to how the Board of Corrections can assure that 71 73-41 an individual who has been elected as a county commissioner-warden will possess the necessary qualifications. Ga. Laws 1956, pp. 161, 175 (unofficially codified as Ga. Code Ann. 77-314), provides as follows: The State Board of Corrections shall by rule and regulation define the qualifications for wardens, guards, and other personnel employed in the prisons and county public works camps. The wardens of the various public works camps shall be appointed by the governing authority of the county, subject to approval of the State Board of Corrections, and shall serve at the pleasure of the county or the State Board of Corrections." Ga. Laws 1972, p. 838, substituted the words "county correctional institution" in the place of the words "public works camp." It is apparent from the quoted law that the Board of Corrections has the authority to issue rules establishing the practical experience and educational background necessary for the position of warden of a county correctional institution. Under the authority of Rules of State Board of Corrections 125-2-1-.02 the board has set forth in subsection (c) the qualifications that a warden of a county correctional institution must possess, including graduation from a recognized senior high school. Subsection (c) makes allowance for qualified persons who may not have had the benefit of a high school education by providing that: " ... Other training or experience if evaluated as equivalent may be substituted, year for year, to meet the educational requirements." Since the Board of Corrections is responsible for determining what the qualifications of a county warden must be, and since the board has determined that a high school diploma or its "equivalent" in "experience" is required, it logically follows that the factual determination of what constitutes such "experience" and when it becomes "equivalent" is a decision which is within the discretion of the board. This conclusion is arrived at on the basis that the board, having properly determined the qualifications, has the power to decide when those qualifications are met. The second question is how can the board assure that the qualifications promulgated by it are in fact met. Ga. Laws 1964, pp. 491, 492 (unofficially codified as amending Ga. Code Ann. 77-312), provides as follows: "(b) All public works camps established by the counties as herein provided shall be subject to supervision and control by the State Board of Corrections, and said board shall promulgate rules and regulations governing the administration and operation thereof. "(c) Each county establishing a county public works camp which 73-42 72 complies with the rules and requirements established by the Board of Corrections and is approved by such board shall receive a quota of prisoners in accordance with such methods of apportionment as may be established by said board. The State Board of Corrections is hereby given authority to withdraw all prisoners from any camp which does not at any time meet the requirements of the board or comply with its directions." (Emphasis added.) If a county correctional institution fails to employ a warden who is duly qualified according to the requirements set forth by the board, the board may remove all the prisoners from that institution. Moreover, Ga. Laws 1956, pp. 161, 175 (unofficially codified as Ga. Code Ann. 77-314), which is quoted supra, specifies that the warden serves at the "pleasure of the county or the State Board of Corrections." (Emphasis added.) This language clearly indicates that the Board of Corrections has the power to remove an unqualified warden. The power to establish the requirements, including wardens' qualifications, for county correctional institutions and to remove prisoners from institutions not in compliance, coupled with the power to remove a warden it determines to be unqualified, should sufficiently assure the board that nonqualifying personnel cannot obtain the position of warden. Ga. Laws 1959, pp. 2580, 2582, providing that the Hart County Commissioner may serve as warden, is a local Act. To the extent that this Act may be inconsistent with the provisions of general law cited above, the general law vesting power to determine wardens' qualifications in the Board of Corrections is controlling. Ga. Const., Art. XII, Sec. I, Par. I (unofficially codified as Ga. Code Ann. 2-8001). In summation, it is within the ambit of the Board of Corrections to decide what is "experience" and when it is "equivalent" for purposes of satisfying the educational requirements and the board may use its power to remove wardens and prisoners to insure that county wardens do in fact possess the requisite qualifications. OPINION 73-42 To: Commissioner, Department of Offender Rehabilitation April 2, 1973 Re: Sentence and punishment; computation of sentence for escape. Your letter of February 26, 1973 requests an opinion as to the correct method of computing sentences imposed for escape and expressly made consecutive to the sentence then being served. More particularly, inquiry is made concerning computation of a sentence according to a certain factual situation. Since understanding of the referenced facts is important, it is appropriate to begin by setting them forth. 73 73-42 The problem is how to compute a sentence given the following: A prisoner sentenced to six one-year terms which are to run consecutively escapes, is recaptured, and is sentenced to serve three years. The threeyear sentence is stated to be served consecutively to the "sentence now being served." At both the time of escape and the time of sentencing, the prisoner was serving the third of the six one-year sentences. The difficulty encountered hinges around the words "now being served." If these words are held to mean the third one-year sentence, then the "escape" sentence will be served consecutively to the third one-year sentence, which will mean, in effect, that it will be served concurrently with the last three one-year sentences. If, on the other hand, the words "now being served" may be held to refer to the six consecutive oneyear sentences, then the three-year "escape" sentence would be served consecutively beginning at the end of the sixth one-year sentence. Ga. Laws 1956, p. 161, 168, as amended by Ga. Laws 1964, p. 494 (unofficially codified as Ga. Code Ann. 27-2510), is controlling. It is therein specified that if a sentence is to be served consecutively this fact must be expressly and clearly stated. Moreover, no sentence will be implied to be consecutive if it is not specifically designated as such. See Cozzalino v. Watkins, 220 Ga. 624 (1965). If, then, the sentence in question is to be consecutive to the last of the six one-year sentences, this must be indicated by express language. The "escape" sentence states it will run consecutive to the sentence now being served. Since the prisoner is serving the third of six one-year sentences that third sentence is the one "now" being served and, therefore, the one to which the escape sentence will be consecutive. If a sentence imposed in an escape situation similar to the one involved clearly indicates that it is to be served consecutive to the last sentence the defendant is then obligated to serve, then time would be computed from such last sentence. See Cozzalino v. Watkins, supra; Fleming v. State, 113 Ga. App. 113 (1966). However, the sentence to which this opinion is addressed does not express that the consecutiveness will relate to the last of the six one-year sentences but rather to the sentence then being served. The third one-year sentence is the one "then" being served and is then the proper sentence to use for computation purposes. Although there is some ground for arguing that the language in the sentence means the last of the six one-year terms, this position is of little avail since any ambiguity in a criminal sentence is to be construed in favor of the defendant. Buice v. Bryan, 212 Ga. 508 (1956). 73-43 74 OPINION 73-43 To: State Senator April 2, 1973 Re: Mental institutions; appointment of nonmedical personnel as superintendents. This is in reply to your request for an opinion as to whether a person who is not a physician may be appointed by the Department of Human Resources as superintendent of a state mental hospital consistently with Ga. Code Ann. Ch. 88-5, based upon Ga. Laws 1969, p. 505 et seq. Your question is presented in a factual context in which the department concerned has acted in accordance with its interpretation of the department's authority and, with the concurrence of the Merit System of Personnel Administration in revising the class specification for the position, appointed a person who is not a physician as superintendent of a state mental health facility. In late 1972, the department determined that the needs of the Georgia Mental Health Institute would be better served by a non-physician. The department requested that the merit system revise its regulations governing that position to permit such an appointment since the existing class specification did not. The merit system granted the request in January 1973. The appointment was made soon thereafter. The pertinent statutory authorities provide no definitive answer to the question presented.1 Ga. Code Ann. 88-115, based upon Ga. Laws 1964, pp. 499, 509, substantively describes the Department of Human Resources as the: "agency of this state to have supervision and administrative control of state facilities for the treatment of mental illness ..." Included within this responsibility is specific authorization to " ... create all necessary offices, appoint and remove all officers ..., prescribe and change their duties ..." Ga. Code Ann. 88-115 (b). In addition, Ga. Code Ann. 88-602, based upon Ga. Laws 1964, pp. 499, 547, provides that state facilities for the treatment of the m~"ntally ill " ... shall be operated, supervised, and staffed as directed by the department ..." The focal point of any inquiry must narrow, therefore, on whether Ga. Code Ann. Ch. 88-5 is a limitation on the authority of the depart- 1 Former Ga. Code Ann. 35-221 specifically required that the superintendent of Central State Hospital be a "skillful physician." That provision was repealed by Ga. Laws 1949, p. 547, Section 2. 75 73-43 ment under the above provisions. That Chapter, exhaustively amended by Ga. Laws 1969, p. 505, governs the hospitalization of the mentally ill in state and other public and private facilities. Ga. Code Ann. 88-501 provides as follows: " ... the following terms as used in this Chapter shall have the meaning hereinafter respectively ascribed to them: * * * "(e) 'Superintendent' shall mean the chief medical officer of any facility receiving patients under the provisions of this Chapter or a physician appointed as [his] designee ..." 2 Ga. Code Ann. Chapter 88-5 vests various powers and responsibilities in the "superintendent," as so defined. The question is, therefore, whether the definition in Ga. Code Ann. 88-501 (e) is simply that, i.e., a definition of the term "superintendent" as used in Chapter 88-5, or is, instead, a substantive limitation on all facilities, public or private, receiving patients under Chapter 88-5 requiring that they appoint a physician as superintendent, i.e., that the chief medical officer shall be the chief administrative officer. It is important to note that the question involved is not whether a person who is not a physician may practice medicine or may exercise the powers and perform the duties which various provisions of Chapter 88-5 vest in the chief medical officer of mental facilities by reference to the defined term "superintendent." It is clear that is not the case. However, the intended scope of Ga. Code Ann. 88-501 (e) as to the qualifications for the position of superintendent, as chief administrative officer, is not clear, one way or the other. There are persuasive arguments on each side. There is, of course, no precedent in point. Since your question is presented in the context of a fait accompli secured by the state agency charged with administering state mental health facilities, and in view of the wholly ambiguous effect of 88-501 (e) on this question, we are simply unable to resolve it. We believe that the question can be finally determined only by the General Assembly through appropriate legislation. 2 This contrasts with original definition of "superintendent" as the "chief administrative officer of any psychiatric hospital." Ga. Laws 1964, pp. 499, 531 (now superseded). 73-44 76 OPINION 73-44 To: Commissioner, Department of Banking and Finance April 6, 1973 Re: Banks and banking; authority to vary interest rate allowable to state-chartered bank. This is in reply to a request by your office for an opinion as to whether by virtue of Ga. Code Ann. 13-1802 (based upon Ga. Laws 1968, p. 1044) a state-chartered bank may charge the same rate of interest allowable to national banks under 12 U.S.C. 85. The federal statute above noted permits a national bank to charge interest " ... at the rate allowed by the laws of the state ... where the bank is located, or at a rate of 1 percentum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve Bank in the federal reserve district ... whichever may be the greater, and no more, except that where by the laws of any state a different rate is limited for banks organized under state laws, the rate so limited shall be allowed ..." 12 U.S.C. 85. This provision has been interpreted to permit a national bank to charge interest at the maximum rate permitted by state law to any competing state-licensed lending institution, even though competing state banks are limited by state law to a lesser amount. 12 C.F.R. 7.7310(a). With respect to Georgia, according to your office, the situation thus obtains that national banks may charge interest at the rate permitted by the Industrial Loan Act, Ga. Laws 1955, pp. 431, 440 (Ga. Code Ann. 25-315), on loans covered by that Act. State-chartered banks, on the other hand, are limited to a lesser rate of interest on loans which would otherwise be covered by that Act. Ga. Code Ann. 25-303, 25-305, based on Ga. Laws 1955, p. 431 et seq.; Ga. Code Ann. 13-2019, based on Ga. Laws 1919, pp. 135, 199. Section 13-1802 of the Banking Law, added by Ga. Laws 1968, p. 1044, permits a state-chartered bank, with the approval of the Commissioner of the Department of Banking and Finance, to exercise " ... all such incidental powers as shall be necessary to carry on the business of banking ... not greater than the powers and activities permitted to national banking associations under the laws of the United States." It is my official opinion that Ga. Code Ann. 13-1802 does not authorize a state-chartered bank to exceed the limitation on rate of interest under Ga. Code Ann. 13-2019. 77 73-45 The "incidental powers" to which Ga. Code Ann. 13-1802 refers do not include powers in conflict with a specific statutory limitation on the conduct of the banking business. Nothing in Code 13-1802 indicates an intent on the part of the General Assembly to repeal, in whole or in part, the limitations of Code 13-2019. Absent a clear conflict between Code 13-1802 and Code 13-2019, those provisions must be construed in harmony. Morris v. City Council of Augusta, 201 Ga. 666, 672 (1946). It is my official opinion, therefore, that Ga. Code Ann. 13-1802 does not authorize a state-chartered bank to exceed the statutory limitation on the rate of interest permitted such banks. OPINION 73-45 To: Executive Secretary-Treasurer, Teachers Retirement System April 6, 1973 Re: Teachers Retirement System; reestablishment of service credit. Your recent letter requested my opinion on the construction of a portion of the Teachers Retirement System Act. As I understand them, the facts pertinent to your inquiry are as follows: Prior to 1966, two teachers established credit in your system for several years of teaching service rendered in another state. They did so pursuant to the Act by paying into the system eight percent of their annual out-of-state salaries, plus three and one-half percent interest compounded annually. After establishing this service, they decided to withdraw their contributions and interest and cease membership in the system as permitted by Ga. Code Ann. 32-2905 (7), based upon Acts 1943, p. 640, as amended. Now, after returning to active teaching service in Georgia, and the system, both want to reestablish credit for the previous service (including the out-of-state service) forfeited when they withdrew. Your question is, essentially, what payment must these teachers make to the system to reestablish such credit. Subsequent to the withdrawal of the teachers under consideration, the General Assembly passed Ga. Laws 1966, p. 562, which provided that in order for any teacher becoming a member of the system after April 1, 1966 to receive credit for out-of-state teaching service, the teacher would have to pay the employee and employer contributions, plus interest, for each year of out-of-state service. This law was designated subsection (5-A) of Section 4 of the Teachers Retirement System Act and has been amended several times since, currently reading in pertinent part: " ... A teacher desiring to establish credit for out-of-service service ... must pay, prior to the date he retires with the retirement sys- 73-45 78 tern, employee contributions and employer contributions which would have been paid to the retirement system on salary comparable to his out-of-state teaching salary plus the applicable rate of interest in accordance with regulations adopted by the board of trustees ..." (Ga. Code Ann. 32-2904 (5-A), as amended). However, in ostensible conflict with the above-quoted portion of the Act, is a specific provision delineating the manner in which a previously withdrawn member may reestablish credit for membership service. This provision is found in Ga. Code Ann. 32-2903 (4), as amended, and reads as follows: "Any member having withdrawn his contributions not more than twice after January 1, 1961 [applicable here], may, after five years active service as a contributing member, reestablish such membership service as represented by the withdrawn contributions upon his payment back into the fund, a sum equal to the amount withdrawn plus three and one-half per cent. Interest for each year or portion thereof from the time withdrawn ..." [Matter in brackets added.] Membership service is defined as service as a teacher rendered while a member of the system for which credit is allowable as provided in Ga. Code Ann. 32-2904, as amended. Pursuant to this Code section the teachers had been allowed credit for their out-of-state service by paying the employee's contributions and an additional amount required by law at that time (totalling eight percent), plus interest. In my view they should not now be denied permission to reinstate this service credit in the same manner as it was obtained. Statutory construction principles in Georgia require that apparent conflicts between different sections of the same Act be reconciled, if possible, so as to be read together consistently. Williams v. Bear's Den, Inc., 214 Ga. 240 (1958). Acts of the General Assembly providing retirement benefits for public officers and employees should be liberally construed in favor of the claimant. City of Macon v. Herrington, 198 Ga. 576 (1944); Burks v. Board of Trustees, 214 Ga. 251 (1958). Invoking the above rules of construction, I am of the official opinion that teachers who establish out-of-state service credit and subsequently withdraw from the Teachers Retirement System may, upon reemployment as a teacher in Georgia, reestablish such service credit by paying into the system the amount of the withdrawn contributions, plus interest. 79 73-47 OPINION 73-46 To: State Revenue Commissioner April 6, 1973 Re: Property tax rebate; regulations by State Revenue Commissioner recommended. This will acknowledge and reply to your letter of March 30, 1973, in which you quote several provisions of House Bill No.1 (Ga. Laws 1973, p. 475) recently enacted by the General Assembly and you ask my official opinion with respect to the interpretation you have placed on these various sections as contained in your letter. I have carefully reviewed your letter of March 30, 1973, and in my opinion the bill may be subject to the interpretation you have placed thereon; however, it is my recommendation that you promulgate regulations, immediately, so construing the Act as contained in your said letter. After you have had an opportunity to propose such regulations we will be glad to review them as to legal form and content. OPINION 73-47 To: Commissioner, Department of Administrative Services April 9, 1973 Re: Motor vehicles; purchase prohibited through Department of Administrative Services when title to be vested in sheriff. This is in response to an inquiry from your office concerning whether a county sheriff may purchase a motor vehicle for his official use through the state's police car contract administered by the Purchasing and Supplies Division of your department. The sheriff in question, pursuant to local legislation (Ga. Laws 1965, pp. 2029, 2031), receives a fixed annual sum of $6,000 for the purchase of two automobiles to be used in his official duties. The facts you have furnished indicate that it is the practice in the particular county that title to these vehicles rests in the sheriff's personal name, and not in the name of the county, or the county sheriff's department, or the like. Thus, for example, if the sheriff were defeated for reelection, he would still own the vehicles for his personal use. Georgia Code Ann. 40-1948 (Ga. Laws 1969, p. 940) specifically authorizes the Supervisor of Purchases (the predecessor of your department), on request from a political subdivision, to purchase for such subdivision in the name of the state any motor vehicle desired by the subdivision. After the subdivision has furnished a certified or cashier's check in an amount sufficient to cover the purchase price, 73-48 80 title in such motor vehicles is transferred to the political subdivision which requested them. In my official opinion, a sheriff cannot legally purchase a vehicle through the state police car contract when he will personally have the title to the vehicle in his own name as opposed to that of the political subdivision of which he is sheriff. I base this opinion on the inescapable conclusion that the sheriff acting as an individual is simply not a political subdivision, and only political subdivisions are authorized by Ga. Code Ann. 40-1948 to purchase motor vehicles through the state. Although not precisely in point inasmuch as it involved a state as opposed to a county officer, I am enclosing for your information an official opinion issued by this office to a previous Supervisor of Purchases, Op. Att'y Gen. 70-164, which also concerns itself with the issues raised by your inquiry. OPINION 73-48 To: Commissioner, Department of Public Safety April 9, 1973 Re: Drivers licenses; members of the active branches of the armed forces must meet visual acuity requirements. By letter of March 7, 1973, you requested this office to furnish an official opinion as to whether extensions of licenses of armed forces active duty personnel were still valid in light of the recently enacted visual acuity requirements. Ga. Laws 1972, p. 1076, amends Ga. Laws 1937, p. 322 (and is unofficially codified as Ga. Code Ann. 92A-410.1), by inserting a new section which provides as follows: "(a) Any other provisions of this Act to the contrary notwithstanding, after January 1, 1973, the holder of a Georgia driver's license of any class shall be reexamined at least every four years by the director for the purpose of ascertaining the holder's visual acuity." Since the new section becomes a part of the 1937 Act, the "any other provision of this Act to the contrary notwithstanding" language refers to any other provisions of Ga. Laws 1937, p. 322, as amended. The provision expressly dealing with drivers licenses of members of the armed forces is found in Ga. Laws 1945, pp. 117, 120, as amended by Ga. Laws 1966, pp. 546, 549 (unofficially codified as Ga. Code Ann. 92A-435). This law states: "The expiration date of all current drivers' licenses now held by or 81 73-49 hereafter issued to citizens of this state now serving in the armed forces of the United States and the expiration date of all drivers licenses held by or hereafter issued to citizens of this state current at the time such citizen enlists or is inducted into the service of the armed forces of the United States are hereby extended for the duration of any such service: Provided, that such extended expiration date of any such drivers license shall terminate 90 days after the discharge from the armed forces of the United States of any holder thereof." The above amends Ga. Laws 1937, p. 322, and is a "provision thereof" for purposes of the visual acuity law. Since the visual acuity law expressly compels an eye examination every four years "notwithstanding" any other "provisions" of the law, the result is that while the license of a member of the active armed forces is extended as far as renewal is concerned, armed forces personnel are not exempt from complying with the visual requirements. In answer to your question, to the extent that Ga. Laws 1945, pp. 117, 120, may be construed as allowing armed forces personnel to avoid the visual acuity examination, the visual acuity law is eontrolling. The effeet is, armed forees personnel need not renew their lieenses until 90 days after they leave the serviee, but, they must eomply with the visual acuity law and submit to the eye examination every four years. However, it should be noted that requiring service personnel to comply with the visual acuity law will not work an injustice sinee it is specifically provided that the visual requirements may be met by furnishing a certificate from a licensed physician or optometrist. Therefore, if a serviceman's duty assignment prevents him from returning to Georgia he need only obtain a certificate from a licensed physician or optometrist stating that he satisfies the visual acuity requirements. It might prevent confusion if Georgia service personnel were notified of this alternative. OPINION 73-49 To: Commissioner, Department of Public Safety April 10, 1973 Re: Drunken driving; municipal court of Rome, Georgia has jurisdiction to try driving under the influence cases; revocation of drivers licenses. Your letter of March 1, 1973 requests that this office render an official opinion as to whether the Department of Public Safety may revoke a driver's license following a conviction for the offense of driving under the influence rendered by the municipal court of Rome, Georgia. 73-49 82 The question ultimately presented is whether the Rome municipal court has jurisdiction to try the state offense of driving under the influence since if it does, the Department of Public Safety clearly has authority to subsequently revoke the license. Ga. Laws 1951, pp. 565, 571, as amended, particularly by Ga. Laws 1971, p. 249 (unofficially codified as Ga. Code Ann. 92A-608). Ga. Const., Art. VI, Sec. VI, Par. II (Ga. Code Ann. 2-4102), provides in relative part: "The court of ordinary shall have jurisdiction to issue warrants, try cases, ancl impose sentences thereon in all misdemeanor cases arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws, and in all cases arising under the Compulsory School Attendance law in all counties of this state in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts of incorporated cities and municipal court judges for offense arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws of the State within their respective jurisdictions." (Emphasis added.) If there is no county or city court in Floyd County or Rome, the municipal court of Rome does have jurisdiction under the above-quoted constitutional provision to try violations of Ga. Laws 1953, Nov. Sess., pp. 556, 575, as amended (unofficially codified as Ga. Code Ann. 68-1625). The county court of Floyd County was abolished over 90 years ago. Ga. Laws 1878-9, p. 372; Ga. Laws 1882-83, p. 534. Rome's city court has likewise been abolished. Ga. Laws 1857, p. 113. The history of the city court of Floyd County is more complicated. Originally created in 1882-3, this court was abolished in 1927. Ga. Laws 1882-83, p. 535; Ga. Laws 1927, p. 401. However, the court was recreated in 1955 and remained the city court of Floyd County until1970 when its name was changed to the state court of Floyd County. Ga. Laws 1955, p. 3109; Ga. Laws 1970, p. 2623. In 1972, this court was abolished by Ga. Laws 1972, p. 3300, which was subsequently approved by the voters of Floyd County in a proper referendum held in November 1972. At present, neither a city nor county court exists in either Floyd County or Rome, Georgia and Ga. Const., Art. VI, Sec. VI, Par. II (Ga. Code Ann. 2-4102) is therefore governing. Under the authority of this constitutional provision, the municipal court of Rome is vested with jurisdiction to try driving under the influence cases. The answer to your inquiry is, then, that the Department of Public Safety may revoke a driver's license following a conviction in the Rome municipal court for the state offense of driving under the influence of intoxicants or drugs. 83 73-50 OPINION 73-50 To: Chairman, State Board of Pardons and Paroles April 12, 1973 Re: Parole; notice of consideration to be sent to judge and district attorney where prisoner serving life sentence. By letter of January 12, 1973, you request an opinion as to when Ga. Laws 1972, p. 410 (unofficially codified as Ga. Code Ann. 77-516.1), require that notice of parole consideration for prisoners be sent to judges and district attorneys of sentencing courts. The language employed in the referenced law is determinative since it replaces no earlier law and is the sole authority governing such matters, and I therefore begin by quoting the applicable portion: "Section 14A. Notwithstanding any other provisions of law to the contrary, if the board is to consider any case in which the prisoner has failed to serve at least one-third of his sentence, the board shall notify in writing, at least 10 days prior to consideration, the sentencing judge and district attorney of the county where such person was sentenced. Such sentencing judge or district attorney, or both, may appear at a hearing held by the board or make a written statement to the board expressing their views and making their recommendations as to whether such person should be paroled." The question presented is, then, what does the law mean when it states that notice must be given if the board is to consider a prisoner who has not served "one-third" of his sentence. No problem is presented when dealing with sentences for a period of years, since it is clear that in such cases one-third of the sentence must have been served. Difficulty is encountered when life sentences are taken into account, the crux of the problem being that it is impossible to determine when one has served one-third of such a sentence. The problem is not governed by any of the specific rules of statutory construction and weight must therefore be given to 102-102 of the Code of Georgia (1933) which provides that words are to be given their ordinary meaning unless a technical sense is intended. Since there is no way to decide when a prisoner has served "one-third" of a life sentence and the law in question requires notice unless "one-third" of the sentence has been served, it is my opinion that when dealing with life sentences notice must always be given. In answer to your question, it is my opinion that where an inmate is serving a sentence the length of which is definite, notice of consideration by the board must be given until one-third of the sentence has been served. When dealing with life sentences, notice must always be given 73-51 84 because it is impossible to determine when one-third of the sentence has been served. OPINION 73-51 To: State Revenue Commissioner April 12, 1973 Re: Consuls, foreign; exemption of consulate from ad valorem taxation does not exempt landlord when consulate leased. This is in reply to a recent request from your office for an opinion on the ad valorem property tax consequences arising from the following facts. The British Consulate is housed in a suite of offices in an office building in Atlanta. The lease between the consulate and the owner of the building declares the relationship created thereby to be that of landlord and tenant. The lease further provides that the tenant has only a usufruct. The consulate, therefore, does not hold such an interest in property that would be taxable. See e.g., Whitehead v. Kennedy, 206 Ga. 760 (1950). The consulate is thus in the position of apparently having an exemption from ad valorem property taxation (Consular Agreement with the United Kingdom of Great Britain, June 6, 1951, 3 U.S.T. 3426), but having no taxable property to exempt. Underterred by this fact, the consulate suggests that the economic burden of their landlord's taxes is passed on to them through their rental charges and that their exemption should insulate them from this indirect "tax." We have no quarrel with the consulate's economic theory. Indeed, we would presume that the landlord passes all of its costs, and hopefully, for it, a profit, along to its tenants. This, however, is strictly a matter between the landlord and the tenant and does not address itself to the taxing authorities. A tax exemption can only operate at the point where the legal incidence of the tax lies regardless of where the economic burden of the tax falls. In light of the foregoing, it is my official opinion that the exemption from ad valorem property taxation granted to the British Consulate by virtue of its Consular Agreement with this country does not insulate the consulate from those property taxes levied on its landlord and passed along to the consulate through rental charges. 85 73-53 OPINION 73-52 To : Governor of Georgia April 12, 1973 Re: Homestead exemptions; enlargement by constitutional amendments of 1972 must be implemented for each independent and county school district of state. This is in reply to your letter concerning the 1972 amendments to Art. VII, Sec. I, Par. IV, of Ga. Const. (Ga. Laws 1972, p. 1460; and Ga. Laws 1972, p. 1463) (Ga. Code Ann. 2-5404), which provide, in relevant part, as follows: "The homestead of each resident of each independent school district who is 62 years of age or over and who does not have an income from all sources, including the income from all sources of all members of the family residing within said homestead, exceeding $6,000 per annum, may be exempt from all ad valorem taxation for educational purposes levied for and in behalf of such school system." Ga. Laws 1972, p. 1460. (Emphasis added.) "The homestead of each resident of each county school district who is 62 years of age or over and who does not have an income from all sources, including the income of all members of the family residing within said homestead, exceeding $6,000 per annum, may be exempt from all ad valorem taxation for educational purposes levied for and in behalf of such school system, including taxes to retire school bond indebtedness." Ga. Laws 1972, p. 1463. (Emphasis added.) Neither of the above amendments is self-executing; i.e., they must be implemented by the General Assembly before an exemption can be granted. See Opinions of the Attorney General, dated January 8, 1973, to the State Revenue Commissioner (Op. Att'y Gen. 73-2). You ask whether these amendments can be implemented on a district by district basis or whether the amendments, if implemented, must have state-wide application. The question you have presented arises from the use of the word "each" preceding "independent school district" and "county school district" in the amendments. "Each" is defined as follows: " ... being one of two or more distinct individuals having a similar relation and often constituting and aggregate ..." Webster's Third New International Dictionary. "A distributive adjective pronoun, which denotes or refers to every one of the persons or things mentioned; every one of two or more persons or things, composing the whole, separately considered ..." Black's Law Dictionary, 4th ed. 73-53 86 The word "each" is also used in the amendments where the language "each resident" appears. Clearly, in this instance "each" is used to refer to the aggregate, i. e., all residents who meet the qualifications. It is equally clear that "each ... district" also refers to the aggregate of the districts, i.e., every one or all of the districts in the state. Furthermore, the legislative history of the amendments shows that it was the legislative intent that the amendments have state-wide application. The amendments as introduced were resolutions applying only to the City of Carrollton and to Carroll County. Floor amendments in the Senate changed the resolutions to their language as passed by the General Assembly and ratified by the people. (1972 Senate Journal, Reg. Sess., pp. 2112 and 2124.) Therefore, it is my official opinion that the 1972 amendments to Article VII, Sec. I, Par. IV, of Ga. Constitution, relating to exemptions from ad valorem taxes for educational purposes for certain persons over 62 years of age, cannot be implemented on a district by district basis but must be implemented, if at all, so as to have state-wide application. OPINION 73-53 To: Commissioner, Department of Offender Rehabilitation April 13, 1973 Re: Publications; it is legal for a state agency to sell subscriptions to a magazine it publishes; no requirement for copyright. This is in response to your request for my opinion on the legality of your agency selling subscriptions to a periodical published by your department-The Georgia Journal of Corrections. Ga. Code Ann. 92-3501 provides, in part, that the state and its agencies may derive revenue, other than by taxation, from "the use by individuals of any property of the state." The following section ( 92-3502), requires that receipts from such sources, not otherwise directed, must be paid into the state treasury. In addition the Georgia Government Documents Act (Ga. Laws 1971, p. 216; 1972, p. 1015 (Ga. Code Ann. 90-301 et seq.)) expressly authorizes the Department of Administrative Services to approve a charge, not in excess of the cost of printing and distribution, for government documents "when in its judgment there is reason to do so in the interest of maximum economy, efficiency, and usefulness." Ga. Code Ann. 90-305 (e). (The Georgia Government Documents Act, when passed in 1971, created an Advisory Council on Georgia Government Documents. Ga. Code Ann. 90-303. However, the Governmental Reorganization Act of 1972, in Section 405 [Ga. Laws 1972, pp. 1015, 1037 (Ga. Code Ann. 87 73-54 40-3552) ], transferred the functions of that council to the Department of Administrative Services.) A "government document" is defined as: " ... any written material produced for dissemination to the public by any state agency; any written material which is required by law to be published or disseminated to the public by any state agency; any written material the publication or distribution of which involves, or may involve, the expenditure of state funds or the funds of any state agency; and any other written material which the [Department of Administrative Services] may include, or exclude, as a government document pursuant to authorization herein provided." Ga. Code Ann. 90-302 (c). [Matter in brackets inserted.] The Government Documents Act also provides that any money derived from a charge for a publication shall be paid into the state treasury. It is, therefore, my opinion that those interested in obtaining copies of your publication could legally be charged for them. Any subscription agreement should, however, be on an annual basis to prevent fiscally obligating the state for a period of more than one year. You also asked if it would be necessary to obtain a copyright for the Journal. The copyright would not be necessary, and the decision of whether to obtain one is strictly administrative. OPINION 73-54 To: Commissioner, Department of Offender Rehabilitation April 13, 1973 Re: Mental institutions; access by State Board of Pardons and Paroles to records of prisoners transferred to. This is in response to your recent request for a determination as to whether it would be appropriate for the State Board of Pardons and Paroles to have access to "Discharge Summaries" from Central State Hospital on inmates being considered for parole. Specifically, you ask whether it would be a breach of confidentiality to permit the Board of Pardons and Paroles to have access to this medical information. It is incumbent upon the Department of Human Resources (formerly the Department of Public Health) to maintain clinical records on patients hospitalized in state hospitals for the treatment of mental disorders. These records are not public records and generally cannot be released. Ga. Laws 1969, pp. 505, 512 (Ga. Code Ann. 88-502.10 (a)). It should be noted that "patient" is a defined term meaning: 73-55 88 " . any mentally ill person who seeks hospitalization under the provisions of this Chapter, or any person for whom such hospitalization is sought ..."Ga. Laws 1969, pp. 505, 506 (Ga. Code Ann. 88-501 (d)). (Emphasis added.) Our law pertaining to the treatment of mentally diseased inmates reads in part as follows: "The State Board of Corrections is authorized to transfer mentally diseased inmates from the Georgia State Prison or other institutions operating under its authority to the criminal ward or facility of the State Hospital for insane at Milledgeville, Georgia. Such prisoner shall remain at said hospital until the superintendent of said hospital declares that his sanity has been restored, at which time the said prisoner shall be returned to the custody of the State Board of Corrections ..." Ga. Code Ann. 77-310 (d), amended by Ga. Laws 1957, p. 477. Also, the Board of Pardons and Paroles has broad powers in gathering information on persons seeking release on parole. Indeed, the person having custody of an inmate is required to furnish, among other things, the results of any physical and mental examinations as may have been performed on the inmate. Ga. Laws 1943, pp. 185, 190 (Ga. Code Ann. 77-516). An inmate transferred to Central State Hospital for the treatment of a mental disorder would not be a patient within the meaning of Ga. Laws 1969, pp. 505, 506 (Ga. Code Ann. 88-501 (d)). Further, you are required by law to furnish the results of any mental examination performed on inmates in your custody to the Board of Pardons and Paroles. Therefore, it is my official opinion that the State Board of Pardons and Paroles should be given access to "Discharge Summaries" from Central State Hospital on inmates being considered for parole; such disclosure would not be a breach of confidentiality. OPINION 73-55 To: Commissioner, Department of Transportation April16, 1973 Re: Open Records Law not applicable to certain records of Department of Transportation. This is in reply to your inquiry concerning the demands of private contractors who have been engaged in the construction of highway projects to examine and copy project papers under the Open Records Statute (Ga. Laws 1959, p. 88 et seq., as amended (Ga. Code Ann. Ch 40-27)). 89 73-55 A construction contractor who has been engaged in performing work, as a subcontractor, on a project undertaken by the Department of Transportation has demanded to examine, copy or photograph papers and writings in the offices of the Department of Transportation which are referred to as summary sheets, computations, daily records, and diaries. The contractor is said to be engaged in determining whether he has been offered enough money for his work under the contract and he maintains that in order to decide whether he has been offered enough money that "We need to have access to everything that affects computations of the pay quantities." The contractor asserts that "From past experience we have found that it is profitable to 'check out' the work of the engineers. They are fallible like the rest of us and the chances of omitting some pay quantity through error is far greater than the chance of adding something extra." At this point in time, the department has not been apprised of dissatisfaction with the compensation offered or of the existence of a dispute regarding the compensation. Upon inquiry to the Department of Transportation, the writer is advised that in the jargon of highway construction, certain words mean or refer to specific papers or writings, as follows: 1. Summaries or summary sheets. These words mean papers and writings which are created and maintained by the Resident Engineer on a project on a daily basis. These papers contain a compilation of and reflect all items of work performed by a contractor during the construction of a project and for which he will receive money. The papers reflect the activities of a contractor and show what he has done on a particular day. 2. Computations or computation sheets. While this phrase might well refer to any paper upon which mathematical computations are made, it is also generally understood to mean computer print out sheets or field cross-section notes used in the calculation of earth work quantities. At the beginning of a project and at the conclusion of certain phases of work, employees of the department make measurements upon the ground from which, by various computations, determinations are made of the actual amount of materials handled by a contractor in the prosecution of that portion of the work to which these measurements and computations appertain. (It is said that contractors generally do not make their own cross-section notes but that they do make their own records of the number of truck loads of materials handled.) 3. Daily records. This is a writing created by an employee of the department who is involved in the actual work of the project. The 73-55 90 writing reflects the activities of a contractor on a given day and will thus indicate the date upon which a contractor performed an item of work, an identification of the item or items of work performed by the contractor, the location at which the work was performed, and the amount of an item (physical materials) put into place by a contractor on a particular day. 4. Diary or diaries. This is a writing created and maintained by an employee of the department on a day-to-day basis. The writing reflects the activities of the contractor in prosecuting the work and it may contain personal observations made by the particular employee with respect to the manner in which the contractor is carrying out the work. The contractor asserts a legal right to examine and copy the writings and papers identified above pursuant to Ga. Code (1933) 89-601 and Ga. Laws 1959, p. 88 et seq., as amended (Ga. Code Ann. Ch. 40-27). Ga. Code Ann. 89-601 provides that "All books kept by any public officer under the laws of this state shall be subject to the inspection of all the citizens of this state, within office hours, every day except Sunday and holidays." The foregoing statute has been the subject of litigation from time to time which has been centered generally around the records of superior court clerks. The full bench has held that a group of citizens who alleged an interest in determining the financial condition of two courts, a board of county commissioners, and a county hospital, and who were relying upon the statute quoted above, could not compel a clerk of the superior court, who was also clerk of a city court, the county commissioners, and the county hospital board, to permit an examination of court dockets, records of the receipt and disbursement of fines, financial records of the county hospital, and all records of the board of county commissioners, including the minutes of meetings and specific financial records such as cash books, ledgers, and bank books. Booth v. Mitchell, 179 Ga. 522 (1934). The court did not predicate its decision in the Booth case upon a definition of the words "public record" but simply held that the clerk was vested with discretion to permit or refuse inspection of the papers at the behest of those seeking to examine them for the purpose of obtaining general information. It is noted that the Supreme Court took particular care in the Booth case to point out that the grand jury was empowered to inquire into the matters with respect to which the citizens' committee exhibited interest. In the present situation, and in view of the fact that every communication from the subcontractor and his counsel allude to both the protection and advancement of his private pecuniary interests and to the public's interest in the detection of 91 73-55 frauds, it is noted that the General Assembly has provided for appropriate inquiries into the affairs of all units of state government by the State Auditor and the Attorney General. With exceptions not applicable here, the General Assembly has provided in the Open Records Statute that "All state, county, and municipal records ... shall be open for a personal inspection of any citizen of Georgia at a reasonable time and place, and those in charge of such records shall not refuse this privilege to any eitizen." Ga. Laws 1959, p. 88 (Ga. Code Ann. 40-2701). The second section of the statute (Ga. Code Ann. 40-2702) provides, inter alia, "In all cases where a member of the public interested has a right to inspect or take extracts or make copies from any public records ..., any such person shall hereafter have the right of access to said records ... while in the possession, custody and control of the lawful custodian thereof, or his authorized deputy.... Said work shall be done in the room where the said records, documents or instruments are by law kept...." Neither Ga. Code Ann. 89-601 nor Ga. Code Ann. Ch. 40-27 defines the words "record" or "public record." Georgia courts have not defined those words by construing either of the statutes. However, in City of Atlanta v. Hawkins, 45 Ga. App. 847, 850 (3) (1932), water meter books kept by the city water meter inspectors were held not to be such "public records" as would allow a witness who had examined the books to testify as to their content. In Brusnighan v. State, Ross v. State, 86 Ga. App. 340 (1952), the court held that certain letters and minutes of meetings were open to public inspection by virtue of a statute applicable specifically to the Insurance Commissioner. At the time the Brusnighan case was decided, the statute applicable to the Insurance Commissioner provided that "The office of the Insurance Commissioner shall be deemed a public office and the records, books and papers thereof, on file therein, shall be deemed public records of the State ...". Former Ga. Code 56-101. (Emphasis added.) In the absence of a statute declaring every writing to be a public record, not every paper in the hands of a public officer is a public record, for "it is the nature and purpose of the document, not the place where it is kept, which determines its status." Linder v. Eckard, 152 N.W.2d 833, 835 (Iowa 1967). The appellate courts of many states have wrestled with the definition of "public record." The most prevalent view is that a public record 73-55 92 "is one which an officer is required by law to keep or which is intended to serve as a memorial and evidence of something written, said, or done by the officer or public agency." Linder v. Eckard, supra 836. See also, Amos v. Gunn, 94 So. 615 (Fla. 1922). The Supreme Court of Arizona has held that a public record "is one made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public, or to serve as a memorial of official transactions for public reference." Mathews v. Pyle, 251 P.2d 893, 895 (Ariz. 1952). The Supreme Court of another state has held that a public record means "a written record of the transactions of a public officer in his office ...". State v. Kelly, 143 S.E.2d 136, 139 (W. Va. 1965). In a case dealing with a falsified and "rigged" bid for the procurement of public work, a California appellate court has defined the words "public record" to be "those writings which evidence the completed acts of public servants ...". People v. Olson, 42 Cal. Rptr. 760, 765 (1965). While some courts hold that public records are those an officer is required by law to keep and other courts hold that such records are those which are intended for public reference, the factor which is common to the decisions from the various jurisdictions is that a public record is a written memorial of the acts and transactions of a public officer. Pretermitting the question of whether a writing prepared by an employee or subordinate of a public officer is a public record, and if so, when it becomes a public record [Cf. Coldwell v. Board of Public Works of City and County of San Francisco, 202 P. 879 (Cal. 1921)], it is my opinion, after examining the definitions formulated by the appellate courts of other states, that none of the records about which inquiry has been made fall within the definition of "public records" with the possible exception of the computation sheets. The computation sheets apparently are the only papers in this group which record the acts or transactions of public employees and those actions are measurements of the ground. All of the other papers are written memorials made by a public employee of the acts and conduct of a private citizen doing business with the state. However, applying other applicable standards, none of the papers are created pursuant to a statutory command nor are they intended to serve the function of informing or advising the general public. Rather, all of these papers are created to facilitate the department's monitoring processes of the performance of a private citizen with whom it is doing business. The Georgia statute relates to members of the public who are "interested" in the public record. Ga. Code Ann. 40-2702. In the 93 73-55 Booth case, the court held that the citizens' committee did not have a legal right to examine all of the records of the superior court clerk, including all of the financial records of the various governmental units of which he was also the clerk, for the purpose of obtaining general information. The holding of the Booth case and the provision in the Georgia statute related to "interested" persons seem to be compatible with a facet of the common law. At common law, persons having a sufficient interest in the subject matter of a public record have a right to examine it when such examination is "not detrimental to the public interest ...". Van Allen v. McCleary, 211 N.Y.S.2d 501, 512 (1961). In Kentucky, following the common law concept, it has been held that "even in cases where the proper interest is shown or presumed the right to inspect may be denied when the disclosure would be detrimental to the public interest . . .". Courier-Journal and Louisville Tirnes Co. v. Curtis, 335 S."\V.2d 934, 937 (Ky. 1960). Expressing the proposition in another way, the Supreme Court of West Virginia holds that the right to inspect a public record does not extend to those situations in which such inspection may "further any improper or useless end or purpose." State v. Kelly, 143 S.E.2d 136, 139 (W. Va. 1965). The West Virginia court has also held that the right of inspection exists with respect to records "that are of such nature as to be of interest to the public in general ...". State v. Kelly, supra, at p. 140. Applying the criteria that a public record is one which is of interest to the public in general, it is doubtful that any of the papers would qualify as a public record. Under a California statute, the court has held that a right to inspect public records exists "where there is no contrary statute or countervailing public policy ...". Craerner v. Superior Court of the State of California, 71 Cal. Rptr. 193, 199 (1968). It has been said that a general right of inspection may be limited where free access to information in a public office might "prejudice the efforts of a public body to defend itself in the courts." 84 A.L.R.2d 1266 6 (a). Whether free access at all times to the papers which are the subject matter of this opinion would prejudice the efforts of the Department of Transportation to defend itself in contract lawsuits could not be absolutely determined until the existence of the prejudice became apparent. It is noted that requests to view and copy the writings and papers of the Department of Transportation quite often arise prior to the time a claim or litigation is filed against the department seeking sums of money over and above that provided for in the contract as compensation. It is also noted that persistent efforts to inspect these papers are made prior to the time the department is informed of dissatisfaction with 73-55 94 respect to the compensation paid under construction contracts. It would be incredibly naive to entertain the view that reasonable business men would spend their money by investing their own time or by sending agents or attorneys to examine these writings if they felt that such examination would be other than beneficial to themselves. It would also be quite naive to believe that simply knowing the contents of these writings would not be beneficial to a contractor contemplating the filing of a claim or litigation against the department the object of which is to obtain more money than provided for as compensation in a construction contract. Simply knowing the precise content of the records, books, and papers of an opposing party prior to the time a claim is presented or a lawsuit is drafted and its themies and strategies are formulated is an advantage to the party having such knowledge and is generally quite detrimental and prejudicial to the interests of the party whose information is thus disclosed. At the point in time with which this opinion is concerned, litigation has not been filed and the possibility of its advent is often unknown. The scope of this opinion is confined to the Open Records Statute and does not extend to discovery procedures. The general public has a right to expect that those who administer public affairs and who are responsible for the public purse do not permit the compromise of the conduct of those affairs by those who do or who may ultimately seek to obtain money from the public treasury. The right of the taxpaying public to expect that public persons who are engaged in transactions which involve the expenditure of money will do so "at arms' length" is an inherent part of public policy and it is, in my opinion, a countervailing public policy within the context of the matters examined in this opinion. That the public policy of the state requires scrupulous loyalty to the interests of the general public rather than to the private interests of individuals is amply expressed in the Code of Ethics for Government Serviee. Ga. Laws 1968, p. 1369 (Ga. Code Ann. 89-925). This paragraph has been included merely to demonstrate that the Open Records Statute does not evince a legislative intent to modify this inherent and countervailing part of public policy. In summary, it is my opinion that daily records, diaries, summaries, and computation sheets are not subject to inspection or copying under the Open Records Statute and that your department may deny requests to examine or copy such papers. 95 73-56 OPINION 73-56 To: Deputy Director, Georgia State Merit System April 23, 1973 Re: County boards of family and children services; rights of employees respecting labor unions. This is in response to your recent letter requesting my opinion as to whether the Fulton County Board of Family and Children Services has the authority to: (1) enter into a collective bargaining agreement with a labor union; and (2) discuss working conditions and personnel policies with- a labor union which represents some of the employees of the organization. Under current statutes, neither the state nor a county is under a duty to bargain collectively with a union. The National Labor Relations Act and the Labor Management Relations Act of 1947 specifically exempt state governments and their political subdivisions from the definition of "employer" and from the requirements of the statute. 29 U.S.C.A. 152 (2). Further, there is no state statute requiring or even authorizing collective bargaining by public employers, except for firemen in certain situations. Ga. Laws 1971, p. 565 et seq. (Ga. Code Ann. Ch. 54-13). The Georgia Supreme Court has held that a state agency does not have authority to "enter into an agreement with any third party fixing the terms and conditions of the employment" of the agency's personnel. International Longshoremen's Assn. v. Georgia Ports Authority, 217 Ga. 712, 718 (1962). The statutes establishing the county departments and boards of family and children services clearly indicate that the Department of Human Resources sets policies for the county departments and boards. The county department, subject to the rules and regulations of the Department of Human Resources, is responsible for the overall administration of public assistance programs in the county. Ga. Laws 1937, pp. 355, 365 (Ga. Code Ann. 99-506). The Department of Human Resources is responsible for administration and supervision of all county departments. Ga. Laws 1937, pp. 355, 359 (Ga. Code Ann. 99-109). The Department of Human Resources prescribes qualifications and salary standards for county personnel. Ga. Laws 1937, pp. 355, 360 (Ga. Code Ann. 99-116). The Commissioner of Human Resources is designated as the appointing authority for the department and has the power to transfer employees among the different county departments. Ga. Laws 1937, pp. 355, 364, as amended (Ga. Code Ann. 99-504). Because of the organizational structure established by the statutes, the employing authority for county board employees is the state, for 73-57 96 purposes of terms and conditions of employment. Furthermore, employees of the county departments are covered under the State Merit System. Ga. Laws 1971, p. 45 (Ga. Code Ann. 40-2201 (a)). The Fulton County Board has no authority to set or amend the terms and conditions of employment established by the Department of Human Resources and the State Merit System. Consequently, the rule of International Longshoremen's Assn., supra, applies in this situation. For these reasons, it is my official opinion that the Fulton County Board of Family and Children Services does not have the authority to enter into a collective bargaining agreement with a labor union. Although the board lacks authority to enter into a collective bargaining agreement with a union, there is no prohibition against the board's having discussions with employees or their representatives on appropriate subjects. While state employees are prohibited from striking, they have the right to express complaints or opinions relating to the conditions of their employment. Ga. Laws 1962, p. 459 et seq. (Ga. Code Ann. Ch. 89-13). This would appear to include the right to join a labor union. (Op. Att'y Gen. 69-379). OPINION 73-57 To: Director, State Board of Corrections April 23, 1973 Re: Courts; responsibility for safety of courts during habeas corpus hearings. By letter of March 1, 1973, you request this office to issue an official opinion as to who is responsible for the safety of the court during a habeas corpus hearing. Although your inquiry is specifically addressed to proceedings before the Tattnall County Superior Court, this answer is applicable to all habeas corpus hearings. The Board of Corrections, under Art. V, Sec. V, Par. I of Ga. Const. (unofficially codified as Ga. Code Ann. 2-3401), is vested with custodial responsibility for inmates of the state correctional system, specifically subject to action by the legislature. However, your inquiry does not concern responsibility for custody of the inmate, but rather responsibility for the security of the courtroom wherein the hearing is conducted. This question is governed by the Code of Georgia 24-104, 24-2813, and 24-3351 (the last section unofficially codified as Ga. Code Ann. 24-3379). Code of Georgia 24-104 (1) grants to all courts the power to: " ... preserve and enforce order in its immediate presence, and as 97 73-58 near thereto as is necessary to prevent interruption, disturbance, or hindrance to its proceedings." In addition, the court is authorized by subsection (4) to: " . . . control, in furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every manner appertaining thereto." The above quoted law clearly illuminates the fact that the power to provide security of the courtroom has been granted to the court. Code 24-2813 and 24-3351 (the last section unofficially codified as Ga. Code Ann. 24-3379) provide the "tools" which allow the court t0 implement its authority. Section 24-2813 (2) requires the sheriff of the county to attend all sessions of the superior court for the express purpose of preserving order. To aid the sheriff in this task 24-3351 (unofficially codified as Ga. Code Ann. 24-3379) grants him the right: " ... to select such bailiffs, with the approval of the court, as may be necessary to properly transact the business thereof." This section also grants to the court the right to appoint additional bailiffs whenever their presence is required. From the law discussed above, the following may be gleaned. The power to control the courtroom is granted to the court. This power may be implemented, if necessary, by use of the sheriff, his deputies, or bailiffs appointed either by the court or by the sheriff. It is, therefore, my official opinion that the court, assisted by the sheriff of the county, is responsible for undertaking measures necessary to insure the safety of the court during a habeas corpus proceeding. However, nothing contained in this opinion should be construed as relieving the Board of Corrections from any of its constitutional duty for custody of inmates. OPINION 73-58 To: Secretary of State May 1, 1973 Re: Elections; persons whose names are on election list cannot be prevented from voting because of loss of registration cards. The voter registration cards in certain election districts in this state have been lost or misplaced during the repair of the county courthouse in which the cards were maintained. The election officials are uncertain as to what course of action they should pursue in remedying this situation. You have sought an opinion on the proper course of action that should be pursued by the officials. Initially, you indicated that these officials are seeking to have the electors to reregister in order that they will have voter registration 73-58 98 cards on file. I know of no reason why they cannot pursue this course of action and would encourage its continuation. You have further indicated that there are some electors that have not reregistered and that the officials do not intend to permit them to vote in future elections, even though their names appear on electors' lists that were not lost and lists that are now on file in your office. This amounts to a disenfranchisement of those electors whose cards were lost. It is my opinion that such a course of conduct should not be pursued by these officials. The right to vote is a basic, fundamental right upon which rests all other rights afforded the citizenry under a democratic form of government. Reynolds v. Sims, 377 U.S. 533 (1964). Thus, any law which tends to limit or curtail that right must be subjected to very close scrutiny. Dunn v. Blumstein, 405 U.S. 330 (1972); Bullock v. Carter, 405 U.S. 134 (1972). Likewise, any situation or set of circumstances which effectively limit one's right to vote should be closely scrutinized and every effort should be made to avoid disenfranchisement of an elector. The Georgia Election Code has the following provisions regarding who is eligible to vote in an election: "Each elector whose name appears on [an electors'] list, and who is not found to be disqualified subsequent to the filing of such list, shall be entitled to vote in any primary or election held during the period subsequent to the filing of such list and before the filing of the next such list...." Ga. Code Ann. 34-624, based upon Ga. Laws 1964, Extra. Sess., pp. 26, 64. A voter must meet two requirements. He must be a qualified elector when placed upon the list, and cannot be disqualified subsequent to that time. Hollifield v. Vickers, 118 Ga. App. 229 (1968). This proposition has been the law in Georgia since long before the adoption of the Election Code in 1964. See Briscoe v. Between Consolidated School District, 171 Ga. 820 (1930); Drake v. Drewry, 112 Ga. 308 (1900). Once an elector has qualified and registered he cannot be required to register again or further qualify unless he fails to vote in a general primary election for at least three years. Ga. Code Ann. 34-620, based upon Ga. Laws 1964, Extra. Sess., pp. 26, 61. Consequently, those persons who have qualified and registered to vote and whose names appear on an electors' list cannot be denied the right to vote without some disqualification arising after their registration. The question then becomes whether or not the loss of an elector's voter registration card is a disqualification such as would prevent his voting in an election although his name appears on an electors' list. The Georgia Constitution specifically provides the right of a citizen to register as an elector and to vote. Ga. Const., Art. II, Sec. I (Ga. Code Ann. Ch. 2-7). Thus, the right of a citizen to vote, like the right of a 99 73-59 citizen to hold public office, is the general rule, and he cannot be deprived of this right without some disqualifications specifically provided by law. Cf., Patten, et al. v. Miller, 190 Ga. 123 (1940). The Georgia Election Code does not specifically provide for the disqualification of an elector due to the loss of his registration card. In the absence of such a specific provision in the Election Code, an individual is not rendered disqualified to vote by the loss of his voter registration card by county officials. In light of the above, it is my opinion that an elector cannot be disenfranchised simply by the loss of his voter registration card by county officials. Thus, an elector whose name appears on an electors' list, and who is not disqualified in accordance with the Election Code, must be allowed to vote in future elections. OPINION 73-59 To: Governor, State of Georgia May 2, 1973 Re: Drugs and druggists; mailing of prescriptions by federally employed pharmacists according to federal regulations is not illegal. This is in reply to your request for my official opinion as to whether the mailing of prescription drugs by pharmacists employed by the Veterans Administration violates Ga. Code Ann. 79A-408 (9), based upon Ga. Laws 1967, pp. 296, 312; 1969, p. 936. Pursuant to Ga. Code Ann. 79A-408 (9), the state has broad powers to suspend or to revoke any license issued under that Chapter when the licensee has regularly employed the mails to sell, distribute, and deliver a prescription drug, when the prescription for that drug was received by mail. The question is whether the Georgia licensing statute has any effect on a federal employee involved in a federal governmental function. In my opinion, it does not. Because VA pharmacists are authorized to dispense prescription drugs by mail (see Part VII, Veterans Administration Medicine and Surgery Manual), federal policy conflicts with state law. Where federal regulations promulgated to carry out federal statutes conflict with a state statute, the former will govern. Public Utilities Commission v. United States, 355 U.S. 534 (1958). It therefore follows that the mailing of prescription drugs by pharmacists employed by the Veterans Administration does not violate Ga. Code Ann. 79A-408 (9). 73-60 100 OPINION 73-60 To: Chairman, Georgia Public Service Commission May 4, 1973 Re: MARTA; authority to provide charter service beyond Atlanta metropolitan area. This is in reply to your request for an opinion on whether the Metropolitian Atlanta Rapid Transit Authority (MARTA), Ga. Laws 1965, p. 2243, as amended, may operate charter bus services from points within the metropolitan area (Ga. Laws 1965, pp. 2243, 2244, Section 2(d)) to points within the state but outside that area. Your inquiry is premised upon the fact that whether or not such services are provided may affect the regulatory determinations of the Public Service CommissiOn. MARTA is a public body corporate created as a joint instrumentality of the participating governments existing for the purpose of establishing and administering " ... a rapid transit system within the metropolitan area...."Ga. Laws 1965, pp. 2243, 2252, Sections 3, 7. The responsibility of MARTA with respect to a "rapid transit system" includes the "rights to provide group and party services." Id. Sections 2(g), 2(i). Since it is clear, therefore, that MARTA does have the authority to provide charter services, the resolution of the question posed turns on whether the phrase "within the MARTA area" in Section 7 of the Act limits that authority to the provision of charter services within the metropolitan area. The phrase "within the metropolitan area" or phrases of similar import are repeated at critical points throughout the Act. The legislative findings of public need expressed in Section 3 of the Act are related to the metropolitan area. Section 7, noted above, defines the purposes of MARTA in terms of the metropolitan area. Section 12 limits the exercise of the power of eminent domain for MARTA purposes to property within the jurisdiction of the participating governments. In addition, Section 24, authorizing the financial participation of local governments, is premised upon the declaration that "Provision for a rapid transit system within the metropolitan area is declared . . . to be an essential governmental function and public purpose [of the named political subdivisions]." Finally, Section 6 (b) of the Act provides that in the event a governmental unit within the territory defined by Section 2(d) by referendum declines participation, ''... no provision of this Act shall thereafter be applicable to such 101 73-61 local governing body, its local government or the territory thereof ...." Ga. Laws 1965, pp. 2243, 2249. Two conclusions necessarily follow from a review of MARTA's statutory authority. On the one hand, the grant of power to MARTA is extremely broad in scope and for that reason should be construed to include any and all acts reasonably necessary to execute the powers expressly conferred. See State of Georgia v. Regents of University System, 179 Ga. 210, 227 (1934). On the other hand, the General Assembly clearly attached critical significance to the territorial definition of MARTA's powers. Each of these concerns by the General Assembly must be given full effect in the construction of MARTA's powers. Utilizing this approach, it follows that MARTA may provide charter services for trips originating within the metropolitan area but extending beyond those borders where it concludes that such services are reasonably necessary to serve its statutorily mandated objectives within the metropolitan area. Ga. Laws 1965, p. 2243, Sections 2(i), 3, 7. Within this restriction, it would not be a sufficient basis to provide such services that MARTA concluded only that such services were profitable, Id. at Section 8(p), or only that such services were desirable. MARTA must conclude that such services are necessary or convenient to its express power to provide a transportation system "within the metropolitan area," Id. at Section 7, in order to achieve the underlying objective " . . . to alleviate . . . traffic . . . congestion, supply deficiencies in mass transportation, coordinate and balance [existing] transportation facilities . . . and otherwise provide a sounder basis for the development of traffic patterns and control." Id. at Section 3. Whether such services are related to that purpose is committed, at least in the first instance, to MARTA's investigation and judgment. It is therefore my official opinion that MARTA may provide charter services originating within the metropolitan area but extending outside that area where it determines that such services are reasonably necessary to provide a transportation system within the metropolitan area. OPINION 73-61 To: Chairman, State Board of Pardons and Paroles May 9, 1973 Re: Pardon relieves of civil disability, but does not authorize person pardoned to state that he has never been convicted. This is in reply to your recent letter requesting an opinion on the effect of pardons. The State Board of Pardons and Paroles has con- 73-61 102 stitutional power to grant pardons. Ga. Const., Art. V, Sec. I, Par. XI (Ga. Code Ann. 2-3011, as amended by Ga. Laws 1972, p. 1356). Such pardons relieve an individual from "civil and political disabilities" created by a conviction. Ga. Laws 1943, pp. 185, 195 (Ga. Code Ann. 77-528). The domain of "civil and political disabilities" is the issue under consideration in my response. A full pardon restores one to his rights of citizenship. Hulgan v. Thornton, 205, Ga. 753, 757 (1949). It operates by release, remission and forgiveness: That is to say, release from obligation, remission of a penalty, and forgiveness for an offense. Ex parte Wells, 59 U.S. 421 (1956). It does not deny guilt, but forgives it. It exempts an individual from punishment provided for the offense. Burdick v. United States, 236 u.s. 79 (1915). Despite dicta of the Federal District Court for the Northern District of Georgia in 1868, that " ... when Mercy, in her devine tenderness, bestows on the transgressor the boon of forgiveness, Justice will pause, and, forgetting the offense, bid the pardoned man go in peace." United States v. Athens Armory, 35 Ga. 344, 363 (1868). neither the police nor court records are expunged of all memory of the offense and conviction. In the eyes of the law, the pardoned man is treated as though he never committed the offense; however, the record of commission and conviction remain. In fact, statutory law requires that the Board of Pardons and Paroles "preserve on file all documents on which it has acted in the granting of clemency, reprieve, pardon or parole." Ga. Laws 1943, pp. 185, 193 (Ga. Code Ann. 77-522). Although the courts of Georgia have never specifically addressed the issue presently under scrutiny, it is my belief they would hold in accord with Justice Hawkins of the Texas Court of Criminal Appeal, who said that although a pardon is full and complete, it is a fallacy to allow the pardoned person to say he has never been convicted, as it would be an untruth. Warren v. State, 74 S.W.2d 1006, 1008 (1934). (Hawkins, J., dissenting in part.) A few states hold contra. See United States v. Garfinkel, 69 F. Supp. 846, 848-9 (1947). In honesty and candor, a convicted felon or misdemeanant, after pardon, when confronted with the question, "Have you ever been convicted of a crime?" should reply, "Yes, but I have been pardoned." Any other answer would be an untruth, as the pardon goes to forgiveness of guilt, not forgetfulness of conviction. In summary, it is my official opinion that a convicted felon cannot state under oath, after pardon, that he has never been convicted of a cnme. 103 73-63 OPINION 73-62 To: Commissioner, Georgia Department of Community Development May 9, 1973 Re: Statutes; increase in per diem cannot be paid prior to effective date of authorizing statute. This is in reply to your letter of April 24, 1973, in which you ask whether the provisions of Senate Bill108, Ga. Laws 1973, pp. 701, 705, authorizing the payment of $36 per diem to members of the Board of Community Development can be put into effect prior to the effective date of the Act (i.e., July 1, 1973). I know of no way in which a law can be implemented or monies paid out thereunder prior to its effective date and consequently my answer is in the negative. OPINION 73-63 To: State Superintendent of Schools May 9, 1973 Re: State Board of Education; per diem of members. This is in reply to your letter of April20, 1973, in which you ask for my opinion concerning the per diem to be paid to members of the State Board of Education for (a) attendance at regular meetings of the board, and (b) service on committees or sub-committees in light of a recent enactment of the General Assembly, to-wit: Ga. Laws 1973, pp. 701, 705 (S.B. 108), a copy of which I have received from your office. As you are aware, the applicable law prior to enactment into law of S.B. 108 is that set forth as Ga. Code Ann. 32-407 (Ga. Laws 1937, pp. 864, 866, as amended). This Code section states that: "All members of the State Board of Education shall be paid by the State Department of Education $20 per diem for every day in attendance at meetings of the said board at the State Capital in the Department of Education or while traveling as a member of a committee of said board which has been authorized by action of the board, plus actual traveling expenses." Section 4 of S.B. 108 provides that each member of certain enumerated state boards and commissions, including the State Board of Education, shall: " ... receive the sum of $36 per diem for each day such member is in attendance at a meeting of such board or commission, plus reimbursement for actual transportation costs ..." (emphasis added), 73-64 104 but further expressly provides: "The existing law relative to the number of meeting days and renumeration for service on committees or subcommittees of any such board or commission shall remain in effect." Based upon the foregoing, it is my opinion that Ga. Code Ann. 32-407 has been superseded by S.B. 108 only to the extent that for attending a meeting of the State Board of Education, a board member's per diem is increased from $20 to $36 per day, with the old rate (i.e., $20) being retained with respect to travel as a member of a committee or subcommittee of the board. OPINION 73-64 To: Commissioner, Department of Agriculture May 11, 1973 Re: Livestock; enterprises concentrating livestock subject to licensing and inspection provisions. This is in reply to your request for my opinion as to whether or not livestock buying stations and livestock assembly or concentration points are subject to licensing and disease control inspection by the Department of Agriculture. It is my understanding that the operations in question do not conduct auction sales of livestock at their premises, but serve as concentration points for livestock intended to be sold to other outlets on behalf of the owners of the livestock. A service fee or commission is customarily charged the owners of the animals for this service. In your letter you stated that operators of certain of these livestock concentration points have refused to permit authorized livestock inspectors access to the premises or to records relevant to the livestock disease control activities of the Department of Agriculture. It is provided in Ga. Laws 1952, p. 184 et seq., as amended (Ga. Code Ann. Ch. 84-32), that no livestock barn, auction or sales operator shall engage in such business without first having applied for and obtained a license from the Commissioner of Agriculture. The Act further provides that the words "barn, auction or sales operator" as used therein shall include any person, firm or corporation engaged in the business of " ... operating barns and yards for the concentration of livestock held for the purpose of auction or sale.'' Consequently, the operations of which you inquire are subject to the licensing requirements of the above statute together with the inspection and livestock disease control powers granted therein to the Commis- 105 73-65 sioner of Agriculture or his authorized livestock inspectors. Violation of the Act is made a misdemeanor and civil injunctive remedies are also provided. You further state that difficulties have been encountered with certain buying stations which are operated under the name and auspices of a membership organization. If these various operations are in fact owned or operated by a single person, firm or corporation, a single license covering the operation of all such stations would be appropriate. OPINION 73-65 To: State Auditor May 11, 1973 Re: County boards of education; fringe benefits to school superintendents as item of compensation. The questions presented by your letter of March 14 revolve around a county school board's contribution towards the payment of premiums on the county school superintendent's life insurance policy under a socalled "split dollar" arrangement. As you may already be aware, a "split dollar" arrangement is one in which the employer and employee both contribute towards the payment of premiums on a policy of insurance on the life of the employee. The employer ordinarily pays a portion of the annual premium not exceeding the increase in the cash surrender value of the policy for the year, with the employee paying the balance. Under such arrangements, the employer is generally entitled to recover the cash surrender value of the policy, or at least that portion of the cash surrender value equal to the employer's contribution, from the proceeds of the policy. Where such proceeds result from the death of the insured, the balance will then be paid to the beneficiary named in the policy. In some "split dollar" arrangements, it is the employer who is the "owner" of the policy. In such instances, the employer will receive reimbursement from the employee for the latter's share of the total premium payments made by the employer to the insurer. In other arrangements, such as the one involved in the present situation, a "collateral assignment" system is utilized. Here, the employee is customarily the "owner" of the policy, with the employer making what is "in form" an annual loan of its share of the premium payment to the employee-who in turn pays the insurer. It is contemplated by all concerned that these so-called "loans" (which normally do not bear interest) shall be repaid solely from the cash surrender value or proceeds of the policy upon the termination of employment or death of the employee. The employee is customarily required to execute an assignment of the policy to the employer as collateral security for even- 73-65 106 tual repayment of the employer's contribution (i.e., the so-called "loan"). Looking then to the situation at hand, while the county school board's undertaking of an obligation to contribute toward premium payments on its county school superintendent's life insurance (under a "split dollar" arrangement) was pursuant to the employment contract between the two parties, the matter has become more complicated by the fact that ownership of the policy has been subsequently transferred by the superintendent to his wife. This transfer, apparently with the full knowledge and consent of all concerned, has been accompanied by the usual collateral assignment of the policy to the employer, but this time it is the superintendent's wife who has (as owner) executed the assignment. The county board of education has continued its contribution towards premium payments under the "split dollar" arrangement subsequent to the transfer of ownership. As I see it, the rather complex situation presented by your letter, its various attachments, and a copy of the insurance policy (which I subsequently have been able to obtain), can perhaps more clearly be discussed and analyzed by viewing the matter as one consisting of two steps, which are as follows: STEP ONE: In a county school system in which the school superintendent is employed by and serves at the pleasure of the county board of education, the written employment contract between the two parties provides that part of the superintendent's compensation shall be the school board's contribution (under a "split dollar" arrangement) towards the payment of premiums on a policy of life insurance to be taken out by the superintendent on his own life. The employment contract specifies that the maximum amount of the employer's annual contribution is not to exceed the lesser of the year's increase in the cash surrender value of the policy or $2,500. It further provides that the county board of education shall retain, as its own asset, a right to the cash surrender value of the policy up to but not exceeding the full amount of the board's contribution towards premium payments. The sum is recoverable upon termination of the superintendent's employment. The employment contract expressly states that the intent of this retained right of the school board is to cause its ultimate expense for the furnishing of the insurance policy to be nothing more than "the use of its money." See employment contract, paragraph 11. STEP TWO: After he had entered into his employment contract and purchased a life insurance policy in the principal amount of $100,000 (naming his wife as beneficiary), the superintendent was advised that there would be a tax advantage in transferring full ownership of the policy to his wife (thus precluding any possibility of it being included in his estate for estate tax purposes). It appears that this was done (as already indicated, with the full knowledge and consent of all concerned), 107 73-65 an.d that the county school board has continued to contribute towards payment of premiums on the policy in the amount specified by the employment contract. In order to continue to secure its right to ultimate recovery of its contribution, however, the school board entered into the customary collateral assignment agreement, this time, however, with the superintendent's wife. A portion of the overall collateral assignment agreement was drawn up in the form of a "loan agreement," and in it the county school board's continued contribution towards premium payments is spoken of as a "loan." To preserve the school board's right and ability to ultimately recover its contribution from the cash surrender value or proceeds of the policy, the superintendent's wife also agreed to a "collateral assignment" to the board of the cash surrender value of the policy (which she would otherwise be entitled to herself as owner of the policy), and further agreed to execute each year a noninterest bearing note for the amount of that year's contribution by the school board. QUESTIONS PRESENTED: In essence, your letter requests my opinion as to the legality of the over-all transaction, and in particular whether the school board's contribution towards the premium payments, when coupled with a right to recover its contribution from the cash surrender value or proceeds of the policy, causes the transaction to be a "loan" rather than "compensation." Once again it would seem that these questions can be more readily answered by looking in tum to each of the two steps involved in the transaction. DISCUSSION AND OPINION: With respect to "Step One," I see few if any legal problems involved. In addition to the power of the particular county board of education in question, under local law, "to select, appoint and suspend and remove" its superintendent and all other employees, see Ga. Laws 1872, p. 388 (from which a right to fix the compensation of such employees would seem to be necessarily implied), general school law authorizes all county school boards to pay their superintendents, in addition to the minimum salary required by law and the State Board of Education under the MFPE Act: " ... additional compensation for the services to be rendered, as may be in their judgment proper and just." Ga. Code Ann. 32-1006, as amended. I am unaware of any law which would require such "additional compensation" as the local school board may decide upon to consist solely of monetary payments or to exclude insurance benefits as compensation. Speaking of one commonly used form of noncash remuneration (i.e., annuity benefits), the Court of Appeals observed in Griffin v. Bass, 96 Ga. App. 892, 896 (1958): "This is the day and age when fringe benefits, such as sick benefits, 73-65 108 retirement, etc., are extremely important to the working public, and many people take and hold onto jobs because of such benefits." Since it seems clear that the school board would be fully authorized to furnish its superintendent (as a part of his consideration under the employment contract) with a life insurance policy wholly paid for by the school board, I can see no reason why the board cannot limit the superintendent's compensation (and the school board's expense) in this regard to something less than full payment of all policy premiums. As pointed out in our discussion of the factual aspects of "Step One," the board's contribution toward premium payments in the present situation, coupled with its retention of a right to recover its contribution from the cash surrender value of or proceeds from the policy, results in the additional compensation being made available to the superintendent at the lowest possible expense to the school board (i.e., the mere "use" of its money). With respect to "Step One" of the transaction, I am consequently of the opinion that an employment contract between a county board of education and the county school superintendent may lawfully include a life insurance policy (or any lesser fiscal contribution towards the payment of premiums therefor) as a part of the latter's compensation. "Step Two" of the transaction, on the other hand, poses far more difficult problems. As indicated when we set forth our understanding of the facts respecting this second step of the transaction, it appears that in order to secure certain estate tax advantages, the superintendent, with the apparent knowledge and consent of all concerned, transferred ownership of the policy to his wife. It further appears that in order to protect the school board's right (under its employment agreement with the superintendent) to ultimate recovery of its entire contribution (and thereby avoid any expense to it beyond the "use" of its money), the superintendent's wife and the board entered into the collateral agreements we have described. As we pointed out, this overall collateral agreement is in part drawn up in the form of a "loan agreement." Moreover, the school board's continued contribution toward premium payments is referred to as "a loan." Particularly in view of the fact that the collateral agreements also require the superintendent's wife to execute each year a noninterest bearing note for the amount of that year's contribution, it would not be at all difficult, particularly if one were to look at "Step Two" wholly alone and without reference to "Step One," to view it (i.e., Step Two) simply as a loan by the school board to the superintendent's wife. On the other hand, is it proper to view "Step Two" alone and without reference to "Step One"? Are not the two steps really two approaches to what are essentially the same benefits and burdens under the employment contract? In both instances, the benefit or compensa- 109 73-65 tion provided the employee is economic protection for his wife through a policy of insurance on his life. In both instances, the employer's burden is identical, to-wit: the temporary use of its money to pay its share of the premium payments on such insurance under a "split dollar" arrangement. While one is understandably hesitant to speculate as to what a court might conclude in the rather confused fact situation presented, I might note that as a general rule the courts look to the substance of a transaction rather than its mere form or the language used by the parties to describe it. While the issue in this instance is hardly free of doubt, the school board's attorney states that it is the intent of the parties (and the intent of the parties would seemingly be a rather critical matter) that the school board's contribution toward the furnishing of the life insurance policy be made as additional compensation under the employment contract. He further states that the board would be willing to adopt a clarifying resolution if necessary. Although as already indicated, I cannot predict with certainty how a court would evaluate the second step of the transaction, it does seem to me that a court would be hesitant to hold that the collateral agreement between the board and the superintendent's wife converted the entire transaction (viewed as a whole) from "compensation" into a "loan"particularly when the ability of the parties to revise their agreements so as to more clearly show it to be compensation would render any such holding to be a rather meaningless academic exercise. Finally, while I recognize that federal rulings in the general area would not be binding upon state courts as to the precise issues you have presented, it is not without relevance that for federal income tax purposes the employer's contribution under a "split dollar" insurance arrangement is treated as income to rather than a loan to the employee. Revenue Ruling 64-328, C.B. 1964-2, 11-15, provides in part: "Even if the arrangement is cast under the collateral assignment system, it should not be treated in substance as involving a loan from employer to employee, since generally the employee is not expected to repay the funds provided by the employer except out of the proceeds of the policy or from funds available to the em_ ployee by reason of the surrender or loan value of the policy.', The same Revenue Ruling further states: "In the typical 'split dollar' arrangement, then, the purpose is, and the effect is, to provide an economic benefit to the employee represented by the amount of the annual premium cost that he should bear and of which he is relieved. It is well settled that the providing of life insurance results in an economic benefit to the insured . . . . An employee who receives an economic benefit 73-66 110 under an arrangement with his employer generally must include in his gross income the value of the benefit received." For all of the above reasons, it is my opinion that although judicial determination of the issue cannot be predicted with any degree of certainty, the probabilities are that the Georgia courts would hold that a county school board's contribution towards the payment of pemiums on its school superintendent's life insurance policy under a "split dollar" arrangement provided for in its employment contract with the superintendent is compensation under that contract and not a mere loan. OPINION 73-66 To: Commissioner, Department of Public Safety May 11, 1973 Re: Weapons; provisions as to carrying pistol in automobile compared to those regulating carrying on one's person. [The Criminal Code sections herein are based upon Ga. Laws 1968, p. 1249 et seq.] By letter of April 9, 1973, you request that an official opinion be issued in answer to two specific questions: 1. Is it a violation of the Criminal Code of Georgia 26-2903 (carrying a pistol or revolver without a license) to have a concealed pistol in a vehicle'? 2. Is it a violation of Criminal Code of Georgia 26-2901 for either the driver (operator) or passenger in a vehicle to have a pistol concealed upon his person'? In answer to your first question, it is a violation if the vehicle is not the person's own automobile and if he does not have a weapons license. On the other hand it is not a violation if the vehicle is his own automobile, whether he has a license or not. It does not matter in either case whether the pistol is concealed or not; the offense is failure to have a license. The following analysis may be helpful to you in applying Ga. Code Ann. 26-2903, which as a criminal law should be construed as the language is ordinarily used, and strictly in favor of the accused: 1. A person commits a misdemeanor in violation of 26-2903 if he carries an unlicensed pistol or revolver, either concealed or unconcealed, any place except his own home, automobile, or place of business. 111 73-66 2. This prohibition involves only pistols and revolvers, not other weapons. 3. The exception as to his vehicle refers only to "automobile" and not to motor vehicles in general. 4. The crime is failure to have a license, regardless of the manner of carrying the weapon. So, carrying an unlicensed pistol in one's own automobile constitutes no violation of 26-2903, whether the pistol is carried in a concealed manner or not, because no license is needed to carry a pistol in one's automobile. However, if, without a license, one carries a pistol in the automobile of another, 26-2903 is violated. Your second question focuses on the fact that the licensing aspect is not the whole picture. What has been said above only covers weapons offenses so far as licensing is concerned. As highlighted by your second question, concealment is another form of weapons offense. In answer to your second question, it would be a violation for either the driver (operator) or passenger in a vehicle to have a pistol concealed upon his person. The crime is concealment when the person "has or carries (weapon) about his person." The only place of exception is home. So if a person wants to carry a weapon on his person or so close as to have immediate access to it (as inside the interior of a car rather than in the trunk), it must not be concealed. Criminal Code of Georgia 26-2901 prohibits carrying any weapon in a concealed manner; it is the concealed nature of the carrying which constitutes the crime. This section is applicable even if one has a license to carry a pistol or revolver, as provided by Criminal Code 26-2904, since a license only permits the weapon to be borne in a manner consistent with 26-2901. While 26-2904 (license to carry pistol or revolver) does not specify that a pistol carried in a motor vehicle must be carried in an open manner, 26-2901limits the activity allowed by the licensing provision ( 26-2904) insofar as "concealment" is concerned. In further analyzing 26-2901, it is of great importance to note that it specifically prohibits knowingly carrying a concealed weapon "about one's person anywhere other than one's own home." Construing the word "about" to convey its normal meaning, it is my opinion that 26-2901 is violated if one has a pistol concealed in his automobile in a manner which allows immediate access to the weapon. Although no reported Georgia cases have construed the "about his person" language of the section, other state courts in construing substantially the same statutory phrasing have held that "about his person" means situated so as to be immediately accessible with little or slight movement. See, e.g., Welch v. State, 262 S.W. 485 (Tex. 1924); State v. Pettit, 252 73-67 112 N.E.2d 325 (Ohio 1969). Therefore, I am of the opinion that if a pistol is concealed in an automobile so as to be immediately accessible with only slight movement by the person, then, due to the prohibition against carrying the pistol "about" one's person, 26-2901 has been violated. Note that 26-2901 prohibits carrying any concealed weapon, including but not limited to a pistol or revolver, anywhere except in one's own home. Since there is no exception for carrying a concealed weapon in an automobile, it is a violation of this section if either the driver of the automobile or the passenger has a weapon concealed on or about his person. In summary, the answers to your inquiries are as follows: A. Criminal Code of Georgia 26-2903 is not violated when, without a license, one carries a pistol (or a revolver), concealed or otherwise, in his own automobile. If it is concealed, of course, it is a violation of 26-2901. B. Criminal Code of Georgia 26-2901 is violated when a pistol is concealed in an automobile so as to be fully accessible with little or no movement. This prohibition is applicable regardless of who owns the automobile and regardless of whether the person has a license to carry the pistol. This prohibition is directed at any weapon, as defined by the section, and is not limited to pistols and revolvers. OPINION 73-67 To: Deputy Director, State .Merit System of Personnel Administration .May 11, 1973 Re: Reorganization; effect upon relationship between Department of Human Resources and county boards of family and children services and county boards of health. This is in reply to your request for an opinio.11 with respect to the reorganization of the Department of Human Resources into a regionarea configuration. Your request is framed in reference to the General Assembly's inaction on House Bill 360, 1973 Session, which would have merged the county boards and departments of family and children services and county boards of health into the Department of Human Resources. Your specific questions are as follows: "What are the powers and responsibilities of the local boards of health and the county boards of family and children services under existing laws, and to what extent may these powers and responsi- 113 73-67 bilities legally be surrendered to the Georgia Department of Human Resources?" The answer to your first question is provided by reference to the statutory framework under which county departments exist. The relationship between the Department of Human Resources and the county boards and departments of family and children services is set forth in the Welfare Reorganization Act of 1937, Ga. Laws 1937, p. 355 et seq., as amended (see Ga. Code Ann. Title 99). That relationship has been previously discussed in prior opinions of this office, including an opinion to you dated April 23, 1973 (Op. Att'y Gen. 73-56). See also Op. Att'y Gen. 70-128. The relationship between county boards of health and the Department of Human Resources is also established by statute (Ga. Code Ann. Chs. 88-1, 88-2, based upon Ga. Laws 1964, p. 499 et seq.), although in the case of some counties the local boards of health are constitutionally created. See, e.g., Ga. Laws 1953, p. 256 (ratified November 2, 1954). That relationship is also fairly explicit and has been the subject of prior opinions of this office. See Op. Att'y Gen. 66-165. A review of the pertinent statutory provisions leads to the conclusion that the relationship between the Department of Human Resources and county boards of health is more rigidly defined than that existing between the department and county boards and departments of family and children services. For purposes of the questions presented, however, it would serve no useful purpose to discuss in detail those statutory prOVlSlOnS. This is true because the second question presented by your request needs no extended discussion. Patently, the Department of Human Resources could not by administrative order alter the division of powers between the department and those county level organizations to the extent that allocation of responsibilities is statutorily mandated. On the other hand, as long as the statutorily mandated division of powers is maintained, there is no statutory inhibition against the department's reorganization of its internal structure. We have examined the department's description of its reorganization. We have been unable to detect any facial conflict between the provisions thereof and the principles set forth above. Instead, the plan expressly attempts to accommodate "the statutory responsibilities and authority of county boards...." In the implementation of the plan, of course, questions may arise concerning particular responsibilities. It would be impossible and certainly premature to anticipate such questions. 73-68 114 OPINION 7368 To: Director, Fiscal Division, Department of Administrative Services May 11, 1973 Re: Workmen's compensation; members of agricultural commodity commissions and nonsalaried beauty queens not covered; otherwise as to salaried Peach Queen. I write in response to your letter of April 25, 1973, requesting my official opinion as to whether various persons associated with the agricultural commodity commissions are covered by the State Workmen's Compensation Act. Your initial inquiry concerns the coverage of appointed members of the various agricultural commodity commissions, who receive a $20 per day salary plus expenses while attending commission mettings. Your second question relates to the status of workmen's compensation coverage of the various agricultural commodity commission "beauty queens," all of whom serve without salary or payment of expenses, except the Peach Queen, who receives a $20 per day salary and expenses. Looking first to your second question, there is no question but that "beauty queens" who receive no salary or expenses during their term would not be covered by the Act. Persons in this category would be considered in the eyes of the law as no more than volunteers. This office has previously ruled that such persons, who receive neither salary nor other compensation, are not covered by the State Workmen's Compensation Act. Op. Att'y Gen. U71-137 (copy attached). As to the Peach Queen, whom I understand does receive a $20 per diem salary, I am of the opinion that she would be within the coverage of the Act, provided that its general criteria are met (e.g., the Peach Commission having the requisite number of employees). The various agricultural commodity commissions are, by statute, "instrumentalities of the state." Ga. Laws 1969, p. 763 (Ga. Code Ann. 5-2907 to 5-2909). The Workmen's Compensation Act, Ga. Code Ann. Title 114, defines employers to include "instrumentalities of the state." Accordingly, an agricultural commodity commission is an "employer" under the Workmen's Compensation Act. The Georgia Agricultural Commodities Promotion Act, Ga. Laws 1969, p. 763, further authorizes the commissions to have employees (see Ga. Code Ann. 5-2909), and the Peach Queen could quite conceivably, depending upon the factual circumstances, be considered an employee. In the event that an injury should occur to the Peach Queen out of and in the course of her employment with the Peach Commission, a determination would have to be made at that time as to whether the then applicable provisions of the Workmen's Compensation Act provided coverage. 115 73-68 Please consult this office in the event that any such possibly covered InJUry occurs. Determination of workmen's compensation coverage for appointed members of the various agricultural commodity commissions presents a more difficult matter. The fact that the appointed members of the commissions, pursuant to commission determinations, receive a per diem salary is not dispositive of the question of coverage under the Act. As previously stated, agricultural commodity commissions are instrumentalities of the State of Georgia, and are, accordingly, "employers" within that term's definition under the Act. Members of the commissions are by statutory definition "public officers." (Ga. Code Ann. 5-2908.) As I have previously pointed out (see Op. Att'y Gen. 71-29) there is a difference between the status of an employee and a public officer or official. This position is reinforced by the very language of the Georgia Agricultural Commodities Promotion Act. A portion of this Act speaks of "the members of any such commission including employees thereof" (Ga. Code Ann. 5-2921). The General Assembly, by referring to both (1) members of the commission and (2) employees of the commission would clearly seem to have indicated that members and employees are not one and the same. A commission member, who holds no position on a commission other than his general membership, is a public officer (for a situation wherein a commission member might become an employee of the commission, see Op. Att'y Gen. 71-29). In general, a commission can act only through its members. Since a commission, as we have already pointed out, is an "employer," it follows that its members, through whom the commission acts, must be employers as well. If a commission member is an "employee" under any circumstance, he would have to be an employee of the State of Georgia-not of the particular agricultural commodity commission. Assuming, arguendo, that a commission member is by virtue of such membership a state employee, who is he responsible to? I find no authority in the Georgia Agricultural Commodities Promotion Act, the very Act that creates the various commissions and establishes the requirements and duties of members of the commissions, for the stateor for any other entity-to control or to have the right to control the time, manner, or methods or means of performance of a commission member's duties. See American Automobile Insurance Co. v. Tanner, 97 Ga. App. 122 (1958). While the ex-officio members of the commissions can exercise their powers of appointment by not reappointing a commission member already appointed, I find no right of control or sanction over a commission member during his term of office. Accordingly, in the absence of any control, the fact that the commission members receive a salary which they themselves establish out of commission monies creates no employment relationship within the purview of 73-69 116 the Workmen's Compensation Act, either with the particular commission or the State of Georgia. In summary, it is my official opinion that nonpaid "beauty queens" of the various agricultural commodity commissions are not subject to the Workmen's Compensation Act under any circumstance. The Peach Queen, who receives a per diem salary, would be covered by the Workmen's Compensation Act, provided that the Act's various criteria are met. Lastly, appointed members of the various agricultural commodity commissions, who serve no function on the commissions other than as members, are not within the coverage of the Act. It would be quite possible for situations to arise in the future concerning workmen's compensation claims of persons associated with agricultural commodity commissions (whether employees or members) which might or might not be within the purview of what I have said today. Each case would have to stand or fall on its own particular facts, and I suggest that you contact this office for advice and guidance in each such instance. OPINION 73-69 To: Administrator, State Crime Commission May 14, 1973 Re: Assistant district attorneys may not engage in the private practice of law if state funds are used in paying their salary. By letter dated February 14, 1973, you ask two questions of this office. (1) Do Ga. Laws 1971, p. 451, and Ga. Laws 1971, p. 823, prohibit the private practice of law by assistant district attorneys whose salaries are entirely paid from nonstate funds obtained under the Omnibus Crime Control Act of 1968, if they are not appointed under Ga. Laws 1970, p. 716, Section 1? (See Editorial Note to Ga. Code Ann. 24-2901.) (2) If state "matching" funds constitute part of the salary of assistant district attorneys funded under the Omnibus Crime Control Act, does this have any effect on their being able to engage in the private practice of law? Since the questions are closely related, this opinion will first be addressed to the general principles involved and then provide specific answers. 117 73-70 Answers to the questions are controlled by Ga. Lawf'l 1970, p. 716, Section 1 (d), which provides as follows: "Nothing herein shall be construed to preclude any district attorney from employing as many assistant district attorneys as he is otherwise authorized to employ, but only the number of assistant district attorneys as provided for in subsection (a) shall be compensated from state funds, nor shall anything contained herein prohibit any district attorney who is not otherwise provided an assistant district attorney under this Act from appointing an assistant district attorney from time to time so long as such assistant district attorney is compensated only from funds of the district attorney, or of the counties comprising the judicial circuit." (Emphasis added.) This subsection expressly provides that only those assistants appointed under Section 1 (a) of the Act are to be compensated from state funds and it logically follows that no state funds may be used in salarying assistants who are otherwise appointed. Ga. Laws 1970, p. 716, Section 2, as amended by Ga. Laws 1971, p. 823, unequivocally prohibits assistant district attorneys appointed under Section 1 from engaging in the private practice of law. This caveat should be construed to apply only to those assistants holding office under subsection (a) since they are the only ones provided for-assistants under subsection (d) merely being permitted. In answer to the first question, an assistant district attorney who does not fill one of the slots provided by Ga. Laws 1970, p. 716, Section 1 (a) and whose salary is paid wholly from nonstate funds may engage in the private practice of law. This conclusion arises from the determination that the prohibition against the private practice of law applies only to those assistants "provided" for under subsection (a) and compensated by state funds. As to the second question, an assistant district attorney whose salary is partly composed of state funds may not engage in the private practice of law. The only assistants that may be compensated by state funds are those filling slots provided by Section 1 (a) and these assistants are expressly prohibited from engaging in private practice. OPINION 73-70 To: Chairman, Georgia Public Service Commission May 14, 1973 Re: Public Service Commission; extension of rate schedules. Under the provisions of Ga. Code Ann. 93-307.1, based upon Ga. 73-70 118 Laws 1972, p. 137, all utilities are required to give notice of changes in rates by filing with the commission on 30 days' notice new schedules stating plainly the changes to be made and the date such changes will go into effect. The commission is authorized to suspend the operation of such schedules and to defer the use of such changed rates for a maximum period of five months beyond the date such rates would otherwise go into effect. The commission desires an opinion on the effect on the suspension period of the filing of two schedules both affecting the same rates but filed at different times and being cumulative in effect. To explain the situation in detail: (1) Motor Carrier "A" filed a schedule (Supplement 19) increasing its rates and charges on single line traffic (shipments handled by it only) with an effective date of March 2, 1973. In consideration of many protests, the commission suspended the effectiveness of such proposed increased rates for the maximum period of five months or until August 2, 1973. (2) By another schedule (Supplement 28), subsequently filed and proposed to become effective on May 11, 1973, the same carrier "A" sought to further increase the same rates. This subsequent filing was intended to place the single line rates proposed by this carrier "A" on a parity with single-line rates proposed by all other motor carriers of the same category filed in a separate schedule (Supplement 27) to become effective on May 11, 1973. To compound the problem, motor carrier "A" joined with all the other carriers in the third schedule (Supplement 27) in proposing to increase their joint line rates (rates involving two or more carriers) effective May 11, 1973. (3) In consideration of protests, the commission similarly suspended for the maximum period both of these subsequently filed schedules (Supplements 27 and 28)-that suspension running to October 11, 1973. The commission desires an opinion on whether or not the subsequent filing by carrier "A" of Supplement 28 proposing effective May 11 a further increase in rates in addition to the increase originally sought to be made effective in Supplement 19 on March 2 would be considered (1) a withdrawal of carrier "A's" first proposal and substitution of its second or (2) an amendment by the second schedule (Supplement 28) of the first schedule (Supplement 19) so that the commission might consider the entire filing of carrier "A" as a combined filing with the power to suspend the resulting total proposal to five months beyond the effective date of the last filing or to October 11, 1973. 119 73-71 Under the authority of Ga. Code Ann. 93-307.1, the commission "may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect." A review of the filing material submitted by motor carrier "A" shows that it did not intend to withdraw or extend the original effective date of March 2, 1973 for its original schedule when it filed its subsequent schedules; on the contrary, it expressly insisted that its original effective date for Supplement 19 remain March 2, 1973. Unless the utility by its own action manifests an intent to withdraw or extend the effective date of the first schedule (Supplement 19), we can find no authority that merely filing an amendment to an existing suspended schedule operates to allow the commission to further suspend the original schedule beyond the statutory five months. The subsequent schedules of motor carrier "A" refer to the original schedule (Supplement 19) as a reference base to determine the further increased rates. If the commission had not suspended the subsequent schedules, it would have been confusing to determine rates because the first (suspended) schedule would have to be consulted. However, it would have been possible to do this by merely using the first (suspended) schedule as a reference and then determining the new rate, even if the first schedule was still suspended. In any event, the commission did also suspend the subsequent schedules; further, the possible difficulty of that situation does not convince us that the commission can suspend the effective date beyond the clear language of the statute. It is, therefore, our official opinion that unless a utility by its own action manifests an intent to withdraw or extend the effective date of a scheduled increase, the commission may not suspend the schedule beyond the statutory five months. OPINION 73-71 To: Commissioner, Department of Human Resources May 16, 1973 Re: Abortion; authority of Department of Human Resources as to reporting and records of abortions. The Ad Hoc Committee on Abortion Services has raised several questions concerning the reporting of legally induced abortions. Following the Supreme Court's decision in Doe v. Bolton, 410 U.S. (1973), the General Assembly enacted new legislation concerning legal abortions. The Department of Human Resources now has certain responsibilities for maintaining statistics on legal abortions and for licensing abortion facilities. 73-71 120 New Ga. Code Ann. 26-1202 (d), based upon Ga. Laws 1973, pp. 635, 636, states: "The performing physician shall file with the Commissioner of Human Resources, within 10 days after an abortion procedure is performed, a certificate of abortion containing such statistical date as is determined by the Department of Human Resources consistent with preserving the privacy of the woman." Ga. Code Ann. 88-1716 (a), based upon Ga. Laws 1964, pp. 499, 500, states: "A fetal death certificate for each fetal death which occurs in this state shall be filed with the local registrar of the registration district in which the delivery occurred within 72 hours after such delivery and shall be filed with such registrar if it has been completed in accordance with this section...." ":F'etal death" is defined in Ga. Code Ann. 88-1702, based upon Ga. Laws 1964, pp. 499, 581, to mean: " ... death prior to the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy. The death is indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life, such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles." This broad definition includes fetal death caused by legal abortions The Ad Hoc Committee on Abortion Services was concerned about the possible conflicts between new Ga. Code Ann. 26-1202 (d) which requires the filing of an abortion certificate and old Ga. Code Ann. 88-1716 (a) which requires filing with the local registrar of a fetal death certificate. The committee is correct in attempting to formulate a reporting system for legal abortions since new Ga. Code Ann. 26-1202 (d), set out above, clearly mandates the Department of Human Resources to do so. The nature of the information and the forms on which it is to be reported should be specified by the department. The department may promulgate the necessary regulations which will ensure the confidential nature of all certificates of legal abortion. The certificate of legal abortion, however, will not replace the fetal death certificate now required by Ga. Code Ann. 88-1716. The definition of fetal death includes both spontaneous and induced abortions, as well as miscarriages, and fetal death certificates are a part of local vital records rather than state records. The newly enacted Criminal Code provisions on abortion, Ga. Code Ann. 26-1201 et seq., do 121 73-71 not expressly repeal the Code sections relating to fetal death certificates. Since repeals by implication are not favored and the Code sections are not directly in conflict, they must be construed together. Sprayberry v. Wyatt, 203 Ga. 27 (1947). Construing Ga. Code Ann. 26-1202 (d) along with Ga. Code Ann. 88-1716 (a), the filing of a certificate of legal abortion and/or fetal death certificate will be required, depending upon the circumstances. "When a doctor has induced an abortion by any currently used abortion procedure, a fetal death occurs. Therefore, both certificates must be filed. If the fetal death is caused by a spontaneous abortion or miscarriage, it would only be necessary to file a fetal death certificate. Since the attending doctor is most familiar with the circumstances of an individual case, he must determine whether both certificates or only the fetal death certificate should be completed and filed. In order to facilitate the dual reporting system, the Department of Human Resources could prepare a single form with carbon copies to be used for both certificates. The Ad Hoc Committee on Abortion Services is expecially concerned with protecting the privacy of women who have secured legal abortions. Ga. Code Ann. 26-1202 (d) expressly requires the Department of Human Resources to ensure the patient's privacy. While not so explicit, the Vital Records Law (Ga. Code Ann. Ch. 88-17, based upon Ga. Laws 1964, p. 499 et seq., as amended) also protects the privacy of citizens about whom information must be reported. Ga. Code Ann. 88-1723 (a) provides: "To protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration by the department, it shall be unlawful for any person to permit inspection of, or disclose information contained in vital records, or to copy or issue a copy of all or part of any such record except as authorized by regulation or when so ordered by a superior court...." 1 In addition to this Code section, a resolution adopted by the Health Department, and now part of the regulations of the Department of Human Resources, provides: "That the files of the State Board of Health of Georgia are not open to public inspection, and the Director of the Department of Public Health and employees are instructed not to permit public inspection of any record which would violate the confidential 1 A proviso to Ga. Code Ann. 88-1723 permits inspection of records relating to marriage, annulment, and divorce which are filed with the courts. Ga. Code Ann. 88- 1724 permits disclosure of information on birth certificates to certain persons. No section permits disclosure of information on fetal death certificates nor permits copying. 73-72 122 relationship between physician and patient." Rules and Regulations of the State of Georgia, 270-1-2-.01. It therefore appears that the privacy of women securing legal abortions is not threatened by the current provisions relating to fetal death certificates. Both the fetal death certificate and the certificate of legal abortion which will now be required under Ga. Code Ann. 26-1202 (d) can be maintained as part of confidential reporting systems. 2 OPINION 73-72 To: Director of Corrections May 21, 1973 Re: Prisons and prisoners; Board of Corrections not permitted to authorize private firms to operate pre-release centers. This is in reply to your recent letter requesting my opinion on the authority of the Director of Corrections to assign prisoners to a prerelease center to be operated by a private firm on a contract basis. The law governing the State Board of Corrections does not speak directly to the question posed; however, it is my opinion based upon an analysis of the body of the law governing your board and your office as Director of Corrections that the question posed must be answered in the negative. In addition, and consistent therewith, it is my opinion that you may not, in your capacity as Director of Corrections, assign inmates to a facility operated by a private consulting firm under a contract with the State Board of Corrections. The Constitution of the State of Georgia gives the General Assembly the power to legislate within the area of your board's jurisdiction. Ga. Const., Art. V, Sec. V, Par. I (Ga. Code Ann. 2-3401). Pursuant to this constitutional authorization, the General Assembly has provided that every person sentenced to serve time in any penal institution of this state shall be committed to the Director of Corrections, who shall designate the place of confinement where the sentence shall be served. Ga. Laws 1956, p. 161, as amended by Ga. Laws 1968, p. 1399 (Ga. Code Ann. 77-309 (b)). The law also specifies the options which are available to the Director of Corrections in discharging his statutory duty to designate the place of confinement for service of this sentence. Ga. Laws 1956, p. 161, as amended by Ga. Laws 1972, p. 582 (Ga. Code Ann. 77-309 (b) ~ 1). The Director of Corrections is authorized to designate as the place of confinement "any available, suitable, and appropriate correctional 2 If, however, the Ad Hoc Committee finds that the provisions relating to fetal death certificates are not adequate to maintain the patient's privacy, it could recommend strengthening of the regulations of the department regarding administration of the Vital Records Law. 123 73-72 institution in this state, operated under the jurisdiction or supervision of the Board of Corrections." Ga. Laws 1956, pp. 161, 171 (Ga. Code Ann. 77-309 (b) ~ 1). The term "operated under the jurisdiction or supervision of the Board of Corrections" is one having definite statutory meaning. Ga. Laws 1956, p. 161 (Ga. Code Ann. 77-307 (c)). As defined within the law, the board operates under its authority state institutions and counties operate under the board's supervision county correctional institutions. Id. See also Ga. Laws 1956, pp. 161, 174 (Ga. Code Ann. 77-312 (b)). It is my view that the ordinary significance of the phrase "state institution" is a public, state-operated institution. Ga. Code Ann. 102-102 ~ 1. This view is reinforced by judicial decisions construing analogous provisions in other jurisdictions. Snyder v. Burns, Governor, 214 So.2d 636, 637 (Fla. 1968); State v. Gooch, 420 s.W.2d 283, 286 (Mo. 1967). Under the provisions of the basic correctional statutes, you are authorized to appoint and employ wardens, guards and other employees necessary to the operation "of the state-operated institutions." Ga. Laws 1956, p. 161 (Ga. Code Ann. 77-306). The wardens of the various county correctional institutions operated within the state penal system are to be appointed by the governing authorities of the various counties involved, subject to the approval of the State Board of Corrections. Ga. Laws 1956, p. 161 (Ga. Code Ann. 77-314). The board is authorized to confer the powers of a police officer of the State of Georgia upon any wardens, deputy wardens, or guards of any prison or county correctional institution. Ga. Laws 1956, p. 161, as amended by Ga. Laws 1972, p. 599 (Ga. Code Ann. 77-315). Thus, the present correctional law provides for two types of wardens: those at "state-operated institutions" and those "appointed by the governing authority of the county. . . ." The board is authorized to confer substantial powers of a public nature upon the wardens and certain subordinates. Additionally, the wardens are sworn officers who take an oath of a public nature. Ga. Laws 1968, pp. 1155, 1156 (Ga. Code Ann. 77-314.1). Wardens are required to be under bond to faithfully account for all public funds and property and to truly and faithfully discharge all duties imposed upon them by law and by the rules and regulations of the board. Ga. Laws 1956, pp. 161, 176, as amended by Ga. Laws 1957, pp. 477, 481 (Ga. Code Ann. 77-316). Finally, wardens are required to establish at their respective institutions guardlines, the violation of which constitutes a crime. Ga. Laws 1961, p. 45, as amended by Ga. Laws 1971, p. 220 (Ga. Code Ann. 77-325, 77-326, 77-9913). The thrust of the law describing and detailing the office and duties of the wardens of the various institutions is to the effect that the wardens are public officers. This view is reinforced by a provision of the 1933 Code, which is still in effect, prohibiting the warden from 73-73 124 recmvmg any pay or other thing of value from a person having a direct or indirect interest in the "labor" of a prison inmate. Ga. Code 77-9906. Therefore, it is my opinion that a person cannot be a warden within the state penal system unless he is an employee either of the State of Georgia or a county authorized to maintain a county correctional institution under the supervision of your board. In summary, the penal institutions contemplated by the state correctional law fall into two basic, present-day categories. First, there are state-operated institutions. Secondly, there are institutions operated under the supervision of your board by various counties throughout the state. In either case, the institution contemplated is a public institution and not a private institution. Therefore, it is my opinion that the State Board of Corrections does not have the authority to enter into a contract with a private consulting firm for the operation of a pre-release center. Additionally, even if such power existed, it is my opinion that you do not have the authority as Director of Corrections to assign inmates committed to the custody of your board to such a private institution. OPINION 73-73 To: Safety Fire Commissioner May 21, 1973 Re: Mobile homes; license fees upon out-of-state manufacturers. The 1973 Session of the Georgia General Assembly adopted the Uniform Standards Code for Mobile Homes Act. Ga. Laws 1973, p. 4. This Act specifically repealed the Uniform Standards Code for Factory Manufactured Movable Homes Act. Ga. Laws 1968, p. 415. (See Ga. Code Ann. Ch. 84-48.) Under the 1968 Act, the Safety Fire Commissioner had entered into a reciprocal agreement with the State of Florida whereby certain fees charged manufacturers to defray the cost of inspecting mobile homes were waived when the State of Florida inspected the mobile homes. You have asked whether or not the commissioner can continue such a reciprocity agreement under the 1973 Act. The 1973 Act provides as follows: :'Section 5. Licenses. (a) Every out-of-state manufacturer of mobile homes who sells or offers for sale a mobile home in Georgia shall make application and obtain a license. * * * "(e) The license and renewal license fee shall be two hundred dollars ($200.00) per manufacturing plant which manufactures 125 73-74 mobile homes within the State of Georgia and two hundred dollars ($200.00) per out-of-state manufacturing plant which manufactures mobile homes for the purpose of offering for sale or having such homes sold within the State of Georgia ... * * * "(f) Every out-of-state manufacturer of mobile homes who sells or offers for sale mobile homes in Georgia shall pay to the commissioner a fee of eight dollars ($8.00) for each mobile home sold or offered for sale within the State of Georgia." Ga. Laws 1973, pp. 4, 6, 7. The language of the statute is unmistakably clear that the out-ofstate manufacturers are required to obtain a license, the fee for which is $200, and pay an additional fee of $8 for each mobile home sold or offered for sale in this state. where a statute is clear and unambiguous, it will be held to mean what has been clearly expressed, and no construction as to the intent of the legislature is required. See Barnes v. Carter, 120 Ga. 895 (1904). There is a reciprocity section in the 1973 Act providing that the commissioner can provide certain exceptions to mobile homes produced in other states. However, such exemptions apply when the commissioner determines that the applicable rules and codes in other states provide safeguards equally as effective as those in Georgia. Ga. Laws 1973, pp. 4, 8. There is nothing in this section that authorizes the commissioner to waive the license fees and sales fees imposed on out-of-state mobile home manufacturers. It is a well known maxim that an administrative agency cannot promulgate rules and regulations contrary to a law passed by the General Assembly. Georgia Railroad et al. v. Smith et al., 70 Ga. 694 (1883). Thus, it is my opinion that the Georgia Safety Fire Commissioner cannot enter into a reciprocal agreement with another state waiving the fees imposed by the Uniform Standards Code for Mobile Homes Act. OPINION 73-74 To: Insurance Commissioner May 25, 1973 Re: Hospital service nonprofit corporations; fees and taxes. Hospital service nonprofit corporations are exempt from the provisions of the Georgia Insurance Code except as provided in Ga. Code Ann. Ch. 56-17, based upon Ga. Laws 1960, pp. 289, 571 to 576. Ga. Code Ann. 56-108 (1), based upon Ga. Laws 1960, pp. 289, 294. The 73-75 126 1972 Session of the General Assembly (Ga. Laws 1972, p. 682) amended Ga. Code Ann. 56-1703 by deleting the exemption of these corporations from the fees and taxes imposed by Ga. Code Ann. Ch. 56-13, based upon Ga. Laws 1960, pp. 289, 503 et seq., as amended. You have asked whether this Act has the effect of subjecting hospital service nonprofit corporations to those fees and taxes imposed by Ga. Code Ann. Ch. 56-13 even though Ga. Code Ann. 56-108 (1) remains in effect. From your inquiry it is obvious that the effect of this statute is doubtful. It, therefore, becomes necessary to determine the legislative intent in enacting the statute in order to know the proper interpretation to be given. Moore v. Baldwin County, 209 Ga. 541 (1953). When it becomes necessary to interpret a doubtful statute, the caption can be used to determine legislative intent. Thompson v. Eastern Air Lines, Inc., 200 Ga. 216 (1946). The caption of the 1972 Act reads in pertinent part as follows: "An Act to amend Code 56-1703, ... so as to provide that the fee and tax provisions of Code Chapter 56-13 shall be applicable to hospital service nonprofit corporations organized and operating under Chapter 56-17; ..." This caption leaves little doubt that the General Assembly intended for this Act to render hospital service nonprofit corporations subject to the fees and taxes imposed under Ga. Code Ann. Ch. 56-13. To determine otherwise would render the 1972 Act in question ineffective, and the General Assembly would have accomplished nothing by its passage. Since it is presumed that the legislature meant something by the passage of an Act (see Central of Georgia Railway Co. v. State of Georgia, 104 Ga. 831 (1898)), construction which will give effect to a statute is to be preferred to construction that will destroy it. W ellmaker v. Terrell, 3 Ga. App. 791 (1907). Therefore, it is my opinion that hospital service nonprofit corporations are subject to the fees and taxes imposed by Ga. Code Ann. Ch. 56-13 pursuant to the provisions of Ga. Laws 1972, p. 682. OPINION 73-75 To: Director, Fiscal Division, Department of Administrative Services May 25, 1973 Re: Superior court judges emeritus; effect of salary increase for superior court judges; widows' benefits not affected. This responds to your request for my opinion as to whether the 127 73-75 salaries of the judges of the superior courts emeritus should be increased when the state salary of superior court judges is increased pursuant to Act No. 354 (Ga. Laws 1973, p. 701), approved April 13, 1973. The answer to your question may be found in Ga. Laws 1945, p. 362 et seq., as amended (Ga. Code 24-2610a). This statute reads in relevant part: "(a) All judges of the superior court shall be permitted to pay into said fund the amount of five per cent of the salary paid to said judges by the State of Georgia and any of said judges who make payment into thus fund shall be eligible to retire from office as judge emeritus at a salary of two-thirds of the salary now or hereafter paid to judges of the superior court by the State of Georgia...." (Emphasis added.) Additionally, Ga. Code 24-2611a (a) and (b), which define the retirement eligibility of superior court judges emeritus, both pivot on a determination of the state salary now or hereafter paid to superior court judges. When statutory language is clear, unambiguous and positive, it needs no construction. As adroitly stated by Justice Nisbet inNeal v. Moultrie et al., 12 Ga. 104, at p. 110 (1852): "If the legislature does plainly and distinctly declare its intention, the act is not open to construction; it needs and can receive none. It stands self-interpreted, and courts have nothing to do but enforce it. The exclusion of interpretation, where none is needed, may be stated to be, notwithstanding the absurdity it involves, the first rule of construction." [See also, Standard Oil Co. v. State Revenue Commission, 179 Ga. 371 (1934).] The judge of the superior courts emeritus is an office. Ga. Code Ann. 24-2601a. An occupant of that office is appointed by the Governor for life and may be called upon to serve as judge of a superior court when the "regular" judge for some reason is unable to serve, or in other instances. Ga. Code Ann. 24-2605a. Additionally, emeritus judges have other duties: "It shall also be the duty of the judges of the superior courts emeritus to consult with the Justices of the Supreme Court and the Judges of the Court of Appeals, and to advise and assist each of said Courts in the revision of the rules of practice of the said Courts and in handling the administrative duties now or hereafter placed upon said Courts or the members thereof by law. It shall also be the duty of the judges of the superior courts emeritus to consult with the Attorney General and the assistants to the Attorney General upon legal matters, when their advice and consultation are requested." Ga. Code Ann. 24-2607a. 73-76 128 Based on the foregoing, I am persuaded to the view that judges of the superior courts emeritus are entitled to an increase in salary of two-thirds of the increase given the superior court judges by Act No. 354. They will continue to perform the same duties and the "now or hereafter" language of Ga. Code Ann. 24-2610a clearly appertains. You also ask whether this salary increase should be allowed widows of superior court judges emeritus who are receiving benefits pursuant to Ga. Code Ann. 24-2610a.1 (c), based upon Ga. Laws 1968, pp. 275, 276; 1970, pp. 249, 250. A reading of this statute makes the answer apparent: "Upon the death of any superior court judge having made the election provided for in subsection (a) above [allowing for the designation of widow's benefits] who was at the time of his death (1) serving as a judge emeritus, or (2) eligible for appointment to judge emeritus, the widow of such judge shall receive for the remainder of her life a monthly benefit equal to the emeritus salary which the judge was drawing or which he was entitled to draw at the time of his death. ..." (Emphasis added.) It is clear that the judge of the superior courts emeritus is an office. The salary and benefits paid go to the holder of the office. A widow is entitled to and can receive no greater benefits than that owed the officeholder. Accordingly, a widow currently receiving widow's benefits ]s entitled to a benefit equal to two-thirds of the salary of the emeritus judge at the time of his death. The language of the law is clear and unequivocal and would allow, in these instances, no increase when the superior court judges' salaries increase under Act No. 354. In summary, it is my opinion that judges of the superior courts emeritus are entitled to two-thirds of the salary increase of superior court judges provided by Act No. 354; but, no increase in benefits would be due widows of superior court judges emeritus. OPINION 73-76 To: Deputy Director, State Merit System of Personnel Administration May 25, 1973 Re: Merit System, State; transfer of funds. This is in response to your letter of May 8, 1973, requesting my opinion as to the legal effect of Section 24 of Act 703 of Ga. Laws 1973 (hereinafter referred to as Section 24). This Section states that: "The Merit System of Personnel Administration shall be authorized to increase its pro rata assessment to a rate sufficient to 129 73-76 generate up to $124,000 for the renovations contemplated in the F. Y. 1973 amended budget report." Specifically, the merit system desires to transfer funds from the personal services object of its budget, Ga. Laws 1972, pp. 298, 331, and add them to the authorized expenditure of $124,000 for the purpose of renovation. You ask whether the Fiscal Affairs Subcommittees, sitting jointly, have jurisdiction to authorize such a transfer and whether Section 24 is a limitation on the authority of the joint committee. The merit system's budget, as approved by the Governor, was included in the Governor's Budget Report submitted to the General Assembly in 1972. The General Assembly included that budget in a supplemental Appropriations Act, Ga. Laws 1972, pp. 298, 331, which specifically authorized the merit system to derive the amount of funds necessary to meet that budget by a pro rata assessment against covered agencies. See Ga. Laws 1971, pp. 45, 49 (Ga. Code Ann. 40-2203 (d)). The authorized expenditure by the merit system was allocated between personal services and operating expenses budget objects. The effect of the General Assembly's action was, as in the case of all other appropriations, to impose a maximum limit on expenditures for each of the merit system's budget objects. The effect of Section 24 is no different. It authorizes a maximum expenditure of $124,000 for the contemplated renovations, which is included with the "operating expenses" object, and permits the merit system to increase its assessment of covered agencies to generate that amount. See Ga. Code Ann. 40-2203 (d). Under Ga. Laws 1967, pp. 722, 724 (Ga. Code Ann. 47-516), budget object transfers may be made upon the recommendation of the Governor and with the approval of at least 11 members of the Fiscal Affairs Subcommittees sitting jointly, provided that no funds whatsoever shall be transferred for use in initiating or commencing any new program or activity not currently having an appropriation or which would require operating funds or capital outlay funds beyond the biennium in which such transfer is made. Section 24 is not a limitation on that general statutory authority. Therefore, it is my official opinion that so long as Ga. Laws 1967, pp. 722, 724, is complied with, the surplus funds in the merit system's personal services budget object may be transferred to its operating expenses budget object and applied towards the cost of renovations contemplated in the Fiscal Year 1973 amended budget report. 73-77 130 OPINION 73-77 To: Commissioner of Offender Rehabilitation June 1, 1973 Re: Prisons and prisoners; release of medical records of former inmates. This is in answer to your request for my official opinion on whether prison medical records of a former inmate may be released to persons other than physicians or agents of some hospital. Your request was prompted by a letter from a Virginia attorney purporting to represent a certain former inmate and asking for copies of medical records pertaining to that former inmate which were compiled at the Wayne Correctional Institution from April 1972 until October 1972. From the circumstances surrounding your request, it is my understanding that no issue has been raised concerning psychiatric or other records made as a part of the diagnostic process which every inmate must initially undergo, or as part of subsequent psychiatric evaluations which may be ordered in particular cases. This opinion will therefore address only those records which concern diagnosis and treatment of physical ailments undertaken at the behest of an inmate. After examining the law on the subject, I have been unable to discover any policy that would absolutely restrict access to medical records to the personnel of the agency with custody over them. Nor would there be any reason for such a policy: the state would certainly have no interest in preventing a person from obtaining information compiled with his consent and possessed of significant bearing on the state of his present or future health. Far from establishing a rule of secrecy, some courts have even held that a person has a "property right" in certain medical records which pertain to him. Pyramid Life Ins. Co. v. Masonic Hospital Ass'n of Payne County, 191 F. Supp. 51, 54 (W.D. Okla. 1961); Wallace v. University Hospitals of Cleveland, Ohio, 164 N.E.2d 917 (Ohio 1959). On the other hand, the state does have a policy of safeguarding persons from invasions of privacy which could occur should their confidential medical files come into possession of those who might cause them harm. See Ga. Laws 1967, p. 455, as amended by Ga. Laws 1970, p. 163 (Ga. Code Ann. 40-2703), Ga. Laws 1969, pp. 505, 512 (Ga. Code Ann. 88-502.10). In furtherance of that policy, no information contained in such files should be released to a requesting party, unless some prior assurance is given that the requesting party is either the subject of the file in question or that he has in fact been authorized by that person to receive the information which he seeks. 131 73-78 It is therefore my opinion that the Department of Offender Rehabilitation may supply copies of a former inmate's prison medical records to a person other than the inmate who is neither a doctor nor the agent of a hospital. As a condition precedent to delivery of such records, however, the department should demand proof of the requesting party's authority. (Although your letter requesting my opinion on this subject referred only to "persons other than hospitals or physicians," it would be sound practice to follow this procedure with regard to those parties as well.) The department might also condition delivery upon tender of payment sufficient to cover the department's expenses in copying the material requested. See Ga. Laws 1959, pp. 88, 89 (Ga. Code Ann. 40-2702). OPINION 73-78 To: Insurance Commissioner June 1, 1973 Re: Insurance; questions as to whether liability insurance may be secured to cover punitive damages. An insurance company licensed to do business within the State of Georgia has asked you for a ruling concerning whether or not it can offer insurance coverage for punitive damages. You have in turn forwarded the correspondence from this company with a request as to whether or not such coverage would be contrary to public policy. Neither your letter nor the correspondence from the company provides any detail concerning the type of activity to which such punitive damage coverage might be applied. Therefore, it is impossible to provide any decisive solution to your inquiry, but a general discussion of the problem will be provided herein. Initially, it should be recognized that the determination of whether or not insurance coverage is against public policy rests in the sound discretion of the commissioner. Ga. Code Ann. 56-408 (based upon Ga. Laws 1960, pp. 289, 329) has the following provision pertaining to casualty insurance: " 'Casualty insurance' includes vehicle insurance as defined in section 56-407 and accident and sickness insurance as defined in section 56-404, and in addition includes: * * * "(11) Miscellaneous insurance, which is insurance against any other kind of loss, damage or liability properly a subject of insurance and not within any other kind of insurance as defined in this Title, if such insurance is not disapproved by the Commissioner as being contrary to law or public policy." 73-78 132 This specific problem has not been considered by the appellate courts of Georgia. However, other jurisdictions have been faced with the issue of whether or not liability for punitive damages can be transferred to an insurer, and the general concensus among these decisions is that it cannot. Those jurisdictions that have considered this particular issue generally base their decisions on the understanding that punitive damages are in no sense intended as compensation for the injured plaintiff but are a 11penalty imposed to punish the defendant and to deter him and others from similar outrageous conduct." Esmond v. Liscio, 209 Pa. Super. 200, 224 A.2d 793, 799 (1967). Upon determining that punitive damages are designed as a penalty assessed against the tortfeasor, the courts generally reach the conclusion that shifting 11responsibility for punitive damages to an insurance company contravenes the public policy of the state." Nicholson v. American Fire & Casualty Ins. Co., 177 So. 2d 52, 54 (Fla. App. 1965). One jurisdiction has determined that to allow a motorist to insure himself against judgments imposed for punitive damages would be contrary to public policy. Crull v. Gleb, 382 S.W.2d 17, 23 (Mo. App. 1964). The United States Fifth Circuit Court of Appeals has provided an excellent discussion of this issue in Northwestern National Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir. 1962). This case required an application of the law of Virginia and Florida to a diversity action arising under an automobile liability policy. The court there determined that allowing an insured to shift liability for punitive damages to an insurance company was contrary to public policy. The court maintained that such public policy against coverage was "to make effective the discouragement of wrong-doing by the imposition of punishment." Id. at 440. The following discussion of the court should prove beneficial in the ultimate solution of the issue before us: "Where a person is able to insure himself against punishment he gains a freedom of misconduct inconsistent with the establishment of sanctions against such misconduct. It is not disputed that insurance against criminal fines or penalties would be void as violative of public policy. The same public policy should invalidate any contract of insurance against the civil punishment that punitive damages represent. "The policy considerations in a state where, as in Florida and Virginia, punitive damages are awarded for punishment and deterrence would seem to require that the damages rest ultimately as well as nominally on the party actually responsible for the wrong. If that person were permitted to shift the burden to an insurance company, punitive damages would serve no useful purpose. Such damages do not compensate the plaintiff for his 133 73-78 injury, since compensatory damages already have made the plaintiff whole. And there is no point in punishing the insurance company; it has done no wrong." Id. at 440. This decision has been cited favorably on numerous occasions. See, e.g., American Surety Co. of New York v. Gold, 375 F.2d 523,20 A.L.R. 3d 335 (1966). Although the Georgia courts do not consider punitive damages as punishment, such damages are assessed "to deter the wrong-doer from repeating the trespass." Chattanooga, Rome and Columbus R.R. Co. v. Liddell et al., 85 Ga. 482, 496, 11 S.E. 853 (1890). The statute under which such damages are awarded reads in pertinent part as follows: "In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrong-doer from repeating the trespass or as compensation for the wounded feelings of the plaintiff." Ga. Code 105-2002. Although additional damages may be awarded to compensate the injured party, a review of the relevant cases reveals that punitive damages are awarded specifically to deter the wrong-doer. See, e.g., Johnson v. Morris, 158 Ga. 403, 123 S.E. 707 (1924); Metro ChryslerPlymouth, Inc. v. Pearce, 121 Ga. App. 835, 844, 175 S.E.2d 910 (1970). Thus, in Georgia, like in many of the jurisdictions discussed above, punitive damages are considered to be a deterrent to repeated acts of wrong-doing by the tortfeasor or others. Whether or not the Georgia judiciary will pursue a line of reasoning such as that pursued by other jurisdictions set forth above is uncertain. However, the courts have maintained that laws made for the public order or good cannot be abrogated by agreement. King v. Smith, 47 Ga. App. 360, 364, 170 S.E. 546 (1933). Considering punitive damages as a deterrent to wrong-doers, it would appear that they are assessed for the public good. Thus, I would conclude that liability for punitive damages cannot be shifted by an insurance contract. There have been situations in which punitive damages were recovered from the wrong-doer's insurance company. However, most of these situations were limited to cases in which the plaintiff obtained recovery from the insurance company on a lump sum judgment, e.g., American Fidelity and Casualty Co. v. Werfel, 231 Ala. 285, 164 So. 383 (1935); Morrell v. Lalonde, 45 R.I. 112, 120 A. 435 (1923); when the punitive damages were designed to provide compensation for the injured party, Adams v. Strain, 80 N.H. 90, 113 A. 209 (1921); or when the punitive damages were assessed against an employer for the wrongful act of his employee. Ohio Casualty Co. v. Welfare Finance 73-78 134 Co., 75 F.2d 58 (8th Cir. 1934). This latter case turned as much on the limitations of the doctrine of respondent superior as on public policy considerations. In this regard the court maintained: "Where there was no direct or indirect volition upon the part of the master in the commission of the act, no public policy is violated by protecting him from the unauthorized and unnatural act of his servant." Id. at 60. It is not uncommon for courts to hold that public policy is not violated where punitive damages are assessed against an insurance company when the insured did not participate in the act. Sterling Ins. Co. v. Hughes, 187 So. 2d 898 (Fla. 1966); LaRocco et al. v. New Jersey Manufacturers Indemnity Ins. Co., 82 N.J. Super. 323, 197 A.2d 591 (1964). One court has assessed punitive damages against an insurance company on the theory that to do otherwise would have the effect of voiding the insurance contract. Lazenby v. Universal Underwriters Ins. Co., 214 Tenn. 639, 383 S.W.2d 1 (1964). However, this is the only case that my research has revealed to allow such a recovery without some extenuating circumstances as delineated above. There is a Georgia case involving a consideration of whether or not it is against public policy to allow recovery from an insurance company for liability arising out of wilful and wanton conduct. Travelers Indemnity Co. v. Hood et al., 110 Ga. App. 855, 140 S.E.2d 68 (1964). However, in this case the court was more concerned with the distinction between "intentional act" and "intentional injury," and the issue of punitive damages was not even involved. The court determined that it is against public policy to insure against intentional injuries, but the same public policy consideration does not apply to intentional acts, which result in unintentional injuries. The holding of the case is quite narrow and has no effect on the issue presently under consideration. As previously stated, it is not at all certain how the judiciary of Georgia will resolve this issue of whether or not it is contrary to public policy to allow an individual to insure himself against liability for punitive damages. However, the overwhelming majority of the jurisdictions in which this question has been considered have determined that insurance covering punitive damages is contrary to public policy. 135 73-79 OPINION 73-79 To: State Superintendent of Schools June 1, 1973 Re: Public schools; selection of textbooks. [Senate Bill 254 will be found at Ga. Laws 1973, p. 191. House Bill 361 will be found at Ga. Laws 1973, p. 540.] This is in reply to your letter of April 12, 1973, in which you pose 10 or more questions concerning the selection of textbooks to be used in public schools. All of your questions reflect concern over the possible effect of two recent enactments of the General Assembly upon the rights, powers, prerogatives, responsibilities or duties of the State Board of Education in the area. In the hope that it may promote clarity of answer, I shall separately repeat and reply to each of the 10 numbered questions (some of which are really multiple questions) you have asked. 1. Whose duty is it to approve textbooks for use in the public schools when all or a portion of the funds used to purchase such textbooks comes from the State of Georgia? What effect, if any, did Senate Bill 254 have on this duty? The answer to your first two questions is that at least since the enactment of Senate Bill254 into law, there does not appear to be any legal duty imposed upon anyone to "approve" textbooks for use in the public schools under the conditions mentioned. While the State Board of Education may have been under a duty, prior to enactment of Senate Bill254, to "approve and recommend" textbooks to be used in connection with a course in civics which it is called upon to prescribe under Ga. Laws 1953, Jan.-Feb. Sess., p. 587 (Ga. Code Ann. 32-724), Senate Bill 254, in modifying this provision, deleted the quoted clause pertaining to approval and recommendation of textbooks. This absence of a "duty" is not, however, to be taken as negating in any way the continued presence of a "discretionary authority" in the State Board of Education (if it so chooses) to: "Prescribe multiple lists of approved textbooks and minimum requirements and standards for the purchase, distribution and use of such textbooks and for the use and expenditure of funds allotted therefor under this section." See House Bill 361, Sec. 1. Actually, it might appropriately be noted that this language of House Bill 361 really continues the State Board's discretionary authority in the matter under the portion of the original Minimum Foundation Program of Education Act which it supplants (i.e., Ga. Laws 1964, pp. 3, 14; Ga. Code Ann. 32-614) in virtually ipsissimus verbis. 73-79 136 Needless to say, Senate Bill 254 does not even suggest that its reach extends to this long-standing discretionary power of the board which existed under the original MFPE Act (Ga. Code Ann. 32-614) and is now continued by House Bill 361. It is consequently my opinion that although the State Board of Education is under no duty to do so, it may, if it so chooses, continue to prescribe multiple lists of approved textbooks with respect to textbooks purchased by local school systems with funds received from the state under the MFPE Act, and that Senate Bill 254 has no effect at all upon this discretionary power of the State Board of Education. 2. Including those textbooks to be used to implement Ga. Code Ann. 32-706 and 32-724, are there any textbooks that local school systems may purchase with state funds that do not first require State Board of Education approval? Assuming that the State Board of Education has in fact prescribed multiple lists of approved textbooks, it is further empowered, if it chooses to do so, to restrict the use of funds allocated under the MFPE Act to the purchase of those textbooks appearing on the prescribed multiple lists. This would appear to be clear under the previously quoted provision of House Bill 361 which, as already pointed out, continued without change this particular portion of the original MFPE Act. In the absence of such affirmative action by the State Board of Education, on the other hand, the local county and city school systems would presumably be free to purchase the textbooks they think best suited to their needs whether or nor the funds used for the purchase are MFPE funds. 3. What exactly is the duty of the State Board under Code 32-706? Except for those very few schools which are directly operated by the State Board of Education, I am unaware of any specific duty which Ga. Code Ann. 32-706 (Ga. Laws 1923, p. 130, as amended) places upon the State Board of Education. This provision would really seem to be directed more towards the various local county and city school boards, imposing upon them a somewhat nebulous duty to do something in the way of a course offering in the history of our Nation and the State of Georgia. A similar nebulous duty is presumably placed upon the State Board of Education (assuming the statute is not "void for vagueness") with respect to those few schools (e.g., area vocational schools, etc.) which it directly operates itself. 4. What exactly is the duty of the State Board under Code 32-724 as amended by Senate Bill 254? As amended by Senate Bill254, Ga. Code Ann. 32-724 requires the State Board of Education to "prescribe a course of study in the back- 137 73-79 ground, history and development of the Federal and State Governments," and declares that "[t] he course so prescribed shall be taught in 11-ll high schools which receive in any manner funds from the state." I am uncertain as to how I can state the legal duty of the State Board more exactly than the statutory imperative. How the board goes about prescribing the course and precisely what it prescribes in detail would appear to me to be administrative matters. 5. What exactly is the duty of the committee established by the State Board pursuant to Code 32-709? Does this committee have any authority other than that of an advisor to the board? The committees or committee appointed by the State Board of Education under Ga. Code Ann. 32-709 (Ga. Laws 1937, pp. 896, 897) has the duty of examining textbooks and making recommendations to the State Board of Education. It has no authority other than that of an advisor to the board. 6. What laws or parts of laws were repealed by Senate Bill 254? Senate Bill 254 expressly repeals Sections 1 and 2 of Ga. Laws 1953, Jan.-Feb. Sess., p. 587 (Ga. Code Ann. 32-724). I am, of course, unaware of what, if any, portions of other laws might conceivably be held by a court to be repealed by implication. 7. What conflict is there among sections like 32-706 to 32-711 and 32-717 to 32-721 and House Bill 361 in the area of textbook selection? If there are any conflicts, which law prevails? [Ga. Code Ann. 32-706 is based upon Ga. Laws 1923, p. 130, as amended; Ga. Code Ann. 32-707 to 32-711 and 32-717 to 32-721 are based upon Ga. Laws 1937, p. 896.] To fully analyze and evaluate possible conflicts between the 12 Code provisions you refer to would require an inordinate and I think unnecessary expenditure of time. Suffice it to point out that various portions of Chapter 32-7 of the Annotated Code may well have been repealed by implication, and certainly much of it is obsolete, due to the fact that its provisions date back to the pre-Minimum Foundation Act period when textbooks were apparently purchased directly by the state rather than by local county and city boards of education. Compare Ops. Att'y Gen. 1945-47, p. 202, with Op. Att'y Gen. 68-298 (unofficial), and Ops. Att'y Gen. 1963-65, pp. 787-789. Suffice it to say that the language of the Minimum Foundation Program of Education Act, both before and after its amendment by House Bill361, must take precedence over any portions of Chapter 32-7 found to be inconsistent with or in conflict with these newer enactments. 8. What does House Bill 361 do to the textbook committee established by the board pursuant to Code 32-709? Nothing. 73-80 138 9. What laws or parts of laws were repealed by House Bill 361? House Bill 361 expressly repeals Sections 14, 15 and 16 of the Minimum Foundation Program of Education Act (Ga. Laws 1964, pp. 3, 14; Ga. Code Ann. 32-614, 32-615, 32-616). I am, of course, unaware of what, if any, portions of other laws might conceivably be held by a court to be repealed by implication. 10. Under House Bill 361, does the State Board of Education have any authority to control the purchase of textbooks, library books and other items described in Section 1 of said Act when such purchases are made only with local funds? No. See, inter alia, Ga. Const., Art. VIII, Sec. V, Par. I (Ga. Code Ann. 2-6801) and Ga. Laws 1919, pp. 288, 323, as amended (Ga. Code Ann. 32-909) [respecting the power of county boards of education to "make all arrangements necessary to the efficient operation of the schools"]. OPINION 73-80 To: Deputy Director, State Merit System of Personnel Administration June 1, 1973 Re: Officers and employees, public; authority of State Personnel Board as to compensation. This is in response to your letter of May 3, 1973, in which you raise two questions. First, under the Constitution and the laws of the State of Georgia, does the State Personnel Board have the responsibility for establishing and maintaining a compensation plan for employees under the State Merit System? Second, if the board is charged with the responsibility of establishing and maintaining a compensation plan, to what extent is the board obligated to respond to an Act of the General Assembly which not only appropriates monies for a revision to the compensation plan but also prescribes the structure of that plan? I shall answer your questions in the order in which you asked them. The answer to your first question is that the State Personnel Board does have the responsibility for establishing and maintaining a compensation plan for employees under the State Merit System. The State Personnel Board, created by Ga. Const., Art. XIV, Sec. I, Par. I (Ga. Code Ann. 2-8201), has been empowered by the General Assembly to adopt and amend rules and regulations pertajning to the establishment and maintenance of an employee compensation plan. Ga. Laws 1971, pp. 45,49 [Ga. Code Ann. 40-2203 (b)]. Your second question seems to have been initiated by Section 42 of the Appropriations Act for fiscal year 1974, H. B. 141, 1973 Session, Georgia General Assembly (hereinafter referred to as Section 42). 139 73-80 This Act appropriates the sum of $10,500,000 for an across the board salary increase of not more than $420 per budgeted employee. You wish to know the extent to which the Personnel Board is obligated to respond to this Act. To answer this question there must be an understanding of what an "appropriation" Act is. An appropriation Act is an Act which does no more or no less than authorize a maximum amount of funds to be spent for specified objects (it does not mandate such expenditures). See Ga. Const., Art. VII, Sec. IX, Par. I (Ga. Code Ann. 2-6201); Art. III, Sec. VII, Par. IX (Ga. Code Ann. 2-1909); Ga. Laws 1962, pp. 17, 19 [Ga. Code Ann. 40-402 (l) (2)]. The actual power of a public agency to spend public money for particular activities or purposes must be pursuant to a general law, not an appropriation Act. See Ga. Const., Art. VII, Sec. IX, Par. I (c) [Ga. Code Ann. 2-6201 (c)]. In other words, there must be two enactments before any public funds may be spent. First, the General Assembly must pass a general law vesting a particular state agency with the general power to engage in particular activities and to spend public funds for the carrying out of the same. Then, in an appropriation Act, the General Assembly must appropriate an amount of state funds for use by the agency in carrying out its responsibilities and duties under the general law. without the grant of both the power under general law to spend public funds for specified purposes and the authority under an appropriations Act to spend up to a certain amount, an expenditure of state funds cannot take place. See generally Op. Att'y Gen. 67-189. With this in mind, the meaning of Section 42 may be understood. This Act appropriates the sum of $10,500,000 for an across the board salary increase of not more than $420 per budgeted employee. This section does no more than authorize the expenditure of up to $10,500,000 for an across the board pay increase of not more than $420 per budgeted employee. It does not and it cannot in and of itself grant such a pay increase. As already pointed out, the power to devise a compensation plan for State Merit System employees (which would include the power to grant pay increases) has been granted by a general law. Ga. Laws 1971, pp. 45, 49 [Ga. Code Ann. 40-2203 (b)]. It is up to the State Personnel Board to determine whether any pay increase will in fact be given, and, if so, how much, provided that any increase could not exceed the maximum amounts authorized by Section 42. Therefore, it is my official opinion that the State Personnel Board has been delegated the authority to establish and maintain a compensation plan fOr employees under the State Merit System, and in establishing and maintaining that plan, it may grant an across the board pay increase to all merit system employees provided that such expenditure does not exceed the amounts authorized by the general Appropriations Act. 73-81 140 OPINION 73-81 To: Commissioner of Securities, Secretary of State June 5, 1973 Re: Securities; approval of exemption from registration of securities of Chicago Board Options Exchange. You have informed me that the Chicago Board Options Exchange has requested you to issue an order under Section 5 (f) of the Georgia Securities Act of 1957 (Ga. Laws 1957, p. 134, as amended; Ga. Code Ann. 97-106 (f)) approving it as a stock exchange whose securities may be exempt from registration. You have requested my official opinion as to what action should be taken in regard to that request. To guide my efforts to assist you, you have supplied me with the following materials: (1) a letter to you from one Michael L. Meyer, dated February 19, 1973; (2) materials submitted with that letter, including an "informational brochure for prospective members" and materials incorporated in the statement prepared for registration under the Securities Act of 1933; and (3) a "Preliminary Prospectus" dated March 29, 1973. Those materials form the exclusive source of the facts discussed in the following paragraphs. BACKGROUND INFORMATION. The Chicago Board Options Exchange, Inc. ("CBOE" or "The Exchange") is an offshoot of the Chicago Board of Trade which has been organized to deal exclusively in stock options. The Exchange, we are told, has been registered with the SEC as a "national securities exchange" under the Securities Exchange Act of 1934, and its options have also been registered in accordance with the provisions of the Securities Act of 1933. While it may eventually provide a forum for dealing in such exotic species as "puts," "straddles," "strips," and "straps," for the time being the Exchange plans only to conduct trading in "call options." In return for a premium paid to the "writer" (i.e., the potential seller of the underlying stock), one who purchases such a "call" would receive the right to buy ("call down") a specified number of shares of certain stock at a stated price per share on or before a given standard expiration date. In the ordinary course, no certificate will be issued in evidence of the transaction: individual accounts would comprise the sole record of the trade. The cast of characters involved in any particular option transaction would include the following: 1. The buyer, whose right is described above and who is referred to .as "the holder," after purchasing the option; 141 73-81 2. The writer, who is referred to as "covered" if he owns underlying stock during the period in which he remains a writer and ''uncovered" if he does not own the stock during that period (one who initially is a 11covered" writer may become ''uncovered" by selling his stock. As Op. Att'y Gen. 71-115 indicates at p. 142, an "uncovered writer" may be described as ''writing naked"); 3. Brokers for both buyer and writer, who negotiate the terms of the transaction; 4. "Clearing Members," through whom the buyer's broker must pay his premium and through whom the writer must perform upon exercise of the option (The customers of each Clearing Member will include both buyers and writers; " . . . [e]ach Clearing Member is required to maintain a continuous record of his respective customers' positions in Chicago Board Options." See "Certificateless Trading" at p. 11 of the March 29, 1973, Preliminary Prospectus.); and 5. The Clearing Corporation, CBOE's wholly-owned subsidiary which is both the buyer's issuer and obligor, and which "maintains a daily record of options issued in each of the accounts of its Clearing Members" (See "Certificateless Trading," p. 11 of March 29, 1973, Preliminary Prospectus). Unlike traditional call options, the options issued by the Clearing Corporation will not obligate any specific writer to the buyer during the period in which the option is outstanding. Each writer-customer of each Clearing Member will have a general obligation to perform upon notice from his Clearing Member that an option with terms identical to the terms of one which he has written has been exercised. Any such notice will in turn result from random selection of the particular Clearing Member by the Clearing Corporation from among the various Clearing Members whose customers have written such options. (For a more detailed discussion of this process see Preliminary Prospectus, pp. 21-22.) If both writer and Clearing Member default, the Clearing Corporation remains obligated to perform according to the terms of the buyer-holder's option. As a result of severing the traditional link between buyer and writer, two parallel markets will be created within the Exchange. The first of these, the "primary market," is the market in which both buyer and writer must initially deal in order to assume their respective positions. Their initial step is termed an "opening purchase transaction" with respect to a buyer and an "opening sale transaction" with respect to a writer. An investor who trades exclusively on the primary level will ultimately either exercise his option or let it lapse. Once he holds an option position by virtue of his opening purchase transaction, a buyer may, however, realize any gain accruing to his account without any further dealing in the primary market. This for the reason that the very existence of option contracts permits the 73-81 142 development of a "secondary market" comprehending trading in the options themselves. Since option values (as reflected in daily premium quotations) will increase in response to any upward movement in the underlying stock, a buyer-holder may simply sell his option in a "closing sale transaction" to take his gain without the necessity of acquiring and reselling the underlying shares. Correspondingly, a writer may cancel his obligation (and thereby minimize his loss in a rising market) by a "closing purchase transaction" in which he acquires an option identical to one he has written. (See next to last paragraph on p. 17 of Preliminary Prospectus.) His account would then be adjusted by the difference between the premium paid in the closing purchase transaction and the premium originally received on assuming his writer's position. It should be apparent that this feature of the secondary market would permit an uncovered writer to trade in the Exchange without ever owning or intending to own any stock in companies whose stock underlies options issued by the Clearing Corporation. As discussed on p. 5 (second paragraph from bottom) of the Prospectus, the secondary market may not always exist for given options. Insufficient trading interest or Exchange action pursuant to its trade limitation powers might force a holder to exercise or might require a writer either to acquire shares or liquidate his holdings. The Exchange has set a number of requirements which must be met before a particular stock may be approved for option trading. For a discussion of those requirements see pp. 12 (bottom) and 13 of the Preliminary Prospectus. Companies whose stocks have been tentatively approved for trading include A. T. & T., Eastman Kodak, Xerox, and Ford Motor Company. (See Preliminary Prospectus, p. 43.) DISCRETIONARY SECTION 5 (f) EXEMPTION. Section 5 (f) of the Georgia Securities Act of 1957, as amended, after exempting four well-known exchanges from the registration provisions of the Act, provides that "The commissioner may by written order approve any stock exchange in addition to those specified in this subsection if he finds that it would be in the public interest for securities listed on such exchange to be exempt under this subsection.'' (Emphasis added.) From that language, it is quite clear that the approval or disapproval of the stock exchange is a matter entirely within the discretion of the Commissioner of Securities and that he alone may make the decision that a particular exemption would or would not be in the public interest. Because of this, I do not feel that I can comment on whether the Chicago Board Options Exchange should be granted approval under Section 5 (f). As your legal advisor, all that I can do is to indicate 143 73-81 certain persuasive factors which you should consider before making your decision. Those factors include the following: 1. Assurances backing up a buyer's investment~The risks of buying and writing call options are adequately described on pp. 14 through 15 and pp. 16 (bottom) through 18 (top) of the Preliminary Prospectus. The buyer, of course, risks the loss of the premium he pays for his option. What is less obvious is that he also assumes the risk of his obligor's solvency. Whenever a writer and his Clearing Member fail to perform within a certain time after notice of exercise, a buyer-holder's Clearing Member may protect the buyer's gain by purchasing shares at current market value and charging the Clearing Corporation with the difference between that price and the stated exercise price. (Prospectus, p. 23.) Since we are informed that the Clearing Corporation's assets will be insignificant, this remedy would be meaningless without the contractual relations existing between the Clearing Corporation and Clearing Members. By virtue of those relations, each Clearing Member must maintain margin deposits with respect to each option for which it represents a writer. (See Prospectus, p. 24.) (Margin requirements are computed daily with reference to daily changes in option premium.) The margin deposits of a given Clearing Member would be available to satisfy a claim. (In turn, contractual obligations between Clearing Member and writer would allow the Clearing Member to utilize the margin deposits of a defaulting writer [see Prospectus, p. 24] to cure a particular default.) Where those deposits proved insufficient, the Clearing Corporation could levy against the net capital of the Clearing Member (which must initially equal $150,000 or 8 2/3 aggregate indebtedness and which may not fall below the greater of $100,000 or 6 2/3 of the Clearing Member's aggregate indebtedness). (See Prospectus, p. 24.) The Clearing Corporation also has a lien on all options, other securities, and funds maintained in a Clearing Member's Clearing Corporation account. Where all else fails, the Clearing Corporation may calm a holder's wrath by dipping into the "Clearing Fund." We are told on p. 25 of the Prospectus that each Clearing Member must initially deposit into that fund a sum of $10,000. After the first quarter of operations, however, each Clearing Member must maintain a deposit "equal to the daily average of the member's options position (whether as a holder or a writer, and whether in a firm or customer's account) during the preceding quarter, multiplied by 10 ...."(with $10,000 as the minimum deposit). See Prospectus, p. 25. Thus, if during the quarter a member averaged 600 options as a holder and 700 as a writer, the succeeding quarter's fund deposit would have to be maintained at $13,000 (600 + 700 X 10 = 13,000). 73-81 144 The informational brochure projects that "an average trading volume of 3,000 option contracts (each covering 100 shares of stock) per day will be required for the Exchange to achieve break-even operations" (p. 8).1 Since each option entails both a holder's and a writer's position (see Prospectus, p. 23, "The Back-up System, sentence one), it follows that the aggregate daily average of Clearing Members' options positions at break-even level would equal 6000 (3000 holders + 3000 writers = 6000). During a quarter succeeding a break-even quarter, the Clearing Fund would equal $60,000 (6,000 positions X $10). 2 If an average option contract during that succeeding quarter sold for a premium of 5 (i.e. $500), that would mean the fund's $60,000 would back up some $1,500,000 invested by buyers during that period. Whether that amount of funding would adequately shelter those investments is a question I am not qualified to answer. If the assets of the fund were ever depleted, buyers with outstanding claims would still have one remaining source of protection. Assuming the Prospectus is correct when it tells us that CBOE is now a registered national securities exchange, each of its members would automatically become a member of the Securities Investor Protection Corporation ("SIPC"). See Prospectus, pp. 28, 29; see also 15 U.S.C.A. 78 ccc (a) and ddd. So far as investors are concerned, the advantage of this membership is that in the event a CBOE member cannot discharge its obligations to its customers, the SIPC, upon certain findings, may advance up to $50,000 per customer to satisfy claims ($20,000 maximum for cash claims). See 15 U.S.C.A. 78 fff. 2. Applicability of Georgia's commercial gambling laws to options trading-The existence of the Exchange's secondary market raises the possibility that at the time options are written the buyers and writers may intend that "the option, whenever exercised, or the contract resulting therefrom, shall be settled, not by the receipt or delivery [of the underlying shares], but by the payment only of differences in prices thereof." Ga. Laws 1968, pp. 1249, 1318, as amended (Ga. Code Ann. 26-2703 (d)). For analysis of Georgia's commercial gambling laws as they bear on stock options, see Op. Att'y Gen. 71-115. 3. Judicial proceedings involving the Exchange-I am informed that a civil antitrust action has been filed by the Department of Justice 1 An article in the Atlanta Journal dated April27, 1973 reported that the volume for the first day of trading on the Chicago Board Options Exchange (Thursday, April26) "reached more than 90,000 or 911 lots of 100 shares each. This activity reportedly surpassed most brokerf:l' expectations." An advertisement by the Exchange in the May 30, 1973 edition of the Wall Street Journal (p. 34) reported a volume for Tuesday, May 29, of 1,144lots of 100 shares. 2 At present the Exchange has 26 members, with nine applications pending. This means that the fund would at minimum equal $26,000 (or $35,000) during the first quarter of operations. 145 73-82 against CBOE, charging it with fixing and maintaining brokerage rates and other fees charged in connection with purchases and sales of securities options. Since the Exchange has become embroiled in legal proceedings so soon after beginning operations, it may be questionable whether an exemption for its securities would be appropriate at the present time. 4. Any other matter which the Commissioner feels important-Let me reemphasize that the decision to grant or deny an exemption under Section 5 (f) lies within your complete discretion. The range of matters which might be significant in an examination of the "public interest" is therefore limited only by the bounds of your imagination. I would also remind you that if you should feel the need for a fuller understanding of any of the matters cited above you are authorized by Section 8A (a) (Ga. Code Ann. 97-109.1, based upon Ga. Laws 1959, pp. 89, 95) to hold general investigative hearings on your own motion. Should you ultimately decide to enter an order approving the Chicago Board Options Exchange under Section 5 (f), let me remind you that the Exchange, as a foreign corporation, may have no agent in this state authorized to accept service of process. To protect Georgia investors, you should require as a condition precedent to any such order that the Exchange file a consent to service with the Commissioner of Securities in the same manner as under Section 3 (d) of the Georgia Securities Act (Ga. Code Ann. 97-104 (d), based upon Ga. Laws 1957, p. 1:34). OPINION 73-82 To: Director of Corrections June 5, 1973 Re: Juvenile offenders; sentences of persons serving both under Youthful Offender Act and another statute. You have asked for my official opinion on five questions which have arisen under the Youthful Offender Act, Ga. Laws 1972, p. 592. All but one of your questions have been prompted by administrative difficulties which your department has experienced when an individual has been convicted of separate crimes in different courts and has been sentenced under both the Youthful Offender Act and some other penal statute. In the paragraphs that follow I shall set forth those questions and discuss each in turn. 1. Question: "An individual serving an indefinite sentence under the Youthful Offender Act receives a straight sentence to be served concurrently. Should this individual be retained under youthful offender status? If so, must he serve at least the time he 73-82 146 would have served if sentenced under provisiOns of said concurrent sentence before he is eligible for release under theYouthful Offender Act?" Answer: There are two provisions in the Act which bear tangentially on the subject of multiple sentences. First, Section 16 (a) [Ga. Code Ann. 77-360 (a)] declares that "nothing in this Act shall limit or affect the power of any court to proceed in accordance with any other applicable provisions of law." Though nothing in the Act would compel such an interpretation, this section could be read as implicitly recognizing the power of a second court to give a standard prison sentence to a person who had previously been sentenced as a youthful offender. The other provision, Section 14 (c) [Ga. Code Ann. 77-358 (c)] permits the Youthful Offender Division to revoke the conditional release of a youthful offender convicted of a crime while on release. Yet that section does not elaborate on what, if any, effect such revocation might have on the individual's status as a youthful offender. While Sections 16 (a) and 14(c) may be cited for the proposition that the Youthful Offender Act does not prohibit combination of youthful offender and standard sentences, neither they nor any other provision of the Act offer any guidance as to the course to be followed once such a union does occur. In the absence of legislative directions, I suggest that the problem can be solved by analogy to the situation of a person who receives a five-year sentence to run concurrently with a prior three-year sentence imposed by the same or some other court. Just as the Board of Corrections could not release the latter person at the end of his three-year term, neither could the Youthful Offender Division approve a conditional or unconditional release for the described youthful offender until his concurrent sentence expired. Nevertheless, he could be assigned to an institution maintained primarily for youthful offenders during the entire period for which the board is charged with custody over him, since Ga. Laws 1956, p. 161 (Ga. Code Ann. 77-309 (b)) empowers the board to assign inmates to any institution within its system, and Section 8 (c) of the Youthful Offender Act (Ga. Code Ann. 77-352 (c)) authorizes the Director of Corrections to segregate youthful offenders from other prisoners. 2. Question: "An inmate serving the youthful offender sentence is given a straight consecutive sentence. Should this inmate be retained under the youthful offender status? If so, at what point should the consecutive sentence begin?" Answer: Just as in the situation in question 1, the board could not restore an offender to society so long as he remained subject to another valid sentence as yet unserved. However, where a later consecutive sentence is concerned, there is an additional complication springing 147 73-82 from the fact that Sections 11, 12 and 15 of the Youthful Offender Act (Ga. Code Ann. 77-355, 77-356 and 77-359) make the duration of a youthful offender sentence indefinite, up to a maximum period of six years. Since the Youthful Offender Act was intended, however, to benefit those persons eligible for its sentences by providing a means of restoring them to society sooner than might otherwise have been the case, there seems to be no reason not to construe the Act to allow expiration of the youthful offender sentence at the time determined by the administrators of the Act, regardless of whether the offender could actually be released from confinement on that date. Consequently, it is my opinion that while the youthful offender may not be set free so long as he remains subject to a sentence imposed under some other provision, the Youthful Offender Division of the Department of Offender Rehabilitation may treat the offender in accord with its standard procedures in every other respect. Thus, conditional and unconditional release dates may be set for such an individual, with the result that his aggregate prison term may be reduced by virtue of his efforts in the youthful offender program. 3. Question: "An inmate is serving a straight sentence and receives an indefinite youthful offender sentence, either concurrent or consecutive. What effect would the youthful offender sentence have on the straight sentence?" Answer: This question presents the converse of the situations described in questions 1 and 2. My answers to those questions apply here as well. 4. Question: "An inmate is serving a youthful offender sentence and has his probation and/or parole revoked. What effect would this have on his youthful offender status?" Answer: I assume your question refers to revocation of probation or parole in regard to some other sentence which the youthful offender is subject to in addition to his sentence under the Youthful Offender Act. In such circumstances revocation of probation or parole would affect the youthful offender in the same way as the imposition of the second sentence to be served concurrently. 5. Question: "An individual is sentenced under the Youthful Offender Act to an offense that carries a lesser sentence under the Criminal Code than the six-year maximum set forth in the Youthful Offender Act. [Could that individual nevertheless be held in custody of the Youthful Offender Division for the full six-year period?]I 1 Matter in brackets was substituted for the original by later opinion (Op. Att'y Gen. 73-102) dated .June 22, 1973. 73-83 148 Answer: This question is answered by Sections 11 (b) and 12 (b) of the Youthful Offender Act [Ga. Code Ann. 77-355 (b) and 77-356 (b)]. Those sections provide that for an offense with a maximum prison term of less than six years, unconditional release must be ordered upon the expiration of that term, and conditional release must be granted at least one year prior to that date. OPINION 73-83 To: State Superintendent of Schools June 5, 1973 Re: Sales and use taxes; collection by area vocational schools. This is in response to your recent letter requesting my opinion on two questions arising from the following factual situation. Area vocational-technical schools, operated by local units of school administration, are, and have been, engaged in selling books and other miscellaneous materials to their students on a nonprofit basis. The State Department of Revenue has issued, or is in the process of issuing, assessments against the local units for sales taxes on the above-described sales. Your first question is: "In making sales such as I have described herein, what are the responsibilities of the schools relative to collection and remittance of the state sales tax?" A reading of the Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. Laws 1951, p. 360 (Ga. Code Ann. Ch. 92-34A), as amended, clearly indicates that the local units' responsibilities under the Act are no different than those of anyone else making sales such as you have described. First, Section 2 of the Act provides: "Every person making a sale or sales of tangible personal property at retail in this state shall be a retailer and a dealer as defined in this Chapter and shall be liable for a tax thereon...." Ga. Code Ann. 92-3402a (a). (Emphasis added.) Second, Section 3 of the Act defines "person" to include, " ... a unit, body politic or political subdivision, whether public or private, or quasi-public...." Ga. Code Ann. 92-3403aA. Finally, any doubt which might be left by the preceding two sections is clearly resolved by Section 12 of the Act, which section states: "Inasmuch as it is provided herein that the taxes herein levied upon purchasers and consumers shall be collected by the dealer 149 73-84 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 owed to the State Revenue Commissioner as herein provided." Ga. Code Ann. 92-3414a. For the foregoing reasons it is my opinion that area vocationaltechnical schools must collect and remit sales taxes on sales made by them, and further, that upon failure to make such collections and remittances the local units are liable themselves for the tax. Your second question is as follows: "In the event that the schools are liable for their past failures to collect and remit sales taxes, can the assessments be paid out of the public school funds?" It is my opinion that this question must be answered in the negative. Public school funds "shall be used for educational purposes and none other." Ga. Laws 1969, p. 721 (Ga. Code Ann. 32-942). In Wright v. Absalom, 224 Ga. 6, 11 (1968), the Supreme Court of Georgia held that state revenues raised pursuant to Ga. Const., Art. VII, Sec. II, Par. I (Ga. Code Ann. 2-5501) could not lawfully be expended for support of the public school lunch program since such funds only may be expended for "educational purposes" and "eating is not education." Under this construction of the phrase "for educational purposes," the paying of state sales taxes out of public school funds could not conceivably be considered a payment "for educational purposes.'' OPINION 73-84 To: State Director of Civil Defense June 7, 1973 Re: Statutes; repeals by implication not favored; provisions for regulating civil defense rescue units do not repeal Good Samaritan Act. This is in response to your letter of May 8, 1973, requesting an opinion as to whether Act 37 of the 1973 General Assembly (Ga. Laws 1973, p. 74), which amended the Civil Defense Act of 1951, abolished or repealed Ga. Laws 1962, p. 534 (Ga. Code Ann. 84-930), which is commonly referred to as the Good Samaritan Act. You pointed out in your letter that in seeking the legislation culminating in Ga. Laws 1973, p. 74, it was not your intention to abolish the Good 73-84 150 Samaritan Act, and that you are of the opinion that no repeal of the Good Samaritan Act has occurred. With this position, I concur for the reasons set forth hereafter. It is deeply rooted in Georgia law that repeals of statutes by implication of later laws are not favored. (See the annotations under the catchword "implication" in Ga. Code Ann. 2-1916.) The courts of Georgia, in determining whether a later statute has by implication repealed an earlier statute, look to see if the statutes are irreconcilably in conflict. "Repeals by implication are not favored, and unless the .. . [later Act] is in irreconcilable conflict with the provisions of the .. . [former Act], it will not be construed to have repealed the provisions of the existing law." Bragg v. Bragg, 225 Ga. 494, 495 (1969) [parenthetical matter added]. The Good Samaritan Act provides: "Any person, including those licensed to practice medicine and surgery pursuant to the provisions of Chapter 84-9 of the Code of Georgia of 1933, and including any person licensed to render services ancillary thereto, who in good faith renders emergency care at the scene of an accident or emergency to the victim or victims thereof without making any charge therefor, shall not be liable for any civil damages as a result of any act or omission by such person in rendering the emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person." Act 37 of the 1973 General Assembly, which amends the Civil Defense Act of 1951 by adding Section 27 thereto, states: "All rescue organizations, associations, groups, teams or individuals, whether or not they are holders of a charter issued by the State of Georgia or officers thereof, which have not been licensed by the Department of Human Resources as an ambulance service, shall be prohibited from performing any rescue or civil defense type activity until such organization, association, group, team or individual has been certified by the State Director of Civil Defense." Ga. Laws 1973, pp. 74, 94. Are these two statutes irreconcilably in conflict? I am of the opinion that they are not. The 1973 Civil Defense Amendatory Act is a regulatory licensing statute which requires certification by the State Director of Civil Defense of rescue organizations, associations, groups, teams or individuals which are not already licensed to perform ambulance services. It would appear not to be the intention of this provision to in any way affect potential civil liabilities as civil liabilities have been delineated in other provisions of the Civil Defense Act of 151 73-85 1951. The amendatory Act makes no determination of, nor does it concern, civil liability of persons rendering emergency care at the scene of an accident or emergency. The Good Samaritan Act is totally unrelated to regulation or licensing of persons rendering emergency care and concerns solely civil liabilities of persons furnishing such care. Had the General Assembly sought to repeal the Good Samaritan Act, then surely it would have done so with a specific repealer in the same manner as it did in Section 16 of Ga. Laws 1973, pp. 74, 94, said section being a specific repealer of a portion of Ga. Laws 1962, p. 473. In summary, it is my official opinion that Ga. Laws 1973, p. 74, did not repeal the Good Samaritan Act as the provisions and objectives of the two Acts are not irreconcilably in conflict. Furthermore, as the General Assembly did provide a specific repealer in the 1973 Act concerning other former statutes, it is reasonable to assume that it would have specifically repealed the Good Samaritan Act in a similar manner had it been the intention of the General Assembly to do so. OPINION 73-85 To: Chairman, Georgia Public Service Commission June 7, 1973 Re: Motor vehicle common carriers; temporary emergency authority to operate. The 1973 Session of the General Assembly has authorized the Georgia Public Service Commission to grant temporary emergency authority to satisfy a need for emergency motor common carrier service, under specified conditions. Ga. Code Ann. 68-611.1, enacted by Ga. Laws 1973, p. 641. You have asked several questions about the interpretation of this Code section. You first ask whether an applicant for this authority is required to first make an application for a certificate of public convenience and necessity. We can find nothing in the 1973 Act which would require an applicant to first apply for a certificate before applying for the emergency authority and your question is answered in the negative. You next wish to know whether the commission must issue a certificate to an applicant or does the commission just issue an authority. It is quite clear from the language of the 1973 Act that the authority granted to an applicant is to fill an unmet, immediate and urgent need for service and cannot be valid for more than an aggregate of 30 days. Ga. Code Ann. 68-611.1. From a review of the procedure and conditions set out in the Act, it is quite clear to us that the temporary emergency authority is an exception to the general requirement 73-86 152 that no motor common carrier can operate without first obtaining a certificate. Ga. Code 68-604, based upon Ga. Laws 1931, p. 199. There is no mention in the Act of granting a certificate of any sort to the applicant and in view of the purpose of the Act, it is our official opinion that it is not necessary to grant a certificate to the applicant. You next ask several questions concerning the collection of various fees authorized by law to be collected from certificated carriers. Since the above discussion shows that an applicant operating under temporary emergency authority is not a certificated carrier, we do not believe that the license fees specifically mentioned by you, Ga. Code Ann. 68-622 and 68-623, would apply to an applicant under this law. We are not aware of any legal authority which would allow the commission to require by rule or regulation the collection of a fee where that fee is not authorized by law. See also Ga. Code 89-702. The Act does authorize the commission to impose such conditions as it finds necessary with respect to the grant of the temporary authority and for that reason we believe the commission can require the filing of a bond or insurance policy and a financial statement on the ground that these requirements are justified for the purpose of showing the fitness and ability of the applicant and protecting the public. However, in our opinion the authorization to impose conditions as the commission finds necessary is not commensurate with the ability to impose and require the collection of a fee prior to the grant of the temporary authority, absent some clear legislative authorization on this subject. The penalty for collecting an unlawful fee is so severe that we are reluctant to advise any public official to charge fees without specific authority. Ga. Code 89-702. The proposed amended rule you submitted with your request for opinion is approved as to legal form with the exceptions set out in this opinion as to the collection of fees ordinarily imposed only on certificated carriers. OPINION 73-86 To: Deputy Director, State Merit System of Personnel Administration June 7, 1973 Re: Officers and employees, public; legal status of money paid under ''Employees Suggestion and Awards Program.'' This is in response to your letter of May 29, 1973, in which you inquire as to the nature of money paid to a state employee under the Employees Suggestion and Awards Program and whether such payment by the agency which adopts the suggestion is a violation of any Georgia law. 153 73-87 The answer to your first question is that the money paid under the "Employees Suggestion and Awards Program" is an award. As was discussed in an earlier opinion (Op. Att'y Gen. 71-183), the payment of such an award does not violate the constitutional prohibition against grants or gifts, since such payment is a form of compensation. Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402). Even though such payment is compensation, there is nothing in the "Employees Suggestion and Awards Program'' that would make the award winner anything more than an award winner. He does not, for example, become an employee or a consultant of the award granting department or agency simply because of the award. The fact that you must treat the award as consultant fees for federal tax purposes does not make the award winner a consultant for purposes of general state law. You also inquired as to whether the 1973 amendment to the Employees Suggestion and Awards Program was in conflict with any earlier Georgia statutes. Act No. 400 of the 1973 Georgia General Assembly (Ga. Laws 1973, p. 794). In particular, you inquired as to the possible conflict between this amendment and the 1956 "Honesty in Government Act." Ga. Laws 1956, p. 60 (Ga. Code Ann. 89-913). After studying both statutes I cannot find any conflict. However, if by some possibility there is a conflict, the latest expression of the General Assembly (which in this case is the 1973 amendment) would take precedence. Clark v. Kaylor, 219 Ga. 256 (1963). Therefore, it is my official opinion that money paid to a state employee under the "Employees Suggestion and Awards Program" is an award and as such it may be paid by the state agency or department which adopts the suggestion whether or not that agency is the employee's appointing authority. OPINION 73-87 To: Commissioner, Department of Labor June 8, 1973 Re: Officers and employees, public; travel advances to state employees. This is in reply to a request for advice from your office on severa questions which you believe to be raised by Act No. 431, Ga. Laws 1973, p. 842. Regulations implementing that Act have been recently proposed by the Office of Planning and Budget. For convenience, I have consolidated your questions as follows: 1. Does the use of public funds for the purposes authorized under the Act violate Ga. Const., Art. VII, Sec. I, Par. II (1) (Ga. Code Ann. 2-5402 (1)), or Ga. Const., Art. VII, Sec. III, 73-87 154 Par. IV (Ga. Code Ann. 2-5604)? 2. If an employee fails to account for such funds, is a claim by the state agency for that amount cognizable under its blanket bond obtained in accordance with Ga. Laws 1933, p. 78, as amended (Code Ann. 89-806, 89-816)? 3. In the event a default by an employee is not encompassed by an agency's blanket bond, and the default is not otherwise satisfied, who would be liable to reimburse the state? Your questions will be answered seriatim. First, it is my opinion that the procedures authorized by Act No. 431 do not constitute either a gratuity or a loan to an employee. Section 1 of that Act provides that "Each Department . . . is hereby authorized to establish such employee trust accounts as are necessary to account for state funds which are advanced to employees for travel purposes in the conduct of official state business as are necessary to carry out the intent and purpose of this Act." Such procedures clearly fall within the ambit of a prior unofficial opinion of this office, dated January 5, 1973, a copy of which is enclosed for your reference. Op. Att'y Gen. U73-2. In any event, however, it is my official opinion that payments to an employee to compensate him for expenses to be incurred in rendering services to the state clearly do not constitute a gratuity where the employee is accountable for his failure to employ the funds for that purpose; nor do such payments constitute a loan simply because there is a requirement that the employee account for such funds. See Op. Att'y Gen. 70-206. Second, it is my official opinion that a default by an employee in his obligation to account for the funds advanced to him for the purposes stated in Act No. 431 is a failure "faithfully to account for all moneys coming into [his] hands," and thus is a claim cognizable under the bond required by Ga. Laws 1933, p. 78 (Code Ann. 89-806, 89-816). Third, it is my official opinion that in the event the employee is not bonded as required by Ga. Code Ann. 89-806, then the limitation of liability with respect to the principal and surety on the bond of the head of that state department contained in Ga. Code Ann. 89-816 is no longer applicable and the historical rules of liability would in that event apply to the department head and his surety. American Surety Co. v. NeSmith, 49 Ga. App. 40 (2) (1934). 155 73-89 OPINION 73-88 To: State Superintendent of Schools June 8, 1973 Re: Education; kindergartens as part of public school program. This responds to your letter dated May 31, 1973, stating that local superintendents of schools are being advised by examiners of the State Department of Audits that they must discontinue financial support of kindergarten programs (programs for five-year-old pupils) and asking whether or not that advice is correct in light of Ga. Laws 1972, p. 722. Whatever doubt may have existed prior to 1972 respecting the authority of county boards of education under state general laws to operate kindergarten programs (Ga. Laws 1947, pp. 668, 669; Ga. Code Ann. 32-411.1) was dispelled by the 1972 Session of the General Assembly, which explicitly authorized the establishment of "education programs for children five years of age" as a part of the public school program in this state. Ga. Laws 1972, p. 722; Ga. Code Ann. 32-2102b, 32-2104b. Hence, it would not be correct to say that county boards of education ought to discontinue financial support of all kindergarten programs. My answer to your general question necessarily is general also and does not express any opinion respecting the legality of any particular kindergarten program currently in operation in any county. Neither is any opinion expressed as to kindergarten programs operated pursuant to special or local laws or constitutional amendments. OPINION 73-89 To: Commissioner, Department of Transportation Re: Records; retention of Highway Project files. June 11, 1973 You have inquired as to whether or not it is necessary to retain an entire Highway Project file for a 20-year period or whether the retention of the release, final voucher and contract for this period will adequately protect the state's interests in compliance with state law. You enclosed a copy of a proposed Records Disposition Standard for Highway Project files. As you noted, highway construction contracts are sealed contracts and are therefore subject to a 20-year statute of limitations. Ga. Code 3-703. John Monaghan, Inc. v. State Highway Dept., 81 Ga. App. 289 (1950), involved an action by a contractor to collect damages 73-90 156 for a delay caused by the State Highway Department in the contractor's performance of a highway contract. One of the department's standard specifications, incorporated into the contract by reference, provided that acceptance of final payment would act as a discharge and release to the department for all claims under the contract. The statute of limitations (Ga. Code 3-703 and the Monaghan case) established two separate standards in possible contract litigation. Although the defenses of discharge and release, if properly established, may be complete defenses in law, the following language indicates that each case is to be judged upon its individual facts: "As a general rule, whether or not acceptance of final payment would operate as a waiver of and a release from liability would depend upon the nature of the receipt given or upon the provisions of the contract in this respect, or upon both." Monaghan, supra, at page 291. If a factual defense as interpreted by the courts and based upon case law should fail, the 20-year statute of limitations would remain operative. It is my official opinion that the entire project file as it relates to a contract under seal should be retained for the full 20-year period for the complete protection of the state's interest in accordance with the statutory and ease law of Georgia. OPINION 73-90 To: Comptroller General Re: Insurance; licensing of surplus line brokers. June 11, 1973 [Ga. Code Ann. Title 56 sections herein are based upon Ga. Laws 1960, p. 289.] The Georgia Insurance Code provides that a licensed insurance agent or broker as to casualty, property and surety insurance who is deemed by the Insurance Commissioner to be competent and trustworthy may be licensed as a surplus line broker upon fulfillment of certain prescribed conditions. Ga. Code Ann. 56-618. You indicated in your correspondence to me that you determined as a policy matter several months ago that applicants for a surplus line broker's license would have to take a written examination in order for you to more accurately determine their competence. You have sought an opinion as to whether or not you have the authority to impose such a requirement on applicants for these licenses. The Insurance Department and the Insurance Commissioner as head of that department are charged with the duty of carrying out 157 73-90 those responsibilities vested in them by the Georgia Insurance Code. Ga. Code Ann. 56-201. Among the responsibilities of the Insurance Commissioner is the determination of competence of applicants seeking issuance of a surplus line broker's license. Ga. Code Ann. 56-618. The Supreme Court of the United States, in upholding such authority in an insurance commissioner, has stated: "In the absence of any showing that it is administered arbitrarily, the requirement that the license [of a surplus line broker] shall issue only after a finding of trustworthiness and competency by the commissioner cannot be taken to be other than an appropriate means of safeguarding the public against the obvious evils arising from the lack of those qualifications." Robertson v. California, 328 u.s. 440, 450 (1946). Thus, in light of the above statutory grant of authority, it becomes necessary to look for limitations on the authority of the commissioner to determine the competence of an applicant for a surplus line broker's license. Cj. State of Georgia v. Regents of the University System of Georgia et al., 179 Ga. 210, 175 S.E. 567 (1934). Since there is nothing in the Georgia Insurance Code to preclude the commissioner's requiring a written examination to determine the competency of an applicant for a license as a surplus line broker, it is my opinion that the commissioner is authorized to require such an examination. It should be delineated that such a policy decision is the proper subject of the rule-making authority vested in the commissioner. Ga. Code Ann. 56-216 (b). The Georgia Administrative Procedure Act defines "rule" as follows: "'Rule' means each agency regulation, standard or statement of general applicability that implements, interprets or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency." Ga. Laws 1964, p. 338; 1965, p. 283 [Ga. Code Ann. 3A-102 (f)]. The determination about which you have inquired is certainly a standard or statement of general applicability that prescribes the policy of the Insurance Department in this particular matter. Thus, such determination must be promulgated as a rule pursuant to the Georgia Insurance Code, Ga. Code Ann. 56-216, and the Georgia Administrative Procedure Act, Ga. Laws 1964, p. 338, as amended [Ga. Code Ann. 3A-104 to 3A-107], in order to be effective. Ga. Laws 1964, pp. 338, 341 [Ga. Code Ann. 3A-103 (b)]. The 1973 Session of the Georgia General Assembly (Ga. Laws 1973, p. 499) amended Ga. Code Ann. 56-618 by adding a new subsection to read as follows: n-91 158 "(5) Each applicant for a license to act as a surplus line broker shall submit to a personal written examination to determine his competence." Act No. 245, 1973 Session of Georgia General Assembly. You have asked whether this amendment requires those seeking renewal of their licenses to submit to this examination. It is my understanding from your office that an individual need make application for a surplus line broker's license but once. After having been licensed, renewal is effected by the filing of the requisite bond, fee, and renewal form. Thus, an individual is considered an applicant only when he makes his initial application for a license. Thereafter, he is considered a broker so long as he renews in accordance with the Georgia Insurance Code each year. Under such an interpretation, only those individuals seeking a license for a first time must submit to a personal examination. To determine otherwise would require every surplus line broker to submit to a personal written examination every year he sought to renew his license. Such a requirement would work an extreme hardship on the Insurance Department as well as the brokers and would certainly be considered unreasonable. Whenever a law is not clear, the reasonableness or unreasonableness of a particular construction is a proper consideration, Georgia Railroad & Banking Co. v. Wright, 124 Ga. 596, 626, 53 S.E. 251 (1905), and construction that would render a statute ridiculous or difficult to enforce should be avoided. See Roberts v. The State, 4 Ga. App. 207, 60 S.E. 1082 (1908). Further, to require an examination of those brokers who have previously been issued a license in that context may be considered a retroactive application of the statute. There is nothing in the language of the Act which permits such an application. Ga. Code Ann. 102-104. In conclusion, it is my opinion that the Insurance Commissioner has the authority to promulgate a rule requiring a written examination of applicants for a license as a surplus line broker, and the 1973 Act of the Georgia General Assembly requiring such an examination applies only to those applicants seeking the issuance of a license for the first time. OPINION 73-91 To: Commissioner, Department of Public Safety June 12, 1973 Re: Evidence; admissibility of computer print-out sheets. This is in reply to your letter requesting an opinion on the admissibility into evidence of print-out sheets of records stored in elec- 159 73-91 ronic computers by the drivers license section. Although there is a paucity of case law in this area, it must be kept in mind that the admissibility question is strictly within the trial judge's discretion; consequently, my response will be directed toward the court's probable ruling. Computer print-out sheets are generally classified as hearsay, by the law, and to be admissible into evidence, they must fall within an exceptiol). to the well-known hearsay rule. Although print-out sheets are a departure from traditional business records, they would probably be admissible into evidence when the requirements of the Georgia Uniform Business Records of Evidence Act are satisfied. Ga. Laws 1952, p. 177 (Ga. Code Ann. 38-711). To favor admission of computer print-out sheets, the following guidelines must be complied with: 1. Records should be stored within the computer in the regular course of business; 2. Records should be stored within a reasonable time after the related transaction or event occurred; 3. Computer storage of records should be the usual practice for the business; 4. Storage retrieval and preparation of records should be by those who regularly operate and understand the equipmen~; 5. The records stored within the computer should be considered permanent records of the business; 6. The original records should be unavailable; and 7. Standard methods for storage and retrieval must be employed on recognized computing equipment. Ga. Laws 1952, p. 177; Ga. Code Ann. 38-711. Transport Indemnity Co. v. Seib, 132 N.W.2d 871 (Neb. 1965); Annat., 11 A.L.R.3d 1368 (1967); Louisville & Nashville R.R. Co. v. Knox Homes Corp., 343 F.2d 887, 896, N. 37 (5th Cir. 1965); Merrick v. U.S. Rubber Co., 44 P.2d 314 (Ariz. 1968); King v. State ex rel. Murdock Acceptance Corp., 222 So. 2d 393 (Miss. 1969); Home Finance Co. v. Smith, 116 Ga. App. 76 (1) (1967); Martin v. Baldwin, 215 Ga. 293, 294 (4) (1959). Micro-films of records would probably be admissible into evidence under Ga. Laws 1950, p. 73 (Ga. Code Ann. 38-710). However, if the motor vehicle section considers information recorded in the computer as the permanent records of the section, the up-dated computer printout should be offered instead into evidence in accordance with the enumerated guidelines. Ga. Code 38-203 (1933). In summary, it is my official opinion that, subject to the discretion of the court, computer print-out sheets or records stored in an electronic computer may be admissible into evidence when such are permanent records made in the regular course of business. 73-92 160 OPINION 73-92 To: Governor of Georgia June 12, 1973 Re: Motor vehicles; certain "multi-purpose passenger vehicles" to be regulated as "private passenger vehicles." This is in response to your letter requesting my opinion with respect to whether or not the Board of Public Safety would have the authority to promulgate a regulation under Ga. Laws 1971, p. 373 (Ga. Code Ann. 68-1823, 68-1824, 68-1825) exempting certain "multi-purpose passenger vehicles" from the term "private passenger automobile," which latter term is definitive of the Act's coverage. By way of background, the proposed regulation reads as follows: For the purpose of the administration of motoryehicle equipment and safety laws and regulations, the following definitions are provided: (1) "Passenger car" means a motor vehicle with motive power, except a multi-purpose passenger vehicle or motorcycle, designed for carrying 10 persons or less. (2) "Multi-purpose passenger vehicle" means a motor vehicle with motive power designed to carry 10 persons or less which is constructed either on a truck chassis or with special features for occasional off-road operation. Ga. Laws 1971, p. 373, defines the term "private passenger automobile" as "a four-wheeled motor vehicle designed principally for carrying passengers not for hire, for use on public roads and highways, and not designed principally as a dwelling or for camping." Ga. Code Ann. 68-1823. I have previously formulated my opinion with respect to the general coverage of the statutory definition. Op. Att'y Gen. 72-50. I am enclosing a copy of this opinion for your information. Reading the proposed regulation against my previous opinion, it is my view that the regulation, as proposed, would redefine the term "private passenger automobile" so as to exempt from coverage vehicles which would otherwise fall within its coverage. As you are, of course, aware, an administrative body such as the Board of Public Safety would only have the power to make such exemptions if the legislature had clearly and expressly conferred it. It is therefore my opinion in response to your inquiry that the proposed regulation would exceed the authority of the Board of Public Safety and would not be a valid exercise of rulemaking powers pursuant to Ga. Laws 1971, p. 373. I base my opinion upon the view previously expressed that the statutory language is clear and requires no construction beyond its 161 73-93 plain meaning, and that the plain meaning of Section 2 of the 1971 enactment is to the effect that "Any motor vehicle meeting other requisites of the Act which is principally designed for use on public roads and highways and the carrying of passengers not for hire is a 'private passenger automobile' within the coverage of the Act even though it might have subsidiary multi-purpose functions which do not fit within the definition." After careful consideration, I adhere to this opinion. In my previous answer to the inquiry of the Commissioner of Public Safety, I expressed the opinion that the legislative criteria was one of principal-design intention and indicated to the commissioner that in every case his department's application or nonapplication would depend upon a conclusion as to whether the manufacturer had "designed the vehicle principally for carrying passengers or whether the passengercarrying capacity of the vehicle was strictly subsidiary to other functions not within the definition." It is my opinion that the proposed regulation would include a number of vehicle types designed and marketed by the manufacturer "principally for carrying passengers" and for which the "passenger carrying capacity" would not be "strictly subsidiary to other functions not within the definition." OPINION 73-93 To: Commissioner, Department of Public Safety June 15, 1973 Re: Arrest of sheriffs. This is in reply to your recent letter requesting an opinion on the authority of the coroner, and others, to arrest a sheriff in criminal matters. My response will be directed toward the following issues: 1. Do Ga. Code Ann. 39-114 and 24-204 give authority to arrest a sheriff in criminal matters? 2. Who may arrest a sheriff for the commission of a crime? 3. May anyone arrest another when the offense is committed in his presence'? 4. Who may serve an arrest warrant? [I] Ga. Code 39-114 (1933) does not give the power to arrest a sheriff in criminal matters. It refers to the transference of certain ministerial duties from a sheriff to the coroner, when the sheriff is a party to a proceeding. The section precludes a sheriff handling an order for final process against himself. Gillis v. Smith, 67 Ga. 446 (1881). 73-93 162 Ga. Code 24-204 (1933) is similar in import to 39-114. It requires the court to appoint a special officer to carry out the order of the court when (1) the sheriff or his deputy is a party to a proceeding, and (2) no coroner, or other lawful officer, resides within the county. State v. Jeter, 60 Ga. 489 (1877). The two sections, supra, apply to civil matters involving orders, decrees, attachments, executions and final processes. Accordingly, Ga. Code 39-114 and 24-204 do not give authority to arrest a sheriff in criminal matters. [2] Sheriffs are not immune to arrest, and may be treated as private citizens when implicated in criminal matters. Op. Att'y Gen. 69-175. Georgia law permits a peace officer to arrest a sheriff, as he would any private citizen, providing reasonable grounds are present to justify the arrest. A peace officer may arrest a sheriff with or without a warrant. One of the following conditions must exist to permit arrest without a warrant: (1) The offense must be committed in the officer's presence, or (2) the offender is attempting to escape, or (3) a failure of justice will result if time is taken to obtain a warrant; for example, evidence will be destroyed in the interim. Ga. Code 27-207 (1933); Thomas v. State, 91 Ga. 204, 206, 207 (1892); Preston v. United States, 376 U.S. 364 (1964). "Peace officer" is defined as a person in the public employ, whose duty is to maintain public order and arrest offenders. Ga. Laws 1968, p. 1249 (Ga. Code Ann. 26-401 (k)). Coroners do not fall within the aegis of "peace officers," Ga. Code 21-101 et seq. (1933), and consequently, cannot arrest a sheriff in circumstances where a peace officer may be able to, but a private citizen would not. Further examination of Title 21 reveals a specific section which parallels 24-204; it compels a coroner to serve process when the sheriff is disqualified. Ga. Code 21-106 (1933). Nevertheless, this section does not give the coroner power to arrest the sheriff in criminal matters. [3] Any citizen may arrest another, including sheriffs (excluding electors, members of the General Assembly, and militiamen) [Ga. Const., Art. II, Sec. III, Par. I (Ga. Code Ann. 2-901); Ga. Const., Art. III, Sec. VII, Par. III (Ga. Code Ann. 2-1903); see Ga. Code 27-202 to 27-204], if three conditions are present: (1) the offense is committed in the citizen's presence; (2) the offense is a felony; and (3) the offender is attempting to escape. Under this rule of law, a coroner, as a private citizen, would be allowed to arrest a sheriff. Ga. Code 27-211 (1933). There is a situation where a coroner may act as sheriff; however, the 163 73-94 peculiarities of the situation would render your query academic. That is, when a vacancy exists in the office of sheriff, the coroner of the county may act as sheriff until an appointment is made. Ga. Code 24-2803 (1933). [4] While it is true that a private citizen may effect an arrest under the requirements listed in [3] above, only a peace officer has the authority to make an arrest by serving a warrant. Coleman v. State, 121 Ga. 594 (3) (1904). In summary, it is my official opinion that: 1. Ga. Code 39-114 and 24-204 (1933) do not give authority to arrest a sheriff in criminal matters. 2. (a) A peace officer may arrest a sheriff for the commission of a crime, just as he would a private citizen; (b) A private citizen, including the coroner, may arrest the sheriff if (1) the crime is committed in his presence, (2) the offense is a felony, and (3) the offender is attempting to escape. 3. Any citizen may effect a "citizen's arrest" of another, except upon electors, members of the General Assembly, and militiamen, if (1) the crime is committed in the citizen's presence, (2) the offense is a felony, and (3) the offender is attempting to escape. 4. Only a peace officer may effect an arrest by serving a warrant. OPINION 73-94 To: Secretary of State June 15, 1973 Re: Hospital service nonprofit corporations; nonprofit medical service corporations; renewal and amendment of charters. This is in reply to your request for guidance as to the proper procedure to be used for the renewal and amendment of charters of hospital service nonprofit corporations and nonprofit medical service corporations which were chartered prior to the enactment of the Georgia Insurance Code of 1960 (Ga. Code Ann. Title 56, based upon Ga. Laws 1960, p. 289 et seq.). Chapters 56-17 and 56-18 of the Georgia Code now respectively govern the incorporation and operation of hospital service nonprofit corporations and nonprofit medical service corporations. The first task in resolving the question presented is to determine whether these Chapters also apply to such corporations which were chartered prior to 1960, when Ga. Code Ann. Title 56 was enacted. If they do apply, 73-94 164 then using these Chapters, the procedure for renewal and amendment must be determined. With respect to hospital service nonprofit corporations, it is clear that the General Assembly intended that Chapter 56-17 comprehensively govern all such corporations even if chartered before the enactment of Ga. Code Ann. Title 56. This intention is expressed in Ga. Code Ann. 56-1721 which states: "All corporations organized and operating as nonprofit hospital service corporations in the State of Georgia at the time of the enactment of this Chapter shall be deemed nonprofit hospital service corporations existing and operating under and subject to the provisions of this Chapter." Ga. Laws 1960, pp. 289, 576. See also Barnett v. D. 0. Martin Co., 191 Ga. 11, 11 S.E.2d 210 (1940); Lanham v. City of Rome, 136 Ga. 398, 71 S.E. 770 (1911). It is also my official opinion that the General Assembly intended that Chapter 56-18 apply to all nonprofit medical service corporations regardless of the date of incorporation. With the enactment of this Chapter, the General Assembly set out a comprehensive plan for the government of such corporations. At the same time it repealed the prior laws governing these corporations. See Ga. Laws 1960, pp. 289, 758, 759. With the prior laws no longer in effect, it is clear that the General Assembly intended that Chapter 56-18 govern all nonprofit medical service corporations regardless of when they were chartered. See Barnett v. D. 0. Martin Co., supra, and Lanham v. City of Rome, supra. Second, it is my official opinion that the procedures set forth in Ga. Code Ann. 56-1509 govern the renewal and amendment of these charters. Though Chapters 56-17 and 56-18 are silent as to the method of renewal and amendment, both refer to Ga. Code Ann. 56-1504, 56-1505, and 56-1506 as governing the charters of such organizations. Ga. Code Ann. 56-1506 (1) states: "All corporate powers and privileges to insurance companies shall be issued by the Secretary of State, upon the terms, liabilities, restrictions, and subject to all the provisions of this Title and laws and Constitution of this State ...." Also, Ga. Code Ann. 56-1504 (3) (b) provides that the charters issued under that section shall be renewable. Reading these provisions together, it is clear not only that the General Assembly conferred the power to renew and amend on such organizations but also that such actions are governed by Ga. Code Ann. Title 56. Since Ga. Code Ann. 56-1509 provides for both renewal and amendment of corporate charters, it is my official opinion that the provisions of that section govern the renewal and amendment 165 73-95 of charters of hospital service nonprofit corporations and of nonprofit medical service corporations, regardless of when such corporations might have been organized. OPINION 73-95 To: Adjutant General, Department of Defense June 15, 1973 Re: National Guard; sovereign immunity applied to damages to individual caused by guardsman on duty. I write in response to your recent letter requesting an opinion concerning possible liabilities of the State of Georgia, the Georgia Department of Defense and the Georgia National Guard for damages to a private individual which are occasioned as a result of acts by a National Guardsman while engaged in State Guard activities. As I understand your request, a National Guardsman, while engaged in State Guard activity during the recent snow storm in middle Georgia, was involved in a motor vehicle collision with a civilian vehicle while the guardsman was driving a National Guard vehicle. Your question concerns the liability of the state and its various departments to the owner of the damaged civilian vehicle. Under existing state law, the state cannot be sued without its consent and consent to suit can only be expressly given by the General Assembly. Crowder v. Department of State Parks, 228 Ga. 436 (1971). The immunity of the state also inures to departments of the state. Crowder, supra, at 437. I am not aware of any enactments of the General Assembly expressly waiving immunity from suit for the Department of Defense or the Georgia National Guard. Accordingly, it is my opinion that the State of Georgia, the Department of Defense, and the Georgia National Guard, which is an integral part of Georgia's Department of Defense, are not liable for civil damages for tortious acts of National Guardsmen while engaged in State Guard activities. The only recourse an injured private party has at present is through the Claims Advisory Board and the General Assembly. As to the particular guardsman involved in an incident with a private individual in which damage to that individual's property occurs while the guardsman is engaged in State Guard activity, the General Assembly has specifically provided that the guardsman shall not be civilly or criminally liable for acts done in the performance of his duties. See Ga. Laws 1955, pp. 10, 101; 1969, p. 228 (Ga. Code Ann. 86-1101). Again, the only recourse that the injured private individual would have would be through the Claims Advisory Board and the General Assembly. 73-96 166 If a private individual suffers damages caused by a guardsman while engaged in federal activity, the individual has an administrative claims remedy for payment of up to $15,000 in damages. 32 U.S.C. 715. However, this procedure is not available where the guardsman is acting solely in a state and nonfederal capacity. OPINION 73-96 To: Chairman, State Board of Pardons & Paroles June 18, 1973 Re: Probation of sentence to imprisonment contingent upon payment of fine plus restitution to victim. You have asked for my official opinion in regard to the following situation: a certain inmate who was sentenced to a seven-year term for the crime of burglary was granted probation by the sentencing court. As a condition precedent to probation, however, the court stipulated that he should pay restitution to his victims in addition to a stated fine. The court made no provision for the inmate to pay the amounts in question on any installment arrangement. Some three weeks after sentence was imposed, when the inmate had not made the payments on which his probation was conditioned, he was transferred to a state correctional institution to commence service of his prison term. With regard to the facts outlined in the preceding paragraph, you have asked whether the particular inmate's sentence was rendered unconstitutional if he was "not afforded an opportunity to pay his fine commensurate with his ability to do so." Specifically, you have asked me to consider whether the following three United States Supreme Court decisions have any bearing on his case: Williams v. Illinois, 399 U.S. 235, 26 L.Ed.2d 586 (1970); Morris v. Schoonfield, 399 U.S. 508, 26 L.Ed.2d 773 (1970); and Tate v. Short, 401 U.S. 395, 28 L.Ed.2d 13 (1971). Since the United States Supreme Court issued the Morris decision in the form of a brief per curiam decision embodying the same principles expressed in Williams and Tate, the discussion in the following paragraphs will apply to that decision as well but will make no further reference to it. In Williams v. Illinois, supra, the Supreme Court considered the effect of a statute which authorized the imprisonment of a defendant upon the defendant's nonpayment of a fine specified as part of his sentence, the term of his imprisonment to extend until the fine could be worked off on a per diem basis. The court held that the statute violated the Fourteenth Amendment insofar as it forced an indigent defendant to serve an aggregate prison term greater than the statutory 167 73-96 maximum term provided for his offense. Since the inmate who is the subject of your concern would not be forced to serve a term greater than that provided by law by reason of his failure to perform the condition precedent to probation, the Williams decision is inapplicable to his case. Before considering whether Tate applies to him, however, I should point out that the Williams decision did not hold that the underlying sentence itself was unconstitutional. Rather, the court merely decided that a statutory means of enforcing a portion of that sentence violated the Fourteenth Amendment in certain instances of its operation. See Frazier v. Jordan, 457 F.2d 726 at 730 (1972), where the United States Court of Appeals for the Fifth Circuit recognized this important analytical distinction. Similarly, the court did not address the constitutionality of the underlying sentence in Tate v. Short, supra. There the court directed ,its attention to a situation where a fine was the only permissible sentence for certain offenses. In that situation, trial courts traditionally sent indigents to jail for a term that lasted until the fine could be discharged, with each day of imprisonment attributed some dollar equivalence. Citing Williams v. Illinois, the court held that such a practice was unconstitutional. There are several factors which may distinguish Tate from the case which you have described. First, in Tate the court declared that it was unconstitutional for a trial court to "[impose] a fine in the sentence and then automatically [convert] it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full." 401 U.S. 395 at 398. In your inmate's case, however, the trial court did not sentence him to pay a fine. Instead the court sentenced him to a term in prison but offered him the chance to serve his sentence while retaining his liberty in a conditional form upon payment of a stated sum. When the inmate could not avail himself of the benefit offered to him, his sentence took effect as originally imposed. Thus, while in Tate state action caused the defendant's sentence to be converted to his disadvantage, here the trial court gave to the inmate an opportunity to convert his prison term to a more favorable sentence by his own efforts. Just because the inmate could not take advantage of that opportunity, it does not necessarily follow that his present incarceration is unconstitutional. Even assuming that the inmate was effectively offered the alternative of a fine or imprisonment, Tate would not necessarily govern his case. For Tate does not stand for the proposition that a court must inevitably offer an indigent defendant an opportunity to pay a fine on an installment plan. vVhat the court found to be repugnant in Tate was the fact that indigent defendants sentenced to pay a fine had their sentence automatically converted to imprisonment simply 73-97 168 because they could hot pay the entire amount immediately. Where as here the inmate was allowed a period of some three weeks in which to make payment, his case may fall outside of the scope of the Tate decision. Such a result would be especially compelling if the inmate had made no effort to seek employment or taken any other step toward satisfaction of his condition precedent during the time allotted him. In this regard see Garrett v. State, 125 Ga. App. 744 (1972). There the Court of Appeals held that neither Williams nor Tate applied to an abandonment case in which the preparation of a pre-sentence report delayed imposition of the defendant's sentence for some 20 days after a verdict of guilty had been returned against him. After reviewing that report, the sentencing court gave the defendant a suspended sentence conditioned upon his immediate payment of $200 to his wife on the date sentence was imposed. When the defendant could not meet that payment, his sentence became effective, and he was sent to jail. The Court of Appeals held that since, given the nature of his case, the defendant must have known that payment of some amount of money would be required of him, and since he had made no effort to acquire the necessary funds during the 20-day period between verdict and sentence, his imprisonment did not suffer any constitutional defect. Based on the above, it is therefore my official opinion that it is probable that both the sentence and incarceration of the inmate you have described are constitutionally valid. OPINION 73-97 To: Deputy Director, State Merit System of Personnel Administration June 18, 1973 Re: Public officers and employees; reimbursement for expenses to applicant for employment incurred for interview. This is in response to your letter of May 21, 1973, requesting a determination as to the legality of the State Merit System reimbursing applicants for actual expenses incurred while interviewing for a state position. This request is somewhat analogous to the situation discussed in an earlier opinion issued by this office. Op. Att'y Gen. 72-63. That opinion considered whether state employees could be reimbursed for moving and relocation expenses when that employee is permanently transferred at the direction of his department. After stating that no statutory authority could be found to allow the reimbursement, the opinion held that since moving and relocation expenses are not 169 73-98 part of a state employee's compensation he may not be reimbursed. For your convenience, I am enclosing a copy of the referenced opinion. The same reasoning applies to this situation. I am unaware of any statute which specifically authorizes the payment to an applicant for expenses incurred while interviewing for a state position. Also, it seems quite obvious that payment of expenses incurred by one who is no more than a prospective employee could not be compensation. See Op. Att'y Gen. 72-63. Consequently, it is my official opinion that the State Merit System of Personnel Administration does not have the authority to reimburse applicants for expenses incurred while interviewing for a state position. OPINION 73-98 To: Commissioner of Agriculture June 18, 1973 Re: Food; label on packaged meat to indicate place where packaged. I write in response to your letter of May 29, 1973, which requested an opinion concerning the labeling provisions of the Georgia Food Act (Ga. Laws 1956, p. 195), as amended. As I understand the question, the Department of Agriculture has issued interpretive guidelines which require that packaged meats bear a label which contains, among other things, the name and city of the manufacturer, packer or distributor of the meat. I further understand that your department has determined that in the case of a retail food chain, the home office city of the retail food chain is sufficient for the city of the manufacturer, packer or distributor. You pointed out in your letter that the Georgia Retail Food Dealers Association contends that the department has placed an erroneous interpretation on the labeling provisions of the Georgia Food Act in that the Act requires greater specificity on the label than do the present guidelines, and that the b'Uidelines issued concerning the naming of the store in the case of retail chain stores are discriminatory as to independent grocers. The applicable provisions of the Georgia Food Act state: "A food shall be deemed to be misbranded: ... (e) If in package form, unless it bears a label containing (1) the name and place of business of the manufacturer, packer, or distributor, ..." Ga. Laws 1956, p. 195; Ga. Laws 1966, p. 180 (Ga. Code Ann. 42-311 (e)). Your department, in issuing guidelines implementing the above statutory provision as to packaged meats, has issued the following interpretive guideline: 73-98 170 "The following information must appear legibly on the label: ... (c) The name of the store and the city. In the case of a retail food chain, the home office city is the proper city name to use." A reading of the Georgia Food Act, as amended, would seem to indicate that the General Assembly intended for the well-being and safety of the public consumer to be the primary concern of the Act. This purpose was accomplished by imposing reasonable regulations and restrictions on manufacturers, packers and distributors of food products, among those being the requirement that packaged meat bear a label identifying the name and place of business of the manufacturer, packer or distributor. It would only seem reasonable to interpret the statute to require that the name and place of business of the manufacturer, packer or distributor be such as would identify the establishment that packaged the meat. As your department has interpreted this provision, the name and place of business would be the home office in the case of a retail food chain. If such an interpretation is valid, it would seem to serve no valid purpose for a retail chain to state the home office city of the chain because it could always be readily obtainable from any branch store, and knowledge of the home office city would be of no assistance in determining where the particular packaged meat was in fact packaged. The question must be asked as to how a consumer would interpret a label on a packaged meat. The Georgia Food Act further provides that a food is misbranded "if any word, statement, or other information required by or under authority of this Act to appear on the label or labeling is not prominently placed thereon with such conspicuousness ... and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use." Ga. Laws 1956, p. 195; Ga. Laws 1966, p. 180 (Ga. Code Ann. 42-311 (f)). (Emphasis added.) A person buying a package of hamburger in a Valdosta branch of a retail food chain would have some reasonable question as to where his hamburger had been packaged when the label stated the chain store name and Atlanta, Georgia. He would not know whether the meat had been packaged in Valdosta or Atlanta. Furthermore, it is certainly conceivable, and under the present guidelines permissible, for the meat to have been packaged at another outlet of the retail food chain, located in another city, and distributed through the Valdosta branch of the Atlanta chain. Lastly, the relationship of licensing of food sales establishments and ''places of business" for labeling consideration must be examined. The Food Act requires all food sales establishments to be licensed. Ga. Laws 1971, p. 66 (Ga. Code Ann. 42-303.1). Furthermore, food sales establishments are defined to include "place of business." Ga. 171 73-99 Laws 1971, p. 66 (Ga. Code Ann. 42-302 (1)). Accordingly, it would seem to follow that all "places of business" concerned with labeling must at the same time be licensed as food sales establishments. If a retail chain store has but one license at its home office for all of its outlets, then the collective chain stores comprising the chain might be considered as but one "place of business." However, if each branch of a retail chain is licensed separately, then I would be of the opinion that each is a "place of business" and that the requirement that a package of meat contain a label bearing the name and place of business of the manufacturer, packer or distributor means that the "place of business" for labeling purposes could not be broader than "place of business" for licensing purposes. Accordingly, as a minimum, the label on packaged meats must give the name and place of business of the specific food sales establishment which has a license necessary for its very operation. In summary, it is my official opinion that a label on a package of meat, in order to comply with the Georgia Food Act, must contain the name and place of business of the specific establishment where the food is packaged. Accordingly, merely placing the name of a retail food chain and the home office city on a label would not comply with the provisions of the Georgia Food Act. OPINION 73-99 To: Commissioner, Department of Offender Rehabilitation June 18, 1973 Re: Juvenile offenders; custody; revivor of repealed statute by repeal of repealer. You have requested my official opinion on whether a 17-year-old may now be committed indefinitely to the custody of the Youthful Offender Division of the Department of Offender Rehabilitation as the result of action taken by the General Assembly in its 1973 Session. Section 2 (g) of the Youthful Offender Act of 1972 originally defined the term "youthful offender" to include "all male and female offenders who are 17 but less than 25 years of age at the time of the conviction." Ga. Laws 1972, p. 592 (Ga. Code Ann. 77-346 (g)). In an opinion issued on September 18, 1972 (Op. Att'y Gen. 72-124), I stated that that definition conflicted with Ga. Laws 1972, pp. 1251, 1252 (Ga. Code Ann. 99-209 (a) (5)) which took effect subsequently to the Youthful Offender Act, and which provided that on July 1, 1972, only the Department of Human Resources' Division of Social Services could accept custody of noncapital felons and misdemeanants under age 18. As the necessary consequence of that finding, it followed that Ga. Laws 1972, pp. 1251, 1252, implicitly repealed the Youthful 73-99 172 Offender Act so far as it applied to persons under 18 years of age. At its 1973 Session, however, the General Assembly repealed Ga. Laws 1972, p. 1251, and substituted in its place a substantially revised version of that Act applicable to noncapital felons under 17 years of age, a class which will be extended to include those under 18 on July 1, 1974. 1973 Act No. 282, Ga. Laws 1973, p. 563 (H.B. 553). In addition, the new Act vested sentencing judges with discretion to treat persons under 17 (18 after July 1, 1974) convicted of certaindesignatedcrimes as youthful offenders. Unless 1973 Act No. 282 revived the original age provisions of the Youthful Offender Act when it lowered the age of those offenders over whom the Division of Social Services must accept responsibility, 17year-olds convicted during the interim period from April 13, 1973, until July 1, 1974, would find themselves occupying a rather peculiar status. Both the Youthful Offender Act and 1973 Act No. 282 provide for indefinite periods of confinement, the length of which lies within the sole discretion of the custodial agency. See Op. Att'y Gen. 73-36. Persons sentenced under those Acts who cooperate with their custodians' rehabilitative efforts can expect their term of imprisonment to be significantly shorter than that of persons sentenced under the standard penalty provision applicable for the same offense, even if paroled at the earliest possible date. If 1973 Act No. 282 did not revive the original language of the Youthful Offender Act, a 17-year-old would find himself ineligible for the same favorable sentence which both a 16-year-old and an 18-year-old could enjoy. If his trial judge chose not to place him on probation, the judge's only remaining option would be to sentence him to imprisonment among the general prison population, rather than at the special facilities maintained for those with indefinite sentences. This situation may be avoided, however, by resort to a well-established common law principle of statutory construction. Since their earliest decisions, Georgia courts have recognized "that when a repealing statute is itself repealed, the first statute is revived, without formal words for that purpose." Warren v. Suttles, 190 Ga. 311 (1940), citing Harrison v. Walker, 1 Ga. 32 (1846). That rule applies not only to express repeals, but to repeals by implication as well. See Wood v. State, 68 Ga. App. 43, 49 (1942). Yet the courts have evoked the rule only in situations where the later repealing statute substitutes a scheme of legislation which does not deal with the entire subject to which the prior repealing statute related, but instead opens a gap which may be logically filled by the original Act. Butner v. Boifeuillet, 100 Ga. 743, 749 (1897). The three statutes in question present just such a case. 'Vhen the General Assembly enacted the Youthful Offender Act in Ga. Laws 1972, p. 1251, it established a scheme under which all persons 25 years 173 73-100 old or younger at the time of conviction could receive beneficial treatment designed to restore them as productive members of society as soon as possible. One year later, the General Assembly reconsidered that part of the scheme which made it mandatory for those under 18 to receive such treatment, and to receive it from one particular agency to the exclusion of all others. Yet by postponing the time when all persons under 18 could no longer be sentenced to the general prison population, the legislature did not evince any change in its prior intent. Instead, it merely recognized the Division of Social Services' need for additional time to prepare itself to handle those on the fringe of young adulthood. Since the legislature has not manifested any purpose contrary to that of affording beneficial treatment to offenders under 25 years of age, and since I can find no reason for differentiating between 17-year-olds and the other members of that class, I construe 1973 Act No. 282 as reviving the original language of Section 2 (g) of the Youthful Offender Act of 1972, subject to re-limitation on July 1, 1974. It is therefore my opinion that a person who is convicted of a felony during the period from April13, 1973, until July 1, 1974, and who is 17 years old on the date of his conviction may be sentenced indefinitely to the custody of the Youthful Offender Division of the Department of Offender Rehabilitation. OPINION 73-100 To: Secretary of State, Commissioner of Securities June 20, 1973 Re: Securities; condominium project with rental pool arrangement. A written inquiry from a Florida developer has prompted you to request an official opinion on "whether a condominium with a rental pool arrangement would be subject to registration under the Georgia Securities Act." (Ga. Code Ann. Ch. 97-1, based upon Ga. Laws 1957, p. 134.) As I see it, the answer to that question involves two issues: (1) Does a scheme which combines the sale of a condominium with a rental pool arrangement constitute a "security" as defined by the Georgia Securities Act of 1957; and (2) Does such a scheme fall within any of the statutory exemptions from the registration requirements of that Act. In the following paragraphs I shall answer each of those questions in turn. (1) IS THE SCHEME A SECURITY? Section 1 (i) of the Georgia Securities Act of 1957 [Ga. Code Ann. 97-102 (i), amended by Ga. Laws 1970, p. 450] defines "security" in part as 73-100 174 "any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of indebtedness, investment certificate, certificate of interest or participation, certificate of interest in oil, gas, or other mineral rights, collateral trust certificate, preorganization certificate or subscription, preincorporation certificate or subscription, transferable share, investment contract, voting-trust certificate, or beneficial interest in title to property, profits or earnings, or any other instrument commonly known as a security. . . ." (Emphasis added.) No meaningful attempt to apply this definition to a particular scheme can be made without an understanding of the facts involved. Since your inquirer did not provide you with any of the details of his project, I must assume that his plan would not vary from the typical rental pool arrangement. Under such an arrangement, each purchaser of a condominium would execute an agreement with his seller (or the seller's agent) authorizing the seller to rent the condominium to third parties during those months in which the purchaser is not in residence. All rental income and expenses (including the seller's commission) would then be pooled in a common fund. At the end of each year, the seller would distribute a ratable share of the fund to each participating purchaser, regardless of whether the purchaser's condominium is ever actually rented. See Securities & Exchange Commission, Securities Act of 1933, Release No. 5347 (January, 1973). Ordinarily, a real estate transaction such as the sale of a condominium would not seem a proper subject for regulation under either state or federal securities laws. Yet when such a transaction has been coupled with a collateral business agreement between seller and purchaser such as a rental pool contract, courts have often treated the entire deal as an "investment contract"- one of the examples of a "security" set forth in both the Securities Act of 1957 and the Securities Act of 1933. The United States Supreme Court propounded the classic test for an "investment contract" in the landmark ease of S.E.C. v. lV. J. Howey Co., 328 U.S. 293 (1945). There a developer had sold off citrus groves in narrow strips averaging little more than an acre. Prospective purchasers were warned that it was not feasible to invest in a grove without making service arrangements and were encouraged to accept sales and service contracts in a single package. Under the service contracts, a corporation controlled by the developer received leasehold interest in the acreage and full control over cultivation, harvest, and marketing, the landowner retaining no right of entry to market the crop on his own. All produce was pooled, and each landowner received his allocable share of the profits. On these facts, the court held that such an offer of 175 73-100 profit sharing without any active participation in management or operation came within the purview of the Securities Act. "Investment contract" thus included any "contract, transaction, or scheme whereby a person invests money in a common enterprise and is led to expect profits solely from the efforts of the promoter or third party." 328 U.S. at pages 298, 299. Although none of the myriad federal decisions which have applied the Howey test to a wide range of investment schemes have specifically addressed a condominium rental pool, many of them have involved pooling arrangements so similar as to leave very little possibility that a condominium rental pool would not be termed an "investment contract" under federal law. See Loss, Securities Regulation (Second Edition), Volume I, pages 489-491, and Volume IV pages 2500-2502; see also S.E.C. v. Flag Ship Motor Hotel of Ocean City, Maryland, Inc., 1967 S.E.C. Litigation Release No. 3691 (D. Md.) 1967. In fact, the Securities and Exchange Commission has recently announced that "the offering of participation in a rental pool arrangement" is one of several factors which will cause the commission to view a condominium scheme as a security. In 1969, the Georgia Supreme Court adopted the Howey formula as the principal test for "investment contracts" under the Georgia Act as well. Georgia Market Centers, Inc. v. Fortson, 225 Ga. 854 (1969). Although that court has not had occasion to apply the test since that case, I feel that if it were ever faced with the rental pool scheme such as the one in question, its decision would probably accord with the weight of authority under the Securities Act of 1933. It is therefore my opinion that a condominium, when combined with a typical rental pool feature, constitutes a "security" as defined by Section 1 (i) of the Georgia Securities Act of 1957 (Ga. Code Ann. 97-102 (i)). (2) IS REGISTRATION NECESSARILY REQUIRED? It does not necessarily follow that a scheme which constitutes a security under Georgia law must always be registered with the Commissioner of Securities. If a scheme falls within any of the exemptions provided in Section 5 of the Georgia Securities Act (Ga. Code Ann. 97-106), or if the sale of such a scheme fits any of the exempt transactions set forth in Section 6 (Ga. Code Ann. 97-107), the registration requirements of the Act would not apply. I have been furnished no information which would indicate that this particular scheme would qualify as an exempt security. It is possible, however, that the offering could be exempt under Section 6 (j) of the Act, if offers are directed to no more than 25 persons 73-101 176 in the State of Georgia, and if the appropriate request and affidavits are filed with the Commissioner of Securities as required by that section. If the provisions of that section do not in fact apply to this particular case, the developer's scheme would have to be registered in accordance with Section 3 (Ga. Code Ann. 97-104) just as any other offering of securities. OPINION 73-101 To: State Superintendent of Schools June 22, 1973 Re: Education; expenditure of federal funds. This responds to your letter dated June 18, 1973, relating to the expenditure of Federal Title I ESEA funds for other than "educational purposes." I understand from your letter and from a discussion with your staff members that employees of the State Department of Audits have questioned expenditures of certain Title I ESEA funds for healthrelated purposes on the ground that such expenditures are not "for educational purposes" as that expression is used in the Constitution and laws of Georgia. You and your staff members have assured me that federal law and regulations allow the expenditure of the subject funds for the health-related purposes in question. Georgia law is quite explicit in its requirement that the "common school fund" shall be kept "separate and distinct from other funds" and "shall be used for educational purposes and none other." Ga. Laws 1969, p. 721 (Ga. Code Ann. 32-942). Furthermore, the Supreme Court has made it abundantly clear that expenditures for the school lunch program are not "for educational purposes" within the meaning of the provisions of the Constitution of Georgia specifying the purposes for which the State of Georgia may levy and collect taxes. Wright v. Absalom, 224 Ga. 6 (1968). However, I am of the opinion that the foregoing familiar principles do not demand that funds derived from federal sources be expended only for those purposes for which state tax funds lawfully may be expended. The real problem, as I see it, is one of legal proof. If, in given circumstances, it is provable that no state funds have been expended for improper purposes and, instead, that only funds derived from federal sources have been expended for purposes authorized by federal law or regulations, I would not understand wherein lies the illegality. 177 73-103 OPINION 73-102 June 22, 1973 Note: This opinion was sent forth to clarify certain language in Op. Att'y Gen. 73-82. See footnote in that opinion. OPINION 73-103 To: State Revenue Commissioner June 29, 1973 Re: Income tax; procedure for handling unclaimed refund checks. This is in response to your request for an opinion on whether or not any legal impediments exist in creating uniform Department of Revenue procedures for handling tax refund checks modeled after the statutory provisions governing the handling of refunds of withholding taxes found in Ga. Laws 1960, pp. 7, 32 (Ga. Code Ann. 92-3315b). Based upon the information you have provided, your specific question concerns the method of handling unclaimed refund checks returned to the Department of Revenue, and unreturned refund checks which are not presented for payment. Georgia Laws 1960, pp. 7, 32 (Ga. Code Ann. 92-3315b), generally provides that the Commissioner will publish the names of claimants whose checks are returned and if such checks are not claimed within 90 days after publication, the claims represented by the checks will be deemed abandoned. Similarly, if a refund check is not presented for payment within 180 days after its date, the check is void and the claim covered by the check will be deemed to have been abandoned. Similar statutory provisions relating to other taxes do not exist. Under Ga. Laws 1937-38, Extra. Sess., pp. 77, 91 (Ga. Code Ann. 92-8427), the State Revenue Commissioner is charged with the responsibility of administering and supervising all the tax laws of the state and establishing reasonable rules and regulations found desirable to carry out such responsibility. In the absence of statutory authority to the contrary, it is my opinion that rules and regulations providing for stop payments to be issued after 180 days and the return of funds to the general treasury would be deemed reasonable. Based upon the foregoing, it is my official opinion that the uniform Department of Revenue procedures for the handling of tax refund checks which you propose to institute can be adopted. 73-104 178 OPINION 73-104 To: Director of Corrections June 29, 1973 Re: Prisons and prisoners; work-release inmates employed on county projects. You have requested my opinion whether state inmates assigned to a county correctional institution may participate in a work-release program as summer substitutes for vacationing employees of the county's public works department. As I understand the proposal from your letter and from discussion with your staff, inmates have previously performed uncompensated work for the county but not in the proposed positions. Vacation substitutes previously have been part-time, casual employees hired from the public. The proposal would involve some departure from a conventional work-release situation. Inmates would wear prison uniforms, and they might be as much as five years from discharge instead of two as is usually the case. Guard supervision will be like that usually conducted over trustees at work on county projects. The inmates would be housed as usual. Under the work-release legislation, the Director of Corrections may " ... extend the limits of the place of confinement of a prisoner .. . [in order to enable the prisoner to] ... work at paid employment .. . in the community on a voluntary basis while continuing as a prisoner of the institution to which he is committed . . ." Ga. Laws 1968, pp. 1399, 1400-01, as amended, Ga. Laws 1969, p. 602 (Ga. Code Ann. 77-309 (b)). I recently construed this language as not authorizing work-release status and compensation for prisoners "for work ... within the confines of the institutions to which they have been assigned." Op. Att'y Gen. 73-7. The rationale for that opinion is contained in part in the following sentence: "To construe an Act establishing a "work-release program" as establishing a non-release compensation program simply goes beyond the expressed intention of the General Assembly." The thought was that in its work-release provisions, the General Assembly contemplated an inmate's being at work "in the community." The regulations of the Board of Corrections are in accord. See Rules and Regulations Ch. 125-3-4. On the facts as described in the proposal above, I am of the opinion 179 73-105 that the limits of confinement for the participating inmates would not be extended as envisioned in the work-release authorization. The situation would be within the rationale of the previous opinion of January 19. In addition I should point out that the board's own regulations require "separate housing" for work releasees (Rules and Regulations 125-3-4.04(3)), and that exceptions to the rule against work-release for inmates with more than two years to discharge must be "fully justified." Id. at 125-3-4.03(8). This opinion should not be read to say a political subdivision can never be the employer in a work-release program. On the other hand, no opinion is expressed as to the propriety of the use of county funds in this instance or as to whether the particular inmates would be eligible for county employment. The opinion is limited to the narrow decision that, as proposed, the plan does not comport with the work-release authorizations. OPINION 73-105 To: Commissioner, Department of Transportation June 29, 1973 Re: Transportation Department; advance of funds to State of Alabama. This is in reply to your June 15, 1973 request for my official opinion, in which you inquired whether the Department of Transportation can advance $5,000 to the State of Alabama, acting as contract manager for several states, before the work covered by the contract is begun. As I understand the facts, several southern states and the Federal Highway Administration together wish to employ a consultant to conduct a study of the feasibility of a multi-mode transportation corridor between Kansas City, Missouri and Brunswick, Georgia. To simplify the contracting process and insure the uniformity of the study, the Alabama Highway Department has been named as the contract manager. It has been determined that the value of this work to Georgia's highway programs is $5,000 and this is the amount the department had tentatively agreed to pay. In return, the department is to receive copies of the consultant's report and the benefits gained therefrom. Because of the burden on its funds to do otherwise, Alabama has requested that each participating state, and the Federal Government, contribute its share of the cost before the contract is awarded. The Memorandum of Understanding to be entered into with Alabama makes it clear that the consultant will be paid only as the work progresses and any excess funds will be returned to the states. 73-106 180 On the facts as outlined above, I find no legal prohibition against the department's paying these funds to Alabama in advance of the consultant's contract being awarded. Some members of your department have expressed concern that Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402 (1)) may prohibit this transaction. That section reads in pertinent part: "The General Assembly shall not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association." This language was construed in State Highway Department v. Bass, 197 Ga. 356 (1944), as follows: "[W]here there has been involved a consideration for the legislative grant, either past, present or future, both this court and the Supreme Court of the United States have denominated such acts as not being within the scope of prohibited acts covered under the term 'donation' or 'gratuity.' " 197 Ga. at 370. Because the future work to be performed by the consultant is sufficient consideration for this expenditure, based upon the facts of this situation, it is my official opinion that the department may advance the $5,000 in question to the State of Alabama. As this opinion is based upon a peculiar set of facts, it should not be construed to apply to any other albeit similar factual situation. OPINION 73-106 To: Commissioner of Agriculture July 9, 1973 Re: Georgia Agrirama Development Authority employees not carried as state employees. This is in reply to your request for my opmwn concerning the status of prospective employees of the Georgia Agrirama Development Authority which was created by Ga. Laws 1972, p. 1161 (Ga. Code Ann. Ch. 5-33). You have posed two questions, to-wit: 1. Can any person employed by the Agrirama Authority be placed for administrative purposes only as an employee of the Georgia Department of Agriculture to receive all benefits normally accruing to state employees? 2. After the first or second year of operation of the authority, can the employees concerned be transferred from employment with the Department of Agriculture into a separate Agrirama employ- 181 73-107 ment unit and continue to receive all benefits of other state employees? The Act creating the authority provides in Section 11 (Ga. Code Ann. 5-3311) that the authority is assigned to the Department of Agriculture for "administrative purposes and supportive purposes." The authority is also empowered by Section 5 of the Act (Ga. Code Ann. 5-3305) to employ officers, agents, and employees and fix their compensation. You advise that included in the appropriation for the Department of Agriculture for fiscal year 1974 is an amount of $605,588 for the line item "Agrirama." The funds appropriated in that item are apparently for the use of the authority. In answer to your first question, I am aware of no authority which would permit employees to be carried as employees of the Department of Agriculture for administrative purposes if they are in fact employees of the Agrirama Authority and are paid from funds appropriated for the use of the authority. Employees of the Department of Agriculture may furnish administrative and supportive services to the authority. However, those employees who are in fact employed by the authority may not at the same time be deemed for any purpose to be employees of the Department of Agriculture. See Op. Att'y Gen. 71-30 in which I stated my opinion that an employee transferring from a state agency covered by the State Merit System to a state authority would be resigning from state service. Since your first question is answered in the negative, the matters raised by your second question are not reached. OPINION 73-107 To: Director, Environmental Protection Division, Department of Natural Resources July 10, 1973 Re: Water fluoridation; administration of law. This is in answer to your recent letter in which you requested advice as to whether the 1973 Fluoridation Act (Ga. Laws 1973, p. 148) is to be administered by the Water Supply Section, Environmental Protection Division of the Department of Natural Resources. The question whether the 1973 Fluoridation Act should be administered by the Department of Natural Resources or by the Department of Human Resources is raised by the language of the Act, which, while amending "Code 88-2603," erroneously states that that Code section relates to the powers and duties of the Board of Human Resources ("An Act to amend Code section 88-2603, relating to the power and duties of the Board of Human Resources ..."). 73-107 182 "Code 88-2603," enacted in 1964, established a water supply quality control scheme for all public and community water supply systems in the state, and originally empowered the Board of Health to establish standards of quality for water and to establish policies governing purification and treatment of water. Ga. Laws 1964, pp. 499, 637, as amended (Ga. Code Ann. 88-2601 et seq.). The Reorganization Act of 1972 transferred the water supply quality control functions and responsibilities of the Board of Health to the Department of Natural Resources, and provided that "unless inconsistent with this Act, any reference in Georgia laws to the functions transferred in this section means the Department of Natural Resources." Ga. Laws 1972, pp. 1015, 1057 (Ga. Code Ann. 40-35158). Both the title and the substantive portions of the 1973 Fluoridation Act include references to the water supply quality control function which was transferred to the Department of Natural Resources by the 1972 Reorganization Act. Chapter 12 of the Reorganization Act, which deals with the creation of the Department of Human Resources, specifically excludes from that department the functions relating to water supply quality control and transfers these functions to the Department of Natural Resources. Ga. Laws 1972, pp. 1015, 1047 (Ga. Code Ann. 40-35104). Consequently, a construction that the Department of Natural Resources rather than the Department of Human Resources is meant by the language of the Fluoridation Act is not inconsistent with the Fluoridation Act. Where a statute is plain, and susceptible of but one natural and reasonable construction, there is no reason to construe it. Rayle Electric Membership Corp. v. Cook, 195 Ga. 734, 25 S.E.2d 574 (1943). However, when the language is not clear, the legislative intent must be ascertained by construing the amended as well as the amending Act. Gazan v. Heery, 183 Ga. 30, 187 S.E. 371 (1936); Atlantic Coast Line Railroad Co. v. Postal Telegraph-Cable Co., 120 Ga. 268, 48 S.E. 15 (1904). The 1972 Reorganization Act was intended to provide for the orderly transfer of certain functions of existing agencies to other departments. All water supply quality control functions of "Code 88-2601 et seq." were explicitly transferred to the Department of Natural Resources. Ga. Laws 1972, pp. 1015, 1057. The reference in the 1973 Fluoridation Act to Code 88-2603 as "an Act relating to the power and duties of the Board of Human Resources" is clearly an erroneous descriptive clause. Such an error "does not vitiate a statute as long as the means of identifying the person or thing intended, apart from the erroneous description, are clear, certain and convincing." Black on Interpretation of Laws 80, cited in Lee v. Tucker, 130 Ga. 43, 60 S.E. 164 (1907). 183 73-108 It is evident that an amendment to Code 88-2603 was "the thing intended" and not a removal of the water supply quality control function to the Department of Human Resources. The Code section, prior to amendment, had 11 subsections. The Fluoridation Act, by its terms, was to be ''a new subsection (12).'' Also, the numbered reference to the Code section would be sufficient to identify and to amend the statute without the descriptive phrase, " ... relating to the power and duties of the Board of Human Resources ...." The error is one that can be easily corrected. In Youmans v. The State, 7 Ga. App. 101, 66 S.E. 383 (1909), the court states: " ... while that construction of a statute is to be preferred which will preserve all the parts of the enactment under consideration, it is nevertheless a cardinal rule of construction that the legislative intent shall be effectuated, even though some of the verbiage of the enactment may have to be eliminated from the text." The Fluoridation Act, read without the descriptive phrase, is sufficiently clear to fully effectuate the legislative intent, expressed in the 1972 Reorganization Act, i.e., that all water supply quality control functions come within the purview of the Department of Natural Resources. The answer to the question whether the Fluoridation Act should be administered by the Water Supply Section of the Environmental Protection Division can also be found in the 1972 Reorganization Act. The Act particularly assigns the water supply quality control functions to the Environmental Protection Division (Ga. Laws 1972, pp. 1015, 1058), and gives the Director of the Division the power to " ... organize, plan and execute the functions vested in the Division by this Plan." Ga. Laws 1972, p. 1266. (See Ga. Code Ann. 40-35162.) Such power allows the director, in his discretion, to charge the Water Supply Section of the Environmental Protection Division with the administration of the 1973 Fluoridation Act. Therefore, it is my opinion that the 1973 Water Fluoridation Act is part of the Water Supply Quality Control Act which is to be administered by the Water Supply Section, Environmental Protection Division of the Department of Natural Resources. OPINION 73-108 To: Secretary of State July 12, 1973 Re: Land sales; statute regulating out-of-state sales. [Withdrawn and Replaced by Op. Att'y Gen. 73-157.] 73-109 184 OPINION 73-109 To: Chairman, State Board of Pardons and Paroles July 13, 1973 Re: Prisons and prisoners; computation of consecutive sentences for parole. This is in reply to your recent letter requesting an opinion on the parole eligibility of a defendant required to serve consecutive sentences of one year under state custody, 12 months under county custody, followed by an additional year under state custody. Ga. Laws 1943, pp. 185, 187, as amended by Ga. Laws 1973, p. 1294 (Ga. Code Ann. 77-511), give the State Board of Pardons and Paroles power to grant reprieves, pardons, and paroles over prisoners serving sentences imposed by a court of this state. Accordingly, the location of a prisoner within the state at the time of parole does not diminish the plenary power of the board. It is my official opinion that it is proper to compute parole eligibility of one serving consecutive sentences under state and county control on the same basis as a single sentence equal in duration to the total time of the consecutive sentences. OPINION 73-110 To: Governor of Georgia July 13, 1973 Re: Motor vehicle carriers; conditions for issuance of over-height permits. This is in reply to your letter dated July 9, 1973, in which you ask whether annual permits may be issued to automobile carriers using standard equipment authorizing the operation of equipment up to, but not exceeding, 14'6" in height. You have also inquired of the conditions, if any, under which such permits may be issued. The general height limitation imposed upon a vehicle, with or without a load, is 13'6". Ga. Laws 1973, pp. 959, 1095 (Ga. Code Ann. 95A-956). The provisions of Ga. Laws 1973, pp. 959, 1100 et seq. (Ga. Code Ann. 95A-961) empower the Commissioner of Transportation or 185 73-111 his designee to issue, in his discretion, annual permits which authorize the operation of vehicles of a height not exceeding 14'6" used for transporting automobiles upon the following conditions: (1) receipt of an application in writing and the appropriate fee; (2) a demonstration of "good cause" (Ga. Laws 1973, pp. 959, 1100) for the issuance of the permit; (3) a determination that the load to be transported "is of such nature that it is a unit which cannot be readily dismantled or separated" (Ga. Laws 1973, pp. 959, 1100); (4) a determination that operation of the vehicle does not threaten to "unduly damage a road or any appurtenance thereto" (Ga. Laws 1973, pp. 959, 1100); and (5) submission of proof of insurance or an indemnity bond in the specified amount and payable upon the conditions set out in Ga. Laws 1973, pp. 959, 1102, if the height of the vehicle is between 13'6" and 14'6". A provision which is somewhat similar to the fourth condition specified above authorizes the commissioner or his designee to withhold a permit "when necessary to assure against undue damage to the road foundation, surfaces or bridge structures. . .". Ga. Laws 1973, pp. 959, 1101. Based upon the foregoing, it is my opinion that the Commissioner of Transportation or his designee is empowered to issue annual permits which authorize the operation of vehicles which do not exceed a height of 14'6" for hauling automobiles when the conditions specified above have been met and the requisite factual determinations specified above have been made. OPINION 73-111 To: Commissioner, Department of Natural Resources July 16, 1973 Re: Georgia Historical Commission; Board of Commissioners abolished. This is in response to your recent letter asking whether Act No. 687 of the 1973 Legislative Session abolished the Board of Commissioners of the Georgia Historical Commission. Act No. 687 amended the Executive Reorganization Act of 1972, Ga. Laws 1972, p. 1015 et seq., adding the following language: 73-111 186 "Section 1535. Georgia Historical Commission functions transferred. All of the functions of the Georgia Historical Commission and its Board of Commissioners created in Ga. Laws 1951, p. 789 et seq., as amended, are transferred to the Department of Natural Resources." Ga. Laws 1973, p. 1260. The Executive Reorganization Act of 1972 provides in Section 30 that "Any agency all of whose functions are transferred to another agency or agencies as provided in this Act is abolished as a separate agency." Ga. Laws 1972, pp. 1015, 1032 (Ga. Code Ann. 40-3530). "Agency" is defined as "any officer, department, division, bureau, board, commission or agency in the Executive Branch of State Government." Ga. Laws 1972, pp. 1015, 1018 (Ga. Code Ann. 40-3503). Since Act No. 687 (Ga. Laws 1973, p. 1260) transferred all functions of the Historical Commission and the Board of Commissioners to the Department of Natural Resources, it is clear from Section 30 of the Reorganization Act that the board is abolished as a separate agency. The only remaining question is whether the board could still exist, without any functions, as part of the Department of Natural Resources. Among the declared purposes of the Executive Reorganization Act of 1972 are "to promote economy and efficiency in the operation and management of State Government ... to effect the groupings of state agencies into a reasonable number of departments primarily according to function . . . and to eliminate overlapping duplication of effort within the Executive Branch of State Government." Ga. Laws 1972, pp. 1015, 1016 (Ga. Code Ann. 40-3502 (3)). The preservation of an agency or board which no longer has functions would be a frustration of the clearly expressed intent of the Act. It is significant that the legislature clearly indicated that certain agencies, boards, and commissions were to be continued under the Reorganization Act. For example, the Act provides that the Franklin D. Roosevelt Warm Springs Memorial Commission is continued and assigned to the Department of Natural Resources for administrative purposes only. Ga. Laws 1972, pp.1015, 1026(Ga. Code Ann. 40-3518). If the legislature had intended to preserve the status of the Historical Commission and its board, it could have used such language. While Act No. 687 contained a clause repealing "all laws and parts of laws in conflict with this Act" (Ga. Laws 1973, p. 1260), it did not expressly repeal Ga. Laws 1951, p. 789 et seq. (Ga. Code Ann. Ch. 40-8A), as amended, which established the Historical Commission and the Board of Commissioners. However, it would appear that the portion of the statute pertaining to the functions of the Board of Commissioners has been repealed by implication. In Nash v. National Preferred Life Ins. Co., 222 Ga. 14, 21, 148 S.E.2d 402, 407 (1966), the court stated: 187 73-112 "While repeal by implication is not favored, a statute will be held to have repealed a prior statute where the latter is clearly inconsistent and contrary to the most recently enacted law or where the latter enactment appears to cover the entire subject-matter and give expression to the whole law on the subject." The Supreme Court has held that the Executive Reorganization Act of 1972 had "but a single subject-matter, that is, governmental reorganization," and that "All of its parts were germane to a single purpose." Carter v. Burson, 230 Ga. 511 (1973). This analysis and the stated purposes of the statute lead to the conclusion that the Reorganization Act is within the rationale of Nash, supra, by expressing the "whole law" on the subject of reorganization of the executive branch of state government. Furthermore, as pointed out in the Nash case, legislative intent is the controlling factor in a question of repeal by implication. The legislative intent of the Reorganization Act, as amended, strongly indicates that conflicting portions of prior statutes dealing with governmental organization and structure are repealed by implication. In summary, the language of Act No. 687 of the 1973 Legislative Session (Ga. Laws 1973, p. 1260), when read with Section 30 of the Executive Reorganization Act of 1972, Ga. Laws 1972, pp. 1015, 1032, clearly indicates that the Board of Commissioners of the Georgia Historical Commission is abolished as a separate agency. The continued existence of the board without any functions would be inconsistent with the purposes of the Executive Reorganization Act. For these reasons, ~tis my official opinion that the Board of Commissioners of the Goergia Historical Commission has been abolished. OPINION 73-112 To: Secretary of State July 20, 1973 Re: Land sales; approval of plans by local agencies. A subdivider developing a large tract of land normally develops it in sections. He develops one section and registers it with your office under the Georgia Land Sales Act of 1972 (Ga. Laws 1972, p. 638; Ga. Code Ann. Ch. 84-61) and later develops another part of the tract and consolidates this registration with his earlier registration. You seek my official opinion as to whether under Section 3 (1) of the Georgia Land Sales Act of 1972 (Ga. Laws 1972, pp. 638, 645; Ga. Code Ann. 84-6103 (1)) you must require approval from the local governing authority or the appropriate Area Planning and Develop- 73-113 188 ment Commission for each consolidation in the master plan of the subdivision. Before lots in a subdivision may be offered for sale, Ga. Code Ann. 84-6103 requires that the subdivider file an application for registration with the Secretary of State providing certain information. Ga. Code Ann. 84-6103 (1) requires the subdivider to provide: "A certificate of approval of compliance of the proposed development of the subdivision by the local governing authority, if it has a planning and zoning ordinance in effect, that the subdivision is in compliance therewith or the certificate of approval of the proposed development of the subdivision by the appropriate Area Planning and Development Commission when the subdivision is located in a county or municipality in which no planning and zoning ordinance is in effect." Obviously, before a local agency may determine that the proposed development complies with the specified standards, it must have sufficient information on which it may base any such determination. Since the local agency may determine that a master plan including only a lesser tract to be immediately developed fails to set forth the facts necessary to determine the compliance of any part other than the lesser included tract, it is my official opinion that the local agency may withhold judgment as to any part other than that tract. On the other hand, where the local agency determines that the master plan itself provides sufficient information, it may determine whether the plan as a whole complies with the appropriate standards. OPINION 73-113 To: Deputy Commissioner, Department of Banking and Finance July 20, 1973 Re: Investment companies; reporting obligations under Disposition of Unclaimed Property Act. This is in reply to your request for advice as to the meaning of the term "investment company" in Section 2(c) of the Disposition of Unclaimed Property Act, Ga. Laws 1972, p. 762 (Ga. Code Ann. Ch. 85-20). Under that Act, all persons holding property which is presumed abandoned under Sections 4 to 10 (Ga. Code Ann. 85-2004 to 85-2010) must file a report with respect to that property with the State Revenue Commissioner. See Ga. Code Ann. 85-2012. Persons holding "property held or owing by a banking or financial organization," which is presumed abandoned under Section 3 of the Act, 189 73-113 must file a report with respect to such property with the Commissioner of Banking and Finance; a copy of the report must be filed with the State Revenue Commissioner. See Ga. Code Ann. 85-2013. Thus, in interpreting the term "investment company" we are determining not whether a report must be made but with whom the report must be filed. The pertinent terms are defined as follows: "(a) 'Banking organization' means any bank, regulated certificated bank, trust company or savings bank engaged in business in this state. * * * "(c) 'Financial organization' means any savings and loan association, building and loan association, credit union, or investment company, engaged in business in this state." Ga. Code Ann. 85-2002. Except with respect to "investment company," it is readily apparent that the business activities of the organizations listed in Section 2(a) and (c) fall within the subject-matter of the regulatory responsibilities of the Commissioner of Banking and Finance. It is apparent that the General Assembly desired that reports of those organizations under the Disposition of Unclaimed Property Act be made to an agency vested with expertise in those matters. The term "investment company," which standing alone has no fixed meaning under Georgia law, should be interpreted in accordance with this purpose. While that term is statutorily defined by federal law (15 U.S.C. 80a-3(a)), there is no extrinsic or intrinsic indication that the General Assembly intended to refer to that definition. Instead, given the evident purpose of the General Assembly, it is apparent that the use of the term "investment company" is explicable only as a reference to fiduciary investment companies as defined in Section 1(c) of the Fiduciary Investment Company Act, Ga. Laws 1970, p. 515 (Ga. Code Ann. Ch. 109-9). Such fiduciary investment companies, as do all other organizations listed in Section 2(a) and (c) of the Disposition of Unclaimed Property Act, fall within the subjectmatter of the regulatory authority of the Commissioner of Banking and Finance. It is, therefore, my official opinion that the term "investment company" in Section 2(c) of the Disposition of Unclaimed Property Act refers to fiduciary investment companies, as defined by Section 1(c) of the Fiduciary Investment Company Act (Ga. Code Ann. 109-902 (c)). Property held or owing by those organizations, or by any other organization listed in Section 2(a) or (c) and presumed abandoned under Section 3, must be reported in accordance with Section 13 of the Act. All other persons must report in accordance with Section 12 of the Act. 73-114 190 OPINION 73-114 To: Commissioner, Department of Transportation July 20, 1973 Re: State Transportation Board; per diem of members; conflict in statutes. This is in reply to a recent request by the Honorable Emory C. Parrish, Deputy Commissioner, for my opinion as to what proper compensation, expenses and subsistence are to be paid members of the State Transportation Board after July 1, 1973. This question arises due to the fact that the General Assembly during this past session passed two Acts which are in apparent conflict on this point. Act No. 354, Ga. Laws 1973, pp. 701, 706, provides in part that members of the State Transportation Board shall receive the sum of $36 per diem for each day such member is in attendance at a meeting of the board plus certain travel allowances and expenses. This Act became effective July 1, 1973. Also passed by the General Assembly this past session was Act No. 679, Ga. Laws 1973, pp. 947, 986, the Georgia Code of Public Transportation, which provides in part that members of the State Transportation Board shall receive the sum of $20 per diem for each day of actual attendance at meetings of the board and committee meetings, and for each day actually spent in studying the road needs of the various counties within their respective districts, except that no member shall receive compensation for more than four days of study per year for each county in his district plus certain travel allowances and expenses. This Act also became effective July 1, 1973. There appears to be an irreconcilable conflict between the two statutes on the amount of per diem to be paid members for attendance at board meetings and in the manner of calculating travel expenses. It has been long established that when there is an irreconcilable conflict between two statutes, the latter of the two must prevail and the former give way. Macon and Birmingham Railroad Co. v. Gibson, 85 Ga. 1, 20 (1890). While both statutes involved here became effective as law on the same date, it is possible to determine which of the two was in fact the last expression of the General Assembly. It is noted that Act No. 679 was approved on April 18, 1973, while Act No. 354 was approved on April 13, 1973. Also, Act No. 679 was finally passed by the General Assembly on March 15, 1973; Act No. 354 was finally passed on February 23, 1973. Thus, it is evident that Act No. 679, Ga. Laws 1973, pp. 947, 986, was in fact the last expression of the General Assembly and must control in the area of irreconcilable conflict. 191 73-115 In addition, it is a general rule of statutory construction that a section of an Act must be read and considered in context with the entire Act to better determine the intent of the legislature. Atlanta & West Point Railroad Co. v. Wise, 190 Ga. 254 (1940). See also, J. Sutherland, Statutes and Statutory Construction, 33.11 (1972). Act No. 679, the new Georgia Code of Public Transportation, is a lengthy Act which revises, classifies and consolidates all laws concerning public transportation and the administration thereof in the state. The particular portion of the Act which sets out the per diem for board members is by comparison to Act No. 354 considerably more detailed and explicit in its direction. Therefore, it is my opinion that Act No. 679, Ga. Laws 1973, pp. 947, 986 (Ga. Code Ann. 95A-306 (f)), controls as to the proper amount of compensation, expenses and subsistence to be paid State Transportation Board members after July 1, 1973. OPINION 73-115 To: Director, Office of Planning and Budget July 20, 1973 Re: Public officers and employees; per diem upon transfer in lieu of reimbursement of expenses not authorized. This is in reply to your request for an official opinion on the following question: "Is there any legal prohibition against the reimbursement of food and lodging expenses based on a per diem allowance, where those expenses were incurred in conjunction with a relocation as authorized by Act 356 of the 1973 General Assembly and by the appropriate OPB rules, regulations and policies?" You point out that you as Director of the Office of Planning and Budget have proposed, but not promulgated, regulations under which the employee will be paid at the basic rate of $20 per day for each day of authorized travel incident to transfer to a new place of employment. The answer to the question presented depends upon a proper construction of Act No. 356, Ga. Laws 1973, p. 708, which in Sections 1 and 2 authorizes the basic scheme and in Section 3 grants regulatory authority to the Office of Planning and Budget with respect to the program. It is fundamental that the exercise of regulatory authority must be undertaken within the framework of Sections 1 and 2 of the Act. Hawes v. Phillips, 122 Ga. App. 714 (1970). 73-115 192 Section 1 of the Act provides that a state agency " ... may reimburse [a transferred] employee of state government for expenses incurred for transportation of household goods and expenses incident to change of residence...." [Matter in brackets added.] Section 2 of the Act imposes enumerated conditions "[b]efore the reimbursement of such expenses to transferred employees may take place....n Since throughout the Act, including the pertinent language of the title thereof, the General Assembly has defined the authorization in terms of "reimbursement" of "expenses incurred," it is my opinion that regulations of OPB may not provide for payments to an employee which are not within that definition. In other words, the basic authorization for "reimbursement" of "expenses incurred" precludes utilization of a procedure which includes payments to a transferred employee which do not "reimburse" for "expenses incurred." In stating that basic construction of the statute, it becomes apparent that a "per diem allowance" of $20 per day is not a reimbursement of expenses incurred. The words which the General Assembly has employed contemplate a payment to an employee for a disbursement or expenditure by the employee. Under the procedure set forth in the proposed regulations, payments are made to an employee regardless of whether he has incurred an expense and regardless of the amount of expense incurred. It is my official opinion that such a procedure is not authorized by the underlying statutory authority. As your request notes, the proposed regulations also permit payments to an employee for travel in his automobile at the rate of $.10 per mile. These payments, as you note, do not necessarily correspond to an actual cash outlay by an employee. Nevertheless, it is my opinion that such mileage payments are within the authorization of Ga. Laws 1973, p. 708. Mileage payments have been historically recognized as a method of reimbursement for the costs of operating an automobile, such costs being often difficult to ascertain. See, e.g., Ga. Laws 1950, p. 224 (repealed by Ga. Laws 1972, p. 1125) (Ga. Code Ann. 40-2002); United States v. Smith, 158 U.S. 346, 349-52 (1895); see also Caswell v. New York Central R.R., 263 Mich. 18, 248 N.W. 641 (1937); Board of Commissioners of Weston Countyv. Blakely, 20 Wyo. 259, 123 P. 72, 77 (1912). Actual payments for food and lodging, on the other hand, do not present such problems. It is my opinion that the proposed regulations governing mileage payments are within the statutory authority of Ga. Laws 1973, p. 708. Finally, it should be clear that nothing in this opinion otherwise limits the broad authority of OPB under the Act to determine, by 193 73-116 regulation, those expenses of an employee which are to be considered 11expenses incident to change of residence," to determine under what circumstances relocation expense will be reimbursed, or to establish maximum limits on payments to employees for such expenses. OPINION 73-116 To: Commissioner, Department of Transportation July 20, 1973 Re: Transportation Department; expenditures for Multi-State Transportation Route Advisory Board not authorized. This is in reply to your letter dated July 13, 1973, in which you ask whether the Department of Transportation is authorized to spend funds to defray the operating expenses of the Multi-State Transportation Route Advisory Board. The Multi-State Transportation Route Advisory Board, hereinafter referred to as the 11board," is composed of seven voting members from each of six states plus two ex-officio nonvoting members from each of the six states. Bylaws of the Multi-State Transportation Houte Advisory Board, Paragraph III. It is understood that the voting members of the board are private citizens from each of the states concerned. It is also understood that you and the Governor are ex-officio members of the board from the State of Georgia and that your counterparts in the remaining five states occupy similar positions on the board. The purpose of the board is to 11foster, promote, and develop a Multi-State Multi-Mode Transportation Route" (Bylaws of the Multi-State Transportation Route Advisory Board, Paragraph II A) traversing a corridor between Brunswick, Georgia and Kansas City, Missouri. The bylaws of the board provide that it shall engage in the following activities: (1) encourage the states of Georgia, Alabama, Mississippi, Tennessee, Arkansas, and Missouri to undertake feasibility and justification studies for the development of the proposed highway; (2) establish a working relationship with highway officials in each of the said states and with officials of federal agencies and with national transportation or travel organizations; (3) develop and sponsor research projects in the affected states the object of which is to further justify and develop the proposed highway; and (4) obtain commitments from elected and appointed state and federal officials to the proposition of improving transportation access from the southeast Georgia coast to the midwestern portion of the United States. Bylaws of the Multi-State Transportation Route Advisory Board, Paragraph II B. 73-116 194 It is understood that the board will direct its attention to the development of a transportation facility which includes a highway and other modes of travel and the transport of goods. It is understood that Georgia's "share" of the operating expenses of the board is $20,000. The General Assembly has, by resolution, endorsed the efforts being made by the Multi-State Transportation Route Advisory Board and has authorized the Governor and the Commissioner of the Department of Transportation "to participate in the purposes of said board." House Resolution No. 228, 1973 Session of the General Assembly of Georgia. With exceptions not relevant to this inquiry, the power of taxation may be exercised only "to construct and maintain . . . a system of state highways ...".Ga. Const., Art. VII, Sec. II, Par. I(6) (Ga. Code Ann. 2-5501 (6)). Money derived from taxation may be spent only for a purpose for which a tax is authorized to be levied. Mulkey v. Quillian, 213 Ga. 507 (1957). Moreover, tax money collected for the construction and maintenance of the State Highway System may not be spent for any purpose unless it is "a necessary or usual adjunct to the construction of highways." Mulkey v. Quillian, Id. at 510. Highways are normally planned, constructed, and maintained without providing tax money to organizations, either public or private, to encourage and promote the development or construction of the road. In a separate clause, the Constitution forbids the grant of "any donation or gratuity in favor of any person, corporation or association." Ga. Const., Art. VII, Sec. I, Par. II (1) (Ga. Code Ann. 2-5402). In a situation somewhat analogous to the one at hand, the court has held that an appropriation to a Chamber of Commerce, the object of which was to render services to the community as a whole by attracting conventions and new industries, was forbidden by the gift provision of the Constitution. Atlanta Chamber of Commerce v. McRae, 174 Ga. 590 (1931). The court has also noted that "The object of an expenditure may be a very worthy cause and highly beneficial to the general public, but this will not suffice where the constitutional authorization for such expenditure is lacking." Wright v. Absalom, 224 Ga. 6, 8 (1968). In view of the foregoing, it is my official opinion that the General Assembly's authorization to you and the Governor to participate in the purposes of the Multi-State Transportation Route Advisory Board may not include the expenditure of state funds to defray the operating expenses of the board. Your letter also contained two specific inquiries about the mechanics of financing the board. It does not appear necessary to answer those questions, as your first inquiry has been answered in the negative. 195 73-117 OPINION 73-117 To: Commissioner, Department of Human Resources July 23, 1973 Re: Prisons and prisoners; county public works camps not "detention facilities" regulated by minimum standards set by Department of Human Resources. You have asked whether county public works camps (also known as county correctional institutions) are included within the definition of "detention facilities" in Ga. Laws 1973, p. 890, which gives the Department of Human Resources the authority to prescribe minimum standards for certain detention facilities. For the following reasons, it is my official opinion that county public works camps are not included within the definition of "detention facilities." Ga. Laws 1973, p. 890, which requires the Department of Human Resources to set minimum standards for certain detention facilities, defines "detention facility" as "a municipal or county jail used for the detention of prisoners charged with or convicted of either a felony, misdemeanor or municipal offense." If a facility meets this definition, then it is subject to the Department of Human Resources' regulations governing sanitation and health. Section 3. The generally accepted definition of "jail" is probably broad enough to include county public works camps. However, after examining other provisions of the law regarding county public works camps, I am of the opinion that the General Assembly did not intend to include them within the definition of detention facility. County public works camps (now called county correctional institutions, Ga. Laws 1972, p. 838; Ga. Code Ann. 27-2536, 77-312.1) are already subject to the rules and regulations promulgated by the Board of Corrections. Ga. Laws 1956, p. 161, as amended (Ga. Code Ann. 77-312). Ga. Code Ann. 77-312 (b) provides: "All public works camps established by the counties as herein provided shall be subject to supervision and control by the State Board of Corrections, and said board shall promulgate rules and regulations governing the administration and operation thereof." This authority to promulgate rules and regulations for works camps extends to rules governing health and sanitation, since the Board of Corrections is required to adopt such rules for prisoners coming into its 73-118 196 custody. Ga. Laws 1956, pp.161, 170(Ga. Code Ann. 77-307), provides: "(b) The State Board of Corrections shall adopt rules governing the assignment, housing, working, feeding, clothing, treatment, discipline, rehabilitation, training and hospitalization of all prisoners coming under its custody." Since Ga. Laws 1973, p. 890 and Ga. Laws 1956, p. 161 cover the same subject-matter, i.e., health and sanitation standards for detention facilities, they must be construed together. Ryan v. Commissioners of Chatham County, 203 Ga. 730 (1948); Ga. Code 102-102 (9). The two statutes together establish a comprehensive system of supervision of county and municipal detention facilities with respect to health and sanitation standards. The Board of Corrections supervises county public work camps because Corrections' prisoners are assigned to those camps on a formula developed by the board. Ga. Laws 1956, pp. 161, 174. Under the new statute, the Department of Human Resources will exercise the same responsibilities over the ordinary county and municipal jails which were not previously subject to regulation or supervision. Another reason for construing the new Act, Ga. Laws 1973, p. 890, to exclude county public works camps is that the opposite construction would require either dual regulation of public works camps or implicit repeal of the Board of Corrections' authority. Neither result was apparently intended by the legislature and is not necessary for a reasonable construction of the statute. Ga. Code 102-102 (9). Therefore, it is my official opinion that county public works camps are not included in the definition of detention facilities and are to be regulated, as they have been in the past, by the Board of Corrections. OPINION 73-118 To: Commissioner, Department of Administrative Services July 25, 1973 Re: Reorganization; effect upon compensation of Director of Purchasing and Supplies Division. This is in reply to your request for advice on the question of whether under Section 10 of the Executive Reorganization Act, Ga. Laws 1972, p. 1015 (Code Ann. Ch. 40-35), you may increase the compensation of the present Director of the Purchasing and Supplies Division of the Department of Administrative Services to the level set by you for other division directors within the department. The question involved arises because of the historical background underlying the question. Prior to the Executive Reorganization Act, 197 73-118 the compensation of the Supervisor of Purchases was governed by Ga. Laws 1953, p. 613, as amended (Ga. Code Ann. 89-707). Op. Att'y Gen. 71-104. When that office was abolished by virtue of the transfer of its functions to the Department of Administrative Services (Ga. Laws 1972, pp. 1015, 1032, Section 30 (Ga. Code Ann. 40-3530), Op. Att'y Gen. 72-121), the person then holding that position was appointed by the Commissioner of the Department to the administratively created position of Director of the Purchasing and Supplies Division. Section 31 of the Executive Reorganization Act provides in pertinent part as follows: "Unless otherwise provided by this Act, each state officer or employee affected by the reorganization of the Executive Branch of State Government under this Act shall be entitled to all rights which he possessed as a state officer or employee. ... This section is not intended to create any new rights for any state officer or employee, but to continue only those rights in effect before the effective date of the applicable provision of this Act." (Ga. Code Ann. 40-3531.) (Emphasis added.) Section 10 of the Act in pertinent part provides as follows: "Compensation for unclassified positions within any agency created by this Act shall be established by the official in charge of the agency unless otherwise provided by law." (Ga. Code Ann. 40-3512.) (Emphasis added.) This position in question, Director of the Division of Purchasing and Supplies, Department of Administrative Services, is an "unclassified position." Ga. Laws 1972, pp. 1015, 1068, Section 2501 (Ga. Code Ann. 40-35212); Ops. Att'y Gen. 72-58, 72-81. The question first involved is whether Section 31 applies to the present holder of the position so as to make his compensation determinable by reference to Ga. Code Ann. 89-707. In my opinion, it does not. Section 31 of the Executive Reorganization Act preserves "rights" of state officers and employees existing on the effective date of the Act. Since the General Assembly abolished the office of Supervisor of Purchases, however, it also prospectively abolished all perquisites of that office. "It is the general and well-recognized rule that the authority which possesses the power to create an office has, in the absence of some provision of law passed by a higher authority, the implied power to abolish the office it created." Rivers v. Hailey, 199 Ga. 38 (1) (1945). 73-119 198 Thus, the former Supervisor of Purchases had no "right" to continued employment by the state or to continued employment at any particular level of compensation which would be protected by Section 31 of the Executive Reorganization Act. See Op. Att'y Gen. 72-121. His continuing in state employment subsequent to the Act occurred solely by virtue of his employment by the newly created Department of Administrative Services, not by virtue of Section 31. A fortiori, his compensation in that new position was and is determined by the Commissioner of that Department under Section 10 of the Act and Section 31 imposes no restriction on that determination. It is, therefore, my official opinion that Section 31 of the Executive Reorganization Act does not restrict the power of the Commissioner of the Department of Administrative Service under Section 10 of that Act to determine the salary level for the unclassified position of Director of the Purchasing and Supplies Division because the holder of that position was Supervisor of Purchases on the effective date of the Executive Reorganization Act. OPINION 73-119 To: Commissioner, Department of Transportation July 26, 1973 Re: Georgia Highway Authority; reconveyance by quitclaim to state or governmental subdivisions rights-of-way deeded to it when bonds paid in full. This is in reply to your recent letter wherein you ask whether the Georgia Highway Authority is authorized to reconvey rights-of-way which are deeded to it by the state, counties, or municipalities once the bonds on the particular project are paid in full. You stated in your letter that the laws continuing the existence of the Highway Authority (Ga. Laws 1973, p. 947; Ga. Code Ann. Ch. 95A-12 of the Ga. Code of Public Transportation) provide for the conveyance of state, county, or municipal obtained rights-of-way to the authority as rights-of-way for authority projects. On several occasions various officials have raised the question whether on liquidation of the bonds, the rights-of-way would revert or could be conveyed by the authority back to the state, county, or municipality which originally owned the fee. Since you now have several projects for which counties are acquiring rights-of-way, you ask that I issue an opinion on this question. Prior to the recent enactment of the Georgia Code of Public Transportation, Ga. Laws 1973, p. 947, there was no specific grant of author- 199 73-119 ity for the reconveyance of rights-of-way deeded to the Georgia Highway Authority, although Op. Att'y Gen. 71-716 (attached hereto) logically construed the authority's general power to "dispose of, in any manner, real and personal property of every kind and character" (Ga. Laws 1967, p. 385; former Ga. Code Ann. 95-2304 (b)) ( 95A-1204 (b) of the Georgia Code of Public Transportation) as authorizing such a conveyance. In order to more clearly express its intent that the authority have the power to reconvey rights-of-way back to the local governmental body which would have the maintenance responsibility, the General Assembly enacted 95A-1211 of the new Georgia Code of Public Transportation, Ga. Laws 1973, pp. 947, 1142: "When each and all of the bonds, interest coupons, and obligations of every nature whatsoever, for the payment of which the revenues of any given project or projects have been pledged, in whole or in part, either originally or subsequently, either primarily or secondarily, directly or indirectly, or otherwise, have been paid in full, or a sufficient amount for the payment of all such bonds and other obligations and the interest thereon to the maturity thereof shall have been set aside in trust for the benefit of such bondholders or other obligees ... the authority may convey by deed all right, title, and interest in and to such project to the Department [of Transportation] as part of the State Highway System and if not part of the State Highway System then to the political subdivision having maintenance responsibility for the project. ..." (Emphasis added.) Therefore, based on the foregoing, it is my official opinion that once the bonds issued by the authority on a project or projects have been liquidated in accordance with 95A-1211, supra, the authority is authorized to reconvey by quitclaim deed the rights-of-way on the particular project to the governmental body which has maintenance responsibility for the project. As the Georgia Highway Authority is a public corporation (Ga. Laws 1973, pp. 947, 1128 ( 95A-1201 (a) of the Ga. Code of Public Transportation)), it may convey property pursuant to a resolution of the authority, by having a quitclaim deed signed by its chairman and attested or countersigned by its secretary with the authority's seal attached. At the approporate time this department will be happy to prepare the quitclaim deeds to accomplish any desired reconveyances. 73-120 200 OPINION 73-120 To: Joint Secretary, State Examining Boards July 27, 1973 Re: State Board of Accountancy may not use public funds as a contribution to defray expenses of meeting of national organization of similar boards. This is in reply to your request for advice on whether the Georgia State Board of Accountancy may expend public funds, either appropriated funds or those derived from fees received by the board, to defray the expenses of hosting a meeting of the National Association of State Boards of Accountancy. With respect to that aspect of your inquiry relating to funds derived from fees received by the Board of Accountancy, it is clear that such funds may not be employed for the purpose outlined but must be paid into the General Fund of the State Treasurer. Ga. Canst., Art. VII, Sec. II, Par. III; Art. VII, Sec. IX, Par. IV (Ga. Code Ann. 2-5503, 2-6204). See Ops. Att'y Gen. 1948-49, p. 631; 71-42. With respect to that aspect of your inquiry relating to appropriated funds, it is similarly clear that a contribution to a national organization to defray the expenses of a meeting of the organization is not permitted. Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402); see Ops. Att'y Gen. 68-110, 71-42. Ga. Code Ann. 84-202, in pertinent part, authorizes the State Board of Accountancy to " ... confer with similar boards of other states, or attend meetings for the purpose of obtaining information for the advancement of the profession and the standards thereof." Ga. Laws 1935, pp. 85, 87. That provision authorizes the State Board of Accountancy to expend appropriated funds for the board's expenses in undertaking such activities. See Op. Att'y Gen. 68-110. That provision, however, does not and could not authorize the board to make a general contribution to a national organization for the purposes outlined above. The extent to which such a provision might authorize the State Board to incur more specifically defined expenses in connection with such a meeting is not presented in your inquiry. It is, therefore, my official opinion that the State Board of Accountancy may not employ public funds to make a contribution to a national organization for the purpose of defraying the expenses of a conference of that national organization. 201 73-121 OPINION 73-121 To : Governor of Georgia July 30, 1973 Re: Motor vehicles; operation of nonresident vehicles. By letter you ask two questions regarding the relationship between a new statute regulating nonresidents' drivers licenses and automobile license plates (Ga. Laws 1973, p. 342) and the Multi-State Reciprocal Agreement Governing the Operation of Interstate Vehicles. You ask: "(1) Does the current Multi-State Reciprocal Agreement cover this new law'? "(2) Does the current Multi-State Reciprocal Agreement cover laws enacted after the effective date of the agreement'?" In brief, it is my opinion that the answer to both questions is "yes," insofar as member states are concerned. I will elaborate. The statute in question amends Ga. Code (1933) 68-221, which provided that a nonresident's vehicle properly registered and licensed in his own state could be operated in Georgia for 30 days without having to obtain Georgia registration and license. This has been construed to exempt vehicles of nonresidents which are not in Georgia for a continuous period of over 30 days. Ops. Att'y Gen. 1958-59, p. 211. The new statute provides that, notwithstanding the 30-day exemption, nonresidents who are employed in Georgia, or whose children are entered in the public schools here, must obtain Georgia registration within 10 days after the employment or education commences. Thus, even if the vehicle is never continuously in Georgia for a period of 30 days, Georgia registration is required. That is, the critical factor is not how long the vehicle is in Georgia, but whether the owner is employed in Georgia or whether his children are entered in Georgia public schools. The period of time his vehicle is operated in Georgia is totally irrelevant. If a nonresident coming within one of the two categories (employment or education) wishes to operate his vehicle in Georgia at all, he must register it here within 10 days. In effect, of course, the nonresident can work here or enter his children in the public schools and not register his vehicles. However, any vehicles which he intends to use in Georgia can only be operated without such registration for the first 10 days following the critical event. As you have pointed out, Georgia is a signatory to an agreement governing the operation of interstate vehicles, along with about 14 other states. It was adopted by the Georgia Reciprocal Committee and the Georgia Public Service Commission on March 29, 1963, pursuant to authority granted by Ga. Laws 1937-38, p. 617, as amended (Ga. Code 73-121 202 Ann. 68-1001 to 68-1006). By that Act, as amended, the Georgia legislature made clear that obstacles to interstate motor vehicle travel were to be removed. The words of the 1959 amendment are demonstrative of this intention: "The Governor ... is ... directed to negotiate and consummate ... reciprocal agreements ... whereby [non]residents ... may have the same or substantially the same privileges or exemptions in the operation of their said motor vehicles in this state as residents of this state may have and enjoy in the operation in such other states of their motor vehicles duly licensed and registered in this state." Ga. Laws 1959, p. 25; Ga. Code Ann. 68-1001. The purpose of the agreement is clearly enunciated at its commencement: " ... to grant reciprocity subject to exceptions noted herein, to contracting jurisdictions, as provided in this agreement, by the exemption from registration and payment of all fees and taxes in each other contracting jurisdiction when such vehicles are used in any type of interstate vehicle operation in any other such contracting jurisdiction." Section I A. The agreement expressly applies, in part, to privately owned and operated passenger vehicles properly licensed in the jurisdiction of the owner's bona fide residence. As to them, it is provided: "Privately owned and operated passenger vehicles porperly licensed by any one of the reciprocating jurisdictions shall be permitted to operate freely between the several jurisdictions." Section IV A. In other sections, the "base" of a vehicle and whether it is "proper y registered or licensed" are defined. Thus the clear intention is the avoidance of multiple registration for vehicles based in one of the signatory states and operated in any of the other signatory states. The plain language of both the agreement and the 1973 law render them irresolvably in conflict insofar as the states which are parties to the agreements are concerned. Consequently, the question is whether the agreement prevails over the contrary statute adopted in 1973. The answer is that it does, because it is a bindng contract, made pursuant to authority given by the legislature, the terms of which contract prohibit deviations from the contractual arrangement as exemplified by the 1973 statute. Art. I, Sec. X, Par. I of the United States Constitution provides: "No state shall ... pass ... any law impairing the obligation of contracts...." Ga. Code 1-134. 203 73-121 A compact made by two or more states in the manner permitted by the Federal Constitution is in legal effect "a living interstate agreement." Petty v. Tennessee-Missouri Bridge Com., 359 U.S. 275, 279 (1959). As quoted in Petty, the court in Hinderlider v. La Plata River and C. Creek Ditch Co., 304 U.S. 92, 104 (1938), spoke of two methods under our Constitution of settling controversies between states. One is the compact: "The compact-the legislative means-adapts to our Union of sovereign states the age-old treaty-making power of independent sovereign nations. Adjustment by compact without a judicial or quasi-judicial determination of existing rights have been practiced in the Colonies, was practiced by the states before the adoption of the Constitution and has been extensively practiced in the United States for nearly half a century before this court first applied the judicial means [original jurisdiction of Supreme Court, Art. III, 2, U.S. Constitution] in settling the boundary dispute in Rhode Island v. Mass., 12 Pet. 657, 723-25." An interstate compact may not be in any manner amended, altered or modified without the consent of all the parties to the contract. By entering into an interstate compact, a state surrenders pro tanto a portion of its own sovereignty. United States v. Bekins, 304 U.S. 27 (1938). Where an interstate compact exists, one party to such an arrangement may not unilaterally legislate so as to place a burden on the compact in question. Delaware River and Bay Authority v. Carello, 222 A.2d 794 (Del. 1966). An amendment of a compact is a matter for the contracting states, subject to congressional consent where required. In George F. Alger Co. v. Bowers, 143 N.E.2d 835 (Ohio 1957), the court stated that: "It seems elementary that, in the absence of any provision in the statute providing for the specific manner of termination, and where administrative bodies are given power to enter into agreements, they should be able to reserve the power, where conditions change and they determine that such agreements are no longer feasible and not to the best interest of the state, to cancel such agreements." Thus, the statute authorizing the agreement, as well as the agreement itself, must be consulted with regard to the method for amendment or termination. In Conrad v. State, 16 A.2d 121 (Del. 1940), the court dealt with the contention that a statute of one of the signatory states was in conflict with the compact. Recognizing the "contractual sanctity" of the compact, the unilateral statute was measured against it and found not 73-121 204 in conflict. The point is that under the terms of the compact, had the statute been contrary to it, the compact would have prevailed. A state which is a party to a compact with another state may legislate with respect to matters covered by the compact " . . . so long as such legislative action is in approbation and not in reprobation of the compact." Henderson v. Delaware River Joint Toll Bridge Commission, 66 A.2d 843, 850 (Pa. 1949), citing Olin v. Kitzmiller, 259 U.S. 260, 263 (1922). Now, there is another constitutional provision which bears on interstate agreements. Art. I, Sec. X, Cl. 3 of the United States Constitution provides that: "No state shall, without the consent of Congress ... enter into any agreement or compact with another state, or with a foreign power. . . ." See Ga. Code 1-135. Although at first blush this provision might appear to require congressional consent for agreements such as the one in question, the provision as construed does not apply to all conceivable agreements between two or more states, but only to such compact as might tend to alter the political power of the states affected or encroach upon the full and free exercise of federal authority. The Union Branch R. R. Co. v. The East Tennessee and Ga. R. R. Co., 14 Ga. 327, 338-341 (1853). As recognized by the United States Supreme Court: "There are many matters upon which different states may agree that can in no respect concern the United States." Virginia v. Tennessee, 148 U.S. 503, 518 (1893). Reciprocal agreements involving nonresident motorists have been considered outside the congressional consent requirements. In Bode v. Barrett, 106 N.E.2d 521 (Ill. 1952), affirmed 344 U.S. 583 (1953), for example, it was held that the Constitution does not inhibit those purely fiscal interstate agreements that facilitate interstate commerce and aid in the execution of internal revenue policy. The state court noted that this was particularly true when such agreements were conducive to, rather than restrictive of, commerce among several states. Id. at 536. The Supreme Court ruled briefly that this "kind of reciprocal arrangement between states has never been thought to violate the Compact Clause." 344 U.S. at 586. As bearing on this matter, see also State ex rel. Dyer v. Simms, 341 U.S. 22, 28 (1951). In General Expressways, Inc. v. Iowa Reciprocity Board, 163 N.W.2d 413 (Iowa 1968), a recent case involving an interstate compact similar to the one in question, the court noted that this was not the type of interstate contract requiring congressional consent. It was further held that such an agreement was a binding state contract when executed and 205 73-121 legislative approval was unnecessary if the contract was otherwise properly executed. With that background, we turn to the particular agreement to which Georgia is a party. The agreement provides that amendments may be made by joint action of the contracting jurisdictions, in writing. Sec. IX. Thus, if Georgia wished to amend the agreement so as to allow the registration required in the 1973 Act, by any of the foreign states' citizens, it would have to obtain the agreement of all signatories. This, of course, would allow each signatory to then enact similar legislation. Section IX also allows any jurisdiction to make exceptions to the terms (Georgia has made one) and to amend its exceptions by serving copies of the proposed changes on all parties. The deviation from the agreement contained in the 1973 statute could thus also be effected in that manner, but it would undoubtedly instigate retaliatory legislation in member states. At the least, it is contrary to the purpose and spirit of the agreement. In conclusion, the Reciprocal Agreement of which Georgia is a party became a binding contract upon the State of Georgia. It needed no congressional approval as it does not enhance the political power of the states involved. It provides within itself for amendment or withdrawal by the state which wishes to be bound by its terms no longer. Otherwise, the member states are bound and the agreement remains in full force and effect between the jurisdictions which have not elected to withdraw. Insofar as the new statute is contrary to the terms of the pre-existing Reciprocal Agreement, it cannot be enforced against persons covered by the agreement, until and unless Georgia files an exception to the agreement or obtains an amendment to it, or withdraws completely. In the meantime, the repugnant effect of the new statute makes it unenforceable against those who are covered by the agreement, which is binding on the state. The legislature cannot impair the obligations undertaken pursuant to the authority previously granted by it. Thus, in answer to your questions: (1) The current Multi-State Reciprocal Agreement covers the new law, so that where the new law conflicts with the terms of the agreement, it cannot be enforced against those persons protected by the agreement, i.e., residents of the states which are signatories to the agreement. (2) The current Multi-State Reciprocal Agreement covers laws enacted after the effective date of the agreement, insofar as they would have any effect on the terms of the agreement. Subsequent laws cannot alter the obligation of the contract properly entered into and which was within the scope of the legislatively authorized contracting authority. The agreement must be altered or amended or withdrawn from pursuant to the procedures contained within it, and not by the mere passage of a contrary law by a member state. 73-122 206 OPINION 73-122 To: Commissioner, Department of Natural Resources July 30, 1973 Re: Department of Natural Resources may not grant funds to Glynn County for maintenance of public fishing pier, but may contract for repair and maintenance of fishing pier on St. Simons Island if maintained as state recreational area. You recently requested my opinion regarding an expenditure of state funds for repair and maintenance of a fishing pier on St. Simons Island, Glynn County, Georgia. As I understand the factual situation, the pier is owned by Glynn County and is presently made available to the public for fishing without charge. The pier is in need of substantial repair for which the State of Georgia would like to make funds available to Glynn County. You have specifically asked two questions, which will be addressed individually. I. Can the Department of Natural Resources provide a grant to Glynn County for the purpose of repairing and maintaining the fishing pier? The Department of Natural Resources, as you are aware, was formed by the Executive Reorganization Act of 1972. Ga. Laws 1972, pp. 1015, 1051 (Ga. Code Ann. 40-35129). Under the Reorganization Act, the functions, powers and duties of various state agencies, departments and commissions were transferred into the Department of Natural Resources. In 1973, pursuant to a 1972 constitutional amendment, all of the powers of the Game and Fish Commission were also vested in the Board of Natural Resources. Ga. Laws 1972, p. 1576 et seq. (Ga. Const., Art. V, Sec. IV, Par. I (Ga. Code Ann. 2-3301)); Ga. Laws 1973, pp. 139, 141. In Georgia, subdivisions of state government are creatures of statute and have only such powers as are specifically granted them by statute or which may be necessarily implied from those statutes. Ga. Const., Art. V, Sec. II, Par. II (Ga. Code Ann. 2-3102); Ga. Code 89-903 (1933); Connors v. Vandiver, 215 Ga. 371 (1959); Bentley v. State Board of Medical Examiners of Georgia et al., 152 Ga. 836 (1922); Hasty et al. v. Carter, 105 Ga. App. 139 (1961). Checking the various laws which were transferred to the Department of Natural Resources, I have been unable to find any statutory authorization for a grant for repairing and maintaining a county fishing pier. In addition, there is no statute which gives the department the power to make blanket grants to political subdivisions of the state. 207 73-122 As stated above, powers which are necessary to the carrying out of the duties of a state department may be implied from the specific powers granted to that department. I do not believe, however, that this is an instance in which one could say that the power to make a grant to Glynn County for repairing a fishing pier may be implied from the powers given to the department. This conclusion is based upon several factors. Initially, there is a statute in the laws transferred to the department which authorizes the department to make grants to municipalities or counties for the purpose of reclaiming natural resources owned by the county or municipality which have deteriorated due to erosion, act of God, or other unforeseen events. Ga. Laws 1970, p. 3 (Ga. Code Ann. 43-135). In addition, several other specific statutes authorizing the granting of funds to counties, municipalities and other governmental agencies are included in the laws transferred to the department. Ga. Laws 1972, pp. 1002, 1010 (Ga. Code Ann. 43-1618) (grants to counties and municipalities for the construction of solid waste handling systems); Ga. Laws 1964, pp. 416, 434, as amended (Ga. Code Ann. 17-524) (grants for counties and municipalities for the purpose of constructing water pollution control projects). Because several specific statutes which the department now administers refer specifically to the granting of money to local governmental bodies, it would not, in my opinion, be a fair construction of the law to imply the power to make other grants from any statute now administered by the department. A cardinal rule of statutory construction is that, when interpreting the meaning of an Act, one must consider all other provisions in pari materia in order to determine the intention of the legislature. Undercofler v. L. C. Robinson & Sons, 111 Ga. App. 411 (1965). In view of this rule and looking at the Executive Reorganization Act and all the statutes transferred to the department by it, it becomes apparent that the legislature intended to allow grants only in those instances in which the power to make such grants is set out in a statute, and such power may not be implied. Saxon v. Georgia Association of Independent Ins. Agents, 399 F.2d 1010 (5th Cir. 1968). Also, the legislature is presumed to enact legislation with full knowledge of the existing condition of the law and with reference to it. Plantation Pipe Line Co. v. Bremen, 227 Ga. 1 (1970). Considering this rule, one would have to conclude that, when the Reorganization Act was passed, the legislature was aware of the grant provisions included in the department's powers and did not intend to expand upon these powers. Finally, when dealing with an expenditure of state funds, particu- 73-122 208 larly in the nature of a grant, the requirements of the Constitution of Georgia must be kept in mind. Ga. Const., Art. III, Sec. VII, Par. IX (Ga. Code Ann. 2-1909); Ga. Const., Art. VII, Sec. IX, Par. IV (Ga. Code Ann. 2-6204); Freeney v. Geoghegan et al., 177 Ga. 142 (1933). As stated by the Supreme Court of Georgia: " 'Before an officer can be required to pay out public money, or be justified in doing so, those who demand its payment should be able to show a clear provision of the law which entitles them to receive it.' " Freeney, supra, at p. 145 [quoting from Kennedy v. Seamans, 60 Ga. 612 (1878) ]. In the situation under discussion, I do not feel that a grant to Glynn County could be justified under these criteria. Therefore, it is my opinion that absent a specific statute authorizing grants of this type, the Department of Natural Resources may not make a grant of funds to Glynn County for the purpose of repairing and maintaining a fishing pier. II. Can the Department of Natural Resources contract with Glynn County so that Glynn County would be responsible for repair and maintenance of the fishing pier as a state fishing area? As I understand the situation, Glynn County makes no claim to ownership of the beach and ocean floor around the pier beyond the point where the pier connects to the highland. Since, to my knowledge, the state has not granted or sold this property to Glynn County or anyone else, ownership of the beach and ocean floor below the high water mark would be in the State of Georgia. Ga. Att'y Gen., Legal Ramifications of Various Applications and Proposals Relative to the Development of Georgia's Coastal Marshes (March 1970). See Ops. Att'y Gen. 1970, p. 279. The only part of the beach and highland area which the state would not own is the point where the fishing pier is connected to the highland and I am assuming that Glynn County does own this property. Pursuant to the powers transferred to the department by the Reorganization Act, it appears that the department could purchase land and build a pier on it for fishing. The law setting forth the duties of the Game and Fish Commission, now vested in the Board of Natural Resources, states that: "The commission is hereby directed and authorized to perform the following duties and functions: (1) acquire by purchase, condemnation, lease, agreement, gift or devise, lands or waters suitable for the purposes herein enumerated, and develop, operate and maintain the same for the following purposes: . . . (c) For public ... fishing ... to provide places where the public may ... 209 73-122 fish...." Ga. Laws 1955, pp. 483, 489 (Ga. Code Ann. 45-114 (1) (c)). (Emphasis added.) The word "develop" used in the above section gives the department the power to construct adequate facilities for the purposes enumerated. Forrester v. North Georgia Electric Membership Corp., 66 Ga. App. 779 (1942). Considering the above-cited statutes, it is clear that the department has the power to buy property and construct upon it a fishing pier for the use of the publie. The question now is whether, pursuant to the statutes now administered by the department, the State of Georgia may contract with Glynn County to develop and maintain such a fishing pier. The Georgia Constitution states: "The state, state institutions, [and] any ... county of this state may eontract for any period not exeeeding 50 years, with each other ... for the use by such subdivisions or the residents thereof of any facilities or services of the state, state institutions, any . . . county . . ., provided such contract shall deal with sueh activities and transactions as such subdivisions are by law authorized to undertake. . . ." Ga. Const., Art. VII, Sec. VI, Par. I (Ga. Code Ann. 2-5901 (a)). The laws transferred to the department have several references to leases, agreements, and other forms of contracts into which the department may enter. Ga. Laws 1955, pp. 483,489 (Ga. Code Ann. 45-114 (1)); Ga. Laws 1937, pp. 264, 275, as amended (Ga. Code Ann. 43-124 (b) (f) (m)). Even absent such references, it is my opinion that the authority to contract for the purpose of carrying out its statutory duties is a power which may be necessarily implied from the statutory powers conferred upon the department. Connors v. Vandiver, 215 Ga. 371 (1959). Considering these provisions of the Constitution and laws of the state, it is my opinion that the state and county may contract with eaeh other for the maintenance and operation of a state fishing area provided all laws dealing with such a contract are complied with. The only remaining question is whether the fact that Glynn County owns the property where the pier abuts the highland and claims ownership to the pier itself will present any problems. As you are aware, the state cannot expend funds to improve real property to which it does not have fee simple title. Ga. Laws 1961, p. 47, as amended (Ga. Code Ann. 91-117); Ops. Att'y Gen. 1962, p. 398. Georgia law provides that "[a]ny thing intended to remain permanently in its place, though not actually attached to the land, such as a rail fence, is a part of the realty and passes with it." Ga. Code 73-123 210 85-105 (1933). It is my opinion that, pursuant to this statute, part of the pier extending beyond the high water mark is the property of the State of Georgia and the problem with Ga. Laws 1961, p. 47, as amended, does not arise. It is also my opinion that this statute does not prohibit expending funds on the property where the pier abuts the highland for the following reason. There is a difference in "repairing and maintaining," which is what is contemplated here, and "improving." As stated by the Court of Appeals, "an improvement is a valuable and useful addition, something more than a mere repair or restoration to the original condition." Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723, 726 (1948). Because of the fact that the highland area provides the only access to the pier, I do strongly recommend that a quitclaim deed of that area and the pier to the state be a part of the contract. In conclusion, it is my opinion that, under the above conditions, the State Department of Natural Resources and Glynn County can contract that Glynn County, in consideration of a sum certain, will maintain the fishing pier and surrounding area as a state fishing area. OPINION 73-123 To: Deputy Director, State Merit System of Personnel Administration July 31, 1973 Re: State Merit System does not have authority to grant investigators in Division of Investigation salary different from that set by law. This is in response to your recent letter inquiring as to whether the State Merit System of Personnel Administration has the authority to create a new investigator position with a salary greater than that of a major in the uniform service of the Department of Public Safety. As you have pointed out, the functions of the Georgia Bureau of Investigation were transferred by the Executive Reorganization Act of 1972 to the Department of Public Safety and assigned to the Division of Investigation. Ga. Laws 1972, pp. 1015, 1059 (Ga. Code Ann. 40-35165); Ga. Laws 1972, pp. 1015, 1060 (Ga. Code Ann. 40-35171). At the same time Georgia law governing the Bureau of Investigation provides that: "The compensation of the members of the Georgia Bureau of Investigation shall be based upon the same base pay schedule set forth above for members of the uniform division of the Department of Public Safety and an additional $180 per year." Ga. Laws 211 73-123 1937, pp. 322, 329, as amended, in particular by Ga. Laws 1971, pp. 306, 308 [which appears to have been accidentally omitted from the unofficial codification at Ga. Code Ann. 92A-208 (1972 Cumulative Pocket Part)]. The Georgia statute further provides that: "The increases provided for herein shall likewise be received by members of the Georgia Bureau of Investigation, whose compensation is based upon the same base pay schedule as that of the members of the Uniform Division of the Department of Public Safety as set forth in this section." Ga. Laws 1937, pp. 322, 329, as amended [Ga. Code Ann. 92A-208 (1972 Cumulative Pocket Part)]. It would seem quite obvious that the salaries of the investigators in the Division of Investigation are based, by statute, on the salaries of the personnel in the uniform service. Therefore, the State Merit System would not have the authority to create a position with a salary higher than that allowed by law for investigators unless it would also have the authority to revise the compensation for members of the uniform service. The Department of Public Safety was brought under the State Merit System in 1949. Ga. Laws 1949, pp. 1140, 1141. In the 1971 revision of the State Merit System statutes, the above-mentioned 1949 Act was specifically repealed. Ga. Laws 1971, pp. 45, 54. However, this did not terminate the inclusion of the Department of Public Safety under the State Merit System because the coverage was continued pursuant to a general provision of the 1971 Act. Ga. Laws 1971, p. 45 (Ga. Code Ann. 40-2201 (a)). Nevertheless, the legislature has continued to set the salaries and number of positions at those salaries for the members of the Uniform Division. See the citations following Ga. Code Ann. 92A-208 and in particular see Ga. Laws 1972, p. 354 and Ga. Laws 1973, p. 449. This raises the question as to whether the State Merit System has the authority to create or revise the compensation plan for the members of the Uniform Division. There does not have to be a determination as to the authority granted in the 1971 Act to ascertain who may set these salaries. If the legislature had given this authority to the State Merit System in the 1971 Act, the subsequent two statutes setting the salaries at statutory amounts would take precedence over the earlier Act. See Clark v. Kaylor, 219 Ga. 256, 259 (1963); Cairo Banking Co. v. Ponder, 131 Ga. 708, 710 (1908). Consequently, the State Merit System could not set the salaries of either the members of the Uniform Division or the investigators of the Division of Investigation to be anything except the salaries set by the Georgia General Assembly. (For similar situation 73-124 212 see Op. Att'y Gen. 71-98.) The statement that the salaries of the investigators are set by law and the State Merit System cannot alter such salaries is not without possible exception. See Ga. Laws 1937, pp. 322, 333; 1943, pp. 196,201 (Ga. Code Ann. 92A-225). This Act provides that: "In perfecting the organization of the Department of Public Safety, or any division thereof, the Director herein shall be authorized with approval of the Department of Public Safety to employ and provide compensation for such expert temporary assistance as may be necessary." (Emphasis added.) I can find nothing in the law that sets the salary of this temporary employee; therefore, the State Merit System could set the employee's compensation. However, from your letter I assume that the position of Senior Investigator is to be a permanent position and, consequently, I am basing my opinion on that assumption. For these reasons, it is my official opinion that the State Merit System of Personnel Administration does not have the authority to grant investigators in the Division of Investigation a salary different from the salary set by law. OPINION 73-124 To: Commissioner, Department of Transportation July 31, 1973 Re: Outdoor advertising; number of sign faces at one location. This is in response to your recent request for my opinion concerning two aspects of the Outdoor Advertising Control Act. The request poses two specific questions: "How many outdoor advertising sign faces can be permitted at one location?" "Is it necessary to have the written consent of all residence owners within 300 feet of an outdoor advertising sign before a permit may be issued for the sign?"' Regarding your first question, the Outdoor Advertising Control Act limits a sign to no more than two facings visible from the same direction on the main traveled way. Ga. Laws 1973, pp. 947, 1077; Ga. Code Ann. 95A-916 (1). This subsection, moreover, recognizes that signs may be constructed in a back-to-back or V-type configuration. Logically, a back-to-hack or V-type sign containing two facings visible from each direction could be erected, thus allowing four permitted sign facings at one location. 213 73-125 The answer to your second question is dictated by Ga. Code Ann. 95A-916 (m) and 95A-917 of the Georgia Code of Public Transportation. Ga. Laws 1973, pp. 947, 1078, 1079. Those sections prohibit the erection or maintenance of a directional sign, or a sign of specific interest to the traveling public in either an area zoned commercial or industrial or an unzoned commercial or industrial area, which is within 300 feet of a residence without the written consent of the owner. There is no language in the sections which would negate the necessity of the consent of any owner. The consent of the owners of all residences situated closer than 300 feet from the sign, not merely the consent of the closest owner or a majority of owners, is required. Therefore, it is my official opinion that four outdoor advertising sign facings can be permitted at a given location. It is further my official opinion that the owners of all residences within 300 feet of a sign must consent to the erection and maintenance of that sign. OPINION 73-125 To: Director, Office of Planning and Budget August 1, 1973 Re: Occupational Safety and Health Act of 1970; effect on State Labor Department. This is in response to your letter of June 26, 1973, inquiring as to the effect of the Occupational Safety and Health Act of 1970 (hereinafter referred to as OSHA) on the activities of the State Labor Department. In your letter you raise three questions, which are: (1) What portion of Georgia's occupational safety and health laws, regulations and standards, if any, has been superseded by OSHA? (2) Are the other functions administered by the State Labor Department preempted by OSHA? (3) Would the Office of Planning and Budget be authorized to approve budgetary work programs and requests for allotment of funds from the Department of Labor for F.Y. 1974? I shall answer these questions in the order which you have asked them, but before I do, I feel a discussion on OSHA is in order. OSHA was enacted pursuant to Congress's power to regulate commerce among the several states and to provide for the general welfare, to assure every working man and woman in the nation safe and healthful working conditions, and to preserve our human resources. 84 Stat. 1590 (1970), 29 U.S.C.A. 651(b). Under OSHA, the Secretary of Labor was given the authority to promulgate rules and regulations to implement national or federal standards for occupational safety and health. 84 Stat. 1593 (1970), 29 U.S.C.A. 655. Pursuant to this author- 73-125 214 ity, the Secretary of Labor has promulgated therulesfoundin 29 C.F.R. Ch. 17. This Act also provides that if a state enacts legislation providing state standards for occupational health and safety which are at least as high as the federal standards, then the state law may be allowed to preempt the applicable federal standards. 84 Stat. 1608 (1970), 29 U.S.C.A. 667. Also, Section 18(a) of OSHA provides that nothing in this Chapter shall prevent any state agency or court from asserting jurisdiction under state law over any occupational safety or health issue with respect to which no federal standard is in effect. 84 Stat. 1608 (1970), 29 U.S.C.A. 667. Consequently, OSHA preempts the state from regulating only in the area of occupational safety and health as to which the United States Secretary of Labor has promulgated regulations. With these facts in mind, we can now answer your three specific questions. (1) What portion of Georgia's occupational safety and health laws, regulations and standards, if any, has been superseded by OSHA? Georgia does not have an occupational safety and health law per se. vVe do have administrative regulations covering the area of occupational safety and health which have been promulgated pursuant to Ga. Laws 1937, pp. 230, 237, as amended (Ga. Code Ann. 54-122 (d)). These rules may be found in the Rules and Regulations of the State of Georgia, Chs. 300-3-2 through 300-3-18. Since neither these rules nor any other possible plan put forth by the state has been approved by the U.S. Department of Labor, it would appear that OSHA has superseded this function of the State Department of Labor. There is one possible exception. Chapter 300-3-6 of the Rules and Regulations of the State of Georgia covers the inspection of elevators. In searching 29 C.F.R. Ch. 17, I could find no regulation with respect to elevators; therefore, it would seem that the State Department of Labor's authority has not been terminated in this area. This brings us to your second question. (2) Are the other functions administered by the State Labor Department preempted by OSHA? The federal Act has no effect on such items as hours of labor, child labor, regulation of private employment agencies, mediation service, equal pay for equal work, state minimum wage, safety glass inspection, pressure vessel safety, or high voltage lines. These areas are not involved with occupational safety and health. If one or two of these areas would happen to overlap with the OSHA, then that portion would be preempted, but on the whole, these matters have not been taken out of state hands by OSHA. Another area apparently still under state control is the occupational safety inspections in regard to the state and its political subdivisions. 215 73-126 Under the definition of employer in OSHA, the state and its political subdivisions have been specifically excluded. 84 Stat. 1591 (1970), 29 U.S.C.A. 652(5). Therefore, the federal Act has not preempted the State Labor Department from making occupational safety and health inspections of the state agencies and political subdivisions of the state. This brings us to the third question. (3) Would the Office of Planning and Budget be authorized to approve budgetary work programs and requests for allotment of funds from the Department of Labor for F.Y. 1974? We are enclosing herewith a prior opinion of this office, Op. Att'y Gen. 73-80, which sets forth the principle necessary to resolve this question. That principle is that public funds may not be spent unless there exists both a general law empowering a state agency to engage in particular activities and an appropriation of state funds for use by the agency in carrying out those activities. Thus, to the extent that the Department of Labor's power under general law to engage in particular activities has been preempted by OSHA, it may not expend public funds in such activities. In the context of the budget process outlined in Ga. Laws 1962, pp. 17, 28, 30 (Ga. Code Ann. 40-414 to 40-418), it is clear that a work program or request for allotment premised upon a clearly unauthorized expenditure should not be approved. See Ga. Code Ann. 40-418. If your office has any question as to whether a certain expenditure of the Labor Department is authorized (or whether the function has been preempted by OSHA), your office may inquire into the expenditure pursuant to Ga. Code Ann. Ch. 40-4. Therefore, it is my official opinion that the federal OSHA preempted the State Labor Department from that area of occupational safety and health as to which the U.S. Secretary of Labor has promulgated regulations. It is also my official opinion that OSHA has no effect on either the budget or the authority of the Georgia Department of Labor to perform functions not preempted by OSHA. OPINION 73-126 To: Commissioner, Department of Transportation August 2, 1973 Re: Airports; State Department of Transportation cannot administer funds so as to cause state to assume county debt. This is in response to your recent request for my opinion as to the financial participation of the Department of Transportation in the completion of the Airport Master Planning Project for McCollum 73-127 216 Airport in Cobb County. Your request was precipitated by the county's request for state funds to aid in this project. The correspondence attached to your request makes it apparent that Cobb County has previously contracted with an Atlanta consulting firm for preparation of the Airport Master Plan. Consequently, the county is presently in debt to the consulting firm in the amount of its contract. Therefore, the essence of the county's request is that the department assume a portion of the debt owed the consultant. Except for certain self-defense necessities inapplicable here, the Georgia Constitution forbids the state's assuming the debt, or any part thereof, of any county. Ga. Const., Art. VII, Sec. III, Par. V (Ga. Code Ann. 2-5605). Because the acts of the department have been held to be the acts of the state (State Highway Dept. v. Parker, 75 Ga. App. 237 (1947)), this section applies also to the Department of Transportation. Therefore, it is my official opinion that the Department of Transportation may not financially participate in the completion of the Airport Master Planning Project for McCollum Airport because it would constitute a forbidden assumption of county debt. OPINION 73-127 To: Joint Secretary, State Examining Boards August 3, 1973 Re: Composite State Board of Medical Examiners does not have power to delegate its investigatory authority. This is in reply to your request for advice as to a proposed agreement between the Composite State Board of Medical Examiners and the Medical Association of Georgia under whjch investjgative responsibilities are delegated to members of the Medical Association. You request an opinion as to whether the State Board possesses the power to enter into such an agreement and, if so, whether persons acting under such agreement will thereby enjoy any immunity from tort liability. Under the proposed agreement, upon receipt of a request from the executive committee of MAG, the President of the Composite State Board is obligated to appoint, as an agency of the State Board, a "Medical Investigative-Disciplinary Committee." The committee is to be composed of not less than three nor more than five members, of which two-thirds shall be appointed from a list compiled by MAG. MAG agrees not to request an investigation unless it "... has first determined, from its preliminary inquiries or investigation, that there is probable cause to believe an unprofessional, improper or illegal act or acts have occurred." 217 73-127 Neither the powers nor procedures of the investigative committee are specified in the proposed agreement. Once an appointed committee has completed its report, however, it is required to forward the report to the President of the Composite State Board who is required to issue his call for a hearing if in his opinion there is reason for further action by the board. The stated purposes of the agreement are "First, to insure orderly inquiry into every substantive impropriety . . . and second, to shield physicians from harassment, embarrassment and intimidation by meritless and capncwus allegations and complaints." The use of public funds apparently is not contemplated. Ga. Code Ann. 84-902 provides that the Composite State Board of Medical Examiners ". . . shall perform such duties and possess and exercise such powers, relative to the protection of the public health and the control and regulation of the practice of medicine and osteopathy as this Chapter prescribes and confers upon it." Amended by Ga. Laws 1970, p. 301. Code 84-915 provides in pertinent part as follows: "The Board of Medical Examiners shall have authority to administer oaths, to summon witnesses, and to take testimony in all matters relating to its duties .... It shall be the duty of the joint secretary under the direction of the board to aid in the enforcement of this Chapter ...." Amended by Ga. Laws 1970, p. 301. Code 84-916 in pertinent part provides as follows: "The Joint Secretary, State Examining Boards, is hereby vested with the power and authority to make such invstigations in connection with the enforcement of this Chapter as he, or the Board of Medical Examiners ... may deem necessary or advisable; and the result of all investigations shall be reported to . . . the said Board of Medical Examiners." Amended in particular by Ga. Laws 1957, p. 129. Thus, while the Composite State Board is vested with the powers "to administer oaths, to summon witnesses, and to take testimony" which may be employed in an investigatory context, there is not contained in Ga. Code Ann. Ch. 84-9 any indication that the General Assembly contemplated a delegation of those powers to other parties. Indeed, the General Assembly expressly provided that the board might exercise those powers itself or through the Joint Secretary, State Examining Boards. Ga. Code Ann. 84-915, 84-916. In view of the 73-128 218 investigation procedures expressly made available by the General Assembly, an implication of alternate procedures is not supportable. Ga. Code Ann. 84-902; Bentley v. State Board of Medical Examiners, 152 Ga. 836, 111 S.E. 379 (1922); cf. Ops. Att'y Gen. 1948-49, p. 328. It is, therefore, my official opinion that the Composite State Board of Medical Examiners may not lawfully enter into an agreement to confer its powers under Ga. Code Ann. 84-915 upon private parties. For the same reasons, it is also my opinion that the board does not have the power to create an agency to undertake investigations which will not utilize compulsory processes outlined in Ga. Code Ann. 84-915. The board may exercise only such powers as Chapter 84-9 prescribes and confers upon it. Bentley, supra. The power to appoint investigators as agents of the board is not contained in Code Chapter 84-9. This is not to say, however, that the board or the joint secretary may not act upon information furnished to it by third parties, including the Medical Association of Georgia and any committee thereof. Indeed, it is within the discretionary responsibility of the board and of the joint secretary to act upon such information. OPINION 73-128 To: Commissioner, Department of Public Safety August 3, 1973 Re: Motor vehicles; alteration of suspension systems; parties to the crime may be prosecuted. This is in answer to your letter of April 24, 1973, in which you requested my opinion regarding the construction and application of House Bill466 (Ga. Laws 1973, p. 458). Section I states: "It shall be unlawful to alter the suspension system of any private passenger motor vehicle more than two inches above or below the factory recommendation for any such vehicle, which may be operated on any public street or highway." You specifically ask whether enforcement of this legislation would apply only to a person or persons altering such vehicles or whether it would extend to the operator himself once the vehicle has been altered, so that the operation of such altered vehicle is itself a misdemeanor as set forth under Section 2. You also ask whether it is now lawful to operate any altered vehicle where the alteration was made prior to the enactment of this Act. Finally, you ask whether an operator of an altered vehicle could be charged as an accessory after the fact if he knowingly 219 73-128 and wilfully had the vehicle altered after the enactment of this legislation. A criminal statute must be construed strictly against the state and liberally in favor of the accused. Matthews v. Everett, 201 Ga. 730 (1947). A penal statute will not be extended beyond its precise and plain provisions and will not be given such a construction or interpretation as will make penal any act not therein plainly made penal and prohibited. State v. Schafer, 82 Ga. App. 753 (1950). A penal statute cannot be expanded by implication. Wood v. State, 219 Ga. 509 (1963). As House Bill 466 is a penal statute it is subject to the rigorous scrutiny indicated in the previous paragraph, and therefore must be strictly construed against the state. "Words, unless they are words of art, are to be given their natural and ordinary meaning. Ga. Code (1933) 102-102, ~ 1. Plain and unequivocal language forbids interpretation by the court. Board of Tax Assessors v. Catledge, 173 Ga. 656 (1931). Examining House Bill 466, there is nothing confusing, uncertain, or ambiguous in the language. The statute clearly applies to the alteration of suspension systems of private passenger motor vehicles and does not apply to the operation of vehicles which have been so altered. Certainly, the strict construction doctrine would mandate this analysis. However, even in the event that a question of ambiguity were raised, the court has clearly held that a criminal statute that is fairly and reasonable subject to two constructions (one which would render an act criminal, the other which would not) must be construed against the state and in favor of the accused. Riley v. Garrett, 219 Ga. 345 (1963). Therefore, with regard to your first question, only a person altering the suspension system can be punished for the commission of a misdemeanor; the operator of such an altered vehicle is not, by virtue of simply operating such vehicle, violating the statute. Of course, if the operator was the one who altered the vehicle he would be subject to the criminal statute because of the illegal activity of alteration. With regard to your second question, House Bill 466, in my judgment, affects only the alteration of and not the operation of private passenger motor vehicles. Thus it is irrelevant when the vehicle being operated was in fact altered, as the operation of such vehicle, by itself, is simply not made unlawful by the Act. As to the effective date of the Act as to alterations, it is noted that enforcement against a person who altered the suspension system of a motor vehicle prior to the effective date of the new law would be prohibited by both the Federal and State Constitutions (no state shall pass any ex post facto law). U.S. Canst., Art. I, Sec. X, Cl. I (Ga. Code Ann. 1-134); Ga. Canst., Art. I, Sec. III, Par. II (Ga. Code Ann. 2-302). 73-128 220 In answer to your final question, although a person could not be convicted for operating a car in violation of House Bill466, such person may be criminally responsible as a party to the crime of altering the suspension system, under Criminal Code 26-801 (a), which provides: ''Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime." (Emphasis added.) Ga. Laws 1968, pp. 1249, 1271. Criminal Code 26-801 (b) of Ga. Code Ann. provides in part: ''A person is concerned in the commission of a crime only if he: (1) directly commits the crime; ... or (3) intentionally aids or abets in the commission of the crime, or (4) intentionally advises, encourages, hires, counsels, or procures another to commit the crime." (Emphasis added.) These provisions (3) and (4) together make it clear that anyone who aids in or procures the commission of a crime is guilty of the crime, whether or not he is present when the crime is committed. Also, the law presumes the intention to act from the act itself. Criminal Code 26-603 (Ga. Laws 1968, pp. 1249, 1269) provides that "the acts of a person of sound mind and discretion are presumed to be the product of a person's will, but the presumption may be rebutted." The court has held that the word "intention" as used in Title 26 does not mean an intention to violate a penal statute but an intention to commit the act prohibited thereby. Howard v. State, 222 Ga. 525 (1966). It is also significant that the Criminal Code provides: "Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto, although the person claimed to have directly committed the crime has not been prosecuted or convicted, or has been convicted of a different crime or degree of crime, or is not amenable to justice or has been acquitted." Ga. Code Ann. 26-802. (Emphasis added.) Thus, if it can be shown that the operator of the vehicle directly committed the crime, i.e., personally altered the suspension system, or if it can be shown that the operator was guilty of aiding and abetting another in the alteration of the suspension system, or encouraged, hired, or procured another to alter the suspension system, he can be held as a party to the crime regardless of whether the person who actually altered the suspension system has been prosecuted or convicted. This is, provided, of course, that his action occurred after the effective date of the statute. Therefore, it is indeed feasible that the statute could be applied to operators, but only in their capacity as 221 73-129 parties to the crime of alteration of suspension systems. Thus, it appears that the statute is rendered significantly more effective when viewed in the light of Criminal Code of Georgia 26-801 and 26-802. OPINION 73-129 To: State Revenue Commissioner August 3, 1973 Re: Tax collectors and tax commissioners; compensation. This is in reply to your letter of recent date wherein you request an official opinion of this office regarding the effect of Act No. 229 (Ga. Laws 1973, p. 475) on the commissions payable to county tax collectors and tax commissioners pursuant to Ga. Code 92-5301, as amended (Ga. Laws 1937-38, Extra. Sess., pp. 297, 298; 1953, p. 234); and Ga. Code Ann. 92-5304 (Ga. Laws 1937-38, Extra. Sess., pp. 297, 298; 1939,p.370;1951,pp.815,816;1955,pp. 176, 178;1965,pp.626,627). In your letter you state: " ... the county tax collectors and tax commissioners are entitled to certain commissions under the provisions of Ga. Code 92-5301 and 92-5304. The amount of commissions due varies from county to county depending upon the provisions of local Acts of the General Assembly and county resolutions approved by the county governing authority. "Under the provisions of Act 229 of the 1973 Session of the General Assembly, property tax relief will be granted to county ad valorem taxpayers through funds allotted by the state to each of the counties that meet the requirements set forth in the Act. Payments of county general ad valorem taxes to the county tax collector or tax commissioner will be decreased to the extent of funds allotted by the state to the county." You then ask what effect Act No. 229 will have on the commissions payable to county tax collectors and tax commissioners under the above-cited laws. With respect to the laws unofficially codified as Ga. Code Ann. 92-5301, this section provides for certain commissions to be paid to each tax receiver and collector of state and county taxes and provides for a schedule of commissions which shall apply to tax net digests. However, in the above-cited laws unofficially codified as Ga. Code Ann. 92-5304, the pertinent part provides that the rates and schedules prescribed by 92-5301 shall apply upon the first 90 percent of the ad valorem net digests collected by the tax collector; and that on all taxes collected in excess of the 90 percent of the total of taxes due, the tax collector or tax commissioner's commission shall be for such taxes 73-129 222 10 percent of all such collections, irrespective of the above and foregoing schedule and rates. The question, therefore, appears to be what is meant by the words "collected by the tax collector" in the statutes. Act No. 229 provides property tax relief in the following manner: (1) A grant to the county is provided in an n,mount equal to $50 multiplied by the average daily attendance in the public school system or systems within such county for the first four months of the immediately preceding school year. (2) The total grant to the county is distributed in the form of property tax relief to property taxpayers in two forms: (a) A credit against property taxes levied by the governing authority of the county for general operations is given to all tangible property constituting the "homestead" of the taxpayer in an amount which would equal the reduction in taxes that would occur if the homestead exemption for such taxpayer had been increased by an amount not to exceed $1,000. (b) After the total credits have been calculated for the "homestead" property, the balance of the grant to the county is distributed to all owners of tangible property, excluding motor vehicles and trailers, by pro rata credits against the taxes levied by the governing authority for general county purposes. In sum, the tax reductions will be given to each taxpayer in the form of credits by each county. The state will refund each county's share through a formula that multiplies 50 times the average daily attendance of the county's public schools. Thus, the county will actually receive in state funds an amount equal to the sum total of all tax credits allowed taxpayers. I have before me a copy of the standard tax bill form which must be used pursuant to Regulation No. 560-11-2-.37 recently promulgated by your department. The pertinent part of this regulation provides: "Beginning with the tax year 1973, each county tax commissioner or collector shall prepare and furnish to each taxpayer owing state, county or school taxes a tax bill showing the total amount of such taxes levied for the current tax year, the dollar amount of property tax credit computed for the taxpayer, and the net amount of such taxes due by the taxpayer for the current year...." The standard form tax statement is attached to and made a part of the regulations. The pertinent part of this form contains the following information: (1) total tax levied $________________ (2) less property tax credit $________________ (3) total tax due $_ _ _ _ __ 223 73-130 The regulation also provides that "any county tax commissioner or collector desiring to prepare and furnish tax bill forms other than the standard form ... is hereby authorized to do so provided the form actually used reflects the information required herein...." Thus, it is very apparent that the county tax collectors and commissioners must either use the standard form prescribed by you or the form actually used must reflect the information required in the regulation. Therefore, all county tax statements will show the total tax levied, less property tax credit to arrive at the total tax due. The clear purpose of Act No. 229 was to grant to certain taxpayers in the various counties of this state a property tax credit based upon the total tax levied. Therefore, the total taxes collected will be an amount less the property tax credit to certain taxpayers. As this is a credit on the total tax levied and the county actually receives, from state funds, the total of the credits allowed, in my opinion the commissions will not be decreased to the extent of funds allocated by the state under Act No. 229. In other words, Act No. 229 will have no effect on the commissions payable to county tax collectors and tax commissioners under the above-cited laws. OPINION 73-130 To: Chairman, Georgia Peace Officer Standards and Training Council August 6, 1973 Re: Peace officers; lowering the minimum age qualification by new statute does not necessarily require hiring 18-year-olds. This is in reply to your letter requesting an opinion on the effect of H. B. 358 (Ga. Laws 1973, p. 539), which lowers the minimum age qualification for Georgia peace officers from 20 to 18 years of age. Traditionally, the term "qualifications" is defined as the attributes of a person which render him acceptable to hold a particular job. It relates to the fitness of an individual for a specific profession. Lowering the minimum age qualification for state peace officers enlarges the supply source from which applicants may be drawn. It is consensual in nature, not mandatory. In summary, it is my official opinion that H.B. 358 allows, but does not necessarily require, law enforcement agencies to hire those as young as 18 years of age. 73-131 224 OPINION 73-131 To: Joint Secretary, State Examining Boards August 9, 1973 Re: Acupuncture as practice of medicine; authority of State Board of Medical Examiners as to practice; devices to be regulated by State Board of Pharmacy. Your letter of June 22, 1973, requested an official opinion concerning the practice of acupuncture in Georgia. Needless to say, there is no specific statutory restriction on the use of this mode of treatment in Georgia. Your broad question will be discussed in terms of two issues: (1) Is the practice of acupuncture the "practice of medicine" under Georgia law; and (2) is the practice of acupuncture prohibited by Georgia law? As a preliminary matter, some discussion of the practice of acupuncture itself is warranted. Basically, acupuncture involves the insertion of needles into various parts of the body for the purpose of relieving pain. This method of treatment has been described as "the placement of needles at strategic points rigidly defined by texts with 2,000 years of authority as specific therapy for either acute or chronic conditions. [Until recently] ... the process [was] essentially ... a simple, superficial placement of a needle, with no manipulation, which was 10 to 30 minutes in duration[; however,] in very recent years a 'new' practice has gained acceptance. This new practice relates not only to new points of insertion and on occasion deeper placement, but also to constant manipulation of the needle." Dimond, Acupuncture Anesthesia, Western Medicine and Chinese Traditional Medicine, 218 ,T. Am. Med. Ass'n 1558, 1559-60 (1971). Although this mode of treatment is apparently most commonly employed for purposes of anesthesia, it is also used for treatment of specific ailments, ranging from deafness to paraplegia. I d. Dr. Dimond based his description of acupuncture on extended personal observation of this treatment and especially his experiences on a recent trip to the People's Republic of China. These most recent observations reveahld that moden Chinese practitioners are as an alternative to their physical manipulation now applying electrical current to the acupuncture needles. Dr. Dimond also states that acupuncture is no longer the exclusive means of anesthesia in China, but is generally used in conjunction with the methods of Western 225 73-131 medical practice. 1 I d. The majority of the states which have considered the question have restricted the practice of acupuncture to licensed physicians or limited it to research use. Only one state, Nevada, 2 has specifically legalized this practice. See The Atlanta Journal, Sec. B, p. 8, Col. 1 (July 24, 1973). With respect to the issue of whether the practice of acupuncture is the practice of medicine in Georgia, the following definition of "practicing medicine" found in Ga. Code Ann. 84-901 is controlling: "The terms 'practice of medicine,' 'to practice medicine,' 'practicing medicine,' and 'practice medicine,' as used in this Chapter, are hereby defined to mean holding one's self out to the public as being engaged in the diagnosis or treatment of disease, defects or injuries of human beings, or the suggestion, recommendation or prescribing of any form of treatment for the intended palliation, relief or cure of any physical, mental or functional ailment or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift or compensation whatsoever...."Amended by Ga. Laws 1970, p. 301. The courts have broadly interpreted this provision as including "every branch of the healing art." Georgia Association of Osteopathic Physicians and Surgeons, Inc. v. Allen, 31 F. Supp. 206, 211 (1940). As a result, unless specifically exempted by another statute, persons are prohibited from practicing any branch of healing without fully complying with the licensing requirements of Ga. Code Chapter 84-9. See Id.; Mabry v. State Board of Examiners in Optometry, 190 Ga. 751, 10 S.E.2d 740 (1940). See also, Op. Att'y Gen. 68-62. The practice of acupuncture is certainly a branch of the healing arts, and, as a result, falls within the definition of Code 84-901. Since there are no specific statutory exemptions regarding acupuncture in Georgia, it is my official opinion that to the extent the practice of acupuncture is not 1 Other medical commentators are more reluctant than Dr. Dimond to accept the validity of acupuncture treatment. One such skeptic concludes that acupuncture may only be a form of placebo, with the potential for causing severe harm in the absence of adequate diagnosis before treatment. 178 Science 9 (1972). 2 Even the special demonstrations leading to legalization of acupuncture were deemed to require legislation specifically authorizing them. Laws of Nevada 1973, Ch. 110, p. 176. The preamble to this enactment states the following: "It is doubtful whether even a demonstration of [acupuncture] may be performed in this state without risk of the charge of unauthorized practice of medicine." ld. (Emphasis added.) The resulting acupuncture legislation establishes a Board of Chinese Medicine to regulate the issuance of licenses to practitioners of acupuncture and several other branches of oriental medicine. Although this statute exempts licensees from liability for the unlicensed practice of medicine, license applicants must fulfill stringent requirements. These provisions, including a ten year experience requirement, indicate that the statute is somewhat less than an open invitation to practitioners of the Chinese healing arts in Nevada. See Laws of Nevada 1973, Ch. 441, p. 635 et seq. 73-131 226 otherwise limited, only licensed physicians may utilize this method of treatment in Georgia. Ascertaining the limitations on the actual practice of acupuncture by licensed Georgia physicians is a more difficult task. Under the present law in Georgia, the primary source of specific regulatory authority would be found in the federal and state statutes requiring the labeling of "drugs or devices." Under Georgia law, "devices" are defined as "instruments, apparatus and contrivances, including their components, parts and accessories, intended (1) for use in the diagnosis, care, mitigation, treatment or prevention of disease in man...." Ga. Code Ann. 79A-1002 (d). Such devices are considered to be misbranded unless adequately labeled. Ga. Code Ann. 79A-1009. The definitional provisions and labeling requirements of federal law are virtually identical. See 21 U.S.C. 321 (h), 352. As a result, the Georgia State Board of Pharmacy, pursuant to its authority under the Georgia Drug and Cosmetic Act, Ga. Code Ann. Ch. 79A-10 (Ga. Laws 1967, p. 296) would have authority similar to that of the Federal Food and Drug Administration to regulate the labeling of acupuncture devices. It should be noted, however, that regulation of labeling is not equivalent to the regulation of the use of drugs or devices. Under present law, to the extent that the Food and Drug Administration may regulate the introduction of "new drugs" into commerce, it may also regulate their use. Section 505 of the Food, Drug and Cosmetic Act, 21 U.S.C. 355, requires filing of an application for approval of a "new drug" prior to the introduction of the drug into commerce. Subsection 505(i) of the Act permits the secretary to promulgate regulations for exempting from this requirement "drugs intended solely for investigational use." The applicable regulations require obtaining adequate "informed consent" prior to the use of such drugs. 21 C.F.R. 130.37. Although the Supreme Court has recently upheld the validity of several regulations controlling the classification and introduction of "new drugs" into commerce, Weinbergerv. Hynson, Westcott & Dunning, Inc., 41 U.S.L.W. 4848 (U.S. June 18, 1973), neither this case nor its companion cases considered the regulations dealing with the exemption for investigational drugs. Furthermore, the federal statutes do not specifically relate to investigational "devices." Nevertheless, the Commissioner of Food and Drugs has recently published an interim notice limiting acupuncture devices to "investigational or research use." 38 Fed. Reg. 6419 (Mar. 9, 1973). Similarly, researches must obtain adequate informed consent under the standards applicable to investigational new drugs prior to using acupuncture devices. This notice also requires the labeling of acupuncture devices to indicate their 227 73-131 experimental nature. These labels must contain the following caption: "Caution: Experimental device limited to investigational use by or under the direct supervision of a licensed medical or dental practitioner. This device is to be used only with informed consent under conditions designed to protect the patient as a research subject, where the scientific protocol for "investigation has been reviewed and approved by an appropriate institutional review committee, and where conditions for such use are in accordance with State law." (Emphasis added.) The validity of this notice is not an issue, since, as a practical matter, neither state nor federal labeling regulations will govern the actual practice of acupuncture by licensed physicians. See letter of March 19, 1973, from Mr. Larry R. Pilot, Division of Compliance, Office of Medical Devices to C. L. Clifton, Joint Secretary, State Examining Boards. Therefore, it is necessary to turn to other sources of possible constraint upon this practice. The problem of ascertaining any specific limitation is made difficult by the nature of the medical profession in general and medical practice in particular: "The law recognizes that medicine is an inexact science at best and all a doctor may do is assist nature in accordance with the present state of medical experience." Hayes v. Brown, 108 Ga. App. 360, 363, 133 S.E.2d 102, 105 (1963). The first source of possible limitation upon the practice of acupuncture is the potential for civil liability derived from the private tort law of medical malpractice. Under Georgia law, physicians must use "such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally." McLendon v. Daniel, 37 Ga. App. 524, 528, 141 S.E. 77, 79 (1927). It is evident that this standard does not explicitly prohibit the use of experimental devices or treatment, and subsequent case law in Georgia has not considered whether the standard might impliedly prohibit such treatment. In other jurisdictions, courts have not held the use of new techniques or treatments to be a prima facie violation of a physician's standard of care; however, patients must be made aware of the special hazards of such treatment and consent to its use. See Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972); Mitchell v. Robinson, 334 S.W.2d 11 (Mo. S.Ct. 1960). Commentators also discuss the problem of human experimentation in terms of obtaining a patient's adequate informed consent to the use of extraordinary treatment. See: Note, Medical Experiment Insurance, 70 Colum.L.Rev. 965 (1970); Comment, Experimentation on Human Beings, 20 Stan.L.Rev. 99 (1967). In the Mitchell case, supra, the court considered the nature of the illness, the "new and radical procedure" involved, and the high incidence of potential injury resulting from this 73-131 228 procedure in concluding that the defendants "owed their patient ... the duty to inform him generally of the possible serious collateral hazards. . . ." Id. at 19. Although the common law of medical consent has been codified in Georgia, this statute does not regulate the use of experimental devices or treatment. In Georgia, authorized persons may consent to "any surgical or medical treatment or procedures not prohibited by law which may be suggested, recommended, prescribed or directed by a duly licensed physician...."Ga. Laws 1971, p. 438, as amended (Ga. Code Ann. 88-2904) (emphasis added). Since the practice of acupuncture is not specifically or implicitly prohibited by any law or regulation, this statutory provision would not limit such treatment. Review of the cases discussed relating to questions of malpractice indicates that the law of human experimentation is more a matter of misrepresentation, disclosure, and consent than a matter of the actual prohibition of experimental therapy. In light of the present state of the law, whether the use of acupuncture devices generally, or in any set of circumstances would breach the standard of care applicable in malpractice cases is a factual question beyond the scope of this opmwn. The second source of potential constraint on the practice of acupuncture may be found in the authority of the Composite State Board of Medical Examiners to regulate the practice of medicine. The Board of Medical Examiners may suspend or revoke the license of a physician who has engaged in "unprofessional conduct likely to deceive, defraud, or harm the public.... " Ga. Code Ann. 84-916 (16) (amended by Ga. Laws 1970, p. 301). The term "unprofessional conduct" has been defined to mean "that which, by common understanding and general opinion, is considered to be grossly immoral, dishonorable, or disreputable in connection with the practice of medicine." Georgia Board of Chiropractic Examiners v. Ball, 224 Ga. 85, 88, 160 S.E.2d 340 (1968). Noting that the statute in question did not prohibit merely unethical conduct, the court used the principle of ejusdem generis to conclude that the advertising of X-rays did not constitute sufficient unprofessional conduct to justify revocation of a chiropractor's license to practice. In its discussion of "unprofessional conduct" the court quoted the following statement: " ' Thus, a statute authorizing revocation for immoral, dishonorable or unprofessional acts or conduct contemplates conduct which either shows that the person is guilty of it or is intellectually or morally incompetent to practice the profession or has committed an act or acts of a nature likely to jeopardize the interest of the public... .' 41 Am. Jur. 175-176, Physicians and Surgeons, 49.'' Id. (Emphasis added.) 229 73-132 Courts in other states with similar statutes have also recognized a distinction between unethical and unprofessional conduct. In Texas State Board of Medical Examiners v. Koepsel, 315 S.W.2d 652 (Tex. Civ. App. 1958), the court recognized this dichotomy in concluding that possible immoral conduct was not sufficient unprofessional conduct to justify revocation of a physician's license to practice. The court stated that "the kind of fraud and deception covered by this section has reference to quacks and charlatans who prey upon the credulous and unwary by representing themselves as possessing miraculous cures which do not in fact exist, knowing that such claims are false." Id. at 653. However, seeMortinez v. Texas State Board of Medical Examiners, 476 S."\V.2d 400 (Tex. Civ. App.); app. dismissed, 93 S.Ct. 463 (1972) (upholding constitutional validity of revocation of license for immoral, unprofessional conduct). Since there is no case law in Georgia adjudicating the contours of "immoral, dishonorable, or disreputable" conduct, or conduct likely to "jeopardize" the public interest, a definitive opinion on whether the practice of acupuncture would constitute such conduct is not possible. The Composite State Board of Medical Examiners in the first instance must make this determination. In light of the foregoing, it is my official opinion that the practice of acupuncture constitutes the practice of medicine under the laws of Georgia. In the absence of specific regulatory action, there are no restrictions on such practice if conducted by licensed physicians; however, based on adequate administrative findings, the Board of Medical Examiners may conclude that the practice of acupuncture constitutes "unprofessional conduct" justifying imposition of a sanction with respect to a physician's license to practice. OPINION 73-132 To: Commissioner, Department of Human Resources August 16, 1973 Re: Department of Human Resources; appropriation to, insofar as committed to private organization, is unconstitutional. This is in reply to your request for an opinion as to whether the Department of Human Resources may implement certain language in the General Appropriations Act for Fiscal Year 1974 (Ga. Laws 1973, pp. 1353, 1372). The pertinent language is as follows: 73-132 230 "Section 22. Department of Human Resources. "A. Operations .............. $287,026,700 * * * "Provided, that of the above appropriation, $400,000 is designated and committed for the Savannah Sheltered Workshop." (Emphasis added.) You have informed us that the Savannah Sheltered Workshop is a privately owned and operated facility providing certain rehabilitative services. While the department was not consulted with respect to this provision, it is your understanding that this language was added to provide Savannah Sheltered Workshop with funds to expand or improve its existing physical plant. In responding to your request, we must begin with the fundamental principle that a statute should be construed in a manner that sustains its constitutional validity. Fordham v. Sikes, 141 Ga. 469 (1914). For the following reasons, however, it is my official opinion that the language involved may not be constitutionally implemented in any of its possible interpretations. Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402 (1)) provides as follows: "1. The General Assembly shall not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association...." If by the pertinent language of Section 22 of the General Appropriation Act a direct grant of funds to the private organization is contemplated, Article VII, Section I, Paragraph II of the Constitution stands as a clear impediment to its lawful implementation. If, on the other hand, the pertinent language of Section 22 is construed as an authorization to expend state funds for the construction by the state of stateowned improvements at the Savannah Sheltered Yvorkshop, it is nevertheless in direct conflict with the Constitution. Ops. Att'y Gen. 1960-61, p. 386; 69-203. Reinforcing these conclusions is the fact that Article VII, Section I, Paragraph II of the Constitution, by virtue of an amendment added in 1966, Ga. Laws 1966, p. 998, permits the Department of Human Resources to disburse available federal grants to nonprofit corporations or associations engaged solely in vocational rehabilitation. That authorization does not permit a gift of state funds. See Ops. Att'y Gen. 1963-65, p. 638 (1964). One other possible interpretation of the pertinent language of Section 22 of the General Appropriation Act is suggested by subsequent language therein which contains an appropriation of $650,000 "for the 231 73-132 sheltered workshops for the mentally retarded." You have indicated that the reference is to one aspect of the department's vocational rehabilitation program, which involves provision of rehabilitation services through what are known as "sheltered workshops." These services are provided through state-owned and operated workshops or state contracts for rehabilitation services with privately owned workshops, as defined in Section 1 (o) of Ga. Laws 1951, p. 516, as amended (Ga. Code Ann. 32-2301 (o)). Such an appropriation does not fall within the prohibitions outlined above. It is possible that the General Assembly intended a similar appropriation with respect to Savannah Sheltered Workshop, authorizing the department to expend the appropriated amount only through a contract with Savannah Sheltered 'Vorkshop. We are persuaded that even with such a construction, however, the pertinent language of Section 22 may not constitutionally be implemented. The management and control of the state's vocational rehabilitation services is vested by general law in the Department of Human Resources. Ga. Laws 1951, p. 516, as amended (Ga. Code Ann. Ch. 32-2302). That general law vests the discretionary responsibility in the department to determine what, if any, services will be contracted for and with whom the department will enter into such a contract. Ga. Code Ann. 32-2302, 32-2303. The General Assembly by an appropriation authorizes a state agency to expend public funds up to a maximum amount for a purpose within the responsibilities of the agency under general law; it may do no more or no less than that. Ga. Const., Art. VII, Sec. IX, Par. I (Ga. Code Ann. 2-6201); Art. III, Sec. VII, Par. IX (Ga. Code Ann. 2-1909); Ga. Code Ann. 40-402 (1) (2), based on Ga. Laws 1962, pp. 17, 19. See Ops. Att'y Gen. 67-189; 73-80. By its language the General Assembly may so restrict an appropriation as to limit the authorized expenditure of the appropriated amount to a particular function within the range of activities carried on by a state agency so that the agency may spend those funds for that activity and no other. Thus, the appropriation for the Sheltered Workshop Program, referred to above, authorizes the expenditure of the appropriated amount only for that activity, even though that activity is one of many within the range or vocational rehabilitation services offered by the department. The General Assembly, however, clearly may not do any more than restrict authorized expenditure to a particular purpose. Op. Att'y Gen. 73-80. Except by general law, the General Assembly may not alter the power of the agency under general law nor may it command the expenditure of funds for that purpose. The pertinent language of Section 22 of the General Appropriations Act conflicts with those principles. 73-133 232 Where general law authorized the Department of Human Resources to determine needed vocational rehabilitation services, the pertinent language of Section 22 restricts the authorized expenditure to those services provided by the Savannah Sheltered Workshop, regardless of whether the department determines that those services are warranted or within its statutory power. Indeed, you have informed us that the department does not have any need for services provided by the Savannah Sheltered vVorkshop. Where general law authorizes the department to determine whether needed services may be best provided by public or by private organizations, the pertinent language of Section 22 restricts the authorized expenditure for services under contract with a private party, designating the private party to be contracted with and the amount to be expended in such a contract. Such restrictions do not comport with the constitutional principles set forth above. For the foregoing reasons, it is my official opinion that the part of Section 22 of the General Appropriations Act for Fiscal Year 1974, Ga. Laws 1973, p. 1353, which "designated and committed"public funds to Savannah Sheltered Workshop may not constitutionally be implemented. OPINION 73-133 To: Commissioner, Department of Transportation August 20, 1973 Re: Department of Transportation; use of funds for bikeways. This is in reply to your inquiry concerning the department's authority in regard to bikeways in this state. You ask four basic questions which will be answered separately. Since you have not defined bikeway I will assume that the bikeway you contemplate is a separate and distinct thing from a state-aid road and that the bikeway is not merely to be an extra strip of paving alongside an existing state-aid road or public road. Your first question is whether or not the department may use motor fuel tax funds for the planning, designing, purchase of right-of-way and easements, construction, and maintenance of bikeways off the State Highway System. Ga. Const., Art. VII, Sec. IX, Par. IV (b) (Ga. Code Ann. 2-6204 (b)), provides in part that the money derived from motor fuel taxes less refunds, rebates and collection costs, is appropriated for all activities incident to providing and maintaining an adequate system of public roads and bridges in this state. Thus, the question becomes whether or not a public bikeway would be included within the words "public roads or bridges" as those words are used in the Constitution. 233 73-133 The word "road" is defined in Black's Law Dictionary, 1564 (3rd ed. 1944), as a highway. The Supreme Court of Georgia has noted that the words "road" and "highway" are usually synonymous. Southern Railway Co. v. Combs, 124 Ga. 1004 (1906). In Griffin v. Sanborn, 127 Ga. 17 (1906), the court defined "road" as a generic term which included all overland ways, but noted that it had no fixed meaning in the law and the scope to be given it depended upon the context in which it was used. Therefore, the context in which "public roads" is used must be closely examined. The section of the Constitution involved is that section which appropriates the motor fuel tax. This suggests a strong relationship between this tax and the "public roads" for which the tax is to be used. "Constitutions are the result of popular will, and their words are to be understood ordinarily in the sense that they convey to the popular mind." City of Valdosta v. Singleton, 197 Ga. 194 (1944). Therefore, the words "public roads" should be given the meaning they convey to the general public mind. The words "public roads" usually mean ways upon which various types of vehicles may travel and which may be enjoyed and used by the public for various types of travel. Therefore, applying the principles of construction set out above, it is my official opinion that motor fuel tax funds may not lawfully be used by the department for the planning, designing, purchase of right-of-way and easements, construction and maintenance of ways for the sole travel of bicycles off the State Highway System. Your second question is whether or not the department may use motor fuel tax funds for the planning, designing, purchase of right-ofway and easements, construction, and maintenance of bikeways on the State Highway System. The State Highway System is defined at Ga. Laws 1973, pp. 959, 965 (Ga. Code Ann. 95A-201 (a)) as follows: "The State Highway System shall consist of those public roads which on the effective date of this Title are shown by the records of the department to be "state-aid roads"; those public roads thereafter designated by the department as part of the State Highway System; and all national interstate and defense highways within the state." Thus, the State Highway System by statutory definition is comprised of (1) "state-aid roads," (2) public roads which are designated by the department, and (3) all interstate and defense highways within Georgia. Since a bikeway would not fit into any of the three categories above, it is difficult to see how your second question could ever arise. However, if you envision a factual situation where the bikeway you contemplate could fit into any of the three categories above, the constitutional requirement discussed above would be satisfied and you could use motor 73-133 234 fuel tax funds for the planning, designing, purchase of right-of-way and easements, construction, and maintenance of any such bikeway. Your third question is whether or not the department may use other appropriated funds, i.e., funds other than motor fuel tax funds, for the planning, designing, purchase of right-of-way and easements, construction, and maintenance of bikeways off the State Highway System. The General Assembly in the General Appropriations Act, Ga. Laws 1973, pp. 1353, 1394, has appropriated to the Department of Transportation from funds other than motor fuel taxes $25,000 for planning a state-wide system of multi-purpose trails and $50,000 as capital outlay for construction of a pilot bicycle trail. By proviso, the department is authorized to use the $50,000 or any portion thereof to match federal and local funds to finance part of the staged construction of a pilot bikeway project. Also, Ga. Laws 1973, p. 470, authorizes the department to construct bicycle trails in this state after the routes of any such trails have been determined by the Department of Natural Resources. The word "construction" is defined at Ga. Laws 1973, pp. 959, 960 (Ga. Code Ann. 95A-104), as "the planning, location, surveying, supervising, inspecting, and actual building of a new road ...." It should be noted that the purchase of right-of-way and maintenance is not included in that definition. Also, after examining the General Appropriations Act, Ga. Laws 1973, p. 1353 et seq., I have been unable to locate an appropriation for the purchase of right-of-way for a bikeway or for maintenance of a bikeway. The appropriation and authorization statutes place no prohibition on the department as to whether the bikeway in question must be on or off the State Highway System. Therefore, it is my official opinion that the department may use other appropriated funds as set out above for the planning, designing, and construction of bikeways off the State Highway System. Your fourth question is whether or not the department may use the other appropriated funds, i.e., funds other than motor fuel tax funds, for the planning, designing, purchase of right-of-way and easements, construction, and maintenanee of bikeways on the State Highway System. For the reasons stated in my response to your questions two and three, it is my official opinion that the other appropriated funds as set out above may be used for the planning, designing, and construction of bikeways which may be on the State Highway System. 235 73-134 OPINION 73-134 To: Director, Employment Security Agency August 21, 1973 Re: Workmen's compensation; Neighborhood Youth Corps as subject to law. This is in response to your recent letter regarding the workmen's compensation coverage for trainees under the Neighborhood Youth Corps (NYC). In your letter, four specific questions were asked. These questions are all, in effect, asking who is the employer for workmen's compensation purposes under the NYC fact situation. To understand the problem, the fact situation must be discussed. Your office advises that NYC is a federally funded program, which is administered through the Employment Security Agency of the Georgia Department of Labor, either directly or by subcontractors. The administrating body hires underprivileged youths, pays their salaries and sends them to various local organizations. These local organizations, usually county or city boards of education, county or city commissions, or nonprofit organizations, supervise the youths while working on local projects. The local organization has the authority to select the project, to decide which youth will work on which project and in what capacity. It also has the authority to reject any youth that it does not want. In other words, the local organization has complete control over the workers, and the administrator does the initial hiring and the paying of salaries from the federal funds. The situation presented by these facts is known as the "lent employee" or "the special servant-special master relationship." See generally, 1A Larson, Workmen's Compensation 48.00 et seq. This is the problem of who is the employer when an individual is hired by one master and does the bidding of another. The employer is the master who has control over the time, manner and method by which the employee performs his task. See State Department of Revenue v. McCray, 101 Ga. App. 348, 350 (1960); Smith v. Globe Indemnity Co., 89 Ga. App. 498, 499 (1954); City of Brunswick v. Taylor, 87 Ga. App. 751, 754 (1953). This would seem like an easy test, but like so many legal guidelines, it is not. It is possible for both masters to exercise enough control that they will be joint employers. See United States Fidelity & Guaranty Co. et al v. Forrester et al., 126 Ga. App. 762 (1972); Scott v. Savannah Electric & Power Co., 84 Ga. App. 553, 556 (1951). See 1A Larson, Workmen's Compensation 48.40. However, the facts could be such that the claimant is the servant of both masters, but when the injury occurred he was the employee of only one master. See State Department of Revenue v. McCray et al., supra; City of Bnmswick v. Taylor, supra; City of Brunswick v. King, 73-134 236 65 Ga. App. 44 (1941). The difference between being an employer and not being an employer is the degree of control one has over the servant. There is no way of saying with complete certainty that one master is an employer or is not an employer since each case must be decided on its own particular facts. See Smith v. Globe Indemn,ity Co., supra at 499. However, the 1l1cCray, Taylor and King cases may be of some assistance since the facts in these eases were similar to the NYC facts. In McCray, the State Revenue Department and a distillery were each paying half of the claimant's salary for unloading crates. The claimant was injured during the unloading. The Court of Appeals held that the state agency was not an employer because the distillery exercised complete control over the unloading process. In Taylor, claimant managed a park owned jointly by the city and the county and was injured at the park. The evidence was held sufficient to find that the city was the sole employer because it exercised complete control over the claimant. King is perhaps the closest factually to the present situation. The claimant was a servant of both the county and the city; he was a worker on a toll draw bridge. The city had complete control over the employee. The county collected the receipts from the bridge, paid the claimant's salary from the receipts and split the profits with the city. Even though the county paid the claimant's salary, the Court of Appeals found sufficient evidence of control to affirm the administrative finding that the city was the sole employer. Each of these cases was based on the principle that between two corporations or governmental bodies, the one which has the direct supervision and control over the employee is to be considered the employer for purposes of compensation. See State Department of Revenue v. McCray, supra at 350; City of Brunswick v. Taylor, supra at 754; City of Brunswick v. King, supra at 45. I can see no reason why this principle would not apply to the NYC program. Since under the NYC the local organizations have exclusive control over the employee as to the work done, the time when performed, the method used, the employee used and the right to reject any employee, it would seem that the local organizations are the employers. The administrator who only does the initial hiring and pays the salary (from federal funds) may be the general master, but generally is not the employer under the workmen's Compensation Law for injuries occurring during local control. However, this is not to say that there will never be a fact situation under the NYC program where the administrator will be considered the employer for workmen's compensation purposes. There could be a particular time when the administrator has sufficient control over the youth so that it becomes an employer. There is one more point that must be brought to your attention. Although the state self-insurance program will cover the youths when 237 73-135 they are state employees, the local organization's coverage will cover the youths only if that employer is subject to the Workmen's Compensation Act. The Act does not include nonprofit organizations. Ga. Laws 1920, p. 167, as amended (Ga. Code Ann. 114-101); see Op. Att'y Gen. 68-240. Consequently, you may wish to exclude these organizations from your program and concentrate on units of local government as supervisors. Based on this discussion, it is my official opinion that under the NYC program, the local organization which supervises and controls the youths is their employer for workmen's compensation purposes during the period of control. OPINION 73-135 To: Joint Secretary, State Examining Boards August 28, 1973 Re: Podiatry Board; rejection of applications for licenses by reciprocity. You have requested an opinion as to whether the Podiatry Board may refuse to consider any applications for licenses by reciprocity, upon a majority vote of the board to this effect. Ga. Code Ann. 84-607 provides: "Persons licensed to practice podiatry in other states having statutory requirements equal to those of Georgia may, in the discretion of the board, be issued a license to practice in this state without examination ... if such states extend the same reciprocal privilege to this state." Amended by Ga. Laws 1958, p. 174. This statute constitutes a delegation of power to the Podiatry Board to exercise its discretion in determining whether persons who otherwise satisfy the requirements of the above statute shall be issued a license to practice podiatry in Georgia without the necessity of taking the state examination. The General Assembly has the power to delegate authority to an instrumentality of the state to exercise discretion in matters that the state may regulate, and this is so even though the statute conferring the authority contains no explicit guidelines for the control of this discretion. In such cases the statute will be construed as authorizing the exercise of reasonable discretion. However, the General Assembly cannot confer arbitrary or unlimited power, nor may the board act arbitrarily or capriciously. Cutsinger v. City of Atlanta, 142 Ga. 555 (1914). 73-136 238 "There is quite a difference between the exercise of police power by a state and the delegation of that power to be exercised by some board or subdivision of the state. where there is a delegation of power it has been uniformly held that its exercise must be reasonable and not arbitrary and capricious." Blackman Health Resort v. City of Atlanta, 151 Ga. 507, 516 (1921). It is therefore my official opinion that the Podiatry Board may not arbitrarily decide to reject all applications for licenses by reciprocity. However, if there is some reason why such a policy is advisable, then the board may implement this policy by virtue of the discretion vested in it by Ga. Code Ann. 84-607. OPINION 73-136 To: State Superintendent of Schools August 28, 1973 Re: City and county boards of education; pre-school educational activities; restrictions upon use of school funds. In your letter of August 7, 1973, you refer to uncertainty over the meaning of the term "elementary and secondary education" as used in Georgia's school laws and ask whether "elementary education" can include such "pre-school educational activities" as are provided for at public expense under the "Early Childhood Development Act," Ga. Laws 1972, p. 722 et seq. (Ga. Code Ann. Ch. 32-21B). In responding to your inquiry I find myself faced with an initial problem concerning the form of your question. while asked in the terms I have just stated, I rather suspect that what you really want to know is whether or not local school systems may lawfully engage in these "pre-school educational activities." As you will soon see, the two questions are not the same, and whether or not the "pre-school educational activities" contemplated by the "Early Childhood Development Act" can be said to be a part of "elementary education" has little or no relevance to the question of whether or not local school systems may engage in or fund such activities. It follows that were I to restrict my reply to the precise question asked, the response would be a meaningless academic exercise. I feel certain that this is not what you want. To start with, I might point out that the phrase you mention (i.e., "elementary and secondary education") is not a term which is widely used in Georgia's school laws. Its principal usage seems to be in the Minimum Foundation Program of Education Act (e.g., Ga. Code Ann. 32-603, 32-605; Ga. Laws 1964, p. 3). As you know, this Act deals with state fiscal assistance to local school systems, and while providing minimum standards which local systems must meet as a condition of 239 73-136 obtaining state funds, the Act is in no way a limitation on the broad powers of local school boards to establish, maintain, control and manage "public schools" and spend their own local tax revenues for such educational programs and activities as they may deem to be desirable. These broad powers stem in part from the Constitution of the State of Georgia of 1945. It is perhaps useful to point out that under Ga. Canst., Art. VIII, Sec. V, Par. I (Ga. Code Ann. 2-6801), the broad grant of power to county boards of education to establish, maintain, manage and control the "public schools" of its school system not only contains no grade or age limitations, but in no way prohibits or precludes the .General Assembly from granting other and additional powers to local school boards through statutory enactments (whether related to education or not). In general, it might be said that county and city boards may engage in any activity which the General Assembly authorizes them to engage in so long as no constitutional violation (federal or state) is involved. The power of a local school board to expend funds derived from local school taxes, on the other hand, is more narrowly circumscribed by the Constitution of Georgia than is the permissible scope of its legislatively authorized actions in general. Ga. Canst., Art. VIII, Sec. XII, Par. I (Ga. Code Ann. 2-7501), in giving counties the power to levy taxes "for the support and maintenance of education" (again, it should be noted, without any grade or age limitations), further provides: "School tax funds shall be expended only for the support and maintenance of public schools, public education, and activities necessary or incidental thereto, including school lunch purposes." Thus it would be possible in some situations for a local board of education to engage in activities pursuant to legislative enactments consistent with Article VIII, Section V (relating to general powers), for which it would at the same time be prohibited from expending any local school tax funds by virtue of Article VIII, Section XII. Fortunately, this predicament is not involved in the present situation since the activities with which you are concerned are "pre-school educational activities" under the "Early Childhood Development Act." Since the activities are "educational," local school systems can support the same with local school tax funds as well as engage in these activities in a nonfiscal sense. In closing I might refer to the fact that this office wrote two separate opinions on the "Early Childhood Development Act" last year. See Ops. Att'y Gen. 72-38 and 72-116. If you reread these earlier opinions, I think you will see that the answer I have given today is really quite implicit--if not explicit-in the prior opinions. While the surface questions there dealt with the authority of the State Board of Education to administer the Act on the state level, the entire discussion cen- 73-137 240 tered around the State Board's ability to make grants of federal and state funds to local school systems so that they (i.e., the local school systems) could carry out the Act's purposes of providing programs of early childhood development. See also, e.g., Section 3 of the Act (Ga. Code Ann. 32-2103b). OPINION 73-137 To: Chairman, State Board of Pardons and Paroles August 30, 197:3 He: State Board of Pardons and Paroles; meaning of "majority vote"; effect of statute increasing membership. This letter is in reply to your request for my official opinion in which you ask whether the recent legislation increasing the membership of the Board of Pardons and Paroles to five had any effect upon language in the Georgia Constitution and statutes regarding decisions of the board. You specifically reference the constitutional language that ". . . in all cases, a majority shall decide the action of the board" (Ga. Const., Art. V, Sec. I, Par. XI; Ga. Code Ann. 2-3011), and the statutory language that " ... a majority vote of the members is sufficient for approval. ..." (Ga. Laws 1943, pp. 185, 187; Ga. Code Ann. 77-511, amended by Ga. Laws 1973, pp. 1294, 1296), and ask whether this language could be construed to authorize a vote by a majority (three) and the action of the board being decided by the majority (two) of those voting. You also inquire as to what effect the increase in the membership of the board has upon the language in Ga. Code Ann. 77-511 that " . . . provided, however, that the board by an affirmative vote of two of its members shall have the power to commute a sentence of death to one of life imprisonment." (Emphasis added.) Addressing your first inquiry, the referenced constitutional language sta.tes, "a majority ... of the board." The statutory language referenced states, " ... a majority vote of the members." The fundamental rule of construction of statutory language is that the ordinary signification shall be applied to all words. Ga. Code Ann. 102-102 (1). Applying this fundamental rule, I simply conclude that where the Constitution provides that "a majority shall decide the action of the board," the intended number is a majority of the board, not a majority of those members present and voting. With the increased membership of five, a majority of the board would, of course, require three or more members. Similarly, in the language of Ga. Code Ann. 77-511, a "majority vote of the members" requires a majority vote of the members of the board-three or more. 241 73-138 Your second question concerns the recently reenacted statutory language that the board by an affirmative vote of "two" members shall have the power to commute a death sentence to life imprisonment. This language of Ga. Code Ann. 77-511 was reenacted without change by the 1973 Georgia Legislature. Ga. Laws 1973, pp. 1294, 1296. Under the board's previous membership of three, two members voting for death commutation constituted a majority of the board; with the board's present numerical composition, two members, of course, do not constitute a majority. As noted in the second paragraph of this opinion, the Georgia Constitution provides that " ... in all cases, a majority shall decide the action of the board." (Ga. Const., Art. V, Sec. I, Par. XI; Ga. Laws 1972, pp. 1356, 1357; Ga. Code Ann. 2-~)011). I therefore conclude that notwithstanding the statutory language of Ga. Laws 1973, p. 1294, specifying that two members may commute a death sentence by affirmative vote, the constitutional requirement of a majority to decide the action of the board requires the affirmative vote of three members to commute a sentence of death to one of life imprisonment. OPINION 73-138 To: Director of Corrections August 31, 1973 Re: Prisons and prisoners; custody by Board of Corrections of persons with pending appeals; legal status of state warden as to persons with pending appeals. By letter dated July 25, 1973, you have requested an official opinion addressed to two questions raised by the Liaison Committee of Superior Court Judges. The questions are: 1. Is the Board of Corrections prohibited by law from assuming or retaining custody of a criminal offender for whom an appeal is pending, and if so, what constitutional or statutory changes would be required to change this proscription? 2. What is the legal status of a state warden if a prisoner has been assigned to his care while pending appeal and that prisoner is subsequently injured? As to the first question, the Director of Corrections makes an assignment of a prisoner to an institution upon receipt of the certificate of the clerk of the sentencing court as provided by Ga. Laws 1956, pp. 161, 171 (Ga. Code Ann. 77-309 (c) and (d)). The law makes no provision for the certification of an inmate whose conviction has not become final because of the pendency of a motion for new trial or an appeal. Id. The only exception to this rule is where the prisoner or his attorney or both 73-139 242 have made a request for the assumption of correctional custody pursuant to Ga. Laws 1971, p. 341 (Ga. Code Ann. 77-338 to 77-341). It is clear from a reading of these statutes that the State Board of Corrections may not assume lawful custody over an inmate unless either (1) his conviction has become final or (2) the prisoner or his attorney or both have asked the proper authorities for a transfer to correctional custody. In order to effect a change in the present authority of the State Board of Corrections, a change in the 1956 statute would be required. The second question deals with the legal status of the state warden into whose custody a prisoner whose appeal is pending has been placed. While the question is not totally clear to me, I am assuming from the reference to subsequent injury that the Liaison Committee is concerned that the exposure of the warden might through some quirk of the law be enhanced. I find no authority which would indicate that a warden's exposure is any greater in the case of an inmate who, though certified by the clerk of the sentencing court, has in fact either an appeal or a motion for new trial pending. The warden aets only upon an assignment by the Director of Corrections, who, in turn, acts upon the certification of the clerk of the sentencing court. I might emphasize that within the present context of massive postconviction procedures, the present structure of the law serves to prevent a judicial hiatus under which an inmate would be proceeding directly against his conviction in the original sentencing court and collaterally in a habeas corpus court, state or federal. OPINION 73-139 To: Commissioner, Department of Hu:man Resources August 31, 1973 Re: Emergency medical treatment by technicians under remote control of physicians. This is in reply to your inquiry as to whether the administering of drugs and intravenous fluids by emergency medical technicians employed as ambulance attendants will in any way violate the Medical Practice Act of Georgia. At the outset, we note that there is no definition of an emergency medical technician supplied by the Code of Georgia. The sole reference is that supplied by Ga. Code Ann. Ch. 88-31 (Ga. Laws 1972, p. 626) relating to the regulation of ambulance services, which cryptically provides that ambulance attendants employed after the effective date of the Chapter shall complete the American Red Cross advanced first aid course before employment and must pass the "emergency medical 243 73-139 technician test" within nine months of employment. Ga. Code Ann. 88-3112 (c). The statute also directs that the emergency medical technician course is to be offered at area hospitals or technical vocational schools. Thus, by "emergency medical technician" (hereafter EMT) we assume that you mean an ambulance attendant who has successfully completed such a course. 'Vhile the requirements and prerequisites of the course have apparently been left to the discretion of the Department of Human Resources, Ga. Code Ann. 88-3112, it is this very absence of statutory direction that creates the issue which you have presented. The Medical Practice Act provides that no person shall practice medicine without a valid license permitting such practice. Ga. Code Ann. 84-906, amended by Ga. Laws 1972, p. 673. The practice of medicine is defined as "holding oneself out to the public as being engaged in the diagnosis or treatment of disease, defects or injuries of human beings, or the suggestion, recommendation or prescribing of any form of treatment for the intended palliation, relief or cure of any physical, mental or functional ailment or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift or compensation whatsoever...." Ga. Code Ann. 84-901, amended by Ga. Laws 1970, p. 301. This definition is broad enough to include the administering of drugs and intravenous fluids by an EMT-ambulance attendant who is compensated for his services, and therefore an EMT engaging in these functions will violate the Medical Practice Act unless some exception to the Act exists. Ga. Code Ann. Ch. 88-31 is a comprehensive statute regulating ambulance services. While that statute specifically authorizes the rendering of emergency care by ambulance services, very little definitive language is apparent from which the limitations upon this authorization can be discerned. Ambulances subject to the statute must have supplies and equipment available for dressing wounds, splinting fractures, controlling hemorrhaging and providing oxygen. Ga. Code Ann. 88-3105 (b). By so providing, the General Assembly obviously contemplated that these procedures would be undertaken by ambulances. These are traditional emergency procedures of a "first-aid" nature and, by requiring supplies for these functions, and also requiring corresponding training on the part of ambulance personnel (Ga. Code Ann. 88-3112 (c)), there is evidenced a clear intention to have these emergency procedures performed by qualified personnel. The law of Georgia is not to be construed by a single Code section; the entire system must be construed as a whole to determine the intent and purpose of the law. Lucas v. Smith, 201 Ga. 834, 837 (1947). Also, separate 73-139 244 provisions which relate to the same subject-matter should be construed so as to harmonize and give full effect to all provisions if possible. Mitchell v. Union Bag & Paper Corp., 75 Ga. App. 15, 17-18 (1947). Therefore, due to the clear expression of intention by the General Assembly to allow qualified ambulance personnel, including those who have successfully completed the EMT course, to dress wounds, splint fractures, control hemorrhaging, administer oxygen, and to perform other tasks of a first-aid nature comparable to those enumerated above, insofar as these specific functions are concerned, Ga. Code Ann. Ch. 88-31 creates an exception to the Medical Practice Act. However, the administering of drugs and intravenous fluids cannot be said to have been clearly authorized by this statute. These procedures would require the exercise of considerably more medical discretion by the ambulance personnel and create a different problem. While the General Assembly could have authorized these acts, it did not do so clearly. Code Ch. 88-31 provides that the Department of Human Resources is specifically authorized to promulgate rules and regulations for the protection of the public health by "(b) Prescribing reasonable conditions under which ambulance attendants are required; and (c) Establishing certain criteria for the training of ambulance attendants and prescribing further: (1) Such ambulance atendant must have successfully completed the standard American Red Cross advanced first aid course or equivalent. (2) Such ambulance attendant, if he be employed as such, must successfully complete within 24 additional months following the completion of requirement (1) above, the basic Department of Transportation course or an equivalent course prescribed by the Medical Association of Georgia. New employed attendants, after the effective date of this Chapter, must have completed the standard American Red Cross advanced first aid course or equivalent before employment and must pass the emergency medical technician test within nine months of employment, except in hardship cases approved by the department." Ga. Code Ann. 88-3112. Nowhere in this statute is there language which should be construed to create a specific exception to the Medical Practice Act for ambulance attendants who have completed the EMT course, in relation to the administering of drugs and intravenous fluids, as there is for splinting fractures, controlling hemorrhaging, dressing wounds, and giving oxygen. Therefore, if such practices are authorized, they must be authorized by some exception within the Medical Practice Act itself. The Medical 245 73-139 Practice Act, Ga. Code Ann. 84-906 (b), sets forth 10 exceptions to the general prohibition against medical practice without a valid license, one of which provides as follows: "(b) Nothing in this Chapter shall be construed to prohibit: * * * (9) ... the delegation by a physician to a qualified person other than a physician's assistant of any acts, duties or functions which are otherwise permitted by law or established by custom and the performance [of such duties by such person]." (Emphasis added.) If the EMT is to fall within any specific exception to the Medical Practice Act it must be this particular exception. The EMT, you have informed us, undergoes a course of training of over 100 hours, and is a "qualified person," at least within the limits of his training. While the Department of Human Resources should not attempt to institute procedures which would be beyond the capacity of persons without a physician's training, there would seem to be little problem with the mechanics of administering drugs and intravenous fluids, particularly since these functions are regularly performed by licensed paramedical personnel, i.e., nurses. However, the function of the EMT must also be either "otherwise permitted by law or established by custom." If the administration of drugs and intravenous fluids by EMT personnel at the direction of a physician is presently established as a custom in the medical profession, then the practice is lawful; but if such is not the established custom, then such act must be "otherwise permitted by law" in order to be lawful. The EMT course requirement contained in the Ga. Code Ann. 88-3112 would seem to "permit," under the circumstances, the performance of the functions taught in the EMT course. Otherwise, the requirement is meaningless since such training is not necessary merely to drive an ambulance. The most troublesome problem, however, is that these acts must also be performed pursuant to the "delegation of a physician" in order to fully comply with the requirements of the exception. Ga. Code Ann. 84-906 (b) (9). While there is little problem where a physician has seen the injured person and directs that an EMT do certain things, the nature of an EMT's services requires that he go out to injured persons without a physician accompanying him; herein lies the very purpose and value of an EMT. However, it is the exercise of discretion and judgment by the EMT that causes the difficulty as to Code 84-906 rather than the actual mechanical performance of the functions which the EMT has been trained to perform. Therefore, it is my official opinion that an emergency medical technician-ambulance attendant should be permitted to administer drugs and intravenous fluids only when directed to do so by a physician. However, the very nature of the work of an emergency medical techni- 73-140 246 cian is such that a physician cannot always be physically present. Therefore, direction through oral communications, as by telephone or radio, is sufficient. Under these circumstances, the administration of drugs and intravenous fluids by emergency medical technicians would not violate the Medical Practice Act of Georgia. OPINION 73-140 To: Secretary of State September 5, 1973 Re: Corporations which meet licensing requirements of Out of State Land Sales Act must also qualify under Corporation Act. You have requested my official opinion as to whether a foreign corporation meeting the requirements of your office as to the Out of State Land Sales Act (Ga. Laws 1971, p. 856 et seq. (Ga. Code Ann. Ch. 84-58)) is required to qualify to transact business as a foreign corporation pursuant to the Georgia Business Corporation Code (Ga. Code Ann. Title 22, based on Ga. Laws 1968, p. 565 et seq.). Under the Corporation Code a foreign corporation must procure a certificate from your office in order to transact business in this state, unless another statute requires the foreign corporation to qualify thereunder, in which case the requirements of the latter statute govern. Ga. Code Ann. 22-1401 (a), based on Ga. Laws 1968, pp. 565, 707; 1969, pp. 152, 201. Under the Out of State Land Sales Act, before any subdivision, or lot, parcel, unit or interest in any subdivision situated outside of Georgia may be offered or disposed of in this state, the subdivider must be licensed under the Out of State Land Sales Act. See Ga. Code Ann. 84-5806. The actual problem is to determine whether a license under the Out of State Land Sales Act is the same as "qualification to transact business in the state" under Ga. Code Ann. 22-1401 (a). If the two terms are the same, then a foreign corporation which is licensed under the Out of State Land Sales Act is not required to obtain a certificate to transact business in the state under Ga. Code Ann. 22-1401 (a). A careful reading of Ga. Code Ann. Ch. 22-14 indicates that this Chapter is desi?ned to regulate the transaction of business in Georgia in the corporate form. Specifically, the qualification requirement is designed to allow the state to inspect the condition, solvency, and standing of the corporation, as well as to subject foreign corporations to the jurisdiction of the courts of the state and to provide revenue. Osborne and Co. v. Shilling, 74 Kan. 675, 88 P. 258 (1907). On the other hand, the Out of State Land Sales Act requires a business license to offer or dispose of in this state land which is situated 247 73-141 outside of Georgia, regardless of the nature of the organization which is authorized to do so. The license under the Out of State Land Sales Act is required for individuals, firms, companies, associations, corporations, etc. See Ga. Code Ann. 84-5801 (3). It is thus apparent that "qualification to transact business" under Ga. Code Ann. 22-1401 (a) is not equivalent to qualification for license under the Out of State Land Sales Act. Therefore, it is my official opinion that a corporation meeting the licensing requirements of the Out of State Land Sales Act must also qualify to do business under the Georgia Business Corporation Code. OPINION 73-141 To: Joint Secretary, State Examining Boards September 5, 1973 Re: Hair implants as practice of medicine. You have requested an opinion regarding whether persons performing hair replacements or hair implants by means of certain described procedures would be subject to the jurisdiction of one of the state examining boards. The procedure set forth in a letter from the Chairman, Georgia State Board of Barbers, involves the surgical implantation of artificial hair pieces into the scalp by sewing teflon rings into the scalp and then tying the rings onto hair pieces. Your question will be discussed in terms of two issues: first, is the surgical implantation of hair the practice of medicine in Georgia, and secondly, if so, may the procedure be regulated by a state examining board other than the Composite State Board of Medical Examiners. vVith respect to the first issue, the definition of practicing medicine found in Ga. Code Ann. 84-901 is controlling: "The terms 'practice of medicine,' 'to practice medicine,' 'practicing medicine,' and 'practice medicine,' as used in this Chapter, are hereby defined to mean holding one's self out to the public as being engaged in the diagnosis or treatment of disease, defects or injuries of human beings, or the suggestion, recommendation or prescribing of any form of treatment for the intended palliation, relief or cure of any physical, mental or functional ailment or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift or compensation whatsoever...." Ga. Laws 1913, pp. 101, 108; 1918, pp. 173, 196; 1970, pp. 301, 303. As noted in our recently issued opinion concerning the practice of 73-141 248 acupuncture, dated August 9, 1973 (Op. Att'y Gen. 73-131), this definition has been broadly interpreted as including all practitioners of any healing art not specifically exempted by another statute. See Georgia Association of Osteopathic Physicians and Surgeons, Inc. v. Allen, 31 F. Supp. 206 (1940); Mabry v. State Board of Examiners in Optometry, 190 Ga. 751, 10 S.E.2d 740 (1940). Although the terms "surgery" or "surgical procedure" are not specifically incorporated into the definition of "practicing medicine," supra, that definition, particularly the phrase "any form of treatment," is sufficiently broad to encompass surgery within its meaning. Furthermore, the following definition specifically includes surgery as a ''branch of medical science'' : "Surgery ... is that branch of medical science concerned with the correction of deformities, repair of injuries, diagnosis and cure of disease, relief of suffering, and prolongation of life by manual and instrumental operations." Hartford Accident & Indemnity Co. v. Barfield, 89 Ga. App.562, 80 S.E.2d 84 (1954). The question of whether or not baldness may be considered to be a "deformity" or "disease" need not be answered, since relevant case law indicates that the proper inquiry should focus on the nature of the procedure employed rather than the malady treated. Several malpractice cases have considered questions regarding surgery as the practice of medicine. These cases indicate that persons not licensed as physicians should not be permitted to utilize surgical treatments. See, e.g., Andrews v. Lofton, 80 Ga. App. 723, 57 S.E.2d 338 (1950) (tonsillectomy by unlicensed practitioner illegal, although not a basis for an inference of negligence); Mims v. Ragland, 59 Ga. App. 703, 2 S.E.2d 174 (1939) (chiropractor exceeded the limits of his profession by performing a surgical operation for hemorrhoids). Similarly, in Georgia Association of Osteopathic Physicians and Surgeons, Inc. v. Allen, supra, the court concluded that the Board of Osteopathic Examiners could not issue a license purporting to authorize a licensed osteopath to perform major surgery. Id. at 213 (dictum). These cases and the relevant statutes indicate that the performance of any surgical treatment constitutes the practice of medicine in Georgia. As a result, unless a particular surgical treatment is expressly or impliedly exempted by another licensing statute, that treatment may only be performed by a practitioner licensed by the Composite State Board of Medical Examiners. Other than licensed medical practitioners, the only persons specifically permitted to perform surgery on human beings are licensed podiatrists and dentists. The podiatry statute provides as follows: "Podiatry (chiropody) ... means the diagnosis, medical, surgical, mechanical, manipulative and electrical treatment limited to ail- 249 73-142 ments of the human foot and leg. No podiatrist shall do any amputation or use any anesthetic other than local." (Emphasis added.) Ga. Code Ann. 84-601 (Ga. Laws 1933, p. 115; 1958, pp. 174, 175). See Op. Att'y Gen. 1964, p. 649. Licensed dentists may "do any operation whatsoever on the human tooth, or teeth, gums or jaws...."Ga. Code Ann. 84-701 (Ga. Laws 1920, pp. 132, 136; 1949, pp. 1161, 1162). Since no other licensing statute expressly permits the performance of surgical treatment, it is my official opinion that other licensees are prohibited from engaging in any form of surgery on human beings. As a final matter, it should be noted that neither the Georgia Barber Act, Ga. Code Ann. Ch. 84-4, nor the provisions regulating cosmetologists, Ga. Code Ann. Ch. 84-44, permit the performance of surgical procedures. Under the former statute, "barbering" is defined as "the occupation of shaving or trimming the beard, cutting or dressing the hair, giving facial or scalp massages, giving facial or scalp treatment with oils or cream or other preparations made for this purpose, either by hand or mechanical appliances, singeing and shampooing the hair or dyeing the hair of any living person for compensation." Ga. Code Ann. 84-403 (b) (Ga. Laws 1971, p. 870). A licensed "cosmetologist" is defined in almost the identical manner. See Ga. Code Ann. 84-4401 (Ga. Laws 1963, p. 45, as amended). Neither of these definitions even remotely implies that the legislature intended to permit licensed barbers or cosmetologists to practice any form of surgical treatment or procedure relating to the scalp or any other part of the human anatomy. In light of the foregoing, it is my official opinion that the implantation of artificial hair into the scalp using any form of surgical procedure constitutes the practice of medicine in Georgia. As a result, the regulation of this practice is included in the authority of the Composite State Board of Medical Examiners. OPINION 73-142 To: Joint Secretary, State Examining Boards September 5, 1973 Re: Business brokers not required to have real estate broker's license where land only incidental to business sold. You have requested my official opinion with respect to the following two questions: 73-142 250 1. Does the real estate license law, Ga. Code Ann. Ch. 84-14, which was reenacted by Ga. Laws 1973, p. 100, require licensure of persons engaged in the occupation of assisting other people in buying and selling businesses? 2. May a business broker or salesman who applied for a license prior to the effective date of the reenactment of Ga. Code Ann. Ch. 84-14 be granted a temporary license under the prior Ga. Code Ann. Ch. 84-14? Ga. Code Ann. 84-1401 (a) defines "real estate" as including "busi- ness opportunity, condominiums and leaseholds, as well as any other interest or estate in land...." If "business opportunity" as used in Ga. Code Ann. 84-1401 (a) refers to the purchase and sale of business concerns, then the General Assembly intended to regulate business brokers and salesmen under Ga. Code Ann. Ch. 84-14 and they would be required to obtain a license under that Chapter. The cardinal rule of statutory construction, as set out in Ga. Code 102-102 (9), is that: "In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy...." Another rule of construction applicable to this problem is that under the doctrine of "noscitur a sociis" the meaning of doubtful words may be ascertained by reference to the meanings of words associated with them. Geer v. Birmingham, 88 F. Supp. 189 (N.D. Iowa 1950). Reading "business opportunity" together with "condominiums and leaseholds, as well as any other interest or estate in land," it is clear that the General Assembly intended to describe various estates or interests in land. The business brokerage field relates primarily to the purchase and sale of business concerns and relates only incidentally to land. with this principle in mind, it is apparent that the General Assembly intended to refer to "business opportunity" as those opportunities arising out of the purchase and sale of land. In the absence of specific facts, specific definition of the scope of what is included will have to be left to future development. Therefore, it is my official opinion that individuals engaged in the occupation of assisting other people in the buying and selling of business concerns, where land is only incidentally involved, are not required to be licensed under Ga. Code Ann. Ch. 84-14. In view of this conclusion, and the fact that "business opportunity" is not even mentioned under the prior Act, it is unnecessary to answer your second question. 251 73-143 OPINION 73-143 To: Director, Department of Veterans Service September 5, 1973 Re: Ambulances; operation as invalid car. I write in response to your letter of August 8, 1973, requesting my opinion as to whether the Department of Veterans Service must remove the support equipment from its ambulance in order to operate the vehicle as an "invalid car" within the meaning of Ga. Laws 1972, p. 625 (Ga. Code Ann. 88-3101 (j)). As you stated in your letter, the ambulance which the department owns is used for the sole purpose of transporting nonambulatory Georgia veterans between facilities which provide care and treatment and is not used for emergency purposes. Ambulance services, as defined in the above-cited ambulance licensing law, with certain exceptions, are required to be licensed by the Department of Human Resources. However, the provisions of the licensing law do not apply to "an invalid car or the operation thereof." Ga. Code Ann. 88-3111 (d). The licensing law defines an ambulance as "a motor vehicle that is specifically constructed and equipped and is 'intended to be used for the emergency transportation of patients, including dual purpose police ears and funeral coaches or hearses which otherwise comply with the provisions of this Chapter." Ga. Code Ann. 88-3101. (Emphasis added.) According to the physical description of your ambulance, it would appear that it would be within the statutory definition of an ambulance if it is "intended to be used" for the emergency transportation of patients but not otherwise. An "invalid ear" is defined in the licensing law as "a motor vehicle not used for emergency purposes but used only to transport persons who are convalescent, sick or otherwise nonambulatory." Ga. Code Ann. 88-3101 (j). Based on this definition, it is the intended use of the motor vehicle which determines whether a vehicle is an "invalid car." No statutory restriction is placed on how a motor vehicle must be equipped in order to be considered an "invalid car." Accordingly, an "ambulance," per statutory definition, being a motor vehicle, may well fall within the definition of "invalid car." Based on the foregoing, I am of the opinion that so long as the department operates its ambulance with the intention to "transport persons who are convalescent, sick or otherwise nonambulatory" and not for emergency purposes, then the provisions of Ga. Code Ann. 88-3101 would not be applicable. Accordingly, it would not be necessary for you to remove the support equipment from the ambulance. 73-144 252 OPINION 73-144 To: Chairman, State Board of Workmen's Compensation September 7, 1973 Re: State Personnel Board; authority as to personnel of State Board of Workmen's Compensation. This is in response to your recent letter requesting my official opinion as to what authority the State Merit System has over the State Board of workmen's Compensation. The answer to your question is found in Ga. Laws 1970, pp. 17, 18 (Ga. Code Ann. 54-112), the Act which placed the State Board of workmen's Compensation under the State Merit System. Section 1 of this Act provides that: "All officials, personnel and employees of the State Board of workmen's Compensation are hereby placed under the State Merit System and shall be subject to the laws and rules and regulations relative to said system: Provided, however, that except for compensation, such laws and rules and regulations shall not apply to the members of the board, the deputies and the secretary-treasurer, whose method of appointment, removal and terms of office shall remain as now provided by law." Amended by Ga. Laws 1970, pp. 17, 18 (Ga. Code Ann. 54-112). As I have pointed out in an earlier official opinion, the delegation of authority by the General Assembly to the State Merit System to only manage the compensation plan for the members of the State Board of Workmen's Compensation, the deputies and the secretary-treasurer is a valid delegation. Op. Att'y Gen. 70-45 (copy attached). Consequently, this matter would seem settled. There might be some confusion arising in regard to the effect of the 1971 Merit System Act. Ga. Laws 1971, p. 45 et seq. (Ga. Code Ann. 40-2201 et seq.). Basically, this Act provides that, except for 22 areas of exception, every state employee is covered under the State Merit System of Personnel Administration. See Ga. Code Ann. 40-2201 (a), 40-2204 (a). However, the members of the State Board of Workmen's Compensation, the deputies and the secretary-treasurer come within one of the exceptions to the classified service, to-wit, Ga. Code Ann. 40-2201 (b) (20) which excepts from the classified service the "positions specifically excluded by law." As I have already pointed out, these positions are excluded by Ga. Laws 1970, pp. 17, 18, and this law was not repealed by the recent Merit System Act, Ga. Laws 1971, p. 45 et seq. As for the other employees of the State Board of 1Vorkmen's Compensation, I can find no grounds for their exclusion from merit system 253 73-145 coverage; therefore, such positions would seem to be included in the classified service. For these reasons, it is my official opinion that the State Personnel Board has the authority to promulgate rules and regulations covering the personnel administration of all the employees of the State Board of workmen's Compensation except for the members of the State Board of workmen's Compensation, the deputies and the secretary-treasurer. Furthermore, it is my official opinion that as to these excluded positions the State Personnel Board's authority is limited to the establishment and maintenance of a compensation plan. OPINION 73-145 To: Commissioner, Department of Transportation September 13, 1973 Re: Department of Transportation; expenditure of motor fuel tax funds for litter bags. By a recent letter, Mr. Emory C. Parrish, Deputy Commissioner of the Department of Transportation, has requested my opinion as to whether the Department of Transportation may spend motor fuel tax funds for the purchase of litter bags to be distributed free of charge to motorists at Georgia's Welcome Stations. Mr. Parrish states that studies by the Department of Transportation show that the department is spending an estimated $1.5 million annually to clean up litter along the highways of this state. The cost of this cleaning up is expected to double within the next two years with the addition of more roadway mileage. The department, as part of a statewide litter cleanup campaign, proposes to distribute litter bags for use in automobiles traveling on Georgia's highways. Ga. Const., Art. VII, Sec. IX, Par. IV (Ga. Code Ann. 2-6204 (b)), provides in part that an amount equal to all money derived from motor fuel taxes received by the state, less refunds, rebates and authorized collection costs, is appropriated: ". . . for all activities incident to providing and maintaining an adequate system of public roads and bridges in this state, as authorized by laws enacted by the General Assembly of Georgia...." Webster's Third New International Dictionary, Unabridged, defines "incident" as something dependent upon, appertaining or subordinate to, or accompanying something else of greater importance. Thus, the purchase and use of the litter bags as you propose appears to be reasonably incident to maintaining an adequate system of public roads in 73-146 254 this state. Also, the General Assembly has provided that it shall be the duty of the Department of Transportation, among other things, to maintain the State Highway System. Ga. Laws 1973, pp. 947, 975 (Ga. Code Ann. 95A-302 (a)). As previously noted you propose to distribute the litter bags purchased with motor fuel tax funds free of charge to motorists traveling on the public highways. It must be considered as to whether such free distribution violates the constitutional prohibition against donations and gratuities. Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402 (1)), provides in part that: "The General Assembly shall not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association." Since the authority of the creature is no greater than that of the creator, the Department of Transportation, as a creation of the General Assembly, is similarly prohibited. See Jenkins v. Jones, 209 Ga. 758, 763 (1953). However, it is obvious that it is the de~artment which reasonably expects to receive the benefit from the free distribution of the litter bags. The benefit expected would be the reduced cost to the department in having discarded litter removed from the public highways. When it is the department that is to receive the direct benefit, there could not, in essence, be a donation or gratuity in violation of the above-cited constitutional prohibition. Georgia v. Trustees of the Cincinnati Southern Railway, 248 U.S. 26 (1918). See also Ops. Att'y Gen. 69-158, 69-418. Therefore, it is my opinion that the Department of Transportation may lawfully spend motor fuel tax funds for the purchase of litter bags to be distributed free of charge to motorists at Georgia's Welcome Stations. OPINION 73-146 To: State Superintendent of Schools September 18, 197:3 Re: Public officers and employees; county board of education member on hospital authority. In answer to your letter of September 6, 1973, I am unaware of any law of general applicability which would make it illegal for a member of a county board of education to serve as a member of the county hospital authority. Ga. Code 89-103 (1933) precludes the holding of multiple county "offices" but this would seem inapplicable inasmuch as membership in the county hospital authority ordinarily is not a county office. 255 73-147 An analogous unofficial opinion of this office rendered on February 6, 1969 similarly concluded that it would not be illegal for a state employee to serve on a county hospital authority. See Op. Att'y Gen. 69-64. This is not to say that in a given situation, the answer to your question could not differ by virtue of local law respecting a particular hospital authority, but as a general rule I am unaware of any conflict. OPINION 73-147 To: Director, Environmental Protection Division, Department of Natural Resources September 21, 1973 Re: Appropriations Acts; provisos restricting authority of receiving agencies as unconstitutional. This is in reply to your letter asking my construction of the effect of certain language contained in the General Appropriations Act for Fiscal Year 1973-74. Ga. Laws 1973, p. 1353 et seq. The language about which you inquire is found in Section 27 of the Act and reads in relevant part: "Grants: * * * "Water and Sewer Systems .................... $2,000,000 * * * "Provided, however, that none of the above appropriation for Water and Sewer Grants shall be allotted to any county or municipality unless such county or municipality shall have reached its legally established bonding capacity. ..." (Emphasis added.) Ga. Laws 1973, pp. 1353, 1378. An Appropriations Act of the General Assembly may appropriate to a state agency a maximum amount of public funds for purposes envisioned by the authority and responsibility of that agency which have been granted by general law. It cannot constitutionally alter a discretionary authority for the expenditure of that money which the General Assembly has granted an agency by general law. Ga. Const., Art. VII, Sec. IX, Par. I (Ga. Code Ann. 2-6201), both as amended; Ga. Canst., Art. III, Sec. VII, Par. IX (Ga. Code Ann. 2-1909); Ga. Code Ann. 40-402 (1) and (2), as amended by Acts 1962, pp. 17, 19; Ops. Att'y Gen. 67-189, 73-80, 73-132. However, so long as the purpose or function is within the range of authority of the agency provided by general law, an Appropriations Act may not further restrict the expenditure. Op. Att'y Gen. 73-80. 73-148 256 Further restrictions must be made by amending the general law del neating the agency's authority to expend public funds. Under Ga. Laws 1964, p. 416 et seq., as amended, grants can be made by the State of Georgia for the: " ... alleviation of pollution problems and for the construction of water pollution control projects throughout the State of Georgia as the need may be shown by counties, municipalities, or combinations of same, or any public authority, agency, commission, or institution, and such grants by the state may be made for specific communities or for water pollution control projects to be determined by the (Environmental Protection Division) 1 and administered by same." Ga. Code Ann. 17-527.1 (Ga. Laws 1966, pp. 328, 329; 1971, pp. 176, 177). Additionally, Ga. Laws 1964, p. 416 et seq., as amended (Ga. Code Ann. 17-528) empowers the Environmental Protection Division to adopt rules, regulations and procedures to govern the administration of the grants. The language of the proviso in the General Appropriations Act attempts, in my judgment, to vary or alter the provisions of general law authorizing water and sewer grants to be made under the administration of the Environmental Protection Division. It attempts to vary the terms of Ga. Code Ann. 17-527.1, above, by modifying a discretionary authority of the division under general law to determine the specific communities or projects to receive grants, and to set necessary priorities. Based on the foregoing, it is my official opinion that the bonding capacity proviso of Section 27 of the General Appropriations Act for Fiscal Year 1973-74, Ga. Laws 1973, pp. 1353, 1378, is invalid and may not restrict a discretionary authority of the Environmental Protection Division as to the $2,000,000 appropriation for water and sewer system grants. OPINION 73-148 To: Director, Department of Corrections September 21, 1973 Re: Sentence and punishment; in absence of stipulation to contrary, sentences from Georgia court and from foreign court construed to run consecutively. This letter is in reply to your request for my official opinion as to whether there is any conflict between my opinion of April 3, 1967, 1 The original language within the parentheses read "Water Quality Control Board." The functions and authority of this board are now vested in the Environmental Protection Division. Ga. Laws 1972, pp. 1266, 1267 (Ga. Code Ann. 40..35162). 257 73-148 interpreting Ga. Code Ann. 27-2510 (b) (Op. Att'y Gen. 67-121), and the subsequent decision of the Georgia Supreme Court in the case of Grimes v. Greer, 223 Ga. 628 (1967). Ga. Code Ann. 27-2510 (b) provides: "Where a person is convicted on more than one indictment or accusation at separate terms of court, or in different courts, and sentenced to imprisonment, such sentences shall be served concurrently, the one with the other, unless otherwise expressly provided therein." (Emphasis added.) Cobb, 836; Ga. Laws 1956, pp. 161, 168; 1964, p. 494. My April1967 opinion related to the computation of a state sentence that was imposed subsequent to a federal sentence where the state sentence was silent as to whether it was to run concurrently or consecutively to the federal sentence. Applying the plain language of Ga. Code 27-2510 (b), I concluded that the state sentence should be computed from the date of rendition unless the sentence specified that it was to run consecutively to the federal sentence. Subsequent to that opinion, the Supreme Court of Georgia, in considering 27-2510 (b) as it applied to state and federal sentences, said: "Generally, penal laws have no extra-territorial effect. Therefore, in the absence of unequivocal language to the contrary, penal statutes will be limited in their application to the penal system of this state. In the statute under consideration there is only reference to 'different courts' and there is no expression of the legislature that sentences imposed by courts of different sovereignties are to be credited as service of sentences for offenses against the State of Georgia. Had the legislature intended for the statute to apply to sentences of the courts of other sovereignties, it would have so stated in specific and uncertain [sic] terms. It is clear then that the statute contemplates and intends that the provisions thereof apply only to sentences imposed by different courts of this state. If we held otherwise, we would be extending the statute beyond its expressed terms. The service of a. sentence for a federal offense cannot satisfy a sentence for a state offense by operation of this statute." Grimes v. Greer, 223 Ga.. 628, 629 (1967). See also Montos v. Smith, 406 F.2d 1243, 1245 (5th Cir. 1969). More recently, the Georgia Supreme Court has reaffirmed the principle that in the absence of an expression that a state sentence be served concurrently with a federal sentence, the state sentence will be served consecutively to the federal sentence. Taylor v. Green, 229 Ga.. 164 (1972). 73-149 258 You are, therefore, correct in recognizing the conflict between my earlier opinion in this matter and the later decision in Grimes v. Greer. My opinion of April3, 1967 in this matter should no longer be followed. Ga. Code Ann. 27-2510 (b), which provides that unless otherwise stated, sentences from different courts or different terms of court shall be served concurrently, applies only to sentences from Georgia courts. In computing a Georgia sentence and a federal sentence or a sentence from another state or jurisdiction, the principle is reversed. Unless otherwise stated, the Georgia sentence and foreign sentence should be computed to run consecutively. OPINION 73-149 To: Commissioner, Department of Transportation September 22, 1973 Re: Fines and forfeitures; Department of Transportation not allowed to keep because of enforcement of statute. This is written in response to a recent request by Mr. Emory C. Parrish, Deputy Commissioner of the Department of Transportation, for my opinion as to whether the Department of Transportation is entitled to any portion of the money arising from fines and forfeitures due to the enforcement of Ga. Laws 1973, pp. 947, 1095 (Ga. Code Ann. 95A-955). Mr. Parrish states that since July 1, 1973, the Office of Permits and Enforcement has been enforcing this section of the Georgia Code of Public Transportation. Section 95A-955 of the new Georgia Code of Public Transportation basically requires the safe loading of vehicles and covering of said loads so that the loads will not become hazards to the users of public roads. It may be noted that this is a relatively new provision in Georgia law. I am not aware of any statute which entitles the Department of Transportation to any portion of a fine or forfeiture collected as a result of the enforcement of said section. Thus, it is my opinion that the Department of Transportation is not entitled to any portion of a fine or forfeiture arising from the enforcement of Ga. Code Ann. 95A-955. OPINION 73-150 To: Commissioner, Department of Banking and Finance September 24, 1973 Re: Interest and usury; effect of reduction in interest on time deposits pursuant to federal regulations. 259 73-150 The Federal Deposit Insurance Corporation by regulation required that the rate of interest on loans made by insured state nonmember banks1 on the security of a time deposit with that bank "not be less than two percent per annum in excess of the rate of interest paid on such deposit." Former 12 C.F.R. 329.4 (e), at 38 Fed.Reg. 18543 (July 12, 1973). Recognizing that because the permitted rate of interest on time deposits is now in many cases in excess of six percent per annum this regulation poses for some insured state nonmember banks an inability to make such loans because of state usury law limitations, FDIC has adopted an amendment to 12 C.F.R. 329.4, which in pertinent part reads as follows: "(h) Loans upon security of time deposits. An insured nonmember bank may make a loan to a depositor upon the security of his time deposit. However, the rate of interest paid by the bank on such deposit for the period of time it secures the loan shall not be in excess of two percent per annum less than the rate of interest charged on the loan. The provisions of this paragraph (h) shall be deemed to be a part of every time deposit contract entered into by any insured nonmember bank whether or not such provisions are expressly set forth therein." 38 Fed. Reg. 22544 (August 22, 1973). The purpose of the revision, clearly not evident on the face of the language employed, is explained by FDIC comments accompanying the amendments as follows: "The amendment makes it clear that the two percent rate differential may, if necessary, be obtained by reducing the interest rate paid on the time deposit. * * * [I]t will enable banks in some states to make loans secured by time deposits at interest rates which do not exceed the maximum rates established by state usury law for consumer loans. Moreover, the revision points out that the requirement for a two percent rate differential-which is a penalty established by Federal regulation-shall be deemed to be a part of every time deposit contract." 38 Fed. Reg. 22544, 22545 (August 22, 1973). You have asked whether a reduction of the interest rate on a time deposit under this scheme will enter into the determination of whether the rate on the loan made on the security of the time deposit exceeds that permitted by Ga. Code 13-2019 (1933). Specifically, if the original rate of interest made on a time deposit is six and one-half percent, does a bank which lends money on the security of the deposit 1 Banks not members of the Federal Reserve System but deposits in which are insured by FDIC. 73-150 260 at the rate of eight percent violate the usury limitation under Ga. Code 13-2019 by concurrently reducing the time deposit rate to six percent. While we cannot with certainty predict the judicial view of such a transaction, we do conclude that it is doubtful that the usury provisions would be infringed. We begin with the proposition that: "The ingenuity of man has not devised a contrivance by which usury can be legalized, if it appears that the purpose of the scheme was to exact a larger profit for the use of the money actually advanced than eight percent per annum." Bank of Lumpkin v. Farmers State Bank, 161 Ga. 801 (1) (1925). Following that approach, transactions or charges superficially collateral to the interest rate on a loan or to the loan itself have not withstood judicial scrutiny where they evidence the exaction of a charge for the use of money in excess of the permitted rate. See, e.g., First Fed. Savings & Loan Ass'n. v. Norwood Realty Co., 212 Ga. 524 (1956); Bishop v. Exchange Bank, 114 Ga. 962 (1902); Op. Att'y Gen. 69-53; Annot. 81 A.L.R. 2d 1280, 1286 (1962); Annot. 165 A.L.R. 631, 634 (1946). Thus, transactions in which a borrower was obligated as a condition to obtaining a loan to sell property to the lender at less than fair value or to purchase from the lender at greater than fair value have been found usurious. Annot. 81 A.L.R. 2d 1280 (1962). Proceeding from this analysis, the question involved here is premised upon a construction of the two transactions as an exaction for the loan of the stated rate of interest plus the loss to the depositor resulting from the reduction of the rate of interest on the time deposit. Whether this analysis is in the first instance correct is not clear. Cf. Gore v. Industrial Loan & Savings Co., 52 Ga. App. 401, 407 (1935). Essential to a finding of usury, however, is that the charge involved must represent an exaction for the use of money. Harrison v. Arrendale, 113 Ga. App. 118 (1966). In view of the stated purpose of the penalty imposed by FDIC, it is doubtful that this purpose may be ascertained in the situation described above. The FDIC regulation, of course, does not, and could not, authorize an insured state nonmember bank to exact on loans by it a rate of interest usurious under state law. On the other hand, the regulation, imposing a mandatory condition on time deposits, does clothe the collateral transaction reducing the time deposit interest rate with an intent unrelated to a motive to exact a charge for the use of money. Instead of insuring a usurious profit to the bank on the loan, the proposed regulation imposes a "penalty" on the bank customer related to the regulatory purpose of FDIC in encouraging the stability of time deposits. See 12 C.F.R. 329.4. The 261 73-151 particular prov1s10n involved here is part of a series of provisions designed to discourage premature withdrawals of time deposits for the purpose of taking advantage of recent increases in the permitted rates payable on time deposits. 38 Fed. Reg. 18543 (July 12, 1973). Apparently, the penalty imposed under 12 C.F.R. 329.4 (h) is designed to discourage indirect withdrawals, through the device of a loan from the bank, for the same purpose. Together, these provisions are designed to support " ... the efforts of the FDIC and the other financial supervisory agencies to bring about orderly changes in the interest rate structure and [to avoid disruption of] the competitive balance maintained by various financial institutions." 38 Fed. Reg. 22544 (August 22, 1973). Since the source of the penalty for that purpose is the mandatory FDIC regulation, we cannot say that its imposition results in the exaction of an amount by the bank for the use of money in the loan transaction. Thus, while we cannot predict the judicial view of the transactions involved, it is my official opinion that since the source of the penalty is a mandatory federal regulation not evidencing the exaction of profit by a bank for the use of money, it is doubtful that a penal reduction pursuant to 12 C.F.R. 329.4 (h) in the interest rate on a time deposit which forms the security for a loan by an insured state nonmember bank would as a matter of law be included in the computation of the interest on the loan for the purposes of Ga. Code Ann. 13-2019 (1933). OPINION 73-151 To: Director, Department of Veterans Service September 24, 1973 Re: Liability insurance; purchase by department of state government where required by contract. I write in response to your recent request for an opinion as to whether the Department of Veterans Service may purchase professional malpractice liability insurance for the staff members of the Georgia War Veterans Nursing Home. As I understand the operation of the home, the Department of Veterans Service contracts with the Board of Regents for the Regents to provide the professional staff for the home. In previous opinions I have determined that state agencies may not purchase liability insurance as the state and its departments enjoy 73-152 262 sovereign immunity and the purchase of such insurance would afford the state no benefit. See Ops. Att'y Gen. 70-57 and 71-154. Similarly, state departments may not purchase liability insurance for other departments of the state. However, a different situation exists in the present case where the purchase of liability insurance would be for the benefit of the employees of another department of state government. In earlier opinions, I have determined that a state department, while not being able to procure liability insurance for itself, can procure liability insurance for a third party where the furnishing of such insurance is a part of the consideration for a contractual agreement. See Ops. Att'y Gen. 70-57 and 71-154. In the present situation, the purchase of liability insurance for the benefit of the staff members of the Georgia \Var Veterans Home (who would be Regents employees) would be an element of the consideration in the contract between the Department of Veterans Service and the Board of Regents. Accordingly, so long as the purchase of such insurance is a part of the consideration for the agreement between the Board of Regents and the Department of Veterans Service for staffing of the Georgia ~rar Veterans Nursing Home, and so long as the insurance is for the sole benefit of the staff and employees of the home and not for purported protection of any state department or facility otherwise enjoying sovereign immunity, I am of the opinion that you would be authorized to provide such professional malpractice liability insurance. OPINION 73-152 To: Governor of Georgia September 24, 1973 Re: Appropriations Acts; provisos void insofar as they attempt to grant new authority to state agency and give it discretion as to lapse of appropriation. This is in reply to your request for an opinion as to the consequences that might attach to various courses of action contemplated with respect to the proposed World Congress Center. The potential consequences flow from the following language contained in Section 13 of the General Appropriations Act for Fiscal Year 1974: "State of Georgia General Obligation Debt Sinking Fund/New Authority Lease Rentals ................ $3,043,478 " ... In the event at that time [October 1, 1973) a \Vorld Congress Center building of substantially the type contemplated by the criteria, except as to site, which already has been set by the 263 73-152 Executive Board of the Georgia World Congress Center, in the opinion of a majority of the State Properties Control Commission as demonstrated by evidence of ability to do so, can be financed by sources other than state funds or by funds guaranteed by the state, then this sum shall be lapsed.... The final decision of a majority of the members of the State Properties Control Commission with respect to the lapsing of funds as herein authorized, and the adequacy of financing by other sources, shall be made on or before October 1, 1973." Ga. Laws 1973, pp. 1353, 1361-62. Your questions are stated as follows: "I have been advised that private funds may be available for the construction of a world Congress Center. I favor the construction of such a facility with private funds but do not oppose such construction with state funds should private enterprise be unable or unwilling to undertake such a project. "Should a private group make such a proposal, when must a decision be made with respect to the acceptability of such proposal? Must the State Properties Control Commission make a final decision with respect to such a private proposal prior to October 1, 1973? If no final decision is made prior to October 1, 1973, will the appropriated funds lapse?" For the reasons stated hereinafter, it is unnecessary to reach the specific questions you have asked. Your questions relate to the language following the appropriation of $3,043,478, which is set forth above and it is my official opinion that the language is void. The language of the General Appropriations Act quoted above purports to confer upon the State Properties Commission [successor in law (Ga. Laws 1973, pp. 857, 859; Ga. Code Ann. Ch. 91-1A) to the State Properties Control Commission] authority with respect to the World Congress Center, including the specific authority finally to determine the manner in which it shall be financed. By this authority, the State Properties Commission is also given the authority to determine whether an appropriation to an agency of the state shall lapse. Neither aspect of the authority so conferred by that language of the Appropriations Act bears any relationship to the authority of the State Properties Commission which exists under general law. No general law confers upon the State Properties Commission the power to determine, directly or indirectly, whether appropriated funds shall be lapsed. Ga. Const., Art. VII, Sec. IX, Par. II (Ga. Code Ann. 2-6202); Ga. Const., Art. VII, Sec. III, Par. I (c) (Ga. Code Ann. 2-5601 (c)); Ga. Code Ann. Ch. 40-4 (Ga. Laws 1962, p. 17, as amended). 73-152 264 No general law confers upon the State Properties Commission specific authority with respect to the World Congress Center or the manner in which that project shall be financed. The State Properties Commission's sole possible authority with respect to the World Congress Center relates to the direction under Ga. Code Ann. 91-112a (a) (Ga. Laws 1973, p. 857) that " . . . all state agencies shall acquire real property through the commission." In the event a state agency, as defined by Ga. Code Ann. 91-102a (c), desires to acquire land for the World Congress Center, then it must do so through the commission. Otherwise, the commission has no jurisdiction under general law with respect to any aspect of the World Congress Center. Nothing in the State Properties Code confers authority on the commission to make a "final decision ... with respect to the lapsing of funds . . . and the adequacy of financing by other sources." The sole jurisdiction and authority of the commission is to determine whether to acquire the real property for a state-owned World Congress Center when an appropriate request for acquisition is made therefor. Ga. Const., Art. III, Sec. VII, Par. IX (Ga. Code Ann. 2-1909) provides as follows: "The general appropriation bill shall embrace nothing except appropriations fixed by previous laws, the ordinary expenses of the Executive, Legislative and Judicial Departments of the Government, payment of the public debt and interest thereon, and for support of the public institutions and educational interests of the state. All other appropriations shall be made by separate bills, each embracing but one subject." Ga. Const., Art. VII, Sec. IX, Par. I (Ga. Code Ann. 2-6201 (c)) provides: "(c) The General Assembly shall by general law provide for the regulation and management of the finance and fiscal administration of the state." These provisions mandate that an Appropriations Act may not contain matters other than "appropriations," i.e., authorization to expend specified sums of money for specified purposes. An Appropriations Act clearly cannot under the guise of appropriating money confer jurisdiction upon a state agency which it does not possess by virtue of general law, nor may it alter the powers or duties of a state agency which exist under general law. Ops. Att'y Gen. 73-132, 73-80, 67-189. It is my official opinion that the language of Section 13 of the General Appropriations Act, Ga. Laws 1973, pp. 1353, 1360, quoted above, clearly contravenes this principle. That language attempts to confer upon the State Properties Commission powers and 265 73-153 duties not conferred upon it by general law and attempts to alter the powers and responsibilities of other agencies within the jurisdiction of which those particular matters fall. This an Appropriations Act may not accomplish. Ops. Att'y Gen. 73-132, 73-80, 67-189. In addition, Ga. Const., Art. VII, Sec. IX, Par. It (Ga. Code Ann. 2-6201 (c)) clearly requires the General Assembly to provide by general law, not an Appropriations Act, for the regulation and management of the finance and fiscal administration of the state. It is my official opinion that the quoted language of the General Appropriations Act also clearly violates this principle, in that it attempts to provide in the Appropriation Act for finance and fiscal regulation, i.e., lapsing of appropriated funds, matters which constitutionally must be, and are, governed by general law. It is, therefore, my official opinion that the condition quoted above attached to the appropriation with respect to the World Congress Center is void and does not and cannot confer upon the State Properties Commission any power with respect to the World Congress Center it does not possess under general law or otherwise restrict the expenditure of the appropriation made by Section 13 of the Act. OPINION 73-153 To: Director of Corrections September 25, 1973 Re: Prisons and prisoners; custody by Department of Corrections not authorized without prisoner's request until right of appeal exhausted. This is in response to your recent letter inquiring as to whether the Department of Corrections can take custody of a prisoner whose motion for a new trial has been overruled, and whose attorney has stated that he will file a timely notice of appeal but has not yet done so. Ga. Laws 1956, pp. 161, 171, as amended (Ga. Code Ann. 77-309) provides that the Director of Corrections shall assign a prisoner to a correctional institution within a reasonable time after receiving from the clerk of the sentencing court certification of the sentence and 1 Art. VII, Sec. III, Par. I (c) (Ga. Code Ann. 2-5601 (c)) specifically provides with respect to appropriations for debt service requirements for proposed issues of general obligation debt or guaranteed revenue debt: "All such appropriations for debt service shall not lapse for any reason and shall continue in effect until the debt for which such appropriation was authorized shall have been incurred, but the General Assembly may repeal any such Appropriations Act any time prior to the incurring of such debt." The lapsing provision of Section 13 of the General Appropriations Act would in any event be ineffective to prevent the issuance of general obligation debt for the World Congress Center. 73-154 266 related documents. This statute provides that the clerk's notification and certification to the director shall be accomplished immediately upon imposition of a sentence and "after all appeals or other motions have been disposed of so that said conviction has become final ..." Ga. Laws 1956, pp. 161, 171, as amended (Ga. Code Ann. 77-309 (c)). As pointed out by a recent opinion of this office (Op. Att'y Gen. 73-138, dated August 31, 1973), this statute does not provide any procedure by which a prisoner may be transferred to the custody of the Department of Corrections while a motion for new trial or an appeal is pending in his case. The statutory language quoted above clearly indicates that a conviction is final only after disposition of all appeals and motions in the case. Under Georgia law a notice of appeal is timely if filed within 30 days from the entry of an order overruling a motion for new trial. Ga. Laws 1965, pp. 18, 21, as amended (Ga. Code Ann. 6-803). It is my official opinion that, during this 30-day period in which an appeal may be filed, a conviction is not final within the meaning of Ga. Laws 1956, pp. 161, 171, as amended (Ga. Code Ann. 77-309 (c)). Accordingly, unless there has been a valid request for transfer under Ga. Laws 1971, p. 341, the Department of Corrections cannot assume lawful custody of the prisoner. Under Ga. Laws 1971, p. 341 (Ga. Code Ann. 77-338 to 77-341), a prisoner may be transferred from the county jail to a Department of Corrections facility while his appeal is pending if he or his attorney requests such a transfer. As stated in the 1971 Opinion of this office to which your letter refers (Op. Att'y Gen. 71-82), a request by the prisoner or his attorney is a prerequisite to any transfer under this section. Based on the information you furnished with your letter, it appears that the necessary request for transfer has not been made in this case. For these reasons, it is my official opinion that the Department of Corrections cannot, without a valid request from the prisoner or his attorney, take custody of a prisoner whose motion for new trial has been denied and whose attorney has stated that he will file an appeal within the required 30 days, so long as this time has not expired. OPINION 73-154 To: Commissioner of Offender Rehabilitation September 26, 1973 Re: Scholarships for state employees; financing. This replies to your request for review of a proposed scholarship 267 73-154 program for employees of your department. My comments are, of course, directed only to the legal issues raised. Briefly, the program would give both scholarships and educational leave to selected employees who have been admitted to approved, doctoral-level training. Each participant would return to work for a prescribed period or make pro rata reimbursement. The first legal hurdle for the program is the gratuities clause of the Georgia Constitution, which begins with a deceptively simple prohibition: "The General Assembly shall not ... grant any ... gratuity. . . ."Ga. Const., Art. VII, Sec. I, Par. II (1) (Ga. Code Ann. 2-5402 (1)). One of many exceptions to this language is subparagraph (7), which deals with scholarships for state employees and which was modified just last November: "State departments ... shall have the authority to disburse state funds to match federal funds . . . to provide qualified employees with educational scholarships ... but shall include the condition that (recipients) must ... agree to work for the department ... for at least one year for each year spent in study or refund the money ... pro rata. The terms ... shall be prescribed and regulated by the ... departments...." Ga. Const., Art. VII, Sec. I, Par. II (7), proposed by Ga. Laws 1972, p. 1572 (Ga. Code Ann. 2-5402 (7)), ratified Nov. 7, 1972, Ga. Laws 1973, pp. 1755, 1758, 1760 (No. 15) (hereinafter, "subparagraph (7)"). This subparagraph would authorize your department's program, as I have generally described it. (The changes made in subparagraph (7) last November were to delete requirements that training be at the graduate level or higher and that compensatory reemployment be at a 2-to-1 ratio rather than 1-to-1. See Ga. Laws 1957, p. 528.) Note, however, that the authority even under the new version is limited in that state funds may be disbursed only to obtain matching federal funds. Moreover, this same subparagraph goes on to add: "that no additional appropriation shall be made by the General Assembly to finance such scholarships, but the same shall be financed from ... regular appropriations...." Subparagraph (7) (Ga. Code Ann. 2-5402 (7)). (Emphasis added.) Under this authority, then, in answer to a question from your staff, your department could not finance the proposed program solely through state funds, or even through state funds "additionally" appropriated to match federal funds. (The key here is that federal funds help close the gap while an employee takes state time and money to better both his own and his department's educational level. However, where federal funds do not entirely compensate for the employee's tempo- 73-155 268 rarily unproductive absence, and use of state funds, the department itself must compensate through extra effort, not through extra state money.) Two other provisions of the Constitution arguably could provide a partial basis for your program. Under subparagraph (lOA), the "General Assembly is ... authorized to appropriate funds" to obtain matching, educational funds from the federal government. Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402 (lOA)). Under subparagraph (18), the General Assembly is ... authorized to provide ... for .a program ... of loans, scholarships and grants. . . ." Ga. Const., Art. VII, Sec. I, Par. II (18), proposed by Ga. Laws 1972, p. 1548 (Ga. Code Ann. 2-5402 (18)), ratified November 7, 1972, Ga. Laws 1973, pp. 1755, 1757, 1760 (No. 11). However, unlike subparagraph (7), which is self-executing, these provisions require enabling legislation which you do not have at this time. Compare Birdsey v. Wesleyan College, 211 Ga. 583, 589, 87 S.E.2d 378 (1955) with Burkhart v. City of Fitzgerald, 137 Ga. 366, 73 S.E.2d 583 (1911). In summary, my official opinion is that you may implement a doctoral-level training program for employees provided that you do so using regularly appropriated funds to obtain federal matching funds. I am enclosing a separate memorandum which outlines certain suggestions for placing the proposed program in final form. OPINION 73-155 To: Director, Georgia Education Authorities September 26, 1973 Re: Conflicts of interest; effect of public officer or employee contracting with third party with state contracts. You have directed an inquiry to this office concerning certain aspects of Georgia's "Trading \Vith the State" Law. Ga. Laws 1956, p. 60 (Ga. Code Ann. 89-913 to 89-918). Your inquiry is directed primarily toward the situation in which a state employee, official or member of a state board subcontracts with or sells personal property or services to a person or firm that is under a contract with the state. You have asked whether or not this situation violates the above referenced law. Unfortunately, the issue you have raised does not lend itself to a clear and concise resolution. There are so many variables involved that each set of circumstances must be examined separately to determine if there exists a conflict of interest, a violation of the "Trading With the State" Law, or a criminal violation. See, e.g., Ga. Code Ann. 269 73-155 26-2306 (Ga. Laws 1968, pp. 1249, 1307; 1972, pp. 542, 543). It is possible that a situation such as that about which you have inquired may violate no state laws but still comprise the proscribed common law conflict of interest such as is recognized by the Georgia judiciary. Thus, any discussion concerning this controversial area must proceed with the understanding that the courts make the final determination as to the propriety of any suspect transaction. To answer your basic question involving the "Trading vVith the State" Law, it is not a violation of that law for a state employee, official or board member to subcontract with a general contractor under contract with the state. The law referred to herein as the "Trading With the State" Law provides inter alia: "It shall be unlawful for any full-time appointive state official or employee to contract to buy from or sell to the State of Georgia any real or personal property, goods or services, or a combination thereof, when such purchase or sale would benefit, or be likely to benefit, such official or employee." Ga. Laws 1956, p. 60 (Ga. Code Ann. 89-913). This is the initial sentence of that law and actually entails the basic thrust of the entire law. The remaining sections of the law provide that members of state boards can do business with the state if successful on a competitive bid basis, but they cannot do business with the board of which they are members. The other sections are essentially remedial and add little to the above quoted section. The primary tenet of statutory construction is that if the language of a statute is clear and unambiguous and leads to no absurd results, it will be held to mean what has been clearly expressed. Barnes v. Carter, 120 Ga. 895, 898 (1904). Applying this principle to the interpretation of the above statute, one must surmise that the law only prohibits certain designated individuals from doing business directly with the state. There is no mention of indirectly dealing with the state, nor is there a proscription of subcontracting with a general contractor of the state by a state employee or official. A direct contractual relationship with the State of Georgia is all that is proscribed by this particular law. Furthermore, to interpret this law to cover the situation with which you are concerned would be an extension of the expressed terms of the law. Since there are criminal penalties attached to the violation of this statute (Ga. Code Ann. 89-9916), the statute should be strictly construed and not extended beyond its explicit terms. See Peterson v. The State, 13 Ga. App. 766 (1913). As you are no doubt aware, the above law is not the only statute pertaining to state officials and employees dealing with the state. The Criminal Code of Georgia has the following provision in this regard: 73-155 270 "Any officer or employee of the state or any agency thereof, who for himself or in behalf of any business entity sells any personal property to the state or any agency thereof, shall upon conviction be punished by imprisonment for not less than one nor more than five years." Ga. Code Ann. 26-2306 (a). There are some differences between this law and the "Trading With the State" Law such as the criminal law is not restricted to appointive officials, and it only covers the sale of personal property to the state. However, a violation of either law will generally involve a violation of the other. The criminal statute, like the "Trading With the State" Law, prohibits the sale of personal property to the state or a state agency by a state employee or officer. Again, there is no mention of dealing with the state indirectly or of selling personal property to a general contractor under contract with the state. This, like the "Trading With the State" Law, cannot be extended beyond its explicit terms since it, too, is a criminal statute. Op. Att'y Gen. 69-444. Thus, it does not appear that either of these laws prohibit the type of transactions about which you have expressed concern. It should be delineated that there are other criminal laws concerning state officers and employees dealing with the state. These laws involve state officers and employees improperly influencing legislative action for personal gain (Ga. Code Ann. 26-2304), improperly influencing another state officer or employee for personal gain (Ga. Code Ann. 26-2305), conspiring to defraud the state (Ga. Code Ann. 26-2307), and conspiring to restrain free and open competition among contractors dealing with the state (Ga. Code Ann. 26-2308). Each of these provisions is pertinent to your inquiry and should be brought to the attention of anyone who enters into a contract with the state. While the above laws are the most pertinent to your inquiry, there are other laws concerning conflicts of interest which are collated in Op. Att'y Gen. 68-156. These statutory provisions do not constitute the sole source of inhibitions against conflicts of interest. These nonstatutory inhibitions are generally recognized and regarded as common law conflicts of interest. This common law principle rises out of the traditional concept that has been set forth in the Georgia Constitution as follows: "Public officers are the trustees and the servants of the people, ..." Ga. Canst., Art. I, Sec. I, Par. I [Ga. Code Ann. 2-101]. It is out of this understanding of the fiduciary duty of public officials that courts in this and other states have determined that public officers should not make a profit out of the business entrusted to their care. United States v. Carter, 217 U.S. 286 (1910); Mayor and Council v. Huff, 60 Ga. 221 (1878); Hulgan v. Gledhill, 207 Ga. 349 (1950). Such 271 73-155 situations are generally proscribed due to the fact that they would tend to interfere with the officer's public duty and lead to unduly influenced decisions by that officer. See, e.g., State v. Hooten, 122 So.2d 336 (Fla. 1960); Warren v. Reed, 331 S.\iV.2d 847 (Ark. 1960). This common law doctrine as applied by the Georgia courts goes beyond actual profit to the state officer or employee. The Georgia courts have even condemned situations which present no more than the opportunity for an officer or employee to make such a profit. The following observation by the Georgia Supreme Court reflects that court's application of this common law doctrine: "One who is entrusted with the business of others will not be allowed to make out of the same a pecuniary profit to himself. This doctrine is based upon principles of reason, morality, and public policy. No public agent shall have the opportunity or be led into temptation to make profit out of the p'ublic business entrusted to his care by contracting with himself, either directly or indirectly, in respect to such business. [cases cited]." Montgomery v. City of Atlanta, 162 Ga. 534, 546 (1926). (Emphasis added.) In this case the court held that a contract between the city and a company in which a city councilman had a pecuniary interest was illegal and void as against public policy. This common law principle that proscribes even the opportunity for profit, as well as the actual attainment of profit, by public officers has been enunciated several times by the Georgia judiciary, and prior opinions of this office also reflect this principle. Op. Att'y Gen. 68-440. Generally, such cases involve a situation in which the public officer had direct control over the performance of the contract and realized a pecuniary profit from the transaction. Mayor and Council v. Huff, supra (city parks to be leased to the mayor who was to provide certain improvements for them); Trainer v. City of Covington, 183 Ga. 759 (1937) (contract for sale of truck between mayor and city void despite competitive bidding and absence of fraud); Montgomery v. City of Atlanta, supra (discussed above). These cases reveal that two elements are involved in a transaction that constitutes a conflict of interest. The first element is the opportunity for profit by the public officer arising out of the transaction. The other entails the control by that officer over the transaction. It is the presence of these two elements that precipitate the undue influence over the officer's performance of his public duty which in turn creates a common law conflict of interest. Thus, it is in light of this common law conflict of interest rule that each transaction involving the state and a state employee or officer should be examined. If the facts of the situation indicate that the state employee or officer may be profiting from the transaction because 73-156 272 of his position with the state, or if the state officer or employee is or may be in a position of responsibility with respect to the contract or its related aspects and decisions concerning the contract or its related aspects may possibly be unduly influenced by his interest therein, a conflict of interest exists and should be avoided. See Op. Att'y Gen. 68-440. OPINION 73-156 To: Commissioner of Corrections September 26, 197:3 Re: Sovereign immunity applied to transportation of state prisoners. This is in reply to your letter requesting an opinion concerning liability of the state and its employees. My response will be directed to the following issue: Is the state, or its employees, liable for motor vehicle incidents which occur while state employees transport parole violators, probationers, parolees, and others, in the performance of their official duties? By virtue of the doctrine of sovereign immunity, suit may not be maintained against the state without the express consent of the legislature. Koehler v. M assell, 229 Ga. 359, 361 (2) (1972); Crowder v. Department of State Parks, 228 Ga. 436, 438 (1971). The respective Acts creating the Department of Offender Rehabilitation/ the State Board of Pardons and Paroles, 2 and the State Board of Corrections,3 contain no waiver of the state's sovereign immunity. Accordingly, neither the state nor the subdivisions named above may incur liability as the result of motor vehicle incidents occurring under the activities in issue. Op. Att'y Gen. 69-161. The state's governmental immunity does not, however, extend to its officers, agents and employees, who are personally liable for unauthorized acts committed in the performance of their official duties. Op. Att'y Gen., supra. It should be noted that the legislature has recently passed an Act, which provides limited protection from liability arising out of the operation of state-owned vehicles by employees in the course of their employment. Ga. Laws 1972, p. 347 (Ga. Code Ann. 89-932). 1 Ga. Laws 1972, pp. 1069, 1073 (Ga. Code Ann. 40-35162.1 et seq., 77-502aet seq.). 2 Ga. Const., Art. V, Sec. I, Par. XI (Ga. Code Ann. 2-3011); Ga. Laws 1972, pp. 1069, 1073 (Ga. Code Ann. 40-35162.4, 77-505a); Ga. Code Ann. 77-501 et seq., based on Ga. Laws 1943, p. 185, as amended; Ga. Code Ann. 77-502.1 et seq., based on Ga. Laws 1970, p. 729. 3 Ga. Const., Art. V, Sec. V, Par. I (Ga. Code Ann. 2-3401); Ga. Code Ann. 77-301 et seq., 77-305 et seq., based on Ga. Laws 1956, p. 161, as amended. 273 73-157 In summary, it is my official opinion that, 1. The state is not liable for motor vehicle incidents occurring while state employees transport parole violators, probationers, parolees, and others in the performance of their official duties. 2. State employees are personally liable for motor vehicle incidents, just as other citizens are. OPINION 73-157 To: Secretary of State October 2, 1973 Re: Land sales; statute regulating out-of-state sales. This is in reply to your request for an opinion on several questions' stated hereinafter, arising in the course of your administration of the Out-of-State Land Sales Act, Ga. Laws 1971, p. 856 (Ga. Code Ann. Ch. 84-58), and the Georgia Land Sales Act of 1972, Ga. Laws 1972, p. 638 (Ga. Code Ann. Ch. 84-61). These questions arise from the 1973 amendment to the Georgia Land Sales Act which provides in pertinent part as follows: "The provisions of [The Georgia Land Sales Act of 1972] shall apply to subdivided lands which are offered for sale in this state regardless of the fact that such lands may be located outside of this state." Ga. Laws 1973, p. 578. This amendment, effective on July 1, 1973, followed the opinion by this office that the Georgia Land Sales Act of 1972 did not apply to the offer for sale in Georgia of land located outside of Georgia. Op. Att'y Gen. 72-90. The 1973 amendment was then the subject of an opinion, Op. Att'y Gen. 73-108, in which I concluded that the amendment did not make applicable the Georgia Land Sales Act of 1972 to out-of-state land as to which a license had been issued prior to July 1, 197:3, under the Out-of-State Land Sales Act. Your request stems in part from the language employed in Op. Att'y Gen. 73-108. I. In the course of answering your latest request, we have reexamined our prior opinion, Op. Att'y Gen. 73-108, and have determined that it should be withdrawn. \Ve hereby do so and must, therefore, necessarily reconsider the question presented therein: Whether the provisions of the Georgia Land Sales Act of 1972 apply to subdivided lands located outside this state but with respect to which a license had been issued prior to July 1, 1973. 73-157 274 The Out-of-State Land Sales Act contains two essentially related but conceptually separate thrusts. On the one hand, Section 4 (Ga. Code Ann. 84-5804) of the Act prohibits the offer or disposition "in this state" of out-of-state land unless the person engaging in those activities has first submitted to the Secretary of State, acting as Securities Commissioner, a description of the subdivision, including a prospectus, and, based upon that and other information, obtained a license. In describing this requirement of a license, the General Assembly stated: "At such time as the prospectus shall be approved, the Securities Commissioner shall issue to the applicant a license to offer and dispose of, in this state, the subdivision ... or other interests in any subdivision the subject of application. Such license shall be valid indefinitely unless there is a material change affecting such subdivision. . . ." Ga. Laws 1971, pp. 856, 861 (Ga. Code Ann. 84-5806). More importantly for purposes of the present question, apart from this licensing requirement, the General Assembly imposed related but independent obligations with respect to the offer or sale of outof-state land in Georgia. Thus, Section 3 (Ga. Code Ann. 84-5803) requires persons offering or disposing of out-of-state land in Georgia to appoint the Secretary of State as attorney for service of process and to post a bond conditioned upon compliance with the Act. Section 7 (Ga. Code Ann. 84-5807) prohibits reference to the Securities Commissioner in the offer or sale in this state of out-of-state land. Section 8 (Ga. Code Ann. 84-5808) requires that a copy of the sales prospectus be given to each purchaser prior to execution of any contract for disposition. These and other obligations in the Out-of-State Land Sales Act are independent of the requirement of a license. The approach of the Georgia Land Sales Act of 1972 is similar, although it differs in some respects from that of the Out-of-State Land Sales Act. Unlike the latter statute, the Georgia Land Sales Act of 1972 does not provide for a license as such. Instead its essential thrust is that before subdivided lands are offered for sale, the subdivider must obtain an annually renewable certificate of registration from the Secretary of State upon approval of an application containing the information required. Ga. Laws 1972, pp. 638, 642, Sections 3 to 7 (Ga. Code Ann. 84-6103 to 84-6107). However, like the Outof-State Land Sales Act, the Georgia Land Sales Act also imposes requirements governing certain aspects of the offer or sale of subdivided lands, some of which directly depend on the registration requirement (e.g., Section 8; Code 84-6108) and others which do not (e.g., Sections 9 to 16; Code 84-6109 to 84-6116). 275 73-157 The General Assembly's cryptic declaration in Ga. Laws 1973, p. 578, that the Georgia Land Sales Act "shall apply to subdivided [out-of-state] lands which are offered for sale in this state ..." does not lend itself to a correspondingly simple determination of what is meant by that language in its practical ramifications, illustrated by the question involved here. That language cannot be considered in isolation from the whole statutory scheme of which it is a part. Ryan v. Commissioners of Chatham County, 203 Ga. 730 (1948); Spence v. Rowell, 213 Ga. 145 (1957); Williams v. Bear's Den, Inc., 214 Ga. 240 (1958); Undercofier v. L. C. Robinson & Sons, Inc., 111 Ga. App. 411 (1965), aff. 221 Ga. 391 (1965). In the 1973 amendment to the Georgia Land Sales Act, the General Assembly did not repeal or amend Section 20 (Ga. Code Ann. 84-6120) of the Georgia Land Sales Act which in pertinent part provides: "Nothing contained within this Chapter shall be deemed or construed to affect in any way or repeal the 'Out of State Land Sales Act'." Nor did the 1973 amendment to the Georgia Land Sales Act specifically refer in any way to the provision in the Out-of-State Land Sales Act that a license issued hereunder entitles the licensee " ... to offer and dispose of, in this state, the subdivision. . . . Such license shall be valid indefinitely. . . ." Ga. Code Ann. 84-5806. Nor did the 1973 amendment specifically deal with the manner in which the Georgia Land Sales Act would apply to out-of-state lands with respect to which a license had been obtained prior to July 1, 1973, under the Out-of-State Land Sales Act. Instead, we are faced with a declaration in the Out-of-State Land Sales Act that a license thereunder entitles the licensee to sell and dispose of lands in this state and that the license is indefinite, a declaration in the Georgia Land Sales Act that its provisions "shall [not] affect in any way or repeal" the Out-of-State Land Sales Act, and a declaration that the Georgia Land Sales Act "shall apply" to out-ofstate lands. When these provisions are placed in the practical context of a license having been issued under the Out-of-State Land Sales Act prior to July 1, 1973, the intent of the General Assembly is not clear. Section 3 (Ga. Code Ann. 84-6103) of the Georgia Land Sales Act provides, in pertinent part, as follows: "Before subdt:vided lands are offered for sale, the subdivider . . . shall file with the Secretary of State an application [for registration]...." (Emphasis added.) 73-157 276 If that provision applied to lands with respect to which a license had been issued prior to July 1, 1973, under the Out-of-State Land Sales Act, it would render meaningless the declaration that a license under that Act, indefinite in duration, shall entitle the holder to offer or dispose of the lands covered thereby in this state. There is no evidence that the General Assembly intended to work such a result and in the absence of a clear indication of a contrary intent, it should not be inferred. Cf., Bedingfield v. Parkerson, 212 Ga. 654 (1956); Brinkley v. Dixie Const. Co., 205 Ga. 4V5 (1949); Rollins v. State, 215 Ga. 437 (1959). On the other hand, no similar conflict is presented if both the licensing requirements of Sections 4 and 6 of the Out-of-State Land Sales Act and the registration requirements of Section 3 of the Georgia Land Sales Act apply to land as to which no license under the Outof-State Land Sales Act has been issued prior to July 1, 1973. Such a result is clearly mandated by the language of the 1973 amendment and poses no incongruous conflict in the various statutory provisions involved. It is, therefore, my official opinion that Ga. Laws 1973, p. 578, does not render applicable the registration requirements of Section 3 of the Georgia Land Sales Act of 1972 to out-of-state land with respect to which a license has been issued prior to July 1, 1973 under the Outof-State Land Sales Act. On the other hand, it is my official opinion both statutes are fully applicable to out-of-state land offered for sale or sold in this state as to which no license had been issued under the Out-of-State Land Sales Act prior to July 1, 1973. II. The conclusion above expressed does not dispose of the second consideration involved in determining the applicability of the Georgia Land Sales Act to out-of-state lands with respect to which a license had been issued under the Out-of-State Land Sales Act prior to July 1, 1973. That consideration relates to those provisions of the Georgia Land Sales Act which do not relate to or depend upon registration but instead govern the particular transaction of offering or selling subdivided lands. Some of the provisions of the Georgia Land Sales Act are, of course, directly dependent upon registration of land under Section 3 of that Act and in view of our earlier conclusion cannot apply to the offer or sale of land under such a license. See, e.g., Ga. Laws 1972, pp. 638, 646, Section 8 (Code Ann. 84-6108). Other provisions of the Georgia Land Sales Act, however, govern particular facets of offering or selling subdivided lands and are independent of the requirement of registration. Thus, Section 9 of the Georgia Land Sales Act makes it unlawful to sell parcels within a sub- 277 73-157 division subject to a blanket encumbrance. Ga. Code Ann. 84-6111. These and other provisions impose specific obligations with respect to the conduct of individuals not dependent upon registration of the land involved. With respect to these and similar provisions of the Georgia Land Sales Act, unrelated to the act of registration itself, there is absent any conflict with the provisions of the Out-of-State Land Sales Act if these provisions of the Georgia Land Sales Act apply to out-ofstate land even though a license under the Out-of-State Land Sales Act had been obtained prior to July 1, 1973. The imposition of additional requirements governing the conduct of a licensee under the Out-of-State Land Sales Act does not interfere with the full operation of the provisions of that Act with respect to the license. The 1973 amendment to the Georgia Land Sales Act in that instance does not alter the indefinite license to offer and dispose of out-of-state lands in this state but instead governs the manner in which the licensee shall conduct himself in this state in his business of offering and selling those lands. In this respect, full force can be given to the General Assembly's declaration that the Georgia Land Sales Act "shall apply to subdivided lands ... regardless of the fact that such lands may be located outside this state" without rendering meaningless or ineffective any existing provisions of the Georgia Land Sales Act or of the Out-of-State Land Sales Act. It is, therefore, my official opinion that Ga. Laws 1973, p. 578, renders applicable to out-of-state lands as of July 1, 1973 those provisions of the Georgia Land Sales Act governing the seller's obligations or the buyer's rights in the offer and sale of out-of-state lands regardless of whether prior to that date a license with respect to those lands had been obtained under the Out-of-State Land Sales Act. III. It is necessary to qualify my conclusions stated in Parts I and II of this opinion. The qualification relates to that part of Section 23A of the Georgia Land Sales Act, added by Georgia Laws 1973, p. 578, which provides "However, the provisions of this Act which cannot pertain to such lands which are located outside of this state shall not apply in such cases." Thus, my conclusions in Parts I and II of this opinion as to the applicability of the Georgia Land Sales Act of 1972 to out-of-state lands are subject to the limitation expressly imposed by the General Assembly. However, this expansive qualification on the applicability of the Georgia Land Sales Act to out-of-state lands involves so many 73-157 278 potential questions as to the legal and factual reasons why the Georgia Land Sales Act "cannot" apply that it would be premature to attempt to catalogue them here. We emphasize that limitation, however, so that there will be no confusion as to the intended scope of this opinion. IV. In view of the conclusions expressed above, the resolution of the questions presented in your recent request is fairly clear. Those questions are related and they are as follows: 1. Would an out-of-state developer who had filed and received approval from this office to sell or offer to sell lands located outside the State of Georgia to Georgia residents prior to July 1, 1973 and now wishes to file a consolidation of the same property or subdivision with this office be required to file under and meet the requirements of the Georgia Land Sales Act of 1972'? 2. 'Vould there be a registration fee for such consolidations? 3. Would there be a registration fee for consolidations on new registrations filed after July 1, 1973'? 4. Are out-of-state developers who file after July 1, 1973 now subject to an annual renewal fee? The conflict between the various provisions of the Georgia Land Sales Act and the Out-of-State Sales Act, which supported our conclusion that lands as to which a license under the Out-of-State Land Sales Act had been issued prior to July 1, 1973, were not subject to the registration requirements of the Georgia Land Sales Act, is not present when lands not included in the license under the Out-ofState Land Sales Act are considered. The license under the Out-ofState Land Sales Act relates solely to " ... the subdivision or parcels, units or other interests in any subdivision the subject of the application." Ga. Laws 1971, pp. 856, 861, Section 6 (Ga. Code Ann. 84-5806). (Emphasis added.) Moreover, the license is indefinite "unless there is a material change affecting such subdivisions...." Id. The license issued under the Out-of-State Land Sales Act relates solely to the particular tract described in the application for license, and does not include, expressly or by inference, any "consolidation." Thus, there is no impediment in the language of the Out-of-State Land Sales Act to the express declaration by Georgia Laws 1973, p. 578, that the Georgia Land Sales Act "shall apply" to lands located outside the state. It is, therefore, my official opinion that even though a license with respect to a particular tract under the Out-of-State Land Sales Act had been issued prior to July 1, 1973 before additional land to be 279 73-158 added to that subdivision may be offered or sold in this state a license must be obtained under the Out-of-State Land Sales Act and the land must be registered under the Georgia Land Sales Act. In response . to your second and third questions, it is my official opinion that the filing fee under the Out-of-State Land Sales Act and the filing fee under the Georgia Land Sales Act, by their terms, are both applicable to the situations described above. Ga. Laws 1971, pp. 856, 860-61, Sections 4-6 (Ga. Code Ann. 84-5804 to 84-5806); Ga. Laws 1972, pp. 638, 652, Section 17 (Ga. Code Ann. 84-6117). In response to your fourth question, it is my official opinion that all certificates of registration under the Georgia Land Sales Act are subject to the fee for annual renewal. CONCLUSION. I trust that this opinion provides sufficient guidance. I am fully cognizant of the fact that the present statutory scheme presents myriad administrative problems. In order to remedy these deficiencies, however, the General Assembly should undertake a thoughtful consideration of these statutes with a view to eliminating the uncertainties arising from the vague language employed in attempting to make applicable the Georgia Land Sales Act of 1972 to out-of-state land. OPINION 73-158 To: Joint Secretary, State Examining Boards October 2, 1973 Re: Certified public accountants; nondisclosure of confidential communications of clients. The American Institute of Certified Public Accountants and other professional groups sponsor practice reviews for local accounting firms. These reviews, according to the information furnished to us, include a survey of the local firm's business practices as well as a study of the firm's audits and work papers. You asked whether such reviews of the audits and work papers by third parties present potential conflicts with Ga. Code Ann. 84-216 (Ga. Laws 1943, p. 363) or Regulation 20-10-.01(9), Official Compilation, Rules and Regulations of the State of Georgia. Ga. Code Ann. 84-216 provides that communications by a client to a certified public accountant " ... shall be treated as confidential and not disclosed nor divulged by said accountant in any proceedings of any nature whatsoever." 73-159 280 Regulation 20-10-.01(9) appears broader in scope and provides in pertinent part that a certified public accountant ". . . shall not disclose information acquired in the course of a professional engagement ... without the consent of the client, except as is required by law...." Code 84-216 serves two functions. First, with respect to communications to a certified public accountant which are covered thereby, the statute imposes a restriction on the conduct of the certified public accountant, mandating that he treat them as confidential. Second, with respect to those protected communications, it establishes an evidentiary privilege prohibiting disclosure in any proceeding of any nature whatsoever. It is not clear that the disclosure in the circumstances described in your request by a certified public accountant of a communication protected by Code 84-216 would destroy the evidentiary privilege conferred by that statute. See McKie v. State, 165 Ga. 210 (1927). On the other hand, it is my opinion that insofar as Code 84-216 imposes a limitation on the conduct of a certified public accountant, that statute prohibits the disclosure by the certified public accountant in the first instance. A client's communication is clearly not treated as "confidential" within the meaning of Code 84-216 if the accountant discloses that communication to third parties for purposes unrelated to performing for his client the functions for which he was employed. It is, therefore, my official opinion that a certified public accountant may not for the purpose of a practice review disclose to third parties his client's communications to him which are made confidential under Code 84-216. Needless to say, however, we cannot determine whether particular papers of a certified public accountant come within this principle except on a case by case basis. In view of the conclusions here expressed, we deem it unnecessary to determine the proper scope of Regulation 20-10-.01(9) with respect to this question. OPINION 73-159 To: Commissioner of Securities October 2, 1973 Re: Securities; continuation in effect of bonds of dealers and salesmen upon change in statute. The Georgia Securities Act of 1973, Ga. Laws 1973, p. 1202 (hereinafter 1973 Act), is scheduled to repeal and supersede the currently effective Georgia Securities Act of 1957, Ga. Laws 1957, p. 134, as amended (Ga. Code Ann. Title 97) (hereinafter 1957 Act) on April 1, 281 73-159 1974 (hereinafter effective date). Section 5 of the 1957 Act provides that each person who registers as a dealer, limited dealer, salesman or limited salesman must file certain bonds with the Securities Commissioner. Section 4 of the 1957 Act provides that certain bonds must be filed by issuers of securities upon registration. The 1973 Act also provides for bonds to be posted by dealers, limited dealers, salesmen, limited salesmen and issuers (see Sections 3(h) and 6(b)), but the 1973 Act provides for bonds in somewhat larger amounts. You have requested an official opinion concerning the effect that the new securities law will have on bonds which were filed under the 1957 Act. It is my official opinion that bonds filed under the 1957 Act will continue to be effective and sufficient after the effective date of the 1973 Act, but all new bonds and renewals filed after the effective date of the 1973 Act must comply with the terms of the 1973 Act. When an Act substantially reenacts a former Act which it repeals and specifically preserves rights which accrued under the former Act, such specifically preserved rights continue to exist as they did under the former statute. Lanham & Sons Co. v. City of Rome, 136 Ga. 398 (1911). The 1973 Act, at p. 1258, repeals and substantially reenacts the 1957 Act and contains the following provision: "Section 23. Saving Provisions. * * * "(b) All effective registrations under prior law, all administrative orders relating to such registrations, and all conditions imposed 'upon such registrations remain in effect so long as they would have remained in effect if this Act has not been passed. They are considered to have been filed, entered or imposed under this Act but are governed by prior law." (Emphasis added.) The bonds provided for in both Acts are conditions imposed upon registrations. By virtue of the foregoing savings provision, such conditions will remain in effect after the effective date of the 1973 Act and continue to be governed by the provisions of the 1957 Act. New bonds and renewal bonds which relate to registrations effective after the effective date of the 1973 Act are not affected by the foregoing saving provisions. The terms set forth in the 1973 Act will govern all bonds which relate to registrations or renewals of registrations which are effective after the effective date of the 1973 Act. In summary, it is my official opinion that bonds which are filed in connection with registrations under the 1957 Act continue to be governed by the provisions of the 1957 Act, and bonds filed in connection with a registration or renewal after the effective date of the 1973 Act must comply with and will be governed by the 1973 Act. 73-160 282 OPINION 73-160 To: Acting Commissioner, Department of Public Safety October 3, 1973 Re: Municipal ordinances; requirements as to definiteness. This is in reply to your recent letter requesting an opinion on the issuance of citations, by Mountain View Police Officers, charging motorists with "improper operation." My response will be based upon the materials your office forwarded with the request letter, which you indicate to be the "Mountain View City Ordinances." It is axiomatic that where there is no law, there is no offense. Adams v. Mayor of Albany, 29 Ga. 56, 58 (1859). Similarly, an offense cannot be created or inferred by vague implications. Mayor and Council of Atlanta v. White & Kreis, 33 Ga. 229 (2) (1861). Nowhere in either the State Traffic Regulations (Ga. Code Ann. Chs. 68-15 to 68-17 and 68-9927 (based on Ga. Laws 1953, Nov. Sess., p. 556 et seq., as amended)), ostensibly adopted by the City of Mountain View, or anywhere in the Mountain View City Ordinances that you forwarded, is a violation entitled "improper operation" defined or made a traffic offense. Due process of law requires that a statute or ordinance (1) Give fair notice, to a person of ordinary intelligence, that the contemplated conduct is forbidden by law. See U. S. v. Harris, 347 u. s. 612, 617 (1954). (2) Be definite and precise so that citizens will not have to guess at its meaning. See Connally v. General Canst. Co., 269 U. S. 385, 391 (1926). In summary, it is my official opinion that the City of Mountain View cannot arrest, try and convict for "improper driving" unless it has an ordinance, within the aegis of the city charter, which defines the offense according to the requirements of due process, above. OPINION 73-161 To: Director, Environmental Protection Division, Department of Natural Resources October 3, 1973 Re: Environmental Protection Division; delegation of certain ministerial functions to county. Your memorandum of August 27, 1973, requested my official opinion as to whether you may delegate to Fulton County certain functions 283 73-161 involved in the issuance of construction and operating permits pursuant to state statutes dealing with air quality control. As set forth in your memorandum, the procedure under consideration would delegate to Fulton County the responsibility to mail permit application forms, supplied by the Environmental Protection Division, to air pollution sources within Fulton County. Upon receipt of the completed application form, Fulton County would conduct a technical review of the application following basic procedural guidelines agreed upon by the Environmental Protection Division and Fulton County. Following the technical review, Fulton County would submit the application, with comments and a recommendation, to the Director of the Environmental Protection Division for consideration. If approved by the director, the signed permit would be sent to Fulton County for mailing to the applicant. In case of violations of emission standards or permits, Fulton County would attempt to correct the violations by enforcing county ordinances. If county enforcement attempts were unsuccessful, or if the Environmental Protection Division considered enforcement by the state agency to be preferable, the Environmental Protection Division would proceed with enforcement. As Director of the Environmental Protection Division, you are charged by law with the responsibility of requiring facilities which emit or result in injurious air pollution to obtain permits for construction, modification and operation. Ga. Laws 1967, p. 581; 1971, p. 184; 1972, p. 994; 1973, p. 1285 (Ga. Code Ann. 88-903 (4) and (5)). It is your responsibility to issue such permits only upon evidence satisfactory to you of compliance with the provisions of the laws and regulations dealing with air quality control. The Supreme Court of Georgia has held as follows: "In those cases in which the proper execution of the office requires on the part of the officer the exercise of judgment or discretion, the presumption is that he was chosen because he was deemed fit and competent to exercise that judgment and discretion; and unless power to substitute another in his place has been given to him, he cannot delegate his duties to another." Horton v. The State, 112 Ga. 27, 28,37 S.E. 100 (1900), quoting from Mechem on Public Offices and Officers. The court went on to say that where the act is of a purely mechanical or ministerial nature, not involving judgment or discretion, it may properly be delegated to another unless delegation is expressly prohibited by law. Accord, Mobley v. Marlin, 166 Ga. 820, 144 S.E. 747 (1928). Further, even where the duty involves the exercise of discretion, a public officer may seek the assistance of others to make reports and recommendations to him, so long as he acts upon his own judgment in 73-162 284 making the final decision. In re Giles, 21 F.2d 536, 537-38 (5th Cir. 1927); Ops. Att'y Gen. 72-99, 66-159. Mailing permit application forms to facilities which emit or result in air pollution, forwarding the completed application forms to the Director of the Environmental Protection Division, and mailing the signed permits to the applicants are clearly ministerial functions which may be delegated by you. A technical review of the application and recommendation thereon are also functions which you may delegate. However, I wish to emphasize that, despite the delegation of certain responsibilities in connection with permit applications, you will retain the statutory responsibility to issue such permits only on evidence satisfactory to you of compliance with the statutes and regulations dealing with air quality control. That duty is nondelegable; thus you must make a thorough review of the application to determine for yourself that the construction, modification or operation of the facility will be in compliance with all pertinent laws and regulations. Fulton County has the power to assume the duties which are to be delegated by you. The county boards of health of the state are empowered to conduct studies and research to determine factors responsible for air pollution and to render advice and make recommendations in that connection. Ga. Laws 1967, pp. 581, 585 (Ga. Code Ann. 88-905). In addition, Fulton County has the authority to adopt a system of rules, regulations and orders covering health and sanitation in Fulton County. Ga. Laws 1951, pp. 828, 829. The violation of any such rules, regulations or orders is a misdemeanor. See Op. Att'y Gen. 71-201. Based on the above, it is my official opinion that you as Director of the Environmental Protection Division have the power to delegate to Fulton County, and Fulton County has the power to accept, the responsibility to mail permit applications to facilities which result in air pollution, to review such applications and to make comments thereon, and to return the permits to the applicants if signed by the Director of the Environmental Protection Division. OPINION 73-162 To: Governor, State of Georgia October 3, 1973 Re: World Congress Center; funding procedures. On September 24, 1973, we issued an opinion to you (Op. Att'y Gen. 73-152) that Section 13 of the General Appropriations Act for Fiscal Year 1974 does not confer upon the State Properties Commission any power finally to determine the manner in which that project should be financed. 285 73-162 You now ask our opinion concerning the appropriate actions to be taken, and by what agencies, if it is determined that state funds will or can be used to construct the World Congress Center because private enterprise does not undertake the project. You ask that I specifically consider whether the Executive Board of the Georgia world Congress Center, created by Ga. Laws 1972, p. 245 (Ga. Code Ann. 40-3601, 40-3602), has any authority to act upon the appropriation made by Section 13 of Ga. Laws 1973, p. 1353. Section 1~i of the General Appropriations Act, Ga. Laws 1973, pp. 1353, 1360, provides as follows: "State of Georgia General Obligation Debt Sinking Fund/New Authority Lease Rentals ................ $3,043,478 " ... Should the Georgia State Financing and Investment Commission elect to issue General Obligation Debt to finance said undertaking, said amount shall be appropriated to the 'State of Georgia General Obligation Debt Sinking Fund.' Should said Commission determine that said undertaking be financed through the issuance of bonds by the Georgia Building Authority, said amount shall be appropriated to the Department of Community Development and used for the purpose of paying lease rentals." This language comports with the Georgia State Financing and Investment Commission Act, Ga. Laws 1973, p. 750, which provides that the Georgia State Financing and Investment Commission shall determine whether to issue general obligation debt (Sections 3a, 5) and which concurrently prohibits the issuance of debt by any State Authority "without the specific approval of the Commission." Id. Section 3f(1). Since under both Section 13 of the General Appropriations Act and the Georgia State Financing and Investment Commission Act, the Commission will ultimately determine whether to issue general obligation debt or to proceed under the Georgia Building Authority Act, we will first consider procedures that should be followed under the alternative involving the issuance of general obligation debt. I. In order to issue general obligation debt, it is my opinion that appropriate resolutions by the Executive Board of the Georgia World Congress Center and, for practical reasons, the Board of Community Development, should be presented to the Georgia State Financing and Investment Commission requesting that the Commission do so, accompanied by the Executive Board's pertinent design and site selection determinations made with respect to the World Congress Center. Ga. Laws 1972, p. 245. Necessarily, in so doing, the Executive Board of the Georgia World Congress Center and the Board of Community 73-162 286 Development will have made a determination as to whether the Georgia World Congress Center should be financed by private funds. Upon receipt of the appropriate materials from the Executive Board, the Georgia State Financing and Investment Commission must then determine, by appropriate resolution, whether to issue general obligation debt for this purpose. Ga. Laws 1973, pp. 750, 766, Section 5c(1). With respect to the question of whether public funds derived from general obligation debt should be employed to construct this project, it is my opinion that the final determination rests with the Georgia State Financing and Investment Commission. I d. In the event the Commission adopts a resolution authorizing the issuance of the general obligation debt, an action to validate the bonds would then be brought in Fulton Superior Court. Ga. Laws 1973, p. 750, Section 5c(4). II. If general obligation debt has not been previously incurred, Ga. Const., Art. VII, Sec. III, Par. I (c) (Ga. Code Ann. 2-560l(c)) and the Georgia State Financing and Investment Commission first determines not to issue general obligation debt, then the Georgia Building Authority may decide that the World Congress Center can be financed through the issuance of Georgia Building Authority bonds. In that event, the procedures normally followed by the Georgia Building Authority in the issuance of debt would be followed with certain exceptions. Under present statutory provisions, the World Congress Center design and site selection determinations by the Executive Board would have to be reflected in any lease between the Department of Community Development (the lessee agency under Ga. Laws 1973, pp. 1353, 1359-62, Section 13) and the Georgia Building Authority. Ga. Laws 1972, p. 245. Under existing law, the rights of the department under any such lease would be subject to the powers of the Executive Board. Ga. Laws 1972, p. 245. The Georgia Building Authority would then by appropriate resolution authorize the issuance of its obligations for this purpose. This determination by the Georgia Building Authority would then have to be approved by the Georgia State Financing and Investment Commission. Ga. Laws 1973, pp. 750, 756, Section 3f(1). Again, therefore, the Commission must make the final determination as to whether public funds should be employed for this purpose. If the Commission approved the issuance of Building Authority bonds, then a validation proceeding would be brought in Fulton Superior Court. Ga. Laws 1951, p. 699 (Ga. Code Ann. 91-523a). III. Prior to the issuance of such bonds, under existing appropriations, Ga. Laws 1973, p. 1353, except for the appropriation of $200,000, to 287 73-163 the Department of Community Development for the purposes set forth therein, no state agency has authority to expend or to contractually obligate the expenditure of public funds for purposes related to the World Congress Center. CONCLUSION. As to either alternative discussed above, there are substantial legal issues going to the heart of any public financing of this project. These issues can only be resolved in a validation proceeding involving a public debt issue or by the General Assembly, which possibility in my judgment makes it inappropriate to discuss those issues at this time. Because of these issues, it is my recommendation that no state agency enter into a contract requiring the expenditure of public funds, except those appropriations to the Department of Community Development for its expenses in planning, prior to the final determination in a validation proceeding or prior to appropriate legislation by the General Assembly. OPINION 73-163 To: Commissioner, Department of Banking and Finance October 4, 1973 Re: Banks and banking; interest chargeable by commercial bank. This is in reply to a letter from your office, dated August 2, 1973, which requested my opinion as to the proper method of calculating the maximum allowable interest which may be charged by a commercial banking institution in Georgia pursuant to Ga. Code 13-2019. Ga. Code 13-2019 (1933) states that "any bank may take, receive, reserve and charge on any loan, or advance of money or forbearance to enforce the collection of money, interest at not exceeding eight percent per annum." This section, although it does not delineate the method of calculating the allowable maximum interest, contains substantially the same words and phrases as Ga. Code 57-101 (1933). Ga. Code 57-101 is the general usury statute, which limits the maximum amount of interest which may be charged to a simple eight percent per annum. The courts have held that when words and phrases, the meaning of which have been ascertained in a statute, are used in a subsequent statute, they are to be understood in the same sense. See Lane v. Morris, 10 Ga. 162 (1851). Therefore, the same interpretation which has been attached to Ga. Code 57-101 is equally applicable to Ga. Code 13-2019, thus limiting the maximum rate of interest under Ga. Code 13-2019 to a 73-164 288 simple eight percent. This has been affirmed in Friend v. Bank of Eastman, 112 Ga. App. 756, 146 S.E.2d 110 (1965). In that case the court held that a note bearing an interest rate of eight percent per annum, calculated according to the "add-on" method of accounting, was usurious. This is not to imply, however, that Ga. Code 57-116 is not applicable to commercial banking institutions. Ga. Code Ann. 57-116 (Ga. Laws 1912, p. 114; 1937, p. 463) allows loans to be madewitha maximum interest rate of six percent, using the "add-on" method of calculation. There is no specific repeal of Ga. Code Ann. 57-116 contained in Ga. Code 13-2019, and the courts' position has been that such apparent conflicts are to be reconciled if possible. See Morris v. City Council of Augusta, 201 Ga. 666, 40 S.E.2d 710 (1946). Ga. Code Ann. 57-116 is limited by its language to loans of money repayable in installments, and, therefore, Ga. Code 13-2019, like Ga. Code 57-101, will apply to regular noninstallment loans. This position is also supported by Friend v. Bank of Eastman, supra, which specifically approves a transaction between an individual and a bank made pursuant to Ga. Code Ann. 57-116. Therefore, it is my opinion that Ga. Code 13-2019 fixes the maximum allowable interest rate which can be charged by commercial banking institutions at a simple eight percent per annum; provided that this limit shall not apply to transactions entered into pursuant to the provisions of Ga. Code 57-116. OPINION 73-164 To: Commissioner, Department of Human Resources October 8, 1973 Re: Mentally retarded persons; housing; city cannot interfere with functions of county board of health. You have requested my official opinion as to what involvement the Department of Human Resources has or may have with regard to the establishment of a group home for the mentally retarded in Gainesville, Georgia. As I understand it, the city commissioners of the City of Gainesville voted to revoke the certificate of occupancy for the group home established by the Hall County Board of Health. The home was to house two mentally retarded girls. This decision was apparently based on an opinion rendered by the city attorney which indicated that the use proposed by the County Board of Health for the building in question violated the Gainesville zoning ordinances and that the proposed land use was therefore prohibited. 289 73-164 The State of Georgia accepts responsibility for the care of the mentally retarded and a pattern of facilities, programs and services are therefore maintained for them. See Ga. Laws 1972, p. 700 (Ga. Code Ann. Ch. 99-33). With these needs in mind, Ga. Laws 1972, pp. 700, 703 (Ga. Code Ann. 99-3307), states: "(a) The Department of Public Health [now Department of Human Resources] shall provide assistance to county boards of health in developing a full range of community services for the mentally retarded through consultation and provision of standards .... "(b) Should a county board of health fail to take the necessary action to provide approved community services for the mentally retarded individuals, the Department of Public Health [now Department of Human Resources] shall be empowered to establish and operate such services in lieu of operation by said county board of health." Whether the department is empowered to exercise its authority under this statute in this situation depends in part on whether the Gainesville ordinance legally prohibits the occupancy of the group home by the mentally retarded girls. Assuming arguendo that Gainesville ordinance does purport on its face to prohibit the use of the building as a group home, it is my official opinion that the City of Gainesville is without authority to enforce zoning restrictions against the activity of a county board of health, especially where that activity is mandated by a state statute reflecting a state policy. See Mayor of Savannah v. Collins, 211 Ga. 191 (1) (1954); Pearson v. County of Tift, 219 Ga. 254 (1963). The county boards of health are charged with the responsibility of providing community residential services such as group family care homes for the mentally retarded. See Ga. Laws 1972, p. 700 (Ga. Code Ann. 99-3305 (a)). With this governmental responsibility having been clearly delegated by the General Assembly to the county boards of health, the City of Gainesville may not interfere with the exercise of this governmental function. Therefore, the Hall County Board of Health may legally lease the building and employ it as a group home, the city zoning ordinance notwithstanding. Since the Hall County Board of Health may employ the building as a group home and in view of Ga. Code Ann. 99-3307 (b), it is my official opinion that the Department of Human Resources may become involved if the Hall County Board of Health fails to provide the necessary services to the mentally retarded individuals. 73-165 290 OPINION 73-165 To: Commissioner, Department of Transportation October 9, 1973 Re: Highways; removal of unattended vehicles. This is in response to your request for my opinion as to when an abandoned vehicle may be removed from state highway right-of-way. Your letter indicates that an apparent conflict exists between two laws covering this subject. Ga. Laws 1972, pp. 342,344, Section 3(a) (Ga. Code Ann. 68-2303), provides that a peace officer who finds a motor vehicle which has been left unattended on a public street, road or highway, or other public property, for a period of at least 10 days, is authorized to remove the vehicle. Ga. Laws 1973, pp. 947, 1067 (Ga. Code Ann. 95A-904 (a)), authorizes a state or local law enforcement officer who finds a vehicle parked "in violation of law or department regulation" to remove the vehicle. Ga. Code Ann. 95A-904 (d) further provides: "It shall be unlawful for any person to park or leave unattended any vehicle upon the right-of-way of any public road on the State Highway System for over 48 hours." (Emphasis added.) The 1973 provision thus brings into question the viability of the 1972 requirement that a vehicle be left unattended for at least 10 days before it may be removed. Since the 1972 provision was not specifically repealed, its viability hinges on whether it was repealed by implication. The repeal of statutes by implication is not favored by the law. Repeal by implication occurs when a later Act "is clearly and indubitably contradictory of and contrary to the former Act, and the repugnancy is such that the two cannot be reconciled." Mayor of Athens v. Wansley, 210 Ga. 174, 177 (1953). While the 1972 statute authorizes removal after a period of at least 10 days, the 1973 provision authorizes removal after a period of 48 hours. Mindful then of the severe limitations on the notion of repeal by implication, I am nonetheless of the opinion that these two provisions are patently inconsistent and are in irreconcilable conflict as to when a vehicle may be removed. The later Act will be that Act which sets out the last expression of the legislative will. Butts County v. Strahan, 151 Ga. 417 (1921). This general rule of statutory construction would indicate that because the 291 73-167 conflict between these two statutes is, in part, clear and irreconcilable, Ga. Laws 1973, pp. 947, 1067, would control. Therefore, it is my official opinion that any vehicle left unattended for ll).ore than 48 hours on the right-of-way of a public road within the State Highway System may be removed by state or local law enforcement officers. Please note, however, that this opinion should be construed as applying to the 1972 statute in question only as it affects vehicles left unattended on state highway right-of-way. OPINION 73-166 To: Governor of Georgia October 11, 1973 Re: Deputy Commissioner of Public Safety acting as Commissioner of Public Safety; compensation. On September 15, 1973, the office of Commissioner of Public Safety became vacant by virtue of the resignation of Colonel Ray Pope. As provided by law, Deputy Commissioner of Public Safety J. H. Cofer became Acting Commissioner of Public Safety on that date. You have asked me to determine whether Lieutenant Colonel Cofer should be compensated as Commissioner of Public Safety or Deputy Commissioner of Public Safety while he serves as Acting Commissioner. The controlling statutory provision provides as follows: "The Deputy Director shall perform such duties as he may be charged with by the Director of Public Safety, and in case of a vacancy shall act as Director of Public Safety of Georgia until an appointment is made to fill such vacancy, and shall during such time draw the same salary as that of Director." Ga. Laws 1937, pp. 322, 327, as amended (Ga. Code Ann. 92A-115). It seems to me that the clear intendment of this statute is that Colonel Cofer be compensated while he is Acting Commissioner exactly as he would he if he were Commissioner. OPINION 73-167 To: Executive Secretary, Board of Regents of the University System of Georgia October 12, 1973 Re: Public officers and employees; authority to provide insurance protection. This is in reply to your letter of September 21, 1973, in which you ask the following questions: 73-167 292 1. May the Regents lawfully purchase liability insurance to cover employees of the University System for acts or omissions in the course of their employment where such insurance is provided to employees as a fringe benefit of their employment? 2. May the Regents lawfully purchase liability insurance designed to protect individual members of the board from personal liability for official acts? 3. If the answer to either of the first two questions is in the affirmative, may the Regents authorize the purchase of such insurance consistent with the "Generalized Specifications for a Comprehensive Liability Insurance," a copy of which is attached? My opinion respecting each of these questions is as follows: Question One: The office of the Attorney General has ruled upon a number of occasions that state agencies cannot purchase liability insurance to protect themselves from tort claims. See, e.g., Ops. Att'y Gen. 67-190 and 70-57. The rationale is that since a state agency cannot be sued in tort (such suits being barred by the doctrine of sovereign immunity1), it cannot expend funds for liability insurance since there is nothing against which it needs protection. Under these circumstances any premium payment, since it would confer no benefit upon the state agency, would really amount to the payment of a gratuity, which as you are aware is prohibited by Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402 (1)).2 This office has also pointed out, on the other hand, that a state agency (specifically the Board of Regents) may legally purchase liability insurance to protect someone else where the purchase constitutes part of the consideration for an agreement between the agency and another party. Op. Att'y Gen. 70-57. Less than a week ago, for example, we ruled that for this reason it was lawful for the Department of Veterans Service to purchase professional malpractice liability insurance to protect the professional staff members of the Georgia War Veterans Nursing Home where the staff had been furnished by the Board of Regents under a contract calling for this protection.3 I am unaware of any reason why the situation would be any different simply because the agreement under which this sort of consideration flows happens to be an employment agreement, or, to put it more broadly, why a state agency empowered to fix the compensation of its 1 See, e.g., Crowder v. Department of State Parks, 228 Ga. 436 (1971); Peters v. Boggs, 217 Ga. 471 (1961); Perry v. Regents of the University System, 127 Ga. App. 42, 43 (1972). 2 "The General Assembly shall not by vote, resolution or order grant any donation or gratuity in favor of any person, corporation or association." a Op. Att'y Gen. 73-151. 293 73-167 officers or employees could not include insurance (be it liability, hospitalization or life insurance) as a part of the total compensation paid. As the Court of Appeals put it in Griffin v. Bass, 96 Ga. App. 892, 896 (1958): "This is the day and age when fringe benefits, such as sick benefits, retirement, etc., are extremely important to the working public, and many people take and hold onto jobs because of such benefits." On May 11, 1973, I wrote an opinion to the Honorable Ernest B. Davis, State Auditor, pointing out that the compensation which a county board of education may pay its school superintendent is not necessarily limited to monetary payments and that fringe benefits such as life insurance may be provided. See Op. Att'y Gen. 73-65. It is my opinion that for the same reasons the Board of Regents of the University System of Georgia may lawfully include personal liability insurance as a part of the compensation it pays to its officers and employees.4 Question Two: While the Board of Regents of the University System of Georgia is empowered by law to fix the compensation of its officers and employees, see, e.g., Ga. Code 32-121 (1933) (and for this reason may include insurance as a part of their compensation), it does not have any power to fix its own members' compensation. The compensation of the members of the Board of Regents is fixed by Ga. Laws 1971, p. 233 (Ga. Code Ann. 32-111), which provides for a per diem sum of $20 plus actual expenses. Since the compensation of board members is fixed by law it would be my opinion that the board is without authority to increase it, and that any attempt to do so in the absence of statutory authorization would be in conflict with the gratuities provision of Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402 (1)), as well as being beyond the scope of the board's authorized powers. Question 'Three: Upon review of the "Generalized Specifications for a Comprehensive Liability Insurance, etc." furnished with your letter of September 21, 1973 (copy attached), I can only say that with one exception I am unaware of any law of the State of Georgia which would be violated by the issuance of a policy of insurance along the lines generally indicated. This one exception refers to the fact that the "Generalized Specifications" appear to contemplate the coverage of punitive damages. Although the appellate courts of Georgia have not yet ruled on the point, the weight of authority appears to be that it is 4 It should be carefully noted that this would not be true where the employing agency does not have the power to fix its officers or employees' salaries (as, for example, where the salaries are fixed by statute or by the State Merit System). If the insurance were to be provided other than as part of the employees' compensation, it would amount to . a "gratuity" and hence conflict with the previously mentioned constitutional prohibition of the same. 73-168 294 inconsistent with public policy to allow the risk of liability for punitive damages to be transferred to an insurer. See, e.g., Northwestern National Casualty Co. v. McNulty, 307 F.2d 432, 440 (5th Cir. 1962). Consequently, in an official opinion to the Insurance Commissioner this past June, this office opined that a policy of insurance attempting to cover punitive damages would in all likelihood be held by the courts of Georgia to be contrary to public policy and void. See Op. Att'y Gen. 73-78. The precise legal consequences of any such policy, of course, would depend upon the ultimately agreed upon language of the policy itself. OPINION 73-168 To: Acting Commissioner, Department of Public Safety October 15, 1973 Re: Motor vehicle safety responsibility; reinstatement of revoked licenses. This is in reply to your letter requesting an opinion concerning driver's license revocation law. My response will be directed to the following questions which you presented in your request: 1 (a). May the commissioner reinstate a license on a mandatory revocation, second offense, after 30 days, requiring proof of future financial responsibility, reexamination and payment of a $10 restoration fee? (b). May the commissioner require proof of safety responsibility for a three-year period, the second time such proof is required? 2. Is Rule 570-6-.03, Rules Dept. of Public Safety, valid? 3. May the Commissioner of Public Safety increase the minimum mandatory holding period of a license beyond 30 days by rule or regulation? 4. Is a hearing required to consider reinstatement of a license after 30 days? 5. Is a hearing required before the commissioner can revoke or suspend a license? 6. Do new reinstatement provisions affect prior revocations? 7. Is Ops. Att'y Gen. 1963, p. 333, still valid? 295 73-168 [1] (a) The Commissioner of Public Safety may, in his discretion, reinstate a license after the second offense, any time after the expiration of 30 days. He must require proof of future financial responsibility and payment of a $10 restoration fee as conditions to reinstatement. Ga. Code Ann. 92A-608 (Ga. Laws 1951, p. 565, as amended); and 92A-615.1, 92A-615.2 (Ga. Laws 1963, p. 593, as amended). Additionally, he may require reexamination. See Ga. Code Ann. 92A-401 (Ga. Laws 1937, p. 322, as amended). [1] (b) After a careful examination of the various amendments to the Motor Vehicle Safety Responsibility Act of 1951, it is my opinion that Ga. Code Ann. 92A-615.1 is not in irreconcilable conflict with, and can stand with, existing statutory law. See West v. Forehand, 128 Ga. App. 124, 126 (1973). Accordingly, the Code section in question was not repealed by implication and is still valid law. Notwithstanding the inherent practical problems, the commissioner must require that proof of safety responsibility be maintained for a period of three years, the second time such proof is required. Ga. Code Ann. 92A-615.1. [2] Rule 570-6-.0:3, Rules Dept. of Public Safety, provides that the commissioner may consider reinstatement of a license after 60 days. Such a provision is in conflict with the statutory authority upon which it is based. Ga. Code Ann. 92A-608 allows consideration of reinstatement after 30 days; any attempt to further restrict the commissioner's power by rule would be beyond legal authority. Accordingly, Rule 570-6-.03, Rules Dept. of Public Safety, is not valid. See the discussion in [3] below. [3] Ga. Code Ann. 92A-608 provides that the commissioner must hold a license for a minimum of 30 days, after which, the commissioner must exercise his discretion; in doing such he may either reinstate the license or continue to hold it. It would not be proper to restrict the commissioner's discretionary power by rule or regulation, nor would it be necessary, as the commissioner need not reinstate a license after 30 days, but may hold it up to one year under existing law. Ga. Code Ann. 92A-608; Ops. Att'y Gen. 1963, p. 333. The commissioner is authorized, however, to set forth, by rule or regulation, the criteria he will use in exercising his discretion. [4] A hearing to consider reinstatement of a license after 30 days is required only if the aggrieved person requests such. Ga. Laws 1951, pp. 565, 567; 1956, pp. 543, 547; 1973, p. 509. (Ga. Code Ann. 92A-602.) [5] Before a license may be suspended or revoked a hearing must be made available (Bell v. Burson, 402 U.S. 535, 542 (1971)) but need not be held unless the aggrieved party requests one. See Ga. Laws 73-168 296 1951, pp. 565, 567, supra. However, the scope of the hearing is limited to questions in issue: for example, the validity of a conviction should not be considered at a limited hearing. When appropriate, the driver may be apprised of the questions and issues to be considered at the hearing, in the order, or in the notice of hearing. [6] The commissioner's authority to reinstate is controlled by the statute under which the revocation was effectuated. If the statute does not give the commissioner reinstatement power, he cannot create any by rule or regulation. For purposes of convenience, the statutory law will be divided into two groups. (a) As the commissioner did not have authority respecting reinstatement under former Ga. Code Ann. 92A-403 and 92A-434,t he would not now have authority to reinstate licenses revoked pursuant to either of the cited Code sections. (b) Under Ga. Code Ann. 68-9927 (Ga. Laws 1953, Nov. Sess., p. 556, as amended); Ga. Code Ann. 92A-443 (Ga. Laws 1968, p. 430); Ga. Code Ann. 92A-455 and 92A-9936 (Ga. Laws 1972, p. 1086); Ga. Code Ann. 92A-608 (Ga. Laws 1951, p. 565, as amended), the effect of new reinstatement provisions on prior revocations is dependent upon the authority of the commissioner at the time of revocation as given by the statute under which the license was revoked. The commissioner is empowered to (1) exercise discretion within the limitary parameters of the relevant statute, and (2) adopt rules and regulations describing the guidelines he will use in exercising his discretion. [7] Ops. Att'y Gen. 1963, p. 333, which construes the word "may" in a predecessor statute as "permissive and not mandatory" is equally applicable to the current law found in Ga. Laws 1951, p. 565, as amended; Ga. Code Ann. 92A-608. In summary, it is my official opinion that: 1 (a). The Commissioner of Public Safety may, within the exercise of his discretionary power, reinstate a license on mandatory revocation, second offense, after 30 days, requiring proof of future financial responsibility, reexamination and payment of a $10 restoration fee. (b). Ga. Code Ann. 92A-615.1 is not repealed by implication and is still valid law. 2. Rule 570-6-.03, Rules Dept. of Public Safety, is not valid as it is in conflict with Ga. Code Ann. 92A-608. 3. The Commissioner of Public Safety may not increase the 1 Both now repealed by Ga. Laws 1972, p. 1078. Note that the revocation continues in effect notwithstanding the repeal of the statute. 297 73-169 minimum mandatory holding period of a license beyond 30 days, by either rule or regulation. 4. A hearing to consider reinstatement of a license after 30 days is required only if the aggrieved party requests such. 5. Before a license may be suspended or revoked, a limited hearing must be made available, but need not be held unless requested. 6. New reinstatement provisions may affect previous revocations to the extent that the commissioner had the authority to reinstate under the applicable law at the time of revocation. 7. Ops. Att'y Gen. 1963, p. 333, is still valid. OPINION 73-169 To: Secretary of State, Commissioner of Securities October 15, 1973 Re: Securities; limited partnership interests; filing fee based on total amount of installments instead of amount due first year. You have asked for my official opinion on a question raised by the issuer of certain limited partnership interests concerning the fee required by your office for registration of those interests under Section 3 of the Georgia Securities Act of 1957 (Ga. Code Ann. 97-104; Ga. Laws 1957, p. 134, as amended). To acquaint me with the facts of this matter, you have provided me with one of the issuers' prospectuses and a letter of protest sent to you by the issuer's attorney. From those documents it appears that the issuer, Pike Land Company, Limited, is selling 150 "limited partnership units" for which purchasers obligate themselves to pay assessments of some $77,320.72 per unit, scheduled in annual installments over a 30-year period ending on November 18, 2002. Since the initial installment is set at only $8,323, however, the issuer can receive no more than $1,248,450 by midnight December 1, 1973, the date on which the offering will automatically terminate. 1 On August 9, 1973, the issuer tendered $624.23 as the filing fee required for registration of the offering. Since that figure had been computed by regarding only the total amount payable on the 1973 installment as the "aggregate offering price," your office refused to accept the fee as tendered and instead demanded payment of $6,423.28, 1 The general partners of the issuer have the discretion to extend the termination date to April 14, 1974. See paragraph 4 of page 1 of the August 29, 1973, prospectus filed by Pike Land Company, Limited, with the Securities Commissioner of the State of Georgia. 73-169 298 which represented 1/20 of one percent of the aggregate installments for the entire 30-year period. After acceding to your office's demand, the issuer has now applied to you for a refund of the amount paid in excess of the $624.23 initially submitted. Your question, therefore, is whether your staff employed the proper method of determining the issuer's registration fee. Section 3 (c) (Ga. Code Ann. 97-104 (c)) of the Georgia Securities Act of 1957 requires a filing fee of "1/20 of one percent of the aggregate offering price of the securities to be offered for sale in this state," which in no event may be less than $25. Although the term "aggregate offering price" is not statutorily defined, Section 3 (b) (3) of the Act suggests that the "aggregate offering price" should be determined by multiplying the "price at which the securities are to be offered for sale" by the "amount of such securities to be offered in this state." Since 150 units are involved in the offering in question, that figure must provide the latter element of that formula. What, then, is the "price" at which those units are to be offered? A basic precept of statutory construction is that the words of a statute are to be given their ordinary meaning. Ga. Code 102-102 (1). According to Webster's Seventh New Collegiate Dictionary, the ordinary meaning of the word "price" in a business context is "the amount of money given or set as consideration for the sale of a specified thing." Since Section 3 of the Georgia Securities Act of 1957 gives no indication that the General Assembly intended some special definition to apply, the "price" of a given security is therefore the dollar value of the contractual obligation which a purchaser undertakes in order to obtain it. In applying that definition to determine the price of the limited partnership interests offered by the Pike Land Company, Limited, it appears that by the terms of their agreement with the issuer, all purchasers of those interests "are required to pay additional capital contributions and assessments annually as set forth in the agreement." (See paragraph 9 of page 5 of the August 29, 1973, prospectus filed with the Securities Commissioner of the State of Georgia.) The dollar value of each purchaser's contractual obligation, therefore, equals the entire amount of the 30 annual installments, not just the $8,323 initial contribution. While, as the issuer protests, the history of similar land syndication ventures may well render it extremely doubtful that the scheduled installments will ever be paid in full, there is nothing in the Georgia Securities Act of 1957 to indicate that any such consideration should weigh as a factor in computing the statutory filing fee. On the contrary, by describing that fee in terms of a rigid mathematical formula, the General Assembly presumably intended to make the computation of filing fees a purely mechanical process, free of any and all subjective variables. 299 73-170 Nor is there any basis for the issuer's argument that "the amount charged for the filing fee should also bear some proportion to the amount of expense involved in processing an issue." (See paragraph 2 of page 2 of the August 27, 1973, letter to the Commissioner of Securities from the issuer's attorneys.) Even though that argument may have a certain philosophical appeal, the fact remains that the filing fee which the General Assembly has provided is stated as a function of the price of the securities to be offered, not the expense of administering registration of those securities. Also, even if it may be assumed that the disputed fee bears no reasonable relation to the expense of processing the issuer's registration and investigating potential complaints made by purchasers of issuer's securities, there is no indication that the sum of the fees collected from all issuers over a given period would bear no reasonable relation to the expense of administering the Georgia Securities Act's overall scheme of regulation during that period. It is, therefore, my opinion that your office properly required the Pike Land Company, Limited, to pay a registration fee of $6,423.28 for filing its offering of limited partnership interests. OPINION 73-170 To: Executive Secretary, Board of Regents of the University System of Georgia October 18, 1973 Re: Georgia Institute of Technology; withholding of Alabama income taxes from employees residing in and residents of Alabama. You have requested my opinion on whether or not the Georgia Institute of Technology is obligated to withhold any sums from the wages of two employees who work in Birmingham, Alabama, and "who live there and consider themselves as permanent residents of Alabama.'' The Code of Alabama (Ann.) Title 51 424 (2) (1) provides that: "Every employer, as defined under the laws of the United States . . . shall deduct and withhold upon such wages a tax equal to [the rates set forth]." Treas. Reg. 3401 (d)-1(d) defines the term "employer" as including "governments of the United States, the States, Territories, ... including their agencies, instrumentalities, and political subdivisions." The Code of Alabama (Ann.) Title 51 373 provides that an income tax will be levied on "every individual residing in Alabama." Based upon the foregoing, it is my official opinion that the Georgia Institute of 73-171 300 Technology must withhold Alabama income taxes from the wages paid to employees who reside in and are residents of the State of Alabama. I am enclosing copies of the Alabama statutes which set forth the rates and methods used for computing the tax. Additionally, I am enclosing a copy of Ops. Att'y Gen. 68-276 which further sets forth the rationale for such withholding. OPINION 73-171 To: Director, Office of Planning and Budget October 18, 1973 Re: Public officers and employees; authority of Office of Planning Budget as to modes of transportation upon transfer. This is in reply to your letter of September 24, 1973, requesting my opinion as to whether it would be appropriate to reimburse a state employee for the cost incurred in moving his mobile home from one location to another pursuant to a relocation of the employee for the benefit of the state. Act No. 356, Ga. Laws 1973, p. 708, authorizes the reimbursement of relocation expenses when a state employee is transferred from one duty station to another at the request and for the benefit of the department for which he works. That Act specifically limits the expenses which the state may reimburse to those (1) incurred in the transportation of the employee's household goods and (2) those incident to the change of residence from one part of the state to another. The Act charges the Office of Planning and Budget with the establishment of rules and regulations necessary for the administration of its proviswns. Those reimbursable expenses which are incident to the change of residence are limited by the word "incident". Ga. Code 102-102 (1) states that words in statutes are to be given their ordinary meaning unless the context indicates otherwise. Webster's Third New International Dictionary defines "incident" as something which is " ... occurring or likely to occur, especially as a minor consequence or accompaniment (confusion incident to a quick change) ...." This definition limits this class of reimbursable expenses to those which are a minor consequence of a move and it does not authorize the reimbursement of major expenses, such as the closing costs on a new home or the expense of moving a mobile home to the new location. The other class of reimbursable expenses includes those expenses incurred in the transportation of the employee's household goods. 301 73-172 The Act does not define or limit the modes of transportation which may be used in order to qualify the expense thereof for reimbursement, but leaves it to the Office of Planning and Budget to establish the rules and regulations necessary to implement the Act. Thus, the Office of Planning and Budget must make the decision as to what modes of transportation will be acceptable. Normally any construction of an unclear term or phrase will be allowed provided that the construction is reasonable. See Georgia Railroad Co. v. Wright, 124 Ga. 596, 626, 53 S.E. 251 (1905). Therefore, the Office of Planning and Budget has the authority and the duty to delineate all means of transporting an employee's household goods pursuant to this Act which are reasonable and which will therefore be reimbursed. In the case where a mobile home is used to transport the household goods, the Office of Planning and Budget has the authority and must determine if that is a reasonable method of relocating household goods contained in a mobile home and if it is, the office must then decide whether it is reasonable in light of the costs of the other modes of transporting household goods, pursuant to this Act. If it is reasonable to move household goods in such a fashion, the Office of Planning and Budget may establish rules authorizing the reimbursement of expenses so incurred. It is, therefore, my official opinion that while the cost of moving a mobile home may not be reimbursed as an expense incident to a change of residence, the Office of Planning and Budget has the authority to determine whether the expense of moving a mobile home as an adjunct to moving household goods is normal and reasonable and, if it finds it is, to establish rules authorizing the reimbursement of expenses so incurred. OPINION 73-172 To: State Superintendent of Schools October 26, 1973 Re: County school superintendents; use of stenographer or recording equipment in keeping minutes of board. In your letter of the 19th, you refer to Ga. Laws 1956, p. 747 (Ga. Code Ann. 32-912), which provides in pertinent part that the county superintendent of schools shall " . . . act as secretary of the board, and keep the minutes of their meetings and made a permanent record of the same, ...." You ask for my official opinion as to whether this Code provision requires the county school superintendent, and no other person, to 73-173 302 record the minutes of the school board, or whether the recording may be accomplished through the use of a stenographer with the understanding that the school superintendent shall continue to be responsible for the taking and keeping of the minutes. It is my official opinion that while the county school superintendent may not delegate his statutory responsibility for causing the minutes of board meeting to be kept and made into a permanent record, he may, to better meet his responsibilities in the matter, utilize the services of a stenographer, or, for that matter, any sort of recording equipment. The important thing to remember is that the responsibility of seeing to it that accurate minutes are kept and made into a permanent record remains with the county school superintendent regardless of the means he employs to carry out his task. OPINION 73-173 To: Executive Secretary-Treasurer, Teachers Retirement System October 31, 1973 Re: Teacher retirement; payment for accrued terminal leave not considered salary in computing retirement benefits. This responds to your request for my opinion on the proper computation of certain retirement benefits. As I understand it, the factual context in which your question arises is as follows: Two teachers at North Georgia College are retiring and have applied for retirement status and allowances. Both have certain accrued annual leave due them upon termination of their employment contracts. Your specific question is whether this terminal annual leave should be included as salary within the teachers' highest five-year compensation computation for benefit purposes. You inform that in these cases the final five years of the teachers' employment will be used for figuring their highest average compensation. Ga. Laws 1943, p. 640, as amended, Ga. Code Ann. 32-2905 (2) (a) and (b), as amended, provide that a retiring teacher shall receive an annual annuity and pension totaling the equivalent of one and threefourths percent of his average compensation over the five consecutive years of creditable service producing the highest such average, multiplied by the number of the teacher's years of creditable service up to 40. Ga. Code Ann. 32-2901 (14), as amended, defines "average final compensation" as the " ... average annual earnable compensation of a teacher during the last five years of credited service...." (Emphasis added.) Further, "earnable compensation" is defined at Ga. Code Ann. 32-2901 (13), as amended, as the full rate of regular compensa- 303 73-173 tion payable to a member teacher for his full normal working time...." (Emphasis added.) Principles of statutory construction indicate that words in a statute should be accorded their ordinary signification (Ga. Code 102-102 (1)) and that ascertainment of the intent of the General Assembly in the passage of any Act is of cardinal import. Ga. Code 102-102 (9); Gazan v. Heery, 183 Ga. 30 (1936). In my judgment, the term "earnable compensation," defined as regular compensation, means the teacher's salary or regular remuneration (plus some other compensation, not relevant here, from grants or contracts made with the teacher's employer by outside agencies as indicated by Ga. Code Ann. 32-2901 (4) and (13)). Annual leave is a fringe benefit to employment (just as a stated length of vacation time would be) accumulated at a rate specified by an employer or the rules of a merit system or civil service board. It is in the nature of an accoutrement or trapping of employment, ancillary to the rate of employment salary. It is usually viewed as part of the employment contract but can, in some circumstances, become in the nature of a vested right subject to divestment if not used properly. Op. Att'y Gen. 71-33. It may assume the character of salary when an employee is paid during a vacation, but it is not salary itself. As I understand it, the teachers about whom you inquire would like the accumulated terminal leave computed in their higheBt five-year compensation computation and also receive an immediate retirement allowance check for the first month after the termination of their employment. This, of course, raised your question. One solution would be to delay the commencement of the retirement checks until the period of accumulated annual leave had expired. That would allow the annual leave to assume the character of salary and be computable in the average. (Although, quite obviously, the beginning point for the fiveyear average period would be moved forward a concomitant period of time.) However, in the situation you pose, as stated before, the teachers want the accumulated annual leave payment made immediately and computed as part of their last month's salary, in addition to receiving a retirement allowance check the first month following retirement. This is not the character and function of the payment of accumulated terminal leave. Accordingly, based on my interpretation of the apposite statutes and the foregoing discussion, it is my opinion that accrued terminal annual leave paid a teacher following his last day of service should not be included as salary within the teacher's highest five-year compensation computation for retirement allowance purposes. 73-174 304 OPINION 73-174 To: Director, Georgia Forestry Commission November 2, 1973 Re: Forestry Commission; authority to expend funds for sewer line; requirement in Appropriation Act that Attorney General approve item is invalid. Your recent letter requests an official opinion concerning payment of $25,000 to Bibb County for the construction of a sewer line for the Forestry Commission. Your letter indicates that the existing sewer facilities of the Forestry Commission are inadequate and that the Forestry Commission has found it too expensive and otherwise not feasible to construct a private system for sewage disposal. After consultations between Bibb County and the Forestry Commission it was agreed that Bibb County would extend a sewer line to the Forestry Commission and connect the Forestry Commission facilities to the Bibb County sewer system for not more than $25,000. I understand that most of the construction work has been completed but that the Forestry Commission has not yet been connected to the Bibb County sewer system. The Forestry Commission requested and received in its 1974 fiscal year budget an appropriation of $25,000 for this purpose. Ga. Laws 1973, pp. 1353, 1370. The pertinent language is as follows: "Section 18. Forestry Commission. "Operations 00000000000000000000000000. 0000000000$8,477,200 * * * "Provided, that of the above appropriation, $25,000 is designated and committed for sewer line construction in Bibb County. Provided, further, that none of the funds appropriated above for this purpose shall be used until the Attorney General has issued an official opinion that such expenditure be legal." While your letter did not specifically raise the issue, the proviso requiring that you obtain an official opinion from me as to the legality of the expenditure before spending any of this appropriation is clearly invalid. The General Assembly, by an Appropriations Act, may authorize an agency to spend up to a maximum amount for a purpose within the authority and responsibility of that agency under general law; it may do no more or no less than that. Ga. Const., Art. VII, Sec. IX, Par. I (Ga. Code Ann. 2-6201); Art. III, Sec. VII, Par. IX (Ga. 305 73-174 Code Ann. 2-1909); Ga. Laws 1962, p. 17 (Ga. Code Ann. 40-402 (1) and (2)); Ops. Att'y Gen. 73-147; 73-132; 73-80; 67-189. The General Assembly cannot employ the vehicle of an Appropriations Act to place substantive restrictions on an agency's authority, under general law, to expend public funds; such restrictions can be made only by amending the general law. Under general law the Forestry Commission has broad authority to work for the advancement of the forests of this state. Ga. Laws 1955, pp. 309, 314 (Ga. Code Ann. 43-206). The specific powers given to the Forestry Commission to engage in research and other projects and to maintain installations for fire prevention, deteetion and fighting necessarily include the authority to maintain facilities for the carrying out of its responsibilities and to provide necessary utilities for such facilities. It is obvious that the Forestry Commission is in no way restricted in the exercise of its authority to instances where it has received an official opinion from the Attorney General stating that the proposed action is legal. The proviso establishes a maximum amount allocated to sewer construction; to that extent it is entirely proper. However, insofar as the proviso attempts to prohibit the Forestry Commission from carrying out its responsibilities without first obtaining the sanction of the Attorney General, it is an effort to vary terms of general law through an Appropriations Act and thus of no force and effect. However, while you are not legally bound by that portion of the proviso which requires you to obtain an official opinion from me, I will proceed to answer the legal question raised by your letter. You have informed me that the work of constructing a sewer line to the Forestry Commission has included reconstructing an existing, nonfunctioning sewer line which runs across private property and onto the Forestry Commission property. Additional work is entailed in making the connection between the reconstructed sewer line and the Forestry Commission facilities. While there might be some constitutional questions raised if the Forestry Commission were to pay for a sewer line built on private property and owned by Bibb County (see Op. Att'y Gen. 72-167), a contract by which the Forestry Commission pays Bibb County for the construction work done on the Forestry Commission property plus a fee for tying the Forestry Commission buildings in to the Bibb County sewer system would unquestionably be legal. 73-175 306 OPINION 73-175 To: Director, Environmental Protection Division November 5, 1973 Re: Environmental Protection Division; certification of equipment and facilities for pollution control. This responds to your letter of October 29 requesting my opinion as to what industrial facilities may be certified by your division as in the furtherance of air or water pollution control and abatement. Specifically, your question is stated as follows: "In certifying projects under the federal and/or state regulations or laws, should this division only certify equipment and facilities 'necessary' for the industry to meet the state's standards; or should the division certify additional facilities that could be considered in furtherance of the purpose of abatement or controlling pollution ...?" As I understand it, requests for these certifications come to your division via two routes and purposes. First, the Development Authorities Law, Ga. Laws 1969, p. 137 et seq. (Ga. Code Ann. Ch. 69-15, as amended), allows a county or municipal development authority (created pursuant to this law) to issue bonds to finance certain projects for an industry under certain circumstances. (The development authority generally receives and pledges the industry's anticipated revenue and/or property as security for the payment of the bonds.) One of these circumstances is that: " ... bonds may be issued to finance projects for air and water pollution control facilities by industry ... so long as any federal, state or local agency having jurisdiction in the premises shall have certified that the project is necessary for the continued operation of the industry or industries which the same is to serve and is necessary for the public welfare." Secondly, assuming the bonds are issued, the interest income thereon is tax exempt if under Internal Revenue Service Regulation 1.103-8 (g) (2) (b): ". . . A federal, state or local agency exercising jurisdiction has certified that the facility, as designed, is in furtherance of the purpose of abating or controlling atmospheric pollutants or contaminants, or water pollution, as the case may be...." The term "air pollution control facility" as used in the state's Development Authorities Law, supra, means property used primarily for the abatement or control of " ... atmospheric pollution or contami- 307 73-175 nation by removing, containing, altering, disposing or storing of atmospheric pollutants or contaminants if such facility is in furtherance of federal, state or local standards for control of atmospheric pollution or contaminants." (Emphasis added.) Substantially the same language is used to define "water pollution control facility" with, of course, a substitution of equipment and language to fit the context of water pollution abatement. For the tax regulations, air or water pollution control facilities fit the definition of IRS Regulation 1.103-8 (g) (2) (b) (iii) as such if they are, essentially, facilities designed for no significant purpose other than the control of pollution. You indicate that some industries are requesting certification for facilities which are not absolutely necessary for the industry to meet state pollution level standards. (For illustration, certain in-plant changes to reduce pollutionalloads, or extensive atmospheric and environmental monitoring devices.) I further understand that one significant purpose of an environmental monitoring device, either for water or air, is to act as a "speedometer" and inform and caution the industry as to when it is in violation or near violation of applicable standards. I realize your greatest concern as to certification arises as to these monitoring devices. I am further informed that monitoring devices are necessary for the continued operation of many industries which they serve in terms of keeping the industry within applicable, nonviolative air and water pollution standards. Accordingly, your basic questions focus into two areas of concern: (1) What is meant by "in the furtherance" of abating or controlling "atmospheric pollutants or contaminants"; and (2) What is the meaning of the word "necessary" with regard to the continued operation of an industry or the protection of the public welfare. Initially, it should be remembered that the Development Authorities Law has as its stated purpose the development and promotion of the general welfare. Ga. Code Ann. 69-1507, as amended. Also, according to Ga. Code Ann. 69-1508, the provisions of this law are required to be liberally construed. Further, the foregoing principles of statutory construction should be borne in mind: (1) In statutory construction, it has long been the law that all statutes should be given a " ... reasonable construction equally removed on the one hand from that extreme strictness which would make it unpopular or ridiculous and difficult of enforcement, and, on the other, from that latitude which would render it ineffective." Roberts v. State, 4 Ga. App. 207 (1908). See also, Pope v. U.S. Fidelity and Guaranty Co., 198 Ga. 304 (1944); Sale v. Leachman, 218 Ga. 834 (1963). (2) Laws and statutory enactments which have as their purpose the aid and protection of the public health should be liberally 73-176 308 construed to effectuate that aid and protection. Eason v. Morrison, 181 Ga. 322 (1935). In this context, the term "in furtherance of" may be construed to mean the act of furthering, or helping forward, or promotion, or advancement. Powers v. Commonwealth, 70 S.W. 644 (Ky. 1902). The phrase "in furtherance of" is a comprehensive term and, although its periphery may be vague, it is both large and elastic. Reed v. Pennsylvania R. Co., 351 U.S. 502, 76 S.Ct. 958, 100 L. Ed. 1366 (1955). Similarly, the word "necessary" does not have to mean essential, but may mean desirable [Prather v. Jeffersonville M. and I. R. Co., 52 Ind. 16 (1875)] and expedient, reasonably convenient, or useful to the public [Russell v. Chicago and Mil. Ry. Co., 98 Ill. App. 347 (1900)]. Therefore, based on the foregoing authorities and discussion, it is my opinion that the Environmental Protection Division may certify equipment or facilities as necessary and in furtherance of pollution abatement and control purposes, pursuant to the Development Authorities Law and apposite Internal Revenue Service regulations, if the equipment or facilities enhance the industry's pollution abatement goal and, although possibly having other functions, have as their predominant purpose the assistance or aid of pollution control or abatement. OPINION 73-176 To: Acting Commissioner, Department of Public Safety November 7, 1973 Re: Department of Public Safety; bonding of officers. This is in response to your question regarding the propriety of bonding your Director of Staff Services and Departmental Budget Officer. There are two possible mechanisms for bonding the personnel in question. [1] If the individuals in question fall under the rubric of "officers to hold public money," their bonding is required by state law. Ga. Code Ann. 89-806 (Ga. Laws 1933, p. 78). Ga. Code Ann. 89-801 characterizes an "officer to hold public funds," as ". . . every other person, by whatever name or title called, who shall be either generally or specially elected, appointed, or employed, with the duty, in whole or in part, to receive, hold and/or disburse on behalf of the state or any of its political subdivisions, or of any board, commission, bureau, or department, any public money or revenue." 309 73-177 In other words, if either the Director of Staff Services or the Departmental Budget Officer receives, holds, or disburses public money, he must be bonded. [2] A second possible instrumentality for bonding is an administrative directive from the Board of Public Safety. Department heads may be obligated, by either state law or administrative directive, to purchase fidelity bonds covering their state employees. Ga. Laws 1962, p. 644; Ga. Code Ann. 89-428. The Board of Public Safety may, by resolution under its policymaking power, 1 issue an administrative directive to the Commissioner of Public Safety, requiring bonding of the Director of Staff Services and the Departmental Budget Officer. OPINION 73-177 To: Commissioner of Securities November 8, 1973 Re: Securities; agreement by corporation to give percentage of profits in return for guaranty of indebtedness as security. You have requested an official opinion concerning the applicability of the Georgia Securities Act to certain transactions involving guarantees of corporate indebtedness. Specifically, you inquire about the following transactions: (a) A transaction under which a corporation would obtain the guarantees of strangers on the corporation's loans in exchange for a percentage of profits in a development for which they guarantee the loan; and (b) The guaranty of a corporate loan by a stockholder if the guarantor expected no direct return from his guaranty, but only the indirect benefit of the increase in value of the corporation should the project be successful and the loan repaid. It is my official opinion that the arrangement described in (a) above would constitute a sale of a security under the Georgia Securities Act, and that the arrangement described in (b) above would not constitute the sale of a security. The Georgia Securities Act of 1957, Ga. Laws 1957, p. 134, as amended, defines a security to mean, among other things, "any ... beneficial interest in ... profits or earnings." Ga. Code Ann. 97-102 (i). A security is also defined as "any ... investment contract." (Ga. Code Ann. 97-102 (i)). The term investment contract has been 1 Ga. Laws 1972, pp. 1015, 1059; Ga. Code Ann. 40-35165. 73-178 310 construed by the courts to mean any investment in a common enterprise with profits to come solely from the efforts of others. See SEC v. W. J. Howey Co., 328 U.S. 293 (1946); Georgia Market Centers, Inc. v. Fortson, 225 Ga. 854 (1969). It seems clear that under either of the foregoing definitions, and perhaps others, an undertaking by a corporation to pay a certain percentage of its profits from a certain development is a security. It is also my official opinion that the transaction described in (a) above would constitute the sale of a security. Section 1 (f) of the Georgia Securities Act of 1957, as amended (Ga. Code Ann. 97-102 (f)), states: " 'Sale' or 'sell' shall mean every sale or other disposition of a security or interest in a security for value, and every contract to make any such sale or disposition." It is clear from this definition that money need not be received for a security in order to have a sale. All that is required is value, a term which clearly encompasses a guaranty of indebtedness. With respect to the transaction described in (b) above, the statutory definition of a sale is dispositive. In order to have a sale, you must have a disposition of a security or interest in a security. The transaction described in (b) does not contain such a disposition. In that transaction, the guarantor receives nothing new from the corporation, and the corporation makes no disposition of anything. There being no sale, there obviously can be no securities questions involved in the transaction described in (b), and neither the rescission provisions nor any other provisions of the Georgia Securities Act would apply. In summary, it is my official opinion that a transaction under which a person undertakes to guarantee corporate indebtedness in consideration for the right to receive future corporate profits is a sale of a security governed by the Georgia Securities Act. A guaranty of corporate indebtedness by a shareholder who receives no new interest in the corporation or its profits is not a sale as defined in the Georgia Securities Act and is not governed thereby. OPINION 73-178 To: Commissioner, Department of Transportation November 9, 1973 Re: State Department of Transportation; participation in third level air carrier demonstration. This is written in response to your request for my opinion on the question of whether or not the Department of Transportation has the 311 73-178 authority to participate in a Third Level Air Carrier (scheduled air commuter service) demonstration. You state that you intend to use $10,000 to perform a market analysis of several cities within the state to determine the feasibility of establishing Third Level Air Carrier Service. In addition, you state that you intend to use an additional $40,000 to sponsor a demonstration of such air carrier service to one or more cities or communities as identified by your market analysis results. It is provided in Ga. Laws 1973, pp. 720, 721, that the Department of Transportation is authorized to provide to municipalities, counties, area planning and development commissions, authorities, and agencies and instrumentalities of the state: "(a) Financial support for research, by contract or otherwise, concerning mass transportation. "(b) Project grants to supplement federal or federal and local funds for use: "(i) for the purpose of studies, analysis, planning and development of programs for mass transportation service and facilities; "(ii) to provide for research, development and demonstration projects in all phases of mass transportation; "(iii) to provide for programs designed solely to advertise, promote, and stimulate the development and use of mass transportation facilities; and "(iv) to provide for the purchase of facilities and equipment, including rolling stock, used or to be used for the purpose of mass transportation." It should also be noted that the above cited Act defines "mass transportation" as including transportation "which is appropriate, in the judgement of the department, to transport people and/or commodities, by bus, rail or other conveyance, serving the general public." Transportation by aircraft serving the general public would appear to be included in a reasonable reading of this definition. The General Assembly has appropriated to the Department of Transportation from general funds for operations in administering airport development, mass transit planning and development, promotion of aviation safety, and the provision of air transportation services, the sum of $954,400 for this fiscal year. Ga. Laws 1973, pp. 1353, 1394. Therefore, it is my opinion that Ga. Laws 1973, p. 720, authorizes you to contract with a municipality, county, area planning and development commission, authority, or any state agency or instrumen- 73-179 312 tality to provide financial support for research concerning mass transportation. In addition, if you are supplementing federal or federal and local funds, the Act authorizes you to participate in the costs of a demonstration project such as you have described. OPINION 73-179 To: Director, Employees Retirement System November 15, 1973 Re: Employees Retirement System; time of filing documents with Board of Trustees. This responds to your letter requesting my opinion on the question at what point is a written document (e.g., application for retirement, refund, etc.) to be considered as duly executed and filed with the Board of Trustees of the Employees Retirement System. The factual context in which your question arises will be set out in relevant part. As I understand it, a member of your Retirement System died on August 28, 1973. This individual had become a member of the system on May 1, 1971, and at that time had named her husband as her first beneficiary on her application for membership, designating her daughter as second beneficiary. On September 4, 1973, you received a "notice of death" form from the agency for which she worked, after which you contacted her husband and provided him appropriate forms and instructions to receive the benefits due him as the first beneficiary. Following this, on September 18, 1973, you were contacted by the personnel office of the member's agency and informed that the member had filed with that office on February 1, 1973 a new application naming her daughter as first beneficiary and husband as second. You were furnished a copy of this change on September 18, 1973, together with a sworn statement from an official in the agency's personnel office that the member had, in fact, changed her order of beneficiaries and left the designated change with the agency on February 1, 1973. Your actual question is: who is entitled to the return of the member's contributions and group term life insurance payment, the husband or the daughter? Ga. Laws 1949, p. 138 et seq., as amendea (Ga. Code Ann. 40-2505 (7), as amended), provides, in part, as follows: " ... If a member dies before becoming eligible to retire, and before completing 15 years of creditable service, the amount of his accumulated contributions shall be paid to the living person, if any, nominated by him by written designation duly executed and filed with the board of trustees; otherwise to the member's estate." 313 73-179 At first glance, it would appear clear that a beneficiary could only receive the return of a deceased member's contributions and other benefits if the written designation naming the beneficiary were duly executed and filed with the Board of Trustees of the Employees Retirement System at the time of the member's death. This would be the literal interpretation of"the statute. However, you inform me that as a practical matter, the personnel offices of many state agencies routinely handle for you the various retirement forms and documents (such as applications for membership and changes in beneficiaries). It is often through these personnel offices that materials are disseminated to members of the system and information supplied them vis-a-vis their retirement status and rights. Such was apparently the situation in the case now under consideration. This is quite understandable in view of the size and widespread geographic dispersion of state government and state agencies. In truth, the instant problem, and others like it, was generated by the failure of an agency's personnel office to forward an executed retirement document, in timely fashion, to you. This creates problems which I think should be corrected. You inform that, as Director of the Employees Retirement System, you are the custodian of all documents required to be filed with, or retained by, the Board of Trustees. Consequently, in my judgment, a document or other paper delivered for filing to you should be considered as filed with the board. See, e.g., Palcar Real Estate Co. v. Commissioner of Internal Revenue, 131 F.2d 210 (8th Cir. 1942). An act which is of a purely mechanical or ministerial nature, not involving judgment or discretion, may be properly delegated to another unless such delegation is expressly prohibited by law. Horton v. State, 112 Ga. 27 (1900); accord, Mobley v. Marlin, 166 Ga. 820 (1928). A public officer may seek the assistance of others in making reports to him, as long as he exercises his own independent judgment in any required final decision. In re Giles, 21 F.2d 536 (5th Cir. 1927); Ops. Att'y Gen. 72-99, 66-159. In my view, the agencies' personnel offices' dissemination and dispersal of retirement forms and information, and the acceptance and routine handling of applications for membership, applications for retirement, and other documents required by the Employees Retirement System, are mechanical or ministerial functions. Accordingly, these functions could be properly delegated to the personnel offices of agencies under the Retirement System. You inform me that the Retirement System has allowed the various personnel offices to handle, accept and forward these forms, for the convenience of all. While the Retirement System has requested that the personnel offices be more expeditious in informing the system of changes, etc., still the red-tape, several-weeks'-or-months' delay in transmitting forms to the system has persisted. It would appear that 73-180 314 the Retirement System has acquiesced in this arrangement. Consequently, the personnel offices have obtained the apparent authority to act for the Retirement System as to ministerial functions. cf., Nelson v. New Hampshire Fire Ins. Co., 263 F.2d 586 (9th Cir. 1959). Based on the facts you have provided me and the foregoing discussion, I am persuaded that the member's new application and change of beneficiary filed with her personnel office on February 1, 1973 should be regarded as having been constructively filed with the Board of Trustees. My conclusion is buttressed by reference to the general principle of law that documents executed by a living person should be construed, after death, so as to effectuate the intention of the deceased, if at all possible. Sproull v. Graves, 194 Ga. 66 (1942). Consequently, the return of the member's contributions and the payment of the group term life insurance should be made to the member's daughter. You inform me that before releasing funds, you require a guardian to be appointed for any minor who is to be the recipient of such funds. I think that requirement would be appropriate here. In conclusion, let me say that there are myriad, obvious possibilities for abuse of the Retirement System's objectives if the present policy of allowing personnel offices to hold retirement documents in their files continues. The Retirement System has a legitimate interest and concern that it be notified as rapidly as possible of any changes in a member's status or elections. Based on the foregoing, then, it is my official opinion that the Employment Retirement System has delegated to the personnel offices of the various state agencies the apparent authority to disperse and accept retirement documents to the point that when delivered by a member to his agency's personnel office, these documents are constructively filed with the Board of Trustees. However, I would recommend that this practice cease and the Board of Trustees consider notifying all agencies under the Retirement System that, henceforth, only when an executed retirement form or document is received by your office will it be considered filed with the Board of Trustees. The agencies should also be notified to so instruct all of their employees. OPINION 73-180 To: Secretary of State November 16, 1973 Re: Foreign corporations doing business without certificate of authority; waiver of fees and penalties not permitted. This is in response to your letter of October 11, 1973, requesting our opinion as to your authority to waive the penalty imposed on a foreign 315 73-180 corporation doing business in Georgia without first obtaining a certificate of authority when the failure to obtain that certificate was caused by the actions of the corporation's attorney rather than by the corporation itself. Ga. Code Ann. 22-1421 states in part as follows: "(a) A foreign corporation that ... is required to obtain a certificate of authority but fails to do so shall be liable ... in an amount equal to all fees ... plus all penalties imposed by this Code...." (Ga. Laws 1968, p. 565; 1969, p. 152.) Ga. Code Ann. 22-1801 establishes the penalty referred to by Ga. Code 22-1421, reading in part as follows: "(b) Each foreign corporation that transacts business in this state without authority, after 30 days, shall be subject to a penalty of $500 for each year or part thereof during which it so transacts business." (Ga. Laws 1968, p. 565; 1969, p. 152; 1970, p. 605.) These two sections indicate that the fees and penalties so prescribed are obligations which the offending corporation owes the state. Your question, then, is whether the two phrases, "shall be liable" and "shall be subject," clothe your office with the authority to waive or modify the obligation so incurred, particularly when it can be shown that the corporation made a substantial effort to obtain a certificate of authority but failed to do so through the inattentiveness of its attorneys. The question of whether an agent of the state can waive an obligation owed to the state has been settled by the Supreme Court of Georgia. In State of Georgia v. Southwestern Railroad, 66 Ga. 403 (1880), the court addressed itself to the question of the power of the Attorney General to settle tax debts owed the state. The court there stated that all agents must act within the scope of their authority in order to bind their principal and that the absence of a statute authorizing an agent to compromise the obligations owed the state would preclude that agent from doing so. The same factual situation reached the Supreme Court again in State of Georgia v. Southwestern Railroad, 70 Ga. 11 (1883), where the Supreme Court reaffirmed the position that absent a statute to the contrary, an agent of the state cannot compromise an obligation to the state. The law governing the relationship between the state and its agents cited above has not been modified by the courts and represents the current state of the law in Georgia. Unless there is clear statutory authority granted by the General Assembly, no agent, including the Secretary of State, can compromise an obligation owed to the State of Georgia. While the lack of statutory authority is sufficient to prevent the Secretary of State from waiving the obligation owed to the state, there 73-181 316 is a further indication of the intent of the legislature in this area. Prior to 1968, the Georgia Code did allow the Secretary of State to waive the penalties assessed in such a case as the one now in question. See Ga. Laws 1946, p. 687 (former Ga. Code 22-1506). That Act was specifically repealed by Ga. Laws 1968, p. 565, as amended (Ga. Code Title 22), and when enacting the new law the General Assembly made no attempt to reenact the former provisions referring to this power. The failure of the General Assembly to reenact the specific provisions of the former law can be taken as a further indication that the intent of the legislature was to withdraw the power of the Secretary of State to waive or modify the penalties so imposed. See Thompson v. Eastern Airlines, Inc., 200 Ga. 216 (1946). Therefore, since there is no specific authority contained in the Georgia Code which would allow the Secretary of State to waive obligations owed to the state by a foreign corporation which has failed to properly register before transacting business, it is my official opinion that the Secretary of State does not have the power to waive nor to modify the penalties contained in Ga. Code 22-1801, regardless of the reason for the failure to obtain a certificate of authority. OPINION 73-181 To: Director, Environmental Protection Division, Department of Natural Resources November 16, 1973 Re: Water fluoridation; statute requires fluoridation for incorporated, but not unincorporated, areas. Your recent letter raises several important questions concerning the interpretation and implementation of the Fluoridation Act of 1973 (Ga. Laws 1973, p. 148). Your questions are hereinafter set forth and discussed. 1. Does the Fluoridation Act of 1973 (hereinafter the Act) empower the W~ater Supply Section, Environmental Protection Division of the Department of Natural Resources (hereinafter the division) to require fluoridation of the water supplies of unincorporated as well as incorporated communities? Section 1 of the 1973 Act amends Ga. Code 88-2603, which establishes a water supply quality control scheme for all public and community water supply systems in the state and which, as enacted, empowered the Board of Health to establish water supply quality control standards. (Ga. Laws 1964, pp. 499, 637, as amended.) The Executive Reorganization Act of 1972 transferred the water supply quality control functions of the Board of Health to the division. Ga. Laws 1972, pp. 1015, 1057 (Ga. Code Ann. 40-35158). 817 78-181 Section 1 of the 1978 Act added to the powers of the division in the area of water supply quality contro!I the following authority: "(12) to require by regulation fluoridation of potable public water supplies in incorporated communities lying wholly within this state; provided that in no case should such fluoridation be required at a level greater than one part per million parts of water. Provided that any city or county and their water systems can remove themselves from the terms of this Act by referendum called by petition of 10 percent of the registered voters in such political subdivision who voted in the last general election. This applies to a referendum for or against fluoridation." The language of the amendment empowers the division to require fluoridation only in incorporated communities. The confusion arises from the wording of Section 1A of the Act which provides as follows: "No incorporated municipality, county, or public or private water authority shall be required to comply with the provisions of Code 88-2608 (12) unless the state has made available funds for the cost of the fluoridation equipment, the installation of such equipment and the materials and chemicals required for six months of fluoridation of such potable public water supplies." Where a statute is plain, and susceptible of but one natural and reasonable construction, there is no need to construe it. Rayle Electric Membership Corp. v. Cook, 19.5 Ga. 784 (1948). However, when the language is not clear, the legislation must be construed so as to effectuate the true intention of the General Assembly. Ga. Code Ann. 102-102 (9); Gazan v. Heery, 188 Ga. 80 (1986). Section 1 of the 1973 Act, empowering the division to require fluoridation of certain water supply systems, grants such authority only in regard to "incorporated communities lying wholly within this state." The necessary and implied corollary to that grant of authority is that the division does not have the power to require an unincorporated community to fluoridate its water supply. The language in Section 1A providing that no incorporated municipality, county, or public or private water authority shall be required to fluoridate its water unless it has received state aid is necessarily limited by, and subordinate to, the authority granted in Section 1. The conclusion that you may require fluoridation only of incorporated communities is buttressed by the fact that the Act is described in its caption as granting the 1 While the actual wording of the Act refers to the "power and duties of the Board of Human Resources in regard to water supply quality control," this office has ruled in a recent opinion, Op. Att'y Gen. 73-107, that the reference to the Board of Human Resources was an error and that the Act is to be administered by the Environmental Protection Division of the Department of Natural Resources. 73-181 318 power "to require fluoridation of potable public water supplies in certain incorporated communities." (Emphasis added.) The caption of an Act may be used as an aid in interpreting the intent of the General Assembly when the body of the statute itself leaves the meaning in doubt. Thompson v. Eastern Air Lines, Inc., 200 Ga. 216 (1946). 2. May the division grant funds to any community which wishes to acquire a fluoridation system, or are you limited in the dis- persal of such funds to incorporated communities, which are subject to your authority to require fluoridation? Neither the appropriation nor the Act expresses any intention on the part of the General Assembly to restrict disbursement of these funds to incorporated communities. The purpose of the Act is to obtain fluoridation of the drinking water supplies of the people of this state, in order to improve dental health. While the legislature chose to give you the authority to require fluoridation only in incorporated communities, there is no indication that fluoridation should not be encouraged in smaller, unincorporated communities. In fact, Section 1A of the Act indicates a contemplation of the disbursement of funds to public and private water authorities as well as to incorporated municipalities and counties. 3. Does the division need to promulgate additional regulations prior to implementation of the fluoridation program and prior to expenditure of the $400,000 allocated by the legislature for this program? While the division has extensive regulations dealing with water supply quality control and with the technical aspects of fluoridation, the regulations do not set forth the division's newly-acquired power to require fluoridation. Before you commence administrative or other proceedings against any incorporated community which has failed to fluoridate its water supply, your regulations should be amended to reflect your authority to do so and to clarify the procedures which will be followed in any such proceedings. There is no necessity, however, for you to amend your regulations prior to making grants to communities which choose to install fluoridation systems voluntarily. 4. May the funds appropriated for fluoridation grants be utilized by the division to purchase fluoridation equipment and supplies to be furnished to local communities, or must the grants be made to local communities in the form of money? Pursuant to Ga. Code Ann. 88-2618 (Ga. Laws 1964, pp. 499, 645), you are authorized to administer financial aid for water supply purposes. The Fluoridation Act contemplates distribution of funds for the cost of fluoridation supplies. Nowhere are you given the authority 319 73-182 to purchase fluoridation equipment and supplies or to make grants of such equipment to political subdivisions. However, it appears that your purposes of obtaining a uniformly high quality of fluoridation equipment and of achieving economies of scale can be achieved in another way. Implicit in your authority to make grants of funds for fluoridation purposes is the power to place certain reasonable conditions on the use of such funds. In this manner you may set quality standards for the equipment and supplies purchased for fluoridation systems. Economies of scale may be achieved by strongly suggesting to communities receiving grants that they utilize the Purchasing and Supplies Division of the Department of Administrative Services to acquire the equipment and supplies. Pursuant to Ga. Code Ann. 40-1946 (Ga. Laws 1968, p. 1352), political subdivisions may, alone or in conjunction with other political subdivisions, bid through the Department of Administrative Services for purchases of equipment, supplies or services when such procedure will result in a price advantage. Utilizing this procedure, you would make grants of funds to local communities which would be used to purchase fluoridation systems through the Department of Administrative Services. In conclusion, it is my official opinion that you may require fluoridation only in incorporated communities but that you may disburse funds for fluoridation purposes to unincorporated as well as to incorporated communities. Further, you will need to promulgate additional regulations implementing your newly-acquired power to require fluoridation in incorporated communities, but you need not wait upon the effectiveness of the new regulations to disburse funds to any community which voluntarily chooses to fluoridate its water supply. Finally, you are not authorized to purchase and make grants of equipment and supplies, but political subdivisions may purchase fluoridation equipment and supplies through the Purchasing and Supplies Division of the Department of Administrative Services. OPINION 73-182 To: Commissioner, Department of Transportation December 7, 1973 Re: State property; effect of violating condition subsequent in deed. This is written in response to your recent request for my opinion on the question of whether or not the use of a portion of certain property as street right-of-way will alter the use of the property to the extent that conditions contained in the deed from the executors of the estate to the State of Georgia will be violated. 73-182 320 You state that a proposed state highway project would include use of grounds of the subject property for street purposes. In addition, you state that your proposed use would not interfere with the present use as is provided in the deed. The State of Georgia acquired the subject property by deed from the executors of the estate, as legatees and sole heirs under the will of the testator. The deed contains provisions as follows: "TO HAVE AND TO HOLD said premises together with all and singular the rights, members and appurtenances thereof, to the same being, belonging or in anywise appertaining to the only proper use, benefit and behoof of the said party of the second part forever in fee simple; provided, nevertheless, that the above conveyance is made to the State of Georgia only on the following conditions: "I "That the property herein conveyed shall be used by the State of Georgia for historical, as distinguished from ordinary business purposes, including the preservation of historical emblems, documents, and records of all kinds bearing upon the history of our state and nation, and including also the housing of rare volumes, manuscripts, books, papers, documents, trophies, pictures, souvenirs, relics, statuary, and works of art pertaining to the history and development of the State of Georgia which may be obtained from loans, gifts, or otherwise. "II "In the event the condition above set forth is violated and/or in the event grantee herein should abandon the use of said property for historical purposes, then and in that event this deed shall be void, and the estate granted herein shall be terminated and forfeited, and the title to said premises shall revert to the grantors, herein, their heirs, executors, administrators and assigns without any reentry on their part." The above-quoted provisions have conveyed to the state title either with a condition subsequent or title with a restrictive covenant. Fulford v. Fulford, 225 Ga. 9 (1969). The wording of the deed appears to be an attempt to create a condition subsequent. This may be seen from the grantors' use of the word "conditions" and from the inclusion of an automatic reversion clause which is characteristic of an estate on limitation. Franks v. Sparks, 217 Ga. 117 (1961). It may be noted that because of the limited scope of this opinion the distinctions between an estate on limitation and a condition subsequent Heed not be made. Ga. Code (1933) 85-902 provides as follows: 321 73-183 "Conditions may be either precedent or subsequent. The former require performance before the estate shall vest; the latter may cause a forfeiture of a vested estate. The law inclines to construe conditions to be subsequent rather than precedent, and to be remediable by damages rather than forfeiture." Further, Ga. Code (1933) 37-216 provides as follows: "Equity seeks always to construe conditions subsequent into covenants, and to relieve against forfeitures, where the rules of construction will allow. (Emphasis added.) However, when the condition subsequent is plainly stated and an intent of reversion is expressed in the deed, the courts will acknowledge and give effect to the condition even though such conditions are viewed with disfavor by the law. Turner v. Turner, 186 Ga. 223 (1938); Taylor v. Sutton, 15 Ga. 103 (1854). Thus, it is my opinion that the language used in the subject deed would be construed as a condition subsequent or limitation. One of the effects of the above determination is that the grantors or their heirs, executors, administrators and assigns have a reversionary interest in the property. The law provides that the rights of reversioner are the same as those of a vested remainderman in fee. Ga. Code (1933) 85-701. The subject deed clearly states that the conveyance is conditioned on historical use of the property by the state. Even in light of the tendency of courts to construe conditions as narrowly as possible (e.g., see Harris v. Georgia Military Academy, 221 Ga. 721 (1966)), it is my opinion that the use of the property or a portion thereof for street right-of-way would be a violation of the condition imposed. Under the wording in the subject deed, in the event of a violation of the historical condition, the deed would be void. If circumstances make absolutely mandatory the use of the subject property for public street right-of-way, the possibility of acquiring the reversionary interest remaining in the grantors either by purchase or condemnation may be inquired into. See City of Atlanta v. Airways Parking Co., 225 Ga. 173 (1969). OPINION 73-183 To: Chairman, State Literature Commission December 10, 1973 Re: State Literature Commission; quorum. This is in reply to your opinion request concerning the authority of the State Literature Commission to conduct business in the absence of a quorum. 73-184 322 A "quorum" is that number of members of a body which, when assembled, enables them to lawfully transact business in the absence of the other members. Morton v. Talmadge, 166 Ga. 620, 627 (1928). When the requirements of a quorum are set by statute, they are mandatory (166 Ga. at 628); and, consequently, any action by less than a quorum is void. 166 Ga. at 620 (3). Georgia statutory law specifies the number needed to constitute a quorum of the State Literature Commission: "Two members of the commission shall constitute a quorum for the transaction of business." Ga. Laws 1953, p. 135, as amended (Ga. Code Ann. 40-3103). Accordingly, a minimum of two members of the State Literature Commission must be present to transact business. OPINION 73-184 To: Commissioner, Department of Public Safety December 14, 1973 Re: Highways; functions of Department of Transportation and of Department of Public Safety correlated. You have asked me to render an official opmwn delineating the authority of the Department of Public Safety to close public roads and highways. It is my official opinion that the authority to control, manage and close public highways is vested in the Department of Transportation, not the Department of Public Safety. The Department of Public Safety's duties appertain to the users of the highways and the enforcement of the state's laws thereon. In performing its duties, the State Patrol may stop, warn and arrest persons upon the highway in appropriate circumstances. The closing and managing of the highway itself is, however, a function of the Department of Transportation. State patrolmen may only cooperate with and assist the Transportation Department in performing this function. The Department of Public Safety has been charged by the General Assembly with the responsibility for patrolling the public roads and highways throughout the state, enforcing the laws of the state as they appertain thereto, and safeguarding the lives and property of the public. Ga. Laws 1937, pp. 322, 337 (Ga. Code Ann. 92A-239). Members of the Uniform Division are also empowered to arrest and prevent the escape of fugitives (Ga. Laws 1937, pp. 322, 337 (Ga. Code Ann. 92A-243)), and cooperate with other law enforcement officers 323 73-184 of the state when directed. Ga. Laws 1937, pp. 322, 337, as amended (Ga. Code Ann. 92A-241). It is the departme.at's duty to do whatever is necessary to fulfill this legislative mandate, so long as its actions are legal and reasonable. Cf., Henderson v. State, 95 Ga. App. 830 (1957). The statutory powers of the Department of Public Safety do not expressly include the authority to close public highways, however. That power is vested in the Department of Transportation in the case of the State Highway System (Ga. Code Ann. 95A-:)02 (a) (Ga. Laws 1973, pp. 947, 975)), and in the county with respect to the county road system. Ga. Code Ann. 95A-401 (a) (Ga. Laws 1973, pp. 947, 993). It is clear from these statutes that closing a highway for highway management purposes (e.g., highway repairs, unsafe highway conditions, etc.) is a function to be exercised by the Department of Transportation. The State Patrol may be called upon for assistance in such closings, but the basic responsibility is clearly with DOT. More problematical are instances where traffic needs to be controlled to enable the State Patrol to perform the duties assigned to them (e.g., protecting lives and property, apprehending fugitives, etc.). There are, however, certain things that the State Patrol is clearly authorized to do. A patrolman may stop and arrest a person violating the traffic laws or a fugitive, thus effectively "closing" the highway to this individual. A patrolman may also stop and warn motorists of impending danger and advise them not to proceed into certain areas. Such a stop and advise procedure will, no doubt, be all that is needed in a vast majority of cases. If the patrolman's advice goes unheeded, he is not without remedies. It is a violation of law to obstruct or hinder a law enforcement officer in the lawful discharge of his duties. Ga. Code Ann. 26-2505 (Ga. Laws 1968, pp. 1249, 131;)). This should take care of situations where it is necessary to exclude the general public from an area where a fugitive is being pursued. It is also unlawful to endanger the safety of another person by consciously disregarding a substantial risk. Ga. Code Ann. 26-2910 (Ga. Laws 1968, pp. 1249, 1325). This law would empower a patrolman to arrest a person who refuses to be dissuaded from driving into the scene of a disaster, wreck, fire or other occurrence where the motorist's presence would create dangers or impede rescue efforts. In general, the power a patrolman has to arrest a person for offenses committed on the highways should provide ample authority to perform his duties. In summary, it is my official opinion that only the Department of Transportation has the authority to close state highways, and only the county authorities have authority to close county highways. The State Patrol has the authority, when reasonably necessary in the per- 73-185 324 formance of its duties, to stop, warn and arrest motorists in appropriate circumstances. Obviously, the functions and powers of the Department of Public Safety and the Department of Transportation with respect to highway traffic should be coordinated to the maximum extent possible. The Transportation Code delegates to the Department of Transportation rather broad powers to promulgate rules and regulations concerning means and devices for regulating traffic on the highway. See Ga. Code Ann. 95A-901 (Ga. Laws 1973, pp. 947, 1064). It would be very desirable if the Department of Transportation and the Department of Public Safety could collaborate in designing appropriate rules to insure maximum coordination and cooperation between the two departments in the promotion of safe and efficient highway travel. OPINION 73-185 To: State Superintendent of Schools December 17, 1973 Re: Public schools; expulsion of pupils. This responds to your letter dated December 4, 1973, requesting my official opinion on the question of whether or not local school officials may expel from the public schools a pupil who has not attained 16 years of age whose in-school behavior is believed by both his parents and the local school officials to be incorrigible. The case presented, according to a member of your staff, is one in which the local school officials have expelled the child for gross abuses of the school disciplinary code, his parents have consented rather than objected to the expulsion, and the local visiting teacher (i.e., truant officer) wishes to force the child to attend public school. The General Assembly of Georgia has acknowledged in the Georgia Compulsory School Attendance Law that states of the United States may not constitutionally deprive parents of a choice between public and private education for their children. Pierce v. Society of Sisters, 268 U.S. 510, 69 L.Ed. 1070, 45 S.Ct. 571 (1925); Yoder v. Wisconsin, 406 U.S. 205, 32 L.Ed. 2d. 15, 92 S.Ct. 1526 (1972). The law is satisfied if a child between ages seven and 16 attends either a "public or private school." Ga. Laws 1971, p. 264 (Ga. Code Ann. 32-2104). I am of the opinion that no law of this state or of the United States denies to school administrators the right to expel from the public schools a pupil less than 16 years of age who flagrantly violates school disciplinary codes provided that such expulsion either is consented to in behalf of the minor by his parents or such other person as legally may be entitled to give consent or, if parental consent is not given, 325 73-186 provided that the expulsion is in accordance with prevailing concepts of procedural and substantive due process. See also, Ga. Laws 1945, pp. 343, 344 (Ga. Code Ann. 32-2106). OPINION 73-186 To: Commissioner, Department of Transportation December 18, 1973 Re: State Department of Transportation; participation in "Functional Replacement of Publicly-Owned Facilities" program. This is in reply to your inquiry in which you ask whether the department may participate in undertakings which are referred to by the Federal Highway Administration as the "Functional Replacement of Publicly-Owned Facilities" program. A Federal Highway Administration memorandum, dated March 23, 1972, announces that its administrator has approved the new concept of functional replacement of publicly-owned facilities. The Federal Highway Administration memorandum recites that federal tax money may be used, on a participating basis, to make payments to public agencies which represent the costs of functionally replacing an acquired improvement, exclusive of any but nominal betterments, plus the market value of the land acquired when the public agency has other land upon which to relocate the facility or the reasonable cost of acquiring a substitute site when land owned by the public agency is not available for use in relocating the acquired facility. For the purpose of this opinion, it is assumed that the words "public agency" in the federal memorandum refer to governmental units. It is also assumed in this opinion that the use of the word "facilities" refers to governmentally-owned structures such as, but not necessarily limited to, schoolhouses, city halls, county courthouses, hospitals, police and fire stations, and other similar buildings. The precise question posed by the Federal Government is whether the General Assembly has authorized, by statute, the expenditure of money to pay the costs of reconstructing publicly-owned buildings so that the function discharged by the acquired building may continue. That question is answered negatively. The program envisioned by the Federal Government appears to contemplate the payment of money to a governmental unit which is equal to the construction costs of a replacement building wholly without regard to the value of the improvement acquired for highway purposes. Payment of the cost to construct an improvement designed to replace an improvement acquired for highway purposes without 73-186 326 regard to the value of the improvement acquired would not be a lawful expenditure of departmental funds inasmuch as payment for the construction of a replacement improvement "is not a necessary or usual adjunct to the construction of highways." Mulkey v. Quillian, 213 Ga. 507, 510 (1957). The doctrine of the Mulkey case restricts expenditures to those purposes which are identical to the purposes for which a tax may be levied and, as you know, the Constitution authorizes the levy of taxes for, among other things, the construction of "a system of state highways ...." Ga. Const., Art. VII, Sec. II, Par. I (Ga. Code Ann. 2-5501 (6)). There is also a general inhibition against the expenditure of any state money under circumstances which would amount to the granting of a gift or gratuity. Ga. Canst., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402 (1)). Payment of construction costs to a governmental unit for the construction of a replacement improvement, without regard to the value of the improvement acquired by the department, would be a gift of such funds which is prohibited by the Constitution. The foregoing does not limit the department's capability of giving adequate treatment of the concept of functional replacement in most situations, provided that the department approaches the problem from the standpoint of payment for the acquired improvement. The owner of property acquired for public improvements is entitled to be paid the value of the property for any use to which it is capable of being put, including "purposes to which it was specially adapted." Atlantic Coast Line Railroad Co. v. Postal Telegraph-Cable Co., 120 Ga. 268, 281 (1904). Cf. The Mississippi and Rurn River Boorn Co. v. Patterson, 98 U.S. 403 (1879). when private property is acquired for public purposes, the owner is entitled to be paid "just and adequate compensation." Ga. Canst., Art. I, See. III, Par. I (Ga. Code Ann. 2-301 (1)). The compensation required by the Constitution is not restricted to the market value or the fair market value of the property acquired. Housing .{uthority of Augusta v. Holloway, 63 Ga. App. 485 (1940). Such compensation may include the value of the property to the owner when the property has "some unique and special economic value (not merely sentimental) to the condemnee alone ..." (Fulton County v. Co:r:, 99 Ga. App. 743, 748 (1959)) and this method of arriving at compensation may be employed when it is determined that " 'actual value to the owner' would not be the same as market value." State H1:ghway Dept. v. Thomas, 106 Ga. App. 849, 853 (1962). \Vhen determining to abandon "market value" or "fair market value" for the concept of compensation based on special value, "it must appear, not that the property is peculiar, but that the relationship of the owner thereto is peculiar-its advantages to 327 73-186 him more or less exclusive-that is, that it is property having value peculiar to the owner only, and without possible like value to others who might acquire it." City of Atlanta v. Williams, 119 Ga. App. 330 (1969). Stated in a somewhat different manner, compensation for an improvement which has been designed and constructed for a special purpose, "may include the costs or its value to condemnee for the particular purpose for which it was constructed." State Highway Dept. v. Augusta Distn:ct of North Georgia Conference for TheMethodist Church, 115 Ga. App. 162, 164 (1967). In an early case, the Court of Appeals held that in some instances, constitutional compensation includes "an amount adequate to repay the cost of the particular property or to replace just such property as was taken.... Adequate compensation for property which the owner has designed for a special use, and of which he has been deprived for the public benefit without his consent, may include the cost of the article or its value to the owner for the particular purpose for which he designed to use it, or for which it could be used." Elbert County v. Brown, 16 Ga. App. 834, 847 (1915). Much of the governmentally-owned property with respect to which the federal memorandum desires to functionally replace when the existing property is acquired probably falls into the "special purpose" category or the relationship of the owner to the particular property is special in the sense that it has a unique value to him which is not shared by other potential owners. Under those circumstances, it would be appropriate for the department to appraise the existing property so as to account for its special value. There may well be instances in which this special value would in fact be the cost of constructing another facility to replace that which had been taken. Based upon the foregoing, it is my opinion that the department may presently make payments, in appropriate cases, which would effectuate the federal purpose of functional replacement. While the department may not make payments for the functional replacement of improvements without regard to the value of the improvement acquired, it may, in appropriate cases, make payments which reflect special values which may, in effect, approximate the replacement costs of the improvement acquired. 73-187 328 OPINION 73-187 To: Commissioner of Securities December 19, 1973 Re: Securities; purchase of whiskey in foreign warehouse as covered by Securities Act. You have asked me to render an official opmwn concerning the status of certain scotch whiskey investment programs under the Georgia Securities Act. This opinion is based primarily on two scotch whiskey investment brochures which you have sent to me, 1 but it appears from my research in this area that the offerings of these two companies are substantially similar to other scotch whiskey investment plans being offered around the country. In analyzing this offering to determine the applicability of the Securities Act, it is the substance and not the form of the offering which is determinative. S.E.C. v. W. J. Howey Co., 328 U.S. 293 (1946); Georgia Market Centers, Inc. v. Fortson, 225 Ga. 8.54 (1969). Further, we must look to, "[W]hat character the instrument is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect." S.E.C. v. C. M. Joiner Leasing Corp., 320 U.S. 344, 352-3 (1943). The investment in this case is formally a mere purchase of a physical commodity. The investor purchases hogsheads of scotch whiskey which are located in government bonded warehouses in the United Kingdom. However, the economic realities of the situation give the overall transaction a much different nature. The likelihood of the purchaser ever receiving shipment of his scotch whiskey is negligible. The laws of both the United Kingdom and the United States, as well as the economics of the situation, make resale in the warehouse the only reasonable course. Certainly, the hope of a profitable resale is the inducement held out by the sellers. As the United States Supreme Court has said: "In enforcement of [the Securities Law] it is not inappropriate that promoters' offerings be judged as being what they were represented to be." S.E.C. v. C. M. Joiner Leasing Corp., 320 U.S. 344, 353 (1943). In addition to an investme11t motive, another essential element of a security is present with these investments. Scotch whiskey is not a 1 A preliminary draft of a "Prospectus" for Glen Loch Investment Co., LTD., and a "Prospectus" for Glen Royale Scotch Investments, Inc. 329 73-187 fungible commodity whose value is controlled solely by market price. As we are told in both prospectuses, the quality of the whiskey is dependent on the cask it is aged in, the climate, the quality of the original ingredients and other factors which will be totally under the control of the seller or some third person. Thus, an investment in scotch whiskey is an investment of money in a common enterprise with profits to come solely from the efforts of others. Such an investment has always been considered an investment contract and a security. 8.E.C v. W. J. Howey Co., 328 U.S. 293 (1946); Georgia Market Centers, Inc. v. Fortson, 225 Ga. 854 (1969). Moreover, scotch whiskey investments have now become so generally understood to be a security that they should fall within the classification, "any other instrument commonly known as a security." See, e.g., 8.E.C. v. Haffenden-Rirnar International, Inc., CCH Fed. Sec. L. Rep. ~ 94, 101 (E. D. Va. 1973); 8.E.C. v. M. A. Lundy Associates, CCH Fed. Sec. L. Rep. ~ 94, 040 (D. R. I. 1973); 8.E.C. v. Bourbon 8ales Corp., 47 F. Supp. 70 (W. D. Ky. 1942); S.E.C. Release No. 33-5018, Nov. 14, 1969, 69-70, CCII Dec.~ 77-757; Op. Att'y Gen. Pa., Blue Sky L. Rep. ~ 71, 094 (1973). It is thus apparent that the typical scotch whiskey investment program, as discussed in this opinion, is a security. The security itself, the salesman and any dealer in the security are therefore subject to the provisions of the Georgia Securities Act. Registration will be required unless some exemption from registration is applicable for the securities and for those who sell them. In addition to being properly registered or exempted from registration, under the Georgia Securities Act, a foreign corporation would also have to qualify to do business in the state, either as a domestic or a foreign corporation. Additionally, the securities and the selling broker would have to comply with the requirements of the Federal Securities Law. The Georgia Seeurities Commissioner would not, of course, register or grant an exemption for sales or sellers of securities which would be violative of the Federal Securities Laws. In summary, it is my official opinion that the sale of scotch whiskey investments in the State of Georgia would be a transaction subject to the Georgia Securities Act and both the investment and its sellers must be registered pursuant to the Georgia Securities Act unless they qualify for some exemption from registration. 73-188 330 OPINION 73-188 To: Director, Environmental Protection Division, Department of Natural Resources December 28, 1973 Re: Environmental Protection Division; reimbursement of expenses to applicants for employment from federal funds. This is in reply to your letter of December 18, 1973 requesting an official opinion from this office as to whether or not the Environmental Protection Division of the Georgia Department of Natural Resources may reimburse an applicant for expenses incurred while interviewing for a position with the division out of federal funds. You stated in your letter that most applicants are desirous of visiting your office to discuss potential employment as well as to investigate housing, etc., in the Atlanta area. You also state that the division receives federal funds for pollution control programs under Section 106 of the Federal 'iVater Pollution Control Act Amendments of 1972 and that you have established two budgets, one for Section 106 funds, and one for state appropriations. You question whether or not the division may reimburse an applicant as stated above out of these Section 106 federal funds. This office has held that the use of state funds to pay the moving expenses of state employees is improper. Op. Att'y Gen. 72-63. In a more recent opinion, the Attorney General held that the State Merit System of Personnel Administration does not have the authority to reimburse applicants for expenses incurred while interviewing for a state position. Op. Att'y Gen. 73-97. However, it should be noted that federal funds were not involved in either of the situations covered by these opinions. Although I am unaware of any opinion from this office dealing with the use of federal grant money by a state agency to reimburse an applicant for expenses incurred while interviewing for a state position, the Attorney General has opined that the State Department of Labor has the authority to pay the moving expenses of Employment Security Agency personnel from federal funds. Op. Att'y Gen. U72-5:3. In that opinion, the U. S. Department of Labor regulation concerning the expenditure of federal funds for State Employment Security programs specifically authorized a state to use the federal funds to pay moving expenses for state agency personnel when such payments were in accordance with state law, rules and regulations, or state practice. A few months later, this office rendered an unofficial opinion stating that, while state money could not be used for moving expenses of state or local political subdivision employees, federal money could be used to pay those expenses provided such expenditure was in accordance 331 73-188 with federal law and the state agency had the authority to authorize such expenditures. Op. Att'y Gen. U72-75. In your particular case, Section 106 of the Federal Water Pollution Control Act Amendments of 1972 provides for federal grants to states to assist them in administering programs for the prevention, reduction and elimination of pollution. In order for a state to receive such grant money, the Federal Environmental Protection Agency has set forth certain proposed policy requirements and minimum standards which a state must meet and maintain for the life of the grant.. Such proposed standards provide, in relevant part, as follows: " 30.304-3 "In order to qualify as responsible, a grantee must meet and maintain for the life of the grant the following standards as they relate to a particular grant: * * * "(b) Has the necessary experience, organization, technical qualifications, and facilities, or has the ability to obtain them (including proposed sub-agreements);" 38 Fed. Reg. 21342 (1973). Furthermore, the Procedures for State and Interstate Program Grants, published on December 22, 1971 by the Federal Environmental Protection Agency, which, according to your office, is still applicable to Section 106 grants, sets out various standards for determining the allowability of selected items of cost. Among such items are listed the following: "22. Personnel administration. Costs for the recruitment, examination, certification, classification, training, establishment of pay standards, and related activities for grant programs, are allowable." Appendix "A," Circular No. A-87, Attachment "B," pp. 1, 5. (Emphasis added.) With regard to your authority to authorize such reimbursement expenditures, Section 23 (2) of the Georgia Water Quality Control Act (Ga. Laws 1964, pp. 416, 433), as amended by the Executive Reorganization Act of 1972 (Ga. Laws 1972, p. 1015 et seq.), authorizes the Director of the State Environmental Protection Division to "[a]pply for, receive and use federal funds made available under any Federal Act." Section 23 (5) of the Georgia vVater Quality Control Act authorizes the Director of the Environmental Protection Division, inter alia, "[t]o receive and expend on behalf of the state all funds which now or hereafter may become available or allotted to the State of Georgia by virtue of any appropriation or Act of Congress or regulation of the Federal Government, its agencies and instrumentalities. . . ." Ga. Code Ann. 17-522. 73-188 332 Based upon the foregoing, it is my official opinion that federal law, regulations and guidelines permit the use of Section 106 funds for the purpose of reimbursing an applicant for expenses incurred while interviewing for a position with your division and that state law provides you, as Director of the Environmental Protection Division, with the authority to authorize such expenditures. Therefore, it follows that, while state money cannot be used for such reimbursements, Section 106 federal money can be used for this purpose. 333 PREFACE TO UNOFFICIAL OPINIONS In addition to the "official opinions" published in the first part of this volume, the Attorney General renders "unofficial opinions" to state officers other than department heads (e.g., to legislators, district attorneys) and to county and municipal attorneys on questions involving the general laws of the state. The "unofficial opinions" as published herein have been digested in order to save time to the reader and expense to the state. Every effort has been made to set forth in each digest all points of law and all citations of authority contained in the original opinion. A complete copy of each unofficial opinion is on file in the Attorney General's office under a number corresponding with that of the digested opinion here published. Copies of such complete opinions may be obtained from the office of the Attorney General. A nominal charge of one dollar ($1.00) for each copy must be made to cover photography and mailing. Check or money order for this amount should accompany the request. Each "unofficial opinion" bears the following notation: ''The views expressed herein are the completely unofficial views of the writer only, and should be considered as information only." U73-1 334 DIGESTS OF UNOFFICIAL OPINIONS UNOFFICIAL OPINION U73-1 (1 /5 /73) Weapons; carrying by private investigators: The carrying of concealed weapons is prohibited by Ga. Laws 1968, pp. 1249, 1323 (Ga. Code Ann. 26-2901). Certain persons are exempt from the provisions of that section by Ga. Laws 1968, pp. 1249, 1325 (Ga. Code Ann. 26-2907). Among exempted persons are peace officers, but a private investigator does not come within the definition of a "peace officer" in Ga. Laws 1968, pp. 1249, 1263 (Ga. Code Ann. 26-401 (k)). It follows that if a private investigator carries a weapon, it must be exposed. Ga. Laws 1968, pp. 1249, 1324 (Ga. Code Ann. 26-2904). See Sockwell v. State, 27 Ga. App. 576 (1921). UNOFFICIAL OPINION U73-2 (1 /5 /73) Public officers and employees; advance payments for travel and expenses: The Governor has power to control the fiscal affairs of every department, etc. Ga. Laws 1962, p. 17 (Ga. Code Ann. Ch. 40-4). State employees may draw advance payments for expenses under an Executive Order dated Aprilll, 1967. This order rescinded an Executive Order to the contrary issued in July 1938. A valid Executive Order remains in effect until rescinded, and does not terminate upon the expiration of the Governor's term of office. Op. Att'y Gen. 70-66. The provisions of Ga. Const., Art. VII, Sec. III, Par. IV (Ga. Code Ann. 2-5604), prohibiting extension of credit by the state, do not prevent advance payments provided the employee is required to turn in his voucher and refund any excess funds promptly upon return from his trip. Thus he becomes a trustee of state funds, rather than the recipient of a loan. UNOFFICIAL OPINION U73-3 (1 /8 /73) Beaches as public property: In order to secure joint federal-state funds for a beach reclamation project, the Federal Government must be assured that the state's beaches (i.e., the sand areas between high and low tides) are available for public use. This can be done. Unless a person received title to a tidal area by royal grant made prior to July 4, 1776, all tidelands became the property of the state by virtue of the Revolution. See Position Paper, March 23, 1970, Ops. Att'y Gen. 1970, p. 279. An attempt by the legislature to grant tidelands to adjacent landowners in 1860 was ineffectual. Johnson v. State, 114 Ga. 790 (1902). A similar attempt to grant such lands by Ga. Laws 335 U73-6 1902, p. 108 (Ga. Code Ann. 85-1307), was also of no effect, and this attempt was not validated by the adoption in the Ga. Constitution of 1945 of Art. I, Sec. VI, Par. I (Ga. Code Ann. 2-601), which purported to confirm the 1902 Act. See Position Paper, supra. Regardless of this Georgia legal history, courts of other jurisdictions have generally held beaches to be open to the public upon the theory of dedication to the public or upon the theory of public easement. See Gion v. City of Santa Cruz, 465 P.2d 50 (Cal. 1970); Seaway Co. v. Attorney General of the State of Texas, 375 S.W.2d 923 (Tex. 1964); State ex rel. Thornton v. Hay, 462 P.2d 671 (Ore. 1969); State Highway Commission v. Fultz, 491 P.2d 1171 (Ore. 1971). UNOFFICIAL OPINION U73-4 (1 /12 /73) Mental illness; fees of ordinary for filing and docketing continued hospitalization orders: With reference to ordinary's fees in mental health cases, Ga. Code Ann. Ch. 88-5 (based upon Ga. Laws 1964, p. 499, amended 1969, p. 505), provides at 88-508.2 for fees for commitment. This, however, apparently applies only to the original commitment hearings, and not to orders for continued hospitalization under 88-506.6. It would appear, therefore, that for filing and docketing a continuation order, the ordinary's fee would be $4 under Ga. Code Ann. 24-1716 (amended by Ga. Laws 1971, p. 591), which provides for that fee where no other fee is prescribed. The provisions of 24-1716 for a $30 fee for whole service in connection with each lunacy case would appear to relate to the commitment procedure. See Ga. Code Ann. 88-507 et seq. UNOFFICIAL OPINION U73-5 (1 /15 /73) Public employees; health insurance: Ga. Laws 1972, p. 726, amending Ga. Laws 1961, p. 147 (Ga. Code Ann. 89-1215), permits the State Personnel Board to contract with the various counties for inclusion of county employees in the State Employees Health Insurance Plan. Employees of Grady Memorial Hospital, however, are not county employees, but, rather, employees of the Fulton-DeKalb Hospital Authority, an instrumentality created by contract between Fulton and DeKalb Counties pursuant to Ga. Laws 1943, p. 18. As such, they are not eligible for state health insurance. UNOFFICIAL OPINION U73-6 (1/15/73) Tax commissioners; commissions of sales of motor vehicle license plates: Ga. Code Ann. 68-246 (based upon Ga. Laws 1955, p. 659, amended by 1970, p. 728), provides at subsection (b) that the county U73-7 336 tax commissioner, as tag agent, is entitled to a 50 cents commission, on tags sold, with 25 cents of such fee to go to the county for sales in excess of 4,000. Subsection (c) of the Code section provides, however, that if the commissioner receives salary in excess of $7,999 per year, the tag fees go into the county treasury. Therefore, a tax commissioner salaried in excess of this figure is entitled to claim no tag fees. See Keen v. Lewis, 215 Ga. 166, 168 (1959), construing a similar provision of Ga. Laws 1955, p. 659. UNOFFICIAL OPINION U73-7 (1 /23 /73) Juvenile offenders; probation: The Children and Youth Act, Ga. Laws 1963, p. 81, as amended 1972, p. 1251, provides in material part (Ga. Code Ann. 99-209 (a) (5)) that persons under 18 convicted of crime shall be committed for an indefinite period to the custody of the Department of Human Resources. The First Offender Act, Ga. Laws 1968, p. 324 (Ga. Code Ann. 27-2727), on the other hand, provides that a judge may place a first offender on probation according to the Statewide Probation Act, Ga. Laws 1956, p. 27 (Ga. Code Ann. 27-2702 through 27-2726.1). The Children and Youth Act does not prevent the probation of a juvenile under the First Offender Act, but merely requires that if the juvenile is retained in custody, the custody shall be exclusively in the Department of Human Resources. The provision in Ga. Code Ann. 99-209 relating to the age of the accused applies to the time of conviction, not to the time of the offense. See Op. Att'y Gen. 72-101. UNOFFICIAL OPINION U73-8 (1 /30 /73) County boards of education; contracts with independent school boards: County boards of education have constitutional authority to contract with each other or with independent school systems. Ga. Canst., Art. VIII, Sec. IX, Par. I (Ga. Code Ann. 2-7201); Art. VIII, Sec. IX, Par. II (Ga. Code Ann. 2-7202). Nothing in Ga. Canst., Art. VIII, Sec. V, Par. I (Ga. Code Ann. 2-6801), prohibits such contracts. See Board of Education for the City of Valdosta v. Oliver, 216 Ga. 450 (1960); Walker v. McKenzie, 209 Ga. 653 (1953); Walton County Board of Education v. Academy of Social Circle, 229 Ga. 114 (1972). Tipton v. Speer, 211 Ga. 886 (1955), does not prohibit contracting generally, but indicates that care must be taken in drawing contracts so that constitutional duty of the board to manage and control the schools is not compromised. Purely local legislation, such as Ga. Laws 1915, p. 848, not construed in this opinion. 337 U73-ll UNOFFICIAL OPINION U73-9 (1 /31 /73) Sheriffs; compensation: Ga. Laws 1971, p. 380 (Ga. Code Ann. 24-2831 through 24-2834), requires that each sheriff be given a five percent increase at the end of each four-year term. The Act in question is mandatory. In the interpretation of any statutory provision, each word is ascribed its ordinary signification. Ga. Code Ann. 102-102 (1). UNOFFICIAL OPINION U73-10 (2/1/73) Superior court judges emeritus; eligibility for appointment: Ga. Code Ann. 24-2602a, 24-2611a, based upon Ga. Laws 1945, p. 362, as amended, establish that a judge be in his 19th year of service to be eligible for appointment and retirement as a superior court judge emeritus. Note that service may be based upon military service and membership in the General Assembly, as well as service on the superior court. See Op. Att'y Gen. 68-349, citing Ga. Code Ann. 24-2610a.1, based upon Ga. Laws 1968, p. 275, holding that a judge in his 19th year of creditable service may be appointed emeritus regardless of age unless he has elected widow's benefits. If he has so elected, he must be 60 years old to be eligible. UNOFFICIAL OPINION U73-11 (2/1/73) Taxation; applicability of statutes to Richmond County-City of Augusta joint city-county boards of tax assessors: Ga. Laws 1972, p. 1114 (amending Ga. Code Ann. Ch. 92-69), setting up appointment, qualifications, and duties of county tax assessors, does not apply to joint city-county boards, but relates strictly to county tax assessors. All assessments in Richmond County are performed by a joint board. (General law will not repeal existing or special law, unless it is plainly manifest from its terms that such was the intention of the law-making body. Crosby v. Dixie Metal Co., 124 Ga. App. 169 (1971).) Ga. Laws 1972, p. 1094 (amending Ga. Code Ann. 92-6912), relating to review of county tax assessments, and Ga. Laws 1972, p. 1104 (Ga. Code Ann. Ch. 92-70A), relating to statewide gathering of information for tax purposes, do appear applicable to Richmond County. To the extent there is any conflict, these two statutes repeal portions of Ga. Laws 1969, p. 2514, which created the Richmond County-City of Augusta joint city-county boards of tax assessors. (The latest expression of the General Assembly takes precedence. Clark v. Kaylor, 108 Ga. App. 688 (1963). A general statute repeals a special statute where there is inconsistency. Nash v. National Preferred Life Ins. Co., 222 Ga. 14 (1966).) U73-12 338 UNOFFICIAL OPINION U73-12 (2/8/73) Abortion: In Doe v. Bolton, 410 U.S. 179 (1973), decided January 22, 1973, the United States Supreme Court struck as unconstitutional both Ga. Code Ann. 26-1202, subsections (b)(4) and (b)(5) (based upon Ga. Laws 1968, pp. 1249, 1277), dealing with hospital accreditation and abortion committee. UNOFFICIAL OPINION U73-13 (2/8/73) Juvenile offenders; jurisdiction of superior courts: Ga. Laws 1972, p. 1544, amending Ga. Const., Art. VI, Sec. IV, Par. I (Ga. Code Ann. 2-3901), permitted the legislature to remove jurisdiction of juvenile offenders from the superior court. The constitutional provision did not, per se, remove such jurisdiction, however, and in the absence of further legislation, such jurisdiction remains in that court. See Op. Att'y Gen. 72-179. UNOFFICIAL OPINION U73-14 (2/8/73) Searches and seizures; effecting a lawful search of automobile on basis of anonymous tip: Since the automobile was not being used in a crime, and there was no lawful arrest involved, lawful search could only have been by search warrant. Ga. Code Ann. 27-303, based on Ga. Laws 1966, p. 567, requires that a search warrant may only issue where there is probably cause. In Georgia if a warrant is to be obtained on basis of an informant's tip, the officer must set forth some of the underlying circumstances indicating that the informant is reliable. Marshall v. State, 113 Ga. App. 143, 146 (1966); see also, Aquilar v. Texas, 378 U.S. 108 (1964); and United States v. Ventresca, 380 U.S. 102 (1965). Since information came from an unidentified phone call, it was impossible to prove reliability. Officers, however, may develop evidence by "stake-out" or other appropriate procedure for proper warrant by observation of the suspect. UNOFFICIAL OPINION U73-15 (2/12/73) Newspapers; selection of official county organ: A bona fide county newspaper which is otherwise qualified under Ga. Code Ann. 39-1101 and 39-1103, as amended by Ga. Laws 1953, Nov. Sess., pp. 271, 272, may be chosen as the official organ of the county even if it is mechanically printed outside of the county. For case law on this subject, Carter v. Land, 174 Ga. 811 (1932); McGinty v. Chambers, 182 Ga. 341 (1936); Dooly v. Gates, 194 Ga. 787 (1942). 339 U73-18 UNOFFICIAL OPINION U73-16 (2/14/73) Public officers and employees; mandamus: Where the duty of a public officer to perform specific acts is clear and well defined and is imposed by law, and when no element of discretion is involved in performance thereof, the writ of mandamus will issue to compel his performance. Hartsfield, Mayor, et al. v. Salem, 213 Ga. 760 (1958). This principle applies to require a county sheriff to levy and foreclose upon delinquent taxpayers where he has not consented in writing that the tax commissioner or tax collector perform such duty under Ga. Laws 1972, p. 822 (Ga. Code Ann. 92-4901.1). UNOFFICIAL OPINION U73-17 (2/26/73) Retirement of employees: Service as a member of the General Assembly subsequent to January 1, 1954, which has been paid for as membership service in the Legislative Retirement System and which has been transferred from the Legislative Retirement System to the Employees Retirement System, is creditable as membership service for the purpose of determining eligibility for the involuntary separation benefits provided by Ga. Code Ann. 40-2505 (3), (3.1), and (4), based upon Acts 1949, p. 138, as amended. As to Legislative Retirement System, see Ga. Laws 1967, p. 259 (Ga. Code Ann. Ch. 47-14). Ga. Laws 1971, p. 107 (Ga. Code Ann. 47-1419), specifically provided that members of the Legislative Retirement System transferred to the Employees Retirement System should not lose rights and privileges. Ga. Code Ann. 40-2505 (4)(g) (amended by Ga. Laws 1963, p. 42), therefore, insofar as it relates to persons covered by the Employees Retirement System, relates to transferred persons who bring their vested service credits with them. See Webb v. Whitley, 114 Ga. App. 153 (1966). For other legislation transferring credits, see Ga. Laws 1965, p. 106; Ga. Laws 1968, p. 199 (Ga. Code Ann. 40-2503, 40-2504). See also Op. Att'y Gen. 71-5. Retirement statutes are liberally construed in favor of the claimap.t. City of Macon v. Herrington, 198 Ga. 576 (1944); Burks v. Board of Trustees, 214 Ga. 251 (1958). UNOFFICIAL OPINION U73-18 (3 /5 /73) Sales and use taxes; purchase of soda ash: The purchase of soda ash (commercial anhydrous sodium carbonate) for use in reducing or eliminating water pollution is not exempt from sales tax under Ga. Code Ann. 92-3403a (c)(2)(t.1) (based upon Ga. Laws 1951, pp. 360, 363, as amended by Ga. Laws 1967, p. 286), as soda ash is neither "machinery" nor "equipment." U73-19 340 UNOFFICIAL OPINION U73-19 (3 /7 /73) Heal estate conveyances; unrecorded plat of survey: A plat of survey may be referred to in a conveyance to aid in the description of the property conveyed. Horn v. Preston, 217 Ga. 165, 121 S.E.2d 775 (1961); Durden v. Kerby, 201 Ga. 780, 41 S.E.2d 131 (1947); Ga. Laws 1937, pp. 746, 747 (Ga. Code Ann. 29-423). Such a plat need not he recorded to be utilized to aid in description. Wiggins v. Gillette, 93 Ga. 20, 19 S.E. 86 (1893). It is required that the plat be identified as the one referred to, and evidence of the plat's correctness shown. Kearce v. Maloy, 166 Ga. 89, 142 S.E. 271 (1927). If these basic requirements are met, the court may even correct errors and deficiencies in the plat to develop a description of the property conveyed. Grant v. Fourth National Bank of Columbus, Admr., 229 Ga. 855 (1972). UNOFFICIAL OPINION U73-20 (3 /8 /73) Outdoor advertising: Signs subject to regulation under the Outdoor Advertising Control Act require permits issued by the Department of Transportation (Ga. Laws 1971, Extra. Sess., p. 5 (Ga. Code Ann. 95-2008a)), notwithstanding local licensing ordinances. Signs in areas which have been zoned by local governments and which are subject to regulation by the Department of Transportation can be lawfully erected or maintained only in areas zoned, without further action of a local zoning body, commercial or industrial. See Ga. Code Ann. 95-2003a (d). UNOFFICIAL OPINION U73-21 (3 /12 /73) County boards of health; authority and duties; appointment of sanitarian: The appointment by the governing authority of Newton County of a sanitarian to exercise the functions vested in the county board of health under Ga. Code Ann. 88-203 (c) and 88-204 (b) (based on Ga. Laws 1964, p. 499 et seq.) with respect to the regulations of the Board of Human Hesources published as Chapter 270-5-25, Official Compilation, Hules and Hegulations of the State of Georgia, governing individual sewage disposal systems, could not and would not supplant the authority of the county board of health. The said regulations were adopted pursuant to the authority set forth in Ga. Code Ann. 88-108 and 88-110. Action of the county attempting to vest authority with respect to those regulations in another agency would be nugatory. Savannah Elec. Co. v. Lowe, 27 Ga. App. 350 (5(b)) (1921). 341 UNOFFICIAL OPINION U73-22 (3 /15 /73) Motor vehicle weight violations; jurisdiction: Under Ga. Laws 1955, p. 736 (Ga. Code Ann. 68-1680), counties having a population of 108,000 or over may adopt as ordinances the substance of Ga. Code Ann. Chs. 68-15 through 68-17, and, if waivers by the defendant are made, may try violations in recorders court as ordinance violations, not as violations of state law. See Gordon v. Green, 228 Ga. 505 (1972); Op. Att'y Gen. 72-79. DeKalb County qualifies under this provision, and the recorder, therefore, can try offenses accordingly. Ga. Canst., Art. VI, Sec. VI, Par. II (Ga. Code Ann. 2-4102), permits recorders in counties where there is no "city or county court" to take jurisdiction of traffic offenses generally. DeKalb County, however, has a "state court," which, as appears from Ga. Laws 1970, p. 679 (Ga. Code Ann. Ch. 24-21A), brings it within the classification of "county courts" as referred to in the above constitutional provisions. The "overweight truck statute" is found in Ga. Laws 1941, p. 449, as amended by Ga. Laws 1964, p. 476 (Ga. Code Ann. 68-405, 68-9921), and, therefore, violations of that statute do not fall within the jurisdiction of the DeKalb recorder either under 68-1680 or under 2-4102. These violations may, therefore, be tried in DeKalb state court, but not in the recorders court of that county. Violations of Ga. Code Ann. 68-405, 68-9921, are misdemeanors. Alexander v. State, 228 Ga. 179 (1971). If the corporate owner of the vehicle is to be prosecuted, a grand jury presentment or indictment is necessary. Progress Club v. State, 12 Ga. App. 174 (1912); Ga. Laws 1889, p. 120 (Ga. Code Ann. 27-1001). If, on the other hand, the operator of the truck is charged, he may be tried in the state court according to the regular misdemeanor procedure. See Ga. Code Ann. 24-2106a, based upon Ga. Laws 1970, p. 679. UNOFFICIAL OPINION U73-23 (3 /19 /73) Georgia Ports Authority; appointment of members: Prior to the Reapportionment Act of 1971, the State Ports Authority had one of its seven members appointed from the first congressional district and one member from the eighth congressional district. Ga. Laws 1966, p. 457 (Ga. Code Ann. 98-203). As a result of the Reapportionment Act, Ga. Laws 1971, Extra. Sess., p. 89 (Ga. Code Ann. 34-1801), the residences of the members from the former first and eighth districts were combined into a new first district. Since this constituted an overrepresentation, the death of the member from the former first district and the failure to appoint a member from the new eighth district would not constitute two vacancies, but only one: the membership from the new eighth district. See Op. Att'y Gen. 73-3. U73-24 342 UNOFFICIAL OPINION U73-24 (3 /21 /73) Fines and forfeitures; collection and disposal: The law does not specify that one particular officer is responsible for the collection of fines and forfeitures. See Op. Att'y Gen. U70-179, supporting argument that it is the responsibility of the sheriff, clerk, or district attorney. Collections of fines and forfeitures are to be paid into the county treasury. Ga. Code 27-2902. Officers having claims against the fine and forfeiture fund should present their itemized bills to the judge of the superior court; if approved, disbursements are to be made from the county treasury. Ga. Code 27-2905. UNOFFICIAL OPINION U73-25 (3 /21 /73) Prisons and prisoners; liability of municipal corporation for death by negligence; city housing county prisoners: The keeping of prisoners . by a city is ordinarily a governmental function under Ga. Code Ann. 69-301, and for simple negligence in such a function a city is not liable. Gray v. Griffin, 111 Ga. 361 (1900); Archer v. City of Austell, 68 Ga. App. 493, 495 (1942); Nisbet v. Atlanta, 97 Ga. 650 (1895); Ga. Code Ann. 69-307. If the city permits a nuisance to exist in the jail resulting in death of a prisoner, however, it may be liable. Archer, supra; Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 838 (1968). For definition of "nuisance," see Ga. Code Ann. 72-101. As to whether the agreement by the city to house county prisoners in accordance with Ga. Const., Art. VII, Sec. VI, Par. I (Ga. Code Ann. 2-5901) would increase its liability risk, the answer is apparently "no." This is analogous to a situation where a city offers fire protection to a county on contract. This does not destroy the governmental nature of the service. See Banks v. City of Albany, 83 Ga. App. 640 (1951). UNOFFICIAL OPINION U73-26 (3 /22 /73) Criminal procedure; notice of arraignment: Notice of arraignment should be mailed by the clerk, or served by the sheriff, at least three days prior to the date set therefor. Ga. Laws 1966, pp. 430, 431 (Ga. Code Ann. 27-1401). Unless a true bill has been returned or an accusation preferred, it is premature to give the accused notice of an arraignment at the time of arrest. See generally Op. Att'y Gen. 68-13. UNOFFICIAL OPINION U73-27 (3 /30 /73) Police officers; suspension: General statutes of the State of Georgia do not require suspension of a police chief after a peace warrant has been served against him. Local laws, charters, and ordinances should be checked. 343 U73-31 UNOFFICIAL OPINION U73-28 (4/2 /73) Fluoridation of water: House Bill 51, Ga. Laws 1973, p. 148, requires fluoridation of water systems unless a city or county removes itself from coverage by referendum. The Attorney General expresses no opinion as to the constitutionality. The referendum must be upon petition signed by 10 percent of the voters who voted at the last "general election," as defined by Ga. Laws 1964, Extra. Sess., pp. 26, 28 (Ga. Code Ann. 34-103 (h)). UNOFFICIAL OPINION U73-29 (4/5/73) Marriage ceremony; performance by religious society or sect: According to the General Administrator of ECKANKAR ASOST, the corporation is a religious/educational type organization qualifying as nonprofit under the internal revenue service. Since nothing could be found to disqualify the organization from being treated as a religious society or sect, an initiate to the sixth degree in said organization, who has been authorized to perform the marriage ceremony by that religious society, may legally perform this ceremony in Georgia, provided that she complies with the laws regarding marriage licenses, and that nothing in the ceremony itself is violative of Georgia law or in derogation of public policy. See Ga. Code 53-211. UNOFFICIAL OPINION U73-30 (4/6/73) Traffic control; jurisdiction of Summerville recorder's court: Ga. Const., Art. VI, Sec. VI, Par. II (Ga. Code Ann. 2-4102), clearly grants jurisdiction over all misdemeanor traffic offenses to qualifying police and municipal courts. Since a recorder's court is encompassed in the definition of a police or municipal court, and there is no city or county court in Chattooga County, the recorder's court of Summerville has jurisdiction over state traffic offenses, and may try these as misdemeanors. It logically follows that the court may impose any penalty provided by state law when trying a state traffic offense over which it has been granted jurisdiction. UNOFFICIAL OPINION U73-31 (4/9 /73) Elections: While electors recommended by the grand jury for the board of registrars for Thomas County may declare their intention not to serve, thereby invalidating the recommendations, their declaration of intent after appointment constitutes a resignation, requiring the superior court judge to appoint successors to serve until the next grand jury convenes. See Ga. Code Ann. 34-603 (a) (b), 34-605, based upon U73-32 344 Ga. Laws 1964, Extra. Sess., pp. 26, 46-50. An individual has a right to refuse to be advanced as a candidate for public office. Battaglia v. Adams, 164 So. 2d 195 (1964). UNOFFICIAL OPINION U73-32 (4/10 /73) Eminent domain; "declaration of taking" method not available to municipal corporation: Pursuant to Ga. Code Ann. 36-1303 (based upon Ga. Laws 1961, p. 517, as amended by Ga. Laws 1962, Sept.Oct. Extra. Sess., pp. 37-44), a "declaration of taking" must be filed with a condemnation petition, and must be signed by the Attorney General or an Assistant Attorney General on behalf of the Department of Transportation. 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 of Commissioners of Peace Officers Annuity Benefit Fund v. Clay, 214 Ga. 70 (1958). Therefore, the Attorney General can sign a "declaration of taking" only for the Department of Transportation, and has no authority to execute such a document for a municipal corporation. As the declaration of taking executed by the Attorney General is required by statute in utilizing the "declaration of taking" method and as the Attorney General cannot execute such documents on behalf of a municipality, a municipal corporation cannot utilize the "declaration of taking" method of condemnation. UNOFFICIAL OPINION U73-33 (4/11/73) Sales of real estate by county: While the powers of county commissioners are not defined by general laws but by the special Acts creating them (Wilson v. Jones, 218 Ga. 706 (1963)), a board of county commissioners has no powers except those which are conferred by statute. Wood v. Puritan Chemical Co., 178 Ga. 229 (1933). No provision could be found pertaining to the Cook County Board of Commissioners which confers upon them either the power to sell real property without advertisement or the power of private sale. Therefore, the provisions of Ga. Laws 1959, p. 325, as amended (Ga. Code Ann. 91-804.1), pertaining to advertising and public sale, must be followed when the board desires to sell land it has purchased at a tax sale. UNOFFICIAL OPINION U73-34 (4/11/73) Drugs; use of blood and urine samples: The use of blood and urine samples is justified by the fact that the body may destroy the drug before a search warrant can be obtained. Preston v. United States, 376 U.S. 364 (1964). Five factors must exist to authorize such tests: 345 U73-35 (1) Justification for suspiCIOn. Breithaupt v. Abram, 352 U.S. 432 (1957); (2) Existence of emergency. Preston, supra; (3) Suspect has been arrested. Schmerber v. State of California, 384 U.S. 757 (1966); Ga. Laws 1966, p. 567 (Ga. Code Ann. 27-301); (4) "Miranda" warnings have been given. See Miranda v. State of Arizona, 384 U.S. 436 (1966). Tests may be taken before arrival of defense attorney, but questions must not be asked; (5) Tests must be performed by qualified personnel. Schmerber, supra. If suspect is unconscious, blood may be drawn and natural voiding substances used, but catheters or diuretic agents may not be used. Schmerber, supra; Rochin v. People of California, 342 U.S. 165 (1952). Tests may not be administered prior to arrest. Sibron v. State of New York, 392 U.S. 40 (1968); Evans v. The State, 106 Ga. 519 (1898); Aldrich v. The State, 220 Ga. 132 (1964). Drug tests do not extend to alcohol tests, which are specially provided for. See Ga. Code Ann. 68-1625, based upon Ga. Laws 1953, Nov. Sess., pp. 556, 575; 1966, pp. 70, 71; 1968, pp. 448, 449. See also Ga. Code Ann. 68-1625.1, based upon Ga. Laws 1968, pp. 448, 452. Reasonable compliance with the above standards is sufficient. Cooper v. State of California, 386 U.S. 58 (1967). Search warrants should be obtained whenever practicable. Trupiano v. United States, 334 U.S. 699 (1948). UNOFFICIAL OPINION U73-35 (4/12 /73) Crime control: A city or county may use funds available under the Omnibus Crime Control and Safe Streets Act for payment for services provided by an area planning and development commission, as this is in accord with the purposes of the Act. See 42 U.S.C. 3731, 3734; Ga. Laws 1970, p. 321 (Ga. Code Ann. 40-2920); Op. Att'y Gen. U71-81. An area planning and development commission is a combination of units of local government, and may receive grants under the Omnibus Act. See Ga. Code Ann. 40-2918; Richmond County Hospital Authority v. McLain, 112 Ga. App. 209 (1965). Ga. Laws 1971, p. 17, creating metropolitan area planning commissions in areas of over 1,000,000 persons, is general and not special legislation. See Cooper v. Rollins, 152 Ga. 588 (3) (1921); McLennan v. Aldredge, 223 Ga. 879, 886 (1968). Ga. Code Ann. 40-2922, relating to financing area planning commissions, generally, was not repealed or affected by Ga. Laws 1971, p. 17, which relates only to the metropolitan commission. Ga. Laws 1971, p. 17, provides for the support of the metropolitan commission, but does not give revenue producing authority to the commission; hence, the commission is not a unit of local government. See Op. Att'y Gen. 70-202. U73-36 346 UNOFFICIAL OPINION U73-36 (4/16/73) Juvenile offenders; period of confinement: So far as the defined class of offenders is concerned, Ga. Laws 1972, pp. 1251, 1252 (Ga. Code Ann. 99-209 (a) (5)), vests the Division of Social Services (formerly the Division for Children and Youth) with complete discretion over the length of their term of confinement, relegating the trial court to an advisory capacity at best. In any case governed by this statute, a trial court can never assure that a particular defendant will remain in the custody of the Division of Social Services for a fixed number of years. UNOFFICIAL OPINION U73-37 (4/27 /73) Zoning by counties: The Glynn County Commissioners do not have authority to place a moratorium on issuing building permits to halt all construction on the beach area of the county if the proposed use of the property is in accordance with existing zoning classifications and the application meets all other requirements for the permit. A governing authority cannot deny or postpone authorization for a permitted use with a view toward rezoning said land in the future so as to prohibit by rezoning a use that was permitted at the time the application was either denied or postponed. See Gifford-Hill & Co. v. Harrison, 229 Ga. 260 (1972); Howard Simpson Realty Co. v. City of Marietta, 220 Ga. 727 (1965); City of Lawrenceville v. Humphries, 229 Ga. 724 (1972). As to the authority of counties to establish zoning laws, see Ga. Const., Art. XV, Sec. II-A, Par. III (Ga. Code Ann. 2-8404). UNOFFICIAL OPINION U73-38 (5 /9 /73) Eminent domain: Under H.B. 265, Ga. Laws 1973, p. 512, the state, its agencies and subdivisions are required to adhere to land acquisition policies identical to those prescribed by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 91-646). Although the State Department of Transportation is not governed by the 1973 Act, its identical relocation program will continue according to Ga. Laws 1972, p. 931 (Ga. Code Ann. 95-1514 to 95-1517.7). UNOFFICIAL OPINION U73-39 (5 /10 /73) Clerks of superior courts; compensation: Although Act No. 162, Ga. Laws 1973, p. 256, authorizes additional compensation for clerks serving as clerks of state courts, county courts, city courts, or civil courts, there is no provision for extra compensation for serving as clerks of 347 U73-42 juvenile courts. Since the statutory intent is clear on the face of the statute, no other interpretation is possible. Standard Oil Co. of Kentucky v. State Revenue Commission, 179 Ga. 371 (1 934). UNOFFICIAL OPINION U73-40 (5 /16 /73) Intangibles taxes: Long term notes secured by real estate held by the Georgia Development Authority are public property so as to be exempt from intangible taxes imposed by the Intangible Tax Act (Ga. Laws 1953, Nov.-Dec. Sess., p. 379 et seq.; Ga. Code Ann. 92-161 to 92-184). An unofficial opinion rendered by the former Attorney General on September 17, 1598 to this effect was held to be correct in Hospital Authority of Albany v. Stewart, 226 Ga. 530 (1970). UNOFFICIAL OPINION U73-41 (5 /18 /73) Malt beverages: Question as to whether restaurant or club which sells malt beverages must close at 12:01 a.m. Sunday, or be in violation of Ga. Laws 1968, pp. 1249, 1337 (Ga. Code Ann. 26-9906), regulating tippling houses, depends on nature of operation and definition of "Sabbath." For definition of "tippling house" see Mohrman v. State, 105 Ga. 709 (1898). It is possible that a portion of an establishment used for tippling could be closed on Sunday, and the remainder left open. See Harvey v. State, 65 Ga. 568 (1880). It has been held that the Sabbath day starts at dawn on Sunday. Dinkler v. Jenkins, 118 Ga. App. 239 (1968); reversed on other grounds, Hawes v. Dinkler, 224 Ga. 785 (1968). However, it has been the position of the Law Department that Sunday begins at 12:01 a.m. See also Rules and Regulations of the State of Georgia 560-8-4-.12. The grant of a permit to sell malt beverages is the exercise of the police power, and not a contract. McKown v. City of Atlanta, 184 Ga. 221, 222 (1937). Broad discretion is given to governing authorities with respect to such licenses. Massell v. Leathers, 229 Ga. 503 (1972). UNOFFICIAL OPINION U73-42 (5 /18 /73) Superior court clerks; compensation: The minimum salary for a clerk of a superior court is set out in Section 1 of Act 162, Ga. Laws 1973, p. 256. Section 2 adds compensation for additional service to the "minimum salary" rather than the "actual salary" of the superior court clerk. Thus, the legislature intended that the minimum salary of a person serving as both superior court clerk and state court clerk be the sum of the amounts fixed by Sections 1 and 2. U73-43 348 UNOFFICIAL OPINION U73-43 (5 /22 /73) Superior court clerks: A superior court clerk does not have discretion to charge less than the fees prescribed by law (Ga. Code Ann. 24-2727, as amended by Ga. Laws 1972, p. 664) for preparation of case records on appeal, when he is on a salary as opposed to the "fee system." The Chatham County superior court clerk is on a salary basis. Ga. Laws 1949, p. 440. Under such circumstances the statutory fees are no longer the property of the clerk, but are public property for which he is responsible. See Ex parte Brown, 78 N.E. 553 (Ind. 1906). Failure of a clerk to collect costs on appeal is a matter between him and the county, but does not affect the outcome of the appeal, despite Ga. Code Ann. 24-2729, as amended by Ga. Laws 1963, p. 368. See J. D. Jewell, Inc. v. Hancock, 226 Ga. 480, 482 (1970). UNOFFICIAL OPINION U73-44 (5/22/73) Municipal corporations; authority to close public streets: In view of the provisions of Ga. Laws 1962, pp. 140, 143 (Ga. Code Ann. 69-312), the City of Shellman has the authority to close its public streets. UNOFFICIAL OPINION U73-45 (5 /25 /73) Voluntary sterilization; meaning of "accredited hospital": Under the Voluntary Sterilization Act, Ga. Laws 1970, p. 683, as amended (Ga. Code Ann. 84-931 to 84-935.2), "accredited hospital" is defined in 84-933 (b) (iii). It will be noted that an "accredited hospital" must be licensed by the State Department of Human Resources. Such accreditation is not extended to hospitals operated exclusively by the Federal Government. Ga. Laws 1964, pp. 499, 613 (Ga. Code Ann. 88-1907). Therefore, a United States Army hospital in a federal enclave is not "accredited" or subject to accreditation under Georgia law. See Ga. Code Ann. 15-302, as amended. UNOFFICIAL OPINION U73-46 (5 /25 /73) Arrest: A physician's certificate provides authority for a peace officer to take custody of an individual who is certified to be either drug dependent, mentally ill, or alcoholic, and to transfer him to an emergency receiving facility. No warrant is needed. See Ga. Code Ann. 88-404.7 (based on Ga. Laws 1971, p. 273) and 88-504.2 (based on Ga. Laws 1969, pp. 505, 520; 1971, p. 796), setting forth the medical admission procedures for counties in which such procedure applies. 349 U73-49 UNOFFICIAL OPINION U73-47 (5 /31 /73) Firemen's Retirement System: Ga. Laws 1968, p. 441 (Ga. Code Ann. 78-1005), requires that persons becoming firemen must apply for coverage by the pension fund within four months after becoming firemen. Therefore, a person covered by the retirement Act who ceases to be a fireman for a time and then returns to a fire department must reapply for coverage within four months after his return if he wishes to be reinstated under Ga. Laws 1968, pp. 441, 443 (Ga. Code Ann. 78-1015), and this applies even though he left his contributions in the fund. Language of a clear and unambiguous law must be followed. Barnes v. Carter, 120 Ga. 895 (1904). A fireman who retired on disability but later secured employment as a fireman on a 70-day per year basis is not eligible to participate in the fund. Ga. Laws 1961, p. 417 (Ga. Code Ann. 78-1001), requires full-time employment for eligibility, as did earlier Acts on the subject. See Ga. Laws 1955, p. 339; 1956, p. 368. See Board of Commissioners et al. v. Clay et al., 214 Ga. 70 (1958); Vandiver v. Endicott, 215 Ga. 250 (1959); Connors v. Vandiver, 215 Ga. 371 (1959). As to determination of legislative intent, see Ga. Code Ann. 102-102. For additional opinion on the general subject, see Op. Att'y Gen. 68-56. Note that Op. Att'y Gen. U71-15 does not conflict with the above, since the fireman in question was employed full time, but used as a policeman. Legislative clarification of term "fireman" is urged. See Op. Att'y Gen. 68-56. UNOFFICIAL OPINION U73-48 (6 /5 /73) Lake Lanier Islands Development Authority; participation in programs of Law Enforcement Assistance Administration of United States Department of Justice: Subject authority is "local unit of government" authorized to participate in such programs under 42 U.S.C. 3781 (d). Authorities are "typical," meaning that their primary reason for existence is financial, or "atypical," meaning that they have other purposes. See 3 E. G. L. Authority Financing, 5, 6. The authority under discussion is "atypical" in that it has power to govern, administer and control a given territory. Ga. Laws 1962, p. 736 (not codified). This brings it within the federal requirements. For further discussion as to when authorities are governmental in nature, see Richmond County Hospital Authority v. McLain, 112 Ga. App. 209, 211 (1965); Hawes v. Lockheed Aircraft Corp., 118 Ga. App. 222 (1968). UNOFFICIAL OPINION U73-49 (6 /5 /73) Liquor referendum petitions; inspection as public records: Where an election is called as a result of a petition alleged to have been signed U73-50 350 by a requisite percentage of electors there is a rebnttable presumption that the signatures are sufficient and proper. McCluney v. Stembridge, 206 Ga. 321 (1950); Sanders v. Mason, 197 Ga. 522 (1944); Vornberg v. Dunn, 143 Ga. 111 (1914). Since the election must be called within 30 days of the filing of the petition under Ga. Laws 1937-38, Extra. Sess., p. 103, as amended (Ga. Code Ann. Ch. 58-10), it is apparent that the only way in which this presumption can be rebutted is to allow the caveators to examine the petition. Further, the petition appears to be a public record subject to examination, both under the Public Records Law (Ga. Laws 1959, p. 88; Ga. Code Ann. 40-2701) and under the election laws (Ga. Laws 1964, Extra. Sess., p. 26, as amended (Ga. Code Ann. 34-403), and Ga. Laws 1968, p. 885 (Ga. Code Ann. 34A-108)). This, of course, does not eliminate the requirement that the election itself be conducted in secrecy as required by Code Titles 34 and 34A. UNOFFICIAL OPINION U73-50 (6 /8 /73) Banks County; authority of individual commissioner as to road work: Ordinaries or other authorities having charge of county affairs have the power to apportion work on roads. Ga. Code 95-107 (1933). Banks County has a board of commissioners which has this authority. Ga. Laws 1916, p. 349. Under Ga. Laws 1970, p. 3297, the commissioners have employed a road foreman and delegated the direction and supervision of road work to him. Under these circumstances, a single commissioner, acting apart from the board, has no authority to direct road work. UNOFFICIAL OPINION U73-51 (6 /8 /73) Elections; public officers and employees: Resignation from judicial office not prerequisite to candidacy for another judicial office. UNOFFICIAL OPINION U73-52 (6 /12 /73) Counties; donation of funds illegal: Richmond County may not lawfully donate funds to the local USO. Such a donation falls clearly within the prohibition of Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402). See Atlanta Chamber of Commerce v. McRae, 174 Ga. 590, 163 S.E. 701 (1931). It is true that Ga. Const., Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702) authorizes counties to expend public funds for recreation systems, but this does not authorize contributions to a private organization for this purpose. See Cason v. Georgia, 217 Ga. 339, 122 S.E.2d 232 (1961). 351 U73-55 UNOFFICIAL OPINION U73-53 (6 /13 /73) Municipal corporations and counties; donation of funds illegal: Neither the City of Claxton nor the County of Evans may fund any part of the budget of the local chamber of commerce. Any such funding would clearly violate Ga. Canst., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402), which prohibits public grants to private individuals or corporations. See further Atlanta Chamber of Commerce v. McRae, 174 Ga. 590, 163 S.E. 701 (1931); Grand Lodge of Georgia, Independent Order of Odd Fellows v. City of Thomasville, 226 Ga. 4, 172 S.E.2d 612 (1970). UNOFFICIAL OPINION U73-54 (6 /13 /73) Estates of missing persons: Ga. Code Ann. Ch. 113-27 (Ga. Laws 1947, p. 1134) governs conservators for the estates of missing persons generally, whereas Ch. 113-27A (Ga. Laws 1972, p. 202) governs those of missing persons serving in the armed forces of the United States, the Red Cross and the Merchant Marine during any period when a state of hostilities exists, and for a period of one year thereafter. Since the two Chapters cover entirely different subject matters, there is clearly no repeal by implication involved. Note further that repeals by implication are never favored. Moore v. Baldwin County, 209 Ga. 541 (1953). UNOFFICIAL OPINION U73-55 (6 /18 /73) Surface mining; authority of Environmental Protection Division, Department of Natural Hesources: Surface land mining is governed by Ga. Laws 1968, p. 9, as amended by Ga. Laws 1971, p. 200; 1972, p. 996 (Ga. Code Ann. Ch. 43-14). The Environmental Protection Division (hereinafter the "division") is the governing agency, since it is the successor to the Surface Mined Land Use Board under the Reorganization Act, Ga. Laws 1972, p. 1015, Section 1509. See also Ga. Laws 1972, p. 1266. See Ga. Code Ann. 43-1402 as to purposes of the Surface Mining Act, and 43-1405 as to enforcement generally. The definition section, Ga. Code Ann. 43-1403, is the basis for the following conclusions: While an agency has only the authority expressly given it by statute (Hasty v. Carter, 105 Ga. App. 139 (1961); Ga. Code 102-102), it must be construed to have enough authority to carry out the legislative intent. The division, therefore, has authority to regulate mining, as well as the reclamation of land after mining. The affected land consists of adjacent surrounding, contiguous, or nearby land, as well as the land actually mined. On construction of statutes, see Undercofler v. Capital Auto. Co., 111 Ga. App. 709 (1965); State U73-56 352 v. Livingston, 222 Ga. 441 (1966); City of Gainesville v. Smith, 121 Ga. App. 117 (1970). The plan for the mining operation is subject to approval by the division. Rules and Regulations of the State of Georgia 645-6-.01. It would be better to require a completely acceptable plan before issuing license under Ga. Code Ann. 43-1406 than to issue a license upon an imperfect plan conditioned upon correction. The division may administratively adopt a short form for mined land use plans, provided all statutory information is still required. UNOFFICIAL OPINION U73-56 (6 /18 /73) "Adult movie houses"; definition of terms: The term "adult movie house" is clearly defined within the regulating statute, Ga. Laws 1971, p. 888 (Ga. Code Ann. 23-3401 et seq., 23-9915). The term "regular, continuing basis" has its regular and ordinary significance, meaning that the conduct is not necessarily continuous and uninterrupted, but at the same time it means that the conduct is not sporadic or confined to occasional incidents. Cf. Dumas v. Renfroe, 220 Ga. 33, 34 (1964). UNOFFICIAL OPINION U73-57 (6 /19 /73) Counties and municipal corporations; establishment of mosquito control districts: Under the authority of Ga. Const., Art. XI, Sec. III, Par. I (Ga. Code Ann. 2-7901a) (proposed by Ga. Laws 1972, p. 1552, ratified Nov. 7, 1972), municipal corporations and counties may establish mosquito control districts. This is true because the constitutional provision provides authority to set up public health facilities and services generally, and legislative provisions should be liberally construed to advance their protective purposes. See Ga. Code 102-102; Price v. Bradford, 5 Ga. 364 (1848). This is particularly true when the statute is designed for the protection of public health. Eason v. Morrison, 181 Ga. 322 (1935). It is apparent that this rule of construction extends to constitutional as well as to statutory provisions. UNOFFICIAL OPINION U73-58 (6 /19 /73) Recorder's court; right of appeal to superior court: A person tried for a traffic offense punishable as a misdemeanor in a recorder's court has a right to appeal his conviction to the superior court. Ga. Laws 1937-38, Extra. Sess., p. 558 (Ga. Code Ann. 92A-510). This does not conflict with the holding in Lane v. Douglas, 128 Ga. App. 231 (1973), to the effect that Ga. Code 6-101 (1933) applies to civil cases 353 U73-61 only, nor is it in conflict with the ruling in DeLamar v. Dollar, 128 Ga. 57 (1907), that in absence of a statute the only means of review in a superior court is by certiorari under Ga. Code Title 19. This is true because Ga. Code Ann. 92A-510 provides specifically for an appeal. UNOFFICIAL OPINION U73-59 (6 /20 /73) Dental hygienists; authorized duties: Ga. Code Ann. 84-702.1 (Ga. Laws 1972, p. 843) permits the State Board of Dental Examiners more clearly to define the extent to which dentists may delegate responsibilities to their employees. Ga. Code Ann. 84-701 (Ga. Laws 1920, p. 132; 1949, p. 1161) defines the practice of dentistry. Ga. Code Ann. 84-726 and 84-728 (Ga. Laws 1949, p. 1192, as amended) specify duties which may be performed by dental hygienists. See also Ga. Code Ann. 84-729. These sections do not establish a new classification of "dental assistants" and do not authorize the board to establish license classifications for others. As to administrative provisions affecting the board, see Ga. Laws 1964, p. 338 (Ga. Code Ann. 3A-10~)). UNOFFICIAL OPINION U73-60 (6 /21 /73) 1 Juvenile offenders; period of custody: The administrators of the Youthful Offender Act have complete discretion in granting a conditional or unconditional release within the time limits specified by the Act. See Op. Att'y Gen. 73-36. Language in a sentence which would either delay release for a stated period or order it to be granted within a shorter period than that described in Ga. Code Ann. 77-355 and 77-357 (Ga. Laws 1972, p. 599) would not be binding on the Youthful Offender Division, but would only have the effect of a recommendation. Thus, an individual sentenced to serve one year under the Youthful Offender Act could lawfully remain in the physical custody of the division for a period greater or less than one year. 1This opinion clarified certain language in Op. Att'y Gen. 73-82 regarding sentences of persons serving both under the Youthful Offender Act and some other penal statute. See footnote to that opinion. UNOFFICIAL OPINION U73-61 (6 /25 /73) County boards of education; construction of gymnasiums: County boards of education have broad constitutional and statutory powers with respect to raising money by taxes and spending it for school facilities. See Ga. Const., Art. VIII, Sec. V, Par. I (Ga. Code Ann. 2-6801); Ga. Const., Art. VIII, Sec. XII, Par. I (Ga. Code Ann. 2-7501); Ga. Laws 1919, p. 288, as amended (Ga. Code Ann. 32-909); Ga. Laws 1946, p. 206 (Ga. Code Ann. 32-1401). Physical U73-62 354 education is recognized as a legitimate part of the educational program. Ga. Laws 1920, p. 232; 1971, p. 299 (Ga. Code Ann. Ch. 32-19). Therefore, the construction of gymnasiums is a proper subject for the expenditure of school funds. See Ops. Att'y Gen. 1957, p. 17; 1957, p. 118; 1963-65, p. 547. UNOFFICIAL OPINION U73-62 (6 /27 /73) Municipal corporations; appointment of judge of mayor's court: Ga. Code Ann. 69-704.1 (Ga. Laws 1973, p. 489) provides for the appointment of a resident of the judicial circuit to serve as judge of the mayor's court in lieu of the mayor or another member of the municipal governing body, but only in those cases in which the mayor or member of the governing body serve in this capacity. The mayor and member of the governing body of the City of Wrightsville do not constitute court personnel under the charter of that city (see Ga. Laws 1968, p. 2720). Therefore, it is not necessary that the person appointed to serve as recorder be a resident of the circuit as required by Ga. Code Ann. 69-704.1. UNOFFICIAL OPINION U73-63 (6 /28 /73) Drug abuse; condemnation of conveyances carrying contraband: Ga. Code Ann. 79A-905, based upon Ga. Laws 1967, pp. 296, 346, as amended by Ga. Laws 1970, p. 463, permits seizure of conveyances illegally transporting drugs by any law enforcement official or by agents of the State Board of Pharmacy. The Board of Pharmacy has authority to make appropriate rules concerning seizures under the provisions of Ga. Code Ann. 79A-208 (i). If seizure is made under Code 79A-905, it can be made only with the concurrence of the State Board of Pharmacy. On the other hand, Ga. Code Ann. 42-813.1, based upon Ga. Laws 1952, p. 201, remains in effect, and Op. Att'y Gen. 67-389 is withdrawn insofar as it suggests the repeal thereof. See Garner v. State of Georgia, 121 Ga. App. 747, 175 S.E.2d 133 (1970); Taylor v. State Bank of Jacksonville, 119 Ga. App. 50, 165 S.E.2d 920 (1969). Local officials may, therefore, initiate condemnation proceedings under 42-813.1 on their own initiative, but only where the Uniform Narcotic Drug Act (Ga. Code Ann. Ch. 79A-8) is being violated. As to presumption of legislative intent, see Webb v. Alexander, 202 Ga. 436, 439, 43 S.E.2d 668, 670 (1947). UNOFFICIAL OPINION U73-64 (7 /6 /73) Clerks of superior courts; employees of Henry County clerk: Ga. Laws 1973, p. 256, is a general statute establishing salaries for clerks 355 U73-67 of superior courts. It does not conflict with or touch upon the subjectmatter of Ga. Laws 1973, p. 3521, which is a local Act governing employees in the office of the Henry County clerk. The clerk in that county must obtain approval from the board of commissioners as to the number and salaries of persons to be employed, but the actual selection and discharge of individuals and fixing duties of employees is within the clerk's discretion. UNOFFICIAL OPINION U73-65 (7 /13 /73) Coroners; post mortem examinations: Coroners must be notified and must require a post mortem examination or autopsy where a person dies "unattended by a physician." See Ga. Code Ann. 21-205 and 21-208 (both based on Ga. Laws 1953, p. 602, as amended), and 88-1715 (based on Ga. Laws 1964, pp. 499, 589, as amended). See Ga. Code 102-102 (9) as to interpretation of statutes. Correlating the above provisions, it appears that no post mortem or autopsy need be performed where the deceased was under the care of a physician and there is no evidence of violence or suicide. If the deceased was under the care of a physician it is not essential that the physician be present at the instant of death to avoid the necessity of notifying the coroner. UNOFFICIAL OPINION U73-66 (7 /18 /73) Court of ordinary; right of individual to represent self: Under Ga. Const., Art. I, Sec. I, Par. IV (Ga. Code Ann. 2-104), a person may prosecute or defend his own cause in any of the courts, in person, by attorney, or both. To prosecute is to commence or institute a suit. See Leanow Bros., Inc. v. United States, 78 F. Supp. 829 (1948). Since a court of ordinary is a court of this state, a person has a constitutional right to represent himself therein. UNOFFICIAL OPINION U73-67 (7 /18 /73) Counties; use of funds for recreation system: In view of Ga. Const., Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702) (counties may expend funds to establish and maintain a recreation system), and also in view of Whatley v. Taylor County, 224 Ga. 669 (1968) (county commissioners have a large discretion in expending funds within specified purposes enumerated in the Constitution), the county commissioners of Burke County would be authorized to expend funds to establish and maintain a recreation system without a referendum. U73-68 356 UNOFFICIAL OPINION U73-68 (7 /20 /73) "Contracts for deed"; definition of term as used in new statute: The term "contracts for deed" appears in Ga. Laws 1973, pp. 100, 115 (Ga. Code Ann. 84-1419 (g)). This term means an instrument providing for the conveyance of legal title to a purchaser upon completion of a series of agreed-to payments. This instrument is more commonly referred to in Georgia as a bond for title. The term is not to be confused with the ordinary contract for the sale of land. See Pike Rapids Power Co. v. Minneapolis, St. Paul & S. Ste. M. Ry., 99 F.2d 902, 916 (8th Cir. 1938); H. & L. Land Co. v. Warner, 258 So. 2d 293, 295 (Fla. 1972). As to definition of bond for title, see Pindar, Georgia Real Estate Law, 20-70 et seq. (1971). This instrument may also be known as a ''bond for deed." Ingram v. Smith, 62 Ga. App. 335, 7 S.E.2d 922 (1940). See 5A Words and Phrases, Bond for Deed, p. 146 (West 1968). The instrument has also been referred to as a "wrap-around mortgage." See Gunning, The Wrap-Around Mortgage . .. Friend or U.F.O.?, 2 Real Est. Rev. 35 (1972). It is apparent that the new term "contract for deed" indicates such an instrument as hereinabove described. UNOFFICIAL OPINION U73-69 (7 /23 /73) Justice courts; serving of summons: Small claims courts are created by local laws which often allow summons to be served by certified or registered mail. For example, see Ga. Laws 1963, pp. 2896, 2897. In view of differences between the justice and small claims courts and the statutory provisions in Ga. Code (1933) 24-1105, 24-1106 and 24-2820, in the justice court a defendant must be served with a summons by the constable, sheriff, or sheriff's deputy by either giving the defendant a copy in person or by leaving a copy at his usual and most notorious abode. UNOFFICIAL OPINION U73-70 (7 /23/73) Sheriffs' salaries: The Constitution of Georgia takes precedence over all laws of the state, and in case of conflict the Constitution is controlling. See Op. Att'y Gen. U70-28, and Ga. Const., Art. XII, Sec. I, Pars. I to IV (Ga. Code Ann. 2-8001 to 2-8004). Therefore, a local constitutional amendment proposed by Ga. Laws 1972, p. 1372 (ratified Nov. 1972), which sets the salary of the sheriff of Chattahoochee County, would take precedence over a general law (Ga. Laws 1971, p. 380; Ga. Code Ann. 24-2831) which sets a minimum salary for each sheriff in the state. Ratification of a proposed amendment by a majority of the people eligible to vote is necessary before it becomes 357 U73-73 part of the Constitution. See Ga. Coast., Art. XIII, Sec. I, Par. I (Ga. Code Ann. 2-8101). UNOFFICIAL OPINION U73-71 (7 /24/73) Interstate highways; disposal of grass on rights-of-way: The grass that grows along rights-of-way of interstate highways is a ''crop" when harvested and regarded as hay. For earlier cases dealing with growing crops, see Evans Marketing Agency, Inc. v. Federated Growers Credit Corp., 175 Ga. 294 (1932); Williams v. Mitchem, 151 Ga. 227 (1920). The state holds legal title to the rights-of-way. Ga. Code 91-104 (1933). For present legal status of crops as personalty, see Ga. Laws 1922, p. 114 (Ga. Code Ann. 85-1901). See also Ga. Laws 1933, p. 128 (Ga. Code Ann. 85-1902). Further on this question, see Adcock v. Berry, 194 Ga. 243 (1942). Since the hay cut from the rightof-way is state property, it may be disposed of according to Ga. Laws 1968, p. 1148 et seq. (Ga. Code Ann. Ch. 40-19); Ga. Laws 1972, pp. 1015, 1036 (Ga. Code Ann. 40-3549). As to the state's making a contract for supplying the hay to an individual in return for cutting it, this would appear to be in accordance with state law. See Ga. Laws 1973, pp. 947, 975 (Ga. Code Ann. 95A-302 (e) and (g)). Since, however, the state is obligated to follow federal law with reference to interstate highways, such a contract with an individual would not appear acceptable since the federal government requires maintenance contracts to be made with governmental instrumentalities only. 23 U.S.C. 116 (a), 315 (1970). See also 23 C.F.R. 127 (1972). UNOFFICIAL OPINION U73-72 (7 /26 /73) Peace Officers Annuity and Benefit Fund; payment into, by Recorders Court of the City of Ocilla: Ga. Laws 1950, p. 50, as amended (Ga. Code Ann. 78-909), clearly directs all courts to remit to the fund, and makes no exceptions for jurisdictions in which police officers are not members. See Ops. Att'y Gen. 1957, p. 229. There is no apparent reason why police officers in Ocilla cannot become members of the fund. Thus, the Recorders Court of the City of Ocilla must contribute to the fund regardless of whether the peace officers in Ocilla are members. UNOFFICIAL OPINION U73-73 (7 /31/73) Department of Natural Resources; purchase of picnic tables from Georgia Correctional Industries: It is mandatory that picnic tables, if purchased by the Department of Natural Resources, be purchased from the Georgia Correctional Industries, provided that agency has such tables available. Ga. Laws 1937, p. 503 (Ga. Code Ann. 40-1927). U73-74 358 See also Ga. Code Ann. 40-1919, codified from the same 1937 Act, which makes an executive officer personally liable for purchases made in violation of said statute. The fact that the tables could be purchased more cheaply from the Department of Transportation constitutes no exception to this law. For additional history of the origin and development of the Georgia Correctional Industries, see Ga. Const., Art. V, Sec. V, Par. I (Ga. Code Ann. 2-3401); Ga. Laws 1956, p. 161 (Ga. Code Ann. Ch. 77-3); Ga. Laws 1960, p. 880 (Ga. Code Ann. Ch. 77-9, especially 77-904); Ga. Laws 1972, p. 572 (amending Ga. Code Ann. Ch. 77-9). Note that none of these provisions repeals Ga. Laws 1937, p. 503, supra, in material part discussed. Ops. Att'y Gen. 1960-61, p. 440, is immaterial to the question herein treated. UNOFFICIAL OPINION U73-74 (8/3/73) Bail bonds; continuance in force and further proceedings: Ga. Code Ann. 27-913 (Ga. Laws 1971, p. 407) allows a bond contract to continue in force until trial when a bail bond is posted prior to a preliminary hearing, the accused is bound over to trial in the same county, the bond amount is unchanged, and the bond contract is silent as to the trial court. Note that prior to 1971 when the above statute was enacted, if a bail bond executed prior to a commitment hearing was to apply to both the hearing and subsequent trial, the bond had to so state. Fox v. State, 34 Ga. App. 74 (1925); Roberts v. State, 32 Ga. App. 339 (1) (1924); Hardwick v. Shahan, 30 Ga. App. 526 (1) (1923). Restricted bonds are not favored, and judges should probably question their acceptance. See 23 Mer. L. Rev. 61 (1972). If the accused posts a cash bond prior to a preliminary hearing, and is subsequently bound over to the trial court at the same bond amount, the cash bond should be transferred to the trial court. See Ga. Code Ann. 81-1017, 81-1018 (Ga. Laws 1969, p. 41). Nothing herein considered affects the surety's right to surrender the principal and be relieved. UNOFFICIAL OPINION U73-75 (8/3/73) Municipal corporations; investment of sinking funds held for payment of bonded indebtedness: Ga. Laws 1973, p. 1192 (which amends Ga. Code Ann. 23-3001, based on Ga. Laws 1964, p. 741), authorizes municipalities to invest certain funds by depositing them in banks covered by the FDIC. This permission, however, does not extend to sinking funds to cover bonded indebtedness. These funds are governed by Ga. Const., Art. VII, Sec. VIII, Par. I (Ga. Code Ann. 2-6101). This constitutional provision restricts investments of sinking funds to certain municipal, state, or federal bonds or obligations. Treasury 359 U73-77 bills are obligations of the United States according to 31 U.S.C.A. 754. Therefore, they are proper subjects for investment. UNOFFICIAL OPINION U73-76 (8 /6 /73) Motor vehicle bumper standards: Georgia law creates a warranty of fitness to enforce bumper standards (Ga. Laws 1971, p. 373 (Ga. Code Ann. 68-1824, 68-1825)). It is not clear from this statute that the standards are applied purely to passenger vehicles, and it is possible that the standards might also be applied to multi-purpose vehicles such as carry-alls. See Op. Att'y Gen. 73-92. It is also doubtful that there has been a preemption in this field by the Federal Government. As to federal regulations, see Standard 215 promulgated under the National Traffic and Motor Vehicle Safety Act of 1966. 15 U.S.C. 1381 et seq. See also 49 C.F.R. 571.2, 571.215 (S3). The state warranty provision may also reach vehicles thus regulated. Op. Att'y Gen. 72-50. It is true that there are certain preemption features to the federal statute (15 U.S.C. 1392 (d)), but preemption under this clause should be interpreted narrowly. Chrysler Corp. v. Tofany, 419 F.2d 499, 509-510 (2nd Cir. 1969); Chrysler Corp. v. Rhodes, 416 F.2d 319, 325 (1st Cir. 1969). Under the federal law, bumper standards are authorized under Pub. L. 92-513, 86 Stat. 947. There is no preemption clearly set forth at this point. Whether the Georgia statute would be considered an imposition upon interstate commerce is a rather complex question and could only be determined by judicial holdings. See in this connection Pike v. Bruce Church, Inc., 397 U.S. 137 (1970); Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959). UNOFFICIAL OPINION U73-77 (8 /7 /73) Municipal corporations; salary increases under the Home Rule Law: By virtue of the amendments by Ga. Laws 1973, p. 778, to the various municipal home rule statutes (Ga. Code Ann. 69-309 to 69-316 and Ch. 69-10; based on Ga. Laws 1951, p. 116; 1952, p. 46; 1962, p. 140; 1965, p. 298; 1966, p. 296; 1970, p. 346; 1972, p. 820), the governing authority of a municipality may not take action increasing the compensation of municipal employees or of members of the governing or legislative authority unless such action is preceded by publication of a notice of intent in accordance with Ga. Code Ann. 69-1020. Unambiguous language of a statute will not be construed to give effect to an unexpressed intent of the General Assembly. Blackmon v. DeKalb Pipeline Co., 127 Ga. App. 395 (1972). Furthermore, no construction will be given to a statute which would render any portion of it mean- U73-78 360 ingless where the statute itself does not positively require such an interpretation. City of Gainesville v. Smith, 121 Ga. App. 117 (1970). UNOFFICIAL OPINION U73-78 (8 /15 /73) Teacher retirement; benefits to teachers retired under local system: Ga. Laws 1973, p. 895 (Ga. Code Ann. 32-2905 (2) (e), based on Ga. Laws 1943, p. 640, as amended), does not allow a minimum floor of retirement benefits to Georgia teachers already retired under a local retirement system. It is clear that the 1973 statute applies to retired members of the Teachers Retirement System of Georgia. Retired members of a local retirement system are excluded from the Teachers Retirement System by Ga. Code Ann. 32-2901 (23) and 32-2922 (1). Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402 (15)), allows those retirement systems financed by the state to increase payments to persons already retired. However, there appears to be no constitutional provision which allows political subdivisions to do likewise. See Carter v. Haynes, 228 Ga. 462 (1971). UNOFFICIAL OPINION U73-79 (8 /15 /73) Volunteer firemen; computation of service for pension fund benefits: For purposes of the Georgia Firemen's Pension Fund (created by Ga. Laws 1955, p. 339), years served by volunteer firemen prior to July 1, 1955 in less than a "class 8" fire department cannot be allowed as service for the computation of pension benefits. Ga. Code Ann. 78-1007 provides for the retirement of eligible volunteer firemen as defined in Ga. Code Ann. 78-1001 (2). Where a statute is clear and plain, it should be held to mean what has been clearly expressed. Barnes v. Carter, 120 Ga. 895 (1904). As to the possibility of vested rights of volunteer firemen, Ga. Code Ann. 78-1010 clearly indicates that no person can have a vested right to a pension from the fund. See Op. Att'y Gen. 70-194. Cf. McCallum v. Almand, 213 Ga. 701 (1957); Board of Commissioners v. Clay, 214 Ga. 70 (1958). UNOFFICIAL OPINION U73-80 (8 /17 /73) Grand juries; inspection of county property: Grand juries are required by Ga. Code Ann. 59-315 (Ga. Laws 1955, p. 151) and 91-708 (1933) to inspect only county property, and are not authorized to inspect municipal property. The grant of statutory authority to do one thing does not carry with it the authority to do another thing not mentioned. Crawford v. Glasgow, 86 Ga. 358 (1890). The ordinary's responsibilities are limited to county buildings under Ga. Code 91-701. 361 U73-82 General powers conferred upon the ordinary by the Constitution are restricted to county matters and do not extend to municipal property. Ga. Canst., Art. VI, Sec. VI, Par. II (Ga. Code Ann. 2-4102). Ordinary signification will be given to words of a statute. Ga. Code 102-102 (1). Therefore, 59-315 and 91-708, which mention only county property, will not be extended to refer to other public property within the county. Huntsinger v. State, 200 Ga. 127, 130 (1945), indicates that the two Code sections under discussion should be construed together. UNOFFICIAL OPINION U73-81 (8 /20 /73) Taxation; certain taxes considered as special taxes: Such taxes as county school taxes (Ga. Canst., Art. VIII, Sec. XII, Par. I (Ga. Code Ann. 2-7501)), bond retirement taxes (Ga. Canst., Art. VII, Sec. VII, Par. II (Ga. Code Ann. 2-6002)), and hospital authority levies (Ga. Laws 1964, p. 499, as amended (Ga. Code Ann. 88-1812)), are special taxes as the term is defined in Ga. Code 92-3716 (1933), and as this term is used in Ga. Code 92-4908 (1933). Each of the above taxes is a special tax as defined by Ga. Code 92-3716, as they are all tax laws passed since the adoption of the Code of 1863 and provide for the raising of revenues for specific purposes definitely stated therein. Thus, the county tax collector must lay before the grand jury a full settlement of all such special taxes received by him, as required by Ga. Code 92-4908. UNOFFICIAL OPINION U73-82 (8 /24 /73) Motor vehicles; registration of "log grapple loader": A "log grapple loader" is described as a truck body with a log loading machine mounted on its back, and the only time that the vehicle is used on a highway is in transporting it from one forest to another. If such a vehicle is to be operated on the public highways, it must be registered, licensed and inspected in accordance with the motor vehicle laws. For definitions of "vehicle," see Ga. Code 68-101 (1933) and 68-1502 (Ga. Laws 1953, Nov. Sess., p. 556; 1970, p. 586). Registration and licensing of motor vehicles, see Ga. Code Ann. 68-201 (Ga. Laws 1927, p. 226, as amended). Inspection of vehicles is covered in Ga. Code Ann. Ch. 68-17 (Ga. Laws 1953, Nov. Sess., p. 556, as amended). As described, the log grapple loader is not a "tractor" but is a "vehicle," both words as defined by Ga. Code 68-101. The vehicle is not an "implement of husbandry" (as defined in Ga. Code Ann. 68-1701 (c)) so as to be exempt from inspection. U73-83 362 UNOFFICIAL OPINION U73-83 (8 /24 /73) County officers and employees; individual serving as both county registrar and county land appraiser: It is permissible for a person to serve simultaneously as county registrar and county land appraiser. It is true that Ga. Code 89-103 prohibits one person from holding more than one county office in the absence of special legislation. This Code section, however, applies only to county officers as distinguished from county employees. See Ops. Att'y Gen. 68-30, 68-223, 69-42. The county registrar is definitely not a county officer. See Andrews v. Butts County, 29 Ga. App. 302 (1922), interpreting Ga. Const., Art. XI, Sec. II, Par. I (Ga. Code Ann. 2-7901). The registrar is appointed by the superior court judge (Ga. Code 34-603, based on Ga. Laws 1964, Extra. Sess., p. 26, as amended), rather than elected by the people. As to the county land appraiser, it is also apparent that his position is not a county office. This position is not referred to in Ga. Code Title 23, nor is it discussed in one of the most comprehensive considerations of county offices: Employees Retirement System v. Lewis, 109 Ga. App. 476 (1964). It is quite true that a conflict of interest might arise in some way other than by statute. For a list of such statutes, see Op. Att'y Gen. 68-156. It is generally illegal for an individual to be placed in a position wherein he must supervise himself. See Montgomery v. City of Atlanta, 162 Ga. 534 (1926); Op. Att'y Gen. 67-17. There seems to be no immediate relationship between the positions of county registrar and county land appraiser, so there is apparently no conflict of interest here. UNOFFICIAL OPINION U73-84 (8 /24 /73) Open Records Law; inspection of records of food establishments: Certain documents executed in connection with inspections made pursuant to Ga. Code Ann. 88-1006 (Ga. Laws 1964, pp. 499, 560) by the Clarke County Health Department of food service establishments must be made available for public inspection pursuant to the Open Records Law (Ga. Laws 1959, p. 88; Ga. Code Ann. Ch. 40-27). The Food Service Inspection Reports promulgated under Regulation 270-5-6.20 have an official status, and are subject to public inspection in the absence of some contrary direction by the Department of Human Resources under Ga. Code 88-306 (1933). On the other hand, "Food Service Inspection Records" are not officially required by statute or regulation, and are, therefore, not "records" so as to be subject to the Open Records Act. As to what constitutes a "record," see Op~. Att'y Gen. 68-507, U71-9, U72-74. Public health employees enjoy a qualified privilege as to libel and slander under Ga. Code 105-709 (1) (1933). Consequently, improper dissemination of infor- 363 U73-88 mation from health reports would fall only upon a private party who might make a false interpretation thereof. UNOFFICIAL OPINION U73-85 (8/29/73) Public employees; member of General Assembly not to be employed by branch of the University System of Georgia: Since Macon Junior College is a branch of the University System of Georgia under the control of the Board of Hegents of the University System of Georgia, an agency within the executive branch of government, employment by the college of a member of the General Assembly would be prohibited by Ga. Code Ann. 26-2309 (Ga. Laws 1968, pp. 1249, 1309). UNOFFICIAL OPINION U73-86 (8/29/73) Small Claims Court of Burke County: In establishing the Small Claims Court, Ga. Laws 1973, pp. 3497, 3506, Section 18, requires that the Board of County Commissioners furnish equipment and supplies required or necessary for the efficient operation of the court. Items such as a gun and holster for the bailiff, stamps, and telephone services fall within such equipment and supplies, and must be furnished by the commissioners. UNOFFICIAL OPINION U73-87 (8/29/73) Public employees; participation in various aspects of the political process: Hule 6F6, Hules and Hegulations of the City of Atlanta Board of Education (requiring a board employee to take a leave of absence on the date he qualifies for public office, to continue on such leave until the day following election day, and to resign or retire if elected) apparently would survive constitutional challenge. Similar provisions have been upheld by the Supreme Court of the United States in recent decisions. Broadrick v. Oklahoma, U.S. , 41 L.W. 5111 (1973); United States Civil Service Commission v. National Ass'n of Letter Carriers AFL-CIO, U.S. , 41 L.W. 5122 (1973). UNOFFICIAL OPINION U73-88 (8/30 /73) Private detectives; regulation: The ordinance of the City of Albany regulating the activities of private detectives is no longer valid because of the enactment of the Georgia Private Detective and Private Security Agencies Act (Ga. Laws 1973, p. 40). Although municipalities, pursuant to Ga. Code Ann. 69-1017 (a), can regulate by ordinances those U73-89 364 matters not regulated by statute, such authority does not extend to matters which the General Assembly by general law might later preempt. See Ga. Code Ann. 69-1018 (a) (based on Ga. Laws 1965, p. 298; 1966, p. 296; 1970, p. 346). Ga. Laws 1973, p. 40, is a perfect example of such preemption. See also, Moore v. City of Tifton, 84 Ga. App. 280, 66 S.E.2d 164 (1951); Silverman v. Mayor of Savannah, 125 Ga. App. 41, 186 S.E.2d 447 (1971). UNOFFICIAL OPINION U73-89 (9 /10 /73) County taxation; exemptions: All property is taxable unless otherwise provided by law (Ga. Code 92-101), and no law can be passed granting an exemption except as specifically provided in the State Constitution. Ga. Const., Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404) and the enabling Act thereunder (Ga. Code Ann. 92-239; Ga. Laws 1946, pp. 12, 13, as amended by Ga. Laws 1971, pp. 3, 4) exempt, among other things, tools and implements of manual laborers, and domestic animals, as well as household furniture, appliances, and other personal property used within the home. All attempts to grant exemptions not specifically set out in the Constitution are void. See Ga. Code Ann. 2-5404. See also Op. Att'y Gen. 69-457. As to livestock, only domestic animals used directly by the family and not as income-producing property are exempt under this section. Ops. Att'y Gen. 1962, p. 506 (unofficial). "Tools and implements of trade of manual laborers" do not include farm machinery. Ops. Att'y Gen. 1957, p. 284 (unofficial). The exemption as to household furniture and appliances would apply to such household goods in a mobile home, but there is no authorized exemption as to the mobile home itself. Cf. Op. Att'y Gen. U71-.51. UNOFFICIAL OPINION U73-90 (9 /13 /73) Judges of superior courts; reimbursement of expenses: Ga. Laws 1973, p. 701, increases the salary of superior court judges but states that they shall receive reimbursement of travel expenses "as provided by law." Ga. Laws 1945, p. 1199 (Ga. Code Ann. 24-2606.1), provides for reimbursement of mileage and cost of meals. There have been further Acts passed with reference to the compensation and expenses of superior court judges. See Ga. Laws 1957, p. 273 (Ga. Code Ann. 24-2606); Ga. Laws 1963, p. 415 (Ga. Code Ann. 24-2606.1); Ga. Laws 1969, pp. 113, 114 (Ga. Code Ann. 24-2606.2). The judges are entitled to reimbursement for meals and lodging in accordance with the Act of 1945, above, unless that statute has been repealed by implication by one of the more recent statutes. Such repeals are not favored. 365 U73-92 Hines v. Wingo, 120 Ga. App. 614 (1969); Geeslin v. Opie, 220 Ga. 53 (1964); Rosser v. Meriwether County, 125 Ga. App. 239 (1971). There is no clear conflict between the 1945 Act and any subsequent Act. Therefore, it is still in effect. It should be noted that provisions for reimbursement are generally not considered the same as provisions for salary. State ex rel. Lyons v. Guy, 107 N.W.2d 211, 216 (N.D. 1961); Hoppe v. State, 469 P.2d 909, 912 (Wash. 1970). Therefore, the superior court judges of Georgia are entitled to receive the actual cost of meals and lodging in accordance with the provisions of Ga. Code Ann. 24-2606.1. Transportation costs outside the county of residence is also governed by said section: actual cost of transportation if by public carrier; a mileage allowance if by private vehicle. UNOFFICIAL OPINION U73-91 (9 /14 /73) Judges of the superior court emeritus; eligibility for appointment: According to Ga. Laws 1945, p. 362 (Ga. Code Ann. 24-2603a), it is apparent that, as a general rule, in order to become a judge emeritus a person must be serving as judge of the superior court at the time of appointment. The appointment as judge emeritus and resignation as judge are simultaneous. On interpretation of statutes, see Ga. Code 102-102 (9); Barnes v. Carter, 120 Ga. 895 (1904). There are two exceptions to the above rule: (1) Under Ga. Laws 1960, p. 161 (Ga. Code Ann. 24-2605a.1), a judge who is eligible for emeritus appointment may accept an office of profit or trust under the state or federal government and have his eligibility suspended during such employment; (2) A judge may hold his eligibility in suspense if he has accepted widow's benefits under Ga. Laws 1970, p. 249 (Ga. Code Ann. 24-2610a.1 (d)). The two exceptions are based upon Acts subsequent in date to the original Emeritus Act of 1945, and, therefore, supersede it in material part. Cairo Banking Co. v. Ponder, 131 Ga. 708 (1908). While an attorney is an officer of the courts, the practice of law is not "an office of profit," which would serve to hold a judge's eligibility in suspense. Sams v. Olah, 225 Ga. 497 (1969), cert. den. 397 U.S. 914, 90 S.Ct. 916 (1969); Platen v. Byck, 50 Ga. 345 (1873); Bibb County v. Hancock, 211 Ga. 429 (1955); Gordon v. Clinkscales, 215 Ga. 843 (1960); 7 C.J.S. Attorney and Client, 706, 708. UNOFFICIAL OPINION U73-92 (9 /14/73) Juvenile courts; salaries of judges: In view of Ga. Code Ann. 24A-201 (e) (Ga. Laws 1971, p. 709), the superior court judges of the Gwinnett Judicial Circuit have the authority to determine the salary of the judge of the Juvenile Court of Gwinnett County. For U73-93 366 definition of "fix" as used in such Code section, see Culberson v. W atkins, 156 Ga. 185, 119 S.E. 319 (1923). UNOFFICIAL OPINION U73-93 (9 /17 /73) Homestead exemptions; power of municipalities to grant: The only property tax exemptions which may be granted in Georgia are contained in Ga. Const., Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404), which provides that the exemption shall not apply to taxes levied by municipalities. Thus, municipalities may not lawfully grant homestead exemptions absent the existence of a local or general constitutional amendment allowing same. See Ga. Laws 1950, p. 443 (ratified Nov. 1950), where the City of Atlanta proposed such a local constitutional amendment. UNOFFICIAL OPINION U73-94 (9 /19 /73) Note-It is customary to digest unofficial opinions, but the following presents a detailed discussion of the veto power of the Governor as to appropriations. It is, therefore, being set out in full. Re: Appropriation for Crooked River Project; veto by Governor. This is in reply to your request for an opinion with respect to the General Appropriations Act for Fiscal Year 1974. Act No. 704, Ga. Laws 1973, p. 1353. Specifically, your questions are as follows: (1) Does the Governor's veto of the proviso relating to the Crooked River Project constitute a proper and effective exercise of the authority vested by Ga. Const., Art. V, Sec. I, Par. XV (Ga. Code Ann. 2-3015)? (2) If my opinion relating to Question (1) is in the affirmative, does this veto have the effect of lowering the total state-fund appropriation for Fiscal 1974 by $300,000? Your request involves Section 27 (Ga. Laws 1973, pp. 1353, 1379) of the General Appropriations Act, which as it passed both Houses of the General Assembly in pertinent part provided as follows: "Section 27. Department of Natural Resources. * * * "C. Capital Outlay .......................... $3,226,100 Changed Object: Capital Outlay .......................... $3,746,200 367 U73-94 * * * "Provided, that of the above appropriation relating to Capital Outlay, $300,000 is designated and committed for the Crooked River Project." Crooked River is a state park operated by the Department of Natural Resources. The "Crooked River Project" has no meaning ascertainable from the General Appropriations Act or from the related budget reports submitted to the General Assembly; it relates, apparently, to a particular construction project at Crooked River State Park. The Governor approved the General Appropriation Act as passed except that across the language contained in Section 27 dealing with the Crooked River Project he wrote: "Vetoed. Jimmy Carter." Ga. Const., Art. V, Sec. I, Par. XV (Ga. Code Ann. 2-3015) provides as follows: "[The Governor] may approve any appropriation, and veto any other appropriation, in the same bill, and the latter shall not be effectual unless passed by two-thirds of each House." This power and the effect of its exercise has not been examined or considered by the courts and has been treated only twice by my predecessors. Ops. Att'y Gen. 1935-36, p. 22 (1935); 194.5-47, p. 628 (1947). The 1935 opinion by then Attorney General M. J. Yeomans involved the effect of a veto by Governor Eugene Talmadge under a comparable provision of the 1877 Constitution of an appropriation for the Division of the State Veterinarian separately stated from the appropriation to the parent Department of Agriculture. Ga. Laws 1933, pp. 13, 14, Section 1 (2). In that opinion, my predecessor concluded in essence that the legislative history of the 1933 Appropriations Act compelled the conclusion that the appropriation of the Department of Agriculture was not available for the expenses of its Division of the State Veterinarian and that, in view of this intent, the veto by the Governor of the separate division appropriation precluded payment from the department's appropriation of its division's expenses, including the statutory salary of the State Veterinarian. Ops. Att'y Gen. 1935-36, p. 22. Subsequent litigation involving the ramifications of this conclusion did not reach questions involved here or otherwise discuss the appropriation veto power of the Governor. See Sutton v. Adams, 180 Ga. 48, 56 (1934). The 1947 opinion by then Attorney General Eugene Cook concluded that a "conditional approval" by Governor Arnall of one section in an appropriation to the State Highway Department by special resolution, Ga. Laws 1946, pp. 787, 790, amounted to a veto of that section. The language involved in effect allocated an appropriation for highway U73-94 368 construction among various types of roads and the opinion concluded that, by virtue of the veto, the allocation was ineffectual, leaving the allocation of the appropriated amount among the various types of roads to the discretion of the department. Ops. Att'y Gen. 1945-47, pp. 628, 631 (1947). In view of the very limited precedent on the present provision, or its predecessor in the 1877 Constitution, and the major constitutional changes which have been wrought since, it is clear that a thorough reexamination of this power is necessary. In determining whether the veto was properly attempted with respect to the Crooked River appropriation, therefore, we tread on what we consider new ground. In this task, we cannot narrow our focus solely on Art. V, Sec. I, Par. XV. We must examine that provision and its historical foundations; but at the same time we must take into account various other provisiOns of the Constitution relating to appropriations. I. The language specifically dealing with the appropriations veto first appeared in the Georgia Constitution of 1861. Ga. Const. 1861, Art. III, Sec. II, Par. VI. The adoption of the Georgia Constitution of 1861 in convention followed within a month the adoption in March 1861 of the Constitution of the Confederate States of America, which in Art. I, Sec. VII, Par. II, provided: "The President may approve any appropriation and disapprove any other appropriation in the same bil1." 1 The Georgia Constitution of 1861 provided in pertinent part: "He [The Governor] may approve any appropriation and disapprove any other appropriation in the same bill...." Ga. Const. 1861, Art. III, Sec. II, Par. VI. One man, Thomas R. R. Cobb, was largely responsible for the drafting of both the Georgia and the Confederate Constitutions ;2 and it is apparent that Georgia's "item veto provision was copied almost verbatim" from the Confederate Constitution.3 The Georgia provision was adopted without discussion or dissent.4 These facts suggest, if indeed they do not compel, the conclusion that Georgia's provision was 1 Journal of the Georgia Constitutional Convention of 1861, pp. 285, 294, 301 (hereinafter Georgia Journal). 2 Saye, A Constitutional History of Georgia, 1732-1945, pp. 241-243; Journal of the Georgia Constitutional Convention of 1861, pp. 49, 234. 3 F. W. Prescott, A Footnote on Georgia's Constitutional History: The Item Veto of the Governors, 42 Ga.Hist. Q.1 (1952) (Emphasis in original). 4 Georgia Journal, p. 260. 369 U73-94 taken directly from the Confederate Constitution and, at least in part, adopted for the same reasons. \Ve may look to those purposes in determining the meaning of the Georgia provision. Thompson v. Talmadge, 201 Ga. 867, 885-86 (1947). The reasons underlying the Confederate provision were explained in the debates on the Confederate Constitution by Robert H. Smith, the author and originator of the veto provision, and a delegate to the Confederate Congress from Alabama. The primary purpose of the provision was to counteract a "flagrant abuse" of legislative power: "The habitual practice of loading bills, which are necessary for governmental operations with reprehensible, not to say venal dispositions of the public money ... Bills necessary for the support of the government are loaded with items of the most exceptional character, and are thrown upon the [executive] at the close of the session, for his sanction, as the only alternative for keeping the government in motion."6 In other words, the item veto was introduced to prevent what is commonly known as "logrolling" .7 There was another purpose, however. The item veto was introduced as part of a plan to place budgetary control in the hands of the executive.8 It was included along with a provision requiring the executive to submit budgetary proposals to the Congress, which could then pass on them as it saw fit. 9 Congress could not independently initiate appropriations (with the exception of paying its own expenses) except on a two-thirds vote. 10 The reasoning behind this design was explained as follows: 5 I Journal of the Congress of the Confederate States of America (7 vols., 58th Congress, 2d Sess., Senate Doc. No. 234, Washington, 1904), at 34. 6 Robert. H. Smith, Address to the Citizens of Alabama on the Constitution and Laws of the Confederate States of America, pp. 7-8 (Mobile, 1861). 7 This purpose has also been noted as underlying comparable provisions in other states. See, e.g., Green v. Rawls, 122 So. 2d 10 (Fla.S.Ct. 1960); Commonwealth v. Barnett, 199 Pa. 161, 48 Atl. 976 (1901); Strong v. People, 74 Colo. 283, 220 P. 999 (1923). s Robert H. Wells, The Item Veto and State Budget Reform, 18 Am. Pol. Sci. Rev. 782 (1924); Smith, Address to Citizens of Alabama, supra, pp. 9-10. 9 Wells, The Item Veto, supra, p. 783; Smith, Address to the Citizens of Alabama, supra, p. 8. 1o Constitution of the Confederate States of America, Art. I, Sec. IX, Par. IX. Even these appropriations were subject to the appropriations veto by the President. This fact, together with the historical manner of exercising the veto and the method of overriding its exercise compel the conclusion that the language in Art. V, Sec. I, Par. XV of the Georgia Constitution that "the latter shall not be effectual unless passed by two-thirds of each House" is not a condition precedent to the effective exercise of the Governor's veto power but relates instead to the manner of overriding the veto once made. U73-94 370 "[It] proceeds upon the idea that the chief executive head of the country and his cabinet should understand the pecuniary wants of the Confederacy, and should be answerable for an economical administration of public affairs, and at the same time should be enabled and required to call for whatever sums may be wanted to accomplish the purposes of government."n Thus, a second motive underlying the adoption of the appropriation veto in the Confederate Constitution was to place strict control of public funds in the executive. \Vhen Georgia incorporated the appropriation veto into its State Constitution, however, budgetary control by the executive and the machinery for that purpose were omitted from the Constitution. 12 In view of the fact that when Georgia adopted the appropriations veto from the Confederate Constitution provisions necessary to vest budget control in the executive were not included, it is evident that the singular historical purpose underlying the Georgia appropriations veto provision was to place in the executive a check on the practice of "logrolling." It is this historical purpose which must be given dominant effect in any consideration of the appropriations veto power. Thompson 11 Smith, Address to the Citizens of Alabama, supra, p. 8. 12 This omission is characteristic of the original framework in which similar provisions were incorporated in the constitutions of other states, the great majority of which have adopted the concept of an "item veto." Wells, The Item Veto, supra, p. 783. The "item veto" has been the subject of litigation in other states. See Fairfield v. Foster, 25 Ariz. 146, 214 P. 319 (1923); Callaghan v. Boyce, 17 Ariz. 433, 153 P. 773 (1915); Railroad Commission v. Riley, 12 Cal.2d 48, 82 P.2d 394 (1938); Reardon v. Riley, 10 Cal.2d 531, 76 P.2d 101 (1938); Wood v. Riley, 192 Cal. 293, 219 P. 966 (1923); Strong v. People, 74 Colo. 283, 220 P. 999 (1923); Green v. Rawls, 122 So.2d 10 (Fla.S.Ct. 1960); People v. Brady, 277 Ill. 124, 115 N.E. 204 (1917); Fergus v. Russell, 270 Ill. 304, 110 N.E. 130 (1915); Opinion of the Justices, 294 Mass. 616, 2 N.E.2d 789 (1936); Wood v. State Admin. Bd., 255 Mich. 220, 238 N.W. 16 (1931); State v. Holden, 76 Miss. 158, 23 So. 643 (1898); Miller v. Walley, 122 Miss. 521, 84 So. 466 (1920); State v. Ferguson, 32 Ohio St. 2d 245, 291 N.E.2d 434 (1972); Peebly v. Childers, 95 Okla. 40, 217 P. 1049 (1923); Regents v. Trapp, 28 Okla. 83, 113 P. 910 (1911); Commonwealth v. Barnett, 199 Pa. 161, 48 A. 976 (1901); Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405 (1911); Commonwealthv.Dodson, 176 Va. 281, 11 S.E.2d. 120 (1940); State v. Henry, 218 Wis. 302,260 N.W. 486 (1935); State v. Forsyth, 21 Wyo. 359, 133 P. 521 (1913). While there is no lack of authority involving the "item" veto in other states, we are convinced that variances in the language conferring the veto power and the constitutional setting in which the "item" veto is considered preclude reliance on those decisions, the overwhelming majority of which support the result reached in this opinion. For example, the wording of a power to veto an "item" in an appropriations bill or an "item of appropriation," as the power is worded in other states, will necessarily affect the decision as to the scope of that power. Moreover, in contrast to Georgia's situation, in other states an appropriations Act may vary existing general law, confer authority to expend public funds where none exists in general law, or "condition" an appropriation. The absence of such restrictions as are found in the Georgia Constitution affects the scope of an appropriations bill and necessarily, too, the determination as to the scope of an authority to veto "items" therein. Finally, we must reject several lines of decision, illustrated by Green v. Rawls, Wood v. Riley, Commonwealth v. Barnett, Fulmore v. Lane, and Regents v. Trapp, as totally inconsistent with the power to "veto" an "appropriation." 371 U73-94 v. Talmadge, 201 Ga. 867, 885-86 (1947); Hooper v. Almand, 196 Ga. 52 (1943). II. There is no evidence in subsequent constitutional history of the state, either intrinsic in the Constitution or extrinsic from the practical ramifications of the power, that this original purpose has been expanded. In fact, the subsequent history emphasizes the dominant theme underlying the appropriations veto. The specific wording of the appropriations veto provision first adopted in 1861, for example, has continued in subsequent Constitutions without change. Ga. Const. 1865, Art. III, Sec. II, Par. VI; Ga. Const. 1868, Art. IV, Sec. II, Par. VI; Ga. Const. 1877, Art. V, Sec. I, Par. XVI; Ga. Const. 1945, Art. V, Sec. I, Par. XV (Ga. Code Ann. 2-3015). Within previous constitutional and statutory settings, moreover, the consequences which might flow from the use of the appropriation veto power, in theory and practice, were limited in scope to those necessary to effect the original purpose of that power. Thus, prior to the Constitution of 1945, the relatively ineffectual use of the power, illustrated by Governor Conley's veto of the appropriation by Ga. Laws 1871-72, p. 8, of the salaries for "almost the entire Civil Establishment from Governor to messenger," which were nevertheless paid,I3 may arguably be explained by the operation of provisions such as Ga. Laws 1865-66, p. 11 (Code 89-701), which "appropriated annually" the "various sums of the annual salaries of all the officers of this state, whose salaries are fixed by law." See Irons v. Harrison, 185 Ga. 244, 247 (1937); Nance v. Daniel, 183 Ga. 538, 541-42 (1936). Thus, in the case of certain expenses of state government arguably a continuing appropriation operated to permit the expenditure of public funds even though the specific appropriation for those purposes had been vetoed. 14 At the same time, the truly effective exercise of the power, that is, where the veto operated to prevent an expenditure of public funds, was limited to those appropriations which might be classified as "logrolling," those not essential to the operation of state government. The concept of statutorily created continuing appropriations did not fully survive the adoption of the Constitution of 1945. State Ports Authority v. Arnall, 201 Ga. 713 (1947). At the same time executive initiation of the budget, absent when the appropriations veto was first adopted in 1861, was constitutionally implemented. Ga. Con~t. 13 Prescott, The Item Veto of the Governors, supra, pp. 19-20. 14 Nance v. Daniel, supra, catalogues certain of these provisions which operated as continuing appropriations "without a general appropriation Act" and explains the seeming conflict between these provisions and Ga. Code 47-502 (Ga. Laws 1888-89, p. 15). U73-94 372 1945, Art. VII, Sec. IX (Ga. Code Ann. Ch. 2-62). On the other hand, the 1945 Constitution as originally adopted itself contained a provision also rendering less drastic the theoretical use of the appropriations veto. Thus, Ga. Const. 1945, Art. VII, Sec. IX, Par. II (Ga. Code Ann. 2-6202) as originally adopted provided in pertinent part as follows: "Each General Appropriation Act, with such amendments as are adopted from time to time, shall continue in force and effect for each fiscal year thereafter until repealed or another General Appropriation Act is adopted; provided, however, that each section of the General Appropriation Act in force and effect on the date of the adoption of this Constitution, of general application ... and each section providing for ... continuing appropriations and adjustments on appropriations shall remain in force and effect until specifically and separately repealed by the General Assembly." The appropriations veto provision, which on its face would permit the Governor to veto an operating appropriation for an entire department of state government, was thus limited in the practical eonsequences of its employment. By virtue of the reference by Art. VII, See. IX, Par. II, to certain provisions of Ga. Laws 1943, p. 84, among others, the operations of that department would not have come to a grinding halt. As had been historically the case, the truly effective exercise of the veto power was reserved for those appropriations unrelated to the operation of state government. The appropriation control provisions of the Constitution were, however, completely and drastically revised in 1962. Ga. Laws 1962, p. 752. As a result of those amendments, and the minor changes effected in 1972 by Ga. Laws 1972, p. 1550, Ga. Const., Art. VII, See. IX, Par. II (Ga. Code Ann. 2-6202), now provides: "(a) Each General Appropriation Act, now of force or hereafter adopted with such amendments as are adopted from time to time, shall continue in force and effect for the next fiscal year after adoption and it shall then expire ... **** " (c) All appropriated funds . . . remaining unexpended and not contractually obligated at the expiration of such General Appropriation Act, shall lapse." It is at once apparent that these provisions, which totally abrogate the concept of continuing appropriations, together with Ga. Const., Art. III, See. VII, Par. XI (Ga. Code Ann. 2-1911), envelop the appropriation veto provisions with such untoward power in the executive 373 U73-94 that we would be reluctant in face of the all-encompassing language of the 1962 amendments and the practical consequences that might flow from its exercise to conclude that the appropriation veto could operate consistent with those amendments and thus survived their adoption. Johnston v. Hicks, 225 Ga. 576, 580 (1969); Hooper v. Almand, 196 Ga. 52, 62-66 (1943). It is clear, however, that the appropriation veto did survive; for, in that same year (1962), the people adopted an amendment completely revising Ga. Canst., Art. V, Sec. I, Par. XV (Ga. Code Ann. 2-3015), incorporating again the appropriation veto prOVISIOn. On the other hand, it is not so clear that the power survived unscathed. Ga. Canst., Art. VII, Sec. IX, Par. I (Ga. Code Ann. 2-6201) as altered by the 1962 amendments [revised by Ga. Laws 1972, p. 1550] now provides: "(a) The Governor shall submit to the General Assembly ... a budget message and a budget report, accompanied by a draft of a General Appropriation Bill, in such form and such manner as may be prescribed by statute, which shall provide for the appropriation of the funds necessary to operate all the various departments and agencies, and to meet the current expenses of the state.... "(b) The General Assembly shall annually appropriate the funds necessary to operate all the various departments and agencies, and meet the current expenses of the state. . . ." (Emphasis added.) It is not clear that the appropriations veto could, consistently with Ga. Canst., Art. VII, Sec. IX, Par. I (Ga. Code Ann. 2-6201), be exercised with respect to an appropriation of "the funds necessary to operate ... and meet current expenses of the state...." It is fundamental, of course, that constitutional provisions, even more so than statutes, must be given a harmonious construction. Cason v. State of Georgia, 217 Ga. 339 (1961); McLucas v. State Bridge Bldg. Authority, 210 Ga. 1, 8 (1953); Hooper v. Almand, 196 Ga. 52 (1943). The operation of the provisions of Art. VII, Sec. IX, Par. I, would appear to require the Governor to propose and the General Assembly to appropriate "a specific sum of money," Art. VII, Sec. IX, Par. IV (Ga. Code Ann. 2-6204) "necessary to operate all the various department and agencies, and meet the current expenses of the state." Art. VII, Sec. IX, Par. I. The unequivocably mandatory language of the provision, directed to the respective functions of the Governor and the General Assembly, arguably leaves little room for the exercise of the appropriations veto against an appropriation of an amount "necessary to operate" a department or agency of the state or of an amount "neces- U73-94 374 sary to ... meet the current expenses of the state." To otherwise construe the appropriations veto power arguably would not only bring it in conflict with Art. VII, Sec. IX, Par. I, it would also attribute a purpose to expand that power far beyond its dominant historical purpose and pose practical ramifications of its potential exercise of an absurd nature. See Johnston v. Hicks, 225 Ga. 576, 580 (1969); Thompson v. Talmadge, 201 Ga. 867, 885-86 (1947); Hooper v. Almand, 196 Ga. 52, 62-65 (1943). In view of the language of Art. VII, Sec. IX, Par. I, the historical purpose underlying the appropriation veto power, and the practical consequences that would follow, the exercise of that power with respect to such an appropriation would be of questionable efficacy. Nevertheless, we need not reach that question here, for the issue involved does not relate to an appropriation of an amount "necessary to operate" the Department of Natural Resources or "necessary to ... meet the current expenses of the state." It is my opinion, therefore, only that the appropriation veto power set forth in Ga. Const., Art. V, Sec. I, Par. XV (Ga. Code Ann. 2-3015), is a viable power with respect to appropriations other than those which set forth a specific sum for the operation of a state department or agency or for the current expenses of the state. To what extent the appropriation veto power might have broader scope we do not deem it necessary to decide. Suffice it to say that a broader application of that power would be of doubtful efficacy. III. Whether the Governor's veto in the instance of the Crooked River language constituted a proper and effective exercise depends first upon the determination of a proper subject-matter against which that power may be exercised and second, upon a determination of whether the Crooked River language falls within that subject-matter. The exercise of the veto power by the Governor, whether the general power or with respect to an appropriation, involves a legislative function. Thus, in Beall v. Beall, 8 Ga. 210 (1850), the Supreme Court noted that: "It is certain ... that [the Governor] can, by his veto, arrest an Act, unless passed by two-thirds of each branch of the legislature. The executive, then, may be said to be united with the legislative in the passage of laws." Id. at 227 (Emphasis in original.) On the other hand, while the veto power is legislative in character, it is not an affirmative or creative power; it is a negative or destructive power authorizing the Governor solely to "arrest" the operation of a bill. Beall v. Beall, 8 Ga. 210 (1850). It may be exercised only within 375 U73-94 the sphere clearly authorized by the Constitution. Cf. Solomon v. Commissioners of Cartersville, 41 Ga. 157 (1870). Ga. Const., Art. V, Sec. I, Par. XV (Ga. Code Ann. 2-3015), provides that the Governor "may approve any appropriation, and veto any ... appropriation, in the same bill...." (Emphasis added.) This power deviates from the general scheme of the veto by permitting its use to alter a single item of legislation. Nevertheless, its sphere is strictly circumscribed by the term "appropriation." In other words, the Governor by use of the appropriation veto may do no more and no less than veto an "appropriation" set forth by the General Assembly in a bill. In determining the proper sphere of the appropriation veto power, therefore, we must obviously determine the meaning and scope of the term "appropriation" as it is used in Art. V, Sec. I, Par. XV. Prior opinions of this office support the conclusion that as the term is used in various provisions of the Constitution, an "appropriation" is an authorization to expend public funds for a specified purpose. Ops. Att'y Gen. 73-132, 73-80, 67-189, 1935-36, p. 22 (1935). This reading of the Constitution is confirmed by the General Assembly's own reading thereof in the Budget Act. Ga. Code Ann. 40-402 (1) (Ga. Laws 1962, pp. 17, 19), defines "appropriation" as an "authorization ... to expend, from public funds, a sum of money not in excess of the sum specified, for the purposes specified in the authorization. . . ."The Budget Act also defines an "Appropriations Act" as an "Act of the General Assembly which authorizes the expenditure of state money." Although a statutory definition is not necessarily controlling on the definition of terms contained in the Constitution, it is persuasive. See Thompson v. Talmadge, 201 Ga. 867, 885-86 (1947). In this case, consistently with the prior opinions of this office and with the General Assembly's own definition, we conclude that as the term is used in the Constitution, an appropriation is an authorization by the General Assembly to expend from public funds a sum of money not in excess of the amount specified, for the purpose specified in the authorization. Thus, within the meaning of Art. V, Sec. I, Par. XV,141 an "appropriation" subject to the veto power consists of an authorization to expend public funds containing two essential elements: (1) specification of the amount of the authorized expenditure, and (2) specification of the purpose for which the expenditure is authorized. The 11 In Op. Att'y Gen. 73-80, we concluded that the General Appropriations Act may contain nothing more and nothing less than appropriations, that is, authorizations to expend a specified amount of public funds for a specified purpose. Thus, the constitutional restrictions on the power of the General Assembly in making appropriations, Op. Att'y Gen. 73-80, form the basis for delimiting the subject-matter of appropriation veto power of the Governor under Art. V, Sec. I, Par. XV. U73-94 376 Governor may employ the appropriation veto power with respect to nothing more and nothing less. An attempted veto which strikes only the purpose of an authorized expenditure would thus be ineffective.l5 It is my opinion, therefore, that the appropriation veto power in Art. V, Sec. I, Par. XV, may be exercised only with respect to the General Assembly's statement of the amount of the authorized expenditure and the purpose for which it is authorized. IV. Did the Crooked River language constitute an appropriation within the meaning of Art. V, Sec. I, Par. XV of the Constitution? This question is so clear that it needs little discussion. The language of Section 27 (C) of the General Appropriations Act, Ga. Laws 1973, p. 1353, "designating and committing" funds for the Crooked River Project, cannot be construed except as an authorization to expend the stated amount for a stated purpose, not more specifically defined than "Crooked River Project." Section 27 (C) of the General Appropriations Act thus appropriates to the Department of Natural Resourees for capital outlay purposes the total sum of $3,226,100, an amount which includes a specific appropriation of $300,000 for the "Crooked River Project." While we do not believe the Crooked River language is subject to any other interpretation, the construction we have given it avoids any potential conflict with the Constitution. 16 Ops. Att'y Gen. 73-132, 73-80, 67-189. Since the General Assembly by that language included both elements of an appropriation, that is, the amount of the authorized expenditure and the purpose for which the expenditure was authorized, it is my opinion that the language involved did constitute an appropriation within the meaning of Art. V, Sec. I, Par. XV. It is thus my opinion that the Governor's veto of the proviso relating to the Crooked River Project constituted a proper and effective exercise of the authority vested by Art. V, Sec. I, Par. XV of the Constitution. v. With respect to your second question, it is my opinion that, for the reasons stated below, the veto of the Crooked River language does have 15 We need not determine here the effect of such an improper use of the veto power on the appropriation against which it is attempted. See Ops. Att'y Gen. 1945-47, p. 628 (1947). 16 Thus, we do not construe the language involved as a "condition" on the expenditure of public funds, except in the sense that an authorization to expend public funds for a specific purpose in an appropriation Act, exemplified by the Crooked River language, authorizes the expenditure for that purpose alone. The Crooked River language, instead, authorizes an expenditure of a specified amount for a specified purpose. It is nothing other than an appropriation. Cf. Irons v. Harrison, 185 Ga. 244, 249 (1937). 377 U73-94 the effect of lowering the total state-fund Fiscal Year 1974 appropriation to the Department of Natural Resources for capital outlay purposes by the amount of the appropriation vetoed. We have previously interpreted Section 27 (C) to appropriate for capital outlay purposes the total sum of $3,226,100, a sum which includes a specific appropriation of $300,000 for the Crooked River Project. The scope of the appropriation veto power is limited to the veto of "any appropriation." The power is a negative one and does not authorize affirmative legislation. Thus, when the Governor exercises the power, he can exercise it only as to the whole "appropriation." His veto applies to both elements of an appropriation. That is, he cannot veto simply the purpose specified in the appropriation for which the expenditure of public funds is authorized. He must veto, or arrest, the "authorization ... to a budget unit to expend, from public funds, a sum of money not in excess of the sum specified, for the purpose specified in the authorization...." Ops. Att'y Gen. n-132, 73-80, 67-189. This clear limitation on the appropriation veto power was not considered inOps. Att'y Gen. 1945-47, p. 628. 17 There, my predecessor concluded that the veto of an allocation, and hence, an appropriation, among various types of road construction following a general appropriation for those purposes left the general appropriation intact. \Vhile that opinion may be correct in the result reached, we cannot follow the reasoning there expressed. In vetoing an appropriation, the Governor necessarily vetoes both the authorization to expend the stated amount and the purpose for which the expenditure is authorized. Thus, it is my opinion that the Governor's veto of the appropriation for the Crooked River Project necessarily had the effect of reducing, by the amount vetoed, the larger capital outlay appropriation in which that specific appropriation was included. CONCLUSION. In sum, therefore, it is my opinion that the Governor's veto of the provisions relating to the Crooked River Project in Section 27 of the General Appropriation Act, Ga. Laws 1973, p. 1353, was a valid exercise of his authority under Ga. Const., Art. V, Sec. I, Par. XV (Ga. Code Ann. 2-3015), and that the effect of the veto was to reduce the capital outlay appropriation to the Department of Natural Resources by the amount of the appropriation vetoed. 17 That opinion read Art. V, Sec. I, Par. XV of the Constitution to permit the Governor to "approve or disapprove, any part of an appropriation bill, even though they all be included in the same Act. The parts given approval will be valid and the parts disapproved will be invalid." I d. at p. 630. (Emphasis added.) If the emphasized words were intentionally employed, the opinion is inconsistent with the constitutional language which permits a veto only of "any appropriation." U73-95 378 UNOFFICIAL OPINION U73-95 (9 /25 /73) Recorders courts; authority relating to public drunkenness: The Summerville Recorder's Court has no legal authority to try and convict for the state offense of public drunkenness. Municipal, police, and recorders courts cannot punish for violation of a state law unless the General Assembly so provides. Hannah v. State, 97 Ga. App. 188, 191 (1958); Stembridge v. Wright, 32 Ga. App. 587 (2) (1924); Shepherd v. City of Jackson, 18 Ga. App. 216 (1) (1916). Ga. Const., Art. VI, Sec. VI, Par. II (Ga. Code Ann. 2-4102), conferred jurisdiction upon police, municipal, and recorders courts to try certain misdemeanor cases in counties where no city or county court exists. See Op. Att'y Gen. U73-30. However, the jurisdiction conferred is limited to trying state traffic offenses. Clarke v. Johnson, 199 Ga. 163 (1945). Public drunkenness (as defined by Ga. Code Ann. 58-608 (Ga. Laws 1905, p. 14; 1912, p. 78; 1962, p. 656) and Ga. Code Ann. 26-2607 (Ga. Laws 1968, pp. 1249, 1315)) is not a traffic offense within the jurisdiction of recorders courts. See Mathis v. Rowland, 208 Ga. 571 (1) (1951). Note that the above is confined to the matter of trial of public drunkenness as a state offense. It is quite possible that a city charter may give the municipality authority to enact ordinances relating to drunkenness and to try violations thereof in recorders courts. UNOFFICIAL OPINION U73-96 (9 /28 /73) Ad valorem taxes on standing timber: A person holding a contract permitting him to cut and remove timber during a stated period is obligated to pay ad valorem taxes on the standing timber as his interest therein may appear on January 1 of the tax year. See Ga. Code 92-104 (1933). A contract to remove timber is in the nature of a deed rather than a lease. See McLendon Brothers v. Finch, 2 Ga. App. 421 (1907). It is fundamental that there can be several separate and distinct estates in the same parcel of land. See Henson v. Georgia Ind. Realty Co., 220 Ga. 857 (1965); Foy v. Scott, 197 Ga. 138 (1943). Therefore, the taxpayer's ownership of standing timber is a taxable interest in land. Ops. Att'y Gen. 1948-49, p. 662 (unofficial), is withdrawn insofar as it conflicts with this opinion. UNOFFICIAL OPINION U73-97 (10/3/73) County officers; removal beyond county: A county surveyor who moves beyond the county thereby becomes ineligible to retain his office. See Ga. Code Ann. 89-101 (as amended by Ga. Laws 1972, p. 868). A county officer must be eligible to vote within his county, 379 U73-99 and according to Ga. Canst., Art. II, Sec. I, Par. III (Ga. Code Ann. 2-703), he becomes ineligible to vote in a county from which he has moved. A county office is vacated by the incumbent ceasing to be a resident of the state or of the county, according to Ga. Code (1933) 85-501. Note, however, that if he ceases to be a resident of the county, this vacancy comes into effect only upon this fact becoming judicially ascertained. See Smith v. Ouzts, 214 Ga. 144, 103 S.E.2d 567 (1958). It is apparent that the method of judicial ascertainment is by quo warranto under Ga. Code (1933) 64-201. Hagood v. Hamrick, 223 Ga. 600, 157 S.E.2d 429 (1967). UNOFFICIAL OPINION U73-98 (10/4/73) MARTA; code of ethics for members of board and employees: MARTA has authority to promulgate rules and regulations according to the creating statute (Ga. Laws 1965, pp. 2243, 2273). Rules and regulations must have the purpose of carrying into effect a law that is already passed. Georgia Railroad v. Smith, 70 Ga. 694, 699 (1883). Further, the rules must not be inconsistent with any state or federal law. Atkins v. Manning, 206 Ga. 219, 220 (1949). It is noted that the proposed rules refer to conflicts of interest as treated in Ga. Laws 1964, p. 261, now superseded by Ga. Laws 1968, pp. 1249, 1345 (see Ga. Code Ann. 26-2306). There are two possible objections to provisions of the proposed code of ethics: one provides that MARTA shall not enter into a contract with a board member unless the contract is made after public notice and sealed bidding. This seems to be inconsistent with Ga. Laws 1956, p. 60 (Ga. Code Ann. 89-916), which would appear to prohibit any such contract regardless of the bidding procedure. The second objection is that there appears to be a proposal to establish within MARTA a "board of ethics" with broad authority. It would appear that since the statute places the government of MARTA in its board of directors (see Op. Att'y Gen. 73-60), the purported delegation of authority to a "board of ethics" may be an unauthorized delegation. See Levine v. Perry, 204 Ga. 323 (1948); K. DAVIS, Administrative Law, 9.06. UNOFFICIAL OPINION U73-99 (10/5/73) Small Claims Court of Washington County; authority of officers: The Small Claims Court of Washington County was created by Ga. Laws 1973, p. 2060, and according to the creating statute the jurisdic.tion includes all powers granted to a justice of the peace. The judge of this court, therefore, has authority to issue criminal warrants, including search warrants. See Ga. Code (1933) 24-1501 and 27-401, and U73-100 380 Ga. Code Ann. 27-303 (Ga. Laws 1966, p. 567). He also has authority to perform marriage ceremonies under Ga. Code Ann. 53-201 (Code of 1933, as amended by Ga. Laws 1956, p. 43; 1960, p. 179; 1965, p. 335). See also Bush v. Wilcox, 223 Ga. 89, 153 S.E.2d 701 (1967). The judge may not issue bastardy warrants. See Ga. Laws 1973, p. 697, repealing Ga. Code Ch. 74-3. Under the creating statute, bailiffs of this small claims court have the same authority as constables of justice courts, and may execute all warrants, summonses, executions and processes directed to them by lawful authority. See Ga. Code (1933) 24-817 (5). The bailiff, therefore, may serve criminal warrants, summonses of garnishment and fi. fas. from the justice courts. As to extraterritorial and special jurisdiction of justices of the peace, see Ga. Code (193:3) 24-1006, 24-1007; proceedings upon executions from justice courts, see 24-1411. As to the authority of constables dealing with processes of the small claims court, the creating statute above referred to authorizes the service of a summons of garnishment from the small claims court by the constable. There is, however, no provision of law for the service of a fi. fa. from this court by a constable. UNOFFICIAL OPINION U73-100 (10/5/73) District attorneys emeritus; leaves of absence not granted: The office of district attorney emeritus is governed by Ga. Laws 1949, p. 780 (Ga. Code Ann. Ch. 24-29A). Note that while this statute refers to 11solicitors general," the term was changed to 11district attorneys" by Ga. Laws 1969, p. 929 (Ga. Code Ann. 24-2930). The eligible district attorney simultaneously resigns as such and is appointed district attorney emeritus. See Ga. Code Ann. 24-2902a, 24-2903a. The appointment is for life, and under Ga. Code Ann. 24-2905a there are certain restrictions upon the person so appointed, among which is a prohibition against criminal practice (any practice 11against the State of Georgia"). There is no provision for a 11leave of absence" from this position, and one wishing to be a district attorney emeritus must take office immediately upon leaving office as district attorney, and must remain in office at all times. For a similar ruling as to judges emeritus, see Op. Att'y Gen. U73-91. UNOFFICIAL OPINION U73-101 (10/10/73) Juvenile courts; committal of youthful offenders to Department of Offender Rehabilitation: It is apparent that a juvenile court cannot commit a juvenile to the Department of Offender Rehabilitation pursuant to the Youthful Offender Act (Ga. Laws 1972, p. 592; Ga. 381 U73-103 Code Ann. 77-345 to 77-360) despite recent amendments to the Children and Youth Act (Ga. Code Ann. Ch. 99-2; Ga. Laws 1963, p. 81; 1972, p. 1251; 1973, p. 563). There would appear to be a possible conflict between Ga. Code Ann. 24A-2401 (which states that a child shall not be committed to an institution used primarily for the execution of sentences upon persons convicted of a crime) and 24A-2304 (which permits a juvenile court to commit a delinquent child to the custody of the Department of Corrections when the child is found not amenable to rehabilitation). (Both of these Code sections are based on Ga. Laws 1971, p. 709.) This apparent conflict has been resolved by the Attorney General to mean that the commitment under 24A-2304 requires a child committed to the Department of Corrections to be held in an institution other than one for the execution of criminal sentences. Op. Att'y Gen. 71-159. The Court of Appeals held in A.B.W. v. State of Georgia, 129 Ga. App. 346 (1973), that the above Code sections were not in conflict, and upheld the court's authority to commit the juvenile to the Department of Corrections. Certiorari is pending in that case at this time. UNOFFICIAL OPINION U73-102 (10/10/73) Town of Braselton; participation in Upper Mulberry River Watershed Work Project: The United States Department of Agriculture has expressed doubt that this town has authority to maintain structures for flood prevention and to do certain other things necessary for participation in this project. While it is true that the town charter (Ga. Laws 1916, pp. 598-616) does not specifically provide for eminent domain or the establishment of a water system, these powers would appear to be given to municipal corporations generally by Ga. Laws 1962, p. 140 (Ga. Code Ann. 69-314). Construing together the charter of the town and the general statutory powers of municipalities, it would appear that Braselton has the necessary authority to participate in this project. UNOFFICIAL OPINION U73-103 (10/16/73) Highways, requirement that loads carried in vehicles on public roads be covered: Ga. Laws 1973, pp. 947, 1095 (Ga. Code Ann. 95A-955 (a)), will be complied with if the load, by virtue of the way the vehicle is constructed, the way the load is loaded, or the way the load is covered, has been prevented from dropping, escaping, or shifting in such a manner as to create a safety hazard under all conditions which can be reasonably anticipated. Thus, a cover is required whenever such a cover is needed to prevent a load from dropping, escaping, or shifting in such a manner as to create a safety hazard. U73-104 382 UNOFFICIAL OPINION U73-104 (10/16/73) Firemen's Pension Fund; eligibility of volunteer firemen: Only actual fires, and not nonfire rescue calls, should be included in reports of participation by volunteer firemen under Ga. Code Ann. 78-1001 (2), based upon Ga. Laws 1955, p. 338. The word "fire" should be given the ordinary signification. See Ga. Code 102-102. While retirement statutes should be liberally construed (see City of M aeon v. Herrington, 198 Ga. 576 (1944); Burks v. Board of Trustees, 214 Ga. 251 (1958)), the persent statute requiring attendance at 75 percent of all drills, fires, etc., regardless of notice to the individual, places the retirement benefits of some in jeopardy. Remedial legislation is suggested. If a volunteer firemen over 50 years of age wishes to come into the fund under the "open enrollment statute" (Ga. Laws 1973, p. 186), it does not matter when he obtained the requisite 13 years of creditable service; he could acquire some of it after reaching age 50. UNOFFICIAL OPINION U73-105 (10/18/73) District attorneys; duties correlated with those of solicitors of state courts: The district attorney and the state court solicitor in Cobb County both have authority to prosecute misdemeanors, each in his own court. This is a concurrent responsibility, and the only restriction upon it would appear to be that the same person could not be prosecuted for the same crime in both courts. The district attorney has a constitutional status, and, while inferior courts with misdemeanor jurisdiction may be established, the jurisdiction of the superior court over such offenses cannot be abolished by statute. See Williams v. State, 138 Ga. 168, 74 S.E. 1083 (1912); Porter v. State, 53 Ga. 236 (1874); Mullis v. State, 114 Ga. App. 526, 151 S.E.2d 837 (1966); Nobles v. State, 81 Ga. App. 229, 58 S.E.2d 496 (1950); Ga. Const., Art. VI, Sec. I, Par. I (Ga. Code Ann. 2-3601); Art. VI, Sec. IV, Par. I (Ga. Code Ann. 2-3901); Art. VI, Sec. XVIII, Par. I (Ga. Code Ann. 2-5301); Art. VI, Sec. XI, Par. II (Ga. Code Ann. 2-4602). See also Op. Att'y Gen. 67-370. Local legislation creating the Civil and Criminal Court of Cobb County will be found in Ga. Laws 1964, p. 3211; 1968, p. 2948; 1969, p. 2420. For conversion of courts of this type into "state courts," see Ga. Laws 1970, p. 679 (Ga. Code Ann. 24-2101a et seq.). The solicitor for the State Court of Cobb County is specifically provided for in Ga. Laws 1971, p. 3605. See also, Ga. Code Ann. 24-2106a (Ga. Laws 1970, p. 679); 24-2615 (1933); 24-2908 (4) (1933); 27-704 (amended by Ga. Laws 1972, p. 623). 383 U73-109 UNOFFICIAL OPINION U73-106 (10/30/73) State Department of Transportation; funds for nonhighway public transit project: There is no state legislation which prohibits the Department of Transportation from receiving and administering the federal funds for a nonhighway public mass transit project as provided in Section 142 of the Federal Highway Act of 1973, Public Law 93-87. Section 142 provides that responsible local officials of urban areas may request of a state highway department that their federal share of funds from the federal-aid urban system be used for a nonhighway public mass transit project in lieu of a highway, and, if certain express determinations are made, the funds shall be so used. Ga. Laws 1973, pp. 947, 975 (Ga. Code Ann. 95A-302 (g)), provides that the Department of Transportation is the proper state agency to discharge all duties imposed by Congress alloting federal funds for transportation purposes, and that the department has authority to accept and use such funds. UNOFFICIAL OPINION U73-107 (11/1/73) Court reporters; death before certification of record: Normally court reports affix certifications to transcripts to the effect that they are true, complete and correct. Ga. Laws 1957, p. 224 (Ga. Code Ann. 24-3105). If a reporter dies before completing a transcript, another reporter may make the transcript and certify it. People v. Chessman, 218 P.2d 769, 772 (Cal. 1950). Such a transcript would be subject to the judge's power of correction. See Ga. Code Ann. 24-3105. If a transcript is so made, certified and approved, there would be no need for a new trial. Moore v. State, 61 P.2d 1134, 1136 (Okla. 1934); State v. Evans, 258 P. 845, 850 (vVash. 1927). UNOFFICIAL OPINION U73-108 (11/1/73) Malt beverages; possession and sale: No one may sell, offer for sale, or possess for the purpose of selling, malt beverages unless he has obtained a license. The maximum quantity of such beverage which may be possessed without payment of tax thereon is 1,440 fluid ounces. Misdemeanor punishment is provided for violations. Ga. Laws 1937, p. 148; 1971, p. 817 (Ga. Code Ann. 58-726). UNOFFICIAL OPINION U73-109 (11/6/73) Grand juries; effect of recommendation as to transportation of alcoholics: The responsibility for setting the policy for the transporta- U73-110 384 tion of alcoholics to Central State Hospital falls on the county governing body and the county health department. Any recommendation by the grand jury on this subject would not be binding on any individual. Alcoholics have the same rights as those afforded the mentally ill. See Ga. Code Ann. 88-406.5 (Ga. Laws 1971, p. 273); Ga. Code Ann. Ch. 88-5, especially 88-502.14 (Ga. Laws 1969, p. 505). UNOFFICIAL OPINION U73-110 (11/6/73) Witnesses; fees: Ga. Laws 1966, p. 502, as amended (Ga. Code Ann. 38-801), provides an $8 per diem witness fee for those witnesses who are members of either the Georgia State Patrol, the Division of Investigation, a municipal or county police force, or for any deputy sheriff. All other witnesses may receive $4 per diem. UNOFFICIAL OPINION U73-111 (11/8/73) Grand jurors; appointment to county board of tax equalization: The qualifications for members of county boards of equalization are similar to those of a grand juror. See Ga. Laws 1972, p. 1094, amending Ga. Code Ann. 92-6912. Note that according to this section anyone who is exempt from jury duty under Ga. Code Ann. 59-112 (amended by Ga. Laws 1967, p. 725) is ineligible to serve as a member of the board of equalization. The fact that a person is selected as a grand juror does not remove his name from the current jury list. See Ga. Code Ann. 59-106, 59-114, 59-115 (Code of 1933, as amended). The possibility of conflict of interest between the grand jury and the board would not constitute a disqualification for service upon either body, but would be a question for the court at the time of jury selection. Deutsch v. M cGurrin, 241 N.Y.S.2d 393 (1963), aff. 258 N.Y.S.2d 323 (1965). As a general rule all persons have the right to hold public office and cannot be deprived of this right without a disqualification specially declared by law. McLendon v. Everett, 205 Ga. 713, 55 S.E.2d 119 (1949); Patten v. Miller, 190 Ga. 123, 8 S.E.2d 757 (1940). For definition of "public officer" and "public office," see M cDujjie v. Perkerson, 178 Ga. 230, 234 (1934); Lentz v. City Council of Augusta, 48 Ga. App. 555 (1934). UNOFFICIAL OPINION U73-112 (11/9/73) Assistant district attorneys as "practicing attorneys" for county law library purposes: Assistant district attorneys are practicing attorneys within the meaning of Ga. Laws 1971, p. 180, as amended (Ga. Code Ann. Ch. 23-31). Therefore, an assistant district attorney is 385 U73-115 eligible to serve as a member of the board of trustees of a county law library. The fact that an assistant district attorney is a practitioner is apparent from a reading of Ga. Code Ann. 9-401 (Ga. Laws 1931, p. 191; 1937, p. 753), defining the practice of law. UNOFFICIAL OPINION U73-113 (11/9/73) Superior court clerks; fees for furnishing records to county tax assessor: In accordance with Ga. Code Ann. 24-2714, subsection 5(9), 24-2715 (14) (Code of 1933, as amended), if a tax assessor's office requires copies of any recorded instruments, the clerk of the superior court must furnish the copies requested, provided that the proper legal fees are paid by the tax assessor's office to the clerk of the superior court. UNOFFICIAL OPINION U73-114 (11/13/73) Bonds in judicial proceedings as public records: The clerks of state1 or superior courts are required to record all bonds given in any judicial proceeding in a book of final records. See Ga. Code Ann. 24-2715 (2) (Code of 1933, as amended). There appears to be no clear definition of "public records" set up by either the statutory or case law in Georgia. It appears, however, that a public record is generally a record which is required by statute to be kept in a particular manner. See Linder v. Eckard, 152 N.W.2d 833 (1967); People v. Olson, 42 Cal. Rptr. 760 (1965). Under the Georgia open records statute, all officially kept records are open to public inspection unless otherwise specifically provided by law. Ga. Laws 1959, p. 88 (Ga. Code Ann. 40-2701). There is no statute prohibiting the examination of clerk's records as above referred to, and they are, therefore, required to be open to public inspection. 1 Code 24-2715 as published still refers to clerks of "city courts." This term, however, has been changed to "state courts" by Ga. Laws 1970, p. 679 (Ga. Code Ann. 24-2102a). UNOFFICIAL OPINION U73-115 (11/15/73) Lotteries: Gift-enterprise and sweepstake schemes constitute lotteries, and are prohibited in Georgia. Lotteries are prohibited in Georgia both by the Constitution, and by statute. See Ga. Canst., Art. I, Sec. II, Par. IV (Ga. Code Ann. 2-204); Ga. Code Ann. 26-2701 (b) and (d), based on Ga. Laws 1968, pp. 1249, 1317. It is apparent that all, or nearly all, commercial or promotional schemes which may be employed U73-116 386 run contrary to the Georgia law. See Tierce v. State, 122 Ga. App. 845 (1970). The fact that an individual may have a status to win a prize without making a purchase does not take the scheme out of the category of lotteries. This for the reason that the very participation in the enterprise is in the nature of a consideration flowing to the promoter of the scheme. Boyd v. Piggly Wiggly, 115 Ga. App. 628 (1967). UNOFFICIAL OPINION U73-116 (11/21/73) Ad valorem taxes; procedure for collection: The legal description of lands after levy should be prepared as described in Op. Att'y Gen. 69-250. Ga. Code 92-5104 (1933) states that "costs" of the execution are charged to the taxpayer. This would appear to include attorneys' fees. The property to be levied upon should be pointed out as indicated in Op. Att'y Gen. 67-369. The tax commissioner could be compelled to disclose the tax fi. fas. for the preceding year to the county commissioner under Ga. Code 92-4906 (1933). When property cannot be located, taxes can be collected by garnishment. See Ops. Att'y Gen. 1954-56, p. 720; 66-21; 69-388. Errors in collection and overpayments may be rectified by authorization to the tax collector by the county commissioner. See Ga. Code Ann. 92-3812, 92-6502 (1933 Code, as amended). A county cannot hire any person other than the sheriff or the tax commissioner (as ex-officio sheriff) and their lawful deputies to collect taxes by levy and sale. See Ga. Code Ann. 92-4901.1 (Ga. Laws 1972, p. 822). If an official charged with collection of taxes fails to perform, he may be subject to the several laws dealing with nonfeasance by officers. He may also be subject to mandamus. See Op. Att'y Gen. U73-16; Hadden v. Pierce, 212 Ga. 45 (1953). Under certain circumstances, the state could join in a local action to enforce tax collection, but such action is not favored as a matter of policy. Excessive levies can be attacked by affidavit of illegality under Ga. Code 92-3810 (1933). It is the tax commissioner's duty to locate new addresses of taxpayers who have moved under his general responsibility to "maintain true and proper records." Under Ga. Code Ann. 92-6912 (1933 Code, as amended), records dealing with arbitration of assessments, as long as the appeal is to the local board of tax assessors, will remain with that board. Upon further appeal to the county board of equalization, the records will be certified and transferred to this latter board. On issuance of tax fi. fas., generally, see Ops. Att'y Gen. 1962, p. 571. UNOFFICIAL OPINION U73-117 (11/21/73) Traffic violations; jurisdiction: In counties having no state court, municipal courts have jurisdiction of all state traffic offenses occurring 387 U73-119 within corporate limits and the courts of ordinary have jurisdiction of all such offenses occurring outside of corporate limits without regard to the character of the arresting officer. As to adoption of municipal regulations in accord with those of the state, see Ga. Laws 1953, Nov.-Dec. Sess., p. 556; 1955, p. 736; 1973, p. 98 (Ga. Code Ann. 68-1680). As to jurisdiction of municipal courts and ordinaries, see Ga. Laws 193738, Extra. Sess., p. 558 (Ga. Code Ann. 92A-502, 92A-503, 92A-511). See Op. Att'y Gen. 73-49. Constitutional provisions, see Ga. Const. 1877, Art. VI, Sec. VI, Par. II, as amended by Ga. Laws 1937, p. 1117 (Ga. Code 2-3402); Ga. Const. 1945, Art. VI, Sec. VI, Par. II (Ga. Code Ann. 2-4102). As to interpretation of a new Constitution in the light of the old one, see Thompson v. Talmadge, 201 Ga. 867, 885 (1947). On construction of statutes, see Ga. Code 102-102; Western & Atlanta R. R. v. Turner, 72 Ga. 292, 296 (1884); Ryan v. Chatham County, 203 Ga. 730, 732 (1948); Rosser v. Meriwether County, 125 Ga. App. 239, 242 (1971); Spence v. Rowell, 213 Ga. 14.5, 150 (1957); Tyler v. Huiet, 199 Ga. 845, 851 (1945). UNOFFICIAL OPINION U73-118 (11/28/73) State Environmental Protection Division; issuance of pollution control operating permits: Ga. Code Ann. 88-903 (a) (5) (Ga. Laws 1967, p. 581, as amended) authorizes the Department of Natural Resources to adopt regulations prohibiting the operation of any facility from which air contaminants are or may be emitted unless the person desiring to operate same has obtained a permit therefor from the Director of the Protection Division. Pursuant to this authority, the board adopted Rule 391-3-1-.03, implementing the above. "Facility" is defined by such Rule as " ... a stationary source or apparatus which emits any compound to the atmosphere which may result in a condition of air pollution ... " Based upon the above language, the terms "source" or "apparatus" are flexible enough to provide the Director of the Protection Division with discretionary authority to issue either one air quality control operating permit covering all air contaminant emission sources located within the total facility or separate permits covering individual point sources located within such facility. UNOFFICIAL OPINION U73-119 (11/28/73) Municipal corporations; publication of notice of amendment to employees retirement plan: A municipal corporation which adopts or amends a retirement plan for its employees must publish a notice of intent pursuant to Ga. Laws 1951, p. 116; 1965, p. 421 (see Ga. Code Ann. Chs. 69-10, 69-17), particularly as amended by Ga. Laws 1973, p. 778. Retirement benefits are not gifts, but are compensation. U73-120 388 Trotzier v. McElroy, 182 Ga. 719 (1936); Cole v. Foster, 207 Ga. 416 (1950); Carter v. Haynes, 228 Ga. 462 (1971); Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402 (1)). UNOFFICIAL OPINION U73-120 (12/5/73) Georgia Criminal Justice Act: A judge of the recorders court is engaged in the "practice of criminal law" for the purposes of the Georgia Criminal Justice Act, Ga. Laws 1968, p. 999 (Ga. Code Ann. Ch. 27-32). This is true, even though the sitting as a judge might not in the ordinary sense of the word constitute "practice of criminal law" since a recorder does deal with criminal matters. A definition may vary according to the circumstances of the case. See Gazan v. Heery, 183 Ga. 30, 42 (1936). It is apparent, therefore, that a public defender may not serve as a recorder. Under the Georgia Criminal Justice Act, once a superior court has set up a plan for the representation of indigent persons in all courts, the courts of the entire county will be governed by such plan. Until such time as the superior court has set up the plan, each court may set up its own plan. UNOFFICIAL OPINION U73-121 (12/10/73) Dispossessory proceedings: In a dispossessory proceeding under Ga. Code Ann. 61-302 (amended by Ga. Laws 1970, p. 968; 1971, p. 536), the summons to be issued pursuant to affidavit filed under Ga. Code (1933) 61-301 shall be addressed to the defendant, that is to say, the tenant holding over, rather than to the sheriff or other officer making service. This is unlike the provisions of the former law, whereunder the sheriff was issued a warrant for delivery of the property to the plaintiff. The fact that the summons is directed to the tenant is bolstered further by Ga. Code Ann. 81A-104 (b) (Ga. Laws 1966, p. 609, as amended), which indicates that all summons issued under the CPA shall be directed to the defendant. UNOFFICIAL OPINION U73-122 (12/11/73) Bail in traffic offenses: A uniformed member of the Georgia State Patrol may accept a guaranteed arrest bond certificate in lieu of certain traffic offenses. Ga. Laws 1960, pp. 289, 675 (Ga. Code Ann. 56-2438). See also, Ga. Laws 1953, p. 331, as amended (Ga. Code Ann. 27-508). An authorized officer of a county sheriff's department may also accept cash or guaranteed arrest bonds in lieu of bond under the law, but this provision is not mandatory and is left as a matter of policy to the individual county. Note also Ga. Laws 1973, p. 435, which allows an arresting officer to accept a drivers license as bail in certain cases. 389 TABLES OF CONSTITUTIONAL PROVISIONS, GEORGIA LAWS AND CODE SECTIONS Table 1 United States Constitutional Provisions Cited Table 2 Georgia Constitutional Provisions Cited Table 3 Georgia Laws Cited Table 4 Georgia Code Annotated Sections Cited 391 TABLEt UNITED STATES CONSTITUTIONAL PROVISIONS CITED OP. No. Art. I, Sec. X, Cl. 1 .......................... 73-121, 73-128 Art. I, Sec. X, Cl. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-121 TABLE 2 GEORGIA CONSTITUTIONAL PROVISIONS CITED OP. No. Art. I, Sec. I, Par. I ................................. 73-155 Art. I, Sec. I, Par. IV ............................... U73-66 Art. I, Sec. II, Par. IV ............................. U73-115 Art. I, Sec. III, Par. I ......................... 73-21, 73-186 Art. I, Sec. III, Par. II .............................. 73-128 Art. I, Sec. VI, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-3 Art. II, Sec. I ....................................... 73-58 Art. II, Sec. I, Par. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-97 Art. II, Sec. III, Par. I. .............................. 73-93 Art. III, Sec. VII, Par. III. ........................... 73-93 Art. III, Sec. VII, Par. IX ....... 73-80, 73-122, 73-132, 73-147, 73-152, 73-174 Art. III, Sec. VII, Par. XI ........................... U73-94 Art. V, Sec. I, Par. XI. ................. 73-61, 73-137, 73-156 Art. V, Sec. I, Par. XV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-94 Art. V, Sec. II, Par. II ............................... 73-122 Art. V, Sec. IV, Par. I ......................... 73-35, 73-122 Art. V, Sec. V, Par. I ............ 73-57, 73-72, 73-156, U73-73 Art. V, Sec. X, Par. II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-30 Art. VI, Sec. I, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-105 Art. VI, Sec. IV, Par. I . . . . . . . . . . . . . . . . . . . . . U73-13, U73-105 Art. VI, Sec. VI, Par. II .......... 73-29, 73-40, 73-49, U73-22, U73-30, U73-80, U73-95, U73-117 Art. VI, Sec. XI, Par. II ........................... U73-105 Art. VI, Sec. XVIII, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . U73-105 Art. VII, Sec. I, Par. II .......... 73-86, 73-87, 73-105, 73-116, 73-120, 73-132, 73-145, 73-154, 73-167, 73-186, U73-52, U73-53, U73-78, U73-119 Art. VII, Sec. I, Par. IV ......... 73-38, 73-52, U73-89, U73-93 Art. VII, Sec. II, Par. I. ................ 73-83, 73-116, 73-186 Art. VII, Sec. II, Par. III ............................ 73-120 392 GEORGIA CONSTITUTIONAL PROVISIONS-Continued OP. No. Art. VII, Sec. III, Par. I. . . . . . . . . . . . . . . . 73-27, 73-152, 73-162 Art. VII, Sec. III, Par. III ............................ 73-27 Art. VII, Sec. III, Par. IV ...................... 73-87, U73-2 Art. VII, Sec. III, Par. V ............................ 73-126 Art. VII, Sec. IV, Par. II . . . . . . . . . . . . . . . . . . . . U73-52, U73-67 Art. VII, Sec. VI, Par. I ............... 73-14, 73-122, U73-25 Art. VII, Sec. VII, Par. II ........................... U73-81 Art. VII, Sec. VIII, Par. I. .......................... U73-75 Art. VII, Sec. IX ................................... U73-94 Art. VII, Sec. IX, Par. I. ........ 73-80, 73-132, 73-147, 73-152, 73-174, U73-94 Art. VII, Sec. IX, Par. II .................... 73-152, U73-94 Art. VII, Sec. IX, Par. IV ............. 73-120, 73-122, 73-133, 73-145, U73-94 Art. VIII, Sec. V, Par. I ......... 73-79, 73-136, U73-8, U73-61 Art. VIII, Sec. IX, Par. I ............................ U73-8 Art. VIII, Sec. IX, Par. II . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-8 Art. VIII, Sec. XII, Par. I ............ 73-136, U73-61, U73-81 Art. IX, Sec. III, Par. I. ............................. 73-10 Art. XI, Sec. II, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-83 Art. XI, Sec. III, Par. I. ............................U73-57 Art. XII, Sec. I, Par. I ............................... 73-41 Art. XII, Sec. I, Pars. I to IV . . . . . . . . . . . . . . . . . . . . . . . U73-70 Art. XII, Sec. I, Par. III. ............................ 73-35 Art. XIII, Sec. I, Par. I ............................. U73-70 Art. XIV, Sec. I, Par. I ............................... 73-80 Art. XV, Sec. II-A, Par. III . . . . . . . . . . . . . . . . . . . . . . . . . U73-37 393 AcT PAGE TABLE 3 GEORGIA LAWS CITED OP. No. 113. . . . . . . . . . . . . . . . G~G:aL. ,L;~a~w.si816855.766. . . .. . . .. . ...... 73-49 .... U73-94 11 .................. G~. :r.;.~; i87i:72 ..............U73-94 8 ...... G~: L,;~~ i87i . . . . . . . . . . 73-65 388 ....... G~: t,;~~ .i878-79 ............. . . . . . . 73-49 372...... G~: t,;~~ iSS.:i-83................ 73-49 534 535 ........... ... .. .. . ..G.~..::L:a:w::s :::::::: 1888-89 : .. .. .. .. .. .. .. . ... . . 73-49 U73-94 G~: L,;~~ 15 ...... 0 i889 . . ... U73-22 G~: t,;~~ 120 ....... 0 0 .i89i ... 73-35 i902. .. 121 ct seq. G~. :r.;,;.~ 0 0 {;73-3 108 .................. G~: L,;~~ "i905... 0 0 0. 0 U73-95 G~: t,;~~ 14 ........ 0 0. 0. 0 0. 1009... . ..... 73-31 :r.;.;.:. 123...... G~. i9ii. .. 0 73-35 isi2 137 et seq. (i~. L~~~ . . . . . 0. 0 G~. ~;.~ i9i:i . 78 . . . . . . . . . . . . . . . . 0. 0. 0 0 . .0 ........................ .U7733-1-9635 114:: . 73-141 i9i5. .... 101, 108 .............. G~.~~s 0 0 U73-8 G~: La:.;.~ 848 ... .1iii6... U73-50 0 9 0. 0. 0 0 u 34 . . . . . . . . . . . . . . . ............ . r73-1o2 0 0 0... 0 0 G~. 598 to 616. Laws 1918 73-141 173, 196 .............. . 0 0 0 0 0 0 0 0 0. 0 0 0 394 AcT PAGE GEORGIA LA'VS-Continued OP. No. Ga. Laws 1919 ...... 73-44 135, 199 ............. ...................................7.3-14. : .U.7733--6719 22888'83.2.3. . . ...... . . . . . .. . . 387 ............. ...... . . . . . . . . . ..... G.:. . . .. . .. . .. .-.~w. s. .1.9.2.0. . . .. .. . . .. . . . . . .. ... .. .. . . 73-33 . . U73-59 132 ............................. ................................... 7733--114314 211336227'.1....3....6....................................."..G..~...:. ........ . Laws .. ...... ........ . 1922 .......... 'u73-61 . ....... . U73-71 G~: L;.~ n4 ........ .19230 0 0. 0 0 73-79 G.:.-~~~- 13o ................... 0 0 i925 ...... 73-32 165................... G.:.~..;.;. i927 . .. . . . . . . . U73-82 226 ....................... ...................... . ................ 73-49 401. .... G.:.Laws 1931 U73-112 ~~~- 191 . . . . . . . . . . . . . . . . . . . . . . . . . ......................... .73-85 199: : : : ........ . . .. .. .. G.:. i9:i3.. . . . . U73-94 ....................... '73-87, 73-176 !3, 14 ........... . ... . .................. ::: : ...... 73-314711 G~: 1181..5. . . ..................... ........................... .U7 - 128 ......... ........ i:.;.ws 1935 ..... 73-120 85, 87 ................ Ga.-~;.:81 9 30 70. 0 ...... U73-108 148.................... . . 230, 237.................. ...... ...... .... .... .... . ......... .. .. ..............7...3..'4.8... 7733--112225 73-168 322624,. 2. 7. 5. ..................................... .: . . .. . .. .. .. .. . . .. . - , ................... 73-166 73-123 0 0 0 322,327 .............. ::..... . .......... :::73-123 322, 329 . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . : ... 73-184 322, 333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : ...... 73-9 322, 337 ............ : ........................ :73-56, 73-67 322, 340 ........... : ............................... 73-163 345605353.e...t..s..e..q.......... .. .. .. ....... . 0 0 0. 0 ....... 0. .0. ................. 0 . U73-73 0. 395 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1937-Continued 746, 747 ........................................... U73-19 753 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-112 864, 866 ............................................ 73-63 896 ................................................. 73-79 Ga. Laws 1937-38, Extra. Sess. 77, 91. ............................................ 73-103 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-49 297, 298 ........................................... 73-129 558 ........................... 73-18, 73-29, U73-58, U73-117 617 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-121 Ga. Laws 1939 370 ............................................... 73-129 Ga. Laws 1941 300, 301 ............................................ 73-13 449 ............................................... U73-22 Ga. Laws 1943 18 ................................................. U73-5 84 ................................................ U73-94 185 ................ 73-22, 73-54, 73-61, 73-109, 73-137, 73-156 196, 201 ........................................... 73-123 363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-158 640 .................................. 73-45, 73-173, U73-78 Ga. Laws 1945 117, 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-48 343, 344 ........................................... 73-185 362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-75, U73-10, U73-91 1199 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-90 Ga. Laws 1946 12, 13 ............................................. U73-89 206 ............................................... U73-61 687 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-180 787, 790 ........................................... U73-94 Ga. Laws 1947 668, 669 ............................................ 73-88 1134 .............................................. U73-54 Ga. Laws 1949 138 et seq............................. 73-39, 73-179, U73-17 440 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-43 547 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-43 780 .............................................. U73-100 1161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-59 396 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1949-Continued 1161, 1162 ......................................... 73-141 1177 ................................................. 73-9 1192 .............................................. U73-59 Ga. Laws 1950 50 ................................................ U73-72 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-91 224 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-115 443 ............................................... U73-93 Ga. Laws 1951 116 ....................................... U73-77, U73-119 360 ................................................. 73-83 360, 363 ........................................... U73-18 516 ................................................ 73-132 565 .............................. 73-19, 73-28, 73-49, 73-168 699 ................................................ 73-162 789 et seq.......................................... 73-111 815, 816 ........................................... 73-129 828, 829 ........................................... 73-161 Ga. Laws 1952 46 ................................................ U73-77 177 ................................................. 73-91 184 et seq........................................... 73-64 201 ............................................... U73-63 Ga. Laws 1953, Jan.-Feb. Sess. 135 ................................................ 73-183 234 ................................................ 73-129 331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-122 587 ................................................. 73-79 602 .......................................... 73-9, U73-65 613 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-118 Ga. Laws 1953, Nov.-Dec. Sess. 256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-67 271, 272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-15 379 et seq.......................................... U73-40 556 .......................... 73-40,73-168, U73-82, U73-117 556 et seq.................................... 73-29, 73-160 556, 575 ..................................... 73-49, U73-34 Ga. Laws 1955 10 ................................................. 73-15 10, 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-15 397 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1955-Continued 10, 101 ............................................. 73-95 151 ............................................... U73-80 176, 178 ........................................... 73-129 309, 314 ........................................... 73-174 338 .............................................. U73-104 339 ........................................ U73-47, U73-79 431 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73-44 483 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-35 483, 489 ..................................... 73-35, 73-122 483, 506 ............................................ 73-35 483, 514 ........................................... '73-35 483, 516. ' ...... ' ' .................................. 73-35 659 ................................................ U73-6 736 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-40, U73-22, U73-117 3109 ......... ' .... ' ................................. 73-49 Ga. Laws 1956 27 ................................................. U73-7 27' 32 . . . . .............. ' . ' . ' ........... ' . . . . . . . ..... 73-1 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-99 60 ................................... 73-86, 73-155, U73-98 161 ................. 73-41, 73-42, 73-72, 73-82, 73-117, 73-138, 73-148, 73-153, 73-156, U73-73 195 ....................... ' ........... ' ' . . . . ' . ' . . . . . 73-98 368 ............................................... U73-47 543 .... ' .. ' . . . ... ' . . . . . . . ' . . . . . . . ' . . . . . . . . . . .73-19' 73-168 580 ...................... ' . ' ....... ' . ' .............. 73-22 747 . . . . . . . . . . . . . . . . . . . . . . . . ' ' . . . . . . . . . . . . . . . . . . ' ... 73-172 Ga. Laws 1957 129 ................................................ 73-127 134 . . . . . . . . . . . . . . . 73-25, 73-81, 73-100, 73-159, 73-169, 73-177 224 .............................................. U73-107 273 ............................................... U73-90 477 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-54, 73-72 647, 648 ............................................. 73-9 Ga. Laws 1958 174 ......................................... 73-135, 73-141 694 ................................................. 73-19 Ga. Laws 1959 24 .................................................. 73-22 25 ................................................. 73-121 398 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1959-Continued 88 . . . . . . . . . . . . . . . . . . . . 73-55, 73-77, U73-49, U73-84, U73-114 89, 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-81 325 ............................................... U73-33 2580, 2582 ........................................... 73-41 Ga. Laws 1960 7, 32 ............................................... 73-103 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-91 179 ............................................... U73-99 289 et seq..................................... 73-90, 73-94 289, 294 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-74 289, 329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-78 289, 503 ............................................ 73-74 289, 571 to 576 ...................................... 73-74 289, 576 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-94 289, 675 .......................................... U73-122 289, 758 ............................................ 73-94 880 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-73 Ga. Laws 1961 35 .................................................. 73-14 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-72 47 ........................................... 73-30, 73-122 147 ................................................ U73-5 417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-47 517 ............................................... U73-32 Ga. Laws 1962 17 ................ 73-14, 73-80, 73-125, 73-132, 73-147, 73-152, U73-2, U73-94 140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-44, U73-77, U73-102 459 et seq........................................... 73-56 473 ................................................. 73-84 534 ................................................ 73-84 ,644. . . . . . . . . . . . . . . . . . . . . . . . . . . . .................... 73-17'6 656 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-95 736 ............................................... U73-48 752 ............................................... U73-94 Ga. Laws 1962, Extra. Sess. (Sept.-Oct.) 37 to 44 ........................................... U73-32 Ga. Laws 1963 42 ................................................ U73-17 399 GEORGIA LAWS--Continued AcT PAGE OP. No. Ga. Laws 1963-Continued 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-141 81. ........................................ U73-7, U73-101 368 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-43 415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-90 588 ................................................. 73-28 593 ................................................ 73-168 2896, 2897 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-69 Ga. Laws 1964 3 .................................................. 73-136 3, 14 ................................................ 73-79 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-98 338 ................................... 73-32, 73-90, U73-59 416 et seq.......................................... 73-147 416, 433 ........................................... 73-188 416, 434 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-122 476 ............................................... U73-22 483 ................................................ 73-33 491, 492 ............................................ 73-41 494 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-42, 73-148 499 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-4, U73-21, U73-81 499 et seq...................................... 73-67, 73-71 499, 500 ............................................ 73-71 499, 505 ............................................ 73-24 499, 507 ............................................ 73-24 499, 508 ............................................ 73-16 499, 509 ....................................... 73-24, 73-43 499, 518-523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-24 499' 531 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 73-43 499, 547 ............................................ 73-43 499, 560 ........................................... U73-84 499, 581 ............................................ 73-71 499, 589 ........................................... U73-65 499, 611 ............................................ 73-24 499, 612 ............................................ 73-24 499, 612, 613 ........................................ 73-24 499, 613 ........................................... U73-45 499, 637 ..................................... 73-107, 73-181 499, 645 ........................................... 73-181 741 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-75 3211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-105 400 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1964, Extra. Sess. 26 ......................................... U73-49, U73-83 26, 28 ............................................. U73-28 26, 46-50 .......................................... U73-31 26, 61 ............................................... 73-58 26, 64 .............................................. 73-58 Ga. Laws 1965 18, 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-153 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-17 283 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 73-32' 73-90 298 ........................................ U73-77, U73-88 335............................. . ............... U73-99 421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-119 478,480 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-17 626, 627 ........................................... 73-129 2029, 2031. ......................................... 73-47 2243 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-60 2243, 2273 ......................................... U73-98 Ga. Laws 1966 70, 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-34 180 ................................................. 73-98 207 ................................................. 73-4 296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-77, U73-88 328, 329 ........................................... 73-147 370 ................................................. 73-23 430, 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-26 440 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-1 457 .......................................... 73-3, U73-23 502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-110 546, 549 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-48 562 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-45 567 ................................ U73-14, U73-34, U73-99 590, 601 ............................................ 73-11 609 .............................................. U73-121 998 ................................................ 73-132 1024 ................................................ 73-30 2107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-29 Ga. Laws 1967 26, 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-16 259 ............................................... U73-17 286 ............................................... U73-18 401 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1967-Continued 296 ................................................ 73-131 296, 312 ............................................ 73-59 296, 346 ........................................... U73-63 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-77 581 ....................................... 73-161, U73-118 595, 596 ............................................ 73-32 708 ................................................. 73-10 708, 710 ............................................ 73-10 722, 724 ............................................ 73-76 725 .............................................. U73-111 844 ................................................. 73-37 Ga. Laws 1968 9 ................................................. U73-55 199 ............................................... U73-17 275 ............................................... U73-10 275, 276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-75 324 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-7 415 ................................................. 73-73 430 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-168 441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-47 448, 449 ........................................... U73-34 448, 452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-34 465, 466 ............................................ 73-32 497' 501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-35 565 ................................................ 73-180 565 et seq.......................................... 73-140 565, 707 ........................................... 73-140 885 ............................................... U73-49 999 .............................................. U73-120 1044 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .'73-44 1148 et seq......................................... U73-71 1155, 1156........................................... 73-72 1249 ................................................ 73-93 1249 et seq.......................................... 73-66 1249, 1263 ..................................... 73-4, U73-1 1249, 1269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-128 1249, 1271 ......................................... 73-128 1249, 1277 ................................... 73-24, U73-12 1249, 1307 ......................................... 73-155 1249, 1309 ......................................... U73-85 402 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1968-Continued 1249, 1313 ... 00. 0000. 00. 0000000000... 000. 000. 00000073-184 1249, 1315 000000. 0000000000. 0. 00000000. 000000000000U73-95 1249, 1317 00. 00000000000000. 0. 0000. 0000. 0000000000U73-115 1249, 1318 00.. 0. 0000. 000000. 00.... 000.. 0.. 0. 0000000073-81 1249, 13230 0.... 0.. 0.. 000... 00........ 00.. 0.. 0000. 00U73-1 1249, 13240 00000000000. 000.. 000. 000..... 0. 00.. 0.. 000U73-1 1249, 1325. 0000. 0000. 00. 000000. 000.. 0. 0... 0. 073-184, U73-1 1249, 1327 0000000000. 000000000000.. 0000... 00. 000000073-37 1249, 13310 000000. 00. 000000000000.. 000000. 00. 000000.73-37 1249, 1337 000000. 00... 0000.. 0. 0... 00. 0. 0000. 0. 00000U73-41 1249, 1345. 0. 00000... 000000. 00....... 0.. 00000000.. 0U73-98 1352 000. 0... 00. 0... 0. 0.... 00.. 0..... 00000000000. 0. 073-181 1369. 000000. 0. 00. 0. 00. 0. 00000. 00000000000. 0. 0. 0000. 073-55 1399 00. 0. 0.... 0000. 0000000. 000. 000000.. 073-7, 73-72, 73-104 2720 0000000000000.. 00.. 0. 0... 0... 000. 0000. 000. 00. 0U73-62 2948 0000.. 0000. 0. 00.. 0. 0..... 0. 000000000. 0. 0. 0000U73-1 05 Ga. Laws 1969 41 .......... 0...... 0. 00.... 0......... 00.. 00.. 0. 0.. U73-74 113, 1140 000000000000000000. 00000000. 00.. 0. 000000OU73-90 137 et seq.. 000. 000000000. 000000. 0000000. 00. 0. 00000073-175 152 000. 0. 000. 0. 000. 0.. 000000000. 00000000.. 0. 000000. 73-180 152, 201 .. 0000000.. 00. 000.... 0.. 0000.. 000000. 00000073-140 2280 000.... 0. 0..... 0. 0.. 0.. 00. 0.. 00. 000000. 00000000073-95 505 0. 0. 00. 0. 00..... 00. 00000. 000... 0U73-4, U73-46, U73-109 505 et seq. 0. 0.. 000. 0.. 0000000000. 000. 00. . 0. 0. 00. 000073-43 505, 506. 0000. 00000000000000. 00000. 0000.. 0. 0. 000. 00.73-54 505, 512 00000. 0... 0000000000. 00000. 00. 0000. 000073-54, 73-77 6020. 00.. 0. 0. 0. 0. 0.. 0.. 0000000000000000000... 073-7, 73-104 715, 716. 0000000000000. 000000000000000000. 0000000. 0073-24 7210 00000000. 0. 0000000000000000000.. 0000000. 073-83, 73-101 7630 00000. 00000. 00. 0000. 000000.. 00. 000000000. 000000073-68 8190 0000000000000000000000000000. 0000. 0.. 000. 000000073-19 929 0. 0000000000000000000000. 000000000000000000000U73-100 9360 00000000000000.. 000000.. 0. 00. 00. 00000000000000073-59 9400 0000000000000000000.. 000. 000. 0000000. 000000. 000073-47 2420 0000000000000000000.. 000. 000000. 0. 000. 00000. 0U73-105 2514 0000000. 0 00000000000000000000000000000000. 000U73-11 Ga. Laws 1970 3 00000000. 0000. 000000000. 00000000. 0. 0. 000. 00000000073-122 17, 18 00000000. 0 0 0... 0... 0. 0 0.. 0. 0. 00. 00073-144 163. 00.... 00. 0. 0000......... 0..... 0.... 0... 0. 0.... 73-77 403 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1970-Continued 172 .................................................. 73-4 236, 237 ............................................. 73-4 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-91 249, 250 ............................................ 73-75 301 ..................... 73-31, 73-127, 73-131, 73-139, 73-141 321 ............................................... U73-35 346 ........................................ U73-77, U73-88 450 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-100 463 ............................................... U73-63 515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-113 531, 532 ............................................ 73-24 531, 534 ............................................. 73-24 582 ................................................. 73-10 586 ............................................... U73-82 605 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-180 679 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-22, U73-105, U73-114 683 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-45 692 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-1 716 ................................................. 73-69 728 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-6 729 ................................................ 73-156 968 .............................................. U73-121 2623 ................................................ 73-49 3297 .............................................. U73-50 Ga. Laws 1971 3, 4 ............................................... U73-89 17 ................................................ U73-35 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-56 45 et seq........................................... 73-144 45, 49 ........................................ 73-76, 73-80 45, 54 ............................................. 73-123 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-98 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-17 176, 177 ........................................... 73-147 180 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-112 184 ................................................ 73-161 200 ............................................... U73-55 216 ................................................. 73-53 220 ................................................. 73-72 233 ................................................ 73-167 249 ................................................. 73-49 404 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1971-Continued 264 ................................................ 73-185 273 ....................................... U73-46, U73-109 299 ............................................... U73-61 306, 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-123 341. ........................................ 73-138, 73-153 373 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-92, U73-76 380 ......................................... U73-9, U73-70 407 ............................................... U73-74 438 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-131 451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-69 536 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-121 565 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............. 73-56 591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-4 669 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-24 709 ................................. 73-13, U73-92, U73-101 796 ............................................... U73-46 817 .............................................. U73-108 823 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-69 856 .................................. 73-108, 73-140, 73-157 870 ................................................ 73-141 888 ............................................... U73-56 947 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-38 3605 ............................................. U73-105 Ga. Laws 1971, Extra. Sess. 5 ........................................... 73-21, U73-20 89 ........................................... 73-3, U73-23 Ga. Laws 1972 137 ............................................ 73-6, 73-70 202 ............................................... U73-54 245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-162 298, 331 ............................................. 73-76 342 ................................................ 73-165 347 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-156 410 ................................................. 73-50 542, 543 ............................................ 73-155 572 ............................................... U73-73 582 ................................................. 73-72 592 ............................ 73-36, 73-82, 73-99, U73-101 599 ......................................... 73-72, U73-60 623 .............................................. U73-105 625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-10, 73-:-143 405 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1972-Continued 626 ................................................ 73-139 635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-24 638 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-108,73-112,73-157 664 ............................................... U73-43 673 ................................................ 73-139 682 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-74 700 ................................................ 73-164 722 .......................................... 73-88, 73-136 726 ................................................ U73-5 742, 743 ............................................. 73-5 762 .......................................... 73-11, 73-113 820 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-77 822 ....................................... U73-16, U73-116 838 .......................................... 73-41, 73-117 843 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-59 849 .................................................. 73-8 868 ............................................... U73-97 927 ................................................. 73-30 931 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-38 994 ................................................ 73-161 996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-55 1002, 1010 ......................................... 73-122 1011 ................................................ 73-22 1015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-22, 73-53, U73-55 1015 et seq............................ 73-111, 73-118, 73-188 1015, 1016 ......................................... 73-111 1015, 1018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-111 1015, 1026 ......................................... 73-111 1015, 1032 .................................. 73-111, 73-118 1015, 1036 ......................................... U73-71 1015, 1037 .......................................... 73-53 1015, 1046 .......................................... 73-16 1015, 1047 ......................................... 73-107 1015, 1051 ......................................... 73-122 1015. 1056 .......................................... 73-35 1015; 1057 ................................... 73-107, 73-181 1015, 1058 ......................................... 73-107 1015, 1059 ......................................... 73-123 1015, 1059-1060 ...................................... 73-10 1015, 1060 ..................................... 73-9, 73-123 1015, 1064 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-16 406 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1972-Continued 1015, 1068 ......................................... 73-118 1069 ................................................ 73-16 1069, 1072 .......................................... 73-24 1069, 1073 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-156 1069, 1074-75 ........................................ 73-22 1076 ................................................ 73-48 1078 ......................................... 73-12, 73-168 1086 ............................................... 73-168 1092 ................................................ 73-23 1094 ...................................... U73-11, U73-111 1104 .............................................. U73-11 1114 .............................................. U73-11 1125 ............................................... 73-115 1133 et seq.......................................... 73-26 1148 ................................................ 73-18 1158, 1160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-22 1161..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-106 1251. .............................. U73-7, U73-36, U73-101 1251, 1252 .......................................... 73-99 1266 ....................................... 73-107, U73-55 1266, 1267 ......................................... 73-147 1356 ................................................ 73-61 1356, 1357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-137 1372 .............................................. U73-70 1460 ........................................... 73-2, 73-52 1463 ........................................... 73-2, 73-52 1523, 1524 .......................................... 73-27 1523, 1531 .......................................... 73-27 1544 .............................................. U73-13 1550 .............................................. U73-94 1552 ........................................ 73-10, U73-57 1572 ............................................... 73-154 1576 et seq......................................... 73-122 1576, 1577 .......................................... 73-35 3300 ................................................ 73-49 Ga. Laws 1973 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-73 40 ................................................ U73-88 74 .................................................. 73-84 98 ............................................... U73-117 407 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1973-Continued 100 ................................................ 73-142 100, 115 ........................................... U73-68 139, 141 ............................................ 73-122 148 ................................. 73-107, 73-181, U73-28 186 .............................................. U73-104 191 ...................... ~ ......................... 73-79 256 ................................ U73-39, U73-42, U73-64 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-121 435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-122 449 ................................................ 73-123 458 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-128 470 ................................................ 73-133 475 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-46, 73-129 489 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ 1J73-62 499 ................................................. 73-90 509 ................................................ 73-168 512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-38 539 ................................................ 73-130 540 ................................................. 73-79 563 ........................................ 73-99, U73-101 578 ......................................... 73-108, 73-157 635, 636 ............................................ 73-71 641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-85 697 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-99 701 ......................................... 73-75, U73-90 701, 705 ....................................... 73-62, 73-63 701, 706 ........................................... 73-114 708 ......................................... 73-115, 73-171 720 ................................................ 73-178 750 ................................................ 73-162 778 ....................................... U73-77, U73-119 794 ................................................. 73-86 842 ................................................. 73-87 857, 859 ............................................ 73-152 890 ................................................ 73-117 895 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-78 947 ................................................ 73-119 947, 975 . . . . . . . . . . . . . . . . . . . . . 73-145, 73-184, U73-71, U73-106 947' 986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 73-114 947, 993 ........................................... 73-184 947, 1064 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-184 408 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1973-Continued 947, 1067 .......................................... 73-165 947' 1077 .......................................... 73-124 947, 1078, 1079 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-124 947, 1095 .................................. 73-149, U73-103 947, 1128 .......................................... 73-119 947, 1142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-119 959, 960 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-133 959, 965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-133 959, 1095 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-110 959, 1100 et seq..................................... 73-110 1192 .............................................. U73-75 1202 ............................................... 73-159 1260 ............................................... 73-111 1285 ............................................... 73-161 1294 ............................................... 73-109 1294, 1296 ......................................... 73-137 1353 .............................................. U73-94 1353 et seq........................... 73-147, 73-152, 73-162 1353, 1370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-174 1353, 1372 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-132 1353, 1394 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-133, 73-178 1755, 1758, 1760 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-154 2060 .............................................. U73-99 3497, 3506 ......................................... U73-86 3521 .............................................. U73-64 409 TABLE 4 GEORGIA CODE ANNOTATED SECTIONS CITED CoDE SECTIONS OP. No. 1-134 ....................................... 73-121, 73-128 1-135 .............................................. 73-121 2-101 .............................................. 73-155 2-104 ............................................. U73-66 2-204 ............................................ U73-115 2-301 ............................................... 73-21 2-301 (1) ........................................... 73-186 2-302 .............................................. 73-128 2-601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U73-3 Ch. 2-7 ............................................. 73-58 2-703 ............................................. U73-97 2-901 ............................................... 73-93 2-1903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-93 2-1909 ........... 73-80, 73-122, 73-132, 73-147, 73-152, 73-174 2-1911 ............................................ U73-94 2-1916 .............................................. 73-84 2-3011 ................................ 73-61, 73-137, 73-156 2-3015 ............................................ U73-94 2-3102 ............................................. 73-122 2-3301. ...................................... 73-35, 73-122 2-3401 . . . . . . . . . . . . . . . . . . . . . . . . . . 73-57, 73-72, 73-156, U73-73 2-3505.1 ............................................ 73-30 2-3601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-105 2-3901 .................................... U73-13, U73-105 2-4102 . . . . . . . . . . . . . . . . . . . 73-29, 73-40, 73-49, U73-22, U73-30, U73-80, U73-95, U73-117 2-4602 ........................................... U73-105 2-5301 ........................................... U73-105 2-5402 . . . . . . . . . . . . . . . . . 73-86, 73-116, 73-120, U73-52, U73-53 2-5402 (1) ........ 73-87, 73-105, 73-132, 73-145, 73-154, 73-167, 73-186, U73-119 2-5402 (7) .......................................... 73-154 2-5402 (lOA) ....................................... 73-154 2-5402 (15) ........................................ U73-78 2-5402 (18) ......................................... 73-154 2-5404 . . . . . . . . . . . . . . . . . . . . . . . . . 73-38, 73-52, U73-89, U73-93 2-5501 .............................................. 73-83 2-5501 (6) .................................... 73-116, 73-186 2-5503 ............................................. 73-120 2-5601 .............................................. 73-27 410 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONs OP. No. 2-5601 (c) ................................... 73-152, 73-162 2-5603 .............................................. 73-27 2-5604 ........................................ 73-87, U73-2 2-5605 ............................................. 73-126 2-5702 ..................................... U73-52, U73-67 2-5901. ..................................... 73-14, U73-25 2-5901 (a) .......................................... 73-122 2-6002 ............................................ U73-81 2-6101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-75 Ch. 2-62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-94 2-6201 .................. 73-80, 73-132, 73-147, 73-174, U73-94 2-6201 (c) .................................... 73-80, 73-152 2-6202 ...................................... 73-152, U73-94 2-6204 .............................. 73-120, 73-122, U73-94 2-6204 (b) ................................... 73-133, 73-145 2-6801 ......................... 73-79, 73-136, U73-8, U73-61 2-7201 ............................................. U73-8 2-7202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-8 2-7501 .............................. 73-136, U73-61, U73-81 2-7603 .............................................. 73-10 2-7901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-83 2-7901a ........................................... U73-57 2-8001 .............................................. 73-41 2-8001 to 2-8004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-70 2-8003 . . . . . . . . . . . . .................................. 73-35 2-8101 ............................................. U73-70 2-8201 .............................................. 73-80 2-8404 ............................................ U73-37 3-703 ............................................... 73-89 Title 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-32 3A-102 (f) ........................................... 73-90 3A-103 ............................................ U73-59 3A-103 (b) .......................................... 73-90 3A-104 to 3A-l07 .................................... 73-90 Ch. 5-15A ............................................ 73-8 5-1510a .............................................. 73-8 5-2907 to 5-2909 ..................................... 73-68 5-2921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-68 Ch. 5-33 ........................................... 73-106 5-3311 ............................................. 73-106 5-3305 ............................................. 73-106 6-101 ............................................. U73-58 411 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. 6-803 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-153 9-401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-112 13-1802 ............... ,~............................. 73-44 13-2019 ............................... 73-44, 73-150, 73-163 13-2067 ............................................. 73-11 15-302 ............................................ U73-45 17-522 ............................................. 73-188 17-524 ............................................. 73-122 17-527.1. .......................................... 73-147 17-528 ............................................. 73-147 Title 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-58 21-101 et seq......................................... 73-93 21-106 .............................................. 73-93 21-203 et seq.......................................... 73-9 21-205 ............................................ U73-65 21-208 ............................................ U73-65 Title 22 ..................................... 73-140, 73-180 Ch. 22-14 .......................................... 73-140 22-1401 (a) ......................................... 73-140 22-1421 ............................................ 73-180 22-1801. ........................................... 73-180 Title 23 ........................................... U73-83 23-3001. .......................................... U73-75 Ch. 23-31 ......................................... U73-112 23-3401 et seq...................................... U73-56 23-9915. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... U73-56 24-104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-57 24-104 (1) ........................................... 73-57 24-204 .............................................. 73-93 24-817 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-99 24-1006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-99 24-1007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-99 24-1105, 24-1106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-69 24-1411 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-99 24-1501 ........................................... U73-99 24-1716 ............................................ U73-4 Ch. 24-21A ........................................ U73-22 24-2101a et seq.................................... U73-105 24-2102a ......................................... U73-114 24-2106a .................................. U73-22, U73-105 24-2606 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-90 24-2606.1 .......................................... U73-90 412 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. 24-2606.2 ..... 0. 0..... 0. 0... 0... 0... 00.... 000000000U73-90 24-2615 .... 0. 000... 0..... 0. 0. 000000.. 0. 000....... U73-105 24-2601ao. 0... 0.... 000. 0. 0... 000000. 00. 0. 0000000000073-75 24-2602ao 000000000o. 000. 0. 0. 00000000. 00. 0. 00000. OU73-10 24-2603a. 0..... 00000. 00000000000.. 000000000000. 000U73-91 24-2605a 0000.. 00000. 000000000. 000000000000000000000073-75 24-2605a.10 0. 0000000000. 00. 000000.. 0000000. 0000000U73-91 24-2607a 0. 000000.. 0. 000.. 000000000000000000. 0000000073-75 24-2610ao 00000000000. 0... 0.. 00.... 000..... 00.. 0. 000.73-75 24-2610a.10 0000. 00000000.... 0. 0. 0.. 0. 0. 0. 00. 0. 000.. U73-10 24-2610a.1 (c) .. 000... 0. 000... 000..... 00... 00000. 000073-75 24-2610a.1 (d) 0. 000.. 000000.. 0000. 0. 000000000000000U73-91 24-2611a .. 00000..... 00. 0.... 00. 0.. 00. 0. 0. 000000.. 0U73-10 24-2611a (a), (b) 00. 0.. 0... 000. 0... 00.. 0. 000000 0 0. 00 0 073-75 24-2714 (5(9) ) 0. 00 0. 00000000. 000. 0 00.. 0 00. 000 0. 000 U73-113 24-2715 (2) .. 000....... 0..... 000......... 0..... 00 0U73-114 24-2715 (14). 0 00 00... 0...... 00 00. 00. 0.. 0... 0. 00U73-113 24-2727 . 00000. 00.. 0.. 0..... 0. 0..... 0. 0. 00... 0000.. U73-43 24-2729 0000000. 0. 0000000000000.... 00. 00. 000.. 0.... U73-43 24-2803 000. 000. 0.... 0. 000000... 000... 00000. 0000000. 073-93 24-2813 0000... 00. 000. 00000... 00000.... 000000000. 00. 073-57 24-2813 (2). 0. 0000. 00......... 000000... 000.... 0... 00073-57 24-2820 . 0. 0000.. 0...... 0.. 0.. 0. 00... 000. 000.. 0. 0. 0U73-69 24-2831. .. 0.. 000..... 0... 0. 0..... 0. 00.. 000000000. 0U73-70 24-2831 to 24-2834 0.... 000. 00. 0. 0. 00...... 00.. 00. 0000U73-9 Cho 24-29A .. 000...... 0. 0............ 000.. 0000. 00.U73-100 24-2902a 0.... 00...... 0.. 0. 0... 0. 0... 000.. 00000000U73-100 24-2903ao .... 0...... 000. 0. 0.. 00.... 0...... 0...... U73-100 24-2905a 0... 0... 0.... 00..... 0...... 0.... 0. 0... 0. 0U73-100 24-2908 (4) ... 0.... 00....... 0........... 0.. 0000.. 0U73-105 24-2930. 000. 0000... 00.. 0. 0........ 0...... 0.. 0.. 00U73-100 24-3105 0. 000000..... 0. 0...... 0000000........ 0. 000U73-107 24-3379. 0000... 0.. 00.. 0... 00........... 0. 000.... 00. 073-57 24A-201 (e) 000.... 00.. 00... 0...... 00..... 0..... 0.. 0U73-92 24A-23040 ..... 00. 00. 000... 0... 0. 0. 0. 0.. 0. 0. 000... U73-101 24A-24010 ... 0............. 0000. 0... 0.. 0...... 00.. U73-101 24A-3201 (a). 0......... 00. 0..... 000.. 000. 00... 0... 0073-13 24A-3203 0.. 0... 00......... 0.. 0.. 0... 0.. 0... 0... 000. 073-13 Ch. 25-1 ...... 000. 00. 0... 0. 0......... 0.. 0. 0... 00... 073-32 25-103 0. 000.... 0.... 00.... 0.. 0.. 000.. 0.... 0.... 000. 073-32 25-1040 .. 00... 00........... 0.. 0.... 0............... 073-32 25-12301 .... 00....... 0000...... 0... 0..... 0.. 0.. 0.. 0073-32 413 GEORGIA CODE ANNOTATED SECTIONS-Continued ConE SECTIONS OP. No. 25-127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 73-32 25-303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................. 73-44 25-305 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................. 73-44 25-315 .............................................. 73-44 26-401 (k) .................................... 73-93, U73-1 26-401 (1) ............................................ 73-4 26-603 ............................................. 73-128 26-801 (a) .......................................... 73-128 26-801 (b) .......................................... 73-128 26-802 ............................................. 73-128 26-1201 et seq.................................. 73-24, 73-71 26-1202 (b) (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-12 26-1202 (b) (5) ..................................... U73-12 26-1202 (b) (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-24 26-1202 (d) .......................................... 73-71 26-2304 ............................................ 73-155 26-2305 ............................................ 73-155 26-2306 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-155, U73-98 26-2307 ............................................ 73-155 26-2308 ............................................ 73-155 26-2309 ........................................... U73-85 26-2505 ............................................ 73-184 26-2607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-95 26-2701 (b) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-115 26-2703 (d) .......................................... 73-81 26-2901 ...................................... 73-66, U73-1 26-2903 ............................................. 73-66 26-2904 ...................................... 73-66, U73-1 26-2907 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-1 26-2910 ............................................ 73-184 26-3001 ............................................. 73-37 26-3005 ............................................. 73-37 26-9906 ........................................... U73-41 27-202 to 27-204 ..................................... 73-93 27-207 .............................................. 73-93 27-211 .............................................. 73-93 27-301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-34 27-303 ..................................... U73-14, U73-99 27-401 ............................................ U73-99 27-508 ........................................... U73-122 27-704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-105 27-913 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-74 414 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. 27-1001 ........................................... U73-22 27-1401 ........................................... U73-26 27-2502 ............................................. 73-33 27-2505 .............................................. 73-1 27-2510 ............................................ 73-42 27-2510 (b) ......................................... 73-148 27-2530 ......................................... 73-1' 73-5 27-2532 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-5 27-2536 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . '. 73-117 27-2702 to 27-2726.1 ................................. U73-7 27-2713 .............................................. 73-1 27-2727 ............................................ U73-7 27-2902 ........................................... U73-24 27-2905 ........................................... U73-24 Ch. 27-32 ......................................... U73-120 29-423 ............................................ U73-19 32-111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-167 32-121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-167 32-168 .............................................. 73-23 32-407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-63 32-411.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-88 32-603 ............................................. 73-136 32-605 ............................................. 73-136 32-614 .............................................. 73-79 32-614 to 32-616 ..................................... 73-79 32-706 .............................................. 73-79 32-706 to 32-711 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-79 32-709 .............................................. 73-79 32-717 to 32-721 ..................................... 73-79 32-724 .............................................. 73-79 32-909 ................................. 73-14, 73-79, U73-61 32-912 ............................................. 73-172 32-942 ....................................... 73-83, 73-101 32-1006 ............................................. 73-65 32-1401 ........................................... U73-61 Ch. 32-19 .......................................... U73-61 32-2104 ............................................ 73-185 32-2106 ............................................ 73-185 Ch. 32-21B ......................................... 73-136 32-2102b ............................................ 73-88 32-2103b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-136 32-2104b ............................................ 73-88 415 GEORGIA CODE ANNOTATED SECTIONS-Continued ConE SECTIONS OP. No. 32-2301 (o) ......................................... 73-132 32-2302 ............................................ 73-132 32-2303 ............................................ 73-132 32-2901 (4) and (13) and (14) ........................ 73-173 32-2901 (23) ....................................... U73-78 32-2903 (4) .......................................... 73-45 32-2904 ............................................. 73-45 32-2904 (5-A) ........................................ 73-45 32-2905 (2) (a) and (b) ............................... 73-173 32-2905 (2) (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-78 32-2905 (7) .......................................... 73-45 32-2922 (1) ........................................ U73-78 Ch. 32-41 ........................................... 73-26 32-4103 ............................................. 73-26 34-103 (h) ......................................... U73-28 34-403 ............................................ U73-49 34-603 ............................................ U73-83 34-603 (a) (b) ...................................... U73-31 34-605 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. U73-31 34-620 .............................................. 73-58 34-624 .............................................. 73-58 34-1801. ..................................... 73-3, U73-23 34A-108 ........................................... U73-49 35-221 .............................................. 73-43 36-1303 ........................................... U73-32 37-216 ............................................. 73-182 38-203 .............................................. 73-91 38-710 .............................................. 73-91 38-711 .............................................. 73-91 38-801 ........................................... U73-110 39-114 .............................................. 73-93 39-1101 ........................................... U73-15 39-1103 ............................................ U73-15 Ch. 40-4 .............................. 73-125, 73-152, U73-'2 40-402 (1) and (2) ........ 73-80, 73-132, 73-147, 73-174, U73-94 40-408. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ 73-14 40-414 to 40-418 .................................... 73-125 Ch. 40-8A .......................................... 73-111 Ch. 40-19 ......................................... U73-71 40-1919 ........................................... U73-73 40-1927 ........................................... U73-73 40-1946 ............................................ 73-181 416 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. 40-1948 ............................................. 73-47 40-2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-115 40-2201 et seq....................................... 73-144 40-2201 (a) ............................ 73-56, 73-123, 73-144 40-2201 (b) (20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-144 40-2203 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-80 40-2203 (d) .......................................... 73-76 40-2204 (a) ......................................... 73-144 Ch. 40-25 ........................................... 73-39 40-2501 (3) .......................................... 73-39 40-2501 (4) .......................................... 73-39 40-2503 ........................................... U73-17 40-2503 (1) .......................................... 73-39 40-2504 ........................................... U73-17 40-2505 (3), (3.1), (4) ............................... U73-17 40-2505 (4) (g) ..................................... U73-17 40-2505 (7) ......................................... 73-179 Ch. 40-27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-55, U73-84 40-2701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-55, U73-49, U73-114 40-2702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-55, 73-77 40-2703 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-77 40-2918 ........................................... U73-35 40-2920 ........................................... U73-35 40-2922 ........................................... U73-35 40-3103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-183 Ch. 40-34 ........................................... 73-24 Ch. 40-35 .......................................... 73-118 40-3502 (3) ......................................... 73-111 40-3503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-111 40-3512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-118 40-3518 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-111 40-3530 ..................................... 73-111, 73-118 40-3531. ........................................... 73-118 40-3549 ........................................... U73-71 40-3552 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ 73-53 40-35101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-16 40-35104 ........................................... 73-107 40-35123.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-16, 73-24 40-35123.3 .......................................... 73-24 40-35129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-122 40-35155 ............................................ 73-35 40-35158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-107, 73-181 417 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONs OP. No. 40-35162 .................................... 73-107, 73-147 40-35162.1 et seq.................................... 73-156 40-35162.4 .................................... 73-22, 73-156 40-35165 ........................................... 73-123 40-35167 ............................................ 73-10 40-35171 ...................................... 73-9, 73-123 40-35172 ............................................. 73-9 40-35190 ............................................ 73-16 40-35212 ........................................... 73-118 40-3601. ........................................... 73-162 40-3602 ............................................ 73-162 42-302 (1) ........................................... 73-98 42-303.1 ............................................ 73-98 42-311 (e) and (f) ....................................73-98 42-813.1 ........................................... U73-63 43-124(b) (f) (m) .................................... 73-122 43-135 ............................................. 73-122 43-206 ............................................. 73-174 Ch. 43-14 ......................................... U73-55 43-1402 ........................................... U73-55 43-1403 ........................................... U73-55 43-1405 ........................................... U73-55 43-1406 ........................................... U73-55 43-1618 ............................................ 73-122 Title 45 ............................................. 73-35 45-101.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-35 45-114 (1) (c) ....................................... 73-122 45-114 (3) ........................................... 73-35 45-114 (5) ........................................... 73-35 45-205 .............................................. 73-35 45-401 .............................................. 73-35 45-503 .............................................. 73-35 45-505 .............................................. 73-35 47-502 ............................................ U73-94 47-516 .............................................. 73-76 Ch. 47-14 .......................................... U73-17 47-1419 ........................................... U73-17 53-201 ............................................ U73-99 53-211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-29 54-112 ............................................. 73-144 54-122 (d) .......................................... 73-125 Ch. 54-13 ........................................... 73-56 418 GEORGIA CODE ANNOTATED SECTIONS-Continued ConE SECTIONS OP. No. Title 56 ............................................. 73-94 56-108 (1) ........................................... 73-74 56-201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-90 56-216 .............................................. 73-90 56-216 (b) ........................................... 73-90 56-404 .............................................. 73-78 56-407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-78 56-407.1 ............................................ 73-28 56-408 .............................................. 73-78 56-618 .............................................. 73-90 Ch. 56-13 ........................................... 73-74 56-1504 to .56-1506 ................................... 73-94 56-1509 ............................................. 73-94 Ch. 56-17 ..................................... 73-74, 73-94 56-1703 ............................................. 73-74 56-1721 ............................................. 73-94 Ch. 56-18 ........................................... 73-94 56-2438 .......................................... U73-122 57-101. ............................................ 73-163 57-116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-163 58-608 ............................................ U73-95 58-726 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-108 Ch. 58-10 .......................................... U73-49 59-106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-111 59-112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-111 59-114 ............................................ U73-111 59-115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-111 59-315 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 073-80 61-301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-121 61-302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-121 64-201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-97 68-101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-82 68-201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-82 68-221 ............................................. 73-121 68-246 ............................................. U73-6 68-405 ............................................ U73-22 68-414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-23 68-604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-85 68-611.1 ............................................ 73-85 68-622 .............................................. 73-85 68-623 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-85 68-1001 to 68-1006 .................................. 73-121 419 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. Chs. 68-15 to 68-17 .......................... 73-160, U73-22 68-1502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-82 Ch. 68-16 ........................................... 73-40 68-1625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73-49, U73-34 68-1625.1. ......................................... U73-34 68-1680 ............................. 73-40, U73-22, U73-117 68-1681. ............................................ 73-40 Ch. 68-17 .......................................... U73-82 68-1701 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-82 68-1725 ............................................. 73-29 68-1726 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-29 68-1823 to 68-1825 ................................... 73-92 68-1824 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-76 68-1825 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-76 68-2303 ............................................ 73-165 68-9921 ........................................... U73-22 68-9926 ............................................. 73-29 68-9927 ............................... 73-29, 73-160, 73-168 69-301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-25 69-307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-25 69-309 to 69-316 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-77 69-312 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-44 69-314 ............................................ U73-102 69-704.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-62 Ch. 69-10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-77, U73-119 69-1017 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-88 69-1018 (a) ........................................ U73-88 69-1020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-77 Ch. 69-15 .......................................... 73-175 69-1507 ............................................ 73-175 69-1508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-175 Ch. 69-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-119 72-101. ........................................... U73-25 74-103 .............................................. 73-13 Ch. 74-3 .......................................... U73-99 74-403 .............................................. 73-13 Ch. 77-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-73 77-301 et seq........................................ 73-156 77-305 et seq........................................ 73-156 77-306 .............................................. 73-72 77-307 ............................................. 73-117 77-307 (c) ........................................... 73-72 420 GEORGIA CODE ANNOTATED SECTIONS-Continued ConE SEcTIONs OP. No. 77-309 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 73-153 77-309 (b) ......................... 73-7, 73-72, 73-82, 73-104 77-309 (b) ~1 ........................................ 73-72 77-309 (c) and (d) ................................... 73-138 77-310 (d) ........................................... 73-54 77-312 ....................................... 73-41, 73-117 77-312 (b) .................................... 73-72, 73-117 77-312.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-117 77-314 ........................................ 73-41, 73-72 77-314.1 ............................................ 73-72 77-315 .............................................. 73-72 77-316 .............................................. 73-72 77-318 (c) ............................................ 73-7 77-325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 73-72 77-326 .............................................. 73-72 77-338 to 77-341. ............................ 73-138, 73-153 77-345 to 77-360 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-36, U73-101 77-346 (g) ........................................... 73-99 77-352 (c) ........................................... 73-82 77-35.5 ....................................... 73-82, U73-60 77-355 (b) ........................................... 73-82 77-356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 73-82 77-356 (b) ........................................... 73-82 77-357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-60 77-358 (c) ........................................... 73-82 77-359 .............................................. 73-82 77-360 (a) ........................................... 73-82 77-501 et seq........................................ 73-156 77-509 .............................................. 73-22 77-511 ...................................... 73-109, 73-137 77-516 ........................................ 73-22, 73-54 77-516.1. ........................................... 73-50 77-519 .............................................. 73-17 77-522 .............................................. 73-61 77-528 .............................................. 73-61 77-535 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-22 77-539 .............................................. 73-22 77-502a et seq....................................... 73-156 77-505a ............................................ 73-156 Ch. 77-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-73 77-904 ............................................ U73-73 77-9906 ............................................. 73-72 421 GEORGIA CODE ANNOTATED SECTIONS--Continued CoDE SECTIONS OP. No. 77-9913 ............................................. 73-72 78-909 ............................................. U73-72 78-1001 ........................................... U73-47 78-1001 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-79, U73-104 78-1005 ........................................... U73-47 78-1007 ........................................... U73-79 78-1010 ........................................... U73-79 78-1015 ........................................... U73-47 79A-208 (i) ........................................ U73-63 79A-408 (9) ......................................... 73-59 Ch. 79A-8 ......................................... U73-63 79A-905 ........................................... U73-63 Ch. 79A-10 ......................................... 73-131 79A-1002 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-131 79A-1009 .......................................... 73-131 81-1017 ........................................... U73-74 81-1018 ........................................... U73-74 81A-104 (b) ....................................... U73-121 84-202 ............................................. 73-120 84-216 ............................................. 73-158 Ch. 84-4 ........................................... 73-141 84-403 (b) .......................................... 73-141 84-601. ............................................ 73-141 84-607 ............................................. 73-135 84-701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-141, U73-59 84-702.1. .......................................... U73-59 84-726 ............................................ U73-59 84-728 ............................................ U73-59 84-729 ............................................ U73-59 Ch. 84-9 .................................... 73-127, 73-131 84-901 ............................... 73-131, 73-139, 73-141 84-902 ............................................. 73-127 84-906 ............................................. 73-139 84-906 (b) .......................................... 73-139 84-906 (b) (9) ....................................... 73-139 84-910 .............................................. 73-31 84-914 (b) ........................................... 73-31 84-915 ............................................. 73-127 84-916 ............................................. 73-127 84-916 (16) ......................................... 73-131 84-930 .............................................. 73-84 84-931 to 84-935.2 .................................. U73-45 422 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. Ch. 84-12 ........................................... 73-31 Ch. 84-14 .......................................... 73-142 84-1401 (a) .........................................73-142 84-1419 (g) ........................................ U73-68 Ch. 84-32 ........................................... 73-64 Ch. 84-44 .......................................... 73-141 84-4401. ........................................... 73-141 Ch. 84-48 ........................................... 73-73 Ch. 84-55 ........................................... 73-24 84-5502 (d) .......................................... 73-24 84-5503 ............................................. 73-24 84-5504 ............................................. 73-24 Ch. 84-58 ............................ 73-108, 73-140, 73-157 84-5801 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-140 84-5803 ............................................ 73-157 84-5804 ............................................ 73-157 84-5804 to 84-5806 .................................. 73-157 84-5806 ..................................... 73-140, 73-157 84-5807 ............................................ 73-157 84-5808 ............................................ 73-157 Ch. 84-61 ............................ 73-108, 73-112, 73-157 84-6103 ............................................ 73-112 84-6103 to 84-6107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-157 84-6103 (l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-112 84-6108 ............................................ 73-157 84-6109 to 84-6116 .................................. 73-157 84-6111 (b) ......................................... 73-108 84-6117 ............................................ 73-157 84-6120 ............................................ 73-157 85-105 ............................................. 73-122 85-501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-97 85-701 ............................................. 73-182 85-902 ............................................. 73-182 85-1307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-3 85-1703 ............................................. 73-35 85-1705 ............................................. 73-35 85-1901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-71 85-1902 . . . . ....................................... u73-71 Ch. 85-20 .................................... 73-11, 73-113 85-2002 ............................................ 73-113 85-2003 ............................................. 73-11 85-2004 to 85-2010 ............................ 73-11, 73-113 423 GEORGIA CODE ANNOTATED SECTIONS-Continued ConE SECTIONS OP. No. 85-2008 ............................................. 73-11 85-2012 ...................................... 73-11, 73-113 85-2013 ...................................... 73-11, 73-113 85-2028 ............................................. 73-11 Chs. 86-1 to 86-14 .................................... 73-15 86-806 .............................................. 73-15 86-1101 ............................................. 73-95 Ch. 88-1 ...................................... 73-24, 73-67 88-108 ...................................... 73-24, U73-21 88-108 to 88-111 ..................................... 73-24 88-110 ...................................... 73-24, U73-21 88-111 (a) ........................................... 73-24 88-112 .............................................. 73-16 88-115 ........................................ 73-24, 73-43 Ch. 88-2 ............................................ 73-67 88-203 (c) ......................................... U73-21 88-204 (b) ......................................... U73-21 Ch. 88-3 ............................................ 73-24 88-304 .............................................. 73-24 88-306 ............................................ U73-84 88-404.7 ........................................... U73-46 88-406.5 .......................................... U73-109 Ch. 88-5 ............................. 73-43, U73-4, U73-109 88-501 (d) ........................................... 73-54 88-501 (e) ........................................... 73-43 88-502.10 ........................................... 73-77 88-502.10 (a) ........................................ 73-54 88-502.14 ......................................... U73-109 88-504.2 ........................................... U73-46 88-506.6 ............................................ U73-4 88-507 et seq........................................ U73-4 88-508.2 ............................................ U73-4 88-602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73-43 88-903 (a) (4 and 5) ................................. 73-161 88-903 (a) (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-118 88-905 ............................................. 73-161 88-1006 ........................................... U73-84 Ch. 88-17 ........................................... 73-71 88-1702 ............................................. 73-71 88-1715 ........................................... U73-65 88-1716 (a) .......................................... 73-71 88-1723 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 73-71 424 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. 88-1724 ............................................. 73-71 88-1812 ........................................... U73-81 Ch. 88-19 ........................................... 73-24 88-1901. ............................................ 73-24 88-1902 ............................................. 73-24 88-1903 ............................................. 73-24 88-1905 ............................................. 73-24 88-1906 ............................................. 73-24 88-1907 ........................................... U73-45 88-2601 et seq....................................... 73-107 88-2603 ..................................... 73-107, 73-181 88-2618 ............................................ 73-181 88-2904 ............................................ 73-131 Ch. 88-31 .......................................... 73-139 88-3101 ............................................ 73-143 88-3105 (b) ......................................... 73-139 88-3111 ............................................. 73-10 88-3111 (d) ......................................... 73-143 88-3112 ............................................ 73-139 88-3112 (c) ......................................... 73-139 89-101. ........................................... U73-97 89-103 ..................................... 73-146, U73-83 89-428 ............................................. 73-176 89-601 .............................................. 73-55 89-701 ............................................ U73-94 89-702 .............................................. 73-85 89-707 ............................................. 73-118 89-801. ............................................ 73-176 89-806 ....................................... 73-87, 73-176 89-816 .............................................. 73-87 89-903 ............................................. 73-122 89-913 .............................................. 73-86 89-913 to 89-918 .................................... 73-155 89-916 ............................................ U73-98 89-925 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 73-55 89-932 ............................................. 73-156 89-1215 ............................................ U73-5 Ch. 89-13 ........................................... 73-56 89-9916 ............................................ 73-155 90-301 et seq......................................... 73-53 90-302 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 73-53 90-303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 73-53 425 GEORGIA CODE ANNOTATED SECTIONS-Continued ConE SEcTIONS OP. No. 90-305 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-53 91-104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-71 91-117 ....................................... 73-30, 73-122 Ch. 91-1A .......................................... 73-152 91-102a (c) ......................................... 73-152 91-112a (a) ......................................... 73-152 91-523a ............................................ 73-162 91-701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-80 91-708 ............................................ U73-80 91-804.1. .......................................... U73-33 92-101 ............................................ U73-89 92-104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-96 92-161 to 92-184 .................................... U73-40 92-239 ............................................ U73-89 92-3315b ........................................... 73-103 Ch. 92-34A .......................................... 73-83 92-3402a (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-83 92-3403aA .......................................... 73-83 92-3403a (C) (2) (t.l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-18 92-3414a ............................................ 73-83 92-3501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 73-53 92-3502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-53 92-3701 (19) ......................................... 73-10 92-3716 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-81 92-3810 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-116 92-3812 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-116 92-4901.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-16, U73-116 92-4906 .......................................... U73-116 92-4908 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-81 92-5104 .......................................... U73-116 92-5301 ............................................ 73-129 92-5304 ............................................ 73-129 92-6502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... U73-116 Ch. 92-69 .......................................... U73-11 92-6912 .......................... U73-ll, U73-111, U73-116 Ch. 92-70A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-ll 92-8427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-103 92A-115 ........................................... 73-166 92A-208 ........................................... 73-123 92A-225 ........................................... 73-123 92A-239 ........................................... 73-184 92A-241 ........................................... 73-184 426 GEORGIA CODE ANNOTATED SECTIONS-Continued ConE SECTIONS Qp. No. 92A-243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-184 92A-301 et seq........................................ 73-9 92A-305 ............................................. 73-9 92A-306 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-9 92A-401 ...................................... 73-12, 73-168 92A-403 ............................................ 73-168 92A-410.1. .......................................... 73-48 92A-434 ............................................ 73-168 92A-435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-48 92A-443 ........................................... 73-168 92A-455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 73-168 92A-501. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-18 92A-501 to 92A-504 .................................. 73-29 92A-502 .......................................... U73-117 92A-503 .................................... 73-18, U73-117 92A-510 ........................................... U73-58 92A-511 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-29, U73-117 Ch. 92A-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-28 92A-601 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-19 92A-602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-168 92A-605 ............................................ 73-19 92A-605 (c) ......................................... 73-28 92A-608 ...................................... 73-49, 73-168 92A-609 ............................................ 73-19 92A-615 ............................................ 73-28 92A-615.1. ......................................... 73-168 92A-615.2 .......................................... 73-168 92A-616 ............................................ 73-19 Ch. 92A-10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-10 92A-1007 ........................................... 73-10 92A-2701 to 92A-2704 ................................ 73-18 92A-9936 .......................................... 73-168 93-307.1 ....................................... 73-6, 73-70 95-107 ............................................ U73-50 95-1514 to 95-1517.7 ................................ U73-38 95-2003a (d) ....................................... U73-20 95-2008a .......................................... U73-20 95-2009a ............................................ 73-21 95-2011a ............................................ 73-21 95-2015a ............................................ 73-21 95-9924.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-21 95A-104 ........................................... 73-133 427 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. 95A-201 (a) ........................................ 73-133 95A-302 (a) .................................. 73-145, 73-184 95A-302 (e) and (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-71 95A-302 (g) ....................................... U73-106 95A-306 (f) .........................................73-114 95A-401 (a) ........................................ 73-184 95A-901 ........................................... 73-184 95A-904 (a) and (d) ................................. 73-165 95A-916 (1) ......................................... 73-124 95A-916 (m) ........................................ 73-124 95A-917 ............................................ 73-124 95A-955 ............................................ 73-149 95A-955 (a) ....................................... U73-103 95A-956 ........................................... 73-110 95A-961 ........................................... 73-110 Ch. 95A-12 ......................................... 73-119 95A-1201 (a) ....................................... 73-119 95A-1204 (b) ....................................... 73-119 95A-1211 .......................................... 73-119 96-602 ............................................... 73-4 96-9903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 73-4 Title 97 ...................................... 73-25, 73-159 Ch. 97-1. .......................................... 73-100 97-102 (f) ..........................................73-177 97-102 (i) .............................. 73-25, 73-100, 73-177 97-104 ...................................... 73-100, 73-169 97-104 (d) ........................................... 73-81 97-106 ............................................. 73-100 97-106 (f) ...........................................73-81 97-107 ............................................. 73-100 97-109.1. ........................................... 73-81 98-203 ....................................... 73-3, U73-23 Title 99 ............................................. 73-67 99-109 .............................................. 73-56 99-116 .............................................. 73-56 Ch. 99-2 .......................................... U73-101 99-209 (a) (5) .......................... 73-99, U73-7, U73-36 99-504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 73-56 99-506 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 73-56 Ch. 99-33 .......................................... 73-164 99-3305 (a) ......................................... 73-164 99-3307 ............................................ 73-164 428 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SEcTIONS OP. No. 99-3307 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... 73-164 102-102 ...... 73-11, 73-39, 73-50, 73-72, 73-117, 73-128, 73-137, 73-142, 73-169, 73-171, 73-173, 73-181, U73-9, U73-47, U73-55, U73-57, U73-65, U73-80, U73-91, U73-104, U73-117 102-104 ................................ 73-11, 73-90, 73-108 105-709 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-84 105-2002 ............................................ 73-78 Ch. 109-9 .......................................... 73-113 109-902 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-113 Ch. 113-27 ......................................... U73-54 Ch. 113-27A ....................................... U73-54 Title 114 ............................................ 73-68 114-101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-134 429 INDEX OP. No. ABANDONMENT. Property, of, effect .................................. 73-11 ABORTION. Federal decisions, effect of. .......................... U73-12 Human Resources Department, authority to regulate ............................. 73-24 Records required ..................................... 73-71 ACCOUNTANCY, STATE BOARD OF. Funds, public, not used for expenses of meeting of national organization ............................ 73-120 ACCOUNTANTS. Certified public, confidential communications ........... 73-158 ACUPUNCTURE. Practice, of, legal status ............................. 73-131 AD VALOREM TAXES. Collection, procedure for ........................... U73-116 Procedure for collecting ............................ U73-116 Rebates under statute, regulations suggested ............ 73-46 Relief, tax, by state not to affect commissions of collecting officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-129 Timber, standing, upon ............................. U73-96 ADMINISTRATIVE SERVICES, STATE DEPARTMENT OF. Purchasing and Supplies Division- Director, compensation of. ......................... 73-118 Sheriff, automobile to be personally owned, by, not purchased through .......................... 73-47 ADOPTION. Consent to, court acknowledgment not required .......... 73-13 Illegitimate child, putative father not entitled to notice ........................................ 73-13 ADULT MOVIE HOUSES. Definition......................................... U73-56 ADVERTISING. Outdoor, see Outdoor Advertising. Outdoor, devices, see Outdoor Advertising. AGE OF PERSONS. Peace Officers Standards and Training Act, eligibility under ................................ 73-130 430 INDEX OP. No. AGRICULTURAL COMMODITIES COMMISSIONS. Members as officers, rather than employees . . . . . . . . . . . . . . 73-68 Workmen's compensation for compensated employees only .................................. 73-68 AGRICULTURE, DEPARTMENT OF. Livestock concentrations, licensing and inspection ........ 73-64 AGRIRAMA DEVELOPMENT AUTHORITY. Employees not carried as state employees .............. 73-106 AIR QUALITY CONTROL. Delegation of authority to counties ................... 73-161 Permits, issuance by Environmental Protection Division ............................ U73-118 AIR TRANSPORTATION. Commuter service, participation in projects by State Department of Transportation . . . . . . . . . . . . . . . 73-178 Demonstration projects, participation in by State Department of Transportation . . . . . . . . . . . . . . . 73-178 AIRPORTS. Funds expended .................................... 73-126 Transportation, State Department of, restrictions on state funds expended ............................ 73-126 ALABAMA. Transportation funds, advance, to ..................... 73-105 ALBANY, CITY OF. Detectives, private, regulation ....................... U73-88 ALCOHOLICS. Arrest of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-46 Transportation of ................................. U73-109 AMBULANCE SERVICE. County contracts respecting ........................... 73-10 Emergency treatment by technicians .................. 73-139 Human Resources Department regulations, when complied with .................................. 73-143 Invalid car, veterans service may operate, without complying with regulations ....................... 73-143 ANIMALS. See Livestock. Wild, see Game and Fish. APPEALS. Custody of prisoners pending ......................... 73-153 Prisoners with pending, custody ...................... 73-138 INDEX 431 OP. No. APPEALS-Continued. Recorder's court to superior court in traffic cases ....... U73-58 Transcript, death of court reporter before completion, effect .............................. U73-107 APPOINTMENT OF COUNSEL. Public defender not to act as recorder ............... U73-120 Recorder as practicing criminal law under Criminal Justice Act ........................... U73-120 APPROPRIATIONS. Private organization, earmarking for, not valid ......... 73-132 Restriction upon, requiring Attorney General's opinion as invalid ............................... 73-174 Transfer of funds .................................... 73-76 Veto by Governor .................................. U73-94 World Congress Center, for .......................... 73-162 APPROPRIATIONS ACTS. Contingent appropriations invalid, when ........ 73-147, 73-152 General law provisions not altered by ........... 73-147, 73-152 Powers, additional, not granted to agency, by .......... 73-152 Restrictions upon powers of agency, invalid ............ 73-147 AREA PLANNING AND DEVELOPMENT COMMISSIONS. Funds, city and county, paid to for crime control. ...... U73-35 ARMED FORCES. See Military Service. ARRAIGNMENT. Notice, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-26 ARREST. Physician's certificate, drug dependents, mentally ill persons, and alcoholics, upon ..................... U73-46 Sheriff, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-93 Warrants- Physician's certificate in lieu of . . . . . . . . . . . . . . . . . . . . . U73-46 ASSISTANTS. District attorneys, see District Attorneys. ATHLETIC CONTESTS. Ticket sales regulated ................................. 73-4 ATLANTA, CITY OF. Employees, participation in political activity ........... U73-87 Rapid transit, see MARTA. ATTORNEY AND CLIENT. Appointment, see Appointment of Counsel. Assistant district attorneys, practice by ................. 73-69 432 INDEX OP. No. ATTORNEY AND CLIENT-Continued. Ordinary, court of, representation, in . . . . . . . . . . . . . . . . . U73-66 Public officer, attorney, as not ....................... U73-91 Self-representation, right of . . . . . . . . . . . . . . . . . . . . . . . . . . U73-66 ATTORNEY GENERAL. Appropriation law as contingent upon opinion from, as invalid ................................. 73-174 Eminent domain, 11declaration of taking" authority limited to cases involving Transportation Department .................................. U73-32 AUGUSTA. Tax assessors, law governing joint city-county board .... U73-11 AUTHORITIES. Employees not carried as state employees .............. 73-106 General consideration ............................... U73-48 AUTOPSIES. See Post Mortem Examinations. BAIL. Continuance in effect of bonds . . . . . . . . . . . . . . . . . . . . . . . U73-74 Traffic offenses, in ................................. U73-122 BAILIFFS. Safety of courts, responsibility for ...................... 73-57 BANKING AND FINANCE, DEPARTMENT OF. Credit unions, approval of bylaws by commissioner ...... 73-32 Interest rate for state-chartered banks, authority respecting .............................. 73-44 BANKS AND BANKING. Deposits, unclaimed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-11 Dormant accounts, service charges upon ................ 73-11 Interest rates- Commercial banks, of ............................. 73-163 State-chartered banks, for ........................... 73-44 Service charges, when permitted ....................... 73-11 Time deposits, reduction of interest upon, effect ........ 73-150 Unclaimed Property Act, operations under .............. 73-11 BANKS COUNTY. Road work, authority of individual commissioner ....... U73-50 BASTARDS. Adoption, putative father not entitled to notice .......... 73-13 BEACHES. Public access to ..................................... U73-3 INDEX 433 OP. No. BIKEWAYS. Funds which may be used for ........................ 73-133 BLOOD TESTS. Drug violators, suspected, upon ...................... U73-34 BONDS. Criminal, see Bail. Financing and Investment Commission, powers ......... 73-162 Municipal corporations, see Municipal Corporations. Officers, public, when required for ..................... 73-176 Securities dealers and salesmen ....................... 73-159 Title, for .......................................... U73-68 BRASELTON, TOWN OF. Upper Mulberry River Watershed Work Project, participation in ............................... U73-102 BROKERS. Businesses, where land only incidental to sale, real estate broker's license not required ................ 73-142 Insurance, surplus line, licenses ........................ 73-90 Real estate, see Real Estate Brokers. BRUNSWICK-GOLDEN ISLES CHAMBER OF COMMERCE. State expenditures prohibited in aid of . . . . . . . . . . . . . . . . . . 73-30 BURKE COUNTY. Small claims court, equipment and supplies ............ U73-86 CAPITAL PUNISHMENT. Commutation of sentence, majority vote of Board of Pardons and Paroles needed ...................... 73-137 CENTRAL STATE HOSPITAL. See Mental Institutions. Discharge summaries to Board of Pardons and Paroles ......................................... 73-54 CERTIFIED PUBLIC ACCOUNTANTS. See Accountants. CHAMBERS OF COMMERCE. Funds, public, not donated to ........................ U73-53 CHATTAHOOCHEE COUNTY. Sheriff, compensation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-70 CHICAGO BOARD OPTIONS EXCHANGE. Securities of, exemption from registration ............... 73-81 434 INDEX OP. No. CHILDREN. Adoption, see Adoption. CHILDREN AND YOUTH ACT. First Offender Act not affected by ..................... U73-7 Time factor as to custody upon conviction of crime ...... U73-7 CHILDREN AND YOUTH, STATE DIVISION FOR. After 1972, see Social Services Division. CIVIL DEFENSE. Rescue units, regulation does not repeal Good Samaritan Act ............................. 73-84 CIVIL RIGHTS. Females, employment rights of. ......................... 73-9 CLAIMS ADVISORY BOARD. Reorganization, effect upon membership ................ 73-16 COBB COUNTY. Airport, debts for construction not assumed by state .... 73-126 COLUMBUS. Recorders court, jurisdiction over drunken driving ....... 73-40 COMMISSIONERS. See specific titles : Revenue Commissioner, State; Safety, Commissioner of Public; Safety Fire Commissioner; etc. COMPUTERS. Evidence, admissibility of print-out sheets .............. 73-91 CONDEMNATION. Drugs, illegal, conveyances transporting ............... U73-63 CONDOMINIUMS. Securities, registration under law where rental pool arrangement in contract ......................... 73-100 CONFIDENTIAL COMMUNICATIONS. Certified public accountants .......................... 73-158 CONFLICTS OF INTEREST. See Officers and Employees, Public. Contractor with state contracts, officer or employee trading with ........................... 73-155 Employment, see Officers and Employees, Public. MARTA board members, among, preventing ........... U73-98 Trading With the State Law, when violated ............ 73-155 CONGRESSIONAL DISTRICTS. Appointment of officers based upon, effect of reapportionment .................................. 73-3 INDEX 435 OP. No. CONGRESSIONAL DISTRICTS-Continued. Reapportionment, effect upon Ports Authority members appointed from ........................ U73-23 CONSTITUTIONAL LAW. Amendments- Enabling Acts, necessity for .................... 73-2, 73-52 Local, ratification of .............................. U73-70 Appropriations, see Appropriations Acts. Debts of counties not assumed by state ................ 73-126 Debts, state, contracting in excess of one year prohibited ...................................... 73-27 Donations, see Funds, public, infra. Enabling Act, when needed .......................... U73-13 Funds, public, donations to private organizations prohibited ............................. U73-52, U73-53 Funds, state, appropriation committing for private organization as not valid ........................ 73-132 Gratuities, see Funds, public, supra. Litter bags for public do not constitute .............. 73-145 Scholarships for state employees legal. ............... 73-154 Precedence over statutes, Constitution takes ........... U73-70 Travel advances to state employees .................... 73-87 CONSULS, FOREIGN. Taxation- British ........................................... 73-51 Exemption as to consulate does not extend to landlord .................................... 73-51 CONTRACTS. Counties- Ambulance service, for ............................. 73-10 Labor unions, with, prohibited ...................... 73-56 Deed, for, defined .................................. U73-68 Education, county boards of, with . . . . . . . . . . . . . . . . . . . . . U73-8 StateExcess of one year, for .............................. 73-27 Foreign state, with, not terminated by statute ........ 73-121 Grass grown on highway rights-of-way, for disposal of. .................................. U73-71 Liability insurance, when required by ............... 73-151 Timber, to remove, nature of. ....................... U73-96 COOK COUNTY. Sale of county property, how accomplished ............ U73-33 436 INDEX OP. No. COPYRIGHTS. State publications, for ................................ 73-53 CORONERS. Physician's care, effect of deceased being under ......... U73-65 Sheriff, acting as . . . . . . . . . . . . . . . . . . . . ................. 73-93 CORPORATIONS. Foreign- Out-of-State Land Sales Act, qualification, under ............................ 73-140 Penalties for illegal operation in Georgia not waived . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-180 Guarantee of corporate loans as security transaction ..... 73-177 Nonprofit hospital service corporations, fees and taxes .... 73-74 Nonprofit, stock sales, when governed by Securities Act ................................... 73-25 Out-of-State Land Sales Act, qualification, under ........ 73-140 Penalties for improper operation not waived ............ 73-180 Securities, guaranty of loans, as constituting ............ 73-177 Stock sales, see Securities. CORRECTIONAL INDUSTRIES ADMINISTRATION. Funds, revolving, use for construction of facilities ........ 73-20 CORRECTIONAL INDUSTRIES, GEORGIA. Purchases from, by state agencies, when mandatory .... U73-73 CORRECTIONS, DIRECTOR OF. See Prisons and Prisoners. Work-release program, conduct of ....................... 73-7 CORRECTIONS, STATE BOARD OF. Appeal, custody of prisoners with pending .............. 73-138 Final conviction, when custody may attach without ..... 73-138 Pre-release center, not permitted to authorize private corporation to operate ............................ 73-72 Public institutions, custody of prisoners to be restricted to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-72 Wardens, qualifications, determining . . . . . . . . . . . . . . . . . . . 73-41 CORRECTIONS, STATE DEPARTMENT OF. Custody of prisoners, begins, when .................... 73-153 COSTS. Salary basis, mandatory collection where officer upon .................................... U73-43 COUNSEL. See Attorney and Client. Appointment, see Appointment of Counsel. INDEX 437 OP. No. COUNTIES. Ambulance serviceContracts respecting ................................ 73-10 Operating ......................................... 73-10 Appraiser also employed as registrar .................. U73-83 Chambers of commerce, funds not used for ............. U73-53 Commissioners, see County Commissioners. Correctional institutions, qualifications of wardens ....... 73-41 Crime control funds, use of .......................... U73-35 Donations by, see Funds, infra. Education, county boards of, see Education, County Boards of. Funds, donations to private organizations prohibited ............................. U73-52, U73-53 Health, see Health, County Boards of. Insurance for employees .............................. U73-5 Labor unions, relations with . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-56 Law libraries, see Libraries. Mentally retarded, facilities for, not interfered with by municipal zoning ordinances ................... 73-164 Mosquito control districts, establishment .............. U73-57 Municipal zoning provisions interfering with functions ... 73-164 National Guard units, appropriations, for ............... 73-15 Organ, selection of. ................................. U73-15 Prisoners of, liability for safety where city houses ....... U73-25 Prisoners, state, work release with compensation on county projects ................................. 73-104 Property, inspection by grand jury .................... U73-80 Recreation systems, maintaining ...................... U73-67 Registrar also employed as land appraiser ............. U73-83 Sales, by, how accomplished ......................... U73-33 Surveyors, see Surveyors, County. Work camps, see Prisons and Prisoners. Zoning, moratorium on building permits pending, rezoning not authorized ......................... U73-37 COUNTY COMMISSIONERS. Authority confined to that defined by law ............. U73-33 Conveying property ................................ U73-33 Individual commissioner, authority of ................. U73-50 COURT REPORTERS. Death before completing transcript, effect ............ U73-107 COURTS. Safety, responsibility for .............................. 73-57 438 INDEX OP. No. COURTS OF RECORD. What constitutes .................................... 73-17 CREDIT UNIONS. Banking and Finance, Department of, approval of bylaws by commissioner .......................... 73-32 Bylaws, approval by Commissioner of Department of Banking and Finance .......................... 73-32 CRIME CONTROL. Area planning and development commissions, city and county funds, to, for ........................ U73-35 CRIME LABORATORY, STATE. Female employees eligible for appointment as agents of Investigation Division .......................... 73-9 CRIMINAL JUSTICE ACT. See Appointment of Counsel. CRIMINAL LAW. Aiding, abetting, etc................................. 73-128 Counsel, see Appointment of Counsel. Indigent defendants, how defended .................. U73-120 Motor vehicles, alteration of suspension system ......... 73-128 Parties to crimes ................................... 73-128 Punishment, see Sentence and Punishment. Strict construction of statutes ........................ 73-128 CRIMINAL PROCEDURE. Arraignment, notice, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-26 Searches and seizures, see Searches and Seizures. Sentence, see Sentence and Punishment. CROOKED RIVER PROJECT. Veto of appropriation . . . . . . . . . . . . . . . . 0 0 0 0 0 0 0 0 U73-94 CROPS. Grass grown on highway rights-of-way, as ............. U73-71 DAMAGES. Punitive, insurance to cover ................. 0 73-78, 73-167 DEATH. Fetal, certificate upon abortion ........................ 73-71 DEEDS. Contracts for ...................................... U73-68 State, to, effect of conditions in . . . . . . . . . . . . . . . . . . . . . . . 73-182 DEFENDER, PUBLIC. Recorder, not to act as ............................. U73-120 INDEX 439 DEFENSE. See Civil Defense. OP. No. DEFENSE, PUBLIC. See National Guard. DEKALB COUNTY. Courts, jurisdiction over motor vehicle violations ....... U73-22 DELEGATION OF AUTHORITY. Proper, when . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-179 DENTAL EXAMINERS, STATE BOARD OF. Dental hygienists, regulation of ...................... U73-59 DENTAL HYGIENISTS. Regulation of ...................................... U73-59 DENTISTS. Employees, delegation of duties, to ................... U73-59 DESTRUCTION OF DOCUMENTS. See Records. DETECTIVES, PRIVATE. Regulation, of ...................................... U73-88 DEVELOPMENT AUTHORITIES. Intangibles taxes, Georgia Development Authority paper exempt from .................... U73-40 DISPOSITION OF UNCLAIMED PROPERTY. See Unclaimed Property Act. DISPOSITION OF UNCLAIMED PROPERTY ACT. Investment companies reporting, under ................ 73-113 DISPOSSESSORY PROCEEDINGS. Summons, how directed ............................ U73-121 DISTRICT ATTORNEYS. Assistant district attorneys- Practicing attorneys, as .......................... U73-112 Private practice of law prohibited, when .............. 73-69 Service as members of boards of trustees of county law libraries .......................... U73-112 Emeritus- Leaves of absence not granted ..................... U73-100 Restrictions upon other activities .................. U73-100 Time of accepting appointment . . . . . . . . . . . . . . . . . . . U73-100 State court solicitors, duties correlated with ........... U73-105 DONATIONS. Public funds, of, see Counties. 440 INDEX OP. No. DRIVERS LICENSES. Military service, persons in, to comply with visual acuity provisions ................................ 73-48 Nonresident, effect of Multi-State Reciprocal Agreement Governing Operation of Interstate Vehicles ....................................... 73-121 Reinstatement, see Suspension or revocation, infra. School bus drivers, special, not required for ............. 73-12 Suspension or revocationMunicipal court, conviction of drunken driving in ..................................... 73-49 Reinstatement procedure .......................... 73-168 Visual acuity, military personnel to comply with provisions ...................................... 73-48 DRUGS. Blood tests upon suspected users ..................... U73-34 Condemnation of conveyances transporting ............ U73-63 Dependent upon, arrest of persons .................... U73-46 Prescriptions for, mail, federally employed pharmacists, use, by ............................. 73-59 Seizures, see Condemnation, supra. Urine tests upon suspected users ..................... U73-34 DRUNKEN DRIVING. Jurisdiction of municipal courts ....................... 73-29 Municipal courts, jurisdiction, of ...................... 73-49 Recorders courts, jurisdiction .......................... 73-40 DRUNKENNESS. Recorders courts, jurisdiction over ................... U73-95 EARLY CHILDHOOD DEVELOPMENT ACT. School funds, expenditure, under . . . . . . . . . . . . . . . . . . . . . . 73-136 EAVESDROPPING. Telephone interception devices authorized by Public Service Commission as exception to law . . . . . . 73-37 ECKANKAR ASOST. Marriage ceremonies, performance of .................. U73-29 EDUCATION. Early Childhood Development Act, see Early Childhood Development Act. Federal funds, expenditure, of . . . . . . . . . . . . . . . . . . . . . . . . 73-101 Pre-school activities, expenditures for ................. 73-136 Scholarships, see Scholarships. INDEX 441 OP. No. EDUCATION, CITY BOARDS OF. Pre-school educational activities, expenditures, for ...... 73-136 EDUCATION, COUNTY BOARDS OF. Contracts- County, with ...................................... 73-14 Independent school boards, with .................... U73-8 FundsFringe benefits, insurance, etc., for employees ......... 73-65 Gymnasiums, use for construction .................. U73-61 Pre-school educational activities, expenditures, for .............................. 73-136 Gymnasiums, construction of ........................ U73-61 Hospital authority, member serving on ................ 73-146 Kindergartens, authority to operate .................... 73-88 Lease of county property, validity of ................... 73-14 Minutes of meetings, stenographic personnel or equipment to record ............................. 73-172 Pre-school educational activities, expenditures, for ...... 73-136 EDUCATION, STATE BOARD OF. Per diem for attending board meetings differs from that for committee service ........................ 73-63 Textbooks, authority to prescribe ...................... 73-79 EDUCATION, STATE DEPARTMENT OF. Funds, federal, expenditure, of ....................... 73-101 ELECTIONS. Judicial office, resignation from not required as prerequisite to candidacy for another ............. U73-51 Liquor legalization, see Intoxicating Liquors. List of electors, rights of persons whose names appear upon .................................... 73-58 Loss of registration cards, effect ....................... 73-58 Referendums, public inspection of petitions ............ U73-49 Registrars, refusal of citizens to serve on board, effect ... U73-31 Registration of electors- Cards, loss of, not prevent registered persons from voting ................................... 73-58 Right to vote, generally ............................... 73-58 EMINENT DOMAIN. "Declaration of taking" method not available to municipal corporation ........................... U73-32 Relocation Assistance and Real Properties Acquisition Act, compliance with ................. U73-38 442 INDEX OP. No. EMINENT DOMAIN-Continued. Replacement of publicly-owned facilities, participation by state in program ............................. 73-186 Transportation, State Department of, as sole agency authorized to issue declaration of taking ........................................ U73-32 EMPLOYEES RETIREMENT SYSTEM. Applications for retirement, when considered filed ...... 73-179 Documents, when filed with . . . . . . . . . . . . . . . . . . . . . . . . . . 73-179 Employees, all, included within system ................. 73-39 Guardians for minor beneficiaries, requiring appointment of ................................. 73-179 Involuntary separation benefits, effect upon, by transfer from another retirement system . . . . . . . . . . . U73-17 Personnel covered ................................... 73-39 ENVIRONMENTAL PROTECTION DIVISION. Air quality control functions, delegation to county ...... 73-161 Applicants for positions, reimbursement of expenses from federal funds .............................. 73-188 Certification of projects as necessary .................. 73-175 Fluoridation of water, duties with respect to ........... 73-181 Grants for water and sewers, Appropriations Act invalid insofar as powers of agency restricted ....... 73-147 Permits for operation of facilities, issuance ............ U73-118 Surface mining, regulation, of . . . . . . . . . . . . . . . . . . . . . . . . U73-55 ESCAPE. Sentence, for, how construed .......................... 73-42 ESTATES. Missing persons, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-54 EVIDENCE. Computer print-out sheets, admissibility ................ 73-91 EXECUTIVE ORDERS. See Governor. EXEMPTIONS FROM TAXATION. See Homestead Exemptions; Taxation. EXTRADITION. Credit on sentence for time in confinement awaiting ......................................... 73-5 FAMILY AND CHILDREN SERVICES, COUNTY BOARDS OF. Human Resources, State Department of, effect of reorganization ................................... 73-67 INDEX 443 OP. No. FARM MACHINERY. Tax exempt, as not ................................. U73-89 FEDERAL GOVERNMENT. Abortion, effect of federal court decisions upon .......... 73-24 Drugs, mail delivery by federally employed pharmacist ...................................... 73-59 Hospitals not accredited by state ..................... U73-45 Statutes of, see Statutes. FEES. Salary basis, mandatory collection where officer upon . . . U73-43 FINANCING AND INVESTMENT COMMISSION. World Congress Center, authority as to ................ 73-162 FINE AND FORFEITURE FUND. Procedure to collect from ............................ U73-24 FINES. Collection of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-24 Disposal of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-24 Transportation Department not to retain .............. 73-149 Use of funds ....................................... 73-149 FIREMEN. Scholarships for children where parent killed or disabled in line of duty ........................... 73-26 FIREMEN'S PENSION FUND, GEORGIA. Applications- Reinstatement to membership in, for ................ U73-47 Time of ......................................... U73-47 Break in service, effect .............................. U73-47 Full-time employment, necessity for ................... U73-47 Vested rights prohibited ............................. U73-79 Volunteer firemenComputation of benefits ........................... U73-79 Eligible to participate, when ...................... U73-104 FIRST OFFENDER ACT. Children and Youth Act does not modify ............... U73-7 FISCAL AFFAIRS SUBCOMMITTEES. General Assembly, of, transfer of funds ................. 73-76 FLUORIDATION. See Water. FOOD. Meat labels to show place of packaging ................. 73-98 Service establishments, public inspection of inspection records ............................... U73-84 444 INDEX OP. No. FOREIGN CORPORATIONS. See Corporations. FORESTRY COMMISSION, STATE. Bibb County, contract with for sewer line, as valid ...... 73-174 Sewer line, validity of appropriation to construct ....... 73-174 FORFEITURES. Disposal of funds ................................... 73-149 FULTON COUNTY. Air quality control functions ......................... 73-161 Labor unions, relations of board of family and children services, with ............................ 73-56 FUNCTIONAL REPLACEMENT OF PUBLICLYOWNED FACILITIES PROGRAM. Transportation, State Department of, participation in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-186 GAME AND FISH. Captivity, status of game animals held in . . . . . . . . . . . . . . . 73-35 Ownership of wild animals in state ..................... 73-35 GENERAL ASSEMBLY. University of Georgia employee as member ............ U73-85 GEORGIA BUREAU OF INVESTIGATION. After 1972, see Investigation, Division of. GEORGIA DEVELOPMENT AUTHORITY. Intangible taxes, paper of, exempt from ............... U73-40 GEORGIA, STATE OF. See State of Georgia. GEORGIA STATE PATROL. See State Patrol. GIFT ENTERPRISES. Lotteries, as ....................................... U73-115 GOOD SAMARITAN ACT. Repeal not effected by amendments to Civil Defense Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-84 GOVERNOR. Advance payment of expenses for employees, order for ....................................... U73-2 Executive orders effective after expiration of term ....... U73-2 Veto of appropriations provisions ..................... U73-94 GRADY MEMORIAL HOSPITAL. Insurance, employees not eligible under state plan ....... U73-5 INDEX 445 OP. No. GRAND JURIES. Alcoholics, recommendations as to transportation of ... U73-109 County tax equalization boards, jurors as members of ................................... U73-111 Inspections limited to county property ................ U73-80 GRANDFATHER CLAUSES. Insurance brokers, surplus line, licenses, for ............. 73-90 GWINNETT JUDICIAL CIRCUIT. Juvenile court judge, compensation ................... U73-92 GYMNASIUMS. School funds, use for construction ..................... U73-61 HABEAS CORPUS. Safety of courts during hearings, responsibility for ....... 73-57 HAIR. Implanting as practice of medicine .................... 73-141 HEALTH. Occupational Safety and Health Act, federal, preemptions by ................................. 73-125 HEALTH, COUNTY BOARDS OF. Human Resources, State Department of, effect of reorganization ................................... 73-67 Mentally retarded, facilities for care, of . . . . . . . . . . . . . . . . 73-164 Sanitarian, appointment of, not supplant necessity for ................................... U73-21 HEALTH, COUNTY DEPARTMENTS OF. Alcoholics, transportation of . . . . . . . . . . . . . . . . . . . . . . . . U73-109 Records, public inspection .......................... U73-84 HEALTH, PUBLIC. Liberal construction of statutes providing for .......... U73-57 HEALTH, STATE DEPARTMENT OF PUBLIC. Reorganization, effect of .............................. 73-16 HENRY COUNTY. Superior court clerk, compensation of employees ........ U73-64 HIGHWAY AUTHORITY, GEORGIA. Reconveyances of rights-of-way to governmental subdivisions when bonds paid off ................. 73-119 HIGHWAY DEPARTMENT, STATE. Reorganization, effect of .............................. 73-16 HIGHWAYS. Abandoned vehicles, removal. ........................ 73-165 Closing, authority as to .............................. 73-184 446 INDEX OP. No. HIGHWAYS-Continued. Interstate, see Interstate Highways. Kansas City-Brunswick, advance of funds, for . . . . . . . . . . 73-105 Load limits on vehicles, compliance with regulations ... U73-103 Project files, retention of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-89 Relocation and Land Acquisition Policy Act, see Relocation Assistance, etc., Act. Safety, State Department of Public, authority of. ....... 73-184 Transportation, State Department of, jurisdiction ....... 73-184 Unattended vehicles, removal. ........................ 73-165 HISTORICAL COMMISSION, GEORGIA. After 1972, see Natural Resources, State Department of. Board of Commissioners abolished .................... 73-111 HOME RULE. Compensation of municipal employees and officers, increasing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-77 HOMESTEAD EXEMPTIONS. Age 55- Railroad Retirement Act benefits as income ........... 73-38 Aged persons- Implementation of constitutional provisions ........... 73-52 Enabling Act, when needed after constitutional amendment ...................................... 73-2 Implementation of constitutional amendment on state-wide basis .................................. 73-52 Municipal corporations not to grant . . . . . . . . . . . . . . . . . . U73-93 Railroad Retirement Act benefits considered as income ......................................... 73-38 HOSPITAL AUTHORITIES. Education, county board of, member serving upon ...... 73-146 HOSPITAL SERVICE NONPROFIT CORPORATIONS. Charters, renewal and amendment ..................... 73-94 Fees and taxes ...................................... 73-74 HOSPITALS. Accredited, how .................................... U73-45 Federal Government, of, not accredited by state ........ U73-45 HUMAN RESOURCES, STATE DEPARTMENT OF. Abortion- Authority to regulate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-24 Records of, required ................................ 73-71 INDEX 447 OP. No. HUMAN RESOURCES, STATE DEPARTMENT OF-Continued. Claims Advisory Board, chief administrative officer to sit upon ................................ 73-16 County boards of family and children services, relations with ................................... 73-67 County boards of healthRegulations as to ................................. U73-21 Relations with ..................................... 73-67 County works camps not subject to standards set by ..... 73-117 Funds appropriated to, for private organization not authorized .................................. 73-132 Juvenile offenders, custody of. ........................ 73-99 Mental institutions, appointment of nonmedical personnel as superintendents ...................... 73-43 INCOME TAXES. Nonresident employees of state agencies, withholding .................................... 73-170 Out-of-state employees, withholding by state agency for benefit of foreign state ................. 73-170 Refund checks, unclaimed, handling of funds ........... 73-103 INDETERMINATE SENTENCE LAW. Release of prisoners sentenced under ................... 73-33 INSPECTIONS. Grand juries, by ................................... U73-80 Livestock concentrations ............................. 73-64 Records, see Records. INSURANCE. Automobiles, see Motor Vehicle Safety Responsibility. Brokers, surplus line, licenses, for ...................... 73-90 Health, see Hospital Service Nonprofit Corporations; Nonprofit Medical Service Corporations. Public officers and employees, for .................... U73-5 Hospital service nonprofit corporations, see Hospital Service Nonprofit Corporations. Liability, see Motor Vehicle Safety Responsibility. Pest control companies, required for ................... 73-8 Public officials, for ................................ 73-167 Punitive damages, to cover .................. 73-78, 73-167 State agencies may purchase, when ................. 73-151 Motor vehicle, see Motor Vehicle Safety Responsibility. Uninsured motorist coverage, exclusions restricted ..................................... 73-28 448 INDEX OP. No. INSURANCE-Continued. Nonprofit medical service corporations, see Nonprofit Medical Service Corporations. Pest control companies, liability, for .................... 73-8 Punitive damages, to cover ........................... 73-78 School superintendents, county, interpretation of contracts, for ................................. 73-65 Uninsured motorist coverage, exclusions restricted ....................................... 73-28 INSURANCE COMMISSIONER. Brokers licenses, surplus line, regulations as to ........... 73-90 INSURANCE COMPANIES. Brokers, surplus line, licenses, for ...................... 73-90 Hospital service nonprofit corporations, see Hospital Service Nonprofit Corporations. Fees and taxes .................................... 73-74 Nonprofit medical service corporations, see Nonprofit Medical Service Corporations. Uninsured motorist coverage, exclusions restricted ....... 73-28 INTANGIBLES TAXES. Georgia Development Authority paper as exempt ....... U73-40 Public property exempt ............................. U73-40 INTEREST. Banks- Commercial, chargeable by . . . . . . . . . . . . . . . . . . . . . . . . . 73-163 State, rate permitted ............................... 73-44 Time deposits, reduction of, upon, effect . . . . . . . . . . . . . . . 73-150 INTERSTATE HIGHWAYS. Federal requirements as to maintenance ............... U73-71 Grass on rights-of-way, disposal of .................... U73-71 INTOXICATING LIQUORS. Election as to sale- Petition for election, public inspection ............... U73-49 Referendum, see Election as to sale, supra. INVESTIGATION, DIVISION OF. Before 1972, see Georgia Bureau of Investigation. Compensation of investigators, how fixed .............. 73-123 Female employees of State Crime Laboratory eligible for appointment as agents . . . . . . . . . . . . . . . . . . . 73-9 Witness fees for members ........................... U73-110 INVESTMENT COMPANIES. Abandoned property, reports, of ...................... 73-113 INDEX 449 OP. No. JUDGES. Election, resignation from judicial office not required as prerequisite to candidacy for another ....................................... U73-51 JUSTICE OF THE PEACE. Service of process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. U73-69 Small claims courts, jurisdictions compared ............ U73-99 Summons, how served ............................... U73-69 JUVENILE COURTS. Clerk, superior court clerk not entitled to extra compensation for serving as ..................... U73-39 Judges, compensation ............................... U73-92 Offender Rehabilitation, Department of, commitment of juveniles to ..................... U73-101 JUVENILE OFFENDERS. Confinement, period of .............................. U73-36 Custody of .......................................... 73-99 Offender Rehabilitation, Department of, custody by ................................... U73-101 Probation not affected by Children and Youth Act ...... U73-7 Sentences, construction where held under Youthful Offender Act ........................... 73-36 Social Services Division, custody in ................... U73-36 Superior court, jurisdiction over ...................... U73-13 Youthful Offender Act- Construction of .................................... 73-36 Effect of sentence, under .......................... U73-60 Status of one serving under, and also offense under another statute .......................... 73-82 KINDERGARTENS. School funds, use, for ................................. 73-88 LABOR. Collective bargaining, county, by ....................... 73-56 LABOR, STATE DEPARTMENT OF. Occupational Health and Safety Act, federal, effect of, upon .................................. 73-125 LABOR UNIONS. Counties, relations, with .............................. 73-56 Employees, public, right to join ....................... 73-56 LAKE LANIER ISLANDS DEVELOPMENT AUTHORITY. Law enforcement programs, cooperation, in ............ U73-48 LAND. See Real Estate. 450 INDEX LAND SALES. OP. No. Land Sales Act- Local approval of plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-112 Out-of-State Land Sales Act, property registered under . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-108 Out-of-State Land Sales Act- Correlated with Georgia Land Sales Act. . . . . . . . . . . . . 73-157 Land registered under, prior to amendment of Land Sales Act ............................... 73-108 LANDLORD AND TENANT. Consulate, foreign, tax exemption for, does not extend to landlord ............................... 73-51 LEAVE, ANNUAL. Status with respect to compensation .................. 73-173 LEGISLATIVE RETIREMENT SYSTEM. Employees Retirement System, effect of transfer to, upon involuntary separation benefits .............. U73-17 LIABILITY INSURANCE. See Insurance. LIBRARIES. County law libraries- Assistant district attorneys as practicing attorneys within meaning of law ............... U73-112 LICENSES. Livestock concentrations, operating . . . . . . . . . . . . . . . . . . . . . 73-64 Malt beverages, for possession and sale ............... U73-108 Mobile homes, out-of-state manufacturers . . . . . . . . . . . . . . . 73-73 LIMITATION OF ACTIONS. Highway Project contracts, upon . . . . . . . . . . . . . . . . . . . . . . 73-89 LIMITED PARTNERSHIPS. Securities, filing fees for interests, as .................. 73-169 LITERATURE COMMISSION, STATE. Quorum, what constitutes ........................... 73-183 LITTER BAGS. Furnishing to public, use of funds, for ................. 73-145 LIVESTOCK. Concentrations of, subject to licensing and inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-64 Tax exempt, when .................................. U73-89 LOTTERIES. Gift enterprises ................................... U73-115 Sweepstake schemes ............................... U73-115 INDEX 451 OP. No. MALT BEVERAGES. Amount which may be possessed without licenses ...... U73-108 Licenses ........................................... U73-41 Licenses to sell, necessity for . . . . . . . . . . . . . . . . . . . . . . . . U73-108 Sunday, closing of sales establishments on . . . . . . . . . . . . . U73-41 MANDAMUS. Application of remedy ............................... U73-16 MAPS. See Plats. MARRIAGE. Ceremony, performance by religious society or sect ..... U73-29 MARTA. Charter services beyond metropolitan area .............. 73-60 Conflict of interest among board members, preventing..................................... U73-98 Ethics, code of, for board members . . . . . . . . . . . . . . . . . . . U73-98 MASTER AND SERVANT. Injuries to servant, see Workmen's Compensation. MEAT. Labels to show place of packaging ..................... 73-98 MEDICAL ASSOCIATION, GEORGIA. Investigatory powers of medical examiners not j delegated to .................................... 73-127 MEDICAL EXAMINERS. Acupuncture, regulation of practice ................... 73-131 Investigatory powers not delegated ................... 73-127 MEDICAL PRACTITIONERS. See Physicians. MEDICINE, PRACTICE OF. See Physicians. Emergency treatment by technicians .................. 73-139 MENTAL ILLNESS. See Mental Institutions. Convicts, discharge summaries to Board of Pardons and Paroles .............................. 73-54 Custody of patient by peace officer, taking ............. U73-46 MENTAL INSTITUTIONS. See Central State Hospital. Nonmedical personnel as superintendents ............... 73-43 452 INDEX OP. No. MENTALLY ILL PERSONS. Hospitalization continued, fees of ordinary for hearing ........................................ U73-4 MENTALLY RETARDED PERSONS. Homes established by Department of Human Resources ...................................... 73-164 Municipal corporations not to interfere with county care for ................................. 73-164 MERIT SYSTEM, STATE. Clerical errors, correction of. .......................... 73-34 Compensation of persons under, authority of State Personnel Board, as to ...................... 73-80 Employees Retirement System, classified and unclassified persons included ....................... 73-39 Investigators, Division of Investigation, not fixed, by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-123 Transfer of funds, how authorized ..................... 73-76 Workmen's Compensation Board, authority respecting personnel. ............................ 73-144 MILITARY SERVICE. Drivers licenses, personnel to comply with visual acuity provisions ................................ 73-48 Missing persons, in, estates .......................... U73-54 MILITIA. See National Guard. MINES AND MINING. Surface, see Surface Mining. MINORS. Adoption, see Adoption. MISSING PERSONS. Estates, of, laws applicable .......................... U73-54 MOBILE HOMES. Manufacturers, out-of-state, inspection fees ............. 73-73 Out-of-state manufacturers, inspection fees .............. 73-73 Public employee, of, expense allowance for moving ...... 73-171 MOSQUITO CONTROL. Districts, establishment by counties and municipal corporations . . . . . . . . . . . . . . . . . . . . . . . . . U73-57 MOTOR CARRIERS. Over-height permits, conditions for issuance ............ 73-110 INDEX 453 OP. No. MOTOR FUEL TAXES. See Taxation. Litter bags for public, expenditure, for ................ 73-145 MOTOR VEHICLE COMMON CARRIERS. Temporary emergency authorization to operate .......... 73-85 MOTOR VEHICLE SAFETY RESPONSffiiLITY. Drivers licenses, reinstatement after revocation ......... 73-168 Nonresident vehicles, self-insurance for ................. 73-19 Self-insurance for nonresident vehicles .................. 73-19 Uninsured motorist coverage, effect of .................. 73-28 MOTOR VEHICLES. Abandoned, removal from highway .................... 73-165 Ambulances, when regulations to be complied with ...... 73-143 Bumper standards, laws governing .................... U73-76 Carriers, see Motor Vehicle Common Carriers. Crimes, alteration of suspension system ................ 73-128 Drivers licenses, see Drivers Licenses. Flashing lights, university security officers, for . . . . . . . . . . . 73-23 Fuel taxes, see Taxation. Height, see Motor Carriers. Inspections, jurisdiction of municipal courts for violations .................................... 73-29 License tags- Nonresident, effect of Multi-State Reciprocal Agreement Governing Operation of Interstate Vehicles ..................................... 73-121 Tax commissioners eligible to retain fees, when ........ U73-6 Load limits, compliance with requirements ............ U73-103 Loading, safe, fines and forfeitures from violations ...... 73-149 Log grapple loaders, as .............................. U73-82 Mobile homes, see Mobile Homes. Out-of-state, effect of compact ........................ 73-121 Passenger cars, regulation of ........................... 73-92 Pistols carried in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 73-66 Purchase of, by state, see Administrative Services, State Department of. Regulations, "multi-purpose passenger" vehicles not exempt, from ................................ 73-92 Size and weight- Jurisdiction of violations . . . . . . . . . . . . . . . . . . . . . . . . . .U73-22 Suspension system, alteration as crime ................. 73-128 Unattended, removal from highway ................... 73-165 Weight, see Size and weight, supra. 454 INDEX OP. No. MULTI-STATE RECIPROCAL AGREEMENT GOVERNING OPERATION OF INTERSTATE VEHICLES. Effect of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-121 MULTI-STATE TRANSPORTATION ROUTE ADVISORY BOARD. Expenditures by Department of Transportation, for, not authorized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-116 MUNICIPAL CORPORATIONS. Bonds, sinking funds, investment, of. ................. U73-75 Chambers of commerce, donations to, prohibited ....... U73-53 County facilities for mentally retarded not interfered with .................................. 73-164 Crime control funds, use of .......................... U73-35 Detectives, private, regulation preempted by state ...... U73-88 Eminent domain, "declaration of taking" method not available ................................... U73-32 Employees, compensation increases ................... U73-77 Fluoridation of water within, when required ............ 73-181 Funds, sinking, see Bonds, supra. Home Rule Act, see Home Rule. Homestead exemptions not granted, by ................ U73-93 Mayors' courts, appointment of judges ................ U73-62 Mosquito control districts, establishment .............. U73-57 National Guard units, appropriations, for . . . . . . . . . . . . . . . 73-15 Officers, compensation increases ...................... U73-77 Ordinances, see Ordinances. Powers, general law and charter considered together ..... U73-102 Prisoners of county, liabilities for safety ............... U73-25 Retirement plans for employees, publication .......... U73-119 Sinking funds, see Bonds, supra. Streets, closing ..................................... U73-44 Taxation- Homestead exemptions not granted by .............. U73-93 Water, fluoridation of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-181 MUNICIPAL COURTS. Jurisdiction of traffic violations ..................... U73-117 NATIONAL GUARD. Appropriations for units by cities and counties . . . . . . . . . . . 73-15 Tort by guardsman .................................. 73-95 NATURAL RESOURCES, STATE DEPARTMENT OF. Environmental Protection Division, see Environmental Protection Division. Fluoridation of water, administration of law ............ 73-107 INDEX 455 OP. No. NATURAL RESOURCES, STATE DEPARTMENT OFContinued. Funds, restrictions upon use for county-maintained fishing pier ..................................... 73-122 Historical Commission, transfer of functions, to . . . . . . . . . 73-111 Purchases from Georgia Correctional Industries, when mandatory ............................... U73-73 NEIGHBORHOOD YOUTH CORPS. Workmen's Compensation Act, subject to .............. 73-134 NEWSPAPERS. County organ, selection of ........................... U73-15 NONPROFIT MEDICAL SERVICE CORPORATIONS. Charters, amendment and renewal ..................... 73-94 OBSCENITY. Adult movie houses, definition ....................... U73-56 OCILLA, CITY OF. Recorder's court to remit to Peace Officers Annuity and Benefit Fund ............................... U73-72 OCCUPATIONAL HEALTH AND SAFETY ACT. Preemptions by ..................................... 73-125 OFFENDER REHABILITATION, STATE DEPARTMENT OF. Juvenile offenders, custody of . . . . . . . . . . . . . . . . . 73-99, U73-101 OFFICERS AND EMPLOYEES, PUBLIC. Agricultural commodities commissions, members as officers, rather than employees ..................... 73-68 Applicants for positions, reimbursement of expenses ............................... 73-97, 73-188 Appointment based on congressional districts ............. 73-3 Attorney, as not .................................... U73-91 Authority employees not carried as state employees ..... 73-106 Authority limited to that defined by law .............. U73-32 Bonds, when necessary .............................. 73-176 Compensation- Investigators, Division of Investigation, fixed by statute, rather than by merit system ............ 73-123 State Personnel Board, authority respecting ........... 73-80 Conflicts of interest, see Simultaneous employment, infra. Congressional districts, appointed from, effect of reapportionment, upon .......................... U73-23 Education, see Scholarships, infra. Employees Retirement System, all included in ............ 73-39 456 INDEX OP.No. OFFICERS AND EMPLOYEES, PUBLIC-Continued. Expenses- Applicants for employment, reimbursement from federal funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-188 Per diem in lieu of reimbursement not authorized ..... 73-115 Relocation- Mobile home, moving, for ...................... 73-171 Planning and Budget Office, authority of. ........ 73-171 Travel, advance payment ........................... U73-2 Female employees of State Crime Laboratory eligible to be agents of Division of Investigation ............. 73-9 Fringe benefitsCompensation, as item of . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-65 Insurance, as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-167 InsuranceCounty employees, eligibility ....................... U73-5 Fringe benefit, as .................................. 73-65 Judicial office, resignation from not required as prerequisite to candidacy for another ................ U73-51 Labor unions, right to join . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-56 LeaveAnnual, status with respect to compensation .......... 73-173 Educational ...................................... 73-154 Per diem in lieu of reimbursement of expenses not authorized ..................................... 73-115 Per diem payable only after effective date of authorizing statute ............................... 73-62 Political activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-87 Refusal to accept office, right of citizen ................ U73-31 Reimbursement of expenses, applicants for positions ...... 73-97 Relocation, see Expenses, supra. Residence requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-97 Salary increases, correction of clerical error .............. 73-34 SalesContractor with state contracts, officer or employee trading with ......................... 73-155 Scholarships, for .................................... 73-154 Simultaneous employmentEducation, county board memberHospital authority, member of .................. 73-146 General Assembly member as University of Georgia employee ............................ U73-85 Grand jurors as members of tax equalization boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... U73-111 INDEX 457 OP. No. OFFICERS AND EMPLOYEES, PUBLIC-Continued. Simultaneous employment-Continued. Public defender as recorder ....................... U73-120 Recorder as public defender ...................... U73-120 Registrar, county and land appraiser, county, as ....... U73-83 Tax equalization board members as grand jurors ...... U73-111 University of Georgia employee as General Assembly member ............................ U73-85 Strikes, by, prohibited ................................ 73-56 Suggestion and Awards Program, status of funds used for ... 73-86 Travel advances, to .................................. 73-87 Vacancy by removal from jurisdiction................. U73-97 Wardens of correctional institutions, qualifications . . . . . . . 73-41 OPEN RECORDS LAW. See Records. ORDINANCES. Definiteness ........................................ 73-160 ORDINARIES. Court of ordinary, self-representation, in . . . . . . . . . . . . . . U73-66 Fees- Mentally ill persons, hearing as to continued hospitalization ................................ U73-4 JurisdictionTraffic violations. . . . . . . . . . . . . . . . . . .............. U73-117 OSTEOPATHS. Physician, when entitled to license, as .................. 73-31 OUT-OF-STATE LAND SALES ACT. See Land Sales. Corporations, qualification, under ..................... 73-140 Georgia Land Sales Act correlated with ................ 73-157 OUTDOOR ADVERTISING. Compensation to property owner upon removal. ......... 73-21 Number of sign facings permitted at one location ....... 73-124 Permission by nearby residence owners ................ 73-124 Permits for devices, when required ..................... 73-21 Permits required ................................... U73-20 Transportation Department, State, regulation, by ...... U73-20 Zoning, effect of .................................... U73-20 OVERWEIGHT TRUCK STATUTE. Jurisdiction of violations ............................ U73-22 PARAMEDICAL PERSONNEL. Emergency treatment, by ............................ 73-139 458 INDEX OP. No. PARDONS. Convicted, recipient cannot lawfully deny that he has been ..................................... 73-61 Effect of, generally ................................... 73-61 PARDONS AND PAROLES, STATE BOARD OF. Indeterminate sentence law, release of prisoner sentenced under ................................. 73-33 Majority vote, requirement of ........................ 73-137 Mental patient inmates, discharge summaries . . . . . . . . . . . . 73-54 Notice of parole consideration to trial court; persons under life sentence ............................... 73-50 Reorganization, effect of .............................. 73-22 Sex criminals, personnel employed to examine ........... 73-22 PARENT AND CHILD. Adoption of child, see Adoption. Termination of relationship, how effected . . . . . . . . . . . . . . . 73-13 PAROLE. Consecutive sentences, computation with respect to ..... 73-109 Indeterminate sentence law, release of prisoner sentenced under ................................. 73-33 Life sentences, notice to court officials of consideration of parole for persons serving ....................... 73-50 Youthful Offender Act, construction of .................. 73-36 PARTNERSHIPS. Limited, see Limited Partnerships. PEACE OFFICERS. Age requirements ................................... 73-130 Alcoholics, taking into custody ....................... U73-46 Drug dependent persons, taking into custody .......... U73-46 Mentally ill persons, taking into custody .............. U73-46 Scholarships for children when parent killed or disabled in line of duty ........................... 73-26 PEACE OFFICERS ANNUITY AND BENEFIT FUND. Recorders courts to remit to ......................... U73-72 PEACE OFFICERS STANDARDS AND TRAINING ACT. Age requirements ................................... 73-130 PEACE WARRANTS. Police officer, against, not necessarily result in suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-27 PEACH QUEEN. Workmen's compensation, for ......................... 73-68 INDEX 459 OP. No. PERSONNEL BOARD, STATE. Compensation of officers and employees, authority as to ... 73-80 Workmen's Compensation Board, authority respecting personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... 73-144 PEST CONTROL. Bonds, coverage, by ................................... 73-8 Liability insurance required for companies ............... 73-8 PESTICIDES. See Pest Control. PHARMACISTS. Federally employed, mailing of prescriptions, by ......... 73-59 PHARMACY, STATE BOARD OF. Acupuncture devices, regulation of .................... 73-131 Condemnation of conveyances transporting illegal drugs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U73-63 PHYSICIANS. Acupuncture, practice of ............................. 73-131 Custody of drug addicts, alcoholics, and mentally ill upon certificate, of . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-46 Hair implants as practice of medicine .................. 73-141 Investigations by State Board of Medical Examiners, power not delegated ............................. 73-127 Liability, see Good Samaritan Act. Licenses, osteopaths not entitled to, where graduated prior to July 1, 1963 .............................. 73-31 Mental institutions, nonmedical personnel as superintendents .................................. 73-43 Osteopaths, when entitled to license, as ................. 73-31 Paramedical personnel, treatment, by .................. 73-139 Surgery defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-141 Technicians, treatment by, when under ................ 73-139 PISTOLS. See Weapons. PLANNING AND BUDGET, OFFICE OF. Relocation of public employee, authority as to expenses, .. 73-171 PLANNING CO.I.VIMISSIONS. Land sales, approval of plans ......................... 73-112 PLATS. Real estate conveyances, use in ...................... U73-19 PODIATRISTS. Licensing, see Podiatry Examiners, State Board of. 460 INDEX OP. No. PODIATRY EXAMINERS, STATE BOARD OF. Reciprocity, rejection of applications for licenses, by ..... 73-135 POLICE OFFICERS. Peace warrant against, not necessarily cause of suspension ..................................... U73-27 Scholarships for children where parent killed or disabled in line of duty ........................... 73-26 POLLUTION. See Air Quality Control; Environmental Protection Division. PORTS AUTHORITY, STATE. Appointment of members, effect of reapportionment, upon ... 73-3 Reapportionment, effect upon members appointed from congressional districts . . . . . . . . . . . . . . . . . . . . . . U73-23 POST MORTEM EXAMINATIONS. Physician's care, effect of deceased being under . . . . . . . . . U73-65 PRACTICE OF LAW. See Attorney and Client. PRESCRIPTIONS. Mail, delivery by federally employed pharmacist . . . . . . . . . 73-59 PRISONS AND PRISONERS. Appeal pending, custody where ................ 73-138, 73-153 Compensation of prisoner for work within confines not permitted ..................................... 73-7 Construction of facilities, funds for ..................... 73-20 County prisoners housed by city, liabilities for safety ... U73-25 County work camps not subject to standards set by Human Resources Department ................... 73-117 Custody by Department of Corrections begins, when .... 73-153 Custody restricted to public instrumentalities ............ 73-72 Detention facilities regulated by Human Resources Department, county works camps not included within . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-117 Funds, use by Correctional Industries Administration of revolving, for construction ...................... 73-20 Guards, scholarships for children where parent killed or disabled in line of duty . . . . . . . . . . . . . . . . . . . 73-26 Juveniles, see Juvenile Offenders. Liability for safety where city houses county prisoners ... U73-25 Mental patients, discharge summaries to Board of Pardons and Paroles .............................. 73-54 INDEX 461 OP. No. PRISONS AND PRISONERS-Continued. Municipal corporation housing county prisoners, liabilities for safety ............................. U73-25 Parole, see Pardons and Paroles, State Board of; Parole. Pre-release centers not operated by private corporations .... 73-72 Private corporations forbidden to operate pre-release centers .......................................... 73-72 Probation, see Probation. Records, medical, release of ........................... 73-77 Sentence, see Sentence and Punishment. Sex criminals, personnel employed to examine ........... 73-22 Transportation, of, sovereign immunity applied, to ...... 73-156 Wardens- Liability for injury to inmate where appeal pending ..... 73-138 Qualifications of. .................................. 73-41 Work-release inmates, work on county projects ......... 73-104 Work-release program, compensation for work performed within confines of institution not permitted .......... 73-7 PRIVATE DETECTIVES. See Detectives, Private. PRIVATE INVESTIGATORS. Weapons, concealed, not permitted to carry ............ U73-1 PROBATION. Credit on sentence for time prior to revocation ........... 73-1 Fine, contingent upon payment ........................ 73-96 Juvenile offenders, of, not affected by Children and Youth Act .................................. U73-7 Restitution, contingent upon .......................... 73-96 Youthful Offender Act, status of one serving under, and also offense under another statute .............. 73-82 PROPERTIES CONTROL COMMISSION, STATE. World Congress Center, appropriation for .............. 73-152 PROPERTY. Abandoned, see Disposition of Unclaimed Property Act. Bank deposits, see Banks and Banking. Public- Beaches, as ....................................... U73-3 Replacement where taken for public purposes ......... 73-186 Tidelands, as ..................................... U73-3 StateConditions subsequent in deed, effect of . . . . . . . . . . . . . . 73-182 Game animals ..................................... 73-35 462 INDEX OP. No. PROPERTY-Continued. State-Continued. Grass grown on highway rights-of-way, as ........... U73-71 Improvements upon only where state owns fee ......... 73-30 Use according to conditions in deeds ................. 73-182 Unclaimed, disposition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-11 PUBLIC SAFETY. See Safety, Commissioner of Public. PUBLIC SERVICE COMMISSION. Changes in utility rates, power to examine ............... 73-6 Eavesdropping statute, authorized telephonic inter- ception devices as exception ....................... 73-37 Extension of rate schedules ............................ 73-70 Motor carriers, temporary emergency authorization to operate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-85 Suspension of rate schedules ........................... 73-70 Telephonic interception devices authorized as exception to eavesdropping statute ................. 73-37 PUBLIC UTILITIES. See Utilities, Public. PUBLICATION. State agencies, by- Copyrights, necessity ............................... 73-53 Sale of subscriptions ................................ 73-53 PUNITIVE DAMAGES. Insurance to cover ................................... 73-78 PURCHASES, SUPERVISOR OF. After 1972, see Administrative Services, State Department of. PURCHASING AND SUPPLIES DIVISION. See Administrative Services, State Department of. QUORUM. What constitutes .................................... 73-183 RAILROAD RETIREMENT ACT. Homestead exemptions, benefits considered income for purposes of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-38 REAL ESTATE. Contracts for deed, effect of ......................... U73-68 Plats, use in conveyances ............................ U73-19 Sales, see Land Sales. REAL ESTATE BROKERS. Business brokers need not qualify, as .................. 73-142 INDEX 463 OP. No. REAPPORTIONMENT. Appointment of officers based on congressional districts, effect upon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-3 Ports Authority members appointed from congressional districts, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-23 RECORDERS COURTS. Drunkenness, public, jurisdiction to try ............... U73-95 Misdemeanors, jurisdiction, over ..................... U73-95 Peace Officers Annuity and Benefit Fund, to remit to ... U73-72 Traffic violations- Appeal to superior court ........................... U73-58 Jurisdiction, see Traffic Control. Uniform system of citations and reports, use of ........ 73-18 RECORDS. Abortion, required, as to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-71 Highway Project files, retention, of ..................... 73-89 Inspection of public- Bonds in judicial proceedings . . . . . . . . . . . . . . . . . . . .. U73-114 Clerks of court, records of. ....................... U73-114 Food service establishments, inspection .............. U73-84 Liquor referendum petitions ....................... U73-49 Transportation Department, certain records not public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-55 Open Records Law, see Inspection of public, supra. Prisoners, former, release of medical history ............. 73-77 What constitutes ..................................... 73-55 RECREATION. Counties, authority to maintain systems ............... U73-67 REFERENDUM. Water fluoridation, as to ............................ U73-28 REHABILITATION. See Corrections, State Board of; Offender Rehabilitation, State Department of. RELIGIOUS ORGANIZATIONS. Marriage ceremonies, performance of. ................. U73-29 RELOCATION ASSISTANCE, etc., ACT. State laws conforming to ............................ U73-38 REORGANIZATION. Bureau of Investigation, effect upon ..................... 73-9 Claims Advisory Board, effect upon membership ......... 73-16 Environmental Protection Division, creation, of ........ U73-55 Historical Commission, transfer to Department of Natural Resources . . . . . . . . . . . . . . . . . . . . . ......... 73-111 464 INDEX OP. No. REORGANIZATION---Continued. Human Resources, State Department of, county boards of health and of family and children services, effect upon relationship with ............................ 73-67 Investigation, Division of, creation ...................... 73-9 Judicial construction of Act ........................... 73-111 Natural Resources Department, Historical Commission transferred to ....................... 73-111 Pardons and Paroles, State Board of, effect upon ......... 73-22 Supervisor of Purchases, functions transferred to Director, Purchasing and Supplies Division, Department of Administrative Services . . . . . . . . . . . . . . . . . . . . . . . . .. 73-118 Water fluoridation, effect upon administration of law .... 73-107 REPORTERS, COURT. See Court Reporters. RETIREMENT. Construction of statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-45 Firemen, see Firemen's Pension Fund, Georgia. Municipal employees, publication of notice of plan or amendment thereto . . . . . . . . . . . . . . . . . . . . . . . . . U73-119 Railroad Retirement Act benefits considered income for purposes of homestead exemption .................. 73-38 Transfer of credits, effect upon involuntary separation ... U73-17 Vested service credits, effect upon by transfer from one system to another ........................... U73-17 REVENUE COMMISSIONER, STATE. Rebates, property tax, regulations to be promulgated ..... 73-46 Refund checks unclaimed, handling of funds ............ 73-103 RICHMOND COUNTY. Tax assessors, law governing joint city-county board .... U73-11 ROME. Municipal court, jurisdiction over drunken driving ....... 73-49 RULES AND REGULATIONS. Statutes, to comply with ............................. 73-168 SAFETY. Occupational Safety and Health Act, federal, preemptions by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-125 SAFETY, COMMISSIONER OF PUBLIC. Deputy commissioner acting as commissioner, compensation ................................... 73-166 Drivers licenses, reinstatement ........................ 73-168 INDEX 465 Or. No. SAFETY FIRE COMMISSIONER. Mobile homes, out-of-state manufactured, duties respecting ....................................... 73-73 SAFETY, STATE DEPARTMENT OF PUBLIC. Bonds of officers, when necessary ..................... 73-176 Closing highways, authority . . . . . . . . . . . . . . . . . . . . . . . . . . 73-184 Investigation, Division of, see Investigation, Division of. Passenger car regulations to extend to certain "multi-purpose passenger" vehicles . . . . . . . . . . . . . . . . . 73-92 School bus drivers, special regulations as to, not authorized ................................... 73-12 Traffic control, authority over ........................ 73-184 Traffic violations, uniform citations and reports required ... 73-18 SALARIES. Increases, correction of clerical errors, as to ............. 73-34 SALES. Tickets to athletic contests, regulated ................... 73-4 SALES AND USE TAXES. Nonprofit organizations, collection, by .................. 73-83 Soda ash for reducing water pollution not exempt ...... U73-18 Vocational technical schools, collection, by .............. 73-83 SAVANNAH SHELTERED WORKSHOP. Appropriation 'committed to, not valid . . . . . . . . . . . . . . . . . 73-132 SCHOLARSHIPS. Children of law enforcement officers, firemen, and prison guards killed or disabled in line of duty, for ......... 73-26 Public employees, for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-154 SCHOOL BUSSES. Drivers, special training not required ................... 73-12 SCHOOL SUPERINTENDENTS, COUNTY. Fringe benefits, for ................................... 73-65 Insurance, for ....................................... 73-65 Minutes of board meetings, use of stenographic personnel or equipment to record ................. 73-172 SCHOOLS, PUBLIC. Expulsion of students, authority as to ................. 73-185 Funds- Federal, expenditure, of ............................ 73-101 Kindergartens, use, for ............................. 73-88 Sales and use taxes not collected, not used to cover liability ................................. 73-83 Pupils, expulsion .................................... 73-185 466 INDEX OP. No. SCHOOLS, PUBLIC-Continued. Superintendents, see School Superintendents, County. Textbooks, prescribed, how ............................ 73-79 SEARCHES AND SEIZURES. Anonymous tip as basis ............................. U73-14 SECRETARY OF STATE. Penalty against corporation for improper conduct of business not to be waived ........................ 73-180 SECURITIES. Bonds of salesmen and dealers continued under new Act ....................................... 73-159 Chicago Board Options Exchange, exemption of securities ........................................ 73-81 Condominium project with rental pool. ................ 73-100 Dealers, bonds continued under new Act ............... 73-159 Exemptions from registration .......................... 73-81 Guarantee of corporate indebtedness with increase in corporate assets as benefit to guarantor as security .... 73-177 Land development schemes, when governed ............. 73-25 Limited partnership interests, fees for filing ............ 73-169 Nonprofit corporations, when shares governed by Act ..... 73-25 Recreational land development scheme, shares in, as governed by statute .............................. 73-25 Salesmen, bonds continued under new Act ............. 73-159 Whiskey, purchase of in foreign warehouse as within securities law ................................... 73-187 SENTENCE AND PUNISHMENT. Ambiguities, in, construed in favor of accused ........... 73-42 Computation of sentences- Federal and state simultaneous sentences ............ 73-148 Concurrent, when sentences are ....................... 73-148 Consecutive, when sentences are ...................... 73-148 Credit- Extradition, time spent in confinement awaiting ........ 73-5 Probation, time prior to revocation .................... 73-1 Trial, time prior to .................................. 73-1 Escape, computation with respect to other sentences being served ..................................... 73-42 Indeterminate sentence law, release of prisoner sentenced under after expiration of minimum term ............ 73-33 Juveniles, see Juvenile Offenders. Life sentence, construed with statute requiring notice where parole considered ........................... 73-50 INDEX 467 OP. No. SENTENCE AND PUNISHMENT-Continued. Parole, computation of consecutive sentences for ........ 73-109 Probation, see Probation. Youthful Offender Act- Construction of .................................... 73-36 Status of one serving under, and also offense under another statute ........................... 73-82 SEX. Discrimination in employment based upon ............... 73-9 SEX CRIMINALS. Examination, of, personnel to conduct .................. 73-22 SHELLMAN, CITY OF. Streets, authority to close . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-44 SHERIFFS. Arrest, of ........................................... 73-93 Automobile, personally owned, not purchased through Department of Administrative Services ............. 73-47 Compensation, increases mandatory under statute ....... U73-9 Mandamus to compel delinquent tax collection ......... U73-16 Safety of courts, responsibility for ...................... 73-57 Tax collections, compelled, when ..................... U73-16 SMALL CLAIMS COURTS. Equipment and supplies, furnishing ................... U73-86 Justices of the peace, jurisdiction compared with . . . . . . . U73-99 Service of process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U73-69 SOCIAL SERVICES DIVISION. Before 1972, see Children and Youth, State Division for. Juvenile offenders, custody of ........................ U73-36 SODA ASH. Sales and use taxes, not exempt from ................. U73-18 SOVEREIGN IMMUNITY. See State of Georgia. Prisoners, transportation, of, doctrine applied ........... 73-156 STATE COURTS. Clerks- Bonds in judicial proceedings, recording ............ U73-114 Serving also as clerks of superior courts, compensation ................................ U73-42 Solicitors, duties correlated with those of district attorney ...................................... U73-105 468 INDEX OP. No. STATE OF GEORGIA. Debt, contracting, see Contracts. Debts of county not assumed, by . . . . . . . . . . . . . . . . . . . . . 73-126 Funds- Accountancy Board not to use public funds for expenses of meeting of national organization ...... 73-120 Alabama, advance to, for highway purposes . . . . . . . . . . 73-105 Fishing pier, county maintained, restrictions on use, for ...................................... 73-122 Private organization, appropriation committed to, not authorized ................................ 73-132 Suggestion and Awards Program for employees, use for ........................................ 73-86 Transfer of, how authorized ......................... 73-76 Travel advances to employees ....................... 73-87 Treasury, state, to be paid into ..................... 73-120 Game animals, ownership of ........................... 73-35 Gratuities, see Constitutional Law. Liability insurance, when purchased by state agency .... 73-151 National Guard, see National Guard. PublicationsCopyrights ........................................ 73-53 Sale of subscriptions ................................ 73-53 Sovereign immunityNational Guardsman on active duty, tort by .......... 73-95 Transportation of prisoners, doctrine applied, to ...... 73-156 STATE PATROL. Witness fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-110 STATUTES. Appropriations, see Appropriations. Appropriations Acts, see Appropriations Acts. Authority granted by, restricted by terms of Act ....... U73-80 Conflicts, see Construction, infra. Constitution takes precedence over .................... U73-70 ConstructionAdministrative, deference accorded ................... 73-37 Conflicts, reconciliation ............................. 73-45 History, legislative, consideration of ................... 73-2 Latest expression by legislature ..................... 73-114 Penal statutes .................................... 73-128 Retirement benefits, laws granting ................... 73-45 Retroactive, avoided ............................... 73-108 INDEX 469 STATUTES-Continued. OP. No. Construction-Continued. \Vhole system to which it forms part, consideration ..... 73-31 Words given ordinary signification ................... U73-9 Contracts of state not impaired by .................... 73-121 Effective date- Per diem payments dependent upon .................. 73-62 Enabling Acts, necessity for ...................... 73-2, 73-52 Federal Occupational Safety and Health Act, preemptions by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-125 Health, in furtherance of, to be liberally construed ...... 73-175 Ordinances, see Ordinances. Preemption by state laws ............................ U73-88 Repeal- Generallaw not repeal local or special unless manifest legislative intent ..................... U73-11 Implication, by ............................. 73-84, 73-165 Implication, by, not favored ....................... U73-90 Reenactment, substantial, effect .................... 73-159 Revivor of previous Act by .......................... 73-99 Revivor by repeal of repealer .......................... 73-99 Rules and regulations to comply with .................. 73-168 Veto, see Governor. STERILIZATION. "Accredited hospital," meaning under Act ............. U73-45 STREETS. Municipal corporation, authority to close . . . . . . . . . . . . . . U73-44 SUGGESTION AND AWARDS PROGRAM. See Officers and Employees, Public. SUMMERVILLE. Recorder's court, jurisdiction over traffic offenses ....... U73-30 SUNDAY. Begins, when ...................................... U73-41 Malt beverage sales ................................. U73-41 SUPERIOR COURT CLERKS. Bonds in judicial proceedings, recording . . . . . . . . ...... U73-114 Compensation, additional- Juvenile court, none for serving as clerk ............. U73-39 Other courts, serving as clerk, for ........... U73-39, U73-42 Employees, of, compensation . . . . . . . . . . . . . . . . . . . . . . . . U73-64 Fees- Mandatory collections where clerk on salary ......... U73-43 Tax assessor, county, for supplying records to ....... U73-113 470 INDEX OP. No. SUPERIOR COURT CLERKS-Continued. Records- Bonds in judicial proceedings, recording ............ U73-114 Inspection by public ............................. U73-114 Salary basis, mandatory collection of fees where clerk upon ..................................... U73-43 SUPERIOR COURTS. Appeals to, from recorders courts ..................... U73-58 Judges- Expenses, reimbursement .......................... U73-90 Judges emeritus- Eligibility for appointment ........................ U73-10 Qualifying for another office . . . . . . . . . . . . . . . . . . . . . . . U73-91 Salary increase for judges, effect upon compensation ..... 73-75 Suspension of eligibility ........................... U73-91 Widows' benefits ........................... 73-75, U73-10 Jurisdiction not vacated by creation of coordinate jurisdiction in inferior court . . . . . . . . . . . . . . . . . . . . . U73-105 Juvenile offenders, jurisdiction over ................... U73-13 SUPERVISOR OF PURCHASES. Reorganization, transferred by, to Department of Administrative Services .......................... 73-118 SURFACE MINING. Affected land ...................................... U73-55 Environmental Protection Division, functions of ........ U73-55 Reclamation of land, regulation . . . . . . . . . . . . . . . . . . . . . . U73-55 Regulation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-55 SURVEYORS, COUNTY. Removal from county, effect ......................... U73-97 SWEEPSTAKE SCHEMES. Lotteries, as ...................................... U73-115 TAX ASSESSORS. Joint city-county boards, laws affecting ............... U73-11 Records, fees payable to clerk for furnishing .......... U73-113 TAX COLLECTORS. Commissions- Tax relief grants not to affect ...................... 73-129 Compensation, see Commissions, supra. Special taxes, reports of, to grand jury ............... U73-81 TAX COMMISSIONERS. Commissions- Tax relief grants not to affect . . . . . . . . . . . . . . . . . . . . . . . 73-129 INDEX 471 OP. No. TAX COMMISSIONERS-Continued. Compensation, see Commissions, supra. Motor vehicle license tags, fees to be retained, when ..... U73-6 TAX EQUALIZATION BOARDS. Grand jurors as members ........................... U73-111 TAXATION. Ad valorem, see Ad Valorem Taxes. Equalization, see Tax Equalization Boards. Exemptions- Constitutional restrictions upon .................... U73-89 Consular property, see Consuls, Foreign. Farm machinery not exempt ....................... U73-89 Homestead, see Homestead Exemptions. Household goods ................................. U73-89 Laborers, manual, tools and implements, of .......... U73-89 Livestock, upon .................................. U73-89 School taxes, from, necessity of enabling Act ........... 73-2 Gasoline, see Motor fuel, infra. Hospital service nonprofit corporations, of. .............. 73-74 Income taxes, see Income Taxes. Motor fuel, see Motor Fuel Taxes. Bikeways, not used, for ............................ 73-133 Relief, tax, by state not to affect commissions of collecting officers ............................. 73-129 Sheriffs, collection of delinquent taxes, by, compelled, when .......................................... U73-16 Special taxes, duties of tax collector, as to ............. U73-81 TEACHERS. Terminal leave pay not considered in computing retirement pay .................................. 73-173 TEACHERS RETIREMENT LOCAL SYSTEMS. Retired teachers, minimum floor of benefits not permitted ...................................... U73-78 TEACHERS RETIREMENT SYSTEM. Construction of statute ............................... 73-45 Local systems, see Teachers Retirement Local Systems. Reinstatement of withdrawn personnel, contribution payments ............................ 73-45 Terminal leave pay not considered in computing retirement pay .................................. 73-173 472 INDEX OP. No. TEXTBOOKS. Prescribed, how ...................................... 73-79 THOMAS COUNTY. Election board of registrars, effect of citizens refusing to serve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-31 TICKETS. Athletic contests, to, sales regulated . . . . . . . . . . . . . . . . . . . . . 73-4 TIDELANDS. Title to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-3 TIMBER. Ad valorem taxes upon, standing . . . . . . . . . . . . . . . . . . . . . U73-96 Contracts to remove, nature of ....................... U73-96 TOURISM. Funds, state, expenditure, for .......................... 73-30 TRAFFIC CONTROL. Safety, State Department of Public, jurisdiction over .... 73-184 Transportation, State Department of, jurisdiction over ... 73-184 Uniform citations and reports, mandatory use of. ........ 73-18 Violations- Appeals from recorders courts to superior courts ...... U73-58 Bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............... U73-122 Jurisdiction of ........................... U73-21, U73-117 Municipal courts- Jurisdiction ..................................... 73-49 Trying .......................................... 73-29 Recorders courts, jurisdiction of ........ 73-18, 73-40, U73-30 Uniform citations and reports, mandatory use of. ...... 73-18 TRANSIT PROJECTS, PUBLIC. Atlanta, see MARTA. Funds from, use by State Department of Transportation ................................ U73-106 TRANSPORTATION BOARD, STATE. Per diem of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-114 TRANSPORTATION, CODE OF PUBLIC. See Motor Vehicles. TRANSPORTATION, COMMISSIONER OF. Over-height permits for motor carriers, issuance of ...... 73-110 TRANSPORTATION, STATE DEPARTMENT OF. Air carrier demonstration projects, participation in ...... 73-178 Airports, restrictions on use of state funds, for . . . . . . . . . . 73-126 Bikeways, funds which may be used for ................ 73-133 INDEX 473 OP. No. TRANSPORTATION, STATE DEPARTMENT OFContinued. Claims Advisory Board, director to sit upon ............. 73-16 Fines and forfeitures not retained by . . . . . . . . . . . . . . . . . . 73-149 Funds- Advance of, to Alabama ........................... 73-105 Borrowing from individuals with pledge of reimbursement prohibited ....................... 73-27 Motor fuel tax, from, expenditure for litter bags ...... 73-145 N onhighway public transit project, from, use of ..... U73-106 Highways, authority to close ......................... 73-184 Multi-State Transportation Route Advisory Board, expenditures for, not authorized ................... 73-116 Outdoor advertising- Devices, see Outdoor Advertising. Regulation, of .................................... U73-20 Records, certain, not subject to public inspection ........ 73-55 Records of project files, retention, of ................... 73-89 Replacement of publicly-owned facilities, authority as to .......................................... 73-186 Traffic regulations, authority over ..................... 73-184 UNCLAIMED PROPERTY ACT. Construction of ...................................... 73-11 UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTIES ACQUISITION POLICIES ACT. See Relocation Assistance, etc., Act. UNINSURED MOTORISTS. Exclusions from coverage restricted .................... 73-28 UNIVERSITY SYSTEM OF GEORGIA. General Assembly member as employee ............... U73-85 Regents- Compensation, how fixed . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-167 Liability insurance, for ............................. 73-167 Security officers, flashing lights on vehicles . . . . . . . . . . . . . . 73-23 UPPER MULBERRY RIVER WATERSHED WORK PROJECT. Braselton, town of, participation in . . . . . . . . . . . . . . . . . . U73-102 URINE TESTS. Drug violators, suspected, upon ...................... U73-34 USURY. See Interest. Time deposits, reduction of interest upon, effect ........ 73-150 474 INDEX OP. No. UTILITIES, PUBLIC. Rate changes- Authority of Public Service Commission ............... 73-6 Procedure, for ..................................... 73-70 Regulation, see Public Service Commission. VETERANS. Nursing home, purchase of malpractice liability insurance, for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-151 VETERANS SERVICE, DEPARTMENT OF. Invalid car, operation of ............................. 73-143 VETO. See Governor. VITAL STATISTICS. Abortion, fetal death certificates and records of. ......... 73-71 VOCATIONAL TECHNICAL SCHOOLS. Sales and use taxes, collection, by ...................... 73-83 VOLUNTARY STERILIZATION ACT. See Sterilization. WARDENS. Prisons, of, qualifications .............................. 73-41 WARRANTS. Arrest, physician's certificate in lieu of, when .......... U73-46 WASHINGTON COUNTY. Small claims court, jurisdiction ....................... U73-99 WATER. Fluoridation- Administration of law by Department of Natural Resources ............................ 73-107 Incorporated areas, within . . . . . . . . . . . . . . . . . . . . . . . . . . 73-181 Statutory provisions .............................. U73-28 Unincorporated areas, 1973 law not applicable to ...... 73-181 WEAPONS. Pistols- Automobiles, carrying, in . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-66 Concealed on person, carrying ....................... 73-66 License to carry ................................... 73-66 Private investigators, carrying . . . . . . . . . . . . . . . . . . . . . . . . U73-1 WELCOME CENTERS. State expenditures upon, limited to instances where state owns fee .................................... 73-30 INDEX 475 OP. No. WHISKEY. Purchase in foreign warehouse as within securities law ... 73-187 WILLACOOCHEE. Municipal court, jurisdiction over motor vehicle and traffic offenses ............................... 73-29 WITNESSES. Fees ............................................. U73-110 WORDS AND PHRASES. Accredited hospital ................................. U73-45 Adult movie houses ................................. U73-56 Area planning and development commissions ........... U73-35 Bikeways .......................................... 73-133 Contracts for deed .................................. U73-68 Courts of record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73-17 Crops ............................................. U73-71 Detention facilities .................................. 73-117 Employer .......................................... 73-134 Facility .......................................... U73-118 Fix ............................................... U73-92 In furtherance of .................................... 73-175 Log grapple loader .................................. U73-82 Majority vote ...................................... 73-137 "May" .............................................. 73-2 Necessary .......................................... 73-175 Pardon ............................................. 73-61 Patients (mental) .................................... 73-54 Practice of criminal law . . . . . . . . . . . . . . . . . . . . . . . . . . . . U73-120 Private passenger automobile . . . . . . . . . . . . . . . . . . . . . . . . . . 73-92 Public records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-55 Public roads ........................................ 73-133 Records ............................................. 73-55 Regular continuing basis ............................ U73-56 Reimbursement of expenses .......................... 73-115 Shall ................................................ 73-2 Special taxes ....................................... U73-81 Surgery ............................................ 73-141 WORK-RELEASE PROGRAM. See Prisons and Prisoners. 476 INDEX OP. No. WORKMEN'S COMPENSATION. Agricultural commodities commissions, for compensated employees only .................................. 73-68 Board of- Merit System, State, authority respecting personnel .... 73-144 Personnel Board, State, authority respecting personnel . . . . . . . . . . . . . . . . . . . . ................ 73-144 Loaned servants, application to ....................... 73-134 Neighborhood Youth Corps as subject to Act ........... 73-134 Peach Queen, compensated, for ........................ 73-68 WORLD CONGRESS CENTER. Appropriation, for, invalid provisions .................. 73-152 Financing.......................................... 73-162 WRIGHTSVILLE, CITY OF. Mayor's court, appointment of judge ................. U73-62 YOUTHFUL OFFENDER ACT. See Juvenile Offenders. Custody of offenders .................................. 73-99 Sentences under, construction as to juveniles ............ 73-36 Status of one serving under, and also offense under another statute .................................. 73-82 ZONING. County health functions not interfered with by municipality .................................... 73-164 Moratorium on building permits pending rezoning not authorized ................................. U73-37 Outdoor advertising devices, for ...................... U73-20