Opinions of the Attorney General 1974

OPINIONS
of
THE ATTORNEY GENERAL
1974
ARTHUR K. BOLTON
ATTORNEY GENERAL
CURTISS PRINTING CO., INC.
62 ELLIS STREET, N. E. ATLANTA, GEORGIA

TABLE OF CONTENTS

PAGE

OFFICIAL OPINIONS, 1974........................... .

1

UNOFFICIAL OPINIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335

TABLE 1. UNITED STATES CONSTITUTIONAL PROVISIONS CITED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517

TABLE 2. GEORGIA CONSTITUTIONAL

PROVISIONS CITED. . . . . . . . . . . . . . . . . . . . . . . . . . . .

517

TABLE 3. GEORGIA LAWS CITED. . . . . . . . . . . . . . . . .

519

TABLE 4. GEORGIA CODE ANNOTATED SECTIONS CITED . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . 531

INDEX......................................

549

11

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 .............................. 19:32-1932 M. J. YEOMANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1933-1939 ELLIS G. ARNALL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1939-1943 GRADY HEAD..................................... 1943-1945 EUGENE COOK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1945-1965 ARTHUR K. BOLTON .............................. 1965-
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ARTHUR K. BOLTON The Attorney General
v

LEGAL STAFF OF DEPARTMENT OF LAW DURING CALENDAR YEAR 1974

NAME

TITLE

Bolton, Arthur K. Stubbs, Robert S., II Adams, Sarah H. Andrews, Gary B. Bailey, David J. Ballard, John B., Jr. Barmeyer, Patricia T. Bartee, William F., Jr. Biggins, Franklin N. Bomar, RobertS. Bowers, Michael J. Bowling, Gerald W. Buckland, Lauren 0. Burke, Thomas P. Chambers, Richard L. Christian, Janice J. Coleman, J. Robert Cotter, Stephen L. Daugherty, Julius C., Jr. Davis, George T. Dyer, Michael W. Dyson, J. David Dunsmore, John W., Jr. Edenfield, Bruce M. Evans, Alfred L., Jr. Goldstein, Melvin M. Gordon, Marion 0. Greene, Thomas W. Grindle, B. Dean, Jr. Hall, Robert E. Harris, W. Hensen, Jr. Jones, Carl C., III Joy, William C. King, David L. G., Jr.

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

Vll

LEGAL STAFF-Continued

NAME

TITLE

Kirkley, Dorothy Y. Lackey, R. Douglas Langham, Don A. Lawler, J. Timothy Macintyre, David I., IV Matson, Roland F. McKellar, Clinton, Jr. Michael, H. Perry Oakley, Lois F. Odom, Donn L. Owen, H. Andrew, Jr. Parker, G. Stephen Perry, J. Lee Petersen, R. David Ridley, Eleanor H. Roach, Hal, Jr. Runnion, David A. Ruskaup, Larry D. Shell, Robert H. Spivey, Verley J. Stanton, Courtney W. Sullivan, Michael E. Sweeney, Timothy J. Tripp, David A. Yancey, Wayne P.

Assistant Attorney General Assistant Attorney General Assistant Attorney General Deputy Assistant Attorney General Assistant Attorney General Assistant Attorney General Attorney 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 AssiJ3tant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General

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FOREWORD
It is the duty of the Attorney General, when required to do so by the Governor, to give his opinion in writing on any question of law connected with the interest of the state or with the duties of any of its departments. Ga. Code Ann. 40-1602, Par. 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. The "unofficial opinions" have been separated from and follow the "official opinions" herein.
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."
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: "70-1," "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," ... "U71-1," "U71-2," etc., refer to "unofficial opinions."
IX

OFFICIAL OPINIONS
of
THE ATTORNEY GENERAL
"
1974
xi

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74-1

OPINION 74-1

To: Commissioner, Department of Banking and Finance

January 2, 1974

Re: Commissioner of Banking and Finance may provide to Federal Deposit Insurance Corporation copies of reports of examination of state banks.

This is in reply to the request by your office for advice as to whether Ga. Code Ann. 13-409 permits the Commissioner of Banking and Finance to provide to the Federal Deposit Insurance Corporation reports of examination of state banks by the Department of Banking and Finance. The issue involved is whether the department and its predecessors have been correct in a long-standing practice of providing such reports to FDIC. It is presented because under a contemplated change in FDIC policy such exchanges will become more imperative in the future.
Code 13-409, which generally prohibits disclosure of examination reports, is derived from Ga. Laws 1919, p. 135. While it specifically permits disclosure of examination reports to the Federal Reserve System and the Comptroller of the Currency, it has not been amended to include specific reference to the FDIC, which was created in 1933. Act of June 16, 1933, Ch. 89, 8, 48 Stat. 168. However, Code 13-409 does provide that the commissioner
" ... may when he shall deem it to be for the best interest of the bank in question discuss its affairs with . . . persons interested therein or affected thereby."
The exact scope of this exception to the general prescription of secrecy is not entirely clear. Nevertheless, it is clear that FDIC is a person within the meaning of Code 13-409 and that under its statutory jurisdiction and responsibilities it is " ... interested ... or affected ..." in the affairs of state banks deposits in which the FDIC insures. 12 U.S.C.A. 1817. It is also clear that the Commissioner of Banking and Finance may reasonably conclude that disclosure as a matter of course of such reports to the FDIC for the statutory purposes of that entity is in the interest of the bank examined.
It is, therefore, my official opinion that as a matter of course the Commissioner of Banking and Finance may under Code 13-409 provide to the Federal Deposit Insurance Corporation for its statutory purposes reports of examination of state banks made by the Department of Banking and Finance if the commissioner deems it to be in the interest of the banks examined to do so.

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OPINION 74-2

To: Joint Secretary, State Examining Boards

January 2, 1974

Re: Landscape architects licensed under Ga. Laws 1958, p. 400 (Ga. Code Ann. Ch. 84-40), are licensed to prepare drainage plans.

You have requested my official opinion with regard to the following questions:
1. Does a licensed landscape architect have the right to prepare drainage plans in the State of Georgia'?
2. If so, is a DeKalb County zoning ordinance, which requires that registered professional engineers prepare drainage plans submitted to the county, thus excluding such plans prepared by licensed landscape architects, in conflict with the state law'?
A "landscape architect" is defined by Ga. Laws 1958, p. 400 (Ga. Code Ann. 84-4001), as
" ... a person licensed to practice or teach landscape architecture in this state . . . by preparing and supervising the carrying out of general development and detailed design plans, studies, and specifications for the design and arrangement of land forms and nonhabitable features ... for public or private use and enjoyment, encompassing drainage . .. including ... the design of ... subdivisions ..." (Emphasis added.)
In determining the meaning of the above definition, it is important to note that "[t]he ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject-matter...." Ga. Code 102-102, ~ 1.
No words of art or words connected particularly with landscape architecture are used in Ga. Code Ann. 84-4001. Based on the ordinary meaning of the language used in that section, it is my official opinion that landscape architects clearly may prepare drainage plans for the design and arrangement of land forms and nonhabitable features.
Your request as to whether Ga. Code Ann. 84-4001 conflicts with a DeKalb County ordinance was prompted by the view of certain county officials that state law did not permit licensed landscape architects to prepare drainage plans. In view of the unavoidable conclusion that the county's interpretation of Ga. Code Ann. 84-4001 is erroneous, we believe it appropriate that the county reexamine its position in light of our view of the statute. If that procedure does not resolve the issue, we will render any further advice that you may request.

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OPINION 74-3

To: Director, State Merit System

January 2, 1974

Re: Employment of a religious therapy program director for the state prisons does not violate the establishment clause of the First Amendment to the United States Constitution.

This is in response to your recent letter regarding the proposed creation of the State Merit System class of religious therapy program director (RTPD). From the items attached to your request, it appears that the RTPD's chief duty will be to coordinate the activities of the various prison chaplains. Consequently, his duties, like those of a prison chaplain, will be nonsectarian in nature. Basically you are asking if the state's employment of a RTPD violates the establishment clause of the First Amendment to the United States Constitution (Ga. Code Ann. 1-801). The First Amendment provides in part that:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ...."
The First Amendment must be considered in light of the situation. The state has incarcerated the inmates in prisons. For obvious reasons, the prisoners may not leave their confinement to find food, clothing, medical assistance or to worship. In short, they are not free men.
These men are placed in the custody of the Department of Offender Rehabilitation, which must provide their basic needs, whether those needs be physical, mental or spiritual. To meet this responsibility, the prisons should have a professional staff of doctors, social workers, educators and clergymen. See Theriault v. Carlson, 339 F. Supp. 375, 380 (N.D. Ga. 1972).
This is especially true in the case of clergymen. The incarceration of men convicted of criminal acts is a necessary infringement upon their free exercise of religion. See Abington School District v. Schempp, 374 U.S. 203, 298 (1963) (concurring opinion of Mr. Justice Brennen); Theriault v. Carlson, supra at 381. The state, to diminish this infringement, may hire a staff of chaplains whose duties are nonsectarian. See Abington School District v. Schempp, supra at 298; Theriault v. Carlson, supra at 381.
On the other hand, it might seem that the state's hiring of prison chaplains or a RTPD violates the establishment clause of the First Amendment. The courts have pointed out that the inmates are not forced to utilize the available chaplain services, and, unlike the school prayer situation, the prisoners are adults. Considering these facts, the

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courts have consistently stated that if the hiring of prison chaplains did infringe upon the establishment clause of the First Amendment, it would be sustained on constitutional grounds as necessary to secure the prisoner's right of worship as guaranteed under the Free Exercise Clause of the First Amendment to the United States Constitution. See Abington School District v. Schempp, supra at 298; Theriault v. Carlson, supra at 381.
For the above reasons, it is my official opinion that the State Merit System's creation of the position of Religious Therapy Program Director in the Department of Offender Rehabilitation is not in violation of the First Amendment to the United States Constitution so long as his duties are nonsectarian.

OPINION 74-4

To: Joint Secretary, State Examining Boards

January 7, 1974

Re: Citizenship requirements for licensure by state examining boards for certain professions and trades are unenforceable under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (Ga. Code Ann. 1-815).

This is in response to your letter of October 19, 1973, requesting my opinion as to whether the State Board of Accountancy should continue to enforce the statutory citizenship requirement for licensure as a certified public accountant. Ga. Code Ann. 84-207 (a), based upon Ga. Laws 1935, p. 85, as amended.
Your request is prompted by a recent decision of the United States
InSupreme Court. In re Griffiths, 413 U.S. __, 37 L.Ed.2d 910 (1973). that case, the Supreme Court held unconstitutional under the Equal Protection Clause of the Fourteenth Amendment a rule of the Connecticut Supreme Court which made citizenship a requirement for admission to the Bar. Connecticut advanced several arguments to sustain the requirement, notably that it served to insure that only qualified and loyal applicants were admitted to a profession, the members of which are deemed to be "officers of the court." The Supreme Court, holding that classifications based on alienage are "inherently suspect" under the Equal Protection Clause and therefore must be supported by a "compelling" state interest, rejected each argument noting that each state interest asserted could be served by provisions other than a broad alien exclusion.
I am reluctant to advise against enforcement of a state statute on constitutional grounds since it is the function of the Attorney General to defend state laws and only a court may finally determine the con-

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stitutionaHty of a statute. In view of the Supreme Court's decision in Griffiths, however, I am convinced that we could advance no argument to support the citizenship requirement of Code 84-207 (a) that has not been rejected by the Supreme Court in that case. In view of the potential liability of state officers under 42 U.S.C. 1983 for continued enforcement of that provision, it is my opinion that the State Board of Accountancy should cease enforcement of the alien exclusion imposed by Ga. Code 84-207 (a).
Necessarily, this opinion also reaches the alien exclusion imposed with respect to various other professional and trade examining boards assigned to your office, a compilation of which I have appended to this opinion.1
As to certain of the examining boards affected, I recognize that cessation of enforcement of citizenship requirements presents serious problems to those boards in insuring that the admission of aliens to a particular profession does not adversely affect public health and safety. This is true, for example, in the case of the medical profession where the failure to insure a licentiate's proficiency in the English language, which might otherwise be assumed from citizenship, may create serious potential public health problems. For that reason, we are preparing legislation designed to fill the gap caused by In re Griffiths, supra. In the interim, I recommend that each examining board involved which is faced with an alien's application for admission undertake to insure prior to licensure that admission to practice would not create a hazard to public health, safety, or welfare. This might be accomplished by personal interview of such applicant by the particular examining board.

APPENDIX

Examining Boards where citizenship is a prerequisite to licensure:

1. State Board of Pharmacy

Ga. Code 79A-402, 79A-502

2. State Board for Examination and Registration of Architects Ga. Code 84-303

1 Nothing in this opinion or in the Griffiths case affects otherwise reasonable requirements, such as graduation from a professional school approved by the examining board, which may in effect exclude aliens from licensure, nor statutory provisions which confer benefits on aliens, such as Ga. Code Ann. 84-927, based upon Ga. Laws 1939, p. 319, as amended.

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APPENDIX-Continued.

3. State Board of Dental Examiners

Ga. Code 84-709

4. State Board of Funeral Service Ga. Code 84-809

5. State Board of Medical Examiners

Ga. Code 84-925

6. Georgia Real Estate Commission

Ga. Code 84-1411

7. State Board of Veterinary Medicine

Ga. Code 84-1506

8. State Board of Examiners of Psychologists

Ga. Code 84-3107

9. State Board of Polygraph Examiners

Ga. Code 84-5007

10. State Board of Examiners of Nurses (Licensed Practical Nurses)

Ga. Code 84-1022

OPINION 74-5

To: Commissioner, Department of Transportation

January 7, 1974

Re: Improvements to portions of the existing State Highway System may be constructed, under stated circumstances, with funds generated from the sale of bonds to finance undertakings of the State Tollway Authority.

This is in reply to the inquiry in which you asked whether proceeds from the sale of State Tollway Authority bonds may be used to upgrade certain existing state highway facilities. Your inquiry is premised upon the following: (1) Tolls would not be charged on existing portions of highway facilities improved with tollway bond funds; (2) The improved highway facilities would serve as "feeder routes" to a tollway

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project; and (3) Improvement of existing highway facilities would be undertaken only if the work enhanced the fiscal feasibility of a tollway.
This opinion also rests upon the following assumptions: (1) The highway facilities with respect to which improvement is contemplated are a part of the State Highway System within the meaning of Ga. Laws 1973, pp. 947, 965 (Ga. Code Ann. 95A-201 (a)); (2) The existence of an unrestrained right to alienate the rights-of-way upon which improvements are to be made1; and (3) All requirements relating to internal financial operations are met.
For the purpose of constructing a tollway, the State Tollway Authority is authorized to acquire real property (Ga. Laws 1973, pp. 947, 1157 (Ga. Code Ann. 95A-1241 (b)) and the Governor is authorized to convey to the State Tollway Authority, on behalf of the state, portions of the "state's highway rights-of-way ...." Ga. Laws 1973, pp. 947, 1162 (Ga. Code Ann. 95A-1244).
The State Tollway Authority is authorized
"To construct, erect, acquire, own, repair, maintain, add to, extend, improve, operate, and manage projects ...." Ga. Laws 1973, pp. 947, 1157 (Ga. Code Ann. 95A-1241 (f)).
It is assumed that upgrading a highway facility means to improve the highway. Thus, if the highway which is to be improved is a State Tollway Authority project, it appears that the foregoing enumeration of powers is sufficient to authorize the authority to undertake the improvement of its projects.
Within the context of State Tollway Authority undertakings, a project is
"One or more bridges, or a system of roads, bridges, and tunnels, with access limited or unlimited, as determined by the Authority, and such buildings, structures, parking areas, appurtenances, and facilities related thereto, including, but not limited to, approaches, cross streets, roads, bridges, tunnels, and avenues of access for such system." Ga. Laws 1973, pp. 947, 1154 (Ga. Code Ann. 95A-1238 (c)).
It is noted that by definition a State Tollway Authority project is, among other things, a system of roads and "avenues of access for such system." Ga. Laws 1973, pp. 947, 1154 (Ga. Code Ann. 95A-1238(c)). It is my opinion that an existing highway facility which would be a "feeder route" into a tollway could be considered as an avenue of access to a tollway system within the meaning of the statutory definition of the term "project"; provided, of course, that the "feeder route" bears an actual and legitimate relationship to a tollway as an avenue of

1 Title examinations have not been requested at this time and none have been made.

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access to the tollway. It cannot be assumed that inclusion of an avenue of access to a tollway within the definition of a tollway project would necessarily require that the avenue of access be available for use by the public only upon paying a toll.
It is obvious that the construction of projects by the State Tollway Authority is to be financed from the sale of bonds, and to this end the authority "is authorized and empowered to collect tolls on each and every project which it shall cause to be constructed." Ga. Laws 1973, pp. 947, 1163 (Ga. Code Ann. 95A-1245). In determining the meaning of a statute, "The ordinary signification shall be applied to all words . . . ." Ga. Code 102-102 (1). The phrase "is authorized and empowered" ordinarily conveys the meaning, and it is commonly understood to mean, that an act may or may not be done within the discretion of the body authorized to make the decision. Had the General Assembly intended that the use of each portion of a tollway project would be predicated upon the payment of a toll for the use of that portion of the project, it would have presumably required in mandatory terms that the authority collect tolls for such use rather than simply authorizing and empowering the authority to collect tolls. The statute gives the authority some latitude in delineating tollway projects and in determining which portions of those projects shall be subjected to tolls; but it must be borne in mind that the statute envisions that the cost of a tollway project shall be paid from toll receipts. In this connection, I must also advise that "the authority is charged with the duty of the operation of each project at the most reasonable possible level of toll charges ...." Ga. Laws 1973, pp. 947, 1163 (Ga. Code Ann. 95A-1245). The inclusion of extensive portions of non-toll-bearing highways within a tollway project could conceivably preclude the authority from meeting the requirement that a project be operated at the most reasonable level of toll charges. This consideration is likely to vary from case to case and it is obviously a question of fact which would have to be determined by the authority. It is, however, one facet of the third assumption, expressed above, upon which this opinion rests, i.e., that all internal financial requirements imposed by the statute be met.
In summary, it is my opinion that it would be lawful, under certain circumstances, for portions of the State Highway System to be included in a State Tollway Authority project and for such portions of highways to be improved with funds of the State Tollway Authority and further that such portions of tollway projects need not necessarily be included in that portion of the project which can be used by the public only upon payment of a toll.

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OPINION 74-6

To: State Auditor

January 9, 1974

Re: The State Board of Corrections is without power to increase compensation of Director of Corrections by resolution or to pay resigning director for accumulated annual leave.
This is in reply to your request for advice as to whether a resolution of the State Board of Corrections increasing the compensation of the Director of Corrections to $32,500 per annum effective July 1, 1972 was within the power of the board. Concurrently with the receipt of your request, we received an oral request from the Department of Corrections for advice as to whether the Director of Corrections upon resignation is entitled to remuneration for accrued annual leave. This opinion deals with both questions.
The Constitution provides as follows:
"The [State Board of Corrections] shall have such jurisdiction ... as shall be provided by law. The board shall elect a Director of Corrections .... The compensation of the director ... shall be fixed by law." Ga. Const., Art. V, Sec. V, Par. I (Ga. Code Ann. 2-3401).
Pursuant to the authority of that provision, the General Assembly "by law" fixed the compensation of the Director of Corrections at
a salary Of $20,600 per annum and a subsistence allowance of $2,000 per
annum. Ga. Laws 1956, pp. 161, 170, as amended (Ga. Code Ann. 77-305).
Even if Art. V, Sec. V, Par. I of the Constitution permitted the conclusion that the General Assembly could delegate the power to "fix by law" the compensation of the director, nothing in the statutory powers of the State Board of Corrections remotely suggests that the General Assembly delegated that power to the board. Ga. Code Ann. Ch. 77-3.
Moreover, a prior opinion, Op. Att'y Gen. 72-121, in essence concludes that Ga. Laws 1972, p. 1069 (Ga. Code Ann. Ch. 77-5A) (effective April 6, 1972), which made the Director of Corrections ex officio the Commissioner of Offender Rehabilitation, had no effect on the compensation payable to the person holding those offices. That Act expressly continued the office of Director of Corrections, and thus the provisions of Ga. Code Ann. 77-305, and by imposing on that office ex officio the duties of Commissioner of Offender Rehabilitation, the General Assembly neither altered, nor authorized any other agency to alter, the compensation fixed for that office by Ga. Code Ann. 77-305. See Twiggs v. Wingfield, 147 Ga. 790, 95 S.E. 711 (1918).

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Finally, Section 10 of the Executive Reorganization Act provides as follows:
"The heads of departments continued by this Act shall be compensated as presently provided by law. The compensation of the heads of departments created by this Act shall be determined by the General Assembly. 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. Laws 1972, pp. 1015, 1025 (Ga. Code Ann. 40-3512).
The Act creating the Department of Offender Rehabilitation, Ga. Laws 1972, p. 1069 (Ga. Code Ann. Ch. 77-5A), was not part of the Executive Reorganization Act of 1972. Even if Section 10 of the Reorganization Act were construed to apply to the Department of Offender Rehabilitation, it nevertheless requires the result reached here, since with respect to the position of Commissioner of Offender Rehabilitation the compensation payable had been "otherwise provided by law." Twiggs v. Wingfield, 147 Ga. 790, 95 S.E. 711 (1918).
Thus, while the resolution involved was an action of the Board of Corrections, its legal effect would have been no greater if the action taken were that of the Board of Offender Rehabilitation.
It is, therefore, my official opinion that the State Board of Corrections had no power to alter the salary payable under Georgia Code Ann. 77-305 to the Director of Corrections and that the resolution of the State Board of Corrections purporting to do so was void. Rice v. Putnam County Board of Commissioners, 107 Ga. App. 207, 129 S.E.2d 401 (1963); Owens v. Floyd County, 96 Ga. App. 25, 99 S.E.2d 560 (1956).
With respect to the matter of whether the Director of Corrections is entitled upon resignation to "accrued annual leave," the matter is less clear but I am convinced that the issue must be resolved against any such entitlement.
Annual leave has been described as
" ... a fringe benefit to employment (just as a stated length of vacation would be) accumulated at a rate specified by an employer. . . . It is . . . ancillary to the rate of employment salary. It is usually viewed as part of the employment contract .... [I]t is not salary itself." Op. Att'y Gen. 73-173.
We have concluded that a department can establish personnel policies concerning compensation and benefits for nonmerit system positions in the department. Op. Att'y Gen. 72-67. With respect to nonmerit system positions, therefore, the State Board of Corrections, or Board of Offender Rehabilitation, would be authorized to establish

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rules related to annual leave and the disposition, if any, to be accorded accumulated leave upon resignation. Ga. Code Ann. 77-306, 77-307; Ga. Laws 1972, p. 1069 (Ga. Code Ann. 40-35162.2). It is not clear as a factual matter that either board has adopted rules of that nature applicable to the director.
It is doubtful, however, that this power extends to the Director of Corrections. Undoubtedly, the Board of Corrections has the power to determine whether the director shall take leave and how much leave he shall be allowed. If this power is not found in the statutory jurisdiction of the board, Ga. Code Ann. 77-307, it has at least a practical foundation in the board's power to dismiss the director at will. Ga. Code Ann. 77-305. However, the statutory compensation of the director is payable in full during each month that he holds that office, regardless of any board rules determining his annual leave and, in the absence of such rules, regardless of whether he took leave during that month. Ga. Code Ann. 77-305. To conclude, therefore, that the Board of Corrections could pay upon the director's resignation an amount equivalent to leave not taken under its rules would in essence be to conclude that the board could vary the statutory scheme of compensation under Ga. Code Ann. 77-305. For the reasons previously stated, this the board could not do. It is, therefore, my official opinion that the resigning Director of Corrections is not entitled to any payment for accumulated annual leave.

OPINION 74-7
To: Joint Secretary, State Examining Boards January 10, 1974
Re: Municipal and county governments may not require a person who holds a state license as an electrical contractor to obtain a municipal or county electrical contractor's license in order to engage in the business of electrical contracting in the county or municipality.
This is in response to your letter of December 20, 1973, requesting my opinion as to the validity of certain county and municipal ordinances which require a person who has been issued a state license as an electrical contractor to obtain a similar license issued by the county or municipality as a prerequisite to performing electrical work in that county or municipality.
Georgia Laws 1971, p. 583 (Ga. Code Ann. Ch. 84-57), created the Georgia State Board of Electrical Contractors and provided for the statewide licensure of persons desiring to engage in electrical contracting. Section 16 of that Act provides in part as follows:

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"No person shall engage in the electrical contracting business unless such person shall have received a license from the board or from the county or municipality where the contract work is being performed...." Ga. Code Ann. 84-5716.

The provision cited above should be read in conjunction with another paragraph of Section 16 of that Act which reads as follows:

"This provision shall in no way prohibit the governing authorities of each county and municipality in the State of Georgia from exercising the authority to require any person engaging in the electrical contracting business to stand and attain a passing grade on an examination administered by such county or municipality to evidence their ability and proficiency to engage in the electrical contracting business: Provided, however, any person who holds a valid statewide license shall be deemed qualified and, upon satisfactory proof of said license, shall be allowed to perform electrical work in any county or municipality under the terms and conditions set forth in this Act, if he has the proper county or municipal building permit and business license."

The cited sections of the Act clearly state that any person may do electrical work if he has a license from either the state or from the county or municipality in which the work is to be done. There is no requirement in the Act that a contractor have both, and in fact the section cited above indicates that a valid statewide license shall entitle a person to perform electrical work in any county or municipality. Therefore, any ordinance which requires that an electrical contractor have a valid county or municipal license (other than a business license) in addition to a valid statewide license would be in conflict with the Act cited above. Ordinances which conflict with state laws are void. See Forbes v. Mayor and Alderman of the City of Savannah, 160 Ga. 701, 128 S.E. 806 (1925); Bearden v. City of Madison, 73 Ga. 184 (1884).

Therefore, it is my opinion that any municipal or county ordinance which requires that an electrical contractor obtain a local license as well as a statewide license in order to do electrical contracting in that county or municipality would be invalid inasmuch as it violates the general laws of Georgia.

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OPINION 74-8

To: Executive Secretary-Treasurer, Teachers Retirement System

January 11, 1974

Re: A member of the Teachers Retirement System who interrupted college training to enter military service, and later entered the teaching profession within five years after being released from military service, may receive credit for such active military service; it makes no difference whether or not the service was rendered during World Wars I or II, the Korean \\Tar, or a period of national emergency.

This responds to your letter requesting my official opinion on the proper construction of a portion of the Teachers Retirement System's military service credit statute. Ga. Laws 1965, pp. 438, 442-4, amending Ga. Code Ann. 32-2904 (6) (a) through (d).
You inform that a member of your system has requested military service credit for the period of time from April 29, 1954 to April 28, 1956, during which time he was engaged in active military duty in the armed forces of the United States. You have advised the member that he can only be allowed credit for military service for the period from April 29, 1954 to February 1, 1955, since, according to the United States Code, the Korean vVar was officially terminated on the latter date. The Teachers Retirement System has taken the position that only active military duty rendered in the armed forces during \Vorld War I, World War II, the Korean vVar, or any period of national emergency is creditable military service under the law. Ga. Laws 1965, supra.
On the other hand, the member contends he falls under a specific section of the law (Ga. Code Ann. 32-2904 (6) (c)) which allows him credit for the entire, requested two-year period, since he interrupted his college training to enter military service and then entered the teaching profession within five years after being released from military service. You acknowledge that he did interrupt his college training and later enter the teaching profession in the manner he contends.
The military service credit statute under the Teachers Retirement System is composed of four parts, Ga. Code Ann. 32-2904 (6) (a), (b), (c) and (d). Subsection (a) reads as follows:
"Any person who was on active duty in the armed forces of the United States during World War I, World War II, the Korean vVar, or any period of national emergency, may receive military service credit for such period of time up to a maximum of five years under the following conditions:...."
The conditions are specified in subparagraphs (i) and (ii) under subsection (a). In (i), provision is made for the award of prior service

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credit to a member, at no cost, for military service rendered prior to January 1, 1945. Membership service credit is allowed under (ii) if the member pays a designated amount of the employee's contributions, plus interest, for the requested period of military service credit. Both subparagraphs (i) and (ii) deal solely with the required expense to the member to obtain military service credit under subsection (a), quoted above.
The member contends he is entitled to the full two-year service credit under the terms of subsection (c) of Ga. Code Ann. 32-2904 (6), which reads:
"Any person who shall interrupt college training to enter mjlitary service may enter the teaching profession at any time within five years after being released from military service and shall receive credjt for such active mjlitary service jn accordance with the provisions of (i) or (ii) or (j) and (ii) in paragraph (a) above."
It is apparent that each of the subsections, (a) through (d), of section 32-2904 (6) begins with the words "Any person who" and goes on to delineate a method in which a member may gain military service credit. Clearly, a member claiming service under (a) must have served in one or more of the stated wars or a period of national emergency. However, (b) through (d) each specify a different set of circumstances under which credit for service may be obtained, each referencing [exactly as shown in (c), quoted above] how much the service will cost as indicated in subparagraphs (i) and (ii) of subsection (a). It is as if each subsection [(b) through (d)] were followed by subparagraphs (i) and (ii) of subsection (a).
In construing any statute, as you have asked me to do here, I must be guided by the prevailing rules of statutory construction. The ordinary signification of all words must be accorded them. Ga. Code 102-102 (1). Where the language of a statute appears clear and plain, it must be held to mean what has been expressed. Barnes v. Carter, 120 Ga. 895 (1904). In construing the military service credit statute, I am persuaded to the view that each subsection of 32-2904 (6) stands alone in designating a set of circumstances under which military service can be granted a member, with the references in each to subparagraphs (i) and (ii) of subsection (a) specifying how much the credited service will cost the member.
Therefore, based on the foregoing rationale and authorities, it is my official opinion that a member of the Teachers Retirement System who interrupts college training to enter military service, and later enters the teaching profession within five years after being released from military service, may receive credit for such active military service. It makes no difference whether or not the service was rendered during World Wars I or II, the Korean War, or a period of national emergency.

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OPINION 74-9

To: Commissioner, Department of Agriculture January 14, 1974
Re: A transfer of operating and personal service class funds so as to permit the Department of Agriculture to award a contract for the construction of the Macon Farmers Market, previously partially funded by capital outlay funds in the 1974 appropriation, would be a proper transfer of funds by the Fiscal Affairs Subcommittees.

This is in response to your letter of January 11, 1974, requesting my opinion as to the legality of a transfer of $540,000 FY-74 operating and personal service class funds to capital outlay funds. The request, I understand, was initiated by the Fiscal Affairs Subcommittees of the Senate and House of Representatives, which approved the transfer subject to my opinion on its legality.
In ascertaining the factual background of this situation, I understand that the department had in its 1974 appropriation the sum of $1,700,000 as capital outlay funds for the construction of a new Farmers Market in Macon. The low bid for the market was $2,505,000, with seven deductive alternates to the bid. I am told that you plan to exercise a deductive alternate in the sum of $466,900 leaving the project to be funded at $2,038,100. Utilization of the 1974 appropriation of $1,700,000 plus the proposed transfer of $540,000 will permit you to accept the low bid less the alternate.
I further understand it is your intention to request a supplemental appropriation sufficient to replace the deducted items of work in the project, but that the remainder of the project is not in any way dependent on whether such an appropriation is granted and the department will incur no liability to construct the deleted portion of the work should it enter into the construction contract with the low bidder for the remainder of the work.
The Fiscal Affairs Subcommittees of the Senate and House of Representatives have authority to approve budget object transfers recommended by the Governor provided:
" ... 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."1 Ga. Laws 1967, pp. 722, 724 (Ga. Code Ann. 47-516).
1 The constitutional provision for appropriations to be for a biennium was superseded by Ga. Laws 1972, p. 1550, which was ratified Nov. 7, 1972. Appropriation Acts are now for but one fiscal year. Accordingly, the limitation on the authorization of the Fiscal Affairs Subcommittees to transfer funds would seem to now apply to the current appropriation and fiscal year, rather than the biennium.

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Accordingly, the pertinent portions of the Act would appear to be whether the transfer will result in initiating or commencing any new program or activity not currently having an appropriation, or will require operating funds or capital outlay funds beyond the current fiscal year. Although not stated in your request, I assume the transfer was recommended by the Governor.
The construction of the Macon Farmers Market was previously funded by appropriation in the 1974 budget, and would have been accomplished by same had the low bid been within appropriated funds. Accordingly, the proposed transfer would not be utilized for commencing a program or activity not currently having an appropriation. Secondly, if the transfer is made, the department will have sufficient monies to construct the market with no further capital outlay money necessitated beyond the current fiscal year. As the transfer is necessitated to construct the market, which had been previously approved and funded, and since the construction will result in a facility of no greater extent or magnitude than previously planned or approved, the transfer would necessitate no further operating funds beyond those of the current fiscal year as a result of the transfer.
Lastly, the fact that you intend to request a supplemental appropriation in order to revive the deleted portion of the project would in in no way change the above conclusion as: (1) the supplemental appropriation would be out of funds of the current fiscal year; (2) the supplemental appropriation would result in a facility which was no different from and of no greater magnitude than that originally planned and funded; and (3) the transfer would not result in the incurring of any liability whatsoever by the department to construct the presently deleted portion of the project.
In summary, it is my official opinion that a transfer of funds from operating and personal service classes to capital outlay class, so as to permit your department to award a contract for the construction of the Macon Farmers Market, which is presently partially funded by the 1974 Appropriations Act, would be a proper transfer of funds by the Fiscal Affairs Subcommittees of the General Assembly.

OPINION 74-10

To: Director, State Merit ;system

.January 16, 1974

Re: Paragraph 6.203 of the Rules and Regulations of the State Merit System of Personnel Administration is unconstitutional.

This is in response to your recent letter and subsequent telephone conversation requesting my opinion as to the constitutionality of para-

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graph 6.203 of the Rules and Regulations of the State Merit System of Personnel Administration (hereinafter Rule 6.203). Your concern stems from the recent decisions of the United States Supreme Court in Sugarman, et al. v. Dougall, et al., 413 U.S. __, 37 L.Ed.2d 853 (1973), .and In reApplication of Fre Le Poole Griffiths for Admission to the Bar, 413 U.S._, 37 L.Ed.2d 910 (1973).
In the Sugarman case and the Griffiths case the court held two broad state alien exclusions to be in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. That clause dictates that:

"No state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the law." See Ga. Code Ann. 1-815. (Emphasis added.)

In Sugarman, the court considered the New York statute excluding aliens from all competitive positions of civil service. The court pointed out that an alien is a person and therefore protected by the Fourteenth Amendment. Furthermore, the New York statute broadly discriminated against aliens without the state showing that it was necessary to protect any special state interest. Consequently, the New York law was declared unconstitutional.

In comparison, Rule 6.203 provides that:

"Applicants must be citizens of the United States to be eligible to take an examination."

I cannot find any substantial grounds upon which to distinguish Rule 6.203 from the New York statute; therefore, I feel that a court of law would probably declare it to be unconstitutional.
This does not mean that all alien exclusions are unconstitutional. The court in Sugarman stated that a statute may be constitutional which required citizenship for all persons holding state elective or important nonelective executive, legislative, and judicial positions (anyone who participates directly in the formulation, execution or review of broad public policy). See Sugarman, et al. v. Dougall, et al., supra at 863.
For the above-mentioned reasons, it is my official opinion that Rule 6.203 is unconstitutional. If you have any further questions, please feel free to contact me.

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OPINION 74-11

To: Commissioner, Department of Community Development

January 17, 1974

Re: Department of Community Development unauthorized to spend state funds to assist county development authority in acquisition of property for industrial park.

This is in reply to the letter from Mr. William C. Hawthorne, Director of Finance and Administration, Georgia Department of Community Development, dated December 21, 1973, wherein I was asked whether it would be lawful for the Department of Community Development to enter into a contract with a county development authority whereunder funds received by the department from the Governor's emergency fund would be given to that local authority. The proposed contract (which Mr. Hawthorne attached to his letter) shows that the sum in question ($25,000) would be expended inter alia as a portion of the acquisition costs and. to pay expenses incidental to the county authority's purchase of real property for an industrial park.
While Ga. Laws 1962, pp. 17, 25 (Ga. Code Ann. 40-408), restricts disbursments from the Governor's emergency fund to those intended to meet the emergency needs of state agencies, the office of the Attorney General has upon numerous occasions pointed out that
" ... a state agency may, at the Governor's discretion, receive and expend an allocation from the emergency fund for any purpose consistent with the agency's enumerated powers for which no continuing state obligation is created." Op. Att'y Gen. 69-203.
Thus, while the old State Planning and Programming Bureau was ruled to be authorized to expend funds from the Governor's emergency fund to provide "planning assistance" to a municipality (something in which that state agency was authorized by statute to engage), it could not pay for the extension of a municipal watermain (an activity in which the state agency was not authorized by statute to assist or participate). See Op. Att'y Gen. 69-51. It was similarly ruled that the Department of Offender Rehabilitation, which administers the state's correctional institutions, could not use an allocation from the Governor's emergency fund to construct or operate a county jail. See Op. Att'y Gen. 72-150.
For the reasons stated, the question is reduced to one of whether or not the Department of Community Development is authorized by law to expend moneys to help purchase land for a county development

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authority's proposed industrial park. 1 Upon review of the statutory powers granted to the department by Ga. Laws 1949, p. 249 et seq. (Ga. Code Ann. Ch. 40-21), I am forced to conclude that it is not authorized to spend state funds for this purpose. The Department of Community Development is essentially designed for planning and promotional activities. It is empowered to "promote and encourage" the establishment, maintenance, development and expansion of new business and industry within the state (e.g., Ga. Code Ann. 40-2107) and to engage in research, investigation, and surveys in connection with the general enhancement of business, industry and commerce (e.g., Ga. Code Ann. 40-2108). However, while it is authorized to "coordinate, counsel and advise" with local governmental agencies as well as other public or private organizations in their promotional and planning activities, I am unaware of any authority vested in this state department to expend money for the purchase of land for a county or city or for the development authority of a county or city.
I therefore conclude that the Department of Community Development is unauthorized to spend state funds to assist a county development authority to acquire property for an industrial park.

OPINION 74-12

To: Commissioner, Department of Banking and Finance

January 18, 1974

Re: (1) Foreign national and state banks may not maintain, directly or indirectly, a loan production office within this state. (2) National banks with a principal office in this state and state chartered banks may not maintain, directly or indirectly, a loan production office outside the county in which its principal office is located.

This is in reply to your request for my opinion as to whether a national bank, the principal office of which is situated in another state, or a foreign state bank may establish within this state a "loan production office," as hereinafter defined. You also seek advice on the related question of whether a bank chartered by this state or a national bank with its principal office in this state may establish a "loan production office" outside the county in which its principal office is located. For

1 It is axiomatic that the powers of public officials and agencies are limited to those defined by law. Ga. Code 89-903. Public funds cannot be expended except where the expenditure is authorized by law. See, e.g., Cole v. Foster, 207 Ga. 416, 418 (1950); Freeney v. Geoghegan, 177 Ga. 142 (1) (1933); Burke v. Wheeler County, 54 Ga. App. 81, 85 (1936).

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the reasons stated below, it is my opinion that the clear answer to both questions is that such practices are not lawful.
For the purposes of this discussion, a "loan production office" is an office engaged in the following activities:
". . . soliciting loans on behalf of a bank (or a branch thereof), assembling credit information, preparing applications for loans (including making recommendations with respect to action thereon), soliciting investors to purchase loans from the bank, seeking to have such investors contract with the bank for the servicing of such loans, and other similar agent-type activities [,] when loans are approved and funds disbursed solely at the main office or a branch of the bank ...." 12 C.F.R. 250.141 (h).
From this description, it is apparent that a loan production office, whether maintained directly by the bank, or indirectly as an office of a subsidiary corporation of the bank, performs all the competitive functions of the bank and for the bank in soliciting and servicing loans.
Section 7 of the McFadden Act, 12 U.S.C. 36, provides as follows:
"(c) A national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches: (1) within the limits of the city, town or village in which such association is situated, if such establishment and operation are at the time expressly authorized to state banks by the law of the state in question; and (2) at any point within the state in which said association is situated, if such establishment and operation are authorized to state banks by the statute law of the state in question by language specifically granting such authority affirmatively and not merely by implication or recognition, and subject to restrictions as to location imposed by the law of the state on state banks....
* * *
"(f) The term 'branch' . shall be held to include any branch bank, . . . branch agency . . . or any branch place of business located in any state ... at which deposits are received, or checks paid, or money lent."1
The congressional purpose underlying this section, "clearcut [and] so forcefully expressed," is to foster "competitive quality." First National Bank of Logan v. Walker Bank & Trust Co., 385 U.S. 252, 261, 17 L.Ed.2d 343, 349 (1966); First National Bank in Plant City v. Dickinson, 396 U.S. 122, 24 L.Ed.2d 312 {1969). To achieve that purpose, Congress deferred to state law for the determination of
1 The discussion herein with respect to national banks applies equally to state banks which are members of the Federal Reserve System. 12 U.S. C. 321.

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whether a national bank shall be permitted to maintain apart from its principal office a
" ... branch bank, ... branch agency ... or any branch place of business . . . at which deposits are received, or checks paid, or money lent."

This definition is not exclusive; that is, under 12 U.S.C. 36 (f), an office through which a bank is " ' . . . transacting any business carried on at the main office . . .' " may be encompassed within the term "branch," as it clearly is encompassed within Ga. Code 13-201.1 et seq., based upon Ga. Laws 1960, p. 67, as amended, even though the business transacted does not include receiving deposits, paying checks, or lending money. First National Bank in Plant City v. Dickinson, ~~96 U.S. 122, 135, n. 8, 24 L.Ed.2d 312, 320, n. 8 (1969).
The conclusion is inescapable that neither a national bank whose principal office is maintained in another state nor a bank chartered by another state may directly maintain in this state a loan production office, as hereinabove defined. Equally unavoidable, too, is the conclusion that neither a national bank whose principal office is maintained in this state nor a state chartered bank may directly establish such an office outside the county in which its principal office is located.
In view of the clearly stated congressional policy to maintain "competitive equality," I cannot accept the unacceptable proposition that a loan production office is not a "branch" within the meaning of 12 U.S.C. 36 (f), simply because "final approval" of the loan and "disbursal" of funds are reserved to the main office or an admitted branch office. 'hen a "loan production office" performs all of the competitive and service-related functions in soliciting and servicing loans, it strains credulity and pays only lip service to "competitive equality" to conclude that such an office is not a "branch" within the meaning of 12 U.S.C. 36 (f). It clearly is a "place of business" within the meaning of Ga. Code 13-201.1 et seq.
It is, therefore, my official opinion that neither a national bank whose principal office is maintained in another state nor a bank chartered by another state may directly maintain a loan production office, as defined above, in this state. Section 7 of the McFadden Act, 12 U.S.C. 36, furnishes no authority for a national bank to do so and Ga. Code 13-202.1 et seq., therefore, operates both as to foreign national and state banks to prohibit the establishment of such offices. See Boatmen's National Bank of St. Louis v. Hughes, 385 Ill. 431, 53 N.E.2d 403 (1944). It follows that it is also my official opinion that neither a national bank with its principal office in this state nor a bank chartered by this state may maintain a loan production office outside the county in which the bank's principal place of business is located.

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The fact that a bank, national or state, indirectly maintains a loan production office as an office of a subsidiary corporation of the bank clearly does not avoid the prohibitions of Section 7 of the McFadden Act, 12 U.S.C. 36, or of Ga. Code 13-201.1 et seq. State law does not permit the establishment of subsidiary corporations by state chartered banks, Ga. Code 13-2023, and permits a branch bank to be established only upon the condition that it
". . . shall be operated as [a branch] and under the name of the parent bank, and under the control and direction of the board of directors and executive officers of said parent bank." Ga. Code 13-203 (a), based upon Ga. Laws 1919, p. 135, as amended.
Even if the latter limitation did not preclude the establishment of a branch as an office of a subsidiary of a bank, First National Bank of Logan v. Walker Bank & Trust Co., 385 U.S. 252, 261-62, 17 L.Ed.2d 343, 349-350 (1966), neither the prohibitions of the McFadde;n Act, 12 U.S.C. 36, nor of Ga. Code 13-201.1 et seq. may be avoided by the adoption of a form designed to accomplish the substantive result forbidden by those provisions. First National Bank in Plant City v. Dickinson, 396 U.S. 122, 24 L.Ed.2d 312 (1969); Jackson v. First National Bank of Cornelia, 430 F.2d 1200 (5th Cir. 1970), cert. denied, 401 U.S. 947 (1971). My prior opinion, Op. Att'y Gen. 72-131, relating to nonbanking subsidiaries of foreign and state bank holding companies, is for several reasons inapposite including the fact that a "loan production office" does not independently perform services of that office but for its parent bank. It is, therefore, my official opinion that neither a national bank with a principal office in another state nor a foreign state bank may maintain in this state a loan production office as an office of a subsidiary corporation of the bank. It is also my official opinion that neither a national bank with a principal office in this state nor a bank chartered by this state may maintain outside the county of its principal place of business a loan production office as an office of a subsidiary corporation of the bank.

OPINION 74-13

To: State Superintendent of Schools

January 21, 1974

Re: Local boards of education may establish by board action, or by contract, policies expanding in certain particulars teacher sick leave rights established by law or by the State Board of Education.

This responds to your letter dated January 7, 1974, requesting my opinion on a question pertaining to sick leave benefits for teachers.

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Your question seems to presuppose, correctly I might add, that local boards of education may not reduce or restrict teacher sick leave benefits provided by valid laws and by valid policies of the State Board of Education. See Op. Att'y Gen. 65-65; Ga. Code Ann. 32-613, based upon Ga. Laws 1964, p. 3, as amended, and 32-1304, based upon Ga. Laws 1953, Nov. Sess., p. 43.
You have asked, essentially whether a local board of education may establish by contract or by board action a policy of advancing to its teachers at the beginning of each school year days of sick leave not yet earned by the performance of teaching services, provided that the teacher has earned but has not received summer pay sufficient to cover the days of unearned sick leave being advanced. After considerable legal research, I have not been able to discover any law or principle of law which would seem to preclude a local board of education from establishing such a policy; hence, I am of the opinion that such a policy would be lawful. I do not believe that the General Assemblymeantto restrict the broad powers of local boards of education to establish such a policy, see Bedingfield v. Parkerson, 212 Ga. 654, 656 (1) (1956), by speaking in Ga. Laws 1953, Nov.-Dec. Sess., p. 43, Ga. Code Ann. 32-1304, of days of sick leave "for each completed school month of service."

OPINION 74-14

To: Governor of Georgia

January 22, 1974

Re: A constitutional amendment would be necessary to authorize an increase in retirement benefits, to be paid from state funds, to retired teachers in any local system funded through appropriations made by municipal corporations, counties, or any political subdivision.

This responds to your letter of January 18, received this morning, wherein you request my official opinion on the procedure necessary to accomplish an increase in retirement benefits to already retired teachers in Atlanta and Fulton County by the establishment of a "floor" or system of minimum monthly benefits. You advise that this question was generated by a member of the State Senate.
As I understand the situation, the teachers to whom you refer retired from teaching service with either Atlanta or Fulton County. As such, they are members of either the Atlanta or Fulton County local retirement funds, and are drawing retirement benefits from those local funds. Essentially, your question is whether these teachers may receive an increase in their retirement benefits to be paid by state funds through the enactment of (1) a statute, or (2) a constitutional amendment. In my judgment, a constitutional amendment is necessary.

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Teachers in the service of an employer operating a local retirement fund are declared ineligible by statute to be members of the Teachers Retirement System of Georgia. Ga. Laws 1943, p. 640 et seq., as amended (Ga. Code Ann. 32-2922). Of course, then, they do not obtain the benefits provided by our Constitution and laws to teachers under the state system, but, instead, derive the benefit of all laws pertaining to the local systems.
Prior to 1970, any statute increasing retirement benefits to an already retired beneficiary of a state-funded retirement system would have been unconstitutional as the grant of a donation or gratuity from public funds and as a grant of extra compensation to a public officer after his service had been rendered. Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402 (1) and (2)). In that year, the referenced con.stitutional provision was amended so as to authorize the General Assembly to provide by law for the increase of retirement benefits to persons already retired
" ... pursuant to any retirement system, annuity and benefit fund, pension system or any similar system heretofore or hereafter created by law to which the General Assembly appropriates funds . . . ." (Emphasis added.) Ga. Laws 1970, p. 1153 et seq., ratified November 3, 1970 (Ga. Const., Art. VII, Sec. I, Par. II; Ga. Code Ann. 2-5402 (15)).
The italic language in the quoted portion of this constitutional amendment was construed by the Georgia Supreme Court in Carter v. Haynes, 228 Ga. 462 (1971). Speaking for a unanimous court, Presiding Justice Mobley (now Chief Justice) said at p. 465:
"In the context of the constitutional amendment considered here we are of the opinion that the words 'appropriates funds' mean the appropriation of funds from the state treasury .... The addition of the phrase 'to which the General Assembly appropriates funds' apparently is for the purpose of limiting the amendment to those retirement systems for which the General Assembly appropriates funds from the state treasury."
The people of Georgia have authorized the General Assembly to appropriate state funds through a general appropriations bill for the expenses of the executive, legislative and judicial departments of state government, and for the payment of the public debt and interest thereon, and for the support of the public institutions and educational interests of the state. Ga. Const., Art. III, Sec. VII, Par. IX (Ga. Code Ann. 2-1909). No money shall be drawn from the state treasury except by appropriation made at law. Ga. Const., Art. III, Sec. VII, Par. XI (Ga. Code Ann. 2-1911). With regard to appropriation control, the people have decided that state appropriations to state

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departments, officers, boards, and other entities shall be for specific sums of money and enacted as law in a certain delineated method. Ga. Const., Art. VII, Sec. IX, Par. I to V (Ga. Code Ann. 2-6201 to 2-6205).
The fund for the payment of retirement benefits to retired teachers in Atlanta and Fulton County is derived basically from taxes and funds appropriated or designated for this purpose by the city and county, together with contributions made by the teachers. (Atlanta-see Ga. Laws 1910, p. 371 et seq., as amended; Fulton County- see Ga. Laws 1939, p. 571 et seq., as amended.) No appropriation to these local retirement funds is made from the state treasury. A study of the latest General Appropriations Act is a clear example. Ga. Laws 1973, p. 1353 et seq. The fact that the Teachers Retirement System of Georgia is required to make certain pension payments (employer~s contributions) to local systems, based on the state salary of teachers who retire under local systems, makes no significant difference in the legal analysis of your question. (See Ga. Laws 1943, p. 640 et seq. (Ga. Code Ann. 32-2922).) The pivotal fact remains that there is no specifically allocated state appropriation to these local retirement funds. Accordingly, the constitutional provision construed in Carter v. Haynes, supra, could not apply to them. Furthermore, the constitutional proscription against donations and gratuities would seem to prohibit any statute allowing a municipal corporation, county, or other political subdivision to appropriate its funds for additional retirement benefits to already retired teachers. Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402 (1) and (2)).
I might add, in passing, that because of the constitutional prohibition against gratuities, referenced supra, the legal impediment to the grant of an increase in retirement benefits to already retired teachers in local systems is stronger and different from the problem of increasing benefits to current teachers. Present teachers could be made members of the Teachers Retirement System of Georgia by statutory amendments and, consequently, as a part of their employment contract, receive "floor" or minimum retirement benefits as provided by law.
Therefore, based on the foregoing rationale and authorities, it is my official opinion that a constitutional amendment would be necessary to authorize an increase in retirement benefits, to be paid from state funds, to retired teachers in any local system funded through appropriations made by municipal corporations, counties, or any political subdivision. In this regard, I understand a resolution proposing a constitutional amendment accomplishing this result for municipal corporations was introduced, but not passed, in the 1973 Session of the General Assembly. See House Resolution No. 58-175.

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OPINION 74-15

To: Commissioner, Department of Human Resources

January 24, 1974

Re: A regulation may be established by the Department of Human Resources which makes vehicles entering on the grounds of Central State Hospital subject to search, and signs to this effect may be posted .at the entrances and along the avenues of approach to the hospital.

You have requested my official opinion as to the legality of a regulation which would authorize the search of vehicles entering on the grounds of Central State Hospital and which would require that signs be erected to convey this to visitors to the hospital. You have indicated that such searches are necessary at times because visitors of patients often bring them such items as liquor and drugs which prove to be extremely dangerous in a mental treatment setting.
The authority for the Department of Human Resources to institute regulations concerning the operation of Central State Hospital is found in Ga. Code Ann. 88-115, based upon Ga. Laws 1964, pp. 499, 509, which reads in part as follows:
" ... With respect to all such facilities or institutions, the Department of Public Health shall have the following powers and duties:
"(a) To prescribe all rules and regulations for the management of such facilities or institutions not conflicting with the law."
Therefore, unless the proposed regulation conflicts with the general law of this state or with some provision of the Constitutions of the United States or the State of Georgia, it would be an authorized exercise of your department's power.
Since the proposed regulation would authorize searches of private motor vehicles found on the grounds of the hospital, the possibility that the regulation might violate certain provisions of the Fourth and Fourteenth Amendments of the United States Constitution (Ga. Code Ann. 1-804, 1-815) or provisions of Article I, Section I, Paragraph XVI of the Georgia Constitution (Ga. Code Ann. 2-116) must be considered. These provisions prohibit unreasonable searches and seizures and require, with some exceptions, that searches only be made pursuant to a duly issued search warrant.
However, your letter indicates that the purpose of the proposed regulation is to allow the hospital security personnel to search vehicles in an attempt to prohibit forbidden articles from being imported into the hospital, and as a method of maintaining security, discipline and order in the hospital. Nothing in your letter indicated that the purpose

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of the search was to obtain material to be used in the prosecution of the searched person. The courts have drawn a distinction between the cases in which the information was to be used to prosecute the person searched and those in which the search was to be a mere inspection, the purpose of which was to maintain order and discipline.
To illustrate, in Davis v. Reynolds, 319 F. Supp. 20 (N.D. Fla. 1970), the court held that a regulation which allowed authorities to search persons and vehicles entering a wildlife preserve was valid, even though there was not probable cause. The court in that case said:
" ... (W)here a search is made to maintain order or discipline, to maintain security or to prevent the entry of forbidden articles into a designated area, then a warrantless search is proper even though probable cause may be negligible or absent."
This problem was faced again more recently in United States v. Kroll, 351 F. Supp. 148 (W.D. Mo. 1972), when the validity of searches at airports was brought before the court. There the court said that when an unmistakable threat to the safety of others was involved, inspection searches would be reasonable without a showing of probable cause. It should be noted, however, that the court did say that a search which was reasonable at its inception might become unreasonable if pursued beyond a mere inspection, but that the magnitude of the danger involved would authorize at least an initial inspection.
From these cases, it is clear that a search of motor vehicles for the purpose of maintaining the security and discipline at Central State Hospital would not violate the various constitutional prohibitions against an unreasonable search and, therefore, for the foregoing reasons and with the limitations expressed, it is my official opinion that the proposed regulation authorizing the search of private motor vehicles found on the grounds of Central State Hospital is a valid exercise of the power of the Department of Human Resources.

OPINION 74-16

To: Commissioner, Department of Administrative Services

January 25, 1974

Re: Purchasing and Supplies Division of the Department of Administrative Services must solicit bids for every purchase with certain exceptions; factors other than price must be considered in determining the lowest responsible bid; ultimate responsibility for determining acceptability based on functional application rests with the Purchasing and Supplies Division.

[Ga. Code Ann. Ch. 40-19 sections herein are based upon Ga. Laws 1937, p. 503 et seq., as amended.]

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You have requested my official opinion with respect to three questions concerning the duties of the Department of Administrative Services through its Purchasing and Supplies Division (hereinafter DOAS) as the successor to the functions of the Supervisor of Purchases.
1. Does the law require the taking of bids without exception?
2. Must an award be made to the lowest bidder without consideration of factors other than price?
3. Does the authority to determine acceptability based on functional application rest with the Department of Administrative Services, with the user agency, or both?
1. Does the law require the taking of bids without exception?
Georgia Laws 1937, pp. 503, 508, as amended (Ga. Code Ann. 40-1909), divides purchases made through DOAS into two categories: Those in excess of $1,000 and those for $1,000 or less. With respect to purchases in excess of $1,000, Ga. Code Ann. 40-1909 provides that sealed bids shall be solicited by advertisement in a newspaper of statewide circulation, except that when DOAS finds some other method of advertisement to be more advantageous for the particular item to be purchased, the department may adopt such other method of advertisement. This requirement was construed by this office in Op. Att'y Gen. 69-297, a copy of which is attached hereto, to allow the solicitation of bids either by newspaper, or by written invitation to all known and qualified vendors as established by a list maintained by DOAS. I must point out, however, that while the latter procedure may be followed, DOAS is under a duty to exclude no competent vendor from the department's list, and also to seek out and discover, to the best of the department's ability, all sources of supply, giving all such vendors access to the established list. Ga. Code Ann. 40-1902 (A). With respect to purchases in excess of $1,000, DOAS may, therefore, solicit bids in either manner set forth above, or in any other reasonable manner in view of the item to be purchased, but it is clear that bids must be solicited or advertised for in some manner reasonably calculated to reach all reasonably available sources of supply. Futhermore, the bids solicited must be written, sealed bids. Ga. Code Ann. 40-1909, 40-1913.
vVith respect to purchases of $1,000 or less, Ga. Code Ann. 40-1909 provides:
"it shall be the duty of [DOAS] to solicit bids direct by mail from reputable owners of supplies."
Therefore, the department must canvass all known, or reasonably discoverable, reputable suppliers and solicit bids from them.
There are exceptions to the general requirement that bids must be

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solicited for all purchases by DOAS. First, Ga. Code Ann. 40-1917 provides for purchases without the taking of bids if an emergency requires immediate purchase. Second, Ga. Code Ann. 40-1924 empowers the department to establish standard specifications applying to state contracts. Ga. Code Ann. 40-1910 directs the department to consider any such specifications in purchasing decisions. I am of the opinion that where only one product can meet the applicable specifications, there is no necessity to solicit bids from other suppliers of such products since this would be a useless act. Finally, of course, the same principles would apply when a product is available from one source only. This conclusion is confirmed by Ga. Code Ann. 40-1910, which states that contracts shall be awarded on the basis of competitive bids "whenever possible."
However, I am also of the opinion that the proper execution of the duties of the department demands that it determine to the best of its ability that specifications (either those suggested by the requisitioning agency or those developed by DOAS) do not arbitrarily exclude potential vendors, and that no other vendor can in fact meet all applicable and reasonable specifications. Only when these duties are properly executed do the exceptions relating to available sources become operative so as to allow the department to forego the requirement of bid solicitation.
2. Must an award be made to the lowest bidder without consideration of factors other than price?
It is my official opinion that this question should be answered in the negative. Georgia Code Ann. 40-1910 states that when competitive bids have been solicited, contracts shall be awarded
"to the lowest responsible bidder, taking into consideration the quality of the articles to be supplied and conformity with the standard specifications which have been established and prescribed, the purposes for which said articles are required, the discount allowed for prompt payment, the transportation charges and the date or dates of delivery specified in the bid."
This section clearly vests considerable discretion in the department to consider factors other than price, and, in fact, directs it to consider these factors. The Supreme Court of this state has held that the courts should not interfere in the exercise of such discretionary power unless it is manifestly abused. J. C. Lewis Motor Co., Inc. v. Mayor & Council of Savannah, 210 Ga. 591 (1954). In that ease the court stated:
"This is not a ease where two or more dealers had placed bids for the furnishing of identical vehicles, but is one where a Ford dealer and a Chevrolet dealer had each submitted a bid for furnishing his product, the two bids in controversy covering different makes

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of automobiles, thus calling for a discretionary decision as to whether the difference in the products would justify the difference in price."
See also, Watson v. City of East Point, 223 Ga. 185 (1967). In J. C. Lewis Motor Co., Inc. v. Mayor & Council of Savannah, supra, the facts of the case indicated that there were demonstrable factors related to the performance of the vehicles purchased which justified the purchase, even in view of the higher price paid for those vehicles. Therefore, when DOAS can in good faith point to some demonstrable or real factor which justifies its conclusion that a higher dollar bid is nevertheless the "lowest responsible" bid, the department has properly exercised its discretionary power. However, if no such justification can be demonstrated by DOAS, an abuse of discretion would have occurred.
Furthermore, the phrase "lowest responsible bidder" has been almost unanimously construed by the courts of other jurisdictions to mean not merely "financially solvent," but also "responsible" with respect to the bidder's over-all ability to respond in quality and fitness to the particular requirements of the contract in question. E.g., Culpepper v. Moore, 40 So.2d 366 (Fla. 1949); Hodgeman v. City of San Diego, 53 Cal.App.2d 610, 128 P.2d 412 (1942); Mitchell v. Walden Motor Co., 235 Ala. 34, 177 So. 151 (1937); 0'Brien v. Carney, 6 F. Supp. 761 (D.C. Mass. 1934). However, once DOAS has considered all relevant factors, it must award the contract to the lowest bidder meeting its standards. DOAS may not award a contract to a higher bidder if the products are equal in view of all relevant factors.
3. Does the authority to determine acceptability based on functional application rest with the Department of Administrative Services, with the user agency, or both?
The process by which ((acceptability based on functional application" is determined may be found in Ga. Code Ann. 40-1924, which section provides for the formulation of standard specifications. The ultimate responsibility for determining whether a product complies with such specifications lies with DOAS, as does the responsibility for making all ultimate determinations as to acceptability insofar as necessary to award a contract. However, the department is obligated to seek the advice, assistance, and cooperation of state agencies in order to ascertain their requirements. Ga. Code Ann. 40-1924. Op. Att'y Gen. 1949, p. 570, a copy of which is attached hereto, deals with this question and remains an accurate expression of the opinion of the Attorney General on this matter.

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OPINION 74-17

To: Chief Drug Inspector, State Board of Pharmacy

February 1, 1974

Re: Licensing requirements of Code Title 79A do not apply to state and local governments.
This is in reply to your request for an opinion as to the applicability of the licensing requirements of Ga. Code Ann. Title 79A (based upon Ga. Laws 1967, p. 296 et seq.) to state and local agencies and employees thereof.
Code Title 79A is a comprehensive statement of the restrictions applicable to the handling of drugs; its provisions include licensing requirements of pharmacies, Code Ch. 79A-5, and pharmacists, Code Ch. 79A-4.
Your request was prompted by the view urged by various state and local agencies that Ga. Code 102-109 operates to exclude state and local agencies from the licensing requirements of Code Title 79A.
Georgia Code 102-109 is a restatement of a common law principle. That principle, as recognized by the courts of this state, is that regulatory statutes do not apply to the state or its political subdivisions or to officers or agents thereof acting within their authority unless there is an expressed intent in the statute that it shall apply. Butler v. Merritt, 113 Ga. 238, 240, 38 S.E. 751 (1901) (and cases cited).
It is my official opinion that Code Title 79A does not exhibit an intent that its licensing requirements apply to state and local agencies performing functions otherwise authorized by law.
The licensing requirements of Code Title 79A-for example, Code Chs. 79A-4 and 79A-5, relating to pharmacists and pharmacies-are directed toward "persons," a term defined by Code 79A-102 (k) to include "an individual, a partnership, a corporation or an association." Coupled with the absence of any other specific reference to the state or itspoliticalsubdivisionevidencinga contrary intent, Code 79A-102 (k) serves to exclude, not include, the state and its political subdivisions from the licensing requirements of Code Title 79A. Ops. Att'y Gen. 70-146, 69-390, 69-137, 1958-59, p. 5. Georgia Code 102-109 excludes the state and its political subdivisions from the operation of statutes unless a contrary intent is "plain, clear and unmistakable." I cannot find expressed in the licensing requirements of Code Title 79A such an intent.
I should hasten to add that the statutory authority for state and local agencies to deal with drugs contain restrictions on such activity. For example, Ga. Code Ann. 88-115 (f), based upon Ga. Laws 1964, pp. 499, 509, requires the Department of Human Resources to implement

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its powers and duties through "persons properly trained professionally for the exercise of their duties." The Family Planning Services Act, Ga. Laws 1966, p. 228 (Ga. Code Ann. Ch. 99-31), authorizes government agencies to distribute birth control products only to the extent "prescribed by licensed physicians." Finally, Code Title 79A may have ramifications for state and local agencies in their handling of drugs but it would not be possible to catalogue those myriad situations in which it might apply.

OPINION 74-18

To: Commissioner of Agriculture

February 1, 1974

Re: The Georgia State VVarehouse Act, as amended, does permit the Commissioner of Agriculture to license warehouses for the storage of other than agricultural products when the person operating the facility elects to come within the provisions of the Act.

This is in reply to your request for my opinion as to whether the Georgia State Warehouse Act, as amended, would permit the licensing of warehouses for the issuance of receipts for, and the storage of, products other than agricultural products. I understand that you have received a request from a Georgia warehouseman to extend the licensing privilege to cover the storage of synthetic fibers and yarn.
Pursuant to the original provisions of the Georgia State Warehouse Act, Ga. Laws 1953, Nov. Sess., p. 412 (Ga. Code Ann. Ch. 111-5), the Commissioner of Agriculture is authorized to license all warehouses involved in the receipt and storage of agricultural products. As defined in Section 2 (d) of the Act (Ga. Code Ann. 111-502 (d)), agricultural products means:
". . . individually and collectively, all grains, cotton, peanuts, meat, fruits, vegetables, and other farm products offered or accepted for storage in their raw or natural state: Provided, however, that products which have been processed only to the extent to shelling, cleaning, and grading shall be included: and, Provided further, that any warehouseman storing refrigerated and/or processed agricultural products may, at his option, come under the operation of this Chapter."
Excluding the warehouseman engaged in the storage of refrigerated and/or processed agricultural products, no person shall operate a warehouse for the storage of agricultural products in the State of Georgia without a valid, effective license issued by the commissioner. Ga. Code Ann. 111-505.

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Although warehousemen engaged in the storage of agricultural products, as defined by the Act, automatically come within the purview of the Act, the licensing privilege is not restricted to such persons. As indicated by Section 2 (c), any person operating a warehouse not covered by the provisions of the Act may elect to become regulated in accordance with the requirements set forth therein. See Op. Att'y Gen. 1957, p. 3. The election option was definitively set forth in Ga. Laws 1959, pp. 246, 249 (Ga. Code Ann. 111-532), an amendment to the
'"Tarehouse Act, in which it is provided:
"Any other provision of this Act to the contrary notwithstanding, any person operating a warehouse for the storage of agricultural products or other products may elect to come within the provisions of this Act and, upon approval of the commissioner, may be licensed hereunder. As a condition to the granting of a license under the provisions of this Act, the applicant must agree to comply with the provisions of this Act and any and all regulations promulgated hereunder, as well as any and all regulations issued by the commissioner relating to the storage of products in the warehouse of the applicant."
Accordingly, while not automatically covered by the provisions of the Act, any person operating a warehouse for storage of products other than agricultural products may elect to come within its provisions, and upon approval of the Commissioner of Agriculture may be licensed, provided the applicant agrees to comply with the provisions of the Act and all regulations promulgated thereunder. See Op. Att'y Gen. 68-100.
Therefore, it is my official opinion that a Georgia warehouseman engaged in the storage of synthetic fibers and yarns may be licensed under the Georgia State vVarehouse Act upon approval of the Commissioner of Agriculture. The issuance of the license is subject only to the election of the warehouseman to come within the provisions of the Act and his agreement to comply with such provisions and such regulations promulgated thereunder.

OPINION 74-19

To: Commissioner, Department of Human Resources

February 7, 1974

Re: Within the meaning of the Workmen's Compensation Law: (1) Employees of the county departments of family and children services are employees of the Department of Human Resources;

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(2) Employees of the county and district health agencies established under Ga. Code Ch. 88-2 are employees of the respective counties, not the Department of Human Resources.

This is in reply to your request for advice as to the relationship between the Department of Human Resources and various county level employees for purposes of the workmen's Compensation Law, Ga. Code Title 114. Specifically, you ask whether employees of the county departments of family and children services, of the county boards of health, or of health districts are employees of the department for purposes of that law.
With respect to employees of the county departments of family and children services, your question has long since been resolved. In State Department of Family and Children Services v. Lassiter, 113 Ga. App. 462 (1966), the Court of Appeals held that such employees were employees of the state for purposes of workmen's compensation, as they are for other purposes. Schaefer v. Clark, 112 Ga. App. 806 (1965); Op. Att'y Gen. 73-56.
In reaching that conclusion, the Court of Appeals relied upon MacNeill v. Wood, 198 Ga. 150 (1944), where the Supreme Court concluded that the relationship between the county level agencies and the state established by Ga. Laws 1937, p. 355, as amended (Ga. Code Ann. Chs. 99-1, 99-5), was such that the county level employees were employees of the state.
However, using the same analysis in examining the relationship between the Department of Human Resources and employees of county boards of health and health districts established under Ga. Code Ch. 88-2, based upon Ga. Laws 1964, p. 499 et seq., it is my official opinion that such employees are employees of the respective counties, but are not employees of the Department of Human Resources.
County boards of health and health districts are not statutorily agencies or instrumentalities of the Department of Human Resources in the manner that county departments of family and children services are statutorily so described. Ga. Code Ch. 88-2. County and district health agencies, it is true, have enforcement responsibilities for state health laws and implementing regulations of the Department of Human Hesources. Ga. Code 88-203. However, unlike its relationship to county departments of family and children services, the Department of Human Hesources has no direct statutory power over the manner in which that responsibility is met; instead that power is vested in the county board of health.
Moreover, although employees of county boards of health and health districts are in the classified service of the State Merit System, Ga. Laws 1971, p. 45 (Code Ann. 40-2201 (a)), the employing authority

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is exclusively the county. Ga. Code 88-211, 88-215. Absent is any statutory power in the Department of Human Resources to dismiss any such employee or to transfer any such employee from one county to another.
Finally, the fact that the state makes grants to counties for the purpose of defraying the cost to the county of salaries for its health personnel is not controlling in that the direct and ultimate responsibility for such salaries to the employees is that of the county. In these respects, the relationship between the county and the state is materially different from that which supported the Court of Appeals' conclusion in State Department of Family and Children Services v. Lassiter, 113 Ga. App. 462 (1966); Schaefer v. Clark, 112 Ga. App. 806 (1965). As long as this relationship exists, employees of county boards of health and health districts are employees of the county, not the state, for purposes of workmen's compensation.
There may arise specific instances in which responsibility for workmen's compensation coverage is altered because the relationship between the parties is altered, but under the existing statutory framework it is my official opinion that employees of county boards of health and health districts performing functions for those agencies are employees of the county, not the Department of Human Resources.

OPINION 74-20

To: Governor of Georgia

February 7, 1974

Re: No impediment to membership on the Board of Regents exists by reason of appointee acting as county attorney, city attorney, or private attorney or holding office in political party.

This is in reply to your request as to whether an appointee to the Board of Regents of the University System of Georgia may lawfully take and hold that office. Your request was prompted by concerns expressed to you and those concerns relate to the fact that the appointee is a practicing attorney in which capacity he serves as attorney for a county, as attorney for a city, and, in some instances, represents private clients before state agencies other than the Board of Regents, and that the appointee is a member of the state executive committee of a political party.
I am not aware of any constitutional provision, statute or rule of law which establishes any of the above facts as a disqualification for the appointee to take or hold membership on the Board of Regents. Ops. Att'y Gen. U70-114, 69-454, 68-470, 67-147, 66-271, 1962, p. 50, 1960-61, p. 59.

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As to any man holding public office, there may conceivably arise in the course of his holding office particular matters in which the office holders' private interests and public duties conflict. Such a conflict when it arises may have legal implications but speculation that the conflict may arise is not a ground of disqualification to hold the office. Moreover, I am unable to state, on the facts related above, that any such conflict now exists.

OPINION 74-21

To: Secretary-Treasurer, Teachers Retirement System of Georgia

February 11, 1974

Re: Discussion of (1) the responsibility of the Teachers Retirement System to local retirement funds with regard to pension payments to them for retired local teachers, and (2) retirement benefits allowed by the Teachers Retirement System to teachers who accrue retirement credit in a school(s) under the system and also in a school system with a local retirement fund.
This responds to your request for my official opinion on the construction of benefits under the Teachers Retirement System Act vis-a-vis teachers who teach in a school included under the Teachers Retirement System and later move to a school under a local retirement fund. You also ask for guidance as to payment of the "reimbursing" pension due local retirement funds for teachers retiring with those funds .I
Preliminarily, let me say I have thoroughly studied your suggested policy on pensions payable to "local system" teachers and have researched Ga. Laws 1943, p. 640 et seq., as amended, particularly those sections of the law codified as Ga. Code Ann. 32-2922, 32-2901, :32-2904 and 32-2905, as amended. As the discussion develops below, I will on occasion refer to these unofficial Code Annotated sections taken from Ga. Laws 1943, as above.
The problems and questions you have raised exist because of an ostensibly ambiguous section of the original1943 Teachers Retirement System (hereinafter THS) Act. Specifically, I refer to the portion of the Act codified as Ga. Code Ann. 32-2922 (1) and (2) which reads in pertinent part as follows:
1 "Local retirement fund" means any teachers retirement fund or other arrangement for the payment of retirement benefits to teachers, maintained during the calendar year 1943 wholly or in part by contributions by an employer as defined in the Act, exclusive of the system created by the Act (Teachers Retirement System of Georgia). Ga. Laws 1943, p. 640et seq. (Ga. Code Ann. 32-2901 (23)), both as amended. (Parenthetical matter and italics added.)

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"(1) Teachers in the service of an employer operating a local retirement fund shall not be members of the retirement system established in this Chapter (TRS) and such teachers shall make no contributions to this retirement system ('rRS) and shall be eligible for pension benefits under this retirement system (TRS) only as provided in this section. If such a teacher retires under the provisions of his local retirement fund and if at the time of his retirement he would have been eligible for service retirement under the provisions of this retirement system (TRS) had he been a member, the board of trustees shall pay from this system (TRS) to the managing board of the local retirement funds a pension equal to the pension for membership service which would have been payable under this system (TRS) in respect of the part of his earnable compensation payable from state funds if such member had been classified as a member of this system (TRS) immediately prior to the time of his retirement; ... the board shall also pay the pension that would have been payable on account of the prior service accumulations certified thereon: Provide{ that the excess of any such pension payable under this system (TRS) over the retirement income provided by the local retirement fund by contributions of the employer shall be payable to the retired teacher, and not to the local retirement fund....
"(2) ... should a member of the system (THS) enter the employ of an employer operating a local retirement fund, he shall cease to contribute to this retirement system erRS) and become subject to the provisions of the local retirement fund but he shall not lose his previous accrued credits in the State Retirement System (TRS) so long as he continues in the service of such employer, and he shall accrue additional credits on such part of his salary as is paid from state funds." (Parenthetical matter added.)
As I understand it, your concerns congeal into two fundamental questions: (1) What is the responsibility of TRS to local retirement funds with regard to pension payments to them for retired local teachers? and (2) What type of retirement benefits should be allowed by TRS to teachers who accrue retirement credit in a school(s) under TRS and also in a school system with a local retirement fund? You advise there are several teachers who taught either in the Atlanta or Fulton County system, and also in a school under TRS, who are now of retirement age and desire retirement benefits from the local retirement fund for their local service and from TRS for their TRS-covered serviCe.
By way of illustration, I understand the typical case is similar to the following hypothetical: Mrs. Black teaches for eight years in Gwinnett County. She leaves Gwinnett County and goes to the Atlanta school

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system (which operates its own retirement fund). After teaching a few years in Atlanta, the local Atlanta retirement fund allows her credit for her eight previous years taught in Gwinnett County. Mrs. Black continues to teach in Atlanta for 22 years. The 22 years plus her eight years of previous teaching service give her enough time for retirement benefits from the Atlanta local retirement fund. She then goes back to a school under TRS, say in DeKalb County for example, and teaches an additional five years. At this point, Mrs. Black decides to retire from teaching altogether and she contends that in addition to her retirement allowance from the Atlanta local fund based on 30 years, she is entitled to a retirement allowance based on her 13 years of service under the TRS, eight in Gwinnett County and five in DeKalb County. (She has at all times while teaching in DeKalb and Gwinnett made the appropriate employee's contributions to TRS.)
My opinion on your questions must necessarily turn on the construction and interpretation of the earlier-quoted portion of the TRS Act. In any statutory construction, a cardinal rule holds that a court should look at the language and scheme of the statute to ascertain the General Assembly's intent in passing the Act. Gazan v. Heery, 183 Ga. 30 (1936). I must give you my best judgment as to what I believe a court would hold.
A distinction must be drawn between the pension2 and annuity3 portions of the retirement allowance. The legislative scheme that I think is envisioned by the quoted language is that the state shall pay, in behalf of the pension benefits of all teachers, a sum of money in respect of the part of the earnable compensation payable from state funds, whether the teacher finds himself or herself employed by a local system having its own retirement fund, or instead, by a system under TRS. If a teacher applies service under TRS toward retirement with a local fund, TRS must pay the local fund the pension amounts claimed for the previous creditable years under TRS and the teacher would be entitled to retirement benefits from TRS based only on the annuity portion of those years served under TRS. Of course, there would not be a problem as to a teacher who had 10 "independent" years under TRS which he or she did not use toward local retirement. In that case, a teacher would be entitled to retirement benefits from TRS based on both the pension and annuity payments for those "independent" years. However, some of the teachers generating the present problem, I'm told, do not have 10 independent years and, therefore, would receive a
2 "Pension" means the annual payments derived from contributions of the state or other employer. Ga. Laws 1943, p. 640 et seq. (Ga. Code Ann. 32-2901 (16)), both as amended. 3 "Annuity" means the annual payments derived from the accumulated contributions of a member. Ga. Laws 1943, p. 640 et seq. (Ga. Code Ann. 32-2901 (15)), both as amended.

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reduced allowance based on only the annuity contributions to TRS for those TRS years used as credit toward their local retirement account.4
In summary, it is my opinion that no money ought be paid over to the local retirement system as pension amounts and also used to pay the teacher a pension under TRS, since this would clearly amount to double payment. Such portion of a teacher's service, then, as is included in the pension payments by TRS to the local fund, cannot be includable to give the teacher retirement allowances under TRS based on the pension amounts paid from state funds. In short, if a teacher, like Mrs. Black, in the hypothetical, includes previous service in a system under TRS toward retirement under a local retirement fund, and TRS pays the pension amounts on that service to the local fund, the teacher simply cannot be allowed pension benefits from TRS based on those same years for which payments are being made to the local fund. However, the language in Ga. Code Ann. 32-2922 (2) that the teacher " ... shall not lose his previous accrued credits in the State Retirement System ...." buttresses my further opinion that the teacher should be paid benefits from TRS based on the annuity contributions made during TRS service (even as to those years credited to the local fund retirement) and also paid benefits based on both the annuity and pension contributions as to all creditable years of service under TRS which are not used toward a local retirement.
Please call on me further for any clarification of this opinion you deem necessary. If unusual cases arise not included within the scope of this opinion, I will be glad to help you consider them on a case-bycase basis.

OPINION 74-22

To: Chairman, State Board of Pardons and Paroles

February 11, 1974

Re: Practice before Board of Pardons and Paroles: only an attorney may appear or practice for a fee before individual members of the board or its staff; a person seeking to appear or practice may be required to say whether he is an attorney and receiving a fee, and while the board may not regulate the amount of a fee, it may seek voluntary disclosure of the amount.

In your letter of January 2, 1974, you pointed out that by law only attorneys may "appear or practice in any matter before the State
There is apparently no problem with a teacher who renders his entire service in a local system. The questions and confusion arise only as to those teachers who transfer in or out of a local system to or from a system covered by TRS.

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Board of Pardons and Paroles for a fee ...." Ga. Laws 1968, p. 1193 (Ga. Code Ann. 77-541). You then asked three questions for specific elarification of that language:
1. Does this statute refer only to representation before a fonnal meeting of the full board, or does it also apply to situations, for example, in which persons meet with the board's staff or individually with board members?
2. Do telephone conversations and written correspondence come within the terms of this language just as do personal appearances?
3. May representation in matters before the board be conducted by the paid, nonlawyer employees of retained attorneys'?
On a related subject, in your fourth question, you asked whether the board may require an attorney to disclose the fee for which he is practicing before the board.
The statutory language which prompts your first three questions is as follows:
"Only duly licensed attorneys who are active members in good standing of the State Bar of Georgia shall be permitted to appear or practice in any matter before the State Board of Pardons and Paroles for a fee, money or other remuneration.
"Any person who pays or receives any fee, money or other remuneration in violation of Section 1 (a) shall be guilty of a misdemeanor and shall be punished accordingly." Ga. Laws 1968, p. 1193 (Ga. Code Ann. 77-541, 77-9914).
The chief means of implementing legislative intent is to give the words of a statute the meaning one ordinarily would expect them to have in the setting in which they appear. Cf. Ga. Code 102-102 (1). Even penal laws, although strictly construed in case of ambiguity, are notconstruedsoastodefeatlegislativeintent. Cf. Ga. Code 102-102 (9); Lipham v. State, 125 Ga. 52, 54, 53 S.E. 817 (1906).
In the case of your first question, we are concerned with the language: "Only ... attorneys (may) appear or practice in any matter before the ... board ...."The usual rule in statutory construction is that a modifying phrase applies to its immediate antecedent. Thompson v. Talmadge, 201 Ga. 867, 883-884, 41 S.E. 2d 883 (1947). By this rule, the phrase "before the board" refers to "any matter" and the same meaning would obtain if the statute read, "appear or practice in any matter, which is before the board."
Therefore, any appearance or practice in a paid, representative capacity in any matter pending before the board is activity regulated by the statute. This is so even if the activity involves contact limited

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to members of the board's staff. The staff itself has no authority to grant clemency. See Ga. Laws 1943, p. 185, as amended (Ga. Code Ann. 77-511, 77-513); Op. Att'y Gen. 72-105. It is, therefore, meaningless to speak of practicing before the staff in a matter pending before the board as being distinct from practicing in a matter before the board.
Moreover, since one thrust of the statute is against improper influence, it would be absurd to think that the General Assembly meant to allow its circumvention by the simple expedient of contacting board members individually and avoiding a formal meeting of the board. The language of the statute does not permit such circumvention.
As to your second question, whether correspondence and telephone calls are as much within the statute as are personal appearances, the same reasoning applies. I note that the statute says "appear or practice." (Emphasis added.) Even before the state had a statutory definition of "practice of law," the phrase was not limited in meaning to court appearances. Boykin v. Hopkins, 174 Ga. ,511, 162 S.E. 796 (1932). It is just as clear to me now that one may practice before the Board of Pardons and Paroles without actually personally appearing before its staff or its members. The regulated activity is acting in a paid, representative capacity, and the statute makes no exceptions or distinctions between particular activities undertaken in that capacity.
Your third question is expressly answered by the statute itself. Only an attorney may appear or practice for a fee in matters before the board. Attorneys commonly have clerical or paralegal help, but only attorneys may actually practice in matters before a court, or in this ease, before the board. Cf. Ga. Code 9-102 (1933).
As a final question, you asked whether the board may require an attorney to disclose his fee. In its rules, the board has provided:
"The board may require any attorney representing a person before the board to file a sworn statement as to the fee charged." Official Compilation, Rules and Regulations of the State of Georgia, Rule 475-3-.02 (4).
I understand that this rule is not strictly implemented, at least in the sense that a "requirement" is made. A "Record of Board Contact" is completed when visitors come to the board's offices. On this form, an attorney is asked to disclose his fee, but he is not required to do so, and his signature and statement are not notarized.
By statute the board may promulgate rules dealing with
"the practice and procedure in matters pertaining to paroles, pardons, probations and remission of fine and forfeitures. . . . The board shall adopt rules . . . governing the granting of other

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forms of clemency . and shall prescribe the procedure to be followed in applying for them." Ga. Laws 1943, pp. 185, 194, as amended (Ga. Code Ann. 77-525).
One might argue that the rule in question is an authorized rule of practice and procedure. However, I am inclined to believe that the rule itself has connotations which probably were not within legislative intent.
Use of the word "require" in the regulation and in your letter suggest possible refusal to admit an attorney to practice because of his refusal to disclose the amount of his fee. To some, it may also suggest implied or indirect regulation of the amount.
In two specific instances, where the General Assembly wished to allow a state agency to regulate attorneys' fees, it has enacted express authorization. Ga. Laws 1937, pp. 806, 837 (Ga. Code Ann. .54-652) (employment security); Ga Laws 1937, p. 528, amending Ga. Code Ann. 114-714, 114-9903 (work. comp.). Since the General Assembly did not specifically include such power in this case, it is my opinion that Ga. Code Ann. 77-525 cannot be construed to include that power by implication. Cf. Feldman v. Edwards, 107 Ga. App. 397, 398, 130 S.E.2d 350 (1963); Wilson v. Maryland Casualty Co., 71 Ga. App. 184, 188, 30 S.E.2d 420 (1944). This result could be changed by appropriate legislation.
On the other hand, the General Assembly has provided that only "attorneys ... shall be permitted to appear or practice in any matter before the board ... for a fee ...."Ga. Laws 1968, p. 1193 (Ga. Code Ann. 77-541). (Emphasis added.) A logical consequence of the italic language is that the board may require a representative to say whether a fee is involved, though not the amount, and whether the representative is an attorney. Even though the board may not require disclosure of the amount of the fee, it may continue the present practice of requesting voluntary disclosure. Disclosure of fee arrangements generally does not violate the rule that communications between attorney and client are confidential. E.g., Smithwick v. Evans, 24 Ga. 461 (1858); cf. Code of Professional Responsibility. DR 4-101 (C) (4) [Ga. Code Ann. Title 9, Appendix III (1973 Rev.)].
In summary, it is my official opinion that only attorneys may conduct paid representation of any kind in any matter which is before the Board of Pardons and Paroles. It is also my official opinion that the board may require a representative to disclose whether a fee is involved and whether he is an attorney. Finally, the board may not require disclosure of the amount of the fee but may seek its voluntary disclosure.

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OPINION 74-23

To: Director, Fiscal Division, Department of Administrative Services

February 14, 1974

Re: An unofficial opinion of this office, dated September 14, 1973, to a judge of the superior court is hereby incorporated by reference herein and adopted as my official opinion.

This responds to your letter of January 24, 1974, asking that I refer to an unofficial opinion from my office to a judge of the superior courts dated September 14, 1973, and adopt it as my official opinion. The opinion to which you refer is Op. Att'y Gen. U73-91.
I have referred to the above opinion and again considered its conclusions carefully. I hereby incorporate it by reference herein and adopt it as of this date as my official opinion. For your ready reference, I have attached a copy. As you know, it opines in essence that (1) apart from two exceptions discussed therein, a judge of the superior courts must be holding office as such to be appointed to the office of judge of the superior courts emeritus, and (2) an attorney engaged in the private practice of law does not occupy an office of profit or trust under the United States or Georgia Constitutions.
As I understand it, you are particularly interested in one of the exceptions [referenced in (1) above] to the general rule that a superior court judge must be holding office as such when appointed as an emeritus judge. I now reiterate my conclusion as to that exception: A superior court judge who elects to extend retirement benefits to his widow under the terms of the Superior Court Judges Emeritus Act is eligible for appointment as a judge emeritus whether or not he is holding office at the time of his appointment by the Governor (assuming, though, that he has the requisite service). Ga. Laws 1970, p. 249 et seq. (Ga. Code Ann. 24-2610a.1 (d)).

Note: This opinion adopts, and incorporates by reference, Op. Att'y Gen. U73-91. As U73-91 was printed in a digested form in 1973, it is now being set out in its entirety.

UNOFFICAL OPINION U73-91 (9/14/73)

To: Judge, Superior Courts

September 14, 1973

Re: Apart from the two exceptions discussed herein, a judge of the superior courts must be holding office as such to be appointed judge of the superior courts emeritus; and an attorney engaged in the private practice of law does not occupy an office of profit or trust under the United States or Georgia Constitutions.

This acknowledges and responds to your letter requesting my opinion on two questions. The questions asked are: (1) May a superior court judge who is eligible for

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appointment as a judge of the superior courts emeritus resign as a superior court judge and sometime later be appointed emeritus, or must he accept the appointment while still serving as an active superior court judge? (2) Does an attorney engaged in the private practice of law occupy an office of trust under the United States or Georgia Constitutions so as to permit a judge to resign and have his eligibility for appointment as emeritus suspended while practicing law? Your questions will be answered in the order posed.
The answer to your first question turns on a series of statutory constructions. These constructions will each be guided by the cardinal rule that the intention of the General Assemblyshould be determined in the interpretation of any statute. Ga. Code 102-102 (9). Also, I must be guided by the rule of law that where a statute is clear and unambiguous, it will be held to mean what has been clearly expressed. Barnes v. Carter, 120 Ga. 895 (1904).
In addressing your first question, the first statute that need be noted is Ga. Laws 1945, p. 362 et seq. (Ga. Code Ann. 24-2603a). That statute reads in full:
"The Governor shall appoint to any such position (judge of the superior courts emeritus) any one eligible under the provisions of this Chapter who shall advise the Governor in writing that he desires to resign from the office of judge of the superior courts and accept appointment as judge of the superior courts emeritus. Upon such appointment being made by the Governor, and the commission issued by the Governor, the resignation shall automatically become effective." (Parenthetical matter added.)
In my judgment, the above statute indicates a superior court judge must be serving as such in order to apply for appointment as judge of the superior courts emeritus. The language clearly states that a judge desiring to resign from the office of judge of the superior courts may advise the Governor in writing that he so desires and, in addition, that same written notice must declare that the judge desires to accept the appointment as judge of the superior courts emeritus. The second sentence of the statute indicates that the appointment of the Governor acts as the resignation of the judge from the office of judge of the superior courts by operation of law. Clearly, this statute calls for the emeritus appointment to be made while the judge is holding office.
However, a careful reading of all the statutes applying to judges emeritus indicates two exceptions to the above statute. The first is found in Ga. Laws 1960, p. 161 et seq. (Ga. Code Ann. 24-2605a.1). This first exception states, inter alia, that a judge of the superior courts who is eligible for appointment as a judge of the superior courts emeritus, but who has not yet been so appointed, who is elected or appointed to, or qualifies for, an office of profit or trust under the Constitution of the United States or the Constitution of Georgia, may assume such office of profit or trust and his right to appointment (his eligibility) shall be suspended during the time he holds such office of profit or trust.
For example, suppose a judge of the superior courts who is eligible for appointment to the office of emeritus judge (i.e., has the requisite service under the law) becomes the Governor. During the time he is Governor of Georgia, such judge's eligibility would be suspended. Upon the conclusion of his term as Governor, certainly an office of profit or trust under the Georgia Constitution, his eligibility for appointment to emeritus judge would be restored.
The second exception to the quoted statute appears in Ga. Laws 1970, p. 249 et seq. (Ga. Code Ann. 24-2610a.1(d)). This statute states that any superior court judge who elects to extend retirement benefits to his widow under the terms of the Act, as amended, is eligible for appointment as judge emeritus whether or not he is holding office at the time of his appointment by the Governor (assuming, of course, he has the requisite service). In other words, a judge electing widow's benefits under the Act does not fall within the requirement that judge must be serving as a superior court judge at the time of his appointment as emeritus judge.
Both the referenced 1960 Act and the widow's benefits amendments were passed subsequent to the original 1945 statute creating the emeritus position. Accordingly, both of these legislatively carved exceptions, being later in time, would govern as to judges falling within their ambit. Cairo Banking Co. v. Ponder, 131 Ga. 708 (1908).

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Your second question is, essentially, whether an attorney engaged in the private practice of law occupies an office of profit or trust under the United States or Georgia Constitutions so as to permit a judge to resign and, under the first exception above, have his eligibility for appointment as emeritus suspended while practicing law. The answer is he does not.
This issue was determined in Sams v. Olah, 225 Ga. 497 (1969), cert. den. 397 U.S. 914, 90 S.Ct. 916 (1969). In Sams, the Georgia Supreme Court reiterated the principle that a lawyer is an officer of the court. Platen v. Byck, 50 Ga. 345 (1873); Bibb County v. Hancock, 211 Ga. 429 (1955).
The court approved language contained in Gordon v. Clinkscales, 215 Ga. 843 (1960), taken from both 7 C.J.S., Attorney and Client, 706, 708, and said:
"An attorney does not hold an office or public trust, in the constitutional or statutory sense of that term, but is an officer of the court. He is, however, in a sense an officer of the state, with an obligation to the courts and to the public no less significant than his obligation to his clients. The office of attorney is indispensable to the administration of justice and is intimate and peculiar in its relation to, and vital to the well-being of, the court."
Accordingly, based on the foregoing discussion, it is my unofficial opinion that apart from the two exceptions discussed herein, a judge of the superior courts must be holding office as such to be appointed judge of the superior courts emeritus; and an attorney engaged in the private practice of law does not occupy an office of profit or trust under the United States or Georgia Constitutions.

OPINION 74-24

To: Commissioner, Department of Human Resources

February 15, 1974

Re: The boundaries of the state's Community Action Agencies cannot violate the boundaries of the Area Planning and Development Commissions.

The United States Office of Economic Opportunity (OEO) is requiring realignment of the boundaries of the state's Community Action Agencies (CAA's) prior to approving refunding of the programs. This requirement has been imposed pursuant to the Intergovernmental Cooperation Act of 1968 and Office of Management and Budget (OMB) Circular A-95. You have asked whether the realignment of the CAA's must conform to the boundaries of the state's Area Planning and Development Commissions (APDC's) or of the State Service Districts. For the following reasons, it is my official opinion that the realigned CAA boundaries must not violate APDC boundaries.
The Intergovernmental Cooperation Act of 1968, 42 U.S.C. 4201 et seq., and OMB Circular A-95 require that planning for all federal and joint state-federal programs be based on uniform sub-state district boundaries. To comply with this mandate, OEO is requiring, prior to approving refunding for any CAA's, that no CAA boundaries violate Georgia's legally established sub-state planning district bound-

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aries. OEO's requirement is based on Section 4, paragraph 2 of OMB A-95 which states:
"Prior to the designation or redesignation (or approval thereof) of any planning and development district or region under any Federal program, Federal agency procedures will provide a period of thirty days for the Governor(s) of the State(s) in which the district or region will be located to review the boundaries thereof and comment upon its relationship to planning and development districts or regions established by the State. Where the State has established such planning and development districts, the boundaries of designated areas will conform to them unless there is clear justification for not doing so." (Emphasis added.)
No question has arisen with regard to OEO's authority under federal law to require realignment of CAA boundaries but a question has arisen with regard to which set of boundaries has been established according to Georgia law. Ga. Laws 1970, p. 321 (amending Ga. Code Ann. Ch. 40-29), "implements the requirements of the federal Intergovernmental Cooperation Act of 1968 and the Bureau of Budget (now OMB) Circulars now or hereafter issued pursuant thereto." This Act created the State Planning and Community Affairs Policy Board which was required to establish the boundaries of the APDC's within 12 months. The policy board established the APDC boundaries in Resolution 2. In the same resolution, the policy board stated:
"That recognizing that area services by State and Federal agencies may require the encompassing of larger areas in some instances than those provided for in Area Planning and Development Commissions, the Board recommends and urges that the combined area consisting of Area Planning and Development Commissions, or combinations thereof, as appear on the map attached hereto marked Exhibit B be utilized and further recommends that the Area Planning and Development Commissions establish regional cooperation within the area set forth in Exhibit B." (Emphasis added.)
Exhibit B is a map showing nine State Service Districts each of which is made up of two contiguous APDC's. At least two CAA's have suggested that the service district boundaries may be the basis for realignment in accordance with OEO's mandate. It is apparent, however, that only the APDC boundarjes have actually been promulgated according to Ga. Laws 1970, p. 321 (amending Ga. Code Ann. Ch. 40-29), and are the only "planning and development districts or regions established by the state" within the meaning of OMB A-95. The service district boundaries were recommended, not promulgated,

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by the policy board to co-ordinate delivery of services by state and federal agencies where the APDC's were too small for effective administration. Since the pertinent portion of OMB Circular A-95 refers to state planning and development districts, APDC's are the relevant sub-state boundaries for realignment of CAA's. Therefore, it is my official opinion that CAA boundaries must not violate APDC boundaries in order to conform to Ga. Laws 1970, p. 321, and OMB Circular A-95.

OPINION 74-25

To: Secretary of State

February 22, 1974

Re: A county board of elections which has assumed the duties of the board of registrars and the ordinary cannot move the main office for registration outside the county site.

This is in response to your letter requesting my opinion as to whether or not a county board of elections which has assumed the duties of both the board of registrars and the ordinary can move the main office for registration outside the county site. Combined county boards of elections and registrars have been established in several counties by separate Acts of the General Assembly. You do not state which county you are referring to in your letter. However, I am unaware of any provisions in the various Acts which relate to the specific question. Therefore, this opinion would apply to any county in which a board of elections and registrars has succeeded to the duties of both the ordinary and the registrar.
Because combined boards of elections and registrars succeed to the duties of the registrars, Code Chapter 34-6, based upon Ga. Laws 1964, Extra. Sess., p. 26, as amended, is applicable to such boards. Georgia Code 34-610 provides that if the registrars have a main office separate from the offices of the county tax collector or tax commissioner, the records shall be in a main office in "the courthouse or other public building." Otherwise, the records of the registrars must be kept in the office of the tax collector or tax commissioner and "such office shall be deemed the main office of the board of registrars." Although there is no specific Code section requiring the registrars to maintain their office at the county site, it is my opinion that for the following reasons the main office must be maintained at the county site.
A county site "is the chief town of the county where the county buildings and courts are located, and the county business transacted." Black's Law Dictionary, cited in DeKalb County v. Atlanta, 132 Ga.

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727 (1909). The registration of electors and the voting of absentee ballots is "county business." Since county business must be conducted at the county site, the combined board of elections and registrars could not move the main office for registrars outside of the county site. This conclusion is buttressed by the recent case of Jackson v. Gasses, 230 Ga. 712 (1973), in which the Supreme Court held that a county jail could be moved beyond the county site because it was an "administrative facility." The court interpreted the Home Rule Amendment of 1966, Ga. Const., Art. XV, Sec. IIA, Par. I (Ga. Code Ann. 2-8402), as granting the governing authorities sufficient "discretion to locate administrative facilities and services such as jails, correctional camps, health clinics, hospitals, public housing and the like." Jackson, supra, at 713. Registration of electors and the other functions performed by the registrars are not administrative services of a character similar to those listed by the Supreme Court in Jackson v. Gasses but are official functions. Therefore, it is my official opinion that the main office for registration of electors must be located at the county site, with additional offices located elsewhere in the county as permitted by Ga. Code Ann. 34-610.

OPINION 74-26

To: Secretary of State

February 25, 1974

Re: A person under probation pursuant to Ga. Laws 1968, p. 324 (Ga. Code Ann. 27-2727), is eligible to vote and should not be deprived of any civil right or liberty.

This is in response to your letter of February 6, 1974, requesting my opinion as to whether persons serving probated sentences pursuant to Ga. Laws 1968, p. 324 (Ga. Code Ann. 27-2727), sometimes referred to as the First Offenders Law, are eligible to vote while they are under probation.
The Constitution of Georgia, Art. II, Sec. II, Par. I (Ga. Code Ann. 2-801), reads in part as follows:

"The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold any office, or appointment of honor, or trust in this state, to-wit: 1st. Those who have been convicted in any court of competent jurisdiction of treason against the state, or embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involv-

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ing moral turpitude, punishable by the laws of this state with imprisonment in the penitentiary, unless such persons have been pardoned."
The key word in this section for the purpose of answering your question is "convicted." It is only those persons who have been convicted of one of the offenses listed above who are disfranchised. In the case of Summerour v. Cartrett, 220 Ga. 31, 136 S.E.2d 724 (1964), the court said:
"The word 'conviction' is sometimes used to mean a verdict of guilty, or a plea of guilty, and sometimes is used to include also the judgment . . . . The constitutional provision provides for forfeiture of the right to hold office upon being 'convicted' . . . . Strictly construing the language of the constitutional provision the 'conviction' must be a final one. Hence, it is evident that if the jury's verdict had been set aside or was under review and subject to be set aside either by motion for new trial, bill of exceptions or other appropriate procedure, there would be no conviction within the meaning of the constitutional provision."
Thus, it is evident that the word "conviction," as it is used in that part of the Constitution of Georgia quoted above, refers to an adjudication of guilt which is final.
The probation which is given pursuant to Ga. Laws 1968, p. 324 (Ga. Code Ann. 27-2727), is administered prior to any adjudication of guilt by the court, and Ga. Laws 1968, p. 324 (Ga. Code Ann. 27-2728), provides that upon the fulfillment of the terms of the probation the defendant is to be discharged. Georgia Laws 1968, p. 324 (Ga. Code Ann. 27-2728), indicates that this discharge completely exonerates the defendant of any criminal purpose and that the process shall not be considered to have been a criminal conviction.
Therefore, since there is no adjudication of guilt so long as the terms of the probation are met, there necessarily is no conviction. For this reason, it is my official opinion that the placing of an individual on probation pursuant to Ga. Laws 1968, p. 324 (Ga. Code Ann. 27-2727), does not by itself result in a conviction and any person serving such a probation has not suffered a conviction which would disfranchise him. He therefore would be eligible to vote.

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OPINION 74-27

To: Director, State Merit System

March 1, 1974

Re: When a department of state government contracts for personal services with a right to control the time, manner and method of executing the work, and the position does not come within one of the definitions of "unclassified service" in Ga. Laws 1971, p. 45, then the position is classified and must be filled according to the rules and regulations of the State Merit System of Personnel Administration.

This is in response to your letter of January 23, 1974, regarding the practice of contracting with individuals and institutions to perform personal services. The jobs offered under these contracts are not subject to the merit system nor are the employees afforded the protection of the merit system. Even the compensation is set by the appointing authority. You wish my opinion as to when this procedure would be in conflict with Ga. Laws 1971, p. 45 (Ga. Code Ann. Ch. 40-22), which governs the State Merit System of Personnel Administration.
Of course, no department could use such a contract to employ an individual in a position that is by law in the classified service of the merit system. See generally, Ga. Laws 1971, p. 45 (Ga. Code Ann. Ch. 40-22). Therefore, with each situation there are two questions that must be answered: (1) Has a normal employer-employee relationship been created, and (2) if an employer-employee relationship has been created, then does the employee hold a covered position? If the answer is yes to both of these questions then the employee would be in the classified service and may be employed only through the procedures prescribed by the merit system.
The first determination is whether the relationship created is that of employer-employee. The key to whether an employment relationship exists is whether or not the employer has the right to control the time, manner and method of doing the work. Galosh v. Cherokee Cab Co., 226 Ga. 636 (1970); Moon v. Georgia Power Co., et al., 127 Ga. App. 524 (1972); Op. Att'y Gen. 73-134 (copy attached). This point was reiterated by the Georgia Supreme Court when it said:
"The test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of employer and servant, or employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract." See Golo8h v. Cherokee Cab Company, supra, at 637.

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If, after applying this test, it is determined that the relationship is one of employer-employee, then it must be ascertained whether the position is under the "classified" or the "unclassified" service. This answer lies in the definitions found in Ga. Code Ann. 40-2201. The definition of "classified service" includes all state employees except those specifically excluded under the definition of "unclassified service." Ga. Code Ann. 40-2201. Consequently, unless the position for which the employee is hired comes within one of the definitions found in Ga. Code Ann. 40-2201 (b), he must be employed according to the procedures prescribed by the merit system.
Therefore, it is my official opinion that if a department of state government contracts for personal services with a right to control the time, manner and method of executing the work and the position does not come within one of the definitions of unclassified employees, then the position is classified and must be filled according to the rules and regulations of the State Merit System of Personnel Administration.

OPINION 74-28
To: Director, Environmental Protection Division, March 1, 1974 Department of Natural Resources
Re: Additional classifications and revisions of classifications for the waters of the State of Georgia.
This is in response to your request for a statement from this author that the additional classifications and revisions of classifications for the waters of this state recently established by your office (a copy of same being attached hereto) were duly adopted and are enforceable by the state.
Our information reveals that on February 20, 1974, the State Division of Environmental Protection conducted a public hearing in Macon, Georgia on the attached classifications. Notice of such hearing was sent to all newspapers and radio stations in the state and a legal notice of same was carried in the Atlanta newspapers more than 30 days prior to the hearing date of February 20, 1974. In addition, notice of such hearing was personally forwarded to all persons on the division's mailing list.
An examination of such notice of hearing reveals that same included a description of the subjects and issues involved, and the time when, the place where, and the manner in which, interested persons might present their views thereon.
Section 5 (10) of the Georgia Water Quality Control Act, Ga. Laws 1964, pp. 416, 420 (Ga. Code Ann. 17-505 (10)), authorizes the

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Division of Environmental Protection to establish and revise standards of water purity and to correlate such standards to various water classifications established by said division.
Based upon the above, it is my opinion that the attached water use classifications as established and revised were duly adopted and are enforceable by the state.

OPINION 74-29

To: Commissioner, Department of Corrections/ Offender Rehabilitation

March 8, 1974

Re: Inmates in state prisons are not exempt from sales and use tax on items purchased from inmate stores.

You have requested my opinion as to whether or not inmates in state prisons are exempt from sales taxes on items purchased from inmate stores, and whether or not this office is still of the opinion that the Georgia State Prison Store is a dealer under the Georgia Retailers' and Consumers' Sales and Use Tax Act. You stated that it has been indicated to you that federal courts in several states have "outlawed the sales taxing of inmates."
This office issued an official opinion, Ops. Att'y Gen. 1960-61, p. 551, in 1961 which ruled that the Georgia Prison Store is a dealer under the Sales Tax Act and is required to register, collect and remit sales tax on all its retail sales. Since the Sales and Use Tax Act provides no specific exemption for inmates, retail sales to inmates come within the taxing provisions of the Act unless protected by constitutional law. See Ga. Laws 1951, p. 360, as amended (Ga. Code Ann. 92-3402a, 92-3403a). My researyh has disclosed no authorities, either federal or state, which require a different conclusion, or which prevent the sales taxation of inmates.
On the contrary, a long line of authorities indicates that the power to tax is an incident of sovereignty and is coextensive with that to which it is an incident, so that all subjects over which the sovereign power extends are objects of taxation. E.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); Graves v. Schmidlapp, 315 U.S. 657, 660 (1942). Restrictions placed by the Federal Constitution on the states in the exercise of their taxing powers are extremely limited. Wisconsin v. J. C. Penney Co., 311 U.S. 435, 445 (1940). Thus it has been held that the power of a state to tax is limited only if in substance and effect it is the exertion of a different and forbidden power, such as taxation of a privilege protected by the Bill of Rights. Bode v. Barrett, 344 U.S. 583, 585 (1953).

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It is clear that the sovereign power of a state extends over inmates in state prisons. Further, requiring inmates to pay the same sales tax as all other taxpayers does not tax any privilege protected by the Bill of Rights.
Therefore, having reexamined Op. Att'y Gen. 1960-61, p. 551, it is my official opinion that it is still valid and that inmates in Georgia prisons are neither exempt nor constitutionally protected from the Georgia Retailers' and Consumers' Sales and Use Tax Act on purchases of items from inmate stores.

OPINION 74-30

To: Commissioner, Department of Banking and Finance

March 8, 1974

Re: The conflict between Section 545.1 (d) of the rules and regulations of the Federal Home Loan Bank Board [12 C.F.R. 545.1 (d)] and Ga. Laws 1972, p. 762 (Ga. Code Ann. Ch. 85-20), concerning the proper service charges which may be exacted from any inactive account, must be resolved in favor of the limitations imposed by the federal regulation, inasmuch as the state is prohibited from enacting legislation in areas preempted by federal law.

This is in response to a request from your office dated January 31, 1974 requesting our opinion on the following question:
"Section 545.1 (d) of the rules and regulations of the Federal Home Loan Bank Board [12 C.F.R. 545.1 (d)] may conflict with Ga. Laws 1972, p. 762 (Ga. Code Ann. Ch. 85-20), sometimes referred to as the "Disposition of Unclaimed Property Act," inasmuch as they both purport to regulate the maximum service charges which may be assessed against an inactive account. If the apparent conflict actually exists, which law should be followed?''
Section 545.1 (d) of the rules and regulations of the Federal Home Loan Bank Board [12 C.F.R. 545.1 (d)] reads in part as follows:
"A federal association which has a charter in the form of Charter Nor Charter K (rev.) may make a service charge of not more than one dollar ($1.00) in any calendar year against any savings account if at the time any such charge is made:
"(1) The association is not required to distribute earnings on such account;

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"(2) No payment has been made and no earnings have been distributed on such account for a period of at least thirty-six (36) months next preceding the date on which such charge is made; and
"(3) Thirty days prior to making the first service charge, the association has mailed to the holder of such account, at his last known address, a notice that the service charges will be made in accordance with this paragraph."
A federal association is defined by Section 541.2 of the rules and regulations of the Federal Home Loan Bank Board (12 C.F.R. 541.2) as being a Federal Savings and Loan Association.
Section (i) of Georgia Laws 1972, pp. 762, 773 (Ga. Code Ann. 85-2013 (i)), reads as follows:
"No banking or financial organization shall deduct a service charge from any account on which there has been no deposit or withdrawal for 12 or more months or Jtherwise impose a service charge on any such account. A servi..::e charge may be imposed for 12 months immediately following a deposit to or withdrawal from any such account."
Section (c) ofGa.Lawsl972,pp. 762,764 (Ga. CodeAnn. 85-2002 (c)), defines "financial organization" as being "any savings and loan association, building and loan association, credit union, or investment company, engaged in business in this state."
Therefore, there is an actual conflict between the federal regulation and the state law. The federal regulation clearly limits itself to Federal Savings and Loan Associations, but the state law appears to be broader, including any savings and loan association engaged in business in this state, which necessarily includes Federal Savings and Loan Associations.
Since a duly enacted rule or regulation of a federal agency has the force and effect of law, see Community Federal Savings and Loan Association v. Fields, 128 F.2d 705 (8th Cir. 1942), there exists a conflict between federal law and state law. The issue as to which prevails has been thoroughly litigated and the answer is quite clear. Where there is a conflict between state legislation and a federal law or regulations duly promulgated thereunder, the federal law will control. See Anderson National Bank v. Luckett, 321 U.S. 233 (Ky., 1944); State of California v. Coast Federal Savings and Loan Association, 98 F. Supp. 311 (D.C. Cal. 1951).
Therefore, to the extent that the federal regulation and the state law conflict, which would be limited to the service charge which a Federal Savings and Loan Association could charge in accordance with Section 545.1 (d) [12 C.F.R. 545.1 (d)], it is my opinion that the

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federal regulation must control. Please note that this opinion only applies to the service charge which may be applied by a Federal Savings and Loan Association, since these associations are the only groups which would fall within the purview of both the federal regulation and the state law.

OPINION 74-31

To: Commissioner, Department of Public Safety

March 13, 1974

Re: If a school bus previously declared unsafe is found moving on the highways, the Department of Public Safety may issue a citation to the driver and to anyone who ordered or directed the driver to move the school bus on the highways if such person had knowledge of the unsafe condition.

By letter of February 21, 1974, you requested an official opinion on the following questions:
1. If a school bus is declared unsafe and a county refuses to repair it, what action may be taken by the Department of Public Safety?
2. In the case of such an unsafe school bus, who, excluding the driver, may be issued a citation?
Both questions specifically address a situation where the school bus has previously been declared unsafe, and therefore no emphasis has been placed on how or why the determination was made.
Once a vehicle has officially been declared unsafe it may not be operated on the highways of Georgia except as necessary to obtain any required repairs. Ga. Laws 1953, Nov.-Dec. Sess., pp. 556, 616, as amended (Ga. Code Ann. 68-1725 (c)). Moreover, Ga. Laws 1953, Nov.-Dec. Sess., pp. 556, 615, as amended (Ga. Code Ann. 68-1722), provides that:
"It is unlawful for the owner, or any other person, employing or otherwise directing the driver of any vehicle to require or knowingly permit the operation of such vehicle upon a highway in any manner contrary to law."
This prohibition is also conveyed by Ga. Laws 1953, Nov.-Dec. Sess., pp. 556, 615, as amended (Ga. Code Ann. 68-1723), which makes it illegal to "drive or move" an unsafe motor vehicle on the highways. Misdemeanor punishment is provided for any violations of the above-referenced statutory provisions pursuant to Ga. LawR 1953, Nov.-Dec. Sess., pp. 556, 602 (Ga. Code Ann. 68-1701 (a)).

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An additional question which must be considered before a final answer may be given is whether school buses, especially those owned by counties and municipalities, are governed by the above-referenced statutes. Ga. Laws 1953, Nov.-Dec. Sess., pp. 556, 565, as amended (Ga. Code Ann. 68-1603), makes "all vehicles" owned or operated by any "county, city, town, district, or any other political subdivision of the state" subject to the regulations set forth in the preceding paragraphs. Since Ga. Laws 1953, Nov.-Dec. Sess., pp. 556, 557, as amended (Ga. Code Ann. 68-1502), defines "vehicle" in terms of any device in which any person or property may be drawn upon a highway, it is clear that school buses, as county owned or operated vehicles, are subject to regulation.
Based on the foregoing Georgia statutes the answers to your questions are as follows:
1. Once a school bus has been declared unsafe, a misdemeanor citation may be issued each time the bus is found moving on the highways for purposes other than effecting the requisite repairs.
2. Citations may be issued not only to the driver of the unsafe vehicle but also to any person who knew the school bus to be in an unsafe condition and yet ordered or directed the driver to take it upon the highways, and to the owner of the school bus if such owner knew of the unsafe condition and yet permitted continued operation of said school bus.
The Department of Public Safety may, then, issue citations each time an unsafe school bus is found moving on the highways and such citations may be issued to any person directing such movement.

OPINION 74-32

To: Director, State Merit System

March 14, 1974

Re: The position of Director, Office of Aging, may be placed in the classified service of the merit system only by an Act of the General Assembly.

This is in response to your letter of March 6, 1974, requesting my opinion as to whether the Director, Office of Aging, may be placed in the classified service of the State Merit System of Personnel Administration.
The position of Director, Office of Aging, is the head of a division created within the Department of Human Resources when the functions of the State Commission of Aging were transferred to that de-

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partment by the Executive Reorganization Act of 1972. Ga. Laws 1972, pp. 1015, 1048 (Ga. Code Ann. 40-35112). In the Executive Reorganization Act of 1972 the General Assembly provided that the position of head of a department or division director of any agency created by the transfer of functions shall be in the unclassified service as defined in the Acts governing the State Merit System. Ga. Laws 1972, pp. 1015, 1068 (Ga. Code Ann. 40-35212). See Ops. Att'y Gen. 72-81, 72-58.
Since this position has been plaeed in the unclassified service by an Aet of the General Assembly, I know of no authority, other than a subsequent Act of the General Assembly, that could take the position out of the unclassified service and place it in the classified serviee.
Therefore, it is my official opinion that the position of Director, Office of Aging, may be placed in the classified serviee of the merit system only by an Act of the General Assembly.

OPINION 74-33

To: Secretary of State

Mareh 15, 1974

Re: Upon marriage a woman takes her husband's surname which becomes her "legal" name; it is within the power of a state to require the use of one's "legal" name with respect to official records and documents if it so chooses; the State of Georgia does require that one's "legal" name be given when filling out a voter registration card.

This is in answer to your letter of March 1 in which you request an opinion as to whether a married woman may lawfully register to vote in her maiden name. It is of at least passing interest that during the past week or so we have received a number of similar inquiries concerning the extent to which married women may retain and use their maiden surnames in place of their husbands' surnames. I am consequently responding to your request in a perhaps somewhat more detailed manner than would otherwise be the case. It is my hope that this will serve to make this official opinion equally responsive to the other inquiries.
In looking at the ultimate question you pose, it seems to me that we must deal with four separate questions. They are: (1) 'V"hether there is such a thing as a "legal" name of a person as opposed to the sort of self-determined designation or appellation by which one may refer to himself (or herself) for varying periods of time; (2) If there is such a thing as a "legal" name of a person, to what extent is this "legal" name affected or changed, if the person is a woman, by her marriage;

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(3) Whether a state may require the use of one's "legal" name [if such exists] with respect to its official records and documents; and (4) [if the question is not pretermitted by virtue of our answers to the foregoing] Whether the State of Georgia presently imposes any such requirement in connection with voter registration cards. I shall deal with each of these questions in turn.

1. Is there such a thing as a "legal" name?
As far as personal usage is concerned a man can pretty much call anything anything he wants to. An individual may presumably call a "tomato" a "frigglesnip," a "cow" or a "pear" with impunity-although if he does so he might be thought a bit odd and might also prove to be somewhat difficult to communicate with, particularly if he expanded his idiosyncrasy to other objects. Similarly, in his purely personal usage, an individual may presumably adopt such self-determined names as suits his mood, donning and casting the same off as a piece of clothing. Again, of course, this might cause rational conversation with (or even about) the individual to be difficult. A name is the designation or appellation used to distinguish one person, thing or object from another person, thing or object. See 28 Words & Phrases, Name, p. 11; 57 Am. Jur.2d Name, 1. It would be hard to imagine any sort of rational conversation if this basic tool for the distinguishing of people and things were completely will-o'-the-wisp.
The use of names to distinguish between persons, things or objects is unquestionably the product of custom, just as is the language itself. However, the fact that the matter of names grows out of "custom" is not the end but only the starting point of our inquiry. The question is the extent to which this custom, like those pertaining to social organizations (e.g., government) and social institutions (the family unit), has acquired legal trappings. Is a name solely a matter of custom, use and choice, or is there such a thing as a "legal" name? It would seem self-evident that the answer to this question is dictated by necessity if we are to have either sensible conversation or any measurable level of social and institutional organization. The farmer who violates a federal acreage limitation on tomato growing can hardly expect to escape penalty because in his personal usage he refers to what he has grown as "frigglesnips," "cows" or "pears" rather than tomatoes. The necessity of some sort of fixed names to distinguish one person from another is really not much different. In earlier times persons were identified only by their given or Christian names, plus, perhaps, their trade, as John the Weaver (later John Weaver). As early as the reign of Edward IV (1461-1483), however, the adoption and use of family or surnames was required "by statute." See 57 Am. Jur.2d Name, 2.

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The existence of a "legal" name as distinguished from the mere appellation or designation one may adopt as a matter of personal usage (i.e., an "assumed" name) would seem to be a settled part of the common law in all states. As stated in Application of Green, 283 N.Y.S.2d 242, 245, 54 Misc.2d 606 (1967), where a petitioner's request for a change of his legal name from "Earl Green" to "Merivon Abdul Sulaam" was denied:
"The legal name of an individual consists of a given or baptismal name, usually assumed at birth, and a surname deriving from the common name of the parents." (Emphasis added.)
In People v. Darcy, 59 Cal.App.2d 342, 139 P.2d 118, 124 (1943), this distinction between one's "legal" name and his "assumed" name spelled the difference between personal liberty and prison. The accused had used an "assumed" name in place of his legal name on a sworn voter registration certificate. In affirming his conviction for perjury, the California court pointed out that:
"In some instances, such as applications for passports, the assumed name must be discarded for the original or true name."
In reaching this conelusion, the California court made a passing reference to the faet that under California law where a surname was changed by court order, or by marriage, the voter had to reregister. Ibid.
Although I am unaware of any Georgia decision on the point, I have no doubt at all as to the fact that this apparently universal common law rule that there is indeed such a thing as one's "legal" name is part and parcel of the law of the State of Georgia. The state's laws pertaining to "birth certificates," for example, obviously seem to presuppose the existence of a legal name which can be altered only by court order. See, e.g., Ga. Laws 1964, pp. 499, 584 to 595 (Ga. Code Ann. 88-1708 to 88-1714 and 88-1721 to 88-1724). Indeed the entire judicial procedure whereby one must petition the superior court in order to obtain a 'change of his own name or the name of his children, Ga. Laws 1973, p. 504 (amending Ga. Code Ann. Ch. 79-5), would be pointless if it were not speaking of one's "legal" name. If a name amounted to no more than one's choice of the moment as to how he (or she) would call himself (or herself), it would obviously not be necessary to go to court to bring about a name change. Yet it has several times been held in Georgia that:
" ... whether a judge of the superior court shall grant or refuse a proper application for a change in name, upon objection and after a hearing, involves the exercise of sound legal discretion." Johnson v. Coggins, 124 Ga. App. 603, 604 (1971); see also, Binford v. Reid, 83 Ga. App. 280 (1950).

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Also, in Op. Att'y Gen. 1962, p. 345, it was said that this statutory procedure is "the only way in which [the individual involved] could legally change his name." (Emphasis added.)
In light of the foregoing, I really think it is quite safe to say that in Georgia (as in presumably each and every other state) there is indeed such a thing as the ''legal'' name of a person-as opposed to such assumed name or names which he (or she) may from time to time or even invariably employ as a matter of personal usage.

2. To what extent is the "legal" name of a woman affected or changed by her marriage?
There can be no question as to the fact that it is the custom, throughout western civilization, for a woman, upon marriage, to take the surname of her husband. Upon her marriage to Herr Schmidt, Fraulein Richter becomes Frau Schmidt. Growing out of the fact of a family being recognized as "a unit," this development would seem to be based upon the necessity of identification of "the unit" plus convenience. The use of hyphenated last names to identify the family unit would, if carried through, become unbearable after several generations. Logically, of course, descent could be traced through the maternal rather than the paternal line. However, it seems a bit late in the day to start this. The selection of paternal line presumably goes back to the common law concept of a wife's separate legal existence being merged into that of her husband except where by statute her own separate existence is recognized. Although ameliorated by numerous statutory exceptions in Georgia, this common law view is still the general rule in this state. Ga. Code 53-501 (1933).
Again, of course, we have to ask whether this taking of the husband's surname is only "custom," or whether we have the not infrequent situation where "custom" has hardened into "law." There is to some extent a division of the courts on the matter. In an Ohio case where by antenuptial agreement the husband consented to his wife's retention of her own name, that state's Court of Appeals said:
"It is only by custom in English speaking countries, that a woman, upon marriage, adopts the surname of her husband in place of the surname of her father." State v. Green, 114 Ohio App. 497, 177 N.E.2d 616, 619 (1961).
The Maryland courts have likewise concluded that the matter is one of "custom" alone. See Stuart v. Board of Supervisors, 266 Md. 440, 295 A.2d 223 (1972).
The great weight of authority, however, is that the change is by operation of law and is not solely a matter of custom. As stated in 57 Am. Jur.2d Name, 9:

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"It is well settled by common-law principles and immemorial custom that a woman upon marriage abandons her maiden name and assumes the husband's surname. Her correct first name, however, is her maiden Christian name, and not the Christian name of her husband. Legally, therefore, her name consists of her own Christian name and her husband's surname." (Emphasis added.)
Perhaps the leading case on the point is Chapman v. Phoenix National Bank, 85 N.Y. 437, 450 (1881), where the New York Court of Appeals similarly observed:
"For several centuries, by the common law among all Englishspeaking people, a woman, upon her marriage, takes her husband's surname. That becomes her legal name .... By that name she must sue and be sued, make and take grants and execute all legal documents. Her maiden name is absolutely lost.''
While Georgia law does not expressly state that this change of a woman's "legal" name upon marriage takes place by operation of law in this state, the adherence to this general common law rule (which is by far the weight of authority elsewhere) would seem implicit in the state's divorce laws, which once again look to an express court order as the means of restoring her maiden or former surname. See Ga. Code Ann. 30-116, 30-121 (Code of 1933, amended by Ga. Laws 1946, p. 90). If the name change were but custom there would be no need for the existence of these statutes since it could be effected at will. The contemplation of the law that a wife takes the surname of her husband is also seen (in a negative sense) in the provision which gives an illegitimate child the mother's surname unless the putative father consents to the use of his surname on the birth certificate. Ga. Code Ann. 88-1709 (d), based on Ga. Laws 1964, pp. 499, 584. For all of these reasons, I think that the chances of the courts of Georgia declining to follow the weight of authority (i.e., the common law rule) would be slight. It is my opinion that under Georgia law a woman, upon marriage, takes the surname of her husband by operation of law, and that unless and until she has this married name altered or changed by court order, it is her "legal" name.
3. May a state require the use of one's "legal" name with respect to its official records and documents?
In People ex rel. Rago v. Lipski, 327 Ill. 63, 63 N.E.2d 642 (1945), the court faced a situation where a female lawyer who had practiced in and was well known by her maiden name married. The election laws of Illinois provided that any registered voter who changed his or her name, by marriage or otherwise, had to register anew. The

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female lawyer filed for a writ of mandamus against election officials to require them to permit her to remain registered and to vote under her maiden name. In denying her application, the court said that it was a well settled common law principle, recognized by the very statute she attacked, that
" . . . by the fact of marriage alone a woman changes her name so that her maiden name is lost and her new name consists of her own given name and her husband's surname." People, supra, at p. 645.
Speaking of the re-registration requirement, the court said:
" ... it appears obvious that the provision was intended to prevent fraudulent duplication of registrations, and the question of whether the damages arising from such duplication are sufficient to make the re-registration provision desirable is, of course, a matter of legislative discretion." Ibid.

A similar result was reached in the case of In re Kayaloff, 9 F. Supp. 176 (S.D. N.Y. 1934), where it was held that a naturalization certificate would not be issued to a married woman in her maiden name notwithstanding the fact that she was a professional musician and well known professionally by her maiden name.
The first broad attack upon the common law rule under the civil rights Acts, alleging the customary Fourteenth Amendment "equal protection" deprivations (Ga. Code Ann. 1-815), arose in Forbushv. Wallace, 341 F. Supp. 217 (M.D. Ala. 1971) [3-judge district court]; aff'd, 405 U.S. 970 (1972). It seems that Alabama's State Department of Public Safety had a regulation requiring each automobile operator to secure a driver's license in his (or her) "legal name." Because of Alabama's adherence to the general common law rule, the effect of the regulation was to require married women to use their husbands' surnames when applying for a driver's license. A class action attacked both the regulation and the common law rule, the female plaintiff pointing out that she was continuing to use her maiden name in all her business affairs.
The three-judge district court upheld the common law rule on the ground that it had a rational basis, saying:
"Certainly the custom of the husband's surname denominating the wedded couple is one of long standing. While the origin is obscure, it suffices for our purposes to recognize that it is a tradition extending back to the heritage of most western civilizations. It is a custom common to all 50 states of this union. Uniformity among the several states in this area is important.

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"An additional basis exists for finding a rational connection between Alabama's law and a legitimate state interest. The administrative convenience, is not a necessity, is an important consideration." 341 F. Supp. supra at p. 222.
The affirmance of the three-judge district court's opinion by the Supreme Court of the United States would seem to be dispositive of the state's right, at least under present judicial interpretation of the Constitution/ to require the use of one's "legal" name in connection with its official records and documents. In a nation which routinely assigns numbers to people for identification purposes (under the Social Security Act as well as in the military), it indeed seems a bit strained that government could not insist upon the use of one's "legal" name for identification purposes on such records and documents, particularly where this legal name can ordinarily be changed quite easily by court order, and where the existence of such "legal" name in no way precludes one's employment of an "assumed" name as a matter of purely personal usage.
4. Does Georgia currently require the use of one's "legal" name in connection with voter registration procedures, and more particularly with respect to a married woman's use of her husband's surname?
The answer to this question seems to be clearly in the affirmative under Ga. Laws 1964, Extra. Sess., pp. 26, 50, as amended (Ga. Code Ann. 34-609), which in specifying the form to be used for voter registration cards requires a female applicant to state both her maiden name and her last name (the last name, of course, being her husband's surname). The application is required to be sworn to. An individual registering as an elector under any name other than his own is guilty of a misdemeanor. Ga. Laws 1964, Extra. Sess., pp. 26, 185 (Ga. Code Ann. 34-1902). Thus it would be unlawful for a married woman who executes a voter registration card not to furnish both her maiden name and her legal surname (i.e., her husband's surname). It must be noted, on the other hand, that unlike the situation presented in Illinois in People ex rel. Rago v. Lipski, supra, voter registration is in general permanent in Georgia (although subject to purging for nonvoting or other reasons), and there appears to be no general statutory requirement that a woman who properly registers in her maiden name before she is married must re-register and furnish her new "legal" name upon marnage.
1 It must be recognized that a minority of Supreme Court Justices have recently indicated a disposition to view classifications based upon sex as "suspect classifications." See, e.g., Frontiero v. Richardson, 411 U.S. 677 (1973). Should their view ever prevail, any disparity of treatment based upon sex would have to be supported by a "compelling reason." It is obviously a highly debatable matter of opinion as to whether the traditional common law view is or would be held by the Supreme Court to be supported by "compelling reasons."

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OPINION 74-34

To: Commissioner, Department of Human Resources

March 18, 1974

Re: Special Regulation No. 57 of the State Personnel Board is applicable to all employees of the Drug Abuse Services Section of the Department of Human Resources who are included within the terms of the regulation.

This is in response to your letter requesting an opinion regarding the decision of the State Personnel Board establishing and assigning a class for the position of Deputy Director of the Drug Abuse Services Section of the Department of Human Resources but reducing the salary of the incumbent, apparently in contravention of Special Regulation No. 57. This opinion is based on the facts as you have presented them to me and on the minutes of certain meetings of the State Personnel Board.
The Drug Abuse Services Section of the Department of Human Resources was not part of the State Merit System until April1, 1973. Ga. Laws 1971, p. 45 (Ga. Code Ann. 40-2201), required that the section become part of the merit system. On June 21, 1972, the State Personnel Board adopted, at the request of the department, Special Regulation No. 57 in order to "expedite the extension of merit system coverage to additional employees of the Department of Human Resources, thereby effectuating the provisions of Act 12 (Ga. Laws 1971)." Under the merit system, a special regulation is one which sets up the procedures for extending merit system coverage to a new group of employees. In addition to governing the classification and compensation plans to be established, Special Regulation No. 57 provides in paragraph 4(b) that the salary of the section's employees must be at least equal to the minimum step of the approved range in the compensation plan to be established if the employee's present salary is lower than the minimum step or "if it is more than the maximum of the approved salary range, it may be adjusted to the maximum or allowed to remain the same, at the discretion of the appointing authority."
Special Regulation No. 57 was to be effective until October 1, 1972, when it was expected that section employees would all be covered by the merit system. At the time Special Regulation No. 57 was adopted by the board, the deputy director of the section had not been employed. He was hired on August 1, 1972, and placed in an exempt status at the request of the Governor.
On September 20, 1972, Special Regulation No. 57 was extended until January 1973. On December 13, the personnel board denied

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a request that the deputy director of the section be continued in an exempt status. Most positions in the section were classified by January 1973, but Regulation 57 was extended for a few positions until April1, 1973. By the March 28, 1973 meeting of the personnel board, all positions were classified except that of the deputy director, and jn that meeting the personnel board extended Special Regulation No. 57 for 60 days applicable only to the deputy director position. In April and then in October, the board delayed consideration of the department's request for classification of the deputy director position.
On November 20, 1973, the personnel board established and assigned a class for the deputy director, but on November 28, 1973, the Director of the State Merit System notified the department's personnel officer that this approval was "with the provision that the current incumbent be appointed at the seventh step of the range." You have informed me that this has the effect of reducing the incumbent's salary by $2,316 a year. The State Personnel Board insists that the department reduce the incumbent's salary. You have asked whether you are required to do so. For the following reasons, it is my opinion that the action of the personnel board requiring that the incumbent's salary be reduced was contrary to Special Regulation No. 57 and therefore void.
Before reaching the question which you raise it must be determined whether or not the Deputy Director of the Drug Abuse Services Section was actually covered by Special Regulation No. 57 since he was hired in an exempt status and hired after July 1, 1972. As stated, the position was changed to a classified one in December 1973. The personnel board itself included the incumbent within the provisions of Special Regulation No. 57 on January 24, 1973, and again on March 28, 1973, by extending the operation of the regulation past the original time limit. The March 28 extension applied only to this position and is therefore an unequivocal interpretation by the board that the regulation applied to the position and the incumbent. This interpretation is correct since it is consistent with paragraph 5(a) of Special Regulation No. .57 which allows the department to make interim appointments to positions which are to be covered without regard to the compensation plan to be effective later. Such an employee is to be treated like those employees hired prior to July 1, 1972 and are entitled to the benefits of paragraph 4(b), i.e., the department is authorized to freeze their salary above the maximum step in the range in the established compensation plan. Further, Section 4(b) of the regulation provides that "when the compensation plan becomes effective, the compensation of each employee of the Department of Human Resources in a covered position" shall be set at the discretion of the appointing authority no higher than his current salary. Since the compensation plan for the deputy director was not effective until

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December 1, 1973, and at that time he was in a covered position, i.e., one "not previously covered by the merit system with the exception of those exempted by law," the deputy director is included within Special Regulation No. 57.
Since Special Regulation No. 57 does apply to the deputy director, the essential issue is whether the personnel board has the authority to disregard its own regulation. The State Personnel Board is not subject to the Georgia Administrative Procedure Act (Ga. Laws 1964, p. 338) (Ga. Code Ann. 3A-101 et seq.). However, Special Regulation No. 57 is a rule within the accepted definition of the term-"A 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." (See, e.g., Ga. Code Ann. 3A-102 (f).) This definition embraces three types of ruleslegislative, interpretive and procedural. The personnel board has the authority to promulgate legislative rules. Ga. Laws 1971, p. 45 (Ga. Code Ann. 40-2203 (b)). Special Regulation No. 57, however, is not a legislative rule since it does not purport to establish rules for general personnel administration of state departments but is limited to a small number of employees for a limited time. Also, it has not been approved by the Governor and so does not have the force and effect of rules so approved.
Special Regulation No. 57 has characteristics of both interpretive and procedural rules since it states the board's policy with respect to the treatment of the class of persons included and establishes the process by which new employees are merged into the State Merit System. Generally, an administrative agency may not disregard its own rule even if it was not required to promulgate the particular rule in the first instance. See Cooper, STATE ADMINISTRATIVE LAW, pp. 270-272. Although research has disclosed no Georgia cases directly on point, I would not expect Georgia courts to depart from the general rule. Therefore, cases from other jurisdictions are instructive. In Schley v. Conservation Commission of Missouri, 329 S.W.2d 736 (Mo. 1959), the court held that the commission could not vary a duly promulgated rule by mailing a form letter to interested parties. In Narramore v. Fannin's Gas and Equipment Co., 80 Ariz. 115, 293 P.2d 671 (1966), the court held that an agency could not entertain a motion for rehearing presented after the time set by the agency's own rule for filing such motions had expired. In considering a similar situation in which an agency ignored a procedural rule, the Arizona Supreme Court stated:
"This court has flatly held that rules and regulations prescribing methods and procedures of an administrative board or commission ... have the effect of law and are binding on the board or commis-

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sion and must be followed by it so long as they are in force and effect." George v. Arizona Corporation Commission, 322 P.2d 369 (1958).
The United States Supreme Court has held that an agency must follow the provisions of its rules once it has taken action under the rules, even though the agency initially could have acted without reference to the rules. Vitarelli v. Seaton, 359 U.S. 535 (1968).
The requirement that an administrative agency adhere to its own rules is stringently followed where the agency's disregard of its rules is injurious to an individual. Cooper, STATE ADMINISTRATIVE LAW, pp. 270, 271. In the instant situation the Deputy Director of the Drug Abuse Services Section of the department has been damaged monetarily by the personnel board's disregard of Special Regulation No. 57. I am persuaded that the great weight of authority does not sustain the personnel board's violation of Special Regulation No. 57 and that the department is authorized to pay its deputy director in accordance with paragraph 4 (b) of the regulation.

OPINION 74-35

To: Commissioner, Department of Banking and Finance

March 21, 1974

Re: Substantive provisions of Ga. Code Ann. 13-203 and 13-203.1, as to bank offices, are interpreted in light of definitions now contained in Ga. Code Ann. 13-201.1.
This is in reply to a request by your office for an opinion as to whether a separate office of a bank, which had been treated as a branch bank under Ga. Code 13-201.1 (b), as amended by Ga. Laws 1960, p. 67, and which is located in the same county in which is maintained the principal place of business of the bank, is to be treated as a branch bank or as a bank office within the meaning of that Code section as amended by Ga. Laws 1970, p. 954. The specific facts and the practical ramifications underlying the determination of this issue are set forth in your request as follows:
"In 1914 the Cornelia Bank, located in Cornelia, Georgia, merged with Demorest Bank, located in Demorest, Georgia, and continued the Demorest operation as a bank office. Subsequently when

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branch offices by commercial banks were restricted by law, the Demorest operation attained the status of a 'branch bank' with the right to branch within Demorest, Georgia, while the parent bank, Cornelia Bank, had the right to branch within the city limits of Cornelia, Georgia. Both of these operations are located in Habersham County.
"Since the passage of the County-wide Branch Banking Law in 1970, the question now arises as to whether the Demorest operation continues to be classified as a branch bank under the grandfather provisions of the branching laws or whether it is in the alternative a bank office of the Cornelia Bank without separate branching privileges.
"Because the population of Habersham County is between 20 and 40,000, in the former instance the Cornelia Bank would have a permissible maximum of three offices or facilities in addition to its main office, while the Demorest operation would also be allowed to have three offices or facilities in addition to the branch bank at Demorest. In the latter situation described in previous paragraph, the Cornelia Bank would be allowed to have only three offices or facilities in addition to the main office, and one of those offices would be the Demorest operation."

The status of the Demorest office of Cornelia Bank for purposes of applying the substantive provisions of Ga. Code 13-203 and 13-203.1 depends exclusively on the meaning of the terms employed in those provisions. The General Assembly in the amendments to Ga. Code 13-201.1 by Ga. Laws 1970, p. 954, explicitly provided the necessary, and exclusive, definitional reference. Under those definitions, the Demorest office is not a "branch bank" since it is not located outside the county in which the principal office of Cornelia Bank is located. To reach any other conclusion would be to ignore the 1970 amendments.
Thus, it is my official opinion that a place of banking business which is located within the county in which is located the principal office of the bank, and which was formerly a lawfully established branch bank within the meaning of Code 13-201.1(b) as enacted by Ga. Laws 1960, p. 67, is for the purposes of Code 13-203 and 13-203.1, as amended by Ga. Laws 1970, p. 954, to be treated as a bank office as defined by Ga. Code 13-201.1 (c), as amended by Ga. Laws 1970, p. 954.

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OPINION 74-36

To: Chairman, Georgia Public Service Commission

::viarch 25, 19H

Re: Ga. Code Ch. 26-30, governing use of telephone service observing equipment, is not applicable to agencies of the United States.

This is in reply to your request for an opinion as to whether the provisions of Ga. Code Ann. Ch. 26-30 (based upon Ga. Laws 1968, p. 1249), governing the use of telephone service observing equipment, are applicable to the use of such equipment by agencies of the United States.
As your request notes, Ga. Code Ch. 26-30 contains no specific exception from its scope applicable to the United States. It is nevertheless my official opinion that it does not apply.
It has long been established that, under the Supremacy Clause of the United States Constitution, the states lack licensing or other regulatory authority over agencies of the United States unless Congress specifically confers such power on the states. United States v. Georgia Public Service Commission, 371 U.S. 285 (1963); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). This exception to the power of the states extends, of course, to transactions between such agencies and private persons, such as utilities, otherwise subject to state regulation. Code Ch. 26-30 must, of course, be read consistently with this principle and I am not aware of any federal law or regulation deferring to state law the regulation of such matters as they concern agencies of the United States.
It is, therefore, my official opinion that Ga. Code Ch. 26-30 does not apply to the use by agencies of the United States of telephone service observing equipment.

OPINION 74-37

To: Commissioner, Department of Transportation

March 27, 1974

Re: The Department of Transportation may not include in a contract for services a provision which would allow it, if it desired, to pay additional compensation for the services if they are not completed for the originally agreed upon amount.

You have recently requested my official opinion as to whether the Department of Transportation may lawfully include in its service

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contracts a provision which would allow the contractor to cease work, even though he had not completed the work required by the contract, when a specified maximum estimated cost is reached. The contractor would not be required to continue the work until additional funds had been appropriated to the project.
Article VII, Section I, Paragraph II (2) of the Georgia Constitution (Ga. Code Ann. 2-5402 (2)) prohibits the state's granting or authorizing extra compensation to any public officer, agent or contractor after the service has been rendered or the contract executed. Because the acts of the department have been held to be the acts of the state (State Highway Department v. Parker, 75 Ga. App. 237 (1947)), this provision applies also to the Department of Transportation and must control the situation posed in your request.
It is, therefore, my official opinion that the Department of Transportation may not constitutionally include the proposed provision in its service contracts. My staff, of course, stands ready to assist you in the drafting of a document which will lawfully re~mburse a contractor for all costs, properly chargeable to the project, which he legitimately Incurs.

OPINION 74-38

To: Commissioner, Department of Human Resources

March 28, 1974

Re: Pursuant to the Child Support Recovery Act, Ga. Laws 1973, p. 192 (Ga. Code Ann. Ch. 99-9B): (1) Child support paid as a condition of probation must be paid to the Department of Human Resources; and (2) All child support received by the court must be paid to the Department of Human Resources upon its certification that the child for whom it is owed is a recipient of public assistance.

Your letter requests an opinion on two questions regarding the administration of the Child Support Recovery Act, Ga. Laws 1973, p. 192, which have arisen in instances where child support has been ordered by a court. First, you asked whether child support ordered as a condition of probation must be collected by the department. Second, you have asked whether the department is to collect from the court the total amount of child support paid where the amount paid exceeds the public assistance paid by the state on behalf of the child.
The Child Support Recovery Act, Ga. Laws 1973, p. 192, establishes procedures by which the state through the Department of Human

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Resources can secure support for recipients of public assistance. The Act is to be liberally construed to promote its underlying purposes. The underlying purpose relevant to the present inquiry is "to provide that public assistance to needy children is a supplement to the contribution of the responsible parents." (Ga. Laws 1973, pp. 192, 193 (Ga. Code Ann. 99-902b (b)). In order to ensure contribution by the responsible parents, the state has been made the assignee of all claims of the parent for child support and may initiate actions on behalf of the child. If there is an outstanding court order, however, the state cannot recover more than the amount specified in the order. Section 16 (Ga. Code Ann. 99-916b) provides the method by which the department receives payments ordered by a court:
" ... Child support ordered by a court pursuant to a final divorce decree or an order in a proceeding for nonsupport shall be paid by the clerk, or the probation officer, to the department upon a showing that the child is a recipient of public assistance."
In Georgia, there are no civil proceedings for nonsupport of an illegitimate child. Either the bastardy (Ga. Code Ch. 74-3, repealed) or the abandonment (Ga. Code 74-9902, amended by Ga. Laws 1965, p. 167) statute must be the basis for ordering support for illegitimate children. Nor can the department seek an administrative order until paternity has been established. (Ga. Code Ann. 99-903b). Since the Act's purpose is to secure support for all children receiving public assistance, illegitimate children as well as legitimate ones are included within its purview and "parent" includes the parent of an illegitimate child (Ga. Code Ann. 99-903b). It is manifest, then, that Section 16 requires persons collecting money pursuant to probation orders to send the money so collected to the department. Any other interpretation excludes a class of children which the General Assembly intended to benefit and would be an unreasonable and perhaps unconstitutional interpretation. See Gomez v. Perez, 35 L.Ed.2d 56 (1973). A reasonable and constitutional interpretation is preferred. Kent v. State, 18 Ga. App. 30 (1916); H cad v. Cigarette Sales Co., 188 Ga. 452 (1939). Further, while Section 16 does not refer specifically to criminal actions, it does refer to probation officers and to "proceedings for nonsupport" which must include criminal proceedings where illegitimate children are involved. Therefore, it is my official opinion that money paid as a condition of probation must be sent to the department upon its certification that the child for whom it is owed is a recipient of public assistance.
The State of Georgia does not pay the total amount of the determined need of public assistance recipients. Therefore, the debt which the absent parent owes is limited to the amount of public assistance paid on behalf of his children. In some instances, where the family

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has other income, for example, the absent parent may pay more than the public assistance paid but less than the amount necessary to provide for the family's total needs. A question has arisen as to whether, in this situation, the clerk or probation officer should remit the entire sum or just the amount equal to the public assistance paid. Section 16 requires payment to the department of the total amount of child support when appropriate certification has been made and does not limit the amount to be paid to the debt created in Section 4 (Ga. Code Ann. 99-904b). However, since the department is not entitled to retain any amount in excess of the public assistance paid, it must remit the difference to the recipient. The Georgia Manual of Public 'Velfare Administration, Part III, Section V, p. 38, provides:
"(2) The Child Support Recovery Unit will collect all child support payments. At the end of the month the Unit will compute the amount owing to the recipient as follows: an hypothetical budget will be computed for the recipient; including the amount of child support actually received by the Unit during the month and a corresponding grant amount will be determined. The difference between this hypothetical grant amount and the amount of the grant actually received by the recipient that month will be retained by the state. (In effect this amount was advanced to the recipient in the regular AFDC check at the beginning of the month since no child support was shown in the budget.) The remaining portion of the support payment will be mailed to the recipient as a supplemental payment on the sixth of the following month."
Under the Act, and implementing regulations, the responsibility for accounting for any excess is the department's and not that of the courts. Therefore, it is also my official opinion that upon certification by the Department of Human Resources that a child is a recipient of public assistance, the clerk of court or the probation officer must remit all child support money to the department.

OPINION 74-39
To: Commissioner, Department of Transportation March 29, 1974
Re: The Department of Transportation has the responsibility, in accordance with the provisions of the Planning Grant Agreement dated December 2, 1971, to integrate various area airport system plans into a comprehensive State Airport System Plan.
You have requested my official opinion concerning the responsibility of the Department of Transportation in the preparation of a state-wide

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plan of aviation facilities often referred to as an airport system plan. Generally stated, you asked whether the department or the local planning agency has the responsibility for performing airport planning outside the planning agency's area of responsibility even though the planning may have a "substantial impact on the residents" within that area.
It is my opinion that, to the extent set out in the December 2, 1971, Planning Grant Agreement with the Federal Aviation Administration, the coordination, consolidation and integration of the various airport system plans into a state-wide plan is the department's responsibility.
Airport system plans were necessitated by the "Airport and Airway Development Act of 1970." 49 U.S.C.A. 1701 et seq. That Act directed the Secretary of Transportation to prepare and publish a National Airport System Plan by May 1972, and requires that the plan be reviewed and revised as necessary. 49 U.S.C.A. 1712 (a). In developing and revising this plan, the secretary is required to consult with certain federal agencies, with aviation industry officials, and with "planning agencies." 49 U.S.C.A. 1712 (c).
"Planning agency," as that term is used in the Act, means a planning agency designated by the secretary " ... which is authorized by the laws of the state ... or political subdivisions concerned to engage in area-wide planning ...." 49 U.S.C.A. 1711 (8). Three categories of agencies could meet this criteria in Georgia. One of those categories is the Area Planning and Development Commission, established in 1970. Ga. Laws 1970, p. 321 (Ga. Code Ann. Ch. 40-29). Each such commission is to provide comprehensive planning within an area established for it by the State Planning and Community Affairs Policy Board. See Ga. Laws 1970, p. 321 et seq., 11, H:, 15 (Ga. Code Ann. 40-2917, 40-2920, 40-2921); State Planning and Community Affairs Policy Board, Resolution 2. Each commission is authorized to prepare studies of its area's resources as those resources affect existing and emerging problems in various categories, including transportation. Ga. Laws 1970, pp. 321, 330. In addition, each commission is required to prepare a forecast for the development of its area of responsibility in accordance with predicted future needs and resources. This forecast is to include transportation needs. Ga. Laws 1970, pp. 321, 330.
The second category of agency authorized to perform area-wide planning is the Metropolitan Area Planning and Development Commission, created in 1971. Ga. Laws 1971, p. 17. See Editorial Note to Ga. Code Ann. Ch. 40-29. This classification of agency constitutes the Area Planning and Development Commission and the official agency for research, study, advice and review concerning area plans for Standard Metropolitan Statistical Areas located wholly in Georgia. Ga. Laws 1971, pp. 17, 19, 20. Each such commission is, inter alia, to

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engage in a continuous program of research, study and planning of transportation within its area as that transportation affects its area of responsibility. Ga. Laws 1971, pp. 17, 28.
Although each of the commissions in either category can apparently consider all matters affecting its particular area, the actual forecasts and plans produced by it are to be for the particular commission's given area of responsibility. Ga. Laws 1970, pp. 321, 331; Ga. Laws 1971, pp. 17, 20, 24-29. This is especially true with airport system planning, which is defined as ". . . the development for planning purposes of information and guidance to determine the extent, type, nature, location, and timing of airport development needed in a specific area. ..." 49 U.S.C.A. 1711 (5) (emphasis added). As each commission prepares an airport system plan for its area of responsibility certain conflicting or overlapping results are certain to appear. To resolve these inconsistencies, an agency whose specific area of responsibility embraces these smaller areas is a necessity.
Until 1972 the agency whose power to plan in this area crossed the boundaries of local planning agencies was the Department of Industry and Trade of the State of Georgia. Ga. Laws 1949, p. 249, as amended (Ga. Code Ann. Ch. 40-21). That department was charged with the responsibility of planning for and establishing a long term policy in regard to the establishment, development and maintenance of aviation and aviation facilities in Georgia. Ga. Code Ann. 40-2107 (i). In addition, the department was to
" ... cooperate, counsel and advise with municipalities and other political subdivisions of the state, and with other departments, boards, bureaus, commissions, agencies or establishments, whether federal, state or local, ... for the purpose of promoting and obtaining coordination in the planning for . . . airports and landing fields in the state ...." Ga. Code Ann. 40-2107 (i).
Realizing the need for an agency possessing these powers to coordinate airport system planning within Georgia, by executive order dated May 14, 1971, the Governor designated the Department of Industry and Trade as the " ... agency responsible for all planning of airport projects." Pursuant to this charge, the Department of Industry and Trade entered into a Planning Grant Agreement with the Federal Aviation Administration on December 2, 1971. Under the terms of this agreement, the state agreed to prepare a State Airport System Plan. In preparing the plan, the work to be provided by the state under this particular grant would cover 138 counties. The airport system plans for the 14 counties comprising the Augusta, Macon, Columbus, Savannah and Chattanooga Metropolitan Areas were to be conducted under separate grants from the Federal Aviation Administration and the results depicted in the state-wide plan. For the seven-county

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Atlanta Metropolitan Area, the state-wide plan was to accomplish only an inventory and certain forecasts. The responsibilities assumed by the Department of Industry and Trade have subsequently been transferred to the Department of Transportation. Ga. Laws 1972, pp. 1015, 1064 (Ga. Code Ann. 40-35192); Executive 01;:der, March 31, 1972; see also, Ga. Laws 1973, pp. 947, 981 (Ga. Code Ann. Ch. 95A-3).
It is evident that the Department of Transportation is ultimately responsible for airport system planning for the specific area outside the 21 counties comprising the six metropolitan areas of this state. This would include the responsibility of formulating a comprehensive state airport system plan from the various area airport system plans submitted by area planning agencies whose specific area of responsibility may encompass only a few counties. Although this responsibility is the department's nothing herein is intended to imply that it should be exercised in an arbitrary manner. On the contrary, cooperation at all levels of government, from the Federal Aviation Administration through the smallest community involved, is anticipated in the decision-making process. See 49 U.S.C.A. 1716 (f).
It is, therefore, my official opinion that in the realm of airport system planning it is the responsibility of the Department of Transportation, in accordance with the provisions of the Planning Grant Agreement dated December 2, 1971, to integrate the various area airport system plans into a comprehensive State Airport System Plan.

OPINION 74-40

To: Commissioner, Department of Human Resources

March 29, 1974

Re: The Department of Human Resources has, at present, no general authority or power to lease (grant an estate for years) to a private citizen for his private purposes real property owned by the State of Georgia and within the custody and management of the department.

In your letter of February 26, 1974, you requested my opinion as to whether or not the Department of Human Resources has the authority or power to grant to a private citizen a leasehold estate (an estate for years) in and to real property owned by the State of Georgia and within the custody and management of the department.
You state that the real property which you propose to lease is not currently in use by the department but may be needed in the future so that you are unwilling to classify the said real property as surplus. From the reading of the enclosures to your letter, I conclude that the proposed lease would be to a private citizen for his private purposes.

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A leasehold estate, such as you propose to grant, is an interest in real property. See Ga. Code Ch. 85-8 (Code of 1933). In the absence of a constitutional or statutory provision providing otherwise, the power to dispose of real property or any interest therein belonging to the state is vested solely in the legislature. Western Union Telegraph Co. v. Western and Atlantic Railroad Co., 142 Ga. 532 (1914).
I have reviewed the statutes which created the Department of Public Health (Ga. Laws 1964, p. 499, as amended (Ga. Code Ann. Title 88)), the Department of Family and ChHdren Services (Ga. Laws 1937, p. 355 and 1963, p. 218, as amended (Ga. Code Ann. Ch. 99-1)), and the Division for Children and Youth within the aforesaid Department of Family and Children Services (Ga. Laws 1963, p. 81, as amended (Ga. Code Ann. Ch. 99-2)), all of which are predecessors to the Department of Human Resources. None of these statutes expressly or by implication empower the Department of Human Resources to lease state real property to a private citizen for his private purposes. My research indicates no such general authority or power to lease real property was enacted by the 1974 Regular Session of the General Assembly.
It is therefore my official opinion that the Department of Human Resources has, at present, no general authority or power to lease (grant an estate for years) to a private citizen for his private purposes real property owned by the State of Georgia and within the custody and management of the department.

OPINION 74-41

To: Commissioner, Department of Banking and Finance

March 29, 1974

Re: Article VII, Sec. V, Par. I, of the Constitution of Georgia (Ga. Code Ann. 2-5801) prohibits a municipal corporation from becoming a member or stockholder of any company, corporation or association. Further, a credit union is not a proper depository for public funds belonging to or in the custody of a municipal corporation. Op. Att'y Gen. U71-115 withdrawn.

This is in response to a request from your office dated March 1, 1974, requesting our opinion on the following three questions:
(1) May the City of Warner Robins legally be elected to membership in the '\Varner Robins Employees Credit Union, under the provisions of Ga. Laws 1925, pp. 165, 170 (Ga. Code Ann. 25-108)?

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(2) May the Warner Robins Employees Credit Union accept deposits of water and sewer meter deposit funds from the City of Warner Robins?
(3) If the City of \arner Robins may become a member of the Warner Robins Employees Credit Union, can the $5 share required for membership by Ga. Laws 1925, pp. 165, 166 (Ga. Code Ann. 25-101 (c)), be purchased and owned by the \-Vater and Sewer Meter Deposit Fund?
Article VII, Sec. V, Par. I, of the Constitution of Georgia (Ga. Code Ann. 2-5801) reads in part as follows:
"The General Assembly shall not authorize any county, municipal corporation or political subdivision of this state, through taxation, contribution or otherwise, to become a stockholder in any company, corporation or association ...."
The Supreme Court of Georgia has, on at least one occasion, defined the term "stockholder" to be synonymous with the term "member." See Carlton v. Southern Mutual Ins. Co., 72 Ga. 371 (1883). Further, while Ga. Laws 1925, p. 165 et seq. (Ga. Code Ann. Ch. 25-1), relating to credit unions, refers to participants in a credit union as members, it is clear from the terms of the law that "members" must hold shares in the credit union and thus are actually stockholders. See Ga. Laws 1925, pp. 165, 170 (Ga. Code Ann. 25-108). Therefore, pursuant to the section of the Georgia Constitution cited above, a municipal corporation may not become a member of a credit union.
The second question which was posed concerned the legality of the Warner Robins Employees Credit Union accepting deposits from the City of Warner Robins, particularly money held by the city as water and sewer meter deposit funds.
Georgia Laws 1933, pp. 78, 83 (Ga. Code Ann. 89-810), concerns the deposit of public money and reads in part as follows:
"It shall be the duty of every ... officer ... , upon any money belonging to any public body coming into his hands, promptly to deposit the same in a bank or depository as hereinafter stated...."
The proper disposition of municipal funds is regulated by Ga. Laws 1933, pp. 78, 96 (Ga. Code Ann. 89-804), which says in part:
"The general provisions of this law (Ga. Code Ann. Ch. 89-8) shall apply to municipalities ... and the governing body of the municipality shall have the same jurisdiction, powers, and duties under this law ... as the county authorities have in respect of county officers, funds, depositories, and sureties on bonds ...."

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Georgia Laws 1933, pp. 78, 83 (Ga. Code Ann. 89-811), details how county officers are to deposit public funds belonging to counties, and thus, pursuant to the Code section cited above, delineates the proper disposition of public funds in the hands of a municipal officer. That section reads in part as follows:
"The county authorities shall designate one or more solvent banks as depositories of all county moneys ...."
Therefore, since county officers are required to deposit money in their possession in solvent "banks," municipal officers holding public money will likewise be required to use "banks."
It is evident, therefore, that a municipality is not authorized to deposit public money in credit unions inasmuch as a credit union is not a bank. I am aware that this conclusion conflicts with Op. Att'y Gen. U71-115, issued August 30, 1971, and I therefore withdraw that opinion.
The necessity for answering the third question which was posed in your request is obviated by the conclusion that a municipal corporation may not become a member of a credit union.
Therefore, it is my official opinion that the City of vVarner Robins may not become a member of the Warner Robins Employees Credit Union and, further, that the Warner Robins Employees Credit Union is not a proper depository for public money held by the municipal corporation.

OPINION 74-42

To: Secretary of State

April 5, 1974

Re: It is legal for an ordinary to act as clerk of superior court in emergency situations by virtue of Ga. Code 24-2708.

(Title 24 sections herein are based on the Ga. Code of 1933.] This is in response to your request for an opinion concerning the legality of an ordinary acting as clerk of the superior court when a vacancy occurs in that office until a special election is held. To properly deal with this question it is necessary to look at the whole statutory scheme of filling vacancies in the office of clerk. When a vacancy in the office occurs during a term of the superior court for the county, the judge of the superior court is directed to appoint a clerk who shall hold office during the term and for 10 days thereafter. Ga. Code 24-2710. If at the expiration of the above period, there is still no one else to act as clerk, the appointee shall continue to do so until there is an election and qualification. Ga. Code 24-2711.

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In the event that the vacancy occurs at a time other than during the term of the superior court, then the ordinary must exercise his mandate under Ga. Code 24-2707 to appoint some qualified person to discharge the duties of clerk until the vacancy is filled. The ordinary could not appoint himself. Ga. Code (1933) 89-103. However, if, in addition to the above circumstances, the vacancy results from an emergency and the ordinary cannot otherwise fill it in the manner described in Ga. Code 24-2707, either he or his clerk shall act as clerk. Ga. Code 24-2708. It is important to distinguish between the type of appointment made by the ordinary under Code 24-2707 and that made by the judge, under Code 24-2710, on the one hand, and the duties of the ordinary when he acts as clerk under Code 24-2708. In the former, the statutes speak of the appointee holding office or the ordinary appointing one to discharge the duties of the office, while in the situation that arises under Code 24-2708, the ordinary himself merely acts as clerk. This distinction is important in light of Code 89-103 which prohibits a person from holding more than one county office at a time. The ordinary could thus not legally hold the office of superior court clerk; however, under the aforementioned circumstances, he may act as clerk.
Regardless of who makes the temporary appointment, the ordinary has the duty to call a special election, and give notice thereof, for a new clerk. Ga. Code 24-2704.
It is, therefore, my official opinion that the ordinary may act as superior court clerk only by virtue of the provisions of Ga. Code 24-2708 which is applicable only in cases of emergency when no other suitable person can discharge the duties of clerk. Finally, it is worth noting that under the above circumstances the law imposes the duty to act as clerk upon the ordinary, that duty thus being part of his official duties, and he would not be entitled to claim additional compensation for performing those duties.

OPINION 74-43

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

April 9, 1974

Re: Authority of representatives of various federal agencies to inspect personnel records and files.

This is in response to your letter of March 12, 1974, regarding the authority of representatives of the various federal agencies to inspect personnel records and files of the member institutions of the university

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system. To be specific you are interested in the authority vested in the representatives of the following agencies:
1. Equal Employment Opportunity Commission;
2. Employment Standards Administration of the Department of Labor, Wage and Hour Division;
3. Department of Health, Education and welfare, Office of Civil
Rights, Division of Higher Education.
Each of these agencies shall be discussed in the order that they were listed.
1. Equal Employment Opportunity Commission.
An employer is required to make various reports to the Equal Employment Opportunity Commission Pub. L. 88-352, Title 7, 709 (c); 42 U.S.C.A. 2000e-8 (c). The pertinent part of this section provides as follows:
"Every employer, employment agency, and labor organization subject to this chapter shall (1) make and keep such records revelant to the determination of whether unlawful employment practices have been or are being committed, (2) preserve such records for such periods, and (3) make such reports therefrom as the commissioner shall prescribe by regulation or order, after public hearing, as reasonable, necessary, or appropriate for enforcement of this subchapter or the regulations or orders thereunder."
Pursuant to this broad authority the Equal Employment Opportunity Commission has promulgated a considerable number of regulations involving the records that must be kept and the reports that must be made. These requirements may be found in 29 C.F.R. part 1602. Basically, the records and reports involve the usual personnel type information retained on employees and records as to the racial and ethnic identity of those employees. Furthermore, records having to do with hiring, promotion, demotion, transfer, layoff or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship shall be preserved by the employer for a period of six months from the date the record was made or the date the action occurred, whichever is later.
Besides this requirement for record keeping and report making, the law also gives the commission broad investigative powers. Subsection (a) of the above-cited statute provides that:
"In connection with any investigation of a charge filed under section 2000e-5 of this title, the commission or its designated representative shall at all reasonable times have access to, for the

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purpose of examination, and the right to copy any evidence for any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation." 42 U.S.C.A. 2000e-8 (a).
The law recognizes that the information that may be obtained under either of the two sections previously discussed would probably be confidential. Consequently, in subsection (e) of this same statute it provides that:
"It shall be unlawful for any officer or employee of the commission to make public in any manner whatsoever any information obtained by the commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the commission who shall make public in any manner whatsoever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or imprisoned not more than one year." 42 U.S.C.A. 2000e-8 (e).
2. Employment Standards Administration of the Department of Labor, Wage and Hour Division.
The representatives of this federal agency also have broad investigative powers. This power is set forth in 52 Stat. 1066, 11; 29 U.S.C.A. 211. The pertinent part of subsection (a) of this statute provides as follows:
"The administrator or his designated representative may investigate and gather data regarding the wages, hours, and other conditions and practices of employment in any industry subject to this chapter, and may enter and inspect such places and such records (and make such transcripts thereof), question such employees, and investigate such facts, conditions, practices, or matters as he may deem necessary or appropriate to determine whether any person has violated any provision of this chapter, or which may aid in the enforcement of the provisions of this chapter." 29 U.S.C.A 211 (a).
Subsection (c) seems to have a standard record keeping provision while subsection (d) of this same statute grants the administrator with the authority 'to promulgate regulations.
3. Department of Health, Education and Welfare, Office of Civil Rights, Division of Higher Education.
Pub. L. 88-352, Title VI, Sec. 607; 42 U.S.C.A. 2000d, provides that:

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"No person in the United States shall, on the ground of race, color or national origin, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."
42 U.S.C.A. 2000d-1 gives the various federal agencies the power to promulgate rules to insure that any program or activity receiving federal financial assistance is in compliance with the above-quoted law. Pursuant to that authority the Department of Health, Education and Welfare has promulgated such rules. 45 C.F.R. part 80. Among those rules there is the usual requirement of compliance reports. 45 C.F.R. 80.6 (b). Furthermore, there is the usual authority to investigate records. This authority is found in 45 C.F.R. 80.6 (c), which provides, in part, that:
"Each recipient shall permit access by the responsible department official or his designee during normal business hours to such of its books, records, accounts and other sources of information, and its facilities as may be pertinent to ascertain compliance with this part."
All three of the above-listed federal agencies have a broad power to investigate the personnel records and files of the member institutions of the university system. This is not to say, of course, that there would not in some situations be a valid objection to a proposed federal investigation based upon "relevancy." I do not think, for example, that the named agencies would have any right to investigate records which clearly have nothing to do with their particular functions.

OPINION 74-44

To: Commissioner, Georgia Department of Community Development

April 12, 1974

Re: The Board of Regents of the University System of Georgia may expend "matching funds" to secure federal grants for the carrying out of research projects which fall within the scope of the board's authorized activities.

This is in reply to your letter of March 27, 1974, concerning a possible federal research grant to consider means of alleviating the unemployment and other economic problems which may be anticipated as the result of national defense program adjustments and the closure of military bases within the State of Georgia. Your letter (with the attachments thereto) indicates that the researeh would be directed

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towards expansion of industry, commerce-and consequently employment opportunities-in the affected areas.
The particular research programs involved would be:
1. Wood Waste Utilization;
2. Offshore Power Systems;
3. Technology Transfer Programs;
4. Program for Utilization of Industrial Parks m the Coastal Plains Area of Georgia;
5. Trade Leads Program.
As I understand it from your letter, the plan is for the Department of Community Development to act in the nature of a "general contractor," performing item 5 directly, but in essence contracting with the Board of Regents of the University System of Georgia to secure the services of the Georgia Institute of Technology, Engineering Experiment Station, Industrial Development Division, with respect to items 1 through 4.
Your concern stems from the fact that this federally assisted program is contemplated as being on a matching basis (3 federal dollars for each dollar the state contributes in cash or in-kind), and that it calls for "Georgia Tech" to tender the major portion of the required state matching funds. You request our opinion as to the legality of Georgia Tech (i.e., the Board of Regents1 expending money for these matching purposes. 2
As I see it, this question really boils down to one of whether or not the Board of Regents (through Georgia Tech) can engage in the research program contemplated, since if the answer to this question is "yes," it would seem to follow that it can expend available monies for the purpose of carrying out the "authorized activity."
My opinion that the activity is authorized and that the Board of Regents (through Georgia Tech) may therefore lawfully furnish the matching funds necessary to obtain the federal grant is based upon several factors. To start with, the broad corporate-like powers of the Board of Regents, see Ga. Code (1933) 32-121, place this department in a position quite unlike that of most other state depart-
1 The power to govern, manage and control the Georgia Institute of Technology and the other member institutions of the University System of Georgia is vested in the Board of Regents of the University System of Georgia. Ga. Code (1933) 32-115. The Board of Regents is empowered to determine the allocation of the General Assembly's appropriation between the various colleges and universities of the system. Ga. Code (1933) 32-116. 2 As your letter implies, there is seemingly no question as to the authority of the Department of Community Development to engage in research of this sort (i.e., to aid in the promotion and development of commerce, industry and agriculture in this state). See Ga. Laws 1949, p. 249 et seq., as amended (Ga. Code Ann. 40-2107, 40-2108).

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ments or agencies. While most state departments and agencies are restricted to doing those things they are expressly or by necessary implication authorized by statute to do, the situation with respect to the Board of Regents has been described by the Supreme Court of Georgia in Villyard v. Regents of the University System, 204 Ga. 517, 520 (1948), as follows:
"The duties and powers of the Regents of the University System of Georgia are set forth in the Code, 32-101 et seq. They are untrammeled except by restraints of law as are directly expressed or necessarily implied. 'Under the powers granted, it becomes necessary ... to look for limitations, rather than for authority to do specific acts . . . . Limited only by their proper discretion and by the Constitution and law of this State, they may exercise any power usually granted to corporations.' " (Citing State of Georgia v. Regents of the University System, 179 Ga. 210, 227 (1934).)
From this starting point, I would say that I am unaware of any law of the State of Georgia which would preclude the Board of Regents from engaging in the sort of economic research involved (or spending money in connection therewith). To the contrary, such research is usually considered to be an integral part of university activity. The use of university research facilities and expertise by the Federal Government is presumably a matter of common knowledge.
Finally, this conclusion would seem to be in line with Op. Att'y Gen. 70-161 (ruling that the Board of Regents could qualify for federal grants under the National Highway Safety Act of 1966, i.e., 80 Stat. 731 (1966)) and Op. Att'y Gen. U71-131 (ruling that the Board of Regents could comply with the terms of the Uniform Relocation Assistance and Real Properties Acquisition Act of 1970, i.e., 84 Stat. 1894, to secure federal funds under that Act). Although these prior opinions did not state the precise activities in which the Board of Regents was to engage (and concerning which it would spend the federal grant), it might be noted that the former federal Act does relate in part to grants for "safety research" (accident investigation procedures, etc.). In any event, the sort of economic research involved in the case at bar seems to be well within the scope of that sort of research in which universities routinely engage, and I, therefore, conclude that it would not be unlawful for the Board of Regents to expend matching funds in order to obtain the federal grants in question.

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OPINION 74-45

To: Commissioner, Department of Natural Resources

April 12, 1974

Re: Act 1376 of the 1974 Georgia General Assembly, authorizing the designation of the Commissioner and Deputy Commissioner of the Department of Natural Resources as conservation rangers, does not entitle the holder of either office to membership in the Peace Officers' Annuity and Benefit Fund.

This responds to your letter asking whether Act 1376 of the 1974 Georgia General Assembly, Ga. Laws 1974, p. 1453 (amending Ga. Laws 1973, p. 1483, Ga. Code Ann. Ch. 43-22), approved by the Governor on April 2, 1974, will allow either the Commissioner or Deputy Commissioner of the Department of Natural Resources to become eligible for membership in the Peace Officers' Annuity and Benefit (POAB) Fund. Act 1376 authorizes the Board of Natural Resources to designate the commissioner and deputy commissioner, among others, as conservation rangers. As I understand it, your question is confined solely to the possible eligibility of the commissioner and deputy commissioner. Accordingly, no other issues need be addressed in this opmwn.
The designation of which "peace officers" are eligible for membership in the POAB Fund is found in Ga. Laws 1950, p. 50, as amended (Ga. Code Ann. 78-901). That definitional statute reads in pertinent part as follows:
"The term 'peace officers,' as used in this Act, shall mean all peace officers who are employed by the State of Georgia, or any subdivision, or municipality thereof, who are required by the term of their employment, whether by election or appointment, to give their full time to the preservation of public order, or the protection of life and property, or the detection of crime in the State of Georgia, or any political subdivision or municipality thereof. ..."
The Supreme Court of Georgia has judicially interpreted the statutory definition of "peace officer" in the context of POAB membership on numerous occasions. See Fleming v. Maddox, 225 Ga. 737 (1969); Vandiver v. Carlin, 217 Ga. 515 (1962); Connors v. Vandiver, 215 Ga. 371 (1959); Vandiver v. Endicott, 215 Ga. 250 (1959); Board of Commissioners v. Clay, 214 Ga. 70 (1958); McCallum v. Almand, 213 Ga. 701 (1957). A review of these decisions shows that in determining whether a specific applicant is entitled to POAB membership, the courts will apply a test composed of two criteria: (1) whether, in fact,

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there is statutory authority for the applicant to act in the capacity of a peace officer, and (2) whether, in truth (and this is an inherently factual determination), the applicant performs the full-time duties of a peace officer in the general sense of enforcing all public laws and preserving the public order.
By way of illustration, in the case of McCallum v. Almand, 213 Ga. 701 (1957), the plaintiff had been denied membership in the fund. The Georgia Supreme Court acknowledged that the plaintiff had been designated a county policeman, but said that as a matter of fact the plaintiff was a police officer in name only. He devoted his full time to his duties as a county commissioner. Similarly, in Vandiver v. Endicott, 215 Ga. 250 (1959), the plaintiff was the fire marshall of the City of Atlanta. He was vested by law with the powers of a police officer, but was not primarily engaged in law enforcement activities in general as a matter of practice and fact. See, also, Board of Commissioners v. Clay, 214 Ga. 70 (1958). The Fleming court likewise drew a distinction between full-time peace officers on the one hand and, on the other, those who come within the category of public officers or employees who, incidental to the primary duties of their employment, occasionally perform some of the services of a police officer. Fleming v. Maddox,
225 Ga. 737 (1969). It is true that Ga. Laws 1973, pp. 1483-4 (Ga. Code Ann. Ch. 43-22),
broadened and expanded the law enforcement authority of conservation rangers. However, this statute, in my judgment, does not operate to place all persons denominated as conservation rangers within the parameters of eligibility for membership in the POAB Fund. As the cases have stated, it still must be shown that a ranger is primarily a law enforcement officer, and not one in name only.
I have reviewed the statutory authority and duties of the Commissioner of the Department of Natural Resources. Ga. Laws 1955, p. 483 et seq., as amended (Ga. Code Ann. 45-111); see Ga. Laws 1972, p. 1015 et seq., as amended (Executive Reorganization Act of 1972). I have also studied the department's furnished description of the deputy commissioner's duties and functions. After considering these materials, I am convinced that the Commissioner and Deputy Commissioner of the Natural Resources Department are primarily engaged in the full-time supervision and administration of the affairs of the department. Their overriding responsibility is the planning, formulating and execution of departmental policies, procedures, programs and projects at an administrative and supervisory level. Nothing in these materials indicates that either of the positions requires or allows primary engagement in law enforcement activities.
Accordingly, based on the foregoing rationale and authorities, it is my official opinion that Act 1376 of the 1974 Georgia General Assem-

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bly, authorizing the designation of the Commissioner and Deputy Commissioner of the Department of Natural Resources as conservation rangers, does not entitle the holder of either office to membership in the Peace Officers' Annuity and Benefit Fund.
As an aside, I feel compelled to say that this opinion strengthens and does not alter or dilute the conclusions contained in a letter of June19, 1973, to the POAB Fund from its attorney. That letter stated that, due to the expansion of authority given conservation rangers by Ga. Laws 1973, pp. 1483-4, some conservation rangers would be eligible for fund membership. It is clear from the letter, and from the authorities herein cited, that this entitlement extends to rangers engaged, in fact, in the primary duty of law enforcement.

OPINION 74-46

To: Commissioner, Department of Banking and Finance

April 12, 1974

Re: Section 1102 (b) of the Executive Reorganization Act does not prohibit borrowing by the Commissioner of Banking and Finance from national banks.

This is in reply to your request for an opinion as to whether certain transactions in which you in your personal capacity were involved conflict with Section 1102 (b) of the Executive Reorganization Act (Ga. Code Ann. 40-3597), which in pertinent part provides as follows:
''[The Commissioner of Banking and Finance] shall not be or become indebted, directly or indirectly, to any bank or financial institution regulated by the department. The Governor shall immediately remove from office any Commissioner violating the provisions of this section." Ga. Laws 1972, p. 1015, as amended by Ga. Laws 1972, p. 1198.
This prohibition, which is not supported by criminal penalties, was patently drawn from the model provided by former Ga. Code 13-304 which was supported by criminal penalties and which in pertinent part provided:
"[The Superintendent of Banks] shall not be or become indebted directly or indirectly to any bank as herein defined."
Code 13-304 was a codification of Section 4 of Ga. Laws 1919, p. 135, as amended. The definition of "bank" referred to in Code 13-304 is contained in Code 13-201 (amended by Ga. Laws 1960, p. 67).

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From the information set forth in your request and our necessarily limited investigation of the matter, we have determined that there are essentially two separate transactions, or separate series of transactions, with which your request for an opinion on the applicability of Section 1102 (b) of the Executive Reorganization Act deals.
First, there is a series of transactions which commenced prior to your appointment to any state office but which established a relationship which continues to the present time. On or about September 3, 1971, prior to your appointment to any state office, The Columns, Inc., a corporation in which you did then and now own approximately 21% of the outstanding shares of stock, acquired for development a certain tract of land. The corporation contemplated at that time that it would develop, and subsequently it has developed, the property through a partnership, the Plantations Development Company, in which you are a partner holding approximately a 21% interest.
At the time of this acquisition, The Columns, Inc., executed a note in the amount of $1.5 million and a corresponding deed to secure debt to Citizens and Southern National Bank, a national banking association, representing a loan by that bank to The Columns, Inc. At the same time, each of the shareholders in The Columns, Inc., including you, executed a joint and several, unconditional guarantee of payment of the note by the corporation.
Also at the same time, Plantations Development Company executed a note in the amount of $1.5 million and corresponding deed to secure debt to the Citizens and Southern National Bank, representing an additional amount borrowed by the partnership from that bank. Each of the partners, including you, executed the note on behalf of Plantations Development Company and separately executed a joint and several, unconditional guarantee of payment by the partnership.
As planned, in the course of developing this property, the parties involved have sold various tracts within it to various persons, and in some cases the purchasers have borrowed the purchase money from state-chartered banks, including the Citizens and Southern Bank of North Fulton. We have not received any evidence of any character indicating that you were personally involved in securing these loans for these purchasers or that you have otherwise taken any active part in the development of this property since your appointment to the position of Superintendent of Banks or, subsequently, to the position of Commissioner of Banking and Finance. Finally, we have no evidence that either The Columns, Inc., the Plantation Development Company, or you are liable in any manner for the indebtedness of any person to a state-chartered bank growing out of this development.
The second series 'of transactions involved here occurred in the

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Fall of 1973 when you personally borrowed approximately $75,000 from the Citizens and Southern National Bank to purchase a second home, executing a note and deed to secure debt to that bank with respect to that indebtedness. The interest specified in those instruments is the maximum permitted by Georgia law. That debt has subsequently been transferred by the Citizens and Southern National Bank to another national banking association having its principal place of business in the State of Florida.
In determining whether these transactions are encompassed by Section 1102 (b) of the Executive Reorganization Act, we have not discovered any precedents remotely related to the question. In reaching our conclusion, therefore, we have been guided solely by the language of that statute and its predecessor and the rules of statutory construction long established by the courts.
It is, however, beyond question that at the time of your appointments, first to the position of Superintendent of Banks and later to the position of Commissioner of Banking and Finance, you were, and are, "indebted, directly or indirectly," within the meaning of Section 1102 (b) of the Executive Reorganization Act, to the Citizens and Southern National Bank. Even if this is no longer the case with respect to the indebtedness created in the second series of transactions, it is clearly true with respect to the loan made to The Columns, Inc., and with respect to the loan to the Plantation Development Company.
The patently more difficult question is whether this indebtedness is to a "bank or financial institution regulated by the Department of Banking and Finance." This question in turn depends on the resolution of two subsidiary questions: (1) whether the General Assembly intended to include national banking associations or bank holding companies within the phrase "bank or financial institution regulated by the department...." and (2) whether the indebtedness described above is an indebtedness owing directly or indirectly to a state bank or to a bank holding company because of the relationship between Citizens and Southern National Bank and the Citizens and Southern Holding Company and the latter company's relationship to certain state banks.
With respect to the first question, it is my official opinion that the proscription contained in Section 1102 (b) of the Executive Reorganization Act does not encompass indebtedness to national banking associations. As hereinabove noted, that provision was drawn from Ga. Code 13-304 which prohibited indebtedness to "any bank as herein defined." The referenced definition of "bank" contained in the Banking Law, Ga. Code 13-201, specifically excludes national banks from the definition. In pertinent part it provides:
"The term 'bank' as used in this Title, means any moneyed corporation authorized by law [to do a banking business] ... but unless

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the context otherwise indicates shall not include . . . national banking associations...." [Matter in brackets added.]

That provision then specifically lists various provisions of the Banking Law which "shall apply to ... national banking associations ..." but in doing so does not include national banking associations in the definition of "bank."
Moreover, the structure of Code 13-304 leads inescapably to the conclusion that while certain prohibitions contained therein applied to the superintendent's relationship with national banks, the indebtedness provision did not. That section dates from 1919 when the system of state charters was competing with the system of national charters but when national banking associations were almost wholly exempt from state law. It contained four separate pro-
hibitions:

[1] The superintendent shall not during his term of office be an officer or employee of any bank; or
[2] either directly or indirectly interested in any bank; and
[3] shall not carry on business as ... or be an employee of or interested directly or indirectly in the business of any private banker.
[4] He shall not be or become indebted ... to any bank as herein defined. [Matter in brackets added.]

Given the context in which these prohibitions appear, it becomes clear that the first and second prohibitions, drawn in reference to "any bank," were meant to apply equally to the superintendent's interest in or with "any" state chartered or national bank, while the prohibition against indebtedness was drafted to include only indebtedness to "any bank as herein defined," specifically, statechartered banks.
The same analysis of Code 13-304 with reference to bank holding companies leads to a similar conclusion. Bank holding companies were not included in the definition of "bank" contained in Code 13-201 and nothing in the language of Code 13-304 intrinsically encompasses bank holding companies.
Although Code 13-304 is not, of course, the provision relevant to your inquiry, an analysis thereof becomes entirely pertinent in examining Section 1102 (b) of the Executive Reorganization Act since the latter prohibition, although redrafted to reflect the expanded regulatory responsibilities of the Department of Banking and Finance, is essentially a restatement of the predecessor statute. In construing the new provision, the prior law is thus a material consideration.

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Acree v. State, 122 Ga. 144, 50 S.E. 180 (1904); Trustees of First M ethodist Episcopal Church South v. Atlanta, 76 Ga. 181 (1886) .1
Moreover, thelanguageofSection 1102 (b) (Ga. CodeAnn. 40-3597) itself does not readily lend itself to a construction that the prohibition against indebtedness to "any bank or financial institution regulated by the department" encompasses either national banks or bank holding companies. That provision, like its predecessor Code 13-304, contains separate prohibitions:
[1] [The Commissioner] shall not be an officer or employee of any bank or other type of financial institution;
[2] he shall not have an interest, directly or indirectly, in any such bank or financial institution;
[3] he shall not carry on business as a banker; and
[4] he shall not own or be an employee of or interested, directly or indirectly, in the business of any financial institution.
[5] He shall not be or become indebted ... to any bank or financial institution regulated by the department. [Matter in brackets added.]
Again, the context of these limitations leads inescapably to the conclusion that the first four apply to the commissioner's relationship to "any bank or financial institution," regardless of the source of its charter, while the last prohibition relating to indebtedness is less broad, applying only indebtedness to any bank or financial institution "regulated by the department." This limiting phrase-"regulated by the department"-is not otherwise imposed with respect to any other provision of that section and unavoidably leads to the conclusion that the indebtedness limitation is narrower than the other limitations. That narrower scope may be accorded only by excluding national banks as such from the scope of that prohibition.
Finally, nothing in the language of Section 1102 (b) suggests that bank holding companies are encompassed within the phrase "financial institutions regulated by the department." The department "regulates" state banks, state credit unions, state building and loan associations, and trust companies. It has enforcement responsibilities with respect to the holding company restri12tions in Ga. Code Ch. 13-2, but nothing in those restrictions or in Section 1102 (b) remotely suggests that "bank holding companies," which includes any "group of persons, whether incorporated or not," Code 13-207 (b) (Ga. Laws 1960, p. 67), are financial institutions.

1 The recently enacted Financial Institutions Code, Ga. Laws 1974, p. 705 (Act No. 1195), effective April1, 1975, reaches the same result.

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For these reasons, I can only conclude that national banks and bank holding companies, even though potentially the subjects of action by the department enforcing certain restrictions of state law, including those made applicable to national banks by federal law, are not as such banks or financial institutions "regulated by the department" within the meaning of Section 1102 (b) of the Executive Reorganization Act.
The second question, thus narrowed to whether the statutory prohibition was transgressed because of the relationship of the creditor, Citizens and Southern National Bank, to certain state banks, must also be answered in the negative. The Citizens and Southern National Bank owns all of the stock of the Citizens and Southern Holding Company which in turn owns substantially all or some lesser percentage of the stock in certain state-chartered banks. However, none of the instruments executed in the above transactions confers, directly or indirectly, any power to enforce the obligation evidenced thereby on The Citizens and Southern Holding Company or any related state bank, and I am unaware of any principle of law that would otherwise permit such enforcement. It is thus my official opinion that the relationship described does not create an indebtedness owing directly or indirectly to a state bank.
Thus, it is my official opinion that while the transactions described above created an indebtedness owing directly and indirectly by you to a bank, that Section 1102 (b) of the Executive Reorganization Act does not proscribe indebtedness to national banks or to bank holding companies as such, and that indebtedness to a national bank is not an indebtedness directly or indirectly owing to a state bank simply because the national bank, through a subsidiary holding company, owns equity interests in a state bank.
In reaching this conclusion, of course, I do not otherwise determine the propriety of your entering into or maintaining the relationships described above. The Constitution of Georgia, Art. I, Sec. I, Par. I (Ga. Code Ann. 2-101), provides that

"Public officers are the trustees and servants of the people, and at all times, amenable to them."

It is, however, a matter peculiarly for your judgment whether those relationships place you in a position apparently or in fact not wholly consistent with your official duties. I can only suggest that you review those relationships and take whatever action you find appropriate to eliminate any doubt.

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OPINION 74-47

To: Director, Employees Retirement System

April 12, 1974

Re: The provisions of Act 1270 of the 1974 Georgia General Assembly are applicable to members of the Employees Retirement System who elect to retire with a retirement commencement date of July 1, 1974.

By letter dated April 5, you have inquired at what point in time members of the Employees Retirement System (ERS) may avail themselves of the provisions of Act 1270, Ga. Laws 1974, p. 1177. Act 1270 removes the 60-years-of-age requirement for members retiring with 35 or more years of service, and will allow retirement under ERS by any such member with the requisite service, regardless of age. It will become effective on July 1, 1974.
The laws establishing and creating the EHS require that an application for service retirement be filed at least 30, but not more than 90, days in advance of the requested retirement date. Ga. Laws 1949, p. 138 et seq. (Ga. Code Ann. 40-2505), both as amended. Your specific question is whether members of the ERS, who are under 60 years of age and have 35 or more years of service, may file application for retirement on or before June 1, 1974, requesting a commencement retirement date of July 1, 1974, and avail themselves of the provisions of the new Act. You state that any member so filing would be considered withdrawn from the employment service of his department or agency as of June 30, 1974, with June 30 designated as his or her last day of employment.
The Supreme Court of Georgia has held that an employer's agreement to pay retirement benefits to an employee is a contractual relationship, based on consideration flowing from both parties, and gives the employee a right to the payment of the benefits which cannot be impaired. Trotzier v. McElroy, 182 Ga. 719 (1936). The contractual right of the employee to receive the benefits is vested and indefeasible. Burks v. Board of Trustees, 214 Ga. 251 (1958); City of Atlanta v. Anglin, 209 Ga. 170 (1952). Statutory provisions delineating retirement benefits become incorporated into the employee's existing employment contract. Burks v. Board of Trustees, supra; Ops. Att'y Gen. 71-5, 72-122. Your question must be considered within the background of these established principles.
You advise that the focal point of your concern is that an employee requesting a July 1, 1974 commencement retirement date will actually be withdrawn from an employment status on June 30, 1974, thereby terminating his employment prior to the effective date of Act 1270. If this occurs, the logic would proceed, Act 1270 permitting retirement

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with 35 years of service at any age would not become a part of such an employee's contract.
The Acts of the General Assembly providing retirement benefits for public officers and employees must be liberally construed in favor of the claimant or benefits recipient. Burks v. Board of Trustees, 214 Ga. 251 (1958); City of Macon v. Herrington, 198 Ga. 576 (1944). A liberal construction of Act 1270, held within the bounds of permissible statutory interpretation, is warranted in the situation you pose.
As a general rule, unless otherwise specified by statute, fractions of a day are disregarded by the law except when such regard will prevent injustice. Russell v. Carr, 38 Ga. 459 (1868); Atlanta & West Point R.R. Co. v. Blass, 60 Ga. App. 35 (1939). There is no requirement in any statutes under consideration that fractions of days be regarded, and no injustice will result from the operation of the general rule to retain an employee whose last day of work is June 30, 1974 within an employment status until the end of that day when July 1 begins.
As I see it, then, two events will simultaneously occur as June 30, 1974 becomes July 1, 1974. Act 1270 with its new retirement provisions will become effective. Also, an employee who has been designated a July 1, 1974 retirement commencement date will move from an employed status to a retired status. The effective date of Act 1270 will coalesce with the termination of an employee's employment status and the beginning of his retirement status. Under such conditions, it can be fairly said that Act 1270 becomes incorporated into the employment contract.
Therefore, based on the foregoing rationale and authorities, it is my official opinion that the provisions of Act 1270 of the 1974 Georgia General Assembly are applicable to members of the Employees Retirement System who elect to retire with a retirement commencement date of July 1, 1974.
I should point out that the provisions of Act 1270 would not inure to the benefit of those whose retirement commencement dates predate June 30, 1974. Because of the contractual, vested nature of retirement benefits, discussed herein, it would appear that a retirement statute must become effective law to form a part of a member employee's contract.

OPINION 74-48

To: Comptroller General, State of Georgia

April15, 1974

Re: Three pre-paid legal service plans that have been brought to the attention of the Insurance Department constitute insurance and can be categorized either as property insurance or casualty insurance. Contracts incorporating such plans would not be against public policy.

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The Insurance Department has received three pre-paid legal service contracts for filing pursuant to 56-2410 of the Georgia Insurance Code (Ga. Code Ann. 56-2410; Ga. Laws 1960, p. 289 et seq.). You have asked me to study those contracts and to render an official opinion on whether they would constitute "insurance" under Georgia law. If I find that to be so, you desire guidance in classifying pre-paid legal service contracts among the varieties of insurance authorized by Chapter 56-4 and in determining whether such contracts would violate public policy.
In the pages that follow, I shall address each of your questions in turn.
I. Do the pre-paid legal service plans which have been brought to the attention of the Insurance Department constitute insurance?
The three filings which have been submitted for your approval share the following characteristics:
1. Each has been submitted by an institution which is apparently operated on a profit-making basis and which has prior experience in the insurance industry.
2. Each includes a proposed "policy" which incorporates a schedule of benefits providing for such services as will drafting, general counseling, defense representation in criminal and certain civil cases, and representation in adoption, divorce and bankruptcy proceedings.
3. None of the "policies" appears to contemplate contractual relations between the offering company and attorneys (i.e., all three are "open plans"). Rather, attorneys would be retained by the "policy holders" and would be in no way answerable to or subject to any instructions of the "issuer," except instructions with regard to procedure to be followed in filing claims.
4. Under the terms of each "policy" the "insured" could receive maximum benefits many times greater than the sum of his monthly premiums.
It is also noteworthy that the explicit purpose of each contract is to indemnify the purchasing party for legal expenses and that each has been framed in the terminology common to insurance policies, quite evidently in the belief that the subject matter of the contract does in fact constitute "insurance." This of course is not determinative in itself, since Georgia courts have recognized that the question of whether a particular agreement should be considered as "insurance" must depend upon the agreement's "purpose, effect, contents and import, and not necessarily [upon] the terminology used . . . ." Benevolent

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Burial Ass'n v. Harrison, 181 Ga. 230, 238 (1935); see also, 1 Couch on INSURANCE 1:12 at 38-39 (2d Ed. Lawyers Co-op. Pub. Co. 1959). It is therefore necessary to weigh the factors listed above against Georgia's statutory definition.
Section 56-102 of the Georgia Insurance Code defines "insurance" broadly as
"a contract which is an integral part of a plan for distributing individual losses whereby one undertakes to indemnify another or to pay a specified amount of benefits upon determinable contingencies."
So far as the first element of that definition is concerned, there is no serious question but that the "policies" which have been filed with the Insurance Department would form contracts between the offering institutions and purchasing parties. It is equally clear that the terms of those contracts would provide for payment of specified amounts of benefits, either to the purchasing party or to the attorney of his choice, within a specified time after he retains such an attorney and incurs legal expenses for any of the determinable contingencies covered by the schedule attached to each contract.
The remaining element of the definition ("integral part of a plan for distributing individual losses") was evidently intended to codify the common law principle that an element of risk distribution formed a sine qua non of every insurance contract. See Piedmont Life Insurance Co. v. Bell, 109 Ga. App. 251 (1964) [citing Home Title Insurance Co. v. U.S., 50 F.2d 107, 110 (2d Cir. 1931)]. Here, the disproportionately high ratio of the maximum benefits to annual premiums, common to each contract, necessarily implies that the three companies designed their plans with that principle in mind. If that were not so, the economics of each company's potential liability would presumably dictate premiums more closely approximating potential benefits (see South Georgia Funeral Hames v. Harrison, 183 Ga. 379 (1936)), for if they could not distribute their risk among their various contractholders, the companies could have little expectation that claims would be advantageously offset by the proceeds of contracts on which no claims were filed.
It is therefore clear that the definition set forth in 56-102 would easily encompass the three contracts which have been filed with the Insurance Department. Still, I should point out that some commentators have maintained that broad statutory definitions of insurance should not necessarily be applied to every arrangement that falls within their literal wording. See 12 Appleman on INSURANCE LAW AND PRACTICE 7 (West Pub. Co. 1962); Keaton on INSURANCE LAW, 8.2(a) at 543, Note 1 (West Pub. Co. 1971). The purpose manifested by the overall regulatory scheme of which that

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definition is part may in some circumstances call for a more restrictive interpretation of the term "insurance." See Jordan v. Group Health Association, 107 F.2d 239 (D. C. Cir. 1939). So far as the three filings are concerned, however, the fact that each company involved is actively engaged in the insurance business convinces me that it would not strain the regulatory purpose of the Insurance Code to subject them to your jurisdiction.
It is therefore my official opinion that the three contracts which have been filed for your approval must be regarded as contracts of insurance. In reaching this opinion I have not failed to note decisions in other jurisdictions in which courts have held similar contracts not to be insurance on the theory that they offered "services," not "indemnity." State ex rel. Physicians Defense Co. v. Laylin, 76 N.E. 567 (Ohio Sup. Ct. 1905); accord, Vredenburgh v. Physicians Defense Co., 126 Ill. App. 509. Yet those courts have failed to recognize the fact than an expenditure of capital caused by the necessity to obtain the services of an attorney is nevertheless a financial loss capable of indemnification. Physicians Defense Co. v. O'Brian, 111 N.\:V. 296 at 398 (Minn. Sup. Ct. 1907); Physicians Defense Co. v. Cooper, 199 F. 576 (9th Cir. 1912); see also Allin v. Motorists Alliance, 29 S.W.2d 19, 71 A.L.R. 688 (Ky. Ct. of App. 1930); Continental Auto Club, Inc. v. Navarre, 60 N.W.2d 180 (Mich. Sup. Ct. 1953); Texas Association of Qualified Drivers, Inc. v. State, 361 S.vV. 582 (Tex. Ct. of Civ. App. 1962). For that reason I respectfully decline to follow their lead.

II. How should legal services insurance be categorized among the various kinds of insurance authorized by Georgia law?
As I mentioned in the last paragraph of the preceding section of this opinion, the loss which is the subject of legal services insurance results when the insured spends some portion of his capital in order to obtain legal representation or advice. The purpose of such insurance, then, is to protect the insured's real and personal property against the risk of contractual liability arising upon an attorney's agreement to perform services for the insured. It would therefore seem appropriate to regard pre-paid legal service contracts as some variety of property insurance, defined by 56-405 of the Georgia Insurance Code as

"insurance on real or personal property of every kind and interest therein, against loss or damage from any or all hazard or cause, and against loss consequential upon such loss or damage, other than noncontractual legal liabilities for any such loss or damage. Property insurance shall also include miscellaneous insurance as defined in subsection (11) of section 56-408 except as to any noncontractual liability coverage includable therein." (Emphasis added.)

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It should be observed that the statutory definition of property insurance incorporates 56-408 (11) by reference, which in turn extends casualty insurance to include
"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."
Since 56-405 and 56-408 (11) overlap so far as insurance against contractual liability is concerned, and since 56-401 provides that the definitions set forth in Chapter 56-4 are not mutually exclusive, it would be proper for you to treat legal services insurance as either property insurance or casualty insurance.1 I suggest that if it becomes necessary for you to give legal services insurance one definite classification, you should decide between those two categories on the basis of administrative convenience or some other factor that emerges from your experience. It would then be appropriate to promulgate a regulation which would give notice of your decision to all those who desire to offer insurance for legal services to residents of this state.

III. Would legal services insurance conflict with public policy?
Since 56-405 and 56-408 (11) of the Georgia Insurance Code would authorize legal services insurance only if public policy does not dictate otherwise, it remains for me to consider whether the three contracts pending before the Insurance Department conflict with public policy in any manner. In that regard the following two questions seem pertinent:
1. Would the contracts violate public policy by authorizing the insured to share the costs of litigation in which it has no interest?
2. Would the contracts violate public policy by permitting the unlawful practice of law?
Answering the last question first, the terms of each of the three contracts specify that the insurer shall have no voice in the insured's selection of an attorney and, once an attorney is retained, shall neither exercise any control over that attorney nor issue any instructions to him (except instructions as to the procedures to be followed in filing claims
1 Note that some limited coverage legal insurance contracts would fall within other provisions as well. For example, a contract designed to provide legal representation in connection with an automobile accident (but not insurance against the damage award) could be classified as vehicle insurance("... insurance against any ... expense resulting from or incident to ownership, maintenance or use of any ... vehicle."). Ga. Code Ann. 56-407; see Ops. Att'y Gen. 1954-56 at 436.

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under the policy). On the face of the three policies, then, it appears that neither the insuring companies nor any of their agents and employees would be authorized to render any legal advice to an insured about any matter. Since I have no information independent of the contracts which would indicate that any of the three insurers contemplate performing any acts which only a licensed member of the Bar could perform, I have no difficulty in concluding that the three contracts would not provide for the "unlawful practice of law," as defined by Ga. Code (1933) 9-402.
As to whether the contracts would be objectionable because they would require the insured to share the insurer's expenses in certain legal proceedings, the contracts would not violate public policy so long as they could not be viewed as contracts of "maintenance" or "champerty." If, on the other hand, the contracts should fall within those two categories, they would violate public policy and could not be enforced. Ga. Code Ann. 20-504, amended by Ga. Laws 1970, p. 441.
"Maintenance" and "champerty" were common law offenses which served to prevent needless litigation and which forestalled trading in potential or existing lawsuits. See Benson v. Gottheimer, 75 Ga. 642, 644 (1845). A party was guilty of the former if he had no interest in a suit yet agreed to defray the plaintiff's costs. If in consideration of that agreement the plaintiff promised that party a share in any favorable award, their contract became "champertous" as well. Moses v. Baggley & Sewell, 55 Ga. 284,289 (1875).
Here it is beyond question that no issue of champerty is involved, since the insurer has no contractual right to share in the proceeds of any judgment. Yet it is equally beyond question that by paying for at least a portion of an insured's attorneys fees an insurer would assist the insured in defraying the expenses of his litigation. That fact alone, however, does not require the contracts to be regarded as contracts of maintenance. For "[i]n maintenance no personal profit is expected or stipulated. The motive is simply to aid a party, with money or otherwise, to prosecute or defend his suit." Sampliner v. Motion Picture Patents Co., 255 F. 242, 247 (2nd Cir. 1918). However, here the insurers very definitely expect profits in the form of annual premiums.
Aside from that, there s a more important reason not to regard the contracts as examples of maintenance. The concept of maintenance springs from a policy against stirring up needless litigation. Insofar as these contracts are concerned, however, there is no reason to fear that the insurers will actively encourage lawsuits, since their continued existence necessarily depends upon a volume of litigation small enough so that the amount of attorneys fees paid in behalf of their insured parties will not exceed the aggregate of annual premiums plus profits derived from the investment of those premiums. It is also significant

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that the maximum benefits provided by the most liberal of the contracts2 would appear to fall so short of covering the entire amount of fees which the insured might expect to incur at prevailing rates that the existence of the contract could hardly be expected to weigh heavily in the insured's decision to prosecute or defend an action.3
Since I have answered in the negative both of the questions discussed above, it is my opinion that you should not disapprove the three contracts pending before your department on the grounds that they would violate public policy.
Reiterating the conclusions I have reached in this opinion, the three contracts I have reviewed must be considered as contracts of insurance, which may be classified in your discretion as either property or casualty insurance. The writing of this particular variety of insurance would not be prohibited by public policy.

OPINION 74-49

To: Secretary of State

April15, 1974

Re: A foreign corporation that is licensed under the Out of State Land Sales Act, Ga. Laws 1971, p. 856 (Ga. Code Ann. Ch. 84-58), is not required to comply with the provisions of Ga. Code Ann. 22-1401 (a) if the corporation would be otherwise exempt from that section pursuant to Ga. Code Ann. 22-1401 (b).

This is in response to your letter of March 5, 1974, in which you requested my opinion on the following question:
"Does a foreign corporation, properly licensed under the Out of State Land Sales Act, Ga. Laws 1971, p. 856 (Ga. Code Ann. Ch. 84-58), have to qualify as a foreign corporation pursuant to Ga. Laws 1968, pp. 565, 707, as amended (Ga. Code Ann. 22-1401 (a)), if the corporation would be otherwise exempt from the provisions of that Code section?''
Georgia Code Ann. 22-1401 provides the conditions under which a foreign corporation may transact business in the State of Georgia. Paragraph (a) of that section states in part that:
"No foreign corporation shall have the right to transact business in this state until it shall have procured a certificate of authority to do so from the Secretary of State, except that when another
z Ex: $350 for the prosecution of a divorce; $175 for defense of any civil action. s Note, too, that under the terms of the contracts only in divorce, bankruptcy, and adoption proceedings could an insured act as a moving party and receive indemnification.

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statute of this state requires foreign corporations ... to transact business in this state, the requirements of such other statute shall govern...."
Paragraph (b) of that Code section obliquely defines the term "transacting business" by excluding activities which do not constitute transacting business. This is done by listing 12 activities which may involve some activity in the State of Georgia, but which the legislature determined should not require the foreign corporation to qualify under paragraph (a) of the section cited above.
I issued an opinion to your office on September 5, 1973, in which I concluded that the requirement of licensure under the regulatory provisions of the Out of State Land Sales Act, Ga. Laws 1971, p. 856 (Ga. Code Ann. Ch. 84-58), was not equivalent to qualifying to transact business so as to bring those corporations under the exemption contained in paragraph (a) of Ga. Code Ann. 22-1401. See Op. Att'y Gen. 73-140. That opinion only addressed itself to the question of the exception contained in paragraph (a) of Ga. Code Ann. 22-1401, and should not be construed to indicate that such a corporation could not avail itself of the exemptions contained in paragraph (b) of that section, just as could any other foreign corporation.
Thus, if a foreign corporation does fall within the exemptions contained in paragraph (b) of Ga. Code Ann. 22-1401, the provisions of paragraph (a) of that Code section would not apply.
Therefore, it is my official opinion that while obtaining a license pursuant to Ga. Code Ann. Ch. 84-58 does not qualify a foreign corporation to do business in the state as is required by Ga. Code Ann. 22-1401 (a), any corporation so licensed may still be exempt from the provisions of Ga. Code Ann. 22-1401 (a) if its activities fall within the enumerated exceptions contained in Ga. Code Ann. 22-1401 (b).

OPINION 74-50

To: Commissioner, Department of Human Resources

April 15, 1974

Re: The terms "doctors of medicine," "licensed doctors of medicine," "doctors of medicine licensed to practice in the state," and similar terms used in Ga. Code Ch. 84-9 include persons who have graduated from a medical college and hold the degree of Doctor of Medicine and those who hold the degree of Doctor of Osteopathy. Where those terms are used to describe the qualifications of physicians to be hired by the Department of Human Resources, the department may hire physicians who have either degree.

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This is in response to your letter of March 4, 1974, requesting my official opinion as to whether there is any provision of law which would preclude the Department of Human Resources from employing, as physicians, persons having the degree of Doctor of Osteopathy.
Georgia Code 84-901, as amended, particularly by an Act approved March 28, 1974 (Ga. Laws 1974, p. 1156), defines the terms "doctors of medicine," "licensed doctors of medicine," "doctors of medicine licensed to practice in the state," and similar terms as referring to those persons who are licensed to practice medicine pursuant to the provisions of Ga. Code (1933) Ch. 84-9, as amended.
Georgia Code Ann. 84-907, as amended, particularly by Ga. Laws 1970, pp. 301, 306, provides for the licensure of persons who are graduates of medical schools or osteopathic colleges and, therefore, under the terms listed in the paragraph next preceding, the two degrees are interchangeable for the purposes of defining those persons who are "doctors of medicine," "licensed doctors of medicine," and "doctors of medicine licensed to practice in the state."
I have examined the provisions of the law relating to the Department of Human Resources and particularly to its Division of Mental Health, and I find that a "physician" is defined as a "doctor of medicine who is licensed to practice in the state." See Ga. Code Ann. 88-501 (f), based on Ga. Laws 1969, p. 505. Since the phrase "doctor of medicine who is licensed to practice in the state" refers to those persons who hold degrees as Doctors of Osteopathy as well as Doctors of Medicine, it is apparent that the department may employ persons holding either degree. You should note, however, that while all practicing osteopaths are licensed under Code Ch. 84-9, thus qualifying all of them to practice in state hospitals or community service programs, that not all hold "full practice" licenses. Georgia Code Ann. 84-906 (c) provides that any osteopath regularly licensed prior to January 1, 1972, may renew his license each year, but that if such person has not qualified for a "full practice" license as that term is used in Ga. Code Ann. 84-907.1, he may not practice medicine in the fields of obstetrics or surgery.
Therefore, it is my official opinion that there is no provision of law which would preclude the Department of Human Resources from employing osteopathic physicians in its hospitals and community service programs.

OPINION 74-51

To: Secretary of State

April 19, 1974

Re: For the purpose of determining permissible investments, the initial $5,000 trust deposit required of cemeteries offering perpetual

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care should be considered minimum capital, and the balance of the perpetual care trust fund should be considered a reserve.

Georgia Laws 1970, p. 472 (Ga. Code Ann. 84-5103), requires all cemeteries offering perpetual care to maintain an irrevocable trust fund, the corpus of which shall be deposited in a bank, savings and loan institution, trust company, or other depository or trustee approved by the Secretary of State. The assets of said trust fund
"shall be invested and reinvested subject to all of the terms, conditions, limitations and restrictions imposed . . . upon domestic life insurance companies in the making and disposing of their investments. . . .
"Provided, however, that the provisions of section 56-1005 (4) of the Georgia Insurance Code, relating to the limitation of investment of insurance reserves in common stocks, shall not apply to said cemetery perpetual care trust funds." (Emphasis added.)
You have inquired as to whether 56-1005 (3) (Ga. Laws 1960, p. 289), of the Georgia Insurance Code is applicable to the investment of the assets of such trust funds. That section provides:
"An insurer shall invest and maintain invested funds not less in amount than the minimum paid-in capital stock required under this Title of a domestic stock insurer transacting like kinds of insurance only in [specified investments]...."
The principle of statutory construction applicable to this question is that "[i]n all interpretations, the court shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy." Ga. Code 102-102, ~9. When reference to the old law is made, it is manifest that there were formerly no restrictions upon the investment of the assets of perpetual care trust funds, thus providing little security for the assets of such funds. (Ga. Laws 1969, pp. 242, 243, Ga. Code Ann. 84-5103.) This "evil" was remedied by subjecting the assets to "all of the ... restrictions imposed ... upon domestic life insurance companies in the making and disposing of their investments...." Ga. Laws 1970, p. 472 (emphasis added). "All" means "every one" unless a different meaning is apparent from the context of the statute (Ga. Code 102-103); and, since no contrary intention is apparent from the cemetery trust fund statute, the restrictions of 56-1005 (3) of the Insurance Code are applicable to such funds. This conclusion is buttressed by the maxim expressio unius est exclusio alterius, which means that an express manifestation of legislative intent as to one particular thing, but not towards other things, manifests a lack of such intention towards such other things. City of

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Jlfacon v. Walker, 204 Ga. 810 (1948). As applied to Ga. Code Ann. 84-5103, this means that by expressly exempting the assets of perpetual care trust funds from the requirements of Insurance Code 56-1005 (4), relating to the investment of reserves in common stocks, but not exempting such assets from the requirements of 56-1005 (3), the legislature manifested an intention to subject these assets to the requirements of 56-1005 (3). It is therefore my official opinion that the restrictions imposed by 56-1005 (3) of the Insurance Code upon domestic insurers in the making of their investments apply to the investment of the assets of perpetual care trust funds.
The second question posed, and the more difficult one, is the extent to which these restrictions apply. Section 56-1005 (3) of the Insurance Code restricts insurers to the listed investments with respect to "funds not less in amount than the minimum paid-in capital stock required [by the Insurance Code] of a domestic stock insurer...."At this point it becomes necessary to determine what assets of perpetual care cemetery trust funds, if any, are analogous to the minimum paid-in capital stock of a domestic stock insurance company. This comparison is not without difficulty because of the obvious dissimilarities between trusts and corporations, and, m making this comparison it is necessary to examine the entire content of Ga. Code Ann. 84-5103, particularly the following portion:
"Provided, however, that the provisions of section 56-1005 (4) of the Georgia Insurance Code, relating to the limitation of investment of insurance reserves in common stocks, shall not apply to said cemetery perpetual care trust funds."
From this provision it can be seen that the question at issue is not only what portion of the trust fund is equivalent to minimum paid-in capital, but also what portion should be considered a reserve.
The term "reserve" has been variously defined, but is commonly understood to be a fund set aside to liquidate future claims or claims accrued but indefinite as to amount or time of payment. Maryland Cas. Co. v. United States, 251 U.S. 342, 350 (1919). While it is true that only the interest earned by a perpetual care trust fund may be paid directly for the maintenance of a cemetery,t still, the purpose of the corpus of such a fund is to produce the assets from which such maintenance liabilities may be satisfied. In this sense the corpus is in fact a fund set aside to liquidate future claims, and the fact that the liquidations must be made from the interest earned by the corpus rather than from the corpus itself does not alter the basic purpose of the corpus. Therefore, the conclusion follows that the corpus of a perpetual

1 Ga. Code Ann. 84-5105, based on Ga. Laws 1969, p. 242. See also, Ga. Code 108-408, amended by Ga. Laws 1955-6, p. 146.

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care cemetery trust fund is analogous to the reserves maintained by domestic stock insurers. This conclusion is reinforced by the fact that other statutory trust funds subjected to similar restrictions (e.g., Employee's Retirement System) are considered by their trustees to be composed entirely of reserves, for the purpose of determining what investments may be made. In view of the foregoing facts and authorities it is my opinion that the corpus of a perpetual care trust fund is generally a reserve to provide for the payment of future liabilities. Insurance reserves are clearly limited to a total of 25% in common stock holdings; however, this restriction has been specifically removed in the case of perpetual care cemetery trust funds. Ga. Code Ann. 84-5103. Therefore, the portion of the corpus which is considered a reserve may be invested in any approved investment for nsurance reserves, but without the limitation that only 25% of such funds may be invested in common stocks.
However, since the General Assembly declared that all restrictions app icable to domestic stock insurers shall apply to perpetual care trust funds, and since it evidenced no intention to exclude the application of the restrictions upon the investment of minimum capital, then these restrictions must also be applied to such trust funds if any portion of such funds can be reasonably equated with a domestic stock insurer's minimum cap:tal. All words and portions of a statute must be given effect whenever possible. Hicks v. Smith, 94 Ga. 809, 815 (1894). "Minimum capital," in the case of a domestic stock insurer, is the minimum amount of assets which an insurer must possess and maintain in order to do business in this state. Ga. Ins. Code 56-306 (1). Similarly, business corporations are required to refrain from transacting business until not less than $500 of consideration for the issuance of their shares has been received (Ga. Bus. Corp. Code 22-802 (a) (7), based on Ga. Laws 1968, p. 565), and the amount so required is generally considered the minimum capital of such corporations. 0. B. Andrews Co. v. Willingham, 286 F. 117 (5th Cir. 192~i). Also, it has been held that the "lowest amount named" in a corporate charter constituted the minimum capital of a corporation where the applicable statute required the organizers of the corporation to make good the minimum capital. Rosenheim Shoe Co. v. Horne, 10 Ga. App. 582, 586 (1911). These authorities indicate that minimum capital is generally the least amount of assets which an entity may possess in order to carry on its activities in this state. Therefore, s'.nce Ga. Code Ann. 84-5104 clearly requires that any cemetery offering perpetual care must initially deposit the sum of $5,000 to the trust fund required by Ga. Code Ann. 84-5103, and further requires that this must be done as a condition precedent to the making of any sale or contract involving perpetual care, it is this $5,000 minimum initial

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trust deposit which should be equated with the minimum capital of a domestic stock insurer for the purpose of determining lawful investments.
In conclusion, it is my official opinion that, for the purpose of determining what investments are permissible, the initial $5,000 trust deposit required of a cemetery offering perpetual care should be considered minimum capital, and the balance of the corpus of the trust fund should be considered a reserve.

OPINION 74-52

To: State Superintendent of Schools

April 24, 1974

Re: School teacher may be exempted from jury duty by filing a written notification of desire not to serve with the jury commissioners of the county in which he resides. If he does not file such a notice and is called to jury service, the State Board of Education and the local boards of education are empowered to establish regulations and policies either permitting or precluding the payment of his regular salary during the period of jury duty.

This is in response to your inqmnes concerning service of jury duty by school teachers. As I understand them, your questions are two-fold:
(1) Is a school teacher subject to jury duty?
(2) If a school teacher can and does serve on a jury, may that teacher receive his regular salary in addition to compensation received for jury duty despite his absence from the classroom?
First, pursuant to Ga. Laws 1967, pp. 725, 727 (Ga. Code Ann. 59-112 (d)), any teacher of this state who does not desire to serve upon juries may address a notification in writing to that effect to the jury commissioners of the county in which he resides, and he will not be subject to jury duty, civil or criminal, in that county. While it is obvious that teachers may be exempted from jury service, it should be recognized that teachers "accept" the possibility of call to jury duty by failing to file the required notification. The failure to notify will result in the inclusion of the teacher in the group of citizens eligible for jury duty.
With respect to your second query, my research supports the conclusion that it is within the discretion of the State Board of Education, with respect to state funds allotted under the provisions of the Minimum Foundation Program of Education Act, and within the dis-

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cretion of the local boards of education, with respect to local funds above and beyond their required local effort under the MFPE Act, to Jd.Uecryidseerwvih.Ceet.her or not a teacher will be paid for absences caused by
In accordance with Section 3 of the Minimum Foundation Program of Education Act, Ga. Laws 1964, pp. 3, 7 (Ga. Code Ann. 32-603), the State Board of Education is empowered to adopt and prescribe rules, regulations and policies that may be reasonably necessary or advisable for assuring a more economical and efficient operation of the public schools of this state. This is to include the establishment of a schedule of minimum salaries to be paid professional personnel employed within the public school system. This schedule is subject to modification or adjustment at such times and in such manner as the board may, in its discretion, find reasonably necessary and advisable for the more efficient operation of the public school system. Ga. Laws 1964, pp. 3, 10 (Ga. Code Ann. 32-609). While the local boards of education are responsible for the actual employment of teachers, Ga. Code Ann. 32-607, and for the salaries paid those teachers (which may be above the minimum schedule set by the State Board of Education), Ga. Code Ann. 32-609, the local boards are likewise burdened with the responsibility of complying with and enforcing the rules, regulations and policies adopted by the State Board for the efficient operation of the public school system insofar as MFPE Act funds are concerned.
The local boards of education have similar discretionary powers, with respect to local supplementary funds expended above and beyond MFPE Act local effort requirements. See, e.g., Ga. Const., Art. VIII, Sec. V, Par. I (Ga. Code Ann. 2-6801); Ga. Code Ann. 32-606, 32-609, 32-901. This is consistent with the broad discretionary powers traditionally allowed local boards in the control and management of of the local school systems. See Bedingfield v. Parkerson, 212 Ga. 654 (1956).
One remaining problem exists as to whether such rules or regulations would be either (1) contrary to the public policy of having qualified citizens serve on juries or (2) so arbitrary and capricious as to be a gross abuse of discretion. As the policy would regulate teacher pay and would not deny any teacher the right of serving on a jury, it would appear that no direct prohibition of jury service is placed upon any qualified prospective juror. Since the exemption authorization provided by the General Assembly (i.e., Ga. Code Ann. 59-112 (d)) reflects a recognition of the desirability of keeping teachers in the classroom, it would not seem so arbitrary as to amount to an abuse of discretion for the State Board of Education and the local boards to adopt policies of requiring teachers to forego their regular salary for absences due to jury duty if those teachers failed to apply for the exemption. Reason-

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able prudence would require that all teachers be advised of the statutory provisions for teacher exemptions and of any policies prohibiting payment of salary for periods of jury duty served by teachers failing to utilize the exemption.
Because of the foregoing considerations, it is my opinion that a teacher may be exempted from jury service by filing a written notification with the jury commissioners of the county of his residence and that the State Board of Education and the local boards of education may promulgate regulations and policies to preclude the payment of a teacher's regular salary for the period of time spent by a teacher on jury duty. It should be noted in conclusion that a teacher may utilize during any school year up to three days of any accumulated sick leave for the purpose of "absenting himself from his duties for personal or professional reasons, if prior approval of his absence is given by the superintendent or his authorized representative." Ga. Laws 1970, p. 459 (Ga. Code Ann. 32-1304.1). Jury duty could conceivably be a reason for using accumulated sick leave to authorize the payment of the teacher for periods absent due to jury duty.

OPINION 74-53

To: Director, Office of Planning and Budget

April 25, 1974

Re: A General Appropriations Act for one fiscal year may not be amended by a General Appropriations Act for a subsequent fiscal year.

This is in reply to your request for an opinion as to whether a General Appropriations Act for one fiscal year may be effectively amended through the vehicle of a General Appropriations Act for a subsequent fiscal year. The pertinent legislative history and the reason underlying your request were stated as follows:
"The General Appropriations Act for Fiscal Year 1974, Ga. Laws 1973, p. 1353, was amended at the 1974 Session of the General Assembly by H. B. 1376 which has now been approved in part by the Governor.
"At the same 1974 Session, the General Assembly in Sections 49, 50, 51 and 52 of the General Appropriations Act for Fiscal Year 1975, H.B. 1377, which has also now been approved in part by the Governor, purported to amend the General Appropriations Act for Fiscal Year 1974, as amended by H.B. 1376.
* * *
"To convey the import and urgency of this request, I call your attention to Section 51 of the General Appropriations Act for

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Fiscal Year 1975. That section purports to reduce the operations appropriation and to reduce capital outlay appropriation to the Department of Corrections by approximately $3 million in each case. WhHe I realize that such information is not pertinent to determining the effect of legislation, I have concluded, from my knowledge of the movement of this bill through the General Assembly, the dual reduction is a mistake and that what was desired was a reduction in the capital outlay appropriation only. More critical to the issue, however, is the fact that the reduction in the operations appropriation will cause the Department of Corrections to operate without sufficient appropriation for approximately the last two months of this fiscal year."
The Constitution of Georgia, Art. VII, Sec. IX, Par. I (a) and Par. III, makes it clear that a General Appropriations Act may be subsequently amended. Ga. Code Ann. 2-6201 (a), 2-6203.
However, the Constitution makes equally clear that each General Appropriations Act shall contain only one subject matter-appropriations for the fiscal year next following its adoption. Article VII, Sec. IX, Par. I, expressly provides that it is the duty of the Governor to propose, and of the General Assembly to enact,
"a General Appropriations Bill ... which shall provide for the appropriations of the funds necessary to operate ... and to meet the current expenses of the state for the next fiscal year." Ga. Code Ann. 2-6201. (Emphasis added.)
In prior opinions, I have consistently concluded that Art. VII, Sec. IX, Par. I (supra) and Art. III, Sec. VII, Par. IX (Ga. Code Ann. 2-1909) delineate the permissible subject-matter of a General Appropriations Act and that those provisions, along with Art. VII, Sec. IX, Par. V (Ga. Code Ann. 2-6205) and Art. III, Sec. VII, Par. VIII (Ga. Code Ann. 2-1908), prohibit the inclusion of any matter foreign to that constitutionally prescribed limitation. Ops. Att'y Gen. 73-132, 73-80, U73-94, 67-189. The language of the constitutional provision expressly limits the scope of the General Appropriations Act to appropriations for the "next fiscal year"; such an Act, therefore, clearly may not anticipate beyond that period and, for the same reason, may not incorporate matters relating to the time prior to that period.
Nothing in the history of the present language of Art. VII, Sec. IX, gives rise to any doubt as to the conclusion to be drawn from its language; instead, that history reinforces my opinion.
It was clearly contemplated by the 1962 amendment (Ga. Laws 1962, p. 752) to Art. VII, Sec. IX, and later by the 1972 amendment to the same provision (Ga. Laws 1972, p. 1550), that a General Appropriations Act would have a definitively prescribed temporal scope.

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Under the 1962 amendment, that scope was the next fiscal biennium following adoption. In the 10-year period in which that lirriltation prevailed, no amendments to a General Appropriations Act for a prior biennium were made by a General Appropriations Act for a subsequent biennium even though in every odd year in that time span with one exception there was an opportunity to do so and a legislatively determined need for amendment. See, e.g., Ga. Laws 1965, p. 44; Ga. Laws 1969, p. 880; Ga. Laws 1971, pp. 111, 162.
when the 1972 amendment (Ga. Laws 1972, p. 1550) to Art. VII, Sec. IX, was adopted, narrowing the temporal scope of the General Appropriations Act to the ensuing fiscal year, this practical construction of the prior language was well established and thus carries great significance in interpreting the constitutional provision as so amended. Thompson v. Talmadge, 201 Ga. 867, 884-887 (1947).
Determinative of the issue, however, is that if the suggestion implicit in amendments to Ga. Laws 1973, p. 1353, by Act No. 1380 (Ga. Laws 1974, p. 1508) is correct, then the patent language and historically evident purpose of the 1962 amendment and more importantly the 1972 amendment to Art. VII, Sec. IX, limiting the temporal scope of General Appropriations Act, is frustrated. No rule of interpretation permits that result. Thompson v. Talmadge, 201 Ga. 867 (1947).
Thus, it is my official opinion that the Constitution limits the subject-matter of a General Appropriations Act to appropriations for the fiscal year next following its adoption. Amendments to a General Appropriations Act for a prior fiscal year are as foreign to that constitutionally prescribed subject-matter as would be direct appropriations for that prior fiscal year; the Constitution excludes both.
It is, therefore, my official opinion that Sections 49, 50, 51 and 52 of the General Appropriations Act for Fiscal Year 1975, H.B. 1377, are ineffective in the attempted amendment to the General Appropriations Act for Fiscal Year 1974, Ga. Laws 1973, p. 1353, as amended. It follows, of course, that in my opinion the Fiscal Year 1974 appropriations dealt with in those provisions remainastheywere set forth in Ga. Laws 1973, p. 1353, as amended by Act No. 1379 (Ga. Laws 1974, p. 1459, H.B. 1376), and that the Fiscal Year 1975 appropriations contained in Act No. 1380 (Ga. Laws 1974, p. 1508, H.B. 1377) are not altered by the ineffectiveness of Sections 49 to 52.

OPINION 74-54

To: Secretary of State

April 29, 1974

Re: Discussion of several questions relating to the procedures for

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voting by absentee ballot, Ga. Code Ch. 34-14, as amended by Ga. Laws 1974, p. 71. Act No. 770, approved February 28, 1974.

The General Assembly substantially amended Ga. Code Ann. Ch. 34-14 relating to voting by absentee ballot. You have asked several questions relating to the changes from former law.
(1) Must a person residing outside his election district but within the state apply for an absentee ballot himself?
While former law allowed a specified relative to obtain an absentee ballot for any absentee elector, Code 34-1402 (a) now provides:
"(a) Any absentee elector may, not more than 90 days prior to the date of the primary or election in which the elector desires to vote, make an application either by mail or in person in the registrar's office to the board of registrars of the county of the elector's residence for an official ballot of the elector's district to be voted at such primary or election. In the case of an elector residing temporarily out of the state or out of the country the application for the elector's absentee ballot may, upon satisfactory proof of relationship, be made by his [listed relative over age 18]." (Emphasis added.)
Clearly, an absentee elector who is within the state must apply for hjs own ballot, although he may do so by mail as well as in person.
(2) Since an oath is now required for an application made by a relative, would the absence of an oath be grounds for rejection of the application?
Code 34-1402 (a), as amended, further provides that "relatives applying for absentee ballots for electors must also sign an oath stating that facts in the application are true." The section does not provide any particular form for the application or for the oath and therefore any form including the necessary information would be acceptable. I understand, however, that you plan to prepare forms to be used and this would certainly be preferable. If an application by a relative, whether on the application form or in any other manner, does not contain the required oath or other required information, it must be rejected. The person applying must be notified immediately of the rejection and may be allowed to complete the application, if there is sufficient time.
(3) When the absentee ballot is returned without the information required by Code 34-1404 (b), must the ballot be rejected?
After completing an absentee ballot, the elector must place the ballot in an envelope on which is printed the elector's oath and identifying information. Code 34-1406 (a). Upon receipt of the ballot,

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the registrar must compare the identifying information with that on file in his office and certify each absentee ballot.
"If the elector has failed to sign the oath, or if the signature does not appear to be valid, or if the elector has failed to furnish required information or if information so furnished does not comply with that on file in the registrar's office, or if the elector is otherwise found disqualified to vote, the registrar shall write across the face of the envelope 'Rejected' giving the reason therefor." Code 34-1407 (a). (Emphasis added.)
Failure to furnish required information is therefore a ground for rejection.
(4) Must the registrar compare each returned absentee ballot with information on file in his office before certifying the ballot?
Code 34-1407 (a) requires the registrar to mark the day and hour of receipt on each absentee ballot:
"The registrar shall then compare the identifying information on file in his office and shall, if the information and signature appear to be valid, so certify by signing his name below the voter's oath."
Since each ballot must be certified separately, each must be compared with the identifying information on file in the registrar's office. The section requires that both the signature and identifying information be checked prior to certification.

OPINION 74-55

To: Director, Employment Security Agency, Georgia Department of Labor

April 30, 1974

Re: The employer's contribution to the Employee Retjrement System may not be refunded if the state employee resigns from his position.

This is in response to your recent letter regarding employees of the Georgia Employment Security Agency in the Public Employment Program (PEP). As you explain the situation, these are state employees whose salaries are paid from funds received under a federal grant from the Manpower Administration, U. S. Department of Labor. Under the policies of the grant, the federal agency has stated that their funds may be used for the payment of retirement benefits of permanent employees and for probationary employees who later become permanent. However, if a person resigns or is terminated for any reason during his probationary period the funds used as the employer's contribution must be returned to the Federal Government.

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Your question is whether the employer's contribution to the Employee Retirement System for these employees of the Employment Security Agency may be refunded if the employee's employment is terminated prior to his achieving permanent status, or in the alternative may these contributions be placed in an escrow account to be payable into the employment retirement system when the employee has achieved permanent status.
The above question and its alternative must both be answered in the negative. The Employee Retirement System was created in 1949 by the Georgia General Assembly. Ga. Laws 1949, p. 138 (Ga. Code Ann. Ch. 40-25). Under that law any individual employed since 1950 as a state employee of the Employment Security Agency would automatically be a member of the Employee Hetirement System. See Ga. Code Ann. 40-2503. The employer's responsibility under this law includes deducting the employee's contribution to the Employee Hetirement System from his payroll and paying it directly to the Employee Retirement System (see Ga. Code Ann. 40-2511 (1) (a), 40-2516), and also paying the employer's contribution to the Employee Retirement System (see Ga. Code Ann. 40-2511 (2) (a)). These requirements are mandatory.
The General Assembly did consider the situation where the employee ceased to be employed for a reason other than by death or retirement and provided a means by which the employee could request that his contributions be returned. See Ga. Code Ann. 40-2505 (7). However, to my knowledge the Georgia General Assembly has never provided a means nor any authority to return the employer's contributions under any circumstances. Therefore, it is my official opinion that the employer's contribution to the Employee Retirement System may not be refunded if the employee resigns or is otherwise terminated during his probationary period.
I realize that your problem is much more complicated than that of a normal state employer making a contribution to the Employee Retirement System. To solve your dilemma several things must be realized. First, to my knowledge there is no federal law that preempts or supersedes the state law on retirement. Therefore, the state law on the payment of contributions to the retirement system controls. Furthermore, from reading the Emergency Employment Act of 1971 which created the Public Employment Program, I must agree with the U. S. Department of Labor's statement that no part of that Act prohibits the payment of these employee benefits. Also, a reading of the rules and regulations promulgated by the U. S. Department of Labor to implement this Act and to administer the grants rendered under this Act would seem to allow federal funds to be expended to pay for an employee pension plan. See 29 C.F.R. 55.15 and 41 C.F.R. 1-15.711-13 (b). However, obviously the U. S. Government or the

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granting agency would have the right to put further limitations on the monies allocated to the state and local governments through federal grants. Apparently, the Manpower Administration of the U. S. Department of Labor has done this in the Public Employment Program. Since under state law a nonrefundable employer contribution must be made for all employees, and since the federal administrator states that federal funds may not be used to make this nonrefundable payment for probationary employees, it would seem clear then that state funds must be used. Therefore, with a permanent employee the PEP federal funds may be used to pay the employer's contribution to the retirement system; however, if he is only a probationary employee, state funds should be used to pay the employer's contribution. I can see no reason why the escrow account suggested by the Federal Government could not be set up to reimburse the payment of state funds with the federal funds when the probationary employee becomes a permanent employee.

OPINION 74-56

To: State Superintendent of Schools

May 1, 1974

Re: A member of the State Board of Regents may contract to provide medical services for schools operated by the State Department of Education if a competitive bid is conducted for the award of the contract.

This is in response to your query as to the propriety of the employment of a member of the Board of Regents of the University System of Georgia by the State Department of Education to provide health and medical services for schools operated by the department. I direct your attention to Ga. Laws 1956, pp. 60, 61 (Ga. Code Ann. 89-914), in which it is specified:
"No member of any state board, bureau, commission or other state agency by whatever name called, or of any authority created by law, shall make any contract in any capacity whatsoever to furnish any goods or supplies, or both, to the state, except after competitive bid thereon. No such person shall act as dealer, agent, or broker, or in any other manner, in connection with the sale of goods or services, or both, to the state, except after competitive bid thereon."
Accordingly, it is my opinion that a member of the Board of Regents may contract with the State Department of Education to provide health services for schools operated by the department, provided that a competitive bid for the contract has been conducted. See Op. Att'y

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Gen. 68-58. In conclusion, I should point out that Section 5 of the aforementioned Act (Ga. Code Ann. 89-917) requires that all bids, agreements, contracts or other instruments in connection with the furnishing of goods or services to the state shall have included therein a statement to the effect that the signers of such jnstrument certify that the provisions of that Act (i.e., Ga. Code Ann. 89-913 through 89-918) have not been violated and will not be violated in any respect.

OPINION 74-57

To: Director, Fjscal Division, Department of Adminjstrative Services

May 2, 1974

Re: As a result of the expiration of the federal Wage Stabilization Act, salaries of state officials must be paid in the full amounts prescribed in Ga. Laws 1973, p. 701.

This is jn response to your request for an opinion as to the amount of state-paid salaries to be paid to superior court judges and district attorneys beginning May 1, 1974. Your request js prompted by the expiration of the federal Wage Stabilization Act at midnight, April 30, 1974, and the effect of that expiration on salaries paid to certain state officers pursuant to Ga. Laws 1973, p. 701.
The State Compensation Commission's recommendations concerning certain salary increases were enacted as Ga. Laws 1973, p. 701 et seq. (Ga. Code Ann. 89-723 et seq.).
The federal Cost of Living Council (COLC), acting pursuant to the Economic Stabilization Act of 1970, as most recently amended (P. L. 93-28; 87 Stat. 27), and resulting executive orders, rules and regulations, challenged the amounts of some of the increases for state officials which had been authorized by the Georgia law. After a lengthy presentation and public hearing, the COLC jssued an order (dated August 3, 1973) which provided, in essence, that approximately twothirds of most of the increases could be granted effective July 1, 1973, and that the remainder could be granted on July 1, 1974. To date, the state has complied with this order.
Section 5 of the Georgia Act contains a provjsion to authorize such "step" increases. It provides:
"This entire Act shall become effective July 1, 1973, unless the provisions of any federal law or the provisions of any rules, regulations or order promulgated or issued pursuant to federal law prevent it from becoming effective on said date. In that event, this entire Act shall become effective as soon after said date as will be permitted by such federal law or such rules, regulations or orders.

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In the event the entire amount of any increase for one or more of the officials designated herein shall be prevented from becoming effective on said date, any portion thereof which is allowed shall become effective on the above date or as soon as permitted." Ga. Laws 1973, pp. 701, 706. (Emphasis added.)
The authority of the COLC has now expired in accordance with Section 218 of the Economic Stabilization Act which provides:
"The authority to issue and enforce orders and regulations under this title expires at midnight April 30, 1974, but such expiration shall not affect any action or pending proceedings, civil or criminal, not finally determined on such date, nor any action or proceeding based upon any act committed prior to May 1, 1974."
Thus, it is necessary to interpret the ramifications of Section 5 of the state Act vis-a-vis Section 218 of the federal Act.
The state Act provides that the full amount of the increase will be paid unless prevented by federal law. In the event the federal restriction is removed, then the full increase must be paid as soon as it would be permissible to make such payments.
Section 218 of the federal law provides that, with two exceptions, the COLC has no authority to issue and enforce orders and regulations after April 30, 1974. These exceptions are for actions or pending proceedings which have not been finally determined by that date, or for any action or proceeding based on an act committed prior to May 1, 1974.
The order of the COLC concerning the state salaries is, of course, final, and therefore, is not a pending action or proceeding. Nor was there any act concerning these increases committed prior to May 1, 1974 which was in violation of the federal law. Therefore, the exception clause of Section 218 is irrelevant.
An "order" is a mandate or precept, or a command or direction authoritatively given, or a rule or regulation. Brady v. Interstate Commerce Commission, 43 F.2d 847, 850 (D.C. W.Va.) (1930); Bankers Fire & Marine Ins. Co. v. Bukacek, 271 Ala. 182, 123 So. 2d 157, 165 (1960); Black's Law Dictionary, 4th Ed. (1951).
Since Section 218 of the Economic Stabilization Act provides that existing "orders" and regulations may no longer be enforced, there is no federal law which prevents the effectivity of the state law. Thus, the entire increase is required by state law to be paid effective May 1, 1974, instead of July 1, 1974, since there is now no enforceable federal law or order prohibiting payment of the entire amount.
Therefore, effective May 1, 1974, the state-paid salaries for superior court judges and district attorneys should be $32,500 and $28,000 respectively.

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OPINION 74-58

To: Director, Georgia Bureau of Investigation

May 3, 1974

Re: Juvenile Code of Georgia 24A-3503 does not apply to the case of a child who is transferred by a juvenile court for prosecution in some court of criminal jurisdiction; nor does it apply to the case of a child charged with a capital felony whom law enforcement officials elect to prosecute in superior court pursuant to Ga. Code Ann. 24A-301 (b).

[Title 24A of Ga. Code is based upon Ga. Laws 1971, p. 709, as amended.]
You have asked me to render an official opinion which would clarify the effect of Juvenile Code of Georgia 24A-3503. That section imposes restraints on law enforcement agencies' ability to compile and maintain fingerprint files for children whose conduct forms the subject of an official investigation. The question you have raised is whether the provisions of that statute would apply in the case of a child who is tried as an adult on a criminal charge. I am informed that you are particularly concerned with Juvenile Code of Georgia 24A-3503 (b), which provides that:
"Fingerprint files of children shall be kept separate from those of adults. Copies of fingerprints known to be those of a child shall be maintained on a local basis only and not sent to a central state or federal depository unless needed in the interest of national security."
At the outset it should be recognized that no child1 could ever be brought to trial for a criminal act which he allegedly committed at a time when he was less than 13 years old. Criminal Code of Georgia 26-701 (based on Ga. Laws 1968, pp. 1249, 1270). This opinion will therefore concern only those children who are charged with an offense which occurred on or after their 13th birthday.
There are two instances in which a child who belongs to the latter class might lawfully be tried as an adult. First, since juvenile and superior courts share jurisdiction over cases which involve "a delinquent act which would be considered a crime if tried in a superior court and for which the child may be punished by loss of Me or confinement for life in the penitentiary" (Juvenile Code of Georgia 24A-301 (b)), a child might be prosecuted for such a crime if authorities elected to initiate superior court proceedings, rather than to petition the juvenile court for an adjudication of delinquency. Second, a child could be tried
1 Juvenile Code of Georgia 24A-401 (c) defines "child" as "any individual who is: (1) under the age of 17 years[;] (2) under the age of 21 years who committed an act of delinquency before reaching the age of 17 years and who has been placed under the supervision of the court or on probation to the court."

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in a court of appropriate criminal jurisdiction for either a felony or a misdemeanor if the juvenile court with jurisdiction over his case transferred him to such a court pursuant to Juvenile Code of Georgia 24A-2501.
In regard to the first of those two instances, the provisions of 24A-3503 make no mention of the possibility that, by virtue of the concurrent jurisdiction conferred by 24A-301 (b), a child charged with a capital felony might never be brought to the attention of a juvenile court, but might instead be indicted and tried by the superior court in the same manner provided for adults charged with the same offense. The reason for that omission is that 24A-3503 is patterned after Section 56 of the Uniform Juvenile Court Act, whose language it adopts with only slight variations which are of no concern to the question in issue. Compare 9 Uniform Laws Annotated 449-450 (Master Edition 1973). Section 56 must in turn be construed with the jurisdictional section of the Uniform Act, Section 3, which differs from its Georgia counterpart (24A-301) by vesting juvenile courts with exclusive jurisdiction over all cases in which a child is charged with an act constituting a crime, including crimes punishable by death or by life imprisonment. Given the lack of any element of concurrent jurisdiction in the Uniform Act, it is evident that Uniform Act 56 is predicated on the assumption that no child who is charged with the commission of an act designated as a crime can become a defendant in a criminal proceeding unless the juvenile court with jurisdiction over the child decides to transfer him to some other court for prosecution. (Compare Uniform Act 34 with the Commissioner's Note at 9 Uniform Laws Annotated 449.)
Since Juvenile Code of Georgia 24A-3503 incorporates Uniform Act 56, it should thus be clear that the former statute was not meant to extend to cases in which a child could be prosecuted as an adult without first being brought before the juvenile court for a hearing on whether that child could benefit from facilities available to juvenile authorities. See 24A-2501. It follows that 24A-3503 has no application to capital felony cases in which law enforcement officials elect to bring charges against a child in superior court rather than in the juvenile court. In such a case law enforcement officers would be free to compile and maintain fingerprint records for the child in the same manner as for any criminal defendant.
As to those cases in which a child is transferred from a juvenile court to stand trial in some court of criminal jurisdiction, 24A-3502 (permitting disclosure of arrest information upon transfer) suggests that 24A-3503 should not be construed to hamper the routine fingerprinting of any child so transferred.2 Such an interpretation would
2 See also 24A-3503 (f), allowing a child to be photographed while in custody upon transfer.

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severely restrict the utility of arrest records which 24A-3502 would make available for widespread distribution after transfer, since fingerprint files are often essential to the process of retrieving that information from record depositories. The policies underlying the Juvenile Code would instead support a construction of 24A-3503 which would render fingerprint files and arrest reports equally accessible to law enforcement agencies once a child has been transferred from juvenile jurisdiction.
In 24A-101 the General Assembly described the purpose of the Juvenile Code of Georgia as that of ensuring "that children whose well-being is threatened shall be assisted and protected and restored, if possible, as secure law-abiding members of society." To that end 24A-3503 serves to promote rehabilitation by restricting access to information which might destroy the confidentiality of juvenile proceedings: By first limiting the circumstances in which fingerprint records may be compiled, then by imposing special requirements concerning the manner in which that information may be stored, it shields a child from the prolonged injury to his reputation he might otherwise suffer through the dissemination of data marking him as a person who has been the subject of a police investigation. Yet when a case is transferred to a court of criminal jurisdiction pursuant to 24A-2501, the transferring juvenile court has necessarily found that the child in question is not amenable to treatment or rehabilitation through facilities available to the court. Section 24A-2501 (3) (ii). If the child is therefore incapable of rehabilitation through methods at the juvenile court's disposal, it follows that restrictions on the circumstances in which the child could be fingerprinted and on the manner in which his prints could be filed, restrictions which were designed to foster the rehabilitation of a child under the supervision of the court, should no longer apply. Moreover, once a juvenile court has decided that a child should stand a public trial on a criminal charge, restrictions designed to secure the confidentiality of noncriminal juvenile proceedings become meaningless. Thus, once such a transfer has been made, law enforcement officials should be allowed to compile and maintain the fingerprints of such a child according to their normal procedures, free of the constraints imposed by subjections (a), (b) and (e) of 24A-3503.
It is therefore my official opinion that the provisions of 24A-3503 of the Juvenile Code of Georgia concerning compilation and maintenance of fingerprint records of children investigated by law enforcement authorities should not apply to the case of a child who is either indicted and tried in the superior court for a capital felony or who is transferred from the juvenile court for criminal prosecution. In either of those instances a child may be fingerprinted in accordance with standard practice. Thus, such a child's fingerprint file would neither

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have to be "kept separate from those of adults" nor "maintained on a local basis only," but could be forwarded "to a central state or federal depository" for storage in the routine manner. See 24A-3503 (b).

OPINION 74-59

To: Joint Secretary, State Examining Boards

May 3, 1974

Re: A reciprocal full practice medical license may be granted to graduates of medical or osteopathic colleges graduating prior to July 1, 1963 if the college in question was approved by either the former medical or osteopathic board at the time of the applicant's graduation, if the college complied substantially at the time of graduation with the requirements of Ga. Code 84-910, if the applicant possesses a full practice license from the state of original licensure, and if any other applicable requirements are satisfied. Op. Att'y Gen. 73-31 is hereby withdrawn.

You have raised the question of whether or not doctors of osteopathy who graduate prior to July 1, 1963 are eligible for reciprocity in the State of Georgia. This question has arisen because of a recent application by a doctor of osteopathy for a license by reciprocity.
A recent opinion of the Attorney General (73-31), a copy of which is attached hereto, took the position that such physicians were not eligible for reciprocity. The conclusion was based upon the statute governing licenses by reciprocity, Ga. Code 84-914 (b) (amended by Ga. Laws 1970, pp. 301, 310), the relevant portion of which provides:
"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 ... by the Board of Medical Examiners as of the date of such graduation...."
Although the opinion conceded some apparent legislative intention to allow reciprocity for some osteopaths who graduated prior to July 1, 1963, it stated that since the former Board of Medical Examiners did not approve of any osteopathic colleges prior to 1963, and since the former Board of Osteopathic Examiners apparently never officially approved of any osteopathic colleges, there could be no reciprocity for osteopaths who graduated prior to July 1, 1963.
It is true that the Board of Medical Examiners, prior to 1970, approved only medical colleges since the practice of osteopathy was regulated by the Board of Osteopathic Examiners. However, the reciprocity statute quoted hereinabove provides that the "medical

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or osteopathic college [must have been] approved by the Board of Medical Examiners as of the date of [the applicant's] graduation." (Emphasis added.) The meaning of the phrase "Board of Medical Examiners" is set forth in Ga. Code Ann. 84-902 (amended by Ga. Laws 1974, p. 1156):
"Hereinafter, whenever in this Chapter reference is made to the ... 'Board of Medical Examiners' ... it shall mean the 'Composite State Board of Medical Examiners.' "
Therefore, it is clear that the reciprocity statute should be read to provide that any applicant who graduated prior to July 1, 1963 must have graduated from a school which was approved by the Composite State Board of Medical Examiners as of the date of graduation. However, the Composite State Board was created by Ga. Laws 1970, p. 301 (Ga. Code Ann. Ch. 84-9) and is an amalgamation of the former Board of Medical Examiners and the former Board of Osteopathic Examiners. It is clear that the Composite State Board did not exist prior to 1970, and therefore could have approved neither medical nor osteopathic schools prior to 1963. Therefore, the most reasonable construction of Ga. Code 84-914 (b) is that the medical or osteopathic college must have been approved by one of the predecessor boards to the present Composite State Board of Medical Examiners, i.e., the Board of Medical Examiners or the Board of Osteopathic Examiners. Another construction would render all or part of Code 84-914 (b) unnecessary or ineffectual, as by prohibiting reciprocity by osteopaths in spite of specific reference by said Code section to graduation from osteopathic colleges, or by prohibiting reciprocity entirely for graduates of both medical and osteopathic colleges. All portions and words of a statute should be given effect whenever possible, and a reasonable construction adopted rather than one which renders some portion of a statute nugatory. Hicks v. Smith, 94 Ga. 809, 815 (1894); Kent v. State, 18 Ga. App. 30, 32 (1916).
From an examination of the former osteopathic Chapter, Ga. Code Ch. 84-12, it is clear that the Board of Osteopathic Examiners did have the discretion to approve or disapprove of osteopathic colleges. Georgia Code Ann. 84-1207 required any applicant for examination to show that he had obtained a diploma from a "reputable school of osteopathy [requiring a specified course of study]," and applicants for licenses by reciprocity had to possess a license from a state requiring "equal or higher qualifications" as the State of Georgia required. Ga. Code Ann. 84-1208. Furthermore, the present members of the Composite State Board of Medical Examiners who were once members of the Board of Osteopathic Examiners have informed me that they did in fact approve of certain schools and disapprove of others, and as best can be determined, the manner of and basis for such approval was

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substantially the same as that of the former Board of Medical Examiners in approving or disapproving of medical colleges.
Therefore, persons graduating from osteopathic colleges prior to July 1, 1963, which colleges were approved as of the date of the applicants' graduation by the former Board of Osteopathic Examiners, are eligible for licensure by reciprocity, subject to satisfaction of all other applicable requirements.
It should be noted that reciprocity is limited to licentiates of other states requiring equal or higher qualifications as this state requires. Ga. Code Ann. 84-914. Therefore, in order to be eligible for a full practice license1 any applicant must possess a full practice license from the state of current licensure. Also, the requirements of the foreign state applicable to such applicant at the time of original licensure must be substantially equivalent to the present requirements of Georgia, except for any requirements expressly waived or modified by Ga. Code Ann. 84-914. Rose v. Grow, 210 Ga. 664 (1954). The requirements of Georgia with respect to approval of colleges are found in Ga. Code Ann. 84-910. It is therefore my official opinion that a reciprocal full practice medical license may be granted to graduates of medical or osteopathic colleges graduating prior to July 1, 1963, if the college in question was approved by either the former Medical or Osteopathic Board at the time of the applicant's graduation, if the college complied substantially at the time of graduation with the requirements of Ga. Code 84-910, if the applicant possesses a full practice license from the state of original licensure, and if other applicable requirements are satisfied. Op. Att'y Gen. 73-31 is hereby withdrawn.

OPINION 74-60

To: Secretary of State

May 3, 1974

Re: The annual renewal fee for a certificate of registration is $50 under Section 19 of the Georgia Land Sales Act. There is no additional annual renewal fee for amendments under the Act.
This is in reply to your opinion request concerning annual renewal fees for amendments under the Georgia Land Sales Act. 1
1 At the time of amalgamation of the Medical and Osteopathic Boards all osteopaths licensed in this state were allowed to obtain a full practice license by fulfilling certain requirements. Those who chose not to fulfill the applicable requirements retained a limited practice license and are not authorized to practice obstetrics or surgery other than the minor suturing of cuts. Ga. Code Ann. 84-906 (c), 84-907.1. The Composite State Board of Medical Examiners is not authorized to grant additional limited practice licenses.
1 Ga. Laws 1972, p. 638, as amended, Ga. Code Ann. Ch. 84-61 (hereinafter referred to as the "Act").

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Section 19 of the Act (Ga. Code Ann. 84-6117) provides:
"The fee for the filing of the application of the initial certificate of registration shall be $100. There shall be no fee charged for amendments to certificates of registration as a result of amendments to the initial filing. The fee for annual renewal of a certificate of registration is $50.
The quoted law does not provide a fee for the filing of an amendment to the certificate of registration. It follows, therefore, that since there is no charge for an amendment, there may be no charge for a renewal of an amendment.
In summary, the $50 fee for renewal of the certificate of registration is the only annual renewal fee permitted under the Act.

OPINION 74-61

To: State Auditor

May 3, 1974

Re: Payment for a child's appendectomy would not be a proper expenditure of Early Childhood Development Program funds by a county board of education.

This is in reply to your letter of April 24 in which you ask whether it would be proper for a county board of education to expend "Early Childhood Development Funds" for an appendectomy for a child who falls within the age requirements of the Early Childhood Development Act.
It is axiomatic that the powers of public officers and boards are limited to those defined by law (Ga. Code (1933) 89-903), with this rule being of especial force where the action in question is a disbursement of public funds. See Cole v. Foster, 207 Ga. 416, 418 (1950); Freeney v. Geoghegan, 177 Ga. 142 (1) (1933). The general restriction of expenditures of the common school fund to "educational purposes" only is of long standing. As stated in Burke v. Wheeler County, 54 Ga. App. 81, 85 (1936):
"Public funds cannot be expended unless the expenditure is authorized by law, and money belonging to the public-school funds cannot be used for any other than school purposes."
The rule currently rests upon both constitutional and statutory mandates. See Art. VII, Sec. II, Par. I, and Art. VII, Sec. IV, Par. II of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5501 and 2-5702); Ga. Code Ann. 32-942 (Ga. Laws 1969, p. 721).
However, while the law is not difficult to state, it is quite often

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most difficult to apply. As this office pointed out in a prior opinion concerning the inordinate number of "gray areas" which seem to present themselves:
"What constitutes an 'educational purpose' is a question upon which educators, lawyers, judges as well as others could, would and do disagree. The matter is further complicated by the fact that the concept of what is an 'educational purpose' is not static." Op. Att'y Gen. 67-182.
The responsibiHties of the state and local boards of education in connection with the "Early Childhood Development Act" have been the subject of two prior opinions of this office. See Ops. Att'y Gen. 72-38, 72-116. In the former opinion we referred to the fact that the purpose of the Act was stated "in very general language" (i.e., to provide for "a sound program of early childhood development"supplementing the resources which parents have available "to meet the mental, physical and emotional needs of their children"), and that the only stated specifics were that the programs must include (although they were not limited to):
"(1) testing, diagnosis, and treatment of children less than three years of age who have physical or mental handicaps; (2) educational programs for children five years of age and for those children three to five years of age, inclusive, who have physical or mental handicaps." See Ga. Laws 1972, pp. 722, 725 (Ga. Code Ann. 32-2104b).
vVhere these services with respect to the pre-school child are carried out as a part of his educational planning [e.g., Does he need to be placed in a "special education" class? Does he need a hearing aid? Does he suffer from a "learning disability," etc.?] there would presumably be the sort of nexus which the Supreme Court of Georgia has consistently said was required for an expenditure of school funds to be held to have been made "for educational purposes." See, e.g., Board of Com'rs of Roads and Revenues of Twiggs County v. Bond, 203 Ga. 558, 560 (1948). Eye examinations, for example, have quite generally been carried out in public schools.
It is questionable, on the other hand, (1) whether the Early Childhood Development Act ever contemplated the use of school funds for such purely nonschool related health needs of children as an appendectomy (which is manifestly not undertaken as a part of any educational planning for the child), or (2) whether the Act would not run afoul the constitutional limitations upon the expenditure of school funds if it were to be so construed. In Wright v. Absalom, 224 Ga. 6 (1968), the Supreme Court of Georgia made it abundantly clear that the mere fact that the objective of the expenditure was one which would

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make pupils "more efficient" and that it was a worthy and beneficial undertaking was not enough. There, the court said of expenditures of school funds for school lunches (prior to constitutional authorization of the same):
". . . the mere fact that the school lunch program may render pupils more efficient does not make it 'for educational purposes,' and further if school funds can be expended for feeding lunches to pupils, why also would not the providing of proper clothing, suitable dwellings, proper medical attention or breakfast and dinner for pupils be 'for educational purposes'? The answer is obvious. There would be no limit to the purposes for which state taxes could be expended.
"While the feeding of children is a worthy and beneficial undertaking and may well enhance the opportunities for a better learning situation, we are forced to the conclusion that eating is not education." Wright, at pp. 10, 11. (Emphasis added.)
In light of the court's holding and language in Wright v. Absalom, particularly in connection with its use of "proper medical attention" as an example (see the emphasized portion of the above quotation) it is my opinion that the court would conclude, if the question were to be presented to it, that school funds available for the funding of the Early Childhood Development Act could not be lawfully expended for the appendectomy of a child within the age group covered by the Act.

OPINION 74-62

To: Chairman, State Board of Workmen's Compensation

May 6, 1974

He: The assessments made by the State Board of workmen's Compensation pursuant to authority under Ga. Code 114-717 (1933), as amended, must be paid into the general fund of the state treasury and the operating expenses of the State Board of Workmen's Compensation may be funded only through an appropriation by the General Assembly.

This is in response to your letter of April 15, 1974, asking eight particular questions regarding Section 11 of Act No. 1263 of the 1974 Georgia General Assembly (Ga. Laws 1974, pp. 1143, 1155). This section amended Ga. Code 114-717 (1933) so that the first paragraph reads as follows:
"The total expenses of the State Board of Workmen's Compensation shall be prorated among the qualified insurance companies

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writing compensation insurance in this state, hereinafter referred to as insurers, and employers not covered by workmen's compensation insurance written by these companies, hereinafter referred to as others, including, but not limited to, the state, counties, municipalities, and any political subdivisions or authorities thereof, on the basis, in the case of the insurers, of the gross earned premium; in the case of others on the basis of the amount of premium which they would have to pay in the event they had insured their liability with an insurer. Prorated assessments based on the experience of the previous calendar year shall be made on July 1, based on the budget of the State Board of Workmen's Compensation for that fiscal year. Sworn reports of the compensation premium writing of the insurers and sworn payroll statements of others for the preceding calendar year shall be filed with the State Board of Workmen's Compensation not later than March 1 of each year. The books of the board shall be audited annually, and a copy of such audit shall be available for inspection during normal business hours to all parties among whom the expenses of the board are prorated. All monies assessed against and that may be payable under this law by the insurers and others shall be paid into the state treasury and by it held as a special fund solely for the operation of the State Board of Workmen's Compensation to administer this law.''
Basically, you are inquiring as to the creation of this special fund and what effect it will have on your agency. Here a discussion on appropriations and the effect of assessments by state agencies would be beneficial. As a matter of history, prior to 1945 there existed several laws which levied specific taxes and provided that the proceeds from the collection of those taxes were to be used solely by a particular department or agency. See, Gregory v. Hamilton, 215 Ga. 735, 737 (1960). In 1945, Georgia adopted a new Constitution. Among the new provisions in this Constitution was Art. VII, Sec. II, Par. III (Ga. Code Ann. 2-5503), which provided as follows:
"All money collected from taxes, fees and assessments for state purposes, as authorized by revenue measures enacted by the General Assembly, shall be paid into the general fund of the state treasury and shall be appropriated therefrom, as required by this Constitution, for the purposes set out in this section and for these purposes only." (Emphasis added.)
The purpose of this constitutional provision was to end the practice of allocating or earmarking particular taxes, fees, or assessments for the use of any specific department and to require the General Assembly to appropriate from the general fund specific amounts for each

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fiscal year for the support of each department or agency. See, Gregory v. Hamilton, supra at 737.
Since the enactment of the 1945 Constitution, there have been various laws passed creating fees or assessments to be collected by a governmental agency or department and to be held for the exclusive use of that department. Following the logic of the Gregory case and the clear constitutional provision, this office has consistently opined that such funds could not be placed in a special fund or earmarked for a particular agency. (See Ops. Att'y Gen. 72-107 and 72-112).1
Therefore, it is my official opinion that the assessments made by the State Board of Workmen's Compensation pursuant to authority under Ga. Code 114-717 (1933), as amended, must be paid into the general fund of the state treasury and the operating expenses of the State Board of Workmen's Compensation may be funded only through an appropriation by the General Assembly.

OPINION 74-63

To: Comptroller General

May 8, 1974

Re: The Comptroller General is authorized to countersign properly drawn warrants on funds appropriated to the Department of Human Resources and the Department of Offender Rehabilitation by the General Appropriations Act for Fiscal Year 1974, Ga. Laws 1973, p. 1353, notwithstanding any attempted amendment of that Act by the General Appropriations Act for Fiscal Year 1975, Act 1380 (Ga. Laws 1974, p. 1508).

This is in response to your letter of May 3, 1974, in which you requested my opinion as to the propriety of your signing, as Comptroller General, warrants drawn on funds appropriated to the Department of Human Resources, Department of Offender Rehabilitation and the Department of Community Development by the General Appropriations Act for Fiscal Year 1974, Ga. Laws 1973, p. 1353, in light of the fact that the General Assembly had amended those parts of the Appropriation Act for Fiscal Year 1974 relating to these departments by inserting provisions to that effect in the General Appropriations Act for Fiscal Year 1975, Act 1380 (Ga. Laws 1974, p. 1508).
1 AJso, of interest is Art. VII, Sec. IX, Par. IV of the Constitution of Georgia of 1945 (Ga. Code Ann. 2-6204 (a)), which provides as follows: "Except as hereinafter provided, the appropriation for each department, officer, bureau, board, commission, agency or institution for which appropriation is made shall be for a specific sum of money, and no appropriation shall allocate to any object, the proceeds of any particular tax or fund or a part or percentage thereof."

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This office issued an opinion (Op. Att'y Gen. 74-53) dated April 25, 1974, to James T. Mcintyre, Jr., Director of Office of Planning and Budget, in which I ruled that the attempt of the General Assembly to amend the General Appropriations Act for Fiscal Year 1974 through provisions contained in the General Appropriations Act for Fiscal Year 1975 was void and of no effect. I have enclosed a copy of that opinion for your perusal.
In light of that opinion it is clear that the General Appropriations Act for Fiscal Year 1974, as amended by the normal Supplemental Appropriations Act for Fiscal Year 1974, constitutes the sole source of authority for the disbursement of funds for Fiscal Year 1974, and, therefore, you are authorized to countersign properly drawn warrants on funds so appropriated by that Act, notwithstanding the attempt of the General Assembly to modify it through the General Appropriations Act for Fiscal Year 1975, Act 1380 (Ga. Laws 1974, p. 1508).

OPINION 74-64

To: Joint Secretary, State Examining Boards

May 9, 1974

Re: A municipal or county government may not require a person who holds a state license as an electrical contractor to register and pay a registration fee in order to engage in electrical contracting within the county or municipality.

In response to your letter dated April 23, 1974 in which you requested an opinion on the power of a municipality or county to require one holding a state electrical contractor's license to pay a registration fee in order to engage in electrical work in that municipality or county, I refer you to Op. Att'y Gen. 74-7. That opinion stated that a county or municipality may not require a state licensed electrical contractor to obtain a local license in order to engage in electrical work within the municipality or county. The opinion was based on the expressed intent of the General Assembly, in Section 16 of Ga. Laws 1971, p. 583 (Ga. Code Ann. 84-5716), that a person holding a statewide license shall be allowed to perform electrical work in any county or municipality in the state. That Act left counties and municipalities with no regulatory power over state licensees other than to require building permits and business licenses.
Therefore, it is my opinion that a municipal or county requirement that an electrical contractor, holding a valid state license, register and pay a registration fee to the municipality or county in order to engage in electrical work would be in conflict with state law and thus invalid.

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OPINION 74-65

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

May 10, 1974

Re: Act No. 1031, as passed by the 1974 General Assembly, does not require municipality consent for the extension of University System police jurisdiction to cover offenses committed upon public or private property within 500 yards of University System property.

This is in response to your request for an interpretation of inconsistent portions of Act No. 1031 (Ga. Laws 1974, p. 611; Ga. Code Ann. 32-168) that was passed in the 1974 Session of the Georgia General Assembly. Section 1 of the Act, an amendment to Ga. Laws 1966, p. 370, contains a requirement of municipality consent for extension of University System campus police jurisdiction in the statement of amendments to be made. However, this requirement is omitted in a later portion of Section 1 where it is declared that the section as amended shall read as thereinafter set forth. Your query seeks a determination of which portion is controlling as to whether municipality consent is required by the 1974 amendment.
Statutory construction problems of this nature have been definitively treated in a number of Georgia cases commencing with Gilbert v. Georgia R.R. & Banking Co., 104 Ga. 412 (1898). In that case, Justice Cobb, in stating the rule of last expression of legislative intent, declared what is to be construed as the intention of the General Assembly when portions of an amending statute are not consistent:
"While in amending statutes it is proper to embrace in the first part of the amending act, as declaratory of the intention of the General Assembly, what is to be the character of the amendment, still this part of the statute, which is merely declaratory of the legislative intention, is not to be looked to as the final determination of the General Assembly. When a statute or section of the Code to be amended is recited in the statute in its amended shape, and it is in express terms declared therein that when amended the old law shall read in a certain way, this declaration by the General Assembly, being the last expression of its intention as to what shall be the law of the state, absolutely controls where any conflict arises as to matter contained in this declaration of what the law shall be and what is set forth in the first part of the amending statute as declaratory of the legislative intention."
Such language has been cited with approval by numerous subsequent decisions, including Atlanta Metallic Casket Co. v. Mosby Truck Service, Inc., 107 Ga. App. 677 (1963), in which the Court of Appeals of Georgia noted that if the declaratory part of the statute, which states that

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certain amendments are to be made, is orilltted in the recital of how the statute shall read when amended, it is to be presumed that it was the intention of the General Assembly to omit from the new law that part of the amending statute not "carried into" in the new law as recited in the statute. See Op. Att'y Gen. 70-196.
In consideration of the foregoing, it is my opinion that Act No. 1031, as passed by the 1974 General Assembly, does not require municipality consent for the extension of University System police jurisdiction to cover offenses committed upon public or private property within 500 yards of University System property. Since such requirement is omitted from that portion of the amending statute that recites how the law as amended shall read, it is not to be considered a part of the new law.

OPINION 74-66

To: Commissioner, Department of Transportation

May 13, 1974

Re: The State Highway Board was legally justified in relying upon the "Advance Report" [PC(VI)-12] of the Bureau of Census in recommending allocations for urban road projects under the Georgia Highway Authority's urban bond program.

This is in response to your request for my official opm10n as to whether a certain city is legally entitled to participate in the Georgia Highway Authority's urban bond program.
My understanding of the chronology of events which precipitated your inquiry is as follows:
1. On March 26, 1970, a certain city annexed an area contiguous to its municipal boundaries, thereby increasing its population from 4,115 to 6,134.
2. The "Advance Report" of Final Population Counts [PC(VI)-12], issued in December of 1970 by the Bureau of Census, reflected the population of the city as being 4,115.
3. The report entitled "Number of Inhabitants" [PC(1)-A 12 Ga.], issued in July of 1971 by the Bureau of Census again indicated that the city's population was 4,115. Moreover, the most recent report of the Bureau of Census entitled: "Characteristics of the Population, Part 12, Georgia," issued in March of 1973, lists the city's population as being 4,115.
4. On October 8, 1971, an Associate Director of the Bureau of Census provided the city with an "official statement" that the population of the city, as of April 1, 1970, was 6,134.

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5. On November 18, 1971, the State Highway Board, unaware of the "official statement" of the Bureau of Census, approved and adopted various urban road projects, basing its actions on the "Advance Report" of Final Population Counts [PC(VI)-12].
6. On November 10, 1972, the city requested that it be included in the allocations for urban road projects.
Although the allocation of funds for urban road projects is now authorized by Georgia Laws 1973, pp. 947, 1132 and 1139 (see Ga. Code Ann. 95A-1201, 95A-1208), the allocations in question were made in 1971. The board's actions at that time were controlled by the provisions hereafter discussed.
Georgia Laws 1967, pp. 385, 394, as amended (former Ga. Code Ann. 95-2307), provided, in part, that the State Highway Board shall locate urban road projects according to a formula which will allocate to each "urban incorporated municipality" an amount equal to a percentage of the total population of the municipality. The section further provided that: "Population used herein shall mean the population figures according to the latest federal decennial census."
Georgia Laws 1971, pp. 385, 389, defined an "urban incorporated municipality" as a municipal corporation incorporated and chartered pursuant to an Act of the General Assembly of Georgia, and which has a population of 5,000 or more according to the 1970 official United States census or any future official United States census.
I deem the provision of Georgia Laws 1963, p. 608 (Ga. Code Ann. 102-103), as being controlling of the issue of whether the city is entitled to participate in the Georgia Highway Authority's urban bond program. That provision defines "census" as follows:
""Whenever there is used in the statutory law of Georgia the term 'federal census,' 'United States census,' 'decennial census,' or similar words referring to the official census conducted every ten (10) years by the United States of America or any agency thereof ..., the effective date of such census for the purpose of malcing operative and of force any statutory law of Georgia shall be midnight, December 31, of the year in which such census is conducted by the United States of America or any agency thereof."
According to the "Advance Report" [PC(VI)-12], issued in December of 1970, that report contains "Final Population Counts." The cover of the report further states:
"This report presents final1970 census statistics on the number of inhabitants of the state and its counties, classified by urban and rural residence. In addition, figures are shown for each county subdivision, each incorporated place, and each unincorporated place of 1,000 or more."

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In an analogous situation involving distribution of municipal grants for the 1970-71 fiscal year, it was my opinion that when the General Assembly enacted the foregoing definition of the word ucensus," it was referring to those final-official population counts contained in what the Bureau of Census refers to as its ((advance series" [PC(VI)-12]. (See Op. Att'y Gen. 71-17).
It is my opinion that my rationale involving municipal grants is equally applicable to the adoption of the urban road project allocations previously described. Moreover, it would seem only logical that in defining the word "census," the General Assembly was very providently granting a basis of certainty from which statutory purposes might be rendered effectively operative. Were this not the case, the statutory goals sought to be accomplished would be so shrouded with uncertainty that the very purposes for which the statutes were enacted would be negated.
In conclusion, therefore, it is my official opinion that the then State Highway Board was legally justified in relying upon population counts contained in the "Advance Report" [PC(VI)-12] of the Bureau of Census, and that the city in question is not eligible to participate in the Georgia Highway Authority's urban bond program.

OPINION 74-67

To: State Superinendent of Schools

May 14, 1974

Re: Provisions of Ga. Code Ann. 40-2002 pertaining to travel allowance are inapplicable to expenditures by local school systems.

This is in reply to your letter of April 9 in which you request our opinion as to the legality of local boards of education paying more than 10 cents per mile to local school employees who are traveling on official business. You indicate that the payment in excess of 10 cents per mile is made from local school funds.
The only statutory provision with which I am familiar which contains a "10 cents per mile" traveling allowance is that set forth in Ga. Laws 1972, pp. 1125, 1127 (Ga. Code Ann. 40-2002), which provides:
"The officers, officials and employees of the various departments, institutions, boards, bureaus, and agencies of the state shall be paid 10 cents per mile as traveling expense when traveling in the service of the state or any agency thereof by automobile, except as provided otherwise in the general appropriations Act. This section shall not apply to officers, officials, and employees traveling in state-owned automobiles or rental automobiles." (Emphasis added.)

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I note that Section 19 of the MFPE Act, Ga. Laws 1964, pp. 3, 19 (Ga. Code Ann. 32-619), further provides that:
"The amount of funds needed by a local unit of administration for payment of travel expenses to be incurred by visiting teachers, instructional supervisors ancLothedocaLschool personnel required to travel within the local unit of administration in connection with their assigned duties shall be determined by the State Board of Education in accordance with regulations prescribed by the State Board authorizing such travel and prescribing uniform rates, standards, requirements and allowances for such purposes."
Under this provision of the MFPE Act it would seem to be within the power of the State Board of Education to fix specified allowances to the extent that the same are funded by the MFPE Act. I do not, of course, have any knowledge as to whether the State Board of Education has in fact prescribed any mileage rate. If it did, however, it would seem clear that it would apply only to expenditures made with the use of MFPE funds since above and beyond expenditures made under this program, the management and control of local school systems is vested in the local boards of education. See, e.g., Art. VIII, Sec. V, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-6801).

OPINION 74-68

To: Commissioner, Department of Banking and Finance

May 17, 1974

Re: If a banking organization, organized under the laws of this state, is doing business in the State of Alabama, and is holding property abandoned by persons whose last known address was in Alabama, that banking organization would not be required to report such abandoned property to the State of Georgia under the "Disposition of Unclaimed Property Act," Ga. Laws 1972, p. 762 (Ga. Code Ann. Ch. 85-20).

This is in response to a letter from your office requesting my opinion as to whether a Georgia bank is required to report abandoned property to the State of Georgia or the State of Alabama when some of the bank's customers reside in Alabama.
The "Disposition of Unclaimed Properties Act," Ga. Laws 1972, p. 762 et seq. (Ga. Code Ann. Ch. 85-20), requires that banks report all abandoned property, as that term is defined in the Act, to the Commissioner of Banking and Finance. However, Ga. Laws 1972, pp. 762, 770 (Ga. Code Ann. 85-2011), states in part that:

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"If specific property which is the subject of the provisions of 85-2003, 85-2006, 85-2007, 85-2008, and 85-2010 is held for or owed or distributable to an owner whose last known address was in another state by a holder who is subject to the jurisdictjon of that state, the specific property is not presumed abandoned in this state and subject to this Chapter if:
(a) It may be claimed as abandoned or escheated under the laws of such other state; and
(b) The laws of such other state make reciprocal provision that similar specific property is not presumed abandoned or escheatable by such other state when held for or owed or distributable to an owner whose last known address is within this state by a holder who is subject to the jurisdiction of this state."
An Alabama statute, Ala. Laws 1971, p. 101 (Ala. Code Ch. 47-14), which relates to the uniform distribution of unclaimed and abandoned property, contains a reciprocal provision which is in essence identical to the one cited above in the Georgia law.
Therefore, the question of to whom the Georgia bank reports abandoned property will be dependent upon several circumstances. First, the Alabama statute, in relevant part, only applies to "banking organizations" which are engaged in business in Alabama. See Ala. Laws 1971, p. 101 (Ala. Code 47-314). Thus, in order to be subject to the Alabama law and subject to the jurisdiction of its courts, there first must be a determination that the bank is "engaged in business" in Alabama. The determination of whether a particular bank is "engaged in business" in Alabama is dependent on the particular facts of the situation in each individual case, although merely having depositors in Alabama would probably not be sufficient.
Second, if the bank determines that it is "engaged in business" in Alabama so as to be subject to both the Georgia law and Alabama law, the proper state to which the bank must report any abandoned property again depends on the facts in each case. If the depositor's last known address is in Alabama then, by the exception cited above in the Georgia law, the property is not considered abandoned in Georgia, but is considered abandoned in Alabama. The bank would then report the property to the appropriate authorities in Alabama. If, on the other hand, the last known address of the owner of the property was in Georgia, the property is not considered to be abandoned in Alabama pursuant to the above-cited Alabama statute, but is considered to be abandoned in Georgia and therefore should be reported to the proper authorities in Georgia.
Therefore, it is my official opinion that because of the reciprocal clauses in the Alabama and Georgia statutes, if any particular bank

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were doing business both in Georgia and Alabama and the last known address of the person owning the abandoned property was in Alabama, the bank should report to the Commissioner of Revenue of Alabama, but if the last known address of the owner of the abandoned property was in Georgia, the bank should report to the Commissioner of Banking and Finance in Georgia. If the last known address of the depositor is in neither state the answer would have to depend on the particular state involved and its laws as to unclaimed and abandoned property.

OPINION 74-69
To: Chairman, Georgia Public Service Commission May 18, 1974
Re: The Georgia Public Service Commission has the authority to require, by an appropriate regulation, telephone companies under their jurisdiction to accurately indicate in a reasonable manner by reference in their telephone directories the fact that a subscriber is utilizing telephone service observing equipment, even if the subscriber is the United States Internal Revenue Service.
This is in response to your letter dated April 4, 1974, in which you requested an opinion on whether the Public Service Commission may enforce a proposed requirement that telephone companies regulated by the commission accurately indicate in a reasonable manner in their directory those subscribers that utilize listening devices, sometimes referred to as service observing equipment, in the particular situation where the subscriber is an agency of the United States Government. This opinion will be limited in its application to one such agency, the Internal Revenue Service, hereinafter referred to as the IRS.
Congress itself has recognized that the states have a legitimate interest in regulating the rates and other conditions of the service offered by telephone companies. 47 U.S.C.A. 221 (b). State regulation of telephone companies designed to insure that an individual has adequate knowledge concerning his use of telephone service has not been preempted by the Federal Government and is fully within the jurisdiction of the Georgia Public Service Commission. Ga. Code Ann. 93-307 (1933 Code, as amended).
As was pointed out in an opinion dated March 25, 1974 (Op. Att'y Gen. 74-36), agencies of the United States Government are immune from state regulation in the performance of their governmental duties. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); Ohio v. Thomas, 173 U.S. 276 (1899); Johnson v. Maryland, 254 U.S. 51 (1920); Hunt v. U.S., 278 U.S. 97; and Arizona v. California, 283 U.S. 423 (1930). This immunity arises directly from the Constitution and requires no congressional action to effectuate it. The immunity does not,

74-70
however, extend to government contractors. Buckstaff Co. v. lVIcKinley,
308 u.s. 358, 362 (1939).
The Georgia Public Service Commission's proposed regulation described above does not attempt to regulate the Internal Revenue Service. The commission's regulation is directed to telephone companies that may have contracts with the IRS to provide telephone service. The possible claim that a regulation requiring telephone companies to publicly disclose the existence or use of listening devices places a burden upon the public information program of the IRS cannot be accepted. However, assuming, arguendo, that a burden exists, the existence of an indirect burden on the government of the United States will not, by itself, bring a contractor with the United States within the immunity granted the sovereign by the Constitution. Alabama v. King and Boozer, 314 U.S. 1, 9 (1941). It has been held that such burdens "are to be regarded as the normal incidents of the operation within the same territory of a dual system of government...." Penn Dairies v. Milk Control Commission, 318 U.S. 261, 271 (1942).
Absent constitutional immunity, there must be an express federal policy that the United States Government or its agencies shall not be indirectly burdened in a particular manner by state regulation. Penn Dairies v. Milk Control Commission, supra; Paul v. United States, 371 U.S. 285 (1962). Such a federal policy "is not lightly to be inferred and ought not to be implied where the legislative command, read in light of its history, remains ambiguous." Penn Dairies, supra at p. 275. To this date there has been no such expression of federal policy that would preclude the aforementioned regulation of telephone companies. On the contrary, the Freedom of Information Act, 5 U.S.C.A. 522, evidences a federal policy that information concerning agency procedures which directly affect the public should be accessible to them.
It is, therefore, my opinion that the Georgia Public Service Commission has the authority to require, by appropriate regulation, telephone companies under its jurisdiction to accurately indicate in a reasonable manner, by reference in their telephone directories, the fact that a subscriber is utilizing telephone service observing equipment and this requirement is enforceable even where the subscriber happens to be the IRS.

OPINION 74-70

To: State Superintendent of Schools

May 24, 1974

Re: The school laws of the State of Georgia do not prohibit a child from receiving his education in a school system other than that in which he resides.

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This is in reply to your letter of April 29 in which you asked our opinion as to whether a school system may provide an education for children whose parents and legal guardians do not reside within the boundaries of such system.
It is well recognized that the Constitution and laws of this state obligate local school systems to provide a free education to children residing within their respective jurisdictions. See Art. VIII, Sec. I, Par. I (Ga. Code Ann. 2-6401); Ga. Code Ann. 32-937 (amended by Ga. Laws 1961, p. 201). However, this obligation, specifying that which local school boards must do, does not in any way indicate or even hint that they cannot do more if they so desire. As early as 1907, the Supreme Court of Georgia stated in Edalgo v. Southern Railway Co., 129 Ga. 258, 266 (1907):
"The Constitution declares that the public schools shall be free to all the children of this state. When a system is provided where any child may be admitted free to a school in the territory where such child is domiciled, the mandate of the Constitution is satisfied. If a child desires to enter a school in any other territory, it is permissible to charge such child tuition for the privilege. The right of the school authorities to charge tuition for children who are nonresidents of the territory where the school is located has never been and cannot be seriously doubted."
If anything, that which the Supreme Court said in Edalgo would seem to be even more true today in light of Art. VIII, Sees. V and VII of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-6801 and 2-7001) which clearly vests the power to manage, operate and control local school systems in the local boards of education. It is consequently my opinion that insofar as state law is concerned,1 a local school system is at liberty to accept nonresident pupils if it so desires.

OPINION 74-71

'To: Director, State Merit System of Personnel Administration

May 24, 1974

Re: State Crime Laboratory employees and civilian employees of the Georgia Bureau of Investigation may not receive educational incentive pay statutorily authorized for "members" of the Georgia Bureau of Investigation.
1 It should be noted, of course, that this opinion proceeds on the assumption that racial questions are not involved. Quite obviously the acceptance of pupils in a situation which leads to increased racial segregation in a school system would raise "civil rights" issues under the Constitution and laws of the United States.

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This is in response to your request for information regarding educational incentive pay authorized for members of the GBI. You have asked these questions:
(1) Are employees of the State Crime Laboratory and other civilian employees of the Georgia Bureau of Investigation eligible for educational incentive pay authorized for "members" of the GBI?
(2) Is this eligibility contingent upon approval of the State Personnel Board?
(3) If the State Personnel Board abolishes incentive pay as a separate salary component for GBI agent class titles, but authorizes procedures by which an individual changing from the military to the merit system pay plan will be allowed to include incentive pay in determining the step at which he will be appointed, may civilians and State Crime Laboratory employees continue to receive incentive pay?
As your second and third inquiries are predicated upon the resolution of the question of eligibility for educational incentive pay, attention will initially be directed to that matter.
As indicated in your first question, certain educational incentive pay is authorized for members of the Georgia Bureau of Investigation. Ga. Laws 1971, p. 309 (Ga. Code Ann. 92A-208) provides that:
"Incentive pay increases shall be granted, subject to availability of appropriated funds or grants, to those members of the Uniform Division of the Department of Public Safety and those members of the Georgia Bureau of Investigation who have obtained degrees or certificates from an accredited member of the Federation of Regional Accrediting Commissions of Higher Education, to be paid as follows:
"(i) Completion of at least one year of degree-creditable college study consisting of the equivalent of 30 semester hours of education: $300 per year.
"(ii) Associate, or two-year degree, or certificate: $400 per year.
"(iii) Bachelor's or four-year degree: $800 per year."
Obviously, the determinant of eligibility for this incentive pay is the scope of the term "member of the Georgia Bureau of Investigation." In accordance with Ga. Laws 1949, p. 1177, as amended (Ga. Code Ann. 92A-305 and 92A-306), no person shall be eligible for appointment as an agent for the Bureau of Investigation until he has served for a minimum period of 12 months in the Uniform Division of the Department of Public Safety or a minimum of three years as a law enforcement officer or has completed one year of college education including studies relating to criminal justice. One who has been appointed a GBI agent pursuant to these requirements is patently a member of the GBI.

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These exclusionary sections are subject to the proviso that (1) the Director of the Crime Laboratory and such male members of his staff as may be deemed necessary to the performance of their duties shall be sworn in as "special agents" of the Georgia Bureau of Investigation for that purpose, and (2) five persons who do not meet the aforementioned qualifications may be appointed "limited agents." Ga. Laws 1949, p. 1177, as amended (Ga. Code Ann. 92A-306).
It is significant that "special" agent status is conferred upon crime laboratory personnel as is necessary for the performance of their duties and "for that purpose" only. Such status was apparently established as a convenience factor and would not clothe those personnel with the responsibilities and authority of a regularly appointed agent. A similar construction accrues to the "limited" status of a "limited agent" not possessing of those qualifications required of an agent for the Georgia Bureau of Investigation. The restrictive tenor of this statutory language would seem to deny any implied authority or privileges afforded the statutorily appointed agent.
That such special and limited agents are not accorded the complete status of agents and are therefore not members of the GBI appears consistent with the legislation embodying the incentive pay provisions for members of the GBI and the Uniform Division of the Department of Public Safety. Ga. Laws 1971, p. 309, as amended (Ga. Code Ann. 92A-208), distinctly segregates members of the GBI and the Uniform Division from such other departmental employees as radio operators, license examiners, and recruits. This exclusive language suggests a narrow interpretation of membership to include those agents qualified and appointed in accordance with Ga. Code Ann. 92A-305 and 92A-306. See Op. Att'y Gen. 72-157.
In addition, the designation of "incentive" ascribed to the payments authorized for achievement of certain educational objectives is a distinctive description that should not be disregarded. The wording of Ga. Code Ann. 92A-208 specifies "incentive pay increases" for those members of the GBI and the Uniform Division of the Department of Public Safety who complete certain periods of college study. Such a program is obviously directed at upgrading the educational levels of the ranks of the state law enforcement officers whose basic qualifications for appointment to the GBI and the Uniform Division do not require the amounts of college achievement necessary for receipt of incentive pay. Ga. Code Ann. 92A-216 (Ga. Laws 1937, p. 322; 1949, p. 70) and 92A-305. Consequently, the- very intent and purpose of this pay as a stimulous would be vitiated if sanctioned for those crime laboratory and other personnel occupying positions available only to college graduates.
It should be noted that Senate Bill496 (Ga. Laws 1974, p. 109; Ga. Code Ann. 40-35212 to 40-35220), reorganizes the Department of

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Public Safety by creating as a separate department and agency the Georgia Bureau of Investigation. The bill also transfers the State Crime Laboratory and its functions to the "new" GBI. However, the modifications of departmental structure effected by this bill prescribe no commingling of the personnel of the two units so as to designate all employees of the State Crime Laboratory as agents of the GBI. Such designation is still controlled by the appointment prerequisites mentioned above.
In consideration of the foregoing, it is my official opinion that members of the Georgia Bureau of Investigation eligible to receive educational incentive pay are those agents qualified and appointed in accordance with the requirements of Ga. Laws 1949, p. 1177, as amended (Ga. Code Ann. 92A-305 and 92A-306), excluding those special and limited agents appointed pursuant to the same statute. As this precludes the eligibility of the State Crime Laboratory employees and civilian employees, discussion of your remaining two inquiries is rendered unnecessary.

OPINION 74-72

To: State School Superintendent

.May 28, 1974

Re: School funds may be used to pay dues for membership in a professional organization if the school board and school system derive some tangible educational benefit from membership in the organization.

This is in answer to your letter of April 25 in which you ask whether it is legal to use school funds to pay dues "for the Georgia High School Association." In your letter you state that approximately 25 years ago the Attorney General rendered an opinion indicating that the payment of such fees was legal. Actually, the only opinion I have been able to locate on the point, Ops. Att'y Gen. 1951, p. 275, concluded generally that school funds could not be used to pay dues of board members or school superintendents in a "private organization." This opinion does not appear to go into the question of the nature of the "private organization."
Looking at the question again in light of contemporary views of what is and what is not a proper expenditure of school funds, I find that unfortunately this question is today not susceptible of a flat yes or no answer. The test as I see it is whether the expenditure can be said to be one which is made "for educational purposes." See, e.g., Wright v. Absalom, 224 Ga. 6 (1968). The question of school board membership in a professional organization would therefore turn on the precise function of that organization and whether any tangible educational benefits could be shown to accrue to the school board and school system from the board's membership in the organization.

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OPINION 74-73

To: Commissioner, Georgia Department of Community Development

May 28, 1974

Re: The Department of Community Development is not legally responsible for the manner in which Area Planning and Development Commissions utilize funds made available to them by the General Assembly through the Department of Community Development.

This is in reply to your letter of April 29 in connection with the grant of state funds to Area Planning and Development Commissions (APDCs) under a matching formula provided for in the budget report. These grants are made through the Department of Community Development which enters into agreements with the APDCs, disbursing the state grants to them in accordance with the budget's matching requirements. You ask for our opinion as to whether the Department of Community Development has any responsibility in connection with the administration of these grants other than insuring that the required local matching requirements are met.
My answer is in the negative for several reasons. First of all, it must be observed that APDCs are basically self-governing entities. See, e.g., Ga. Laws 1970, pp. 321, 329-330 (Ga. Code Ann. 40-2917 et seq.). In Ops. Att'y Gen. 70-202 we pointed out that APDCs are not state agencies or political subdivisions. The controlling statute would appear to be Ga. Laws 1967, pp. 252, 258, as amended (Ga. Code Ann. 40-2907), which provides that:
"The [Georgia Department of Community Development] shall make available such funds as may be appropriated by the General Assembly for use by area or multi-county planning and development commissions which may now exist or may hereafter be established."
The word "shall" is usually construed as a mandate and hence would not appear to leave any discretion over the disbursement of such funds to the Department of Community Development based upon the department's views concerning the use of such funds by APDCs or the adequacy of their record-keeping procedures.

OPINION 74-74

To: Commissioner, Department of Public Safety

June 3, 1974

Re: Ga. Laws 1968, p. 425 (Ga. Code Ann. Ch. 68-21), contains the procedures which must be followed in issuing and revoking speed

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detection device permits, reissuing speed detection device permits, the grounds for refusing to issue speed detection device permits, and the sole method for revoking a speed detection device permit.

You have requested an official opinion concerning Ga. Laws 1968, p. 425, as amended by Ga. Laws 1970, p. 435 (Ga. Code Ann. Ch. 68-21). The specific questions pondered are:
1. What procedure must be followed in revoking a speed detection device permit?
2. Does an executive order suspending or revoking traffic enforcement powers of a local government unit automatically revoke a speed detection device permit issued to that local government unit?
3. If a local government unit's speed detection device permit has been revoked, what procedure must the local government follow in attempting to have its permit reissued?
4. What authority does the Department of Public Safety have to refuse to issue a speed detection device permit?
5. May a local government unit's speed detection device permit be amended to include additional federal and state highways within that city's traffic jurisdiction?
In order to answer these questions, it is necessary to scrutinize Ga. Laws 1968, p. 425 (Ga. Code Ann. Ch. 68-21), which provide when and in what manner counties and municipalities may employ speed detection devices.
Before a speed detection device may be employed by a local government unit, the governing authority of that local government unit must submit an application to the Department of Public Safety requesting a speed detection device permit. Ga. Laws 1968, p. 425, as amended by Ga. Laws 1970, p. 435 (Ga. Code Ann. 68-2101). Procedures to be followed in submitting applications are found in the Rules and Regulations of the Department of Public Safety, Chap. 570-7. The speed detection device application must include the streets and roads on which the device shall be employed and such other information as the Department of Public Safety may by rule and regulation prescribe. No speed detection device permit may be issued unless the Division of Traffic Engineering and Safety of the State Department of Transportation has approved the designated speed limit posted for the roads and highways on which the device will be employed. Ga. Laws 1968, pp. 425, 426, 427, as amended by Ga. Laws 1970, pp. 435, 436 (Ga. Code Ann. 68-2102, 68-2104). If a speed detection device permit application has been submitted in proper form and contains all the requisite information, the permit should be issued to the requesting local government unit. If a local government unit desires to increase its speed detection powers by adding additional streets and highways

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to its permit it may submit an application to the Department of Public Safety following the procedures referenced above and specifically delineated in Ga. Laws 1968, pp. 425, 426, 427, as amended by Ga. Laws 1970, pp. 435, 436 (Ga. Code Ann. 68-2102, 68-2104). Additional streets and highways may be specified by issuing a new speed detection device permit or by adding the new streets and highways to the original permit.
Provisions for revoking a speed detection device permit are found in Ga. Laws 1968, pp. 425, 427, 428 (Ga. Code Ann. 68-2108 to 68-2110). This statute, which specifies the sole method for revoking a speed detection device permit, provides that upon any complaint alleging that a local government unit is employing speed detection devices primarily for revenue generation rather than for purposes of pubHc safety an investigation into such complaint by the Commissioner of Public Safety will be ordered. When the Commissioner of Public Safety completes the investigative report it is submitted, along with the commissioner's recommendations, to the Governor, who in turn furnishes a copy to the authorities of the affected local government unit. The Governor then schedules a hearing on the matter to be conducted before a board composed of the Governor, the Secretary of State, and the Attorney General. At least 10 days' notice of such hearing must be given to the authorities of the affected local government unit. Following the hearing, the board is required to make a determination as to whether the local government unit has been employing its speed detection devices for revenue generation rather than for purposes of public safety. If the board determines that revenue generation is the purpose for employing speed detection devices the Governor then issues an executive order revoking the speed detection device permit. Ga. Laws 1968, pp. 425, 428 (Ga. Code Ann. 68-2110).
As you have noted in your request, Ga. Laws 1953, Nov.-Dec. Sess., pp. 556, 579, as amended by Ga. Laws 1968, p. 1422 (Ga. Code Ann. 68-1628), provides for suspension or revocation of a local government unit's power to enforce traffic laws on state and federal highways, via procedures which are very similar to those contained in Ga. Laws 1968, p. 425 (Ga. Code Ann. Ch. 68-21). However, the revocation procedures of Ga. Laws 1953, Nov.-Dec. Sess., pp. 556, 579, as amended by Ga. Laws 1968, p. 1422 (Ga. Code Ann. 68-1628), are wholly independent of the procedures provided in the "Speed Detection Device Statute," and, therefore, any action pursuant to one statute has no legal effect on powers governed by the other. Thus, it is conceivable that a local government unit may have its power to enforce traffic laws on state and federal highways withdrawn but still possess a valid speed detection device permit. This creates a unique situation in which the local government can use the speed detection device, but it cannot enforce traffic laws based on information gathered by the device.

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If the procedures set forth above result in revocation of a speed detection device permit, the affected local government unit may, after the expiration of six months, petition the Governor for permission to once again employ speed detection devices. Such a petition must allege changed circumstances. Ga. Laws 1968, pp. 425, 429 (Ga. Code Ann. 68-2111). The Governor has the discretion to act or not to act upon a petition for reissuance. If he determines to take action he may direct that the Commissioner of the Department of Public Safety, or his delegate, make an inquiry into the alleged changed circumstances and submit a report, together with recommendations to the Governor. Following receipt of the report and recommendations, the Governor may either order a new hearing before the board or may, without hearing, issue an executive order directing the Department of Public Safety to issue a speed detection device permit to the local government unit in question. Subsequent petitions for rehearing and reissuance of a permit may be made at six-month intervals. Ga. Laws 1968, pp. 425, 429 (Ga. Code Ann. 68-2112).
Based upon the preceding discussion, the answers to your questions are as follows:
1. The procedure which must be followed in revoking a speed detection device permit is found in Ga. Laws 1968, pp. 425, 427, 428 (Ga. Code Ann. 68-2108 to 68-2110) and includes investigation, notice and opportunity to be heard.
2. The only manner in which a speed detection device permit may be revoked or suspended is by an executive order specifically directing such revocation or suspension pursuant to the revocation procedures of Ga. Laws 1968, pp. 425, 427, 428 (Ga. Code Ann. 68-2108 to 68-2110).
3. Once a local government unit's speed detection device permit has been revoked, it may only be reinstated subsequent to a petition for reconsideration filed pursuant to Ga. Laws 1968, pp. 425, 429 (Ga. Code Ann. 68-2111, 68-2112).
4. The Department of Public Safety may refuse to issue a speed detection device if the requisite procedure and information has not been followed and submitted by the applicant, such procedure and information being that required by Ga. Laws 1968, pp. 425, 426, 427, as amended by Ga. Laws 1970, pp. 435, 436 (Ga. Code Ann. 68-2102, 68-2104).
5. If a proper application has been made pursuant to Ga. Laws 1968, pp. 425, 426, 427, as amended by Ga. Laws 1970, pp. 435, 436 (Ga. Code Ann. 68-2102, 68-2104), to add additional streets and highways to a speed detection device permit, such addition may be accomplished by issuing a new permit or by adding the new streets and highways to the original permit.

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If you have any additional questions concerning the operation and effect of Ga. Laws 1968, p. 425 (Ga. Code Ann. Ch. 68-21), please do not hesitate to contact me concerning the same.

OPINION 74-75
To: Secretary of State, Commissioner of Securities June 6, 1974
Re: I. A real estate syndication, whatever its legal form, will be a security under the Georgia Securities Act of 1973 (Ga. Laws 1973, p. 1202; Ga. Code Ann. Title 97) if, as a matter of economic reality, the investor's return is essentially dependent upon the efforts of the syndicator or an affiliate.
II. A syndicator may sell interests to 40 investors in any 12-month period utilizing the small issue registration procedure of Section 5 (d) and the registration exemption of Section 9 (m) of the Georgia Securities Act of 1973. If this is done in such a way that purchasers pursuant to Section 9 ~m) are not clearly identifiable, all investors must be accorded the rights and disclosures provided for in Section 5 (d).
III. A syndicator, in determining the number of investors to whom he has sold, must count every person, including himself, who has purchased an interest which is a security and is part of a common plan of financing.
IV. A general partner or executive officer of a real estate syndication who receives remuneration for the sale of securities on behalf of the syndication is a salesman or dealer as defined by the Georgia Securities Act whatever the form of remuneration.
You have indicated to me that there is an increasing awareness among real estate syndicators in this state of the applicability of the Georgia Securities Act to their activities. You have written me several letters requesting my opinion concerning the extent to which real estate syndications should be regulated as securities and the manner in which they should be regulated. I have taken the liberty of combining several of those requests into this single opinion, believing it will be more helpful to you and to the public to consolidate my responses into a single reply.
I. Is it a security?
The threshold question which must be asked before it can be determined whether you as Commissioner of Securities have any interest in this area, is whether or not interests in real estate syndications are securities. It is my opinion that most real estate syndications will involve the sale of securities and be subject to the Georgia Securities Act.

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For the purposes of this opinion, I am using the term "syndication" to encompass any arrangement whereby a group of people are brought together to purchase real estate and hold, develop or resell it for a profit. Such a syndication can obviously be undertaken in many forms. If organized in the form of a corporation, investment trust or limited partnership, the interests to be sold are explicitly defined as securities by Section 2 (a) (16) (Ga. Code Ann. 97-102 (a) (16)) of the Georgia Securities Act of 1973 (hereinafter the Act).l
Other possible legal structures, such as tenancy-in-common arrangements and subdivisions into small parcels, must be judged on the basis of whether they come within one of the more general definitional terms of Section 2 (a) (16) such as "investment contract," "certificate of interest or participation in any profit-sharing agreement" or "any other instrument commonly known as a security."
Unquestionably, a sale of an interest in real estate is not, of itself, a sale of a security. The courts have long recognized, however, that a transaction which purports only to be a sale of real estate can, when the economic realities of the transaction are examined, be determined to be a security. See S.E.C. v. C. M. Joiner Leasing Corp., 320 U.S. 344 (1943); S.E.C. v. W. J. Howey Co., 328 U.S. 293 (1946); S.E.C. v. Federal Shopping Way, Inc., 433 F.2d 149 (9th Cir. 1970).
The rule which has developed is that any investment will be deemed un investment contract and a security if the investor's return is essentially dependent upon the efforts of the syndicator or an affiliate. S.E.C. v. Glenn W. Turner Enterprises, 474 F.2d 476 (9th Cir. 1973); cert. den.-U.S.-42 U.S.L.W. 3194 (1973).
In the past several years, both this office and the United States Securities Exchange Commission have expressed the opinion that real estate transactions, whatever their form, will be considered securities if they are organized and marketed in such a way as to become investment contracts. See Op. Att'y Gen. U71-118 (Sept. 10, 1971); Op. Att'y Gen. 68-403 (Sept. 20, 1968); Securities Exchange Commission Release No. 5347 (Jan. 10, 1973); Securities Exchange Commission Release No. 4877 (Aug. 8, 1967).
Following the opinions and cases cited above, it is my official opinion that any real estate syndication that is structured or marketed in such a way that the investor anticipates that he will realize returns based on the efforts or expertise of the syndicator or some affiliate is a security under the Georgia Securities Act.

1 Limited partnership interests were not explicitly defined as securities under the former Georgia Securities Act of 1957, as amended, but as the subsequent discussion will show, such an interest is unquestionably an "investment contract" which was defined to be a security under the 1957 Act as it is under the 1973 Act.

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II. Small issue registrations and exemptions.
You indicate in your request for opinion that many real estate syndicators have expressed an interest in selling interest pursuant to the exemption from registration set forth in Section 9 (m) of the Act and the small issue registration procedure set forth in Section 5 (d) of the Act. (Ga. Code Ann. 97-109 (m), 97-105 (d); amended by Ga. Laws 1974, p. 284). You have asked me to render an opinion concerning the interrelationship of these two sections of the Act. Though the same principles would apply to other types of securities, my answer to this request will address itself specifically to interests in real estate syndications.
Section 9 (m) of the Act provides for an exemption from registration for:
"Any transaction involving the issuance or sale of securities of an issuer by or on behalf of an issuer or an affiliate of an issuer if all of the following conditions are met:
"(1) The aggregate number of persons purchasing such securities from the issuer and all affiliates of the issuer pursuant to this subsection during the 12-month period ending on the date of such issuance or sale shall not exceed 15 persons exclusive of persons who acquire securities in transactions which are not subject to this Act or are otherwise exempt from registration ... or which have been registered pursuant to Section 5 of this Act."
Section 5 (d) of the Act provides for a small issue registration procedure for:
"Sales of securities by or on behalf of an issuer or an affiliate of an issuer . . . pursuant to a registration statement filed under this subsection (d); provided, however, that the aggregate number of persons purchasing securities registered under this subsection (d) from the issuer and all affiliates of the issuer during any 12-month period shall not exceed 25 persons, exclusive of persons who acquire such securities in transactions which are not subject to this Act or which are otherwise exempt from registration ... or which have been registered pursuant to Sections 5 (a) or 5 (c)."
You have asked me if a syndicator can use the two sections of the Act stated above to sell interests to 40 persons during a 12-month period. It is my official opinion that he can. Since Section 9 (m) provides for sales to 15 persons exclusive of those who buy securities registered under Section 5 and Section 5 (d) provides for sales to 25 persons exclusive of those who purchased pursuant to an exemption of Section 9, the statute seems to clearly contemplate that these two sections are cumulative.

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You have also asked for my opinion concerning how a syndicator, if he were to decide to sell under both the Section 9 (m) exemption and Section 5 (d) registration, can satisfy the different requirements of the two sections. The most obvious method would be to sell those interests which the syndicator desires to sell pursuant to Section 9 (m) first, then cease selling, register additional securities pursuant to Section 5 (d) and sell these securities pursuant to Section 5 (d).
You have indicated in your request for opinion that you have received an inquiry whether it would be possible to sell up to 40 interests concurrently. The Act does not explicitly set forth any method for conducting combined offerings under Sections 9 (m) and 5 (d). It is thus necessary to "look diligently for the intent of the General Assembly, keeping in view, at all times, the old law, the evil and the remedy." Ga. Code 102-102 (9). This intent is to be determined by considering the statute as a whole and construing its parts in such a way as to effectuate its overall purpose. Freeman v. Woodmen of the WorldLijeins.,200Ga.1 (1945).
A potential problem with a combined offering under Sections 9 (m) and 5 (d) is the practical difficulty in determining which purchasers have purchased securities pursuant to the 9 (m) exemption and which purchasers have purchased securities registered pursuant to the 5 (d) registration. It is my opinion that this difficulty can be overcome consistently with the intent of the General Assembly if every offer and sale complies with all of the requirements of both Section 9 (m) and Section 5 (d).
The purpose of the Act is to insure that, to the maximum extent practicable, all of the information which the investor needs to make an informed investment decision is disclosed to him. llecognizing that the detailed disclosure mandated for a full registration under Section 5 (a) of the Act is often not practicable for small issues of securities, the Act allows less formal disclosures when the number of purchasers and the scope of the offering are appropriately limited.
In the case of sales pursuant to the Section 9 (m) exemption from registration, no formal disclosure document is required and the full disclosure standard of Section 12 of the Act may be satisfied in any manner that the seller sees fit. This exemption is conditional, however, on there being no more than 15 purchasers in any 12-month period, there being no publicly disseminated sales materials, appropriate legends being placed on certificates and an investment letter being signed by each purchaser.
In the case of sales pursuant to a Section 5 (d) registration, a formal disclosure document is required, but the document may omit certain information required when there is a full registration pursuant to Section 5 (a). An investment letter and legend are required as is the case under Section 9 (m), but there is no prohibition against public

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advertising and there may be up to 25 purchasers in a 12-month period. Additionally, a purchaser of securities registered pursuant to
Section 5 (d)is entitled to notice in the disclosure document that he has an unconditional right to rescind his purchase for 72 hours. There is no such disclosure or right of rescission in the case of sales pursuant to the Section 9 (m) exemption.
In light of the purposes and structure of the Act, it is my opinion that it would be consistent with the intent of the General Assembly as manifested in the Act as a whole for a syndicator to sell interest to 40 persons concurrently if the investor is afforded the disclosures and rescission right of Section 5 (d), the prohibitions against public advertising of Section 9 (m) are observed and the legend and investment letter provisions of the two sections are complied with.
III. Who must be counted?
Next, you have asked me to render an opmwn concerning who must be counted in determining whether the maximum number of purchasers pursuant to Section 9 (m) or Section 5 (d) has been exceeded. The same principles should apply in both instances.
First, you have asked if the syndicator and his affiliates must be counted as purchasers if they obtain or retain an interest. It is my opinion that they must be so counted if they purchase or retain an interest which is a "security" under the Act.
Section 2 (a) (7) (Ga. Code Ann. 97-102 (a) (7)) sets forth the following definition:
" 'Issuer' means every person who issues or proposes to issue any security ... except that in the case of an unincorporated association which provides by its articles for limited liability of any or all of its members, or in the case of a trust, committee, or other legal entity, the trustees or members thereof shall not be individually liable as issuers of any security issued by the association, trust, committee, or other legal entity...."
From the foregoing it is apparent that the syndicate (i.e., the limited partnership, joint venture, joint tenancy, etc.) and not the syndicator is to be considered the issuer in the case of a -real estate syndication.2 Cf., H.R. Rep. No. 1838, 73rd Cong., 2nd Sess. 39 (1934), CCH Fed. Sec. L. Rep. Par. 1281.13 (respecting identical language in the federal securities Act) ; Loss, Securities Regulation Ch. 3A (b).

2 This is not to say, of course, that the syndicator cannot be held civilly and criminally liable as a conspirator, aider, abetter or party with the "issuer" syndication. See, e.g., S.E.C. v. National Bankers Life Insurance Co., 324 F. Supp. 189 (N.D. Tex. 1971). Liability as an "underwriter" is also quite possible. See Section 2 (a) (20) of the Act (Ga. Code Ann. 97-102 (a) (20)).

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Since the syndicator and his affiliates are not "issuers" as defined by the Act, they are necessarily purchasers of any securities which they obtain and must be counted in computing how many interests have been sold.
Another problem in computing the number of purchasers arises when a syndicator is involved in organizing and operating more than one syndication. The question is, must the interests which are sold in these various syndications be added together in determining eligibility for exemption pursuant to Section 9 (m) and registration pursuant to Section 5 (d) of the Act.
Since, as previously discussed, the syndication rather than the syndicator is normally considered the issuer, each syndication may be entitled to sell15 interests pursuant to the Section 9 (m) exemption and 25 interests pursuant to a Section 5 (d) registration. It should be noted, however, that purportedly separate syndications can easily lose their entitlement to be considered as separate issuers if they are not promoted and operated as bona :fide separate entities. It is obvious that syndicators cannot be allowed to avoid registration under the Act by dividing a single plan of financing into portions which are small enough to qualify for small issue treatment.
To handle this problem, the United States Securities Exchange Commission and the federal courts have developed the doctrine of "integration." Under this doctrine, purportedly separate issues will be combined in appropriate circumstances and be denied exemptions to which they would be entitled if considered separately. See, e.g., United States v. McGuire, 381 F.2d 306 (2nd Cir. 1967); Shaw v. U.S., 131 F.2d 476 (1942); S.E.C. v. Bilsborough Inv. Corp., 173 F. Supp. 86 (D.N.H. 1958); Property Investments, Inc. (Sec. 1972), CCH Fed. Sec. L. Rep. Dec. paragraph 79,210; Unity Gold Corp., 3 S.E.C. 618, 625 (1938).
In determining whether or not purportedly separate issues should be integrated, the Securities Exchange Commission considers the following questions:
(1) Are the purportedly separate issues part of a single plan of financing?
(2) Are the securities of the same class?
(3) Are the securities sold at approximately the same time?
(4) Is the same type of consideration to be received?
(5) Are the sales made for the same general purpose? S.E.C. Release Number 33-4552 (1972), 27 F.R. 11,316, CCH Fed. Sec. L. Rep. Para. 2770, 2781; S.E.C. Release Number 33-4434 (1961), 26 F.R. 11,896, CCH Fed. Sec. L. Rep. Para. 2270, 2272.

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It is my opinion that the same considerations apply under Georgia law.
In addition to the general guidelines adopted by the Securities Exchange Commission, it is my opinion that it would also be appropriate, particularly in the context of real estate syndications, to consider the extent to which the various projects being syndicated are interrelated. For example, you should be inclined to integrate syndications of adjacent parcels of land or parcels of land whose value is dependent upon something the syndicator undertakes to do either in his own name or through other syndications.
Finally, it is my opinion that integration would be virtually demanded if the syndicator commingles funds and other assets belonging to purportedly separate syndications. Such commingling reduces the separate syndications to the level of mere window dressing and would preclude treatment of the syndications as separate entities in determining the number of purchasers to which sales have been made.
IV. Registration as dealers and salesmen.
You have also asked me to render an opinion clarifying the status of a general partner or executive officer of a land syndication with respect to the portion of the Georgia Securities Act requiring registration of dealers and salesmen of securities.
Section 3 of the Act (Ga. Code Ann. 97-103) forbids any dealer, limited dealer, salesman or limited salesman to sell securities within the state unless he registers with the Commissioner of Securities.3 Section 2 (a) (16) of the Act defines a "salesman" as "an individual other than a dealer or a limited dealer registered under this Act, employed or appointed or authorized by a dealer, or an issuer, to sell securities in this state." Section 2 (a) (5) defines a "dealer" as "every person other than a salesman registered under the Act, who engages, either for all or part of his time, directly or indirectly, as agent, broker, or principal in the business of offering, buying, selling or otherwise dealing or trading in securities issued by another person ...."
Both of these definitions then exclude from their scope any general partner of an issuer, any executive officer of any general partner of an issuer, or any executive officer of an issuer unless such person is paid a commission for the sale of such securities. Both definitions then provide:
3 There are certain exemptions from this registration requirement set forth in Section 9 of the Act. The only such exemption which would likely be of significance in the area of real estate syndication is Section 9 (g) which exempts sales to certain institutional investors. It should be noted at this point that sellers of securities which are exempt from registration under Section 9 (m) of the Act (the exemption for sales to 15 or fewer people within a 12-month period) are not exempt from the dealer and salesman registration requirements of the Act. Though such an exemption obtained under the Georgia Securities Act of 1973 as originally enacted, it was removed by the 1974 amendment to the Act. Ga. Laws 1974, p. 284.

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"Any remuneration paid which is directly related to the sale of securities shall be considered a commission for the purposes of this subsection."

Thus the critical question in determining whether the syndicator must register as a dealer or salesman to sell interests in his syndication is whether the remuneration he receives for his participation in the syndication is "directly related to the sale of securities."
To the best of my knowledge, this language is unique to the Georgia Securities Act of 1973, as amended in 1974. A definition of the word "salesman" was first introduced into the Georgia Securities Act in 1953. The definition excluded only partners and executive officers of dealers, but the exclusion was unconditional, notwithstanding the payment of commissions. Ga. Laws 1953 (Jan.-Feb. Sess.), pp. 423, 425. By Ga. Laws 1957, pp. 134, 135, the president or other head executive officer of an issuer was also excluded from the salesman definition. This definition, like the definition of the 1953 Act, said nothing about the earning of commissions.
In 1959 the legislature amended the definition of "salesman" to explicitly include "partners or other executive officers of an issuer offering securities for sale solely within this state." Ga. Laws 1959, pp. 89, 91. In Ga. Laws 1960, pp. 957, 958, the definition was amended to provide that partners and executive officers of issuers were excluded from the salesman definition "unless they are paid a commission for the sale of securities." The 1960 amendment also provided that no executive officer or director of an issuer would be required to stand an examination as a prerequisite for being a salesman, a provision which was deleted by Ga. Laws 1963, pp. 557, 558.
The definition enacted in 1963 survived intact and was adopted, without significant modification, in the original enactment of the Georgia Securities Act of 1973. Ga. Laws 1973, pp. 1202, 1207. It was not until the 1974 amendment to the Georgia Securities Act of 1973, Ga. Laws 1974, p. 284, that the term "commission" was defined as "any remuneration paid which is directly related to the sale of securi-
ties." Thus, legislative history evidences a continuing effort by the General
Assembly to strike an appropriate balance between allowing top executives to sell securities in their own corporations without being licensed and insuring that those whose livelihood comes from the sale of securities rather than the management of businesses will have to be
licensed. To my knowledge there is no Georgia judicial or administrative
ruling concerning when an executive officer of an issuer must be licensed to sell securities. I also am unaware of any ruling of any other jurisdiction which concerns exactly the language contained in the

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present Georgia statute. There have been, however, several administrative and judicial rulings concerning similar language in other securities statutes.
First, it should be noted that the word "commission" has always been used to connote a much broader category of financial gains in the securities area than when used in other contexts. Compare Clements v. Peerless Woolen Mills, 197 Ga. 296 (1944) with Van Tine v.Hilands, 131 F. 124 (CC S.D.N.Y. 1904). See also SEC Rule 141 which defines the word "commission" to include "spread" or "profit" on a securities transaction. Such a distinction is no doubt a recognition of the fact that the form of a securities transaction is easily manipulated by those involved in it and is a necessary corollary of the well established principle of securities law that "form should be disregarded for substance and the emphasis should be on economic reality." Tcherepnin v. Knight, 389 U.S. 332, 336 (1967); quoted Georgia Market Centers, Inc. v. Fortson, 225 Ga. 854, 858 (1969).
The case of Commonwealth v. Harrison, 137 Pa. Super. Ct. 279 (1939), 8 A.2d 733, is closely in point to our present inquiry. The applicable Pennsylvania statute said that a corporate agent would not be required to register as a dealer of securities if he sold securities of his corporation "without any commission or fee." Certain corporate agents exchanged their corporation's stock for other securities which they pledged for their personal benefit. The Pennsylvania court held that this made them "dealers" because they failed to turn over the entire proceeds of the sale and thus profited from the transaction.
Similar language was also found in the federal securities law enacted in 1933. It provided an exemption from registration for "any securities exchanged by an issuer with its existing securities holders exclusively where no commission or other remuneration is paid or given directly or indirectly in connection with such exchange." Securities Act of 1933 4 (3) (as originally enacted), 48 Stat. 74, 77. (Emphasis added.)
The chief of the securities division of the Federal Trade Commission4 issued an official interpretation that the italic language in the above-quoted statute excludes "expenses" incident to the mechanics of issuing a security but includes any payment in connection with "promotional" activity. CCH Fed. Sec. L. Rep. ~ 2165.25. This administrative interpretation was confirmed by Congress at the next session. House Comm. Rep. No. 1838 (1934) (Conference Report) 73rd Cong. 2d Sess. p. 40 (CCH Fed. Sec. L. Rep. ~ 2165.105).
Like the federal statute, the Uniform Securities Act upon which the securities law of most states is based has no provision comparable to Georgia's salesman and dealer definition. It does, however, have a
4 Originally, the Federal Trade Commission was charged with administering the Securities Act of 1933 2 (5) (as originally enacted), 48 Stat. 74, 75.

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transaction exemption for offers directed at not more than 10 persons if "no commission or other remuneration is paid or given directly or indirectly for soliciting any buyer in this state." Uniform Securities Act 402 (b) (9). The official Code comment on this provision says that it:
"is not intended to preclude solicitation by directors or officers or employees of the issuers so long as it is only an incidental function of their regular duties and they receive no additional compensation. It is also relevant whether such persons are specifically hired in connection with the offering, particularly if they have a background in the securities business either as professional promoters or otherwise." Official comment on Uniform Securities Act 402 (b) (9) (Emphasis added.)
It is clear from the interpretations that have been given to similar language in other securities laws that the term "commission," particularly when further expanded to include any remuneration paid related to the sale of securities, should be given an expansive reading. It is therefore my official opinion that no person can be excluded from the definition of "dealer" or "salesman" by virtue of being a general partner or executive officer of an issuer if that person receives any compensation or profit for his efforts in selling securities.
The implication of this interpretation of the Georgia statute to the real estate syndicator and his agents is clear. Typically, the syndicator and his agents put together the entire package. They contract for the purchase of the land to be syndicated, arrange for the sale of the land to the syndication and set forth the terms of this sale, arrange for the sale of the syndication interests and who will sell the interest for what compensation, and arrange for whatever management there will be of the syndication and who will do the management for what compensation.
The question of how, when and in what form the syndicator will be compensated is a purely formal one which is entirely under the syndicator's control. If a part of the syndicator's efforts are directed toward promoting and marketing the syndication, his compensation or profit is, at least in part, directly related to his sales efforts.
Only if the syndication is successfully marketed can there be any possibility of a profit on the sale of the land to the syndication, a real estate commission, management fees or any other remuneration to the syndicator. If the sale of the syndication interests is successful, the profit, real estate broker's commission, management fee or other compensation is assured. In such a situation, the mandate to disregard the form of a securities transaction for the substance requires the conclusion that any compensation received by the syndicator is, as a matter of economic reality, directly related to the sale of securities.

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It is therefore my official opinion that a general partner or executive officer of a real estate syndication should not be excluded from the definition of "salesman" or "dealer" under the Georgia Securities Act of 1973 merely because he receives his compensation or profit in the form of a profit on sales to the syndication, a real estate brokerage commission, a management fee, or some other form which is not an explicit commission for the sale of securities.
V. Conclusion.
In summary, it is my official opinion that real estate syndications and syndicators are, as a general rule, subject to the Georgia Securities Act. Unless some exemption is available, both the syndication interests and the sellers of such interests are required to be registered with the Commissioner of Securities. Unregistered syndication interests can be sold to 15 persons, but in most cases the sellers will be required to be registered securities dealers or salesmen. In determining how many persons have bought interests, all sales which are part of a common scheme of financing must be integrated. Up to 40 interests in a syndication can be sold concurrently if all investors are accorded the rights and disclosures provided for in Section 5 (d) of the Act.

OPINION 74-76

To: Joint Secretary, State Examining Boards

June 7, 1974

Re: (1) Subsequent to December 31, 1974, applicants for professional engineer registration under Section 18 (b) of Ga. Laws 1945, p. 294, with less than 12 years experience may not be admitted to professional engineer examination.
(2) Subsequent to December 31, 1974, no applicant for registration as a professional engineer may be admitted to professional engineer examination under Section 18 (d) of Ga. Laws 1945, p. 294.

This is in reply to your request on behalf of the State Board of Registration for Professional Engineers and Land Surveyors for my opinion on the proper interpretation of Section 18 of Ga. Laws 1945, p. 294, as amended by Ga. Laws 1972, p. 222 (Ga. Code Ann. 84-2122), which establishes the minimum qualifications for registration as a professional engineer.
The 1972 amendments to Section 18 had the effect of making more stringent the requirements necessary to qualify for registration as a professional engineer. Prior to the 1972 amendments, an applicant who had not completed an academic engineering curriculum of four years qualified under Section 18 (b) for registration as a professional engineer by successfully passing an examination to establish knowledge

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and skill equivalent to that acquired by four years of academic training and by establishing the attainment of not less than eight years experience in engineering work. The 1972 amendments amended Section 18 (b) so that in pertinent part it now requires an applicant who has not completed a board-approved academic engineering curriculum of four years to meet the following criteria:
"Successfully passing . . . [an] examination designed to show knowledge and skill, approximately that attained through graduation in an approved engineering curriculum of four academic years (engineer-in-training examination); successfully passing a written examination in the principles and practice of engineering (professional engineers examination); and a specific record of 12 years or more of experience in engineering work.... Provided, however, that applicants qualified under this subsection will be permitted to take the engineer-in-training examination after eight years of approved experience...."
Section 18 (b) as amended in 1972 thus requires at a minimum that an applicant who has not completed a four year academic engineering curriculum sequentially acquire eight years experience in engineering work, pass the engineer-in-training examination, acquire an additional four years experience, and pass the professional engineer examination.
Your first inquiry relates to the exception to this minimum standard contained in the final proviso to Section 18 (b), which reads:
"Provided further that prior to January 1, 1975, applicants so qualified will be permitted to take both the engineer-in-training and the professional engineer examinations after eight years of approved experience and if otherwise qualified."
Your questions concerning this provision relate to the phrase "prior to January 1, 1975." One construction of the provision is that the phrase modifies the entire subsequent declaration so that applicants with eight years experience will be permitted to take both examinations prior to that date but will not thereafter be permitted to take the professional engineer examination prior to acquiring 12 years experience. The other, raised as a possibility by the board, is that the phrase modifies only the words "so qualified" so that applicants who acquire eight years experience, and thus are "so qualified," prior to January 1, 1975, will thereafter be permitted to take both examinations when and as often as they desire.
It is my opinion that the language employed by the General Assembly in Section 18 (b) is not ambiguous. The language employed permits only one construction-that prior to January 1, 1975, applicants who have acquired eight years experience will be permitted to take both the engineer-in-training and professional engineer examinations. If

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the applicant with eight years experience either does not take the professional engineer examination prior to that date or does not pass the examination taken before that date, then the applicant must acquire an additional four years experience before he again becomes eligible to take the professional engineer examination.
The board points out that its Rule 180-13-.01, Official Compilation, Rules and Regulations of the State of Georgia, permits an applicant whose application for examination has been approved by the board to take the next four consecutive offerings of that examination before he is required to refile. To the extent there is a conflict between this regulation and Section 18 (b), the statute, of course, would prevail and the regulation could not confer on an applicant benefits proscribed by statute.
The board also posed a series of questions concerning subsection (d) of Section 18, which was added by Ga. Laws 1972, p. 222. Prior to the amendments, Section 18 (c) permitted an applicant who had no academic training to obtain registration as a professional engineer upon demonstrating 12 years of practice in engineering work. The 1972 amendments eliminated this method of obtaining registration. In its stead, the 1972 amendments added a new subsection (d) of Section 18 which permits registration without academic training upon demonstration of 16 years of practice in engineering work and passing the professional engineer examination. However, subsection (d) contains the following:
"Provided, however, that no professional engineer shall be registered on the basis of the provisions of this subsection (d) after December 31, 1974."
Section 18 (d) by its own terms clearly prohibits professional engineer registration under its terms after December 31, 1974. An applicant who has acquired the requisite 16 years experience prior to December 31, 1974, but who has not taken or has not passed the professional engineer examination administered prior to that date, may not thereafter be admitted to the professional engineer examination unless he meets the qualifications of one of the other provisions of Section 18.
The question posed by the board relates to the possibility that an examination, from the board's scheduled November 1974 examination session, by an applicant who meets the qualifications of Section 18 (d) will not be graded until subsequent to December 31, 1974. If the board, because it is unable to meet the administrative burden of grading examinations, does not determine until after that date that the applicant has in fact passed the examination, does the proviso quoted above preclude registration? In my opinion, it does not.
The issuance of a registration is a ministerial function following the

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board's exercise in favor of the applicant, of its discretionary function of determining whether the applicant has met the requirements for registration. The reference in Section 18 (d) to "registration" cannot be reasonably construed to encompass the ministerial function of issuing a registration certificate or, for the same reason, the function of the board in grading an examination. A contrary construction would lead to the inexplicably harsh consequence that an applicant who met all substantive qualifications under Section 18 (d) could not be registered because, for whatever reason, the board had been unable to complete the physical act of registration or the grading process. A statute wiU not be construed in such a manner that it produces absurd consequences. See, e.g., Pope v. United States Fidelity & Guaranty Co., 198 Ga. 304, 307 (1944); Roberts v. State, 4 Ga. App. 207 (1908); Ga. Code 102-102, ~ 6. Instead, the reference to "registration" in Section 18 (d) must relate to the applicant's meeting the substantive qualifications imposed by it-acquiring 16 years experience and passing the examination and not on whether the board is able to complete either its discretionary determination of whether the applicant has passed the examination taken prior to December 31, 1974, or the ministerial function of issuing a registration prior to that date.
The board also inquires as to the effect of its Rule 180-13-.01 with respect to applicants who have qualified to take the examination but who have not exhausted the permission granted by Rule 180-13-.01 to take four successive examinations on the basis of that application. Again, the board's rules may not grant to an applicant a benefit denied by statute. Section 18 (d) conditions the issuance of a registration under that provision to successfully passing the professional engineer examination prior to December 31, 1974. The regulation may not vary the statutory requirement.
While it is my opinion that the courts would place this construction on Section 18 (d) in the circumstances outlined above, it is obviously an undesirable course for the board, for whatever reason, to place any person registered under Section 18 (d) in a position where he may have to defend his license on that issue. Especially is this true when the issue may be avoided by courses of action available to the board in dealing with applicants under Section 18 (d).

OPINION 74-77

To: Joint Secretary State Examining Board

June 7, 1974

Re: (1) State Board of Registration for Professional Engineers and Land Surveyors may enforce under Section 34 (b) of Ga. Laws 1945, p. 294, as amended, the Code of Ethics adopted by the board on November 9, 1967.

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(2) The board has the power to adopt and enforce additional standards governing the professional conduct of persons licensed by it.

This is in reply to a request on behalf of the State Board of Registration for Professional Engineers and Land Surveyors on whether that board has adopted, or may adopt, rules governing the professional conduct of professional engineers and land surveyors licensed by it enforceable under Section 34 of Ga. Laws 1945, p. 294 (Ga. Code Ann. 84-2140 (b)).
Section 34 (b) of that Act, as amended by Ga. Laws 1972, p. 222, provides that the board may discipline a person licensed by it who is found guilty of "unprofessional conduct." That section then defines the term "unprofessional conduct" as
"a violation of those standards of ethics and professional conduct for professional engineers and land surveyors which have been adopted and promulgated hitherto by the board pursuant to the power conferred upon it to promulgate rules and regulations...." Ga. Code Ann. 84-2140. (Emphasis added.)
The statutory reference to external standards poses no question. Johnston v. State, 227 Ga. 387 (1971); Featherstone v. Norman, 170 Ga. 370, 393 (1930); Green v. City of Atlanta, 162 Ga. 641 (1927). Instead, the issue presented in your request as to whether the board has adopted enforceable standards involves ascertaining the extrinsic material to which reference was made.
This issue arises because, in fact, prior to the approval of Ga. Laws 1972, p. 222, on March 16, 1972, the sole then extant reference in the official compilation of the rules of the board to a Code of Ethics is contained in Rule 180-10-.01 which in pertinent part provides:
"In defining misconduct in the practice of professional engineering by a registered professional engineer, the board will consider, among other things, the Code of Ethics adopted by the board." Rule 180-10-.01, Official Compilation, Rules and Regulations of the State of Georgia. 1
Again, the adoption by reference in the board's regulation poses no issue other than ascertaining the external material to which reference is made.
I have been informed that the board on November 9, 1967 adopted as part of its bylaws the Code of Ethics published by the National Council of Engineering Examiners, and that the action of the board

1 The board had adopted rules governing technical standards for land surveyors (Ch. 180-12, Official Compilation, Rules and Regulations of the State of Georgia), and certain of its rules specifically governed limited aspects of the professional conduct of professional engineers. See, e.g., Rule 180-9-.03, Official Compilation.

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is reflected in the official minutes of that meeting. The Code of Ethics so adopted was subsequently published by the board in its publication entitled "Georgia Law Governing the Practice of Professional Engineering and Surveying."
In the 1972 amendments to Section 34, the General Assembly in referring to "those standards ... which have been adopted and promulgated hitherto by the board," obviously referred to and meant to approve a specific set of standards. The board itself in Rule 180-10-.01 had a comparable intent. The only available reference at the time of the 1972 amendments to Section 34 (b) was the Code of Ethics theretofore adopted and published by the board on November 9, 1967, and to which reference was made in Rule 180-10-.01. In order to avoid the impermissible conclusion that the definition of "unprofessional conduct" in Section 34 is meaningless, Central of Georgia Ry. v. State of Georgia, 104 Ga. 831, 839 (1898), I must therefore conclude that the General Assembly referred to and approved that Code of Ethics adopted by the board on November 9, 1967.
It is immaterial in the process of reaching that conclusion that the Code of Ethics had not been fully published in the Official Compilation of the Rules and Regulations of the State of Georgia, required by the Georgia Administrative Procedure Act. Ga. Laws 1964, p. 338, as amended (Ga. Code Ann. Title 3A). Even if such full publication were required by the Administrative Procedure Act, by specifically referring to and approving the Code of Ethics adopted and otherwise published by the board, the provisions of the Administrative Procedure Act governing the effect of administrative regulations not promulgated in accordance therewith were rendered inapplicable.
For various practical reasons, however, I do suggest that the board proceed to publish the Code of Ethics in full in the Official Compilation of Rules and Regulations of the State of Georgia.
It is therefore my official opinion that the State Board of Registration for Professional Engineers and Land Surveyors may enforce under Section 34 (b) of Ga. Laws 1945, p. 294, as amended (Ga. Code Ann. 84-2140 (b)), the Code of Ethics adopted by the board on November 9, 1967.
The second aspect of your inquiry relates to whether the board may adopt additional standards of ethics and professional conduct. In Section 34 of Ga. Laws 1945, p. 294, as amended, the General Assembly defines "unprofessional conduct" as a violation of standards adopted by the board:
"pursuant to the power conferred upon it to promulgate rules and regulations to effectuate the duties and powers conferred on it by this Chapter." Ga. Code Ann. 84-2140.
The import of that language is a recognition by the General Assembly

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that the board had, prior to the 1972 amendments, the power to adopt regulations governing the professional conduct of persons licensed by it. See Ga. Code Ann. 84-2111, 84-2103.
The General Assembly, moreover, specifically conferred upon the board the power, in addition to that granted by Section 34 (b), to discipline a licensee for
"any violation of ... any rule or regulation promulgated by the board pursuant to the powers conferred on it by this Chapter." Ga. Laws 1945, p. 294, as amended (Ga. Code Ann. 84-2140 (e)).
From a reasonable perspective, these pronouncements led to the inescapable conclusion that the General Assembly concluded that it had previously conferred and now specifically restated in separate pronouncements the board's power to adopt rules and regulations to enforce the provisions of Ga. Laws 1945, p. 294, as amended, to govern through such regulations the professional conduct of those licensed by it, and to enforce its regulations through disciplinary sanctions. On the other hand, nothing in the 1972 amendments suggests that the General Assembly intended to limit that previously conferred and now again specifically restated power unless such an intent is to be found in the language "standards of ethics and professional conduct ... promulgated hitherto" in the definition of "unprofessional conduct." Ga. Code Ann. 84-2140.
When parts of a statute presents such an apparent conflict, the basic approach required is to attempt to attribute a meaning to each part of the statute so that all parts are in harmony. See, e.g., Falligant v. Barrow, 133 Ga. 87, 92 (1909). Only if that approach is unsuccessful is it permissible to conclude that one part of statute must displace another. Williams v. Bear's Den, Inc., 214 Ga. 240, 242 (1958).
The apparent conflict within Section 34 may be avoided by not construing the definition of "unprofessional conduct" to preclude future exercise of the board's power specifically recognized by that definition and other parts of the same section, but instead as the establishment of the previously adopted Code of Ethics as minimum standards of conduct, which the board, exercising the power pursuant to which the Code was originally adopted, may refine or supplement as, in its discretion, it determines to be warranted. Such a construction, in my opinion, gives a meaning to all parts of the statute consistently with the language employed therein.
It is, therefore, my official opinion that the State Board of Registration for Professional Engineers and Land Surveyors may adopt regulations governing the professional conduct of those licensed by it in addition to those specifically approved by the General Assembly in Section 34 of Ga. Laws 1945, p. 294, as amended by Ga. Laws 1972, p. 222.

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You have also requested my opinion on specific aspects of the Code of Ethics and on the desirability from several points of interest of the board's adopting any of several alternative standards suggested by the codes of professional conduct adopted by other states. As I am sure you will recognize, such an undertaking would require not less than one treatise on ethical standards for the professions of engineering and land surveying and is more appropriate for day-to-day efforts of the board, in which this office will be more than willing to render assistance.

OPINION 74-78

To: Chairman, Georgia World Congress Center

June 7, 1974

Re: Proceeds of general obligation debt authorized by Section 13 of Ga. Laws 1973, p. 1353, as amended, may be employed to acquire the real property involved only through the State Properties Commission in the name of the State of Georgia.
This is in reply to your request for my opinion as to the proper agency to take title to the property on which the Geo. L. Smith II Georgia World Congress Center is to be constructed.
In order to properly delineate the issue, it is necessary to recite the historical basis for the legal framework in which the pertinent parties now find themselves.
On January 16, 1974, the Georgia State Financing and Investment Commission, acting on a prior resolution of the Board of Community Development, proposed to incur the $35 million debt authorized by the General Assembly (Ga. Laws 1973, pp. 1353, 1360-61, Section 13) for the purpose of acquiring a World Congress Center to be operated and managed by the Department of Community Development. A validation proceeding was then initiated in Fulton Superior Court to confirm the authority of the commission to issue bonds for that purpose.
While that litigation was pending in Fulton Superior Court, the General Assembly enacted the Geo. L. Smith II Georgia World Congress Center Act (Ga. Laws 1974, p. 174) as an amendment to an earlier Act creating the Executive Board of the Georgia world Congress Center (Ga. Laws 1972, p. 245). (See Ga. Code Ann. Ch. 40-36.)
That Act, while creating the Geo. L. Smith II Georgia World Congress Center Authority and conferring power on the authority to acquire real property and to "own" the World Congress Center (Ga. Laws 1974, pp. 174, 179), must be considered in the context of the pending bond validation action and, consequently, the legal framework involved in that proceeding.
The Constitution provides that the Georgia State Financing and Investment Commission may incur:

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"[g]eneral obligation debt [for public purposes] ... to acquire ... facilities of the State, its agencies, departments, institutions and those State Authorities which were created and activated prior to ... November 8, 1960 . ..."Art. VII, Sec. III, Par. I (Ga. Code Ann. 2-5601). (Emphasis added.)
Since the Geo. L. Smith II Georgia World Congress Center Authority was not created prior to November 8, 1960, the Georgia State Financing and Investment Commission could not issue general obligation debt to acquire facilities for the authority. With respect to the pertinent aspects of the proposed debt issue, therefore, the status remains that the general obligation debt will be incurred to acquire a World Congress Center for the Department of Community Development.
The Department of Community Development and the Authority have, however, exercised their constitutional (Art. VII, Sec. VI, Par. I (Ga. Code Ann. 2-5901)) and statutory (e.g., Ga. Laws 1974, p. 174) authority to contract with each other and under that contract the authority was designated the department's sole and exclusive agent to perform all the functions of the department concerning the world Congress Center.
Within this framework, it becomes clear that title to the property on which the World Congress Center is to be located must be taken through the State Properties Commission in the name of the State of Georgia.
Georgia Code Ann. 91-112a (a) (Ga. Laws 1973, p. 857) provides in pertinent part as follows:
" ... [A]ll state agencies shall acquire real property through the [State Properties] Commission."
Code 91-102a (c) defines the term "state agency" to include
"any department ... commission ... or agency within the Executive Branch of State Government...."
Finally, Ga. Code Ann. 91-403a (b) (1) (Ga. Laws 1970, p. 672) provides that
" ... the title to all real property acquired [by the State or any department thereof] shall be in the name of the State of Georgia ....''
Thus, both the Department of Community Development and the Georgia State Financing and Investment Commission must acquire the property on which the world Congress Center is to be located through the State Properties Commission in the name of the State of Georgia.
However, this conclusion does not preclude the Geo. L. Smith II Georgia World Congress Center Authority from exercising its inde-

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pendent statutory power (Ga. Laws 1974, p. 174), first to acquire the property involved in its own name so that the ultimate acquisition through the State Properties Commission is made from the authority, rather than from the present private owners. However, since the proceeds of general obligation debt issued by the State Financing and Investment Commission for this purpose may be employed to acquire the property only through the State Properties Commission in the name of the State of Georgia, any acquisition by the authority, unless otherwise funded, would have to depend for its financing on the ultimate conveyance by sale by the authority to the State of Georgia through the State Properties Commission.
It is, therefore, my official opinion that the proceeds of general obligation debt authorized by Section 13 of Ga. Laws 1973, p. 1353, as amended, and by resolution of the Georgia State Financing and Investment Commission, may be employed to acquire the real property on which is to be located the Geo. L. Smith II Georgia World Congress Center only in the name of the State of Georgia through the State Properties Commission.

OPINION 74-79

To: Director, State Merit System of Personnel Administration

June 10, 1974

Re: Under Act No. 1375 of the 1974 Georgia General Assembly the accumulated days of forfeited sick and annual leave of a member of the retirement system, which were earned in state service and for which the member is not otherwise entitled to be paid, shall constitute creditable service.

This is in response to your recent request for my official opinion regarding what accumulated days of forfeited annual and sick leave of a member of the retirement system shall constitute creditable service under Act No. 1375 of the 1974 Georgia General Assembly (Ga. Laws 1974, p. 1451; Ga. Code Ann. 40-2504 (1)). In particular, you gave the example of leave forfeited by an unclassified employee and leave forfeited by an individual prior to his department's coverage by the State Merit System.
The Act in question provides, in part, that:
"Accumulated days of forfeited annual and sick leave of a member of the retirement system, for which the member is not otherwise entitled to be paid, shall constitute creditable service. . . ."
Under the basic principles of statutory construction, words in a statute should be accorded their ordinary signification (Ga. Code

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102-102 (I) (1933)) and the ascertainment of the intent of the General Assembly in the passage of the Act is of cardinal import (Ga. Code 102-102 (9) (1933)). See Gazan v. Heery, 183 Ga. 30 (1936). Considering these axioms and the above-quoted language of the Act, it would appear that the accumulated days of forfeited annual and sick leave of a member of the retirement system would include all days of forfeited annual and sick leave that were earned in state service and for which the member is not otherwise entitled to be paid. This would include forfeited leave earned or forfeited by an employee in the unclassified service or by an employee whose leave was forfeited prior to his department's coverage by the State Merit System of Personnel Administration.

You have also inquired about the employer certification provision in Act No. 1375 of the 1974 Georgia General Assembly. This part provides that "the employer shall certify to the retirement system the total amount of such forfeited annual and sick leave" and make the employer's contribution for that period. You have requested my opinion as to what documentation an appointing authority should require from the employee in the event of loss or destruction of the appropriate historical documents. This is a question that does not lend itself to a definitive answer.

The Act requires the appointing authority to certify the amount of forfeited leave. If the records are lost or destroyed then the authority should require whatever proof it feels is necessary for it to certify the amount of leave that was forfeited. I cannot set out specific requirements as different situations may require different documentation and amounts of documentation. I am sorry that I could not be of more assistance on this point.

Based on all of the foregoing, it is my official opinion that under Act No. 1375 of the 1974 Georgia General Assembly, all accumulated days of forfeited sick and annual leave of a member of the retirement system, which were earned in state service and for which the member is not otherwise entitled to be paid, shall constitute creditable service.

It must be recognized, of course, that the benefits of this new enactment will be applicable only to those persons who are both employed by the state and members of the Employee Retirement System on or after its effective date, which is May 1, 1974. Article VII, Section I, Paragraph 2 (2) of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5402 (2)) would prohibit the retroactive application to cover any persons who are no longer in active employment status.

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OPINION 74-80

To: Director, Georgia Bureau of Investigation

June 10, 1974

Re: Members of the Georgia Bureau of Investigation may receive payments for medical expenses incurred as a result of injuries received in the line of duty.

This is in response to your request for an official opinion regarding payment of medical expenses to members of the Georgia Bureau of Investigation (hereinafter "GBI") under Ga. Laws 1953, Nov. Sess., p. 392 (Ga. Code Ann. 92A-129).
The law cited above provides in part:
"The Department of Public Safety is hereby authorized to pay all medical, surgical, hospital, nursing and other similar expenses incurred by any member of the Georgia State Patrol or any member of the Georgia Bureau of Investigation, as a result of injuries received in the line of duty...."
Under this law agents of the GBI may receive medical payments for injuries received in the line of duty. When the quoted law was passed, the GBI was a division within the Department of Public Safety. On February 28, 1974 the General Assembly created a new GBI as a separate department and agency of State Government. Ga. Laws 1974, p. 109 (Ga. Code Ann. 40-35212 to 40-35220).
The 1974 Act transferred all of the functions of the old GBI and Division of Investigation to the newly created GBI. Thus, GBI agents may receive medical payments. However, these payments must come from the GBI, not the Department of Public Safety. This presents a problem since appropriations for these payments have already been made to the Departmen,t of Public Safety for the current fiscal year.
State law provides:
"In the event that any duties, purposes, and objects for which appropriations are made shall be transferred to a budget unit other than that to which appropriated, the appropriations for such duties, purposes and objects shall be made available subject to the provisions of this Chapter to such budget unit or budget units to which the duties, purposes and objects are transferred. Should the appropriation to be transferred not be shown in the Appropriation Act as a separate and identifiable item, the amount to be transferred shall be decided by the Budget Bureau in accordance with the detailed estimates or other information embodied in the budget report." Ga. Laws 1962, pp.17, 31 (Ga. Code Ann. 40-421). (Emphasis added.)

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Since a portion of the current appropriations to the Department of Public Safety is for the payment of medical expenses to GBI agents, said portion of the funds should be transferred to the GBI.
It is my understanding that medical payments made pursuant to Ga. Code Ann. 92A-129 are drawn from the general departmental budget and are not shown as a separate and identifiable budget item. Therefore, the Office of Planning and Budget, the successor agency to the Budget Bureau, must determine the amount of Department of Public Safety general appropriations attributable to medical payments to GBI agents, and transfer said amount to the GBI.

OPINION 74~81

To: Director, State Merit System of Personnel Administration

June 14, 1974

Re: The various state agencies may make deductions periodically from the wages of its employees to pay the premium of a group insurance plan, so long as the participation by the employee is voluntary.

This is in response to your recent letter requesting my opinion as to the legality of current optional employee insurance programs. Specifically, you have asked three questions which are:
(1) Do the individual agencies have the legal authority to enter into contracts for optional employee insurance coverage for life insurance and disability coverage?
(2) Do the insurance companies have the legal authority to establish different rates for the different group policies?
(3) Does the merit system currently have the authority to initiate a consolidation of all optional benefit programs and administer such consolidated benefit package?
I shall answer each of these questions in the order in which they were asked.
Question 1.
The various state agencies do have the legal authority to enter into contracts for optional employee insurance. The pertinent legislation granting this authority may be found at Ga. Laws 1960, pp. 289, 672 (Ga. Code Ann. 56-2431), which provides as follows:
"Each and every county, county board of public instruction, city, town, governmental unit, department, board or bureau of the State of Georgia, or of the cities and towns thereof, is hereby

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authorized and empowered to make deductions periodically from the wages or salaries of its employees with which to pay the premium for life, sickness, accident, hospitalization, or annuity insurance, or all or any kind of insurance, for the benefit of such employees, upon a group insurance plan, and to that end to enter into agreements with insurance companies whereby the kind of group insurance desired by the employees may be furnished to them, and the premiums therefor remitted periodically by said counties, boards, cities, towns, bureaus or departments thereof."
The only limitation upon the power granted in the above-quoted Code section is that the participation by the employees must be voluntary. See, Ga. Code Ann. 56-2432.
Question 2.
To answer your second question, I feel that a brief discussion on group insurance is in order. With group insurance, the policy is owned by the policyholder or employer. The employee is the party insured and the insured designates his beneficiaries. The advantage in a group policy is that the insurer can consider the group as a whole for risk rating and therefore avoid the cost of individually administering a policy for each insured and individually assessing the risk. See generally, R. Keeton, Basic Text on Insurance Law 2.8 (a) (1971).
Group life insurance is permitted in Georgia for employees or classes of employees under the authority of Ga. Laws 1960, pp. 289, 694 (Ga. Code Ann. 56-2701 (1)). Furthermore, the various departments of the State of Georgia may contract for optional group life insurance for its employees. Ga. Code Ann. 56-2431 (Ga. Laws 1960, pp. 289, 672).
Your second question was whether an insurance company may legally charge different rates for the group policies with the various departments. Unfair discrimination in premiums for life insurance, accident insurance or sickness insurance is prohibited by Ga. Laws 1960, pp. 289, 396 (Ga. Code Ann. 56-704 (7)). However, for there to be unfair discrimination, the insurance companies must not be offering the same amount of insurance for the same amount of premium to policyholders with the same risk rating. Also, the number of employees under the group plan could legitimately affect the rates. Consequently, for different group policies the rates charged by the insurance company may be different and at the same time may also be legal.
Question 3.
You also wish to know if the State Merit System has the authority to consolidate the various optional insurance plans. I do not know of

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any statute other than Ga. Code Ann. 56-2431, supra, that would give any department the authority to enter into any group life or disability insurance contract for state employees.1
Therefore, the question is whether the State Merit System may consolidate the optional plans under the authority of Ga. Code Ann. 56-2431. When ascertaining the meaning of a statute all words are to be given their ordinary signification. Ga. Code (1933) 102-102 (1). I can find nothing in the wording of Ga. Code Ann. 56-2431 that would give any department the authority to enter into a contract with an insurance company for an optional group life insurance policy for employees of other departments.
For the above-mentioned reasons, it is my official opinion that a state agency, department or board may enter into an optional group insurance plan so long as the participation by the employee is voluntary. It is also my official opinion that no state agency, including the State Merit System, may enter into any optional group insurance plan for life insurance and disability coverage for employees of other departments.

OPINION 74-82

To: Commissioner, Department of Public Safety

June 14, 1974

Re: The Department of Public Safety is authorized to pay all medical, surgical, hospital, nursing and other similar expenses incurred by any member of the Georgia State Patrol as a result of injury received in the line of duty. Such payments may be made in addition to any award made by the "'Workmen's Compensation Board based on such injury.

This is in response to your letter of May 17, 1974, raising certain questions in reference to Ga. Laws 1953, Nov. Sess., p. 392 (Ga. Code Ann. 92A-129). Each of the questions you raised pertains to situations whereby due to express limitation under the Georgia Workmen's Compensation Act the employee could not receive certain medical payments under that Act. You wish to know whether you have the authority to pay those additional medical expenses under the authority of Ga. Code Ann. 92A-129, which provides as follows:
1 One year after the enactment of Ga. Code Ann. 56-2431, the General Assembly enacted legislation creating the State Employees Health Insurance Plan. Ga. Laws 1961, p. 147, as amended (Ga. Code Ann. Ch. 89-12). Under this Act, the State Personnel Board is empowered and authorized to establish a health insurance plan for employees of the State of Georgia. Ga. Code Ann. 89-1203. However, this created only a mandatory health insurance program and would not grant any authority to consolidate the optional group life insurance policies.

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"The Department of Public Safety is hereby authorized to pay all medical, surgical, nursing and other similar expenses incurred by any member of the Georgia State Patrol or any member of the Georgia Bureau of Investigation, as a result of injuries received in line of duty. The department is authorized to make such payments in addition to any award made by the Workmen's Compensation Board based on such injuries. Such payments shall only be made upon proper presentation of bills to the treasurer and disbursing officer of the Department of Public Safety. The treasurer and the injured party shall together ascertain the correctness of all bills presented. No payments shall be made without the approval of the Director of the Department. of Public Safety." (Emphasis added.) 1
Based upon the wording of the above-quoted statute and Ops. Att'y Gen. 1960-61, p. 423 (copy attached), it is my official opinion that the Department of Public Safety is authorized to pay all medical, surgical, hospital, nursing and other similar expenses incurred by any member of the Georgia State Patrol as a result of injuries received in the line of duty and that such authorization includes making payments in addition to any award made by the vVorkmen's Compensation Board based upon such injuries.

OPINION 74-83

To: Insurance Commissioner

June 17, 1974

Re: An insurance solicitor must maintain his office with his employing agent or broker in order that his employer might properly supervise him in the conduct of his business.

The Georgia Insurance Code provides for the employment of solicitors by insurance agents and brokers whose function is to solicit insurance applications and collect premiums on behalf of the agent or broker by whom he is employed. Ga. Code Ann. Ch. 56-8B (Ga. Laws 1960, p. 289 et seq.). Among the limitations placed on solicitors is the following:
"The solicitor shall maintain his office with that of the appointing agent or broker, and record of his transactions under the license shall be maintained as a part of the records of such agent or broker." Ga. Code Ann. 56-840b (5).
1 The Georgia Bureau of Investigation is no longer a division of the Department of Public Safety. Ga. Laws 1974, p. 109 (Ga. Code Ann. 40-35212 to 40-35220). For your convenience, I have attached a copy of a recent opinion discussing the effect of Ga. Laws 1974, p. 109 on Ga. Code Ann. 92A-129 in regard to members of the Georgia Bureau of Investigation. Op. Att'y Gen. 74-80 (June 10, 1974).

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You have inquired whether or not that statutory limitation places a geographical restriction on the solicitor in regard to his employing agent's or broker's office. Specifically, your inquiry is directed to the question of whether or not an agent or broker can employ solicitors whose residences are not located in the same city with the agent's or broker's office, and if so, how frequently the solicitor must visit that office to be considered maintaining an office with his employer.
I have been unable to find any authority within the State of Georgia to aid in the determination of what comprises the maintaining of an office. Likewise, other jurisdictions have provided no guidance for this particular question, but certain preliminary issues involved in this question have been considered which should aid in its ultimate resolution.
Generally speaking, an office has been deemed to be a room or building in which a person transacts his business or carries on his stated occupation. Red Acres Improvement Club v. Burkhalter, 193 Tenn. 79, 241 S.W.2d 921 (1951); see also, Words and Phrases, "OfficePlace of Business" p. 425. To my knowledge, no court has held that an office must be the only place an individual conducts his business. To the contrary, a federal court has held that an individual who has an area of operations consisting of seven states and who travels extensively throughout these seven states is considered to maintain an office for purposes of service of process where his employer's office is located. Tarbox v. Walters, 192 F. Supp. 816 (E.D. Pa. 1961). Based on the foregoing, we might surmise that a solicitor can maintain an office with his employing agent or broker without remaining in the city in which that office is located all of the time. This does not answer, however, the question of how much time the solicitor must spend in that office in order to be considered maintaining an office with his employer.
Inasmuch as the law about which you have inquired does not fully resolve your inquiry, it becomes necessary to determine the intent of the legislature in passing such a law, and one method by which such intention can be ascertained is through a consideration of all laws in pari materia with the statute in question. Oxford v. Carter, 216 Ga. 821 (1961).
Of particular significance to the present consideration is the following provision of the Insurance Code concerning solicitors :
"All business transacted by a solicitor under his license shall be in the name of the agent or broker by whom he is employed and the agent or broker shall be responsible for all the acts or omissions of the solicitor within the scope of his employment." Ga. Code Ann. 56-840b (7). (Emphasis added.)
In light of this statutory provision and the fact that solicitors can only be licensed when employed by a specific agent or broker (Ga. Code

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Ann. 56-840b (6)), it IS my opmwn that the General Assembly intended that the solicitor maintain his office mth the employing agent or broker in order that he might be properly supervised by his employer.
Thus, the question becomes a factual determination as to the frequency a solicitor must visit his employer's office or the geographical proximity he must maintain to that office to be considered adequately supervised. This is a determination within the sound discretion of the commissioner which would best be made on a case by case basis.

OPINION 74-84

To: State Superintendent of Schools

.June 18, 1974

Re: It is not necessary that the State Board of Education or State Superintendent of Schools approve or sign contracts or agreements of the Georgia Professional Practices Commission.

This is in reply to your letter of .June 5, 1974, in which you ask whether it is necessary for the State Board of Education or State Superintendent of Schools to approve or sign contracts or agreements of the Georgia Professional Practices Commission.
The statutory basis for the Professional Practices Commission is Ga. Laws 1967, pp. 840 to 844, as amended by Ga. Laws 1968, pp. 330 to 333, and Ga. Laws 1972, pp. 555, 556 (Ga. Code Ann. 32-839 to 32-841). Under this legislation, the Professional Practices Commission, although appointed by the State Board of Education on the recommendation of the State Superintendent of Schools, is an entirely separate and distinct governmental body designed to police ethical and professional standards within the teaching profession. Among other things, Ga. Code Ann. 32-841 states:
"The function of the commission is deemed to be in furtherance of educational purposes and the commission shall be authorized to accept gifts and grants for this purpose."
This too reflects the fact that it is an entity capable of accepting grants in its own right. The fact that it is funded through the State Board of Education, see Ga. Laws 1973, pp. 1316, 1365, would in no way affect its independence as you indeed recognize in your letter when you state that it is not under the supervision or control of the State Board of Education. Consequently, it is my opinion that it is not necessary that the State Board of Education or State Superintendent of Schools approve or sign contracts or agreements of the Professional Practices Commission.

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OPINION 74-85

To: Commissioner, Department of Public Safety

June 19, 1974

Re: (1, 2) Service-dependent percentage increases in salary for members of the Uniform Division of the Department of Public Safety are calculated on the summation of the $5 per day subsistence allowance plus base pay.
(3) Clerk-dispatchers are authorized to receive the $400 salary increase received by radio operators and license examiners.
(4) (a) Driver's license examiners may be paid under the pay scale authorized in H.B. 1326 as soon as the required appropriations are available. (b) Portions of H.B. 1326 will be repealed on September 1, 1974 when H.B. 1606 becomes law.

This is in reply to your letter requesting an official opinion on the salary of certain employees of the Department of Public Safety.
(1) In your first question, you ask whether service-dependent percentage increases in trooper and officer compensation should be calculated on the employee's base pay or the employee's salary (base pay plus previous service-dependent percentage increases).
Statutory law provides in part:
"Such increases shall be computed on the base pay of each member at the rank which he holds on April 1, 1958. In the event such member's rank changes in the future, such increases shall be recomputed on the basis of such new rank." Ga. Laws 1958, pp. 296, 300, as amended (Ga. Code Ann. 92A-208). (Emphasis added.)
Therefore, you are correct in calculating service-dependent percentage increases using the employee's base pay.
(2) Secondly, you ask if you are correct in calculating longevity on the summation of the $5 per day subsistence allowance plus base pay.
Ga. Laws 1960, pp. 132, 136, as amended (Ga. Code Ann. 92A-208), provides i!n part :
"Subsistence allowance shall be $5 per day for troopers and officers and shall be in addition to all salaries and compensation and other allowances and shall also be subject to the automatic percentage increases provided hereinbefore relative to salaries." Id. at page 136. (Emphasis added.)
Accordingly, the $5 per day subsistence allowance is subject to automatic percentage increases based on length of service. Mathematically, the method employed to calculate the percentage increases may be that which you suggested in your request letter; that is, calculate

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percentage increases for troopers and officers using the summation of the $5 per day subsistence allowance plus the base pay.
(3) Your third question deals with the eligibility of clerk-dispatchers to receive a $400 increase in pay.
In 1970 the classification of clerk-dispatchers did not exist. The following year the merit system established the position and included a $400 increase in the salary. The increase was similar to that received by other employees under the merit system.
The 1973 General Assembly took clerk-dispatchers out of merit system control and placed them on legislative pay status:
"Radio operators, license examiners and clerk-dispatchers shall be compensated at the rate of $6,550 per annum. All radio operators, all license examiners, and all clerk-dispatchers, although not members of the uniform battalion, shall be entitled to the increases hereinafter provided for length of service on such base salary." Ga. Laws 1973, pp. 449,450.
The question you pose is-are clerk-dispatchers entitled to a $400 salary increase originally provided in 1970 to certain employees under legislative pay status, to-wit:
"The members of the Uniform Division of the Department of Public Safety, members of the Georgia Bureau of Investigation, radio operators and license examiners shall each receive a salary increase of four hundred ($400.00) dollars per annum. This salary increase provided herein shall not be subject to longevity increases." Ga. Laws 1970, pp. 32, 51; Ga. Laws 1970, p. 117 (Ga. Code Ann. 92A-208).
In the 1973 Act, quoted above, the General Assembly placed clerkdispatchers on a co-equal status with radio operators and license examiners. Base pay for the three positions was set at $6,550. However, in the Act the General Assembly did not clearly state whether clerkdispatchers were entitled to a $400 increase in salary similar to that received by radio operators and license examiners. Hence, legislative intent must be determined to resolve your third question.
In construing legislative intent the Georgia Supreme Court has stated:
11In construction of a statute, all laws in pari materia should be considered in order to ascertain the intention of the legislature." Oxford v. Carter, 216 Ga. 821, 822 (1961).
Furthermore, the court quoted Lord Mansfield with approval regarding statutory construction, to-wit:

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" 'Where there are different statutes in pari materia though made at different times, or even expired and not referring to each other, they shall be taken and construed together as one system, and explanatory of each other.' " Harrison v. Wright, 1 Ga. 32, 35 (1846).

It is evident in considering the history of clerk-dispatchers and in construing the 1970 and 1973 legislation, that the General Assembly intended that clerk-dispatchers receive the $400 salary increase provided for in the 1970 Act. The position of clerk-dispatcher did not exist in 1970 when the $400 raise went into effect for other state employees. After the position was created in 1971, a $400 raise was given to all merit system employees. Also, a $400 increase was legislatively given to certain employees who were on legislative pay status, including radio operators and license examiners.
Consequently, in 1973 the positions mentioned above were receiving a $400 increase in salary when the General Assembly placed clerkdispatchers on legislative pay status and gave the three positions equal base pay. Thus, the legislative intent behind the 1973 Act was that all three positions receive equal pay. Such intent would not be fulfilled if clerk-dispatchers were denied the $400 salary increase.
Although not controlling, an additional indication of legislative intent, in light of the above considerations, is the fact that the General Assembly has appropriated funds for the $400 increase for clerk-dispatchers. Thus, it is my opinion that the General Assembly intended that clerk-dispatchers receive the $400 salary supplement provided for in the 1970 Act.
(4) Finally, you asked if H.B. 1606 repealed H.B. 1326, both passed by the 1974 General Assembly. The cited Acts deal with the same subject-matter, namely, pay raises for certain employees of the Department of Public Safety. (Ga. Code Ann. 92A-208.)
Section 2 of H.B. 1326 provides:
"This Act shall become effective upon its approval by the Governor or upon its becoming law without his approval."
The Governor signed H.B. 1326 (Ga. Laws 1974, p. 1007; Ga. Code Ann. 92A-208) on March 26, 1974 and it became law on that date. Although this bill authorized payment in accordance with the new driver's license examiners pay schedule as early as March 26, 1974, the new pay schedule may not be implemented until appropriations are available.
On March 28, 1974 the Governor approved H.B. 1606 (Ga. Laws 1974, p. 1122; Ga. Code Ann. 92A-208). Section 2 of this Act provides:
"This Act shall become effective on September 1, 1974."

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Consequently, H.B. 1606 does not become law until September 1, 1974. Section 3 of this Act contains the following repealer:
"All laws or parts of laws in conflict with this Act are hereby repealed.''
Thus, those portions of H.B. 1326 which conflict with H.B. 1606 will be repealed on the effective date of H.B. 1606, which is September 1, 1974.
In summary, driver's license examiners may be paid under the new pay schedule as soon as the required appropriations are available. Those other employees of the Department of Public Safety given pay raises by H.B. 1606 may receive their raises no earlier than September 1, 1974.

OPINION 74-86
To: Commissioner, Department of Public Safety June 21, 1974
Re: The Georgia "No-Fault" Act, though it does not repeal the Motor Vehicle Safety Responsibility Act, does repeal by implication and supersede the provisions of the Motor Vehicle Safety Responsibility Act with respect to self-insurers.
You have asked me if the requirements for qualifying as a selfinsurer under the Georgia Motor Vehicle Accident Reparations Act, Ga. Laws 1974, p. 113 (hereinafter the No-Fault Act) (Ga. Code Ann. Ch. 56-34B), should be the same as those defined in the Motor Vehicle Safety Responsibility Act, Ga. Laws 1951, pp. 565, 576, as amended, Ga. Code Ann. 92A-616 (hereinafter Safety Responsibility Act).
It is my opinion that they should not be, and that the self-insurance
provisions of the No-Fault Act repeal and completely supersede the self-insurance provisions of the Safety Responsibility Act.
The No-Fault Act does not specifically repeal any provision of the Safety Responsi'bility Act. In point of fact, Section 3 (a) of the NoFault Act speci'fically requires that, as part of the required no-fault insurance coverage, liability insurance equivalent to that required under the Safety Responsibility Act be maintained. It is thus clear that the legislature intended for the Safety Responsibility Act as a whole to remain in full force and effect.
With respect to the specific subject of self-insurers, however, the No-Fault Act evidences a different legislative intent. The No-Fault Act defines a self-insurer as:
"[A]ny 1owner' who has on file with the Commissioner of Public Safety an approved plan of self-insurance which provides for

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coverages, benefits and efficient claims handling procedures substantially equivalent to those afforded by a policy of automobile liability insurance that complies with all of the requirements of this Act." Ga. Laws 1974, pp. 113, 114 (Ga. Code Ann. 56-3402b). (Emphasis added.)

The manifest legislative intent, as it appears in this definition and in the No-Fault Act as a whole, is for the Department of Public Safety to certify as self-insurers only those owners who undertake to provide reparations on the same terms and conditions as an insurer under the Act.1 The applicant for certification as a self-insurer must also, of course, demonstrate that he has the resources necessary to perform this undertaking.
The remaining question is whether the provisions of the No-Fault Act concerning self-insurers repeal by implication the provisions contained in the Safety Responsibility Act which deal with the same subject matter. The courts have held that:

"The rule as to repeal by implication ... that when the legislature intends to revise a former Act or charter or deal exhaustively with the subject of all or part of the original Act and a portion ... is left out, such omitted portion is repealed by implication." Horn v. State, 114 Ga. 509, 510 (1901); accord, Thompson v. Georgia Power Co., 73 Ga. App. 587 (1945). (Emphasis added.)

The No-Fault Act manifests a legislative intent that the criteria for qualification as a self-insurer will be those contained in the No-Fault Act and omits any reference to the criteria contained in the Safety Responsibility Act. It is my official opinion, therefore, that the selfinsurance provisions contained in the No-Fault Act repeal by implication and supersede entirely all provisions concerning this subjectmatter which are contained in the Motor Vehicle Safety Responsibility Act.
In closing, let me emphasize again that this opinion concerns itself only with the self-insurance provisions of the No-Fault and Safety Responsibility Acts. It is not intended to express an opinion about how the two Acts should be construed together with respect to any other area in which they overlap. I realize that other questions will arise as you, the Commissioner of Insurance, the Revenue Commissioner and other interested parties develop plans for implementation of the No-Fault Act.

1 These terms and conditions would include those contained in Sections 3, 5 (d) and 6 of the Act. Compliance with any applicable rules promulgated by the Insurance Commissioner pursuant to Section 13 would also be required.

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OPINION 74-87

To: Commissioner of Agriculture

June 28, 1974

Re: Prior to purging a mark from the list of registered marks, brands or tattooes, the registration of the mark must be apprised by registered mail that cancellation of the mark will be effected if the Commissioner of Agriculture is not notified within three months from the date of mailing that the registrant desires to continue registration of the mark.
This is in response to your request for an interpretation of House Bill1262 recently passed by the 1974 General Assembly. The new law amends Georgia Code Ann. Title 62 by superseding Ga. Code Ann. Ch. 62-1, relating to marks and brands, in its entirety and establishing new procedures for the registration and cancellation of marks, brands or tattooes applied to livestock. As I understand your question, the particular problem emanates from the notice requirements established for cancellation of said registrations.
Section 1 of the Act amends Ga. Code Ann. 62-102 to provide for the following requirements with respect to cancellation of registrations of livestock marks, brands or tattooes:
" . . . Prior to the first day of July of 1974, and of each fifth year thereafter, the commissioner shall purge from his lists of registrations the registrations of all marks, brands or tattooes which the person to whom they are registered does not desire to retain as a registered mark, brand or tattoo. Prior to removing a mark, brand or tattoo from registration, the commissioner shall notify the person to whom the mark, brand or tattoo is registered by registered mail that such registration will be cancelled unless the commissioner is notified within a period of three months from the date of mailing that such person desires to continue the registration of his mark, brand or tattoo. If the commissioner does not receive a reply within three months, he may cancel the registration of such mark, brand or tattoo...."Ga. Laws 1974, pp. 1003, 1004.
Pursuant to this statutory language, the Commissioner of Agriculture assumes responsibility for compliance with two specific mandates necessary for effective cancellation of these registrations:
(1) The commissioner must purge before the first day of July 1974, and of each fifth year thereafter, from the list of registered marks all marks registered to those persons indicating no desire to retain the registration of the mark.
(2) Ninety days prior to the cancellation of any registration, the

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commissioner must notify by registered mail the person to whom the registration is issued.
The bill, as passed, does not speak to the question of how to determine which registrants do not desire continuation of registration. However, in consideration of the procedure established, the only problem arises with respect to those registrants who do not inform the commissioner before the mailing of the 90-day registered notice. If a registrant has notified the commissioner before that time of a desire to continue his registration, he obviously removes himself from the ranks of those who must necessarily be notified by the commissioner. This prior disclosure of intention to be continued apparently may be accomplished through any effective communication since the section requiring notice refers only to the people who do not desire to retain a registered mark. It is conceivable that in response to a solicitation from the commissioner, all current registrants could notify the commissioner to continue their registrations prior to the date set for mailing registered letters of notice of cancellations. In that instance, there would be no necessity to issue any of the 90-day notices, as all registrations would be continued.
However, as you have indicated in your letter, an alternative method of reregistering the marks would be to utilize the registered 90-day notice alone to evoke the expressions of desire to be continued necessary to prevent cancellation. The registrant is not required by the statute to inform the commissioner at any time except prior to conclusion of the 90-day notice period. In the same respect, the commissioner is not directed to solicit those expressions of continuation prior to mailing of the required notice, just as he is not precluded from doing so. If no continuation notices are forthcoming before the date of mailing of the registered notices, the statute is satisfied by the timely mailing of the registered notices to all names then currently on the registration list. The burden is therefore placed upon the registrant to respond affimatively or negatively before the statutory period expires.
Accordingly, it is my opinion that the Commissioner of Agriculture may utilize either of the two following methods to comply with the provisions of House Bill 1262:
(1) Mailing of registered notices to all names on the current registration list at least 90 days prior to the date set for cancellation of registered marks, brands or tattooes; or
(2) Mailing of pre-notice solicitations of intent to all registrants, to be followed by continuation of registration for those indicating affirmation of such action and by mailing of registered 90-day notices to those registrants not responding or responding negatively.

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It must be emphasized that the 90-day notice period be structured so as to terminate prior to the final dates established in the statute for the purging of the registration lists.

OPINION 74-88

To: Department of Offender Rehabilitation

July 1, 1974

Re: The different ages referred to in S. B. 292 (Ga. Code Ann. 99-209 (a) (5); Ga. Laws 1974, p. 1455) and Ga. Code Ann. 24A-2501 (Ga. Laws 1973, p. 882) are not in conflict with one another, and the determination of previous adjudications required in one aspect of S. B. 292 is a judicial function rather than an administrative function.

Your letter of May 28, 1974 presents two questions regarding S. B. 292 enacted by the 1974 General Assembly.
This law provides for certain situations in which nonadults may be sentenced to the Department of Offender Rehabilitation, and you asked, first, whether there is a conflict because S. B. 292 and a related law may appear to speak at different points of three, different, cut-off ages-13, 15 and 17. Second, you asked how your department may determine whether a person sentenced under S. B. 292 was "previously adjudicated to have committed an act which is a felony if tried in a superior court." This adjudication is a requirement in one of the several situations in S. B. 292 under which a youth may be sentenced to your department.
S. B. 292 is the latest of a series of amendments to the Children and Youth Act, each of which has been codified at Ga. Code Ann. 99-209 (a) (5). Generally, these amendments have made the Department of Human Resources the exclusive state agency for the acceptance and incarceration of persons who are less than a stated age, except that in certain situations, confinement in the Department of Offender Rehabilitation has been authorized. Ga. Laws 1963, pp. 81, 94; 1969, p. 996; 1972, p. 1251; 1973, p. 563; 1974, p. 1455 (Ga. Code Ann. 99-209 (a) (5)).
Under S. B. 292, which takes effect July 1, 1974, the new version of Ga. Code Ann. 99-209 (a) (5) will apply to persons who are less than 17 years old. As in the previous versions, the exceptions under which incarceration of such persons in the Department of Offender Rehabilitation is authorized will all be situations in which there has been a criminal conviction. Under Georgia criminal law, only persons 13 or older may be convicted of a crime. Ga. Laws 1968, p. 1249 (Ga. Code Ann. 26-701). This expla1hs the indication in the title of S. B. 292 that it is an Act to amend the Children and Youth Act "so as to provide

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that felons over the age of 13 may be sentenced into the custody of the Department of Offender Rehabilitation...."
Georgia juvenile laws actually qualify this age limit even further. Except in the case of capital crimes, juvenile courts generally have exclusive, original jurisdiction of children and may not transfer them to other courts for criminal proceedings unless the child is 15 or older. Ga. Canst., Art. VI, Sec. IV, Par. I (Ga. Code Ann. 2-3901); Ga. Laws 1971, pp. 709, 712; 1973, pp. 882, 883 (Ga. Code Ann. 24A-301); Ga. Laws 1971, pp. 709, 736; 1973, pp. 882, 887 (Ga. Code Ann. 24A-2501).
In other words, a person will not come to your department, under the exceptions of S. B. 292, unless he is less than 17, and unless he is at least 13 in the case of a capital crime or is at least 15 in the case of other cnmes.
Commitment to the Department of Offender Rehabilitation is mandatory if the child is convicted of a capital crime under S. B. 292. It is a discretionary decision for the court in the other two situations under which S. B. 292 authorizes commitment to your department.
These two situations involve escape from a youth detention center and the situation to which you refer in your letter:
"[A]ny child who has previously been adjudged to have committed an act which i~ a felony if tried in a superior court, and who, on a second or subsequent occasion, is convicted of a felony in a superior court may, in the discretion of the court, be sentenced into the custody of the State Department of Offender Rehabilitation as otherwise provided by law or be committed as a youthful offender as authorized in the Georgia Youthful Offender Act...."
Under this language, the superior court judge will determine that there has been a prior adjudication before exercising his authority under S. B. 292. In other words, responsibility for the determination is in the sentencing court, rather than in your department. Generally speaking, this will be a matter of record in each proceeding. My staff is available, of course, to assist your staff in the interpretation of any particular sentence.
In summary, the ages referred to in S. B. 292 and Ga. Code Ann. 24A-2501 are not in conflict with one another, and the determination of previous adjudications required in one aspect of S. B. 292 is a judicial function rather than an administrative function.

OPINION 74-89
To: Commissioner, Department of Human Resources July 5, 1974
Re: All persons who are employed in a health district and whose salary is paid directly by the Department of Human Resources, with

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the exception of the district health director, are employees of the Department of Human Resources and the Commissioner of the Department is therefore the appoilnting authority for such employees.
[Title 88 sections are based on Ga. Laws 1964, p. 499.] This is in response to your letter requesting our oponion as to whether you would be the appointing authority for those persons, other than the district health directors, who are employed in the various health districts in this state and whose salary is paid by the Department of Human Resources. In order to answer your request, it was first necessary to examine the duties of the county and the state in providing various health services to the citizens of Georgia. Georgia Code Ann. 88-201 established a county board of health in each and every county of the state and Ga. Code Ann. 88-203 enumerated the scope of the functions which the county boards of health were to perform. This latter section provides that:
"The county board of health shall have and discharge, within its jurisdiction, subject to any valid local Act, which shall remain in force and effect, the following functions:
"(a) To determine the health needs and resources thereof by research, collection, analysis, and evaluation of all data pertaining to the health of the community;
"(b) To develop, in cooperation with the Department of Public Health, programs, activities and facilities responsive to the needs of its area;
" (c) To secure compliance with the rules and regulations of the Department of Public Health that have local application;
"(d) To enforce, or cause enforcement of, all laws pertaining to health unless the responsibility and the enforcement of such is by law that of another agency."
The responsibility of the state within the area of health is defined by Ga. Code Ann. 88-108, which defines the duties, functions and powers of the Department of Public Health, now the Department of Human Resources. That section provides in part that:
"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."
Therefore, it is clear that both the state and the county have very broad duties and responsibilities in the area of public health and insofar as the positions taken by the county and state are not incon-

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sistent, it is evident that they can both function in the same areas. This position is emphasized by the provisions in Ga. Code Ann. 88-203 which authorizes the county boards of health to develop, in cooperation with the Department of Public Health, programs, activities and facilities responsive to the needs of its area.
In delineating how the county boards of health are to carry out their functions, Ga. Code Ann. 88-211 provides that each county board of health shall appoint a director for the county who will have the authority to designate aides and assistants consistent with the budget adopted by the county board of health. As an alternative to each county doing this, Ga. Code Ann. 88-215 authorizes the Department of Public Health, now the Department of Human Resources, with the consent of the boards of health and the county authorities involved, to establish health districts comprised of one or more counties. That section provides that the constituent counties of any health district would then appoint a single director to serve all of the constituent counties and that he would have the same powers, duties and responsibilities as would a director serving a single county board of health. Thus, it is clear that the district health director may exercise the same powers, duties and responsibilities as a director serving a single county which would necessarily include the authority to designate aides and assistants, with the proviso that this authority is limited by the budget adopted by the counties involved.
Therefore, it is clear that the counties could appropriate funds for the purpose of authorizing the district health director to appoint aides and assistants to enable him to perform his functions for the counties. It is equally clear that any person so designated and appointed by the district health director, and whose position was funded by appropriations of the county, would be an employee of the county and that the district health director would be the appointing authority for such person.
It is equally clear, however, that the state, in performing its functions in the area of public health, could establish and fund positions throughout the state in order to enable it to carry out its functions in the area of public health. Those persons in positions which were created and funded by the Department of Human Resources would then be subject to the control of the Department of Human Resources and their appointing authority would be the commissioner of that department.
Therefore, in any health district, it would be necessary to examine each position to determine whether that position had been created and funded by the counties or by the state. Those positions which are funded by the counties would be filled by persons who are county employees and for whom the district health director would be the appointing authority. Those positions which are created and funded by the Department of Human Resources would be filled by employees

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of the Department of Human Resources and the commissioner would be their appointing authority.
In Op. Att'y Gen. 74-19, I concluded that the employees of the various health districts are employees of the respective counties and not employees of the Department of Human Resources. To the extent that these opinions conflict, this opinion controls.
Therefore, it is my official opinion that in determining whether you or the district health director is the appointing authority for any particular employee, it will be necessary to examine the position which the employee fills with the view that such a determination may only be made in the light of the source of the creation and funding of the particular position.

OPINION 74-90

To: Secretary of State

.July 19, 1974

Re: A member of the Carroll County Board of Elections may be a member of a city council but must resign his position on the board of elections six months prior to the city election if he chooses to run for reelection.

This is in response to your request for an opinion regarding a portion of Ga. Laws 1974, p. 3556, which creates a Board of Elections for Carroll County. The section in question states in part:
"No member of the board of elections shall be eligible to offer for elective public office for six months following his service on the board."
You have advised me that two members of the newly appointed board also hold elective positions in the City of Carrollton. You have asked whether the above quoted provision or any other provision of the law prohibits a city councilman from serving on the Carroll County Board of Elections. For the following reasons, it is my official opinion that a city councilman may serve on the Carroll County Board of Elections so long as he resigns his position on the board six months prior to the city election.
The newly created Board of Elections for Carroll County succeeds to the functions of the ordinary under the Georgia Election Code, Title 34. When the ordinary runs for reelection or for another public office, Ga. Code Ann. 34-405 (amended by Ga. Laws 1971, p. 602) provides that a special board shall assume the duties of the election superintendent for such primary or election. The rationale of this section obviously is that the ordinary should not supervise the election in

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which he is a candidate. The above quoted section in the Act establishing the Carroll County Board of Elections would be analogous to the general provision with regard to ordinaries and would have the purpose of preventing a member of the board of elections supervising his own election. Further, the section in question does not specifically state that a city official is ineligible to be appointed to the board of elections or to serve on the board of elections, and in the absence of such a specific prohibition, a disqualification should not be inferred.
I know of no other provision of law which would prohibit the simultaneous holding of the offices of councilman and member of the board of elections. Compare Ga. Code (1933) 89-103 and 69-201. See Op. Att'y Gen. 69-108 (unofficial).
Therefore, for the foregoing reasons, it is my official opinion that a member of the Carroll County Board of Elections may be a member of the city council but must resign his position on the board of elections six months prior to the city election if he chooses to seek reelection.

OPINION 74-91
To: Commissioner, Georgia Department of Labor July 23, 1974
Re: A hydropneumatic tank which exceeds 40 pounds per square inch pressure is within the coverage of Ga. Laws 1969, p. 546.
I write in response to your letter of May 24, 1974, requesting my opinion as to whether it was the intention of the General Assembly to include hydropneumatic tanks, which are engineered to provide water systems of 20 to 60 pounds per square inch pressures, within the coverage of Ga. Laws 1969, p. 546. You point out your feeling that hydropneumatic vessels are relatively safe in the above pressure range and that they have little or no explosive potential under ordinary conditions of use.
The pertinent provisions of Ga. Laws 1969, p. 546 (Ga. Code Ann. 92A-1401, 92A-9928), provide:
"No boiler or pressure vessel shall be constructed or installed in the State of Georgia which does not satisfy the design specifications of the American Society of Mechanical Engineers Boiler and Pressure Vessel Code.
* * *
" ... This Act shall not apply to vessels with pressures of 40 pounds or less."
The above cited language of the Act appears to clearly provide that all pressure vessels are within the coverage of the Act except

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those having pressures of 40 pounds or less. Accordingly, a hydropneumatic tank having a pressure exceeding 40 pounds per square inch would be within the coverage of the Act.
However, coverage by that Act does not automatically require a particular pressure vessel to be designed and constructed with unique characteristics. Examination of the American Society of Mechanical Engineers Boiler and Pressure Vessel Code (ASME Code), which is the referenced standard in the Act, reveals that a hydropneumatic tank could fall under several sections of that Code. Each of the sections enumerates certain exceptions for pressure vessels which otherwise would appear to be within the jurisdiction of that section. For example, Section VIII of the 1971 ASME Code, titled "Pressure Vessels-Division One" provides under paragraph U-1(d):
"The following classifications are not considered to be within the jurisdiction of this division of Section VIII. ... (2) Vessels with a nominal water containing capacity of 120 gallons or less for containing water under pressure, including those containing air, the compression of which serves only as a cushion."
The above is but one example of a pressure vessel which is excepted from coverage under a particular section of the ASME Code. In order for you to determine whether a hydropneumatic tank or pressure vessel must be designed and constructed in any particular manner, it appears necessary that you (1) determine whether the pressure vessel will be operating at 40 pounds pressure or less; and (2) in the event that the vessel is operating at greater than 40 pounds per square inch, that you examine the ASME Code to determine whether the particular pressure vessel is within the jurisdiction of a section of the ASME Code. If a pressure vessel, having a pressure in excess of 40 pounds, is within the coverage of a section of the ASME Code, absent a waiver by the Commissioner of Labor, as is authorized by the Act, the particular pressure vessel would have to be constructed and installed in accordance with the design specifications of the section of the ASME Code having jurisdiction over the pressure vessel in question.

OPINION 74-92

To: Director, Employees Retirement System

July 24, 1974

Re: The attempt by a member of ERS to change her beneficiary for the life insurance payment and the monthly retirement benefit by will is of no legal effect and should be considered a "mistake" in the construction of that provision of the will.

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This responds to your request for my opinion as to whom certain retirement allowances should be paid following the recent death of one of the members of the Employees Retirement System (ERS). An explanation of the factual situation generating your request is necessary for me to give you my opinion on the legal question involved. The facts, as I understand them from you, are set out below.
A member of the ERS died on May 26, 1974. while a member of the system, she named her son as her primary beneficiary to receive any benefits from the system in the event of her death prior to retirement. Additionally, she designated her son as the recipient of her life insurance payment (survivors' benefits). As a result of her death while in service, her beneficiary is due a life insurance payment of $6,637.62, as well as a monthly retirement benefit payment of approximately $92.
Although the designated beneficiary form on file with your office indicates these payments are to be made to her son, the deceased's last will and testament, executed April 22, 1974, states that all retirement benefits from the State of Georgia should be paid monthly to her husband as long as he lives, with the remainder, following his death, to be placed in a trust fund for her grandchildren. The question then, simply stated, is who is entitled to the life insurance payment and the monthly retirement benefit.
The ERS statutes provide that any member may designate and change a beneficiary for the receipt of any retirement benefit or life insurance payment. Ga. Laws 1949, p. 138 et seq., as amended (Ga. Code Ann. 40-2505, 40-2523). The retirement statutes, including provisions for the designation of a beneficiary, become a part of the member's employment contract with the State of Georgia. Cf. Trotzier v. McElroy, 182 Ga. 719 (1936). The designation of a member's beneficiary, and any changes thereof, are required to be effected by the member's written designation filed with the system.
The State Employees Assurance Department was created by law to underwrite life insurance coverage for all members of the ERS. Ga. Laws 1967, p. 751 (Ga. Code Ann. 40-2534). The Assurance Department has contracted with the ERS to provide life insurance protection and benefits to members of the system, the life insurance payments to be paid by reason of the death of the insured to a designated beneficiary or, if none, to the estate of the deceased. Ga. Laws 1963, p. 521 et seq. (Ga. Code Ann. 89-1408).
The contract between the ERS and the Assurance Department provides that any member may change the beneficiary of his or her insurance. The prevailing rule of law holds that where the insured is allowed the right under the contract to change his beneficiary, the named beneficiary does not by designation acquire a vested interest in the policy contract and the insured may change the beneficiary at will. Cheek v. Rice, 30 Ga. App. 779 (1923).

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The mere intent to change the designation of a beneficiary is not sufficient standing alone. This intent must be followed by some affirmative act of the insured, evidencing his exercise of the right to change the beneficiary. Smith v. U.S., 421 F.2d 634 (5th Cir. 1970). Where a life insurance policy reserves to the insured the right to change the beneficiary, or allows such change, the right is one of contract and the change of beneficiary can be accomplished only in the manner provided in the policy. Merchants Bank v. Garrard, 158 Ga. 867 (1924). The contract between the ERS and the Assurance Department provides that a change of beneficiary must be in writing signed by the employee and must be filed with the ERS.
Some consideration should be given at this point to the idea or concept of substantial compliance. If the insured (member) has done substantially all that is required of him to effect a change of beneficiary and all that remains to be done is a ministerial act of the insurer, some relief from the requirement of strict compliance with the contract terms may be possible. In such a case, the change of beneficiary will take place although the details are not completed. Kimbrell v. Lincoln National Life Ins. Co., 217 Ga. 335 (1961). Substantial compliance, however, means the insured must have done everything reasonably within his power to effect a change of beneficiary. West v. Pollard, 202 Ga. 549 (1947). Some courts disagree as to whether substantial compliance with the requirements of the insurance contract will suffice for a change of beneficiary (see Brown v. Dennis, 133 Ga. 791 (1909)), but where the contract of insurance specifies a method for effecting a change of beneficiary, the courts usually interpret this to be the exclusive method, even where the contract's language is not clear on this point. Nally v. Nally, 74 Ga. 669 (1885).
In the situation you present, it does not appear that the member falls within the ambit of the substantial compliance rule, since she failed to comply with the requirements in her contract as to the designation of a new beneficiary. The majority rule of law holds that the attempt to change a beneficiary by an insured's will does not constitute substantial compliance with the contract language and is, therefore, ineffective. Mitchell, Georgia Law on Insurance, 68-103, p. 373 (1965).
A conclusion that the member's will is ineffect1ve to change her beneficiary is buttressed by the law of wills and estates. Normally, an attempt to pass the proceeds of an insurance policy by will is treated as a "mistake," and no relief will be granted for the testator's "mistake" as to the legal effect of the provision. Atkinson, Handbook of the Law of wills, 58, p. 277 (2d ed. 1953). The insurance policy is a valid nontestamentary method by which the proceeds of the policy pass outside the will, and the "mistake" by the testator in believing that the proceeds are governed by the will makes no difference. This rationale

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as to the member's life insurance payment applies with equal force to the monthly retirement benefit since the statutes and the member's employment contract designate a specific method whereby the beneficiary may be changed.
Therefore, based on the foregoing authorities and discussion, it is my official opinion that the attempt by a member of ERS to change her beneficiary for the life insurance payment and the monthly retirement benefit by will is of no legal effect and should be considered a "mistake" in the construction of that provision of the will. Accordingly, the life insurance payment and the monthly retirement benefit should be paid to the son since he is designated on the form filed with the ERS office as the named beneficiary.

OPINION 74-93

To: Director, State Merit System of Personnel Administration

.July 24, 1974

Re: The position of head of a department or division director of any agency created by a transfer of functions is in the unclassified service of the State Merit System of Personnel Administration even if the position was created two years subsequent to the Executive Reorganization Act of 1972.

This is in response to your recent letter regarding the classification of heads of divisions created by reorganization activity subsequent to the Executive Reorganization Act of 1972. From your request I gather that since the Executive Reorganization Act of 1972 several departments have found it necessary to create new divisions as a result of a transfer of functions. This raised the question of whether the heads of these new divisions are in the classified or unclassified service. The answer to this question lies in Section 2501 of the Executive Reorganization Act of 1972 which is found at Ga. Laws 1972, pp. 1015, 1068 (Ga. Code Ann. 40-35212), and provides as follows:
"The position of, or person occupying the position of, head of department or division director of any agency created by the transfer of functions shall be in the unclassified service as defined in the Acts governing the State Merit System, except for the Director of the Personnel Division of the Department of Administrative Services, the official of the Department of Human Resources in charge of vocational rehabilitation, and the Director of the Environmental Protection Division of the Department of Natural Resources who shall be in the classified service. The position of head of department or division director of any agency

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created by the transfer of functions shall be new positions. The State Personnel Board shall adopt rules and regulations not inconsistent with this Chapter to effectuate the transfer of positions and personnel and classification of such positions."
The cardinal rule in construing any statute is to look to the legislative intent. See Barton v. Atkinson, 228 Ga. 733, 738 (1972); Boyles v. Steine, 224 Ga. 392, 395 (1968); Ga. Code (1933) 102-102 (9). However, where the statute is clear and plain there is no interpretation necessary and the statute should be held to mean what has been clearly expressed. See Barnes v. Carter, 120 Ga. 895, 898 (1904). The above quoted section of the Executive Reorganization Act of 1972 does not contain any time limitations as to its application. Clearly, it was the legislature's intent and is so provided by the 1972 Act that the position of head of a department or division director of any agency created by the transfer of functions shall be in the unclassified service. Therefore, it is my official opinion that the position of division director of any agency created by the transfer of functions is in the unclassified service of the State Merit System of Personnel Administration even if the position was created two years subsequent to the Executive Reorganization Act of 1972.

OPINION 74-94

To: State Superintendent of Schools

July 24, 1974

Re: The State Board of Education's authority to enforce standard requirements for educational institutions which issue degrees or diplomas is quite limited; its authority does not extend to institutions subject to the control of the Board of Regents, to educational institutions which are unincorporated, to educ&tional institutions incorporated under the laws of other states, or to educational institutions incorporated under the laws of Georgia once they have received the State Board of Education's pre-incorporation certificate of approval.

This is in reply to your letter of the 15th in which you ask three questions concerning the State Board of Education's obligations under Ga. Laws 1937, pp. 864, 868 (Ga. Code Ann. 32-415). This statute declares that:

"The State Board of Education shall prescribe, by regulation, standard requirements for universities, colleges, normal or professional schools, conferring degrees or issuing diplomas in this state, and no charter granting the right to confer such degrees or diplomas shall be granted or issued until the applicants therefor have obtained from the State Board of Education a certificate showing that such requirements of the board have been met."

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Before proceeding to restate and respond in turn to each of the questions you have posed, I might again point out that neither the statute itself nor (so far as I am aware) any other provision of Georgia's school laws provides for any means of enforcement. The very limited nature of the authority which this 1937 Act gives to the State Board of Education has been discussed in at least two previous opinions of the office of the Attorney General. In Ops. Att'y Gen. 1958-59, p. 114, it was concluded that where the educational institution is not chartered (that is to say not a corporation), it may grant degrees without State Board approval. InOps. Att'y Gen. 1958-59, p. 113, the limited nature of the State Board's control over even those educational institutions which are chartered (i.e., are corporations) was set forth as follows:
" ... when such approval [of the State Board of Education] is given, there is an authorization for a corporation to be chartered by a superior court of the state. . . . Once this corporation is chartered, the State Board of Education has no further jurisdiction over the college. Hence, if [the college] fails to fulfill the conditions imposed upon it by the Board of Education, no action may legally be taken to disturb the charter which will have been granted to the school by the superior courts of the state."
Upon reexamination of these prior opinions of the office of the Attorney General, I believe they accurately analyze the very limited scope of the 1937 Act. In this light I shall now restate and respond to each of your three present questions on the legislation.
1. Does the State Board of Education have responsibility to apply the rules which it has developed as it pertains to the establishment of a professional school such as is being discussed in the popular press with regard to a law school at Georgia State University?
The answer to this question is contained in Ga. Const., Art. VIII, Sec. IV, Par. I (Ga. Code Ann. 2-6701), the relevant portion of which provides that:
"There shall be a Board of Regents of the University System of Georgia, and the government, control and management of the University System of Georgia and all of its institutions in said system shall be vested in said Board of Regents of the University System of Georgia...." (Emphasis added.)

Whatever the situation may have been with respect to the applicability of Ga. Laws 1937, pp. 864, 868 (Ga. Code Ann. 32-415), to public universities, colleges and professional schools when the legislation was enacted in 1937, there can be no doubt as to the fact that with respect to those public educational institutions which are now a part of the University System of Georgia it has been superseded by

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this provision of the 1945 Constitution-which vests full authority and control over the affairs of such member institutions as Georgia State University in the Board of Regents of the University System of Georgia. While any further answer would (in light of the foregoing) seem unnecessary, it might also be noted in passing that even if the Act were to be construed to be applicable to member institutions of the university system it would not apply to the mere addition of a new department or "school" to an existing university which had already been approved and chartered unless the new department or school were going to be operated as a separate and independently chartered entity. See Ops. Att'y Gen. 1958-59, p. 114.
2. In instances where it has been demonstrated there are schools which have received a charter and have begun operation without having received the certificate attesting to their having met certain requirements, what action should the State Board of Education take to enforce compliance with this provision of the law?
The question of what can be done where a degree or diploma granting educational institution is in fact granted a charter by virtue of an order of the superior court, notwithstanding the institution's failure to obtain a certificate of approval from the State Department of Education in accordance with Ga. Code Ann. 32-415, is not susceptible of any clear-cut answer. We have ~tlready pointed out that this 1937 legislation lacks any enforcement provisions. It does indeed say that the superior court "ought" not to charter a degree-granting educational institution which doesn't have the certificate of the State Board. However, what if the court does? There is no question that the institution is then chartered (i.e., incorporated) by a judicial order of a court of competent jurisdiction. Does the entry of the superior court's order cure irregularities in the meeting of this pre-incorporation requisite? Is the General Assembly's certificate requirement in Ga. Code Ann. 32-415 merely directional (not affecting the validity of the charter) or is it an absolute mandate which goes to the charter's validity? All of these questions are wholly unresolved by the courts and any prediction as to how they would be resolved would seem to be no more than conjecture.
Looking to the general corporation laws, I find that the section on involuntary dissolution (i.e., Ga. Laws 1968, pp. 565, 699 (Ga. Code Ann. 22-1314)) does provide that a corporation may be dissolved pursuant to legal action if it can be shown that the educational institution "procured its articles of incorporation through fraud." If a situation ever arose where it could be proved that the person who obtained the charter had done so by knowingly lying to or deceiving the superior court about their compliance with the Act, this "involuntary dissolution" procedure might be of some use. Needless to say, the

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burden of proving "knowing" or "willful" deception would be exceedingly difficult.
A second possible vehicle for enforcement under the general law applicable to business corporations would be a charter forfeiture proceeding under Ga. Laws 1968, pp. 565, 800, as amended (Ga. Code Ann. 22-4109). In addition to providing for a forfeiture proceeding by the Secretary of State for "having procured its charter through fraud" (which would have the same possible limited use and suffer the same practical difficulties as the above discussed provisions relating to "fraud" as a ground for "involuntary dissolution"), this section of the Corporation Code provides for a forfeiture proceeding by the Secretary of State for:
" ... continuing, after written notice by the Secretary of State to the corporation ... to violate the laws of this State in a manner likely to injure the public...."
While I am unaware of any instance in which this charter forfeiture provision has been applied to an educational institution which has obtained its charter without compliance with the certificate requirements of Ga. Code Ann. 32-415, it would seem at least theoretically possible to do so.
A final enforcement vehicle which conceivably is available would be a simple suit in equity to restrain the institution from conferring degrees or diplomas until such time as it has obtained the necessary certificate. Although there is no express provision in Georgia's school laws to authorize this means of enforcement it is provided with respect to the general equitable jurisdiction of the superior courts that:
"Equity jurisdiction is established and allowed for the protection and relief of parties, where, from any peculiar circumstances, the operation of the general rules of law would be deficient in protecting from anticipated wrong or relieving for injuries done." Ga. Code (1933) 37-102.
In discussing these possible enforcement vehicles, of course, the substantial and unresolved legal questions which we first mentioned in responding to your second question would still be present whichever procedure is selected. Any proceeding would be very much a "test case."
3. Do the present statutes provide for the regulation of such degree or diploma granting institutions which are chartered in other states but are operating branches in the State of Georgia'?
InOps. Att'y Gen. 1958-59, p. 114, it was pointed out that:
"Under the present phraseology of the law, if an educational institution is not chartered, i.e., is not a corporation, then it may

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grant degrees and diplomas without the necessity of State Board approval."
Implicitly recognized in this language is the fact that the sole, very limited, point of presence or inducement for compliance with the 1937 Act is the presumed barrier to incorporation which the lack of State Board approval erects. The Act seems, in other words, to make the State Board's approval a requisite to incorporation. However, Georgia law on the incorporations of business entities and the requisites to their being chartered by the superior courts of this state obviously apply only to those entities seeking to become or becoming corporations under the laws of the State of Georgia. An educational institution which obtains its charter in another state is not bound by the requisites which Georgia law establishes solely in connection with incorporation in Georgia. Thus under the present phraseology of Ga. Code Ann. 32-415 it would appear that an educational institution existing as a corporation under the laws of another state is in the same status as an unincorporated educational institution of this state. Neither is required to obtain a certificate of approval from the State Board of Education in order to confer degrees or diplomas.
In conclusion it can only be said that the State Board of Education's authority under Ga. Laws 1937, pp. 864, 869 (Ga. Code Ann. 32-415), to enforce standard requirements for educational institutions which issue degrees or diplomas is very limited. The board's authority does not extend to institutions subject to the control of the Board of Regents, to educational institutions which are unincorporated, to educational institutions incorporated under the laws of other states, or to educational institutions incorporated under the laws of Georgia once they have been granted a certificate of approval by the State Board of Education as a requisite to incorporation. The authority of the State Board of Education to interfere with an educational institution which has been incorporated under the laws of Georgia without the certificate raises legal questions which are wholly unsettled.

OPINION 74-95

To: Governor of Georgia

July 26, 1974

Re: The district attorney of the Ocmulgee Judicial Circuit may employ additional assistants but neither state nor county funds may be employed, independently or for the purpose of matching of federal funds, to compensate the assistant so employed.

This is in response to your request for my opinion as to whether legislation would be required before an assistant district attorney may

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be employed in the Ocmulgee Judicial Circuit pursuant to a State Crime Commission grant of federal funds. You also requested advice as to the procedure to be used, in the event present law authorizes the appointment, in selecting and appointing such an assistant district attorney.
It is my opinion that no special legislation is required in order to authorize the district attorney to appoint assistants to aid him in the performance of his duties. The inherent power to do so has been specifically recognized by the Supreme Court of Georgia and the exercise thereof complemented. Vernon v. State, 146 Ga. 709, 712 (1917).
The issues of more practical concern, which are presented by your request, involve the source from which is to be obtained the compensation payable to any such assistant. The potential sources include federal, state, and county funds.
With respect to federal funds made available to the State Crime Commission for its disposition, there is no provision of state law of which I am aware which prohibits a grant by the State Crime Commission to the office of district attorney of Ocmulgee Judicial Circuit for that purpose if federal law permits a grant for that purpose.
However, in the case of Ocmulgee Judicial Circuit, the State Crime Commission is not authorized independently, or for the purpose of matching of federal funds, to grant state funds for that purpose. Section 1 (d) of Ga. Laws 1970, p. 716, as amended, specifically precludes the use of state funds for the payment of the compensation of an assistant to the district attorney other than the one assistant district attorney presently authorized for Ocmulgee Judicial Circuit by that Act. Op. Att'y Gen. U72-75.
Finally, neither Ga. Laws 1968, p. 994, nor any other statute authorizes the counties within the Ocmulgee Judicial Circuit, either jointly or individually, to pay county funds, either independently or as matching of federal funds, for the purpose of compensating an assistant district attorney. Section 7 of Ga. Laws 1968, pp. 992, 994 (Ga. Code Ann. 24-2928), provides:
"The county or counties within a judicial circuit ... may provide additional personnel to assist him as may be necessary to insure the orderly and efficient operation of the [district attorney's] office as may be provided for by the provisions of local Acts pertaining thereto." (Emphasis added.)
The emphasized language clearly contemplates local legislation as a prerequisite to the expenditure of county funds for the purpose of compensating personnel, including assistant district attorneys, employed by the district attorney.
For these reasons, it is my official opinion that the district attorney of the Ocmulgee Judicial Circuit may employ additional assistants

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but that neither state nor county funds may be employed, independently or for the purpose of matching of federal funds, to compensate the assistant so employed.

OPINION 74-96

To: Secretary of State

July 29, 1974

Re: Neither the State Election Board nor the Secretary of State has the authority to order candidates' names removed from primary ballots.
This is in response to your letter requesting my opinion concerning the authority of the State Election Board to order candidates' names removed from the primary ballot. Recently, the board has received two requests for such action. In each instance, it was alleged that a candidate for the House of Representatives did not meet the eligibility requirements for that office because he will not have lived in his House District for one year preceding the election. See Ga. Code Ann. 47-101 (amended by Ga. Laws 1971, Extra. Sess., p. 22; 1972, p. 250). For the following reasons, it is my opinion that neither the Election Board nor, I might add, the Secretary of State has the authority to order candidates' names removed from the primary ballots.
Candidates for party nomination in a primary qualify with the political party by paying a qualifying fee or by filing a qualifying petition with the party by the second Wednesday in June. See Ga. Code Ann. 34-1005 (Ga. Laws 1970, p. 347). Pursuant to Ga. Code 34-1005 (a), the parties may prohibit a person from qualifying for an office if he does not meet the eligibility requirements to hold office, if he is a subversive person or if he has been convicted of certain crimes. On or before the third Wednesday in June, the parties then certify to the Secretary of State (or ordinary, depending upon the office) the names of candidates who have qualified with the party. See Ga. Code Ann. 34-1006. If the candidate has filed a qualifying petition, it must then be validated by the Secretary of State. See Ga. Code 34-1005 (a). The Secretary of State must then "certify to the proper ordinaries official lists of all the political party candidates who have been certified to the Secretary of State as qualified candidates for the succeeding primary. . . ." Ga. Code Ann. 34-301 (d) (amended by Ga. Laws 1970, p. 347). The ordinaries then prepare the primary ballots from the list of names first certified by the parties and then by the Secretary of State. There is thus no explicit authority in these Code sections for either the Secretary of State or the Election Board to make an independent determination of eligibility to hold office or for them to order an ordinary to remove a name from the primary ballot

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after it has been certified by the Secretary of State to the ordinary. Indeed, Code 34-301 (d) seems to preclude such authority since the Secretary of State under that section has an affirmative duty to certify those candidates who have been certified to him "as qualified candidates for the succeeding primary."
The State Election Board has certain supervisory duties, pursuant to Ga. Code Ann. 34-202 (Ga. Laws 1964, Extra. Sess., pp. 26, 36), among them:

"(e) To investigate when necessary or advisable the administration of primary and election laws ... and to report violations of the primary and election laws to the appropriate solicitor general for further investigation and prosecution ...
* * *
(h) To take such other action, consistent with law, as the board may determine to be conducive to the fair, legal and orderly conduct of primaries and elections."

The power to investigate the administration of primary and election laws, granted in subsection (e) of Ga. Code Ann. 34-202, clearly relates to the investigation of possible criminal violations and the reporting of such possible violations to the appropriate authorities for prosecution. The catchall language in subsection (h) likewise grants no implied new powers since it would not be consistent with law for the State Election Board to assume the authority to remove a candidate's name from the primary ballot when the Secretary of State is specifically required to certify all names certified to him by the parties. Further, to read subsection (h) to allow the State Election Board to remove candidates' names from the primary ballots would mean that the board was assuming quasi-judicial functions without an express grant of authority to do so by the General Assembly. See Thompson v. Stone, 205 Ga. 243 (1949); Nash v. Robinson, 159 Ga. 185 (1924). As illustrated by the two cases brought to your attention, it is clear that many questions relating to eligibility to hold office require at least a trial type hearing, if not full judicial determination. Yet, no procedure is set out in the Election Code for the Election Board to hold such trial type hearings. In the absence of express authority to assume such a quasi-judicial function, it is my opinion that the Election Board may not exercise such power.
The State Election Board does have the right under Ga. Code Ann. 34-203 to institute a civil suit in the appropriate court to compel compliance with the Election Code. This is a purely discretionary right which may be exercised in a case deemed appropriate by the board. Of course, the grant of this right does not preclude any other official

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or citizen from pursuing a legal action to compel compliance with the Election Code.
For these reasons it is my official opinion that neither the State Election Board nor the Secretary of State has the authority to order that a person's name be removed from a primary ballot.

OPINION 74-97

To: Executive Secretary, Board of Regents

July 29, 1974

Re: The term "offenses" as used in Ga. Laws 1974, p. 611, is sufficiently broad so as to encompass the violation of municipal ordinances.

This is in reply to your letter of the 17th. You refer to Ga. Laws 1974, p. 611 (Ga. Code Ann. 32-168), which provides in part:
"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 and for offenses committed upon any public or private property within 500 yards of any property under the jurisdiction of the Board of Regents of the University System of Georgia."
You then point out that questions have been raised as to whether security personnel of the University System have authority to make arrests under this statute for violation of municipal ordinances occurring within the stated jurisdiction. You wish to know, in other words, whether the word "offenses" as used in this statute encompasses violations of municipal ordinances.
':Vhile not a particularly precise term, the word "offense" has been defined generally as the transgression of a law for which punishment may be inflicted. 22 C.J.S. Criminal Law, 1. This very general term often appears to be used as a synonym of the word "crime." See U.S. Const., Amend. V. In Pearson v. Wimbish, 124 Ga. 701, 708 (1906), the Supreme Court of Georgia expressly referred to the violation of a municipal ordinance as an "offense." The court defined the word "crime" as encompassing all penal offenses, including "offenses against the ordinance of a municipality as well as offenses against the penal laws of the State." See also, Norris v. Mayor & Council of Thompson, 15 Ga. App. 511 (1914).
In light of the foregoing, it is my opinion that the term "offenses" as used in Ga. Laws 1974, p. 611, is sufficiently broad so as to encompass the violation of municipal ordinances.

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OPINION 74-98

To: State Superintendent of Schools

July 30, 1974

Re: The general school laws of Georgia do not authorize local boards of education to enter into contracts with out-of-state school systems for the education of pupils residing in this state.

This is in reply to your letter of the 15th in which you ask whether it is legal for a local board of education in this state to contract with the local board of education of another state and pursuant to that contract to utilize state funds for educational services to be rendered to Georgia students by the out-of-state school system.
Upon review of various provisions of our State Constitution relating to contracts of local political subdivisions and local school systems, see, e.g., Ga. Const., Art. VII, Sec. VI, Par. I (Ga. Code Ann. 2-5901) [contracts for the use of public facilities]; Art. VIII, Sec. IX, Par. II (Ga. Code Ann. 2-7202) [contracts between local school systems for the care and education of their pupils], and upon review of related statutes, see, e.g., Ga. Laws 1964, pp. 3, 44 (Ga. Code Ann. 32-650), I find no legal authorization for the county or city boards of education of Georgia to contract with out-of-state school systems with respect to the care and education of pupils residing in this state, at least in the absence of any involvement on the part of the State Board of Education.1
Since it is axiomatic that the powers of public officials and bodies in the State of Georgia are limited to those provided by law, see Ga. Code (1933) 89-903, and since I am unaware of any state constitutional provisions or statutes which either expressly or by clear implication authorize local boards of education to enter into the questioned contracts with out-of-state school systems, it is my opinion that their execution of the same is unauthorized by the laws of Georgia.

1 The State Board of Education, it should be noted, does have authority to enter into agreements with other states or their political subdivisions for educational and training
services for severely mentally retarded children. See Ga. Laws 1958, p. 206 (Ga. Code Ann. 32-812). Additionally, should the General Assembly appropriate funds and the State Department of Education promulgate appropriate regulations, it would
not be inconceivable for children in Georgia to attend school in other states with the aid of tuition payments pursuant to the 1962 tuition grant laws. See Ga. Laws 1962,
p. 552 et seq. (Ga. Code Ann. 32-813 through 32-819). However, none of these provisions confers directly upon local school systems the power about which you have inquired.

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OPINION 74-99

To: Commissioner, Department of Public Safety

July ~n, 1974

Re: (1) A police officer is authorized to remove a vehicle from the highway when certain conditions are met. (2) The officer will be personally liable for damage to the vehicle when his acts constitute gross negligence. (3) An officer may not remove a vehicle from the roadway simply because he determines it is not safe for operation.

This is in reply to your letter requesting an official opinion on the authority of a member of the State Patrol to take custody of a vehicle when the driver has violated the traffic laws.
[1] In your first question you ask what traffic violations would give an officer authority to take a vehicle into custody.
Your question is answered by Ga. Code Ann. 68A-1002/ which became effective July 1, 1974:
"(a) Whenever any police officer finds a vehicle in violation of any of the provisions of 68A-1001 [quoted below], such officer is hereby authorized to move such vehicle, or require the driver or other person in charge of the vehicle to move the same, to a position off the roadway.
"(b) Any police officer is hereby authorized to remove or cause to be removed to a place of safety any unattended vehicle illegally left standing upon highway, bridge, causeway, or in any tunnel.
" (c) Any police officer is hereby authorized to remove or cause to be removed to the nearest garage or other place of safety any vehicle found upon a highway when:
"(1) Report has been made that such vehicle has been stolen or taken without the consent of its owner, or
"(2) The person or persons in charge of such vehicle are unable to provide for its custody or removal, or
"(3) When the person driving or in control of such vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before a proper magistrate without unnecessary delay, or
" (4) When any such vehicle has been left unattended for 24 hours or more."
Section 68A-1001, mentioned above, provides:
1 Ga. Laws 1974, pp. 633, 675.

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"(a) Outside of a business or residence district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the roadway when it is practicable to stop, park or so leave such vehicle off the roadway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of 200 feet in each direction upon such highway.
"(b) This section and sections 68A-1003 and 68A-1004 shall not apply to the driver of any vehicle which is disabled while on the roadway in such a manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position."
Thus, under certain conditions an officer may remove, or cause to be moved, a motor vehicle which is on a public roadway.
[2] Secondly, you ask what liability may be incurred by an officer who moves, or causes to be moved, a motor vehicle from the roadway. Also, in your fourth question, you ask what liability the officer assumes when the driver gives the officer permission to remove the vehicle from the roadway. These questions will be answered together.
Officers, agents and employees of the state are personally liable for unauthorized acts committed in the performance of their official duties. Ops. Att'y Gen. 73-156, 69-161; see Robert v. Barwick, 187 Ga. 691 (1939).
As discussed in section 1 above, the trooper is authorized to remove a motor vehicle from the roadway in certain circumstances. The issue is when does a trooper, who is performing an authorized act, go outside the scope of his employment and become personally liable for his unauthorized excursion.
Ga. Code Ann. 68A-1001 et seq. (quoted above) is silent regarding the liability of the officer who causes a vehicle to be moved to a place of safety. Consequently, legislative intent must be determined according to the rules of statutory construction.
In construing a statute, all laws in pari materia (on the same subject) should be construed together to ascertain the intent of the legislature. Oxford v. Carter, 216 Ga. 821, 822 (1961); Harrison v. Wright, 1 Ga. 32, 35 (1846). A statute in pari materia with the law under discussion provides:
"Any peace officer who, under the provisions of this section, causes any motor vehicle to be removed to a garage or other place of safety shall be liable for gross negligence only ..." Ga. Laws 1972, pp. 342, 344 (Ga. Code Ann. 68-2303). (Emphasis added.)
Construing this statute with Ga. Code Ann. 68A-1001 et seq., it

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is evident that the General Assembly intended that peace officers who cause vehicles to be removed from the public roadway are personally liable for those acts which constitute gross negligence with respect to the vehicle.
[3] Finally, you ask if an officer may personally adjudge a vehicle to be unsafe for operation and thereafter cause it to be removed from the roadway. The answer to this question is in the negative.
Statutory law2 provides a procedure to be followed when a trooper has reasonable cause to believe that a vehicle is unsafe. In such a case, he may require the driver to submit the vehicle to an inspection:
"(c) In the event such vehicle is found to be in unsafe condition or any required part or equipment is not present or is not in proper repair and adjustment the officer shall give a written notice to the driver and shall send a copy to the department. Said notice shall require that such vehicle be placed in safe condition and its equipment in proper repair and adjustment specifying the particulars with reference thereto and that a certificate of inspection and approval be obtained within 30 days." Ga. Code Ann. 68-1724 (c).
Therefore, if an officer has reasonable cause to believe that a vehicle is unsafe he may not remove it from the highway, but must issue notice pursuant to the quoted statute.

OPINION 74-100

To: Commissioner, Department of Corrections

August 1, 1974

Re: Where sentence is expressly imposed under the Georgia Youthful Offender Act of 1972 (Ga. Laws 1972, p. 592; Ga. Code Ann. 77-345 to 77-360), so that the person is sentenced to be confined in the Youthful Offender Division for an indefinite period of time, language which specifies that the period of custody is not to exceed a period of two years does not operate to limit the division's discretion over conditional and unconditional release.

Your department has asked my opinion concerning the effect of a sentence which is imposed under the Georgia Youthful Offender Act of 1972 (Ga. Laws 1972, p. 592), but which limjts the Youthful Offender Division's custody to a maximum period, "not to exceed two years." A related question concerning the effect of a sentence in the language of the Youthful Offender Act, but limiting the duration of

2 Ga. Laws 1953, Nov. Sess. pp. 556, 615, as amended (Ga. Code Ann. 68-1724).

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custody to a minimum term, "for not less than two years," was discussed in Op. Att'y Gen. 73-36.
Although my earlier opinion concerned the effect on a youthful offender's sentence of a judicial specification of a minimum amount of time to be served, the reasoning of that opinion is applicable to the question you have posed. A sentence such as the one you described, which imposes a determinate limitation upon the indeterminate nature of a commitment under the Youthful Offe'nder Act, frustrates the statutory scheme. Sections 11 and 12 of the Act (Ga. Code Ann. 77-355, 77-356) provide a unique opportunity for the "conditional" and "unconditional" release of deserving youthful offenders. The Act's provision for an earlier release than possible under a traditional sentence constitutes an incentive to rehabilitation which is only available to those sentenced under the Act. The effectiveness of this incentive is destroyed when the period of confinement is computed without regard to the offender's attitude towards rehabilitation.
Therefore, it is my opinion that a sentence expressly imposed under the Georgia Youthful Offender Act has the effect of indefinitely committing the offender to the custody of the Youthful Offender Division, subject to the terms of the Act. Any restriction in such a sentence which specifies a limitation to the duration of confinement has no binding effect on the division's discretion, and the offender may be dealt with in accordance with normal procedures. Any restrictive language in a youthful offender's sentence, however, should be regarded as a compelling recommendatjon that the release of the particular offender be approved within the time period specified in his sentence.

OPINION 74-101

To: Commissioner, Department of Public Safety

August 1, 1974

Re: Commercial driving schools preparing applicants for class three, four and five licenses are subject to Ga. Laws 1968, p. 436 (Ga. Code Ann. Ch. 92A-11), regardless of whether such applicants hold valid licenses of a different class or a permit to drive class three, four and five vehicles. Accredited private academies are exempt from the requirements of Ga. Laws 1968, p. 436.

By your recent letter you have requested an interpretation of Op. Att'y Gen. 72-135 to determine if commercial driving schools giving instructions to applicants for class three, four and five licenses are subject to Ga. Laws 1968, p. 436 (Ga. Code Ann. Ch. 92A-11) (hereinafter referred to as the Driver Training School License Act).

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Op. Att'y Gen. 72-135 concluded that commercial driving schools giving instructions to licensed drivers did not have to comply with the license requirements of the Driver Training School License Act since the Driver Training School License Act only applied to those persons and business entities instructing persons who were attempting to obtain a drivers license. However, the opinion indicated that Ga. Laws 1972, pp. 1078-1081 (Ga. Code Ann. 92A-401), which created different classes of drivers licenses, might result in more driving schools being subjected to the provisions of the Driver Training School License Act. The opinion additionally states that it is valid only as to the facts existing at the time of its issuance.

Ga. Laws 1972, pp. 1078-1081 (Ga. Code Ann. 92A-401), created five license classifications, each class allowing the holder thereof to legally operate different vehicles. A class one license is the basic drivers license and is required for all other licenses. Class two licenses are required for motorcycles; class three licenses are required for vehicles 80 inches or wider designed to carry more than 10 passengers and used as common or contract carriers, while class four or five licenses are required for various size trucks and tractor trailers. Each license class is, then, in fact a different drivers license.

The opinion you have requested is whether a commercial driving school which prepares applicants for a class three, four or five license must comply with the Driver Training School License Act. The question arises since Op. Att'y Gen. 72-135 stated that persons instructing licensed drivers need not comply with the Driver Training School License Act. However, Op. Att'y Gen. 72-135, as noted above, was addressed only to the facts as they then existed and is not an interpretation of the Driver Training School License Act requirements with respect to the various license classifications created by Ga. Laws 1972, pp. 1078-1081 (Ga. Code Ann. 92A-401).

A person or business entity may be subject to the requirements of the Driver Training School License Act if such person or entity, in return for a consideration, either (1) gives driving instructions or (2) gives instructions designed to prepare an applicant for a permit or license examination given by a drivers license examiner. Ga. Laws 1968, pp. 436, 437 (Ga. Code Ann. 92A-1101, 92A-1102). Although no driving test is required for a class three, four or five license, an applicant must pass a written examination. Ga. Code Ann. 92A-401 (b). Giving instructions which aid an applicant in meeting the written test requirement of a class three, four or five license would, then, involve preparing an applicant for a license examination as envisioned by the Driver Training School License Act and any person or business

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entity offering such preparatory instructions on a for hire basis must comply with said Act.

The fact that a student in a commercial driving school holds a temporary learners permit provided by Ga. Code Ann. 92A-401 (b) does not remove the instructing school from the purview of the Driver Training School License Act. The permit provided for by 92A-401 expires if the holder thereof does not pass the requisite written test within three months of obtaining his permit and such permit should therefore be considered a temporary permit and not a drivers license as envisioned by Op. Att'y Gen. 72-135. The Driver Training School Act clearly encompasses schools which prepare students to fulfill any prerequisite for a learners permit from classes three, four and five. Ga. Laws 1968, pp. 436, 437 (Ga. Code Ann. 92A-1102).

You have also inquired as to whether a private school operating as a nonprofit organization may offer a driver education program to its students. The Driver Training School License Act specifically exempts accredited elementary schools, secondary schools, junior colleges and colleges which conduct driver training courses. Ga. Laws 1968, pp. 436, 441 (Ga. Code Ann. 92A-1109). If, then, the private academy in question is accredited, such an academy could legally operate a driver education program without first obtaining a license.

To summarize the answers to your questions it is my opinion that:
1. A person or business entity must comply with the Driver Training School License Act if that person or business entity gives instructions for hire and those instructions prepare an applicant for the license examination required for a class three, four or five license.
2. The fact that a student holds a valid license of a class other than the one for which he is receiving instructions in no way exempts the instructing person or business entity from the requirements of the Driver Training School License Act.
3. The fact that a student holds a permit allowing him to drive vehicles encompassed within the three, four and five license classes does not exempt the instructing person or business entity from the requirements of the Driver Training School License Act if such instructing person or business entity offers instructions which aid the applicant in passing the license examination required for the class three, four or five license.
4. Accredited private schools offering driver education are exempt from the Driver Training School License Act.

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OPINION 74-102

To: Governor of Georgia

August 5, 1974

Re: Persons who co-sign notes as surety on loans the proceeds of which are to be utilized by candidates in their campaigns are contributors, and the amount of the loan must be included in the Campaign Financing Disclosure Report if it exceeds $101.

I am pleased to advise you that the two cases concerning the Campaign Financing Disclosure Act are now concluded, both with a favorable ruling as to the constitutionality of the Act. Thus, it is appropriate for me to address your inquiry concerning the Act at this time. (Ga. Laws 1974, p. 155; Ga. Code Ann. Ch. 40-38.)
You indicated in your correspondence that there appears to be confusion over whether or not an individual who has pledged his credit by co-signing a note for a loan, the proceeds of which are to be applied to the candidate's campaign, should be reported as a contributor. It is my opinion that the names of such individuals should be included in the Campaign Financing Disclosure Report to be filed with the Secretary of State if the amount of the loan is in excess of $101.
Section 2 (c) of the Act sets forth the following definition of contribution:
"(c) 'Contribution' means a gift, subscription, loan, forgiveness of debt, advance or deposit of money or anything of value conveyed or transferred for the purpose of influencing the nomination for election or election of any person for the offices provided for in Section 2." Ga. Laws 1974, pp. 155, 157 (Ga. Code Ann. 40-3803).
Generally speaking, a thing has "value" if it is sufficient consideration to support a simple contract. Black's Law Dictionary. It is clear in Georgia that the promise to sign a note as a surety is sufficient consideration to support a contract. See W. T. Rawleigh Co. v. Overstreet, 71 Ga. App. 873 (1944); Williams v. Riley Drug Co., 34 Ga. App. 68 (1925); Ga. Code Ch. 103-1; see also, Op. Att'y Gen. 73-177. Thus, a pledge of credit by an individual who co-signs a note is something of value and is to be considered a contribution.
Practical considerations demand the same conclusion. A supporter of a candidate pledges his credit by co-signing a note so that a lender will make money available to the candidate for use in the campaign. Presumably, without the supporter's assistance, the candidate would not get the money. Therefore, the co-signature of the supporter is an item of value to the candidate and thus a contribution.
The most meaningful and measurable method of reporting the values

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of the contribution is to use the amount of the loan. In an analogous situation, the Georgia Court of Appeals has held that value means the value to the owner and not the cost of producing the results. Brumby v. Smith & Plaster Co. of Georgia, 123 Ga. App. 443 (1971). It is the face amount of the loan that the candidate will have available to him in his campaign, and it is this amount for which he is accountable.

OPINION 74-103

To: Secretary of State

August 6, 1974

Re: The qualification fee paid by a candidate upon his qualification is not a campaign expenditure so as to require its inclusion in reports of expenditures under the Campaign Financing Disclosure Act of 1974.

This is in response to your request for an opinion as to whether a qualifying fee paid by a candidate for political office is an expenditure which must be reported under the provisions of the Campaign Financing Disclosure Act, Ga. Laws 1974, p. 155 et seq. (Ga. Code Ann. Ch. 40-38) (hereinafter referred to as the "Act").
The requirement for disclosing expenditures arises from Section 6 of the Act (Ga. Code Ann. 40-3806; Ga. Laws 1974, pp. 155, 159), which provides:
"The chairman or treasurer of every campaign committee organized to bring about the nomination of a candidate for any office provided for in Section 2 shall file with the Secretary of State 'campaign financing disclosure reports' listing the following:
* * *
"(b) The name and mailing address of any person to whom an expenditure of $101 or more is made and the amount of such expenditure...."
Section 3 of the Act defines "expenditure" as follows:
"(d) 'Expenditure' means a purchase, payment, distribution, loan, advance, deposit or gift of money or anything of value made for the purpose of influencing the nomination for election or election of any person for the offices provided for in Section 2." Ga. Laws 1974, pp. 155, 156 (Ga. Code Ann. 40-3803). (Emphasis added.)
It is clear from this language that expenditures should be reported if they are made for the purpose of influencing the nomination for election or election of the candidate. The intent of the Act is to insure that the public may obtain information concerning the expendi-

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tures of a candidate made in an attempt to influence voters. This intent is clearly spelled out by Section 2 of the Act:
"It is hereby declared to be the policy of the State of Georgia in furtherance of its responsibility to protect the integrity of the democratic process and to insure fair elections for the offices of Governor, Lieutenant Governor ... members of the Georgia House of Representatives and Georgia Senate, all county and municipal elected officials,t to institute and establish a requirement of public disclosure of campaign contributions and expenditures relative to the seeking of such offices." Ga. Laws 1974, pp. 155, 156 (Ga. Code Ann. 40-3802).
Payment of a qualifying fee is one of the methods authorized by statute by which a candidate may have his name placed on the ballot (e.g., Ga. Code Ann. 34-1013, as amended by Ga. Laws 1974, pp. 4, 6). Thus the payment of the qualifying fee is not an expenditure made to influence votes on behalf of the candidate. Rather, it is fulfilling the statutory method to become a candidate for election. Further, the payment of the qualifying fee is already a matter of public record and thus does not fall within the intent of this Act to establish a method of public disclosure of campaign financing and expenditures which have heretofore been unavailable to the public.
Therefore, it is my opinion that the payment of a qualifying fee by a candidate is not an "expenditure" within the reporting requirements of the Campaign Financing Disclosure Act.

OPINION 74-104

To: Executive Secretary-Treasurer, Teachers Retirement System

August 7, 1974

Re: An eligible member of the Teachers Retirement System may only receive military service credit for a period of time up to a maximum of five years.

This responds to your letter requesting my official opinion on the proper construction of that portion of the Teachers Retirement System statute pertaining to military service credits, which was in force prior to the effective date of the 1974 legislation (Ga. Laws 1974, pp. 1198-1200) amending same. Ga. Laws 1943, pp. 640, 646, as amended by Ga. Laws 1965, pp. 438, 442-4; Ga. Code Ann. 32-2904 (6) (a) through (d).

1 The Georgia Supreme Court has ruled that the Act is not applicable to county and municipal elected officials. See Fortson v. Weeks, 232 Ga. 472 (1974).

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You inform that several members of your system who have retired from some branch of the military service have requested that they be allowed to establish credit for more than five years of military service. Your question is whether these members should be allowed to receive such credit, or is the amount of military service credit limited to a maximum of five years.
The military service credit statute under the Teachers Retirement System is composed of four parts, Ga. Code Ann. 32-2904 (6) (a), (b), (c) and (d). Reading these parts in pari materia, there is, in my opinion, a statutory scheme which sets forth three major classifications. The first of these pertains to those circumstances under which military service credit is available. The second classification deals with the question of how much a member must pay for the credit, once it is determined he is eligible. And finally, there is a third classification which relates to the maximum number of years credit which a member is entitled to accumulate.
With respect to those circumstances under which military service credit is available, there are four such situations: (1) serving on active duty in the armed forces of the United States during World War I, World vVar II, the Korean \Var, or any period of national emergency (paragraph a); (2) leaving the teaching profession to enter military service and thereafter returning to the profession at any time within five years after being released from military service (paragraph b); (3) interrupting college training to enter military service and thereafter entering the teaching profession at any time within five years after being released from military service (paragraph c); or (4) entering military service after completion of college training and thereafter entering the teaching profession at any time within five years after being released from military service (paragraph d). As you will recall, I have previously advised you in an official opinion that for these latter three situations, it is not required that the military service be performed during World War I or II, the Korean \Var, or a period of national emergency. See Op. Att'y Gen. 74-8.1
The question of how much a member must pay for the military service credit, once it is determined that such member falls within one of the four situations heretofore stated, is found in subparagraphs (i) and (ii) of section 32-2904 (6) (a). The cost of such credit is based upon when the military service was performed.
This brings me to the question which you have presented. That is, how much military service credit can a member accumulate once such member demonstrates that he is entitled to credit of some amount? The only specific reference to a ceiling on the amount of military ser-

1 Op. Att'y Gen. 74-8 was written January 11, 1974, before the amendment of Ga. Laws 1974, pp. 1198-1200.

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vice credit one can receive is found in paragraph (a) of section 32-2904 (a). The relevant portion of this statutory language provides for the following:
"Any person who was on active duty in the armed forces of the United States during World War I, World War II, the Korean War, or any period of national emergency, may receive military service credit for such period of time up to a maximum of five years under the following conditions:
"(i) Prior service credit shall be awarded at no cost to the member for any period of military service prior to January 1, 1945.
"(ii) Membership service credit shall be awarded for any period of active military service performed after January 1, 1945, provided said person shall pay the regular employee contribution...."
It is clear that a person who was on active duty in the armed forces under one of the above enumerated conflicts is precluded from receiving more than five years of military service credit. With respect to the three other situations under which military service credit is available (paragraphs (b), (c) and (d), discussed supra), the statute grants credit subject to the provisions of subparagraphs (i) or (ii) or (i) and (ii) of section 32-2904 (6) (a), as set out above. Although the five-year limitation is actually found, not in subparagraphs (i) or (ii), but rather in the beginning phraseology of paragraph (a), it is my opinion that the wording of these two subparagraphs is irrevocably interwoven with that part of paragraph (a) where the five-year limitation is indeed located, so as to make said limitation applicable. For example, the uses of the word "credit" in subparagraphs (i) and (ii) obviously refer to that "credit" mentioned in paragraph (a), wherein it is stated that a person "may receive military service credit for such period of time up to a maximum of five years." Further, there is the language of subparagraph (ii) which provides that " ... said person shall pay the regular employee contribution...." (Emphasis added.) There is no question but that this reference to "said person" can only refer to the "person" described in paragraph (a).
Therefore, it is my official opinion that any person who is eligible for military service credit can receive no more than five years of such credit. To hold otherwise would violate the overall intent of the statute. Further, it is arguable that it would contravene the equal protection clause of the State and United States Constitutions to limit a person who was on active duty in a World War to five years of credit, but then allow a person who interrupted college training to enter military service to accumulate unlimited credit. The equal protection clause requires that all persons under similar circumstances be treated alike, both in privileges conferred and in liabilities imposed. Dansby

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v. Dansby, 222 Ga. 118 (1966). Also, disparate treatment without any rational basis is violative of equal protection. Zayres of Georgia, Inc. v. City of Marietta, 416 F.2d 251 (1969).
To summarize, it is my official opinion that an eligible member of the Teachers Retirement System may only receive military service credit for a period of time up to a maximum of five years.

OPINION 74-105

To: Commissioner of Agriculture

August 7, 1974

Re: A transfer of processed milk from a processing plant to a retail outlet, both of which are owned by the same corporation, is not a sale at wholesale within the meaning of Ga. Laws 1974, p. 1042. A contract for the sale of milk between a retailer within Georgia and a processing plant located without the state that specifies purchases of milk F.O.B. the seller's plant and provides that title shall pass at the seller's plant is not a sale within this state.

This is in response to your request for an interpretation of certain provisions of Act No. 1240, as passed by the 1974 General Assembly, Ga. Laws 1974, p. 1042 (Ga. Code Ann. 42-610.1). You have asked whether the following types of transactions come within the purview of that Act:
(1) Is a transfer of processed milk from a processing plant (located out-of-state) to retail outlets in Georgia, both of which are owned by the same corporation, a sale of milk at wholesale?
(2) Is a contract for the sale of milk between a retailer in Georgia and a milk processor located outside of Georgia that spedfies purchases of milk F.O.B. the seller's plant and provides for passage of title at the seller's plant a sale within this state?
A negative answer to your first inquiry precludes analysis of the location of the sale in the first situation you describe, and a negative response to your second question would remove the necessity of discussing the implications of the Act with respect to the Interstate Commerce Clause of the United States Constitution. Therefore, I will direct initial attention to your primary questions in the order presented above.
You indicate, in the situation of the vertically integrated corporation, that no subsidiaries are involved in any transaction. I assume that the intracorporate transfer connotes nothing more than a distribution of goods, with no monetary consideration for the goods passing between the parties.

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Subsection (b) of Ga. Code Ann. 42-610.1 requires that "all processors, handlers, distributors, or brokers offering for sale or selling fluid milk and fluid milk products ... at wholesale" shall make a filing of certain disclosures with the Commissioner of Agriculture within a specified time. Subsection (e) defines "wholesale" for the purpose of the Act as:
" ... the offer for sale or sale of fluid milk or fluid milk products to a retailer or other person, firm, or corporation which offers for sale or sells such fluid milk or fluid milk products to the ultimate consumer."
There being no dispute as to the fact that the "intracorporate" transfer is made to retail outlets for sale to the ultimate consumer, determination of the existence of a wholesale transaction must rest on whether a sale was accomplished between the corporate processor and retailer. A sale is defined by Ga. Laws 1962, pp. 156, 174 (Ga. Code Ann. 109A-2-106) as the "passing of title from the seller to the buyer for a price." It would not seem that the situation you describe comes within this definition in that title ostensibly rests in the corporation at all times and no price passes between the retail unit and the processing unit. The difference between the true retaj)erwholesaler relationship and the vertically integrated chain store corporation was recognized in Liggett Co. v. Lee, 288 U.S. 517, 538 S.Ct. 481, 77 L.Ed. 929 (1933). The United States Supreme Court, in distinguishing the two operations, stated:
"Chain stores do not sell at wholesale. What they store, if they warehouse any goods ... , is for the purpo.se of retail sale at their shops. On the other hand, goods held by a wholesaler are stored for sale to retail establishments to be resold by the latter. What has been said with respect to difference in methods and operations of the two kinds of warehouses applies in this instance. The diverse purposes of the storage and difference in the nature of the businesses conducted are sufficient to justify a different classification ...." Liggett Co. v. Lee, supra, pp. 537, 538.
An example of the application of this distinction was Safeway Stores, Inc. v. Oklahoma Tax Com'r, 157 P.2d 749 (Okla. 1945), in which the central purchasing and warehouse distributing operations of the Safeway chain did not require the corporation to acquire a jobbers' or wholesalers' license.
Consequently, where the retailing and processing levels of operation are owned and controlled by the same corporation, and where no price and title of the goods pass in a transfer between the different units, it is my opinion that the simple distribution on an intracorporate scale is not a wholesale sale within the meaning of Act No. 1240.

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vYith regard to your second query, it is my understanding that an order for the milk is placed by the Georgia retailer by mail or through an agent for the out-of-state processor. As indicated previously, a sale is the passing of title from seller to buyer for a price. Unless otherwise explicitly agreed, title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods. Ga. Laws 1962, pp. 156, 200 (Ga. Code Ann. 109A-2-401 (2) ). Where a contract calls for delivery F.O.B. seller's plant, the cost and risk of delivery commences and title passes when the goods are shipped or placed with the carrier at the seller's plant. Ga. Laws 1962, pp. 156, 192 (Ga. Code Ann. 109A-2-319 (1) (a) ) ; see Op. Att'y Gen. 66-152.
Application of either of the above postulates would schedule the passing of title at the seller's plant. The contract you have referred to expressly dictates passage of title at the seller's plant. Even if such a stipulation were not included in the contract, it would seem, in view of the contract F.O.B. terms, that the sale is completed at the seller's plant in the second situation you describe. This is the necessary result, regardless of the nature of the carrier delivering the goods (the cost of which must be borne by the buyer in F.O.B. shipping point contracts). See Schwegmann Brothers Giant Super Markets v. Louisiana Milk Commission, 365 F. Supp. 1144 (M.D. La. 1973). Therefore, it is my opinion that such a sale is completed at the seller's plant outside of Georgia and is not a sale "within this state" for the purposes of the statute.
As the conclusions drawn render unnecessary attention to your secondary questions, I trust the foregoing is responsive to your requests.

OPINION 74-106

To: Governor of Georgia

August 9, 1974

Re: The Common Day of Rest Act of 1974 repeals Ga. Code Ann. 26-9908 regardless of the outcome of the required county referendums, such repeal being effective on November 5, 1974. The Common Day of Rest Act specifies that the initial county referendum required by the Act shall be held on November 5, 1974, and shall be governed by Section 15 of the Act while all subsequent referendums are governed by Section 11 of the Act. An affirmative vote in the initial referendum signifies that the county wishes to be exempt from the restrictive provisions of the Act while a negative vote indicates that the county wishes to be subject to those provisions.

By your recent letter, you have posed several questions concerning the Common Day of Rest Act of 1974, Ga. Laws 1974, p. 186 (Ga.

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Code Ann. Ch. 96-12). This opinion, while directed to your specific inquiry, will also address other questions which have arisen concerning the referenced statute.
The Common Day of Rest Act of 1974 requires businesses to limit their activities to explicitly exempted goods and services on either Saturday or Sunday. The Act directs each county to conduct a referendum to determine whether such county shall be subject to or exempt from the Act's restrictions. Counties which initially desire to be subject to the Act may, through a specified subsequent referendum procedure, later become exempt, while counties initially voting to be exempt may later become subject to the Act. The Common Day of Rest Act of 1974 expressly repeals Ga. Code Ann. 26-9908, which restricted business activity on Sunday, as well as all other conflicting laws.
Your initial inquiry concerns whether or not Ga. Code Ann. 26-9908 and other laws in conflict with the Common Day of Rest Act of 1974 will be repealed in counties which choose by referendum to exempt themselves from the provisions of the Act. This ambiguity concerning whether Code 26-9908 is repealed in counties which vote to be exempt from the Common Day of Rest Act of 1974 arises from the language which Section 15 of the Act requires each ballot in the 1974 general election to contain. The required language is as follows:
"( YES Shall the County of ___________
(insert name of County) NO be exempt from the provisions of 'The Common
Day of Rest Act of 1974' ?" (Emphasis added.)
The question is whether or not this language should be construed to mean that a county may, in a referendum, exempt itself from all provisions of the Common Day of Rest Act of 1974 including the repeal of Code 26-9908.
Inasmuch as some doubt has been expressed as to the interpretation to be applied to the Act, it becomes necessary to determine the intention of the legislature in this regard. A basic tenet of statutory construction is that legislative intention should be gleaned from an Act as a whole and not from isolated sections. City of M aeon v. Ga. Power Co., 171 Ga. 40 (1930); Torrance v. McDougald, 12 Ga. 526 (1853); State v. Cherokee Brick and Tile Co., 89 Ga. App. 235, 239 (1953). When the legislative scheme embodied in the Common Day of Rest Act of 1974 is viewed in its entirety it is clear that the legislature did not intend to allow a county to remove itself from all the provisions of the Act.
Section 11 of the Act establishes a procedure by which a county that chooses to exempt itself from the Act can subsequently hold another referendum to determine whether or not it should be subject

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to the Act. If a vote to exempt a county from the Act means the entire Act, then the county would be exempt from this section providing for subsequent referendum. Thus, a county could never avail itself of Section 11, and it would be rendered meaningless by such an interpretation of the exemption provisions of this Act. Inasmuch as the legislature is presumed to have enacted meaningful legislation (Central of Ga. Ry. Co. v. The State, 104 Ga. 831, 839 (1898) ), the Act must be interpreted as not allowing a county to exempt itself from the operation of the entire Act. Thus, the repealer in Section 14, like Section 11, is unaffected by a vote by a county to be exempt from the provisions of the Act.
Perhaps the most compelling argument for the proposition that Code 26-9908 is repealed by the Act regardless of the outcome of the decision involves a consideration of the meaning of the word uexempt." In statutory construction, words should be given their ordinary meaning unless they are words of art. Ga. Code 102-102 (1). uExempt" means to be released from some liability, duty or proscription to which others are subject. Webster's New World Diet., p. 236 (1972 Ed.).
Analysis of the Common Day of Rest Act of 1974 reveals that Sections 1 through 10 establish the purposes for which the statute was enacted, set forth proscriptions against business activity on the common day of rest and exempt certain activities from the restrictions. Sections 11 through 17, on the other hand, provide for the repeal of certain statutes, the holding of county referendums, the severability of the Act in the event of a constitutional challenge, and a short title.
Given the ordinary meaning of the word "exempt," it is apparent that by the ballot language the legislature intended to allow a county to remove itself from the proscriptions against Saturday and Sunday business contained in Sections 1 through 10 of the Common Day of Rest Act of 1974 and not from the repeal and referendum provisions set forth in Sections 11 through 17. This conclusion rests on the fact that the latter Sections (11-17) contain no restrictions from which a county could be "exempt."
Thus, a county, by voting to exempt itself from the Common Day of Rest Act of 1974, would be removing Saturday and Sunday controls on the majority of its merchants rather than imposing more stringent standards thereon. (It should be noted that specifically controlled items, such as liquor, are excluded from the Act's operation by Section 9 (b) of the Act.) Such a construction of the Common Day of Rest Act of 1974 is harmonious with sound reasoning and common sense and should be regarded as the true intention of the legislature. State v. Livingston, 222 Ga. 441, 442 (1966); Blalock v. State, 166 Ga. 465, 470 (1928).
It is, then, my opinion that Ga. Code Ann. 26-9908 is repealed

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by the Common Day of Rest Act of 1974. As noted above, the Common Day of Rest Act of 1974 became effective for the purpose of holding the initial referendum on March 12, 1974, said date being the date the Act was signed into law. For all other purposes, including the repeal of Ga. Code 26-9908, the Common Day of Rest Act of 1974 will be effective as of November 5, 1974.

You have inquired whether the Common Day of Rest Act of 1974 repeals existing laws limiting specific activities on Sunday. Section 9 (b) of the Act states that the Common Day of Rest Act of 1974 does not affect the status of conducting activities which are specifically regulated or prohibited by other statutes. As a result of Section 9 (b), the Common Day of Rest Act of 1974 would not, for example, have any effect on Ga. Laws 1937, pp. 148, 154 (Ga. Code Ann. 58-738), which governs the sale of intoxicating liquors on Sunday.

The question has arisen as to exactly how and when the initial county referendum is to be held. This query results from the fact that both Section 11 and Section 15 of the Common Day of Rest Act provide for referendum elections. Construing the statute as a whole, it is apparent that Section 15 provides for the initial referendum while Section 11 governs any subsequent elections. This analysis is supported by the fact that a referendum pursuant to Section 11 is initiated by a petition whereas the Section 15 referendum is directed by law. Additional evidence of the correctness of this construction is that Section 11 contains provisions for allowing a county which has previously exempted itself from the Common Day of Rest Act of 1974 to later subject itself to the same. It is clear then that Section 11 contains the subsequent referendum procedure while Section 15 governs the initial referendum required by law.
Section 15 of the Common Day of Rest Act of 1974 specifically provides that the initial referendum is to be held on November 5, 1974. Any subsequent referendum pursuant to Section 11 of the Act should be placed on the ballot of the next general election following the petition for such referendum.
Pursuant to Section 15 of the Common Day of Rest Act of 1974, each ballot in the November 5, 1974 general election must contain the language quoted on page 2 of this opinion. An affirmative ("YES") vote by the majority of voters in any given county will result in such county being exempt from the Common Day of Rest Act of 1974. A negative ("NO") vote by more than one half of the voters in a given county will result in such county being subject to the provisions of the Act.

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OPINION 74-107

To: Governor of Georgia

August 9, 1974

Re: Georgia Code Ann. 40-408 permits transfer of funds to Georgia Motor Vehicle Commission to meet operating expenses of that agency.

This is in reply to your request for my official opinion as to whether you may transfer funds from the Governor's emergency fund, Ga. Code Ann. 40-408 (see Ga. Laws 1974, pp. 1508, 1553, Section 20C), to the Georgia Motor Vehicle Commission for the salaries and operating expenses of that agency.
The occasion for this issue arises because the General Assembly at its 1974 Session created the Georgia Motor Vehicle Commission, Ga. Laws 1974, p. 134, Ga. Code Ann. Ch. 84-66 (effective February 28, 1974), but in neither the amendment to the General Appropriations Act for Fiscal Year 1974, Ga. Laws 1974, p. 1459, nor in the General Appropriations Act for Fiscal Year 1975, Ga. Laws 1974, p. 1508, did it subsequently appropriate any funds for the operation of the commissiOn.
Georgia Code 40-408, relating to the Governor's emergency fund, provides as follows:
"To the end that emergency needs of the state agencies not ascertainable at the time of the submission of the budget report to the General Assembly, or at the time of the enactment of the General Appropriations Act, be provided for, the General Appropriations Act shall contain a specific sum as an emergency appropriation. The manner of allocation of such emergency appropriation shall be as follows: The head of the budget unit desiring an allotment of funds from the appropriation shall present such request to the Governor, . . . and the Governor may allow or disallow the request at his discretion. No allotment shall be made from this appropriation to a purpose which creates a continuing obligation for the state." Ga. Laws 1962, pp. 17, 25.
An examination of this provision reveals several conditions imposed on the use of any appropriation made for these purposes. That provision permits use of the emergency fund only for (1) the emergency needs of (2) a budget unit, (3) the funding of which need will not create a continuing obligation of the state. Implicit in Code 40-408 is a further requirement that the budget unit may expend the funds only for those purposes which are otherwise authorized by general law. Ops. Att'y Gen. 69-51, 69-203.

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Code 40-408 defines the first condition on the allotment of funds as

" ... emergency needs of the state agencies not ascertainable at the time of submission of the budget report to the General Assembly, or at the time of the enactment of the General Appropriations Act...."

Since the Motor Vehicle Commission was not in existence at the time of the submission of the budget report by the Governor to the General Assembly (Ga. Const., Art. VII, Sec. IX, Par. I (Ga. Code Ann. 2-6201); Ga. Laws 1962, p. 17 (Ga. Code Ann. 40-405) ), there is clearly no impediment to the treatment of its needs as "not ascertainable" at that time. The issue narrows to whether the fact that the commission was created prior to the enactment of the General Appropriations Act forecloses the treatment of its needs as "not ascertainable ... at the time of enactment of the General Appropriations Act...." In my opinion, it does not.
In a prior opinion dealing with a similar situation, I concluded that the Governor was authorized to make transfers from the emergency fund to the Department of Air Transportation which faced a predicament similar to that faci'ng the Motor Vehicle Commission now. Op. Att'y Gen. 69-261; see also, Op. Att'y Gen. 70-134. While that opinion did not discuss the reasoning underlying that conclusion, I adhere to the result reached. The definition of emergency needs in Ga. Code Ann. 40-408 is not drawn so as to require a precise factual determination by the Governor of whether particular needs of state agencies were, in fact, "not ascertainable" at those specified points in time. Instead, that definition is intended to require of the Governor only the determination of whether the need was "ascertainable" in the sense of whether he, in preparing the budget report, or the General Assembly in enacting the General Appropritttions Act, previously considered and rejected an appropriation for the proposed expenditure. In this case, the present needs of the Motor Vehicle Commission are emergency needs within the meaning of Code 40-408 if the Governor determines, within his sole discretion, that those needs had not been previously rejected in the processes leading to the enactment of the General Appropriation Act.
The second condition imposed on the use of the emergency fund is that funds may be transferred from it only to "state agencies" or "budget units." Ops. Att'y Gen. 69-51, 69-203. The term "budget unit" is defined by Code 40-402.8, which provides as follows:

" 'Budget unit' means a department, institution, agency or other unit of organization for which separate appropriations are made

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from these or any other unit of organization." Ga. Laws 1962, pp. 17, 19.
Since no appropriation was made to the Motor Vehicle Commission, the issue presented is whether it is a budget unit within the meaning of Code 40-402.8. It is my opinion that it is.
First, the definition of budget unit in Code 40-402.8 cannot be considered without reference to the constitutional framework underlying the appropriations process. In prior opinions, I have concluded that in order to spend public funds two conditions must be met: (1) there must exist authority under general law to spend public funds and (2) there must be an appropriation of funds with respect to that authority. Ops. Att'y Gen. 73-80, 67-189. Considered in this constitutional framework, the term "budget unit" does not depend upon whether the General Assembly appropriates money to a unit of organization defined only by the General Appropriations Act. A budget unit is a unit of organization to which appropriations may be made separate from an appropriation to any other unit of organization. Whether the General Assembly may do so depends upon whether the unit of organization has authority under general law, independent of the authority of any other unit of organization under general law, to spend public funds.! Properly construed, Code 40-402.8 contemplates the constitutional limitation that appropriations may be made to the various departments and agencies of State Government, the existence of which is determined, of course, by general law, and which thus possess independent authority under general law to receive and to spend appropriations.
Second, literally to construe Code 40-402.8 so as to require the prior appropriation to a state agency before it becomes a budget unit for purposes of the Budget Act would produce absurd consequences. To use just one example, such a literal construction would mean that the Motor Vehicle Commission could not even prepare a budget estimate for the subsequent fiscal year. Ga. Code Ann. 40-409 (Ga. Laws 1962, pp. 17, 25; 1973, p. 673). A construction giving rise to such consequences is not to be attributed to statutes if another construction is available. DeWitt v. Richmond County, 192 Ga. 770 (1941). Such a construction is not required. Indeed, Code 40-408 itself equates "budget unit" with the term "state agency" and thus recognizes the requirements of Art. VII, Sec. IX, Par. IX of the Constitution (Ga. Code Ann. 2-6201).
Properly construed, therefore, "budget unit" as defined by Code 40-402.8 and as used in Code 40-408 means a state department or agency which has, under general law, an independent existence and

1 The description of the Governor's emergency fund by Ga. Laws 1974, pp. 1508, 1553, Section 20C, as a "budget unit" is thus a wholly meaningless use of the term.

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thus authority to receive and expend an appropriation. In my opinion, the Motor Vehicle Commission is such an agency.
Section 4 ofthe Motor Vehicle Franchise Practices Act, Ga. Laws 1974, p. 134, Ga. Code Ann. 84-6604, provides that "there is hereby created the Georgia Motor Vehicle Commission...." The commission so created is not placed under the jurisdiction of any other department or agency of the state and nothing in the Act suggests that the commission is assigned for administrative purposes to any other department or agency of the state.
The commission is statutorily charged with the responsibility for the issuance of licenses required in order to engage in the businesses and occupations governed by the Act and with the responsibility of enforcing the regulatory terms of the Act through the imposition of license sanctions. In order to perform these functions, the commission must necessarily have the power to spend public funds. That there is no statutory provision explicitly stating that the commission shall have such power does not impair the conclusion that it has the authority to do so by necessary implication. In imposing responsibilities the performance of which necessarily involves the expenditure of funds, the General Assembly implicitly conferred authority to make such expenditures. Taylor v. State, 44 Ga. App. 387, 395 (1931) (cases cited).
It is my opinion, therefore, that the Georgia Motor Vehicle Commission created by Ga. Laws 1974, p. 134, is a budget unit within the meaning of Code 40-402.8 and 40-408.
The final aspect of your request involves the third limitation on the use of the emergency fund-the prohibition against the creation of a continuing obligation for the state. This aspect of your request involves the request by the Motor Vehicle Commission for a transfer of emergency funds sufficient to permit the commission to employ an "executive-secretary" and clerical personnel.
For the reasons stated above, it is my opinion that the Motor Vehicle Commission does have the statutory power to employ personnel necessary to perform the clerical burdens imposed upon it. Where the law imposes a duty upon a public officer, absent an express limitation therein, the imposition of the duty also conveys the authority to do those things both essential or reasonably necessary to perform the duty. Taylor v. State, 44 Ga. App. 387 (1931). There is no suggestion in Ga. Laws 1974, p. 134, that the Motor Vehicle Commission does not have the authority to employ clerical personnel and thus to the extent it has appropriated funds made available to it, the commission may employ such personnel as are reasonably necessary to perform its duties.
Based on a prior opinion involving a similar question, Op. Att'y

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Gen. 70-182, it is my opinion that the employment of personnel does not create a continuing obligation of the state.
I might further suggest that an alternative to the direct employment of personnel by the Motor Vehicle Commission is its employment of the clerical services of another agency of the state through a contract between the commission and that agency. Art. VII, Sec. VI, Par. I (Ga. Code Ann. 2-5901).
It is my opinion, therefore, that you are authorized to transfer to the Georgia Motor Vehicle Commission funds appropriated to your office for the purposes set forth in Ga. Code Ann. 40-408.
Whether such a transfer should be made is, of course, a decision which is within your sole and unreviewable discretion. I should note that in the event you determine that such a transfer should not be made, the authorities in my opinion are unequivocably clear that the Motor Vehicle Franchise Practices Act would at the least become inoperative until the Georgia Motor Vehicle Commission received an appropriation to carry out its purposes. DeWitt v. R'ichmond County, 192 Ga. 770, 774 (1941) (and cases cited). In that case, involving a comparable issue, the Supreme Court, relying on authority in other states, held:
"If an Act of the legislature is so vague and uncertain in its terms as to convey no meaning, or if the means of carrying out its provisions are not adequate or effective, it is incumbent upon the courts to declare it void and inoperative." (Emphasis added by the court.)
In my opinion, that situation would prevail here if the determination were made not to transfer emergency funds to the Motor Vehicle Commission.

OPINION 74-108

To: Commissioner, Department of Banking and Finance

August 12, 1974

Re: (1) The Georgia Unclaimed Property Act is superseded insofar as it requires the payment of interest in violation of Federal Deposit Insurance Corporation rules and the resultant disparity of treatment does not violate equal protection requirements. (2) Noncash property, presumed abandoned under Section 3 (d) of the Unclaimed Property Act, need not be placed in an interest bearing savings account.

Your office requested our opinion on two questions under the Georgia Unclaimed Property Act (hereinafter referred to as the "Act") (Ga. Laws 1972, p. 762, Ga. Code Ann. Ch. 85-20). Your first ques-

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tion concerns the requirement that banks place unclaimed property in an interest bearing savings account, and the constitutionality of that requirement in light of federal regulations. The second deals with the proper disposition of noncash personal property left unclaimed in a bank safe deposit box.
Section 13 (h) of the Unclaimed Property Act states that property, described generally in Section 3 of the Act as property held or owing by a banking or financial institution, if presumed abandoned under the terms of the Act, shall be transferred to an interest bearing savings account in the name of the person or persons to whom the property belongs. As you pointed out, this section, under certain circumstances, conflicts with a rule of the Federal Deposit Insurance Corporation (FDIC) that states,
" ... no insured nonmember bank shall directly or indirectly, by any device whatsoever, pay any interest on any demand deposit...." 12 C.F.R. 329.2 (a) 1
The interest bearing savings account described in Section 13 (h) of the Act, if established in the name of a corporation or organization operated for profit would, by FDIC definition, be a demand deposit, and no interest could be paid on it. 12 C.F.R. 399.1 (a) and (e). 2
Rules and regulations of a federal agency, duly promulgated, have the force and effect of law. Community Savings and Loan Ass'n v. Fields, 128 F.2d 705 (8th Cir. 1942). When there is a conflict between state law and a federal regulation, the latter is controlling. Anderson National Bank et al. v. Luckett, 321 U.S. 233 (1943); People of State of California et al. v. Coast Federal Savings and Loan Ass'n, 98 F. Supp. 311 (S.D. Cal. 1951). Therefore, it is my opinion that Section 13 (h) of the Act is superseded insofar as it conflicts with Rule 329.1 of the Federal Deposit Insurance Corporation, specifically, any requirement that an FDIC insured bank pay interest on an account held in the name of an organization or corporation operated for profit.
You further question whether the federal prohibition against the payment of interest on the previously defined demand deposits would create problems of equal protection in applying the Act. The Georgia statute applies equally to all unclaimed deposits and is, by itself, nondiscriminatory. The FDIC regulation, while limiting the operation of the Act, does not alter its terms which continue to provide equal treatment for all unclaimed property in the possession of banks, and the disparity of treatment, even if it otherwise posed a problem, re-

1 Enacted pursuant to 12 U.S.C. 1828 (g).
2 (a) "The term 'demand deposit' includes every deposit which is not a 'time deposit' or 'savings deposit' ..." (e) "The term 'savings deposit' means a deposit: (i) which consists of funds deposited to the credit of one or more individuals, or of a corporation, association or other organization ... not operated for profit...."

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sults from federal law and does not give rise to an equal protection issue under the Fourteenth Amendment to the Constitution of the United States (Ga. Code Ann. 1-815) or under the Constitution of this state.
The next issue concerns the proper treatment of noncash property removed from a safe deposit box, or any other safekeeping depository, or agency or collateral deposit box due to nonpayment of rental fees, or for other reasons. If this property is unclaimed by the owner for more than 15 years from the date on which the lease or rental period expired, then the property is considered abandoned under Section 3 (d) of the Act. At this time, Section 13 (h) of the Act directs that property be placed in an interest bearing savings account. It is, of course, impossible to place a noncash item in an interest bearing savings account. A statute is never understood as requiring an impossibility and such a result is to be avoided by any fair and reasonable construction. Popev. U.S. Fidelity and Guaranty Co., 198 Ga. 304 (1944). A reasonable construction would require the bank to deal with the property as provided by the Act as far as is possible. This would mean retaining custody of the noncash items, without establishing an interest bearing savings account in the name of their owner.
It is worth noting that the banks' right to property considered abandoned under the Act is custodial in nature and does not constitute authority to sell the property. See Op. Att'y Gen. 73-11. This does not preclude, however, sales pursuant to Ga. Code Chs. 12-7 and 67-24 (1933 Code, as amended). Such sales are expressly recognized by Section 3 (d) of the Act which provides that the surplus from such sales are presumed abandoned if not claimed within 15 years.
It is therefore my opinion that noncash property presumed abandoned under Section 3 (d) of the Act need not be placed in an interest bearing savings account.

OPINION 74-109

To: Chairman, vVorld Congress Authority

August 14, 1974

Re: The Geo. L. Smith II Georgia World Congress Center Act (Ga. Laws 1974, p. 174; Ga. Code Ann. Ch. 40-36) invalid to the extent that membership on the authority created thereby includes officers of the legislative branch of State Government.

This is in reply to your request for my opinion as to the ramifications of the decision of the Georgia Supreme Court which affirmed the judgment of the Superior Court of Fulton County validating the

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issuance of general obligation bonds for the purpose of acquiring the Geo. L. Smith II Georgia World Congress Center. Fuller v. State, 232 Ga. 581 (1974).
As a consequence of the Supreme Court's decision, the validity of the proposed debt issue for a World Congress Center has been conclusively established. There is, in other words, no legal impediment to the issuance of bonds for that purpose.
In the Supreme Court's view, however, the sole questions before it related to the issuance of the debt; questions related to the proper and lawful expenditure of the proceeds of the debt once issued were not relevant to the decision as to whether the debt could be lawfully incurred. As a result, and because of comments made in the Supreme Court's opinion, an issue previously subsumed in the validity of the bond issue itself has assumed a predominant status. As your request notes, Justice Hall in his concurring opinion in Fuller v. State concluded that "the majority opinion leaves a cloud" on many facets of the current scheme for disposition of proceeds of the debt issued to acquire a World Congress Center. I agree.
In that current posture of the project, the Geo. L. Smith II Georgia World Congress Center Authority, created by Ga. Laws 1972, p. 245, as amended by Ga. Laws 1974, p. 174, acts as agent for the Department of Community Development, for which the World Congress Center is to be acquired and by whom it is to be operated. In its capacity as agent, the authority performs the function vested in the Department of Community Development by Ga. Laws 1974, p. 174, and by other laws, with respect to the World Congress Center. In performing those functions, of course, the authority brings to that contractual task the statutory duties and powers it possesses under Ga. Laws 1974, p. 174.
The "cloud" on the actions taken by various agencies of the state under this arrangement distills to the central issue of whether the statutory composition of the authority is consistent with Art. I, Sec. I, Par. XXIII of the Constitution. That issue arises because the Act creating the authority provides:
"The authority shall consist of 20 members as follows: The President of the Senate shall appoint three Senators for terms of office of six years each; the Speaker of the House of Representatives shall appoint three members of the House of Representatives for terms of six years each. A vacancy shall occur in the office of a legislative member of the authority when he ceases to be a member of the General Assembly, and such vacancy shall be filled in the manner provided hereinafter for filling vacancies. The Governor shall appoint [the remaining members)...."Ga. Laws 1974, pp. 174, 176 (matter in brackets supplied).

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Article I, Sec. I, Par. XXIII of the Constitution provides:
"The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided." Ga. Code Ann. 2-123.
Prior to the decision of the Supreme Court in Fuller v. State, it had been generally, if not altogether unreservedly, believed that the exercise of the functions deposed upon an authority, i.e., a public corporation not considered part of the state for most purposes, did not involve the exercise of a power described by Art. I, Sec. I, Par. XXIII. Thus, it was believed that in determining the membership of the governing authority, Art. I, Sec. I, Par. XXIII would not apply. This belief rested essentially upon Sheffield v. State School Building Authority, 208 Ga. 575, 583-84 (1952), where the Supreme Court held that the Speaker of the House of Representatives was not precluded from service on the authority, created during his term of office, by Art. III, Sec. IV, Par. VI of the Constitution. That provision reads in pertinent part as follows:
" ... during the term for which he was elected no Senator or Representative shall be appointed to any civil office which has been created during such term." Ga. Code Ann. 2-1606.
The thrust of the Supreme Court's opinion in that case was that membership on the authority did not constitute a civil office so as to make that provision applicable.
That opinion, however, did not deal with the separation of powers provision and the belief that a similar conclusion would obtain if the separation of powers issue was directly presented was based solely on a prediction. In his concurring opinion in Fuller v. State, supra, Justice Hall raises doubts about the accuracy of that prediction. Because of comments made therein, we have undertaken a reevaluation of the prior belief and now conclude it was not well founded, particularly in the case of the Geo. L. Smith II Georgia World Congress Center Authority.
Upon close examination, Sheffield becomes patently inapposite to the issue presented under Art. I, Sec. I, Par. XXIII. The constitutional provision involved in Sheffield relates exclusively to the assumption of particular types of offices by members of the General Assembly. While that provision is related to the concerns, the avoidance of concentration of power and consequent abuse, which underlie the separation of powers mandated by Art. I, Sec. I, Par. XXIII, it particularizes those concerns with respect to what was seen as a particular abuse of power.
Article I, Sec. I, Par. XXIII of the Constitution, on the other hand,

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is a broader prohibition. It forecloses a "person discharging the duties" of the legislative, judicial, or executive powers from "exercising the functions of either of the others...." The application of that prohibition is not dependent upon holding office, as such, but upon whether there is simultaneous discharge of separate powers.
It is applicable, for example, where a member of the General Assembly exercises executive powers regardless of whether he also holds an office in the executive branch of government. Sheffield v. State School Building Authority, 208 Ga. 575 (1952), is neither precedent nor persuasive in examining the issue of whether a member of the General Assembly in sitting on the governing body of a public corporation vested with governmental functions exercises "executive powers."
The "executive powers," to which reference is made in Art. I, Sec. I, Par. XXIII, are not capable of definition except in broad terms. The Executive Reorganization Act states, accurately enough, that the executive branch executes programs and policies adopted by the legislature and makes policy recommendations to the legislature. Ga. Laws 1972, pp. 1015, 1016; Ga. Code Ann. 40-3502 (1). The executive power, then, involves at the least the execution of laws adopted by the General Assembly.
Authorities, while clearly not part of the state for various purposes, do exercise executive powers, so defined. There is no impediment to the creation of a public corporation to perform those functions which could also be performed by the executive department (McLucas v. State Bridge Bldg. Authority, 210 Ga. 1 (1953) ), but because such a corporation performs executive functions, an authority, such as the Geo. L. Smith II Georgia world Congress Center Authority, is necessarily within the limitations imposed by Art. I, Sec. I, Par. XXIII. As Justice Hall stated, the General Assembly may not do indirectly what it cannot do directly. Fuller v. State of Georgia, supra, concurring opinion of Hall, p. 6, n. 4; see also, Ashmore v. Greater Greenville Sewer Dist., 211 S.C. 77, 44 S.E.2d 88 (1947); Bramlette v. Stringer, 186 S.C. 134, 195 S.E. 257 (1938).1
More compelling in the case of the Geo. L. Smith II Georgia world Congress Center Authority is the fact that in performing its responsibilities with respect to the World Congress Center, the authority is acting as agent for the Department of Community Development, exercising the executive powers placed in that department. Not only are its statutory functions executive powers, therefore, but in acting as the agent of the Department of Community Development it is performing executive functions of that agency.

1 This conclusion is not, of course, at odds with the conclusion stated in Sheffield, and other cases, that debts of such bodies are not debts of the state.

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For these reasons, it is my official opinion that Art. I, Sec. I, Par. XXIII, at the least renders invalid that portion of Section 1 of Ga. Laws 1974, p. 174, which defines the membership of the authority so as to include members of the General Assembly. For the reasons expressed by the concurring opinion of Justice Hall, Fuller v. State of Georgia, supra, I do not conclude that the offending portion of the Act renders the entire Act invalid but only that portion which offends Art. I, Sec. I, Par. XXIII. As Justice Hall noted, it is a firmly established principle that if a statute may operate after invalid provisions therein are severed from it, then a conclusion that those provisions cannot stand does not cause the entire Act to fall. There is no suggestion in the Geo. L. Smith II Georgia World Congress Center Act that the authority thereby created is dependent upon the inclusion in its membership of members of the legislative branch of government.
If the provisions of the Geo. L. Smith II Georgia 'V"orld Congress
Center Act including legislators on the authority are severed therefrom, along with the dependent specification that the authority shall consist of 20 members, then the remaining membership, which constitutes more than a majority of the original statutory designation, may perform all functions statutorily vested in the authority. Indeed, Section 2 of the Act declares that:
"No vacancy on the authority shall impair the right of the quorum [of eleven members] to exercise all rights and perform all duties of the authority." Ga. Laws 1974, pp. 174, 176.
It is, therefore, my official opinion that the Geo. L. Smith II Georgia World Congress Center Act is unconstitutional insofar as it defines the membership of the authority created thereby so as to include members of the General Assembly and thus that the authority consists of 14 members, appointed in the manner designated by the statute.
This office is separately preparing recommendations as to the manner in which the pertinent parties may cure the defects in prior actions relating to the World Congress Center which flow from the separation of powers violations.

OPINION 74-110

To: Secretary of State, Commissioner of Securities

August 16, 1974

Re: A certain medical services corporation may obtain guarantees of its indebtedness from 30 or more citizens without first registering those guarantees under the provisions of Section 5 of the Securities Act of 1973, since the corporation will be organized and operated not for private profit but exclusively for charitable purposes and will therefore qualify for an exemption from registration under Section 8 (i).

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You have asked me to review a certain guarantee arrangement to be employed in connection with the establishment of a nonprofit medical services corporation and to give you my official opinion on whether the contemplated guarantees, if they are securities, would qualify as exempt securities under Section 8 (i) of the Georgia Securities Act of 1973 (Ga. Code Ann. Ch. 97-1, based on Ga. Laws 1973, p. 1202 et seq.).
To place this matter in its proper context, let me first summarize the facts which bear on the question of Section 8 (i)'s applicability to this case. As I understand the situation, a group of citizens are presently taking steps to organize a medical services corporation to serve the community of Griffin, Georgia. That corporation will be chartered under the Georgia Nonprofit Corporation Code and will be operated pursuant to a certificate of authorization issued by the Commissioner of Insurance, who is assigned regulatory responsibility for such organizations by Ch. 56-18 of the Georgia Insurance Code. (Ga. Code Ann. Ch. 56-18; Ga. Code Ann. 56-1823, 56-1824, based on Ga. Laws 1960, p. 289 et seq., as amended.) Its sole purpose will be to provide a plan, similar to that offered by ''Blue Shield" organizations, whereby residents of the community will be able to assure themselves and their families a range of medical services they might not otherwise be able to afford. Participation in the plan will evidently not be restricted to those of limited means but will apparently be open to all who can pay the requisite subscription fee. Any surplus income that might remain after payment of expenses and satisfaction of reserve requirements would not be available for distribution in the form of dividends but would be used either to broaden the range of benefits or to reduce the price of fees. I have received no information that would lead me to believe that the corporation would ever use its surplus to provide free benefits to nonsubscribers; nor has it been suggested that the corporation would ever offer free subscriptions to the poor.
The corporation will not enter contracts with any exclusive group of "participating physicians." (Insurance Code 56-1802 (7); see also Insurance Code 56-1813.) Rather, it will allow its subscribers to obtain services as needed from a physician of their choice and will make payments as directed within the limits set by its schedule of benefits. The only formal tie between the corporation and its local medical community will occur as the result of Insurance Code 56-1806, which requires that "licensed doctors of medicine" shall compose a majority of its board of directors "at all times." I am advised, and therefore assume for the purpose of this opinion, that those doctors who will serve on the board will do so not because they expect to gain monetary reward, but only because the Insurance Code requires their participation in that capacity.

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The guarantee arrangement which is the subject of your concern has its genesis in a requirement of the Insurance Commissioner that the corporation must maintain a working capital reserve of $75,000 as a condition for the issuance of a certificate of authorization to conduct business. See Insurance Code 56-1824 (5) and (6). As a means of satisfying that requirement, the organizers of the corporation intend to negotiate contracts with some 30 or more "public spirited citizens," who will obligate themselves to contribute pro rata amounts not to exceed an aggregate of $5,000 each in order to reimburse bank advances. Any such contributions would be repaid with interest at a rate of six percent per annum, according to the provisions of Insurance Code 56-1824 (6). Your inquiry is whether the corporation must register these guarantee contracts as securities under Section 5 of the Georgia Securities Act of 1973 or whether Section 8 (i) of that Act would afford the corporation an exemption from registration.
A threshold question is, of course, whether the contemplated guarantee contracts would fall within the definition of a "security" set forth in Section 2 (a) (16) of the 1973 Act. In a previous opinion which interpreted the corresponding provision of the Securities Act of 1957 (Op. Att'y Gen. 73-177), I answered that question in the affirmative with regard to a scheme under which a corporation planned to obtain guarantees on its loans in exchange for a percentage of its profits. I have reviewed that opinion and have found no essential difference between the arrangement considered there and the one in question. Consequently, since the definition of "security" set forth in the 1973 Act, insofar as it concerns the scheme which is presently under review, incorporated the former definition without change, it is my official opinion that the guarantees sought by the corporation would constitute "securities" under Georgia law. vVhether the special nature of the corporation is such that its guarantees would not require registration is the question I must now address.
The organizers of the corporation contend that its securities would fit the measure of Section 8 (i) of the Securities Act of 1973. That section exempts from the registration provisions of Section 5 (Ga. Code Ann. 97-105):
"(i) any security issued by any person 1 organized and operated not for private profit but exclusively for religious, educational, benevolent, charitable, fraternal, social, athletic, or reformatory purposes, or as a chamber of commerce or trade or professional association." 2 Ga. Code Ann. 97-108 (i).
1 Person is defined by Section 2 (a) (12) as "an individual, a corporation, a partnership, an association, a joint stock company, a trust or any unincorporated organization." 2 Persons offering for sale or selling such securities would nevertheless have to comply with the provisions of Section 3, governing registration of dealers and salesmen. See the first sentence of Section 8.

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With but minor changes in wording that exemption has been a part of Georgia securities laws since the enactment of the first Securities Act in 1920 (Ga. Laws 1920, p. 250, later codified as Title 97 of the original Georgia Code of 1933). Its 54-year history has been one of unremitting calm; for during that entire period it has generated no dispute which has risen to the level of Georgia's appellate courts. The Supreme Court and the Court of Appeals have thus had no occasion to remark upon the reason for its existence. Nevertheless, the intent of the legislature can be discerned from the original Act. There the General Assembly divided all securities into four alphabetically-titled classes. "Class A," which included Section 8 (i)'s predecessor and other subclasses described in terms substantially t<imilar to present day Sections 8a-d, g, h, and j, was specifically defined as comprising those securities, "the inherent qualities of which assure[d] their sale and disposition without the perpetration of fraud," and which were therefore exempted from filing and dealer licensing requirements.3 (Ga. Laws 1920, p. 252; Ga. Code 1933 97-301 (1).) vVhen, in 1953, the General Assembly discarded the classifications, and adopted the format which has been retained in all subsequent versions of the Act, the securities which had formerly been assigned to "Class A" were then incorporated under the heading "Exempt Securities." See Ga. Laws 1953, pp. 423, 435-436. vVhen that change occurred, the General Assembly also deleted the generic description of those securities that it had originally provided as the definition of "Class A." It is reasonable to infer, however, that the legislature's concept of those securities remained unchanged, since the original subclasses were carried forward as a unit, and since no other organizing principle for that unit suggests itself.
If the General Assembly can therefore be assumed to have based the exemption found in the present Section 8 (i) on its understanding of the "inherent qualities" of the securities described in that section, what, then, must that understanding have been? The only apparent answer to that question is that the legislature must have believed that where such securities were concerned the nobility of the cause sought to be advanced would so impress the moral sensibilities of those who offered those securities for sale that the possibility for abuse would be unthinkable. Yet the legislature did not have such an optimistic view of human nature that it felt an enlightened purpose would always

3 Similarly exempt were "Class B" securities, a class roughly equivalent to those which now qualify for transactional exemptions under Section 9 of the 1973 Act. "Class C" comprised those securities which today could be registered by notification (Section 5 (c) ) and "Class D" included those which would now require registration by qualification (Section 5 (a)).
Note that in the 1973 Act the legislature reconsidered the dealer-salesman licensing aspect of the exemption and exempted Section 8 securities only from the provisions of Section 5, and not from the provisions of Section 3.

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override the temptation that a profit-making structure and mode of operation could well engender. Thus, the General Assembly thought it wise to extend the full scope of securities regulation to include those ventures which might be charitable or benevolent, yet which were "organized and operated ... for private profit."
The question then arises as to whether the limitation expressed in Section 8 (i)'s phrase "not for private profit" was meant to take effect only when the officers, directors, and insiders of an enterprise stood to gain from its activities or whether it could also provide a basis for denying an exemption where the investors or contributors themselves were the ones who stood to profit. After much deliberation, I am persuaded that the phrase should be given the restricted interpretation that follows from regarding the adjective "private" as intended to refer to the organizers, officers, and other insiders of an enterprise, who inevitably possess the ability to turn its affairs to their own personal benefit at the expense of the others involved. I realize that Georgia courts, in cases which have arisen under tax exemptions, have expressed the contrary view.4 See e.g., Mundy v. Van Hoose, 104 Ga. 292 (1898); United Hospitals Service Ass'n v. Fulton County, 216 Ga. 30 (1960). Nevertheless, while those cases might appear analogous, they proceed from quite different policy considerations.
Where a "charitable" tax exemption is concerned, it is appropriate to measure the benefits to be derived by all those who claim an interest in the enterprise seeking to have itself declared exempt. The question there is whether profit is being generated in such a form that it can be distributed, either directly or indirectly, to the organization's members; for, if so, an inequity would result if the organization could escape taxation and therefore shift its fair share of the annual revenue burden to other organizations, the profits of whose members and investors would be proportionately diminished. Thus, in the context of a tax exemption designed to further beneficial projects which the state might otherwise have to undertake, the limitation provided by the words "not for private profit" or similar language minimizes the possibility that the exemption might be used to gain an unfair competitive advantage over nonqualifying organizations. See United Hospitals Service Ass'n v. Fulton County, supra, at 34.
In the area of securities regulation, however, where registration and licensing fees are both nonrecurring and insubstantial, the possibility of unfair competitive advantage cannot be a serious matter of concern. For purposes of Section 8 (i), there can therefore be no reason to assess the profit potential of an organization from the standpoint

4 So has one United States District Court in the decision under the Securities Act of 1933. S.E.C. v. American Foundation for Advanced Education of Arkansas, 222 F. Supp. 828, 831 (W.D. La. 1963). That court's analysis, however, was based on revenue decisions.

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of its membership. Since the Securities Act as a whole was intended to protect investors from " 'wild-cat' organizers and promoters and their agents" (Ratliffe v. Hartsfield Co., 181 Ga. 663 at 667 (1936) ), in construing the "not for private profit" language of Section 8 (i), attention should be focused instead on the group against whose machinations the Act was meant to guard. Thus, if it should appear that the officers, directors, and promoters plan to structure and manage a charitable or benevolent enterprise in such a manner that they and their agents would extract a disproportionately high return from their investment or for their services, whether by commissions, salaries, dividends, management fees, or the like, an exemption under Section 8 (i) would be unavailable. Cf., S.E.C. v. Children's Hospital, 214 F. Supp. 883 (D. Ariz. 1963).
Based on the foregoing analysis, I must now determine whether the proposed medical services corporation which will issue the guarantee contracts you have asked me to consider will be ''organized and operated not for private profit" and, if so, whether it will also be "organized and operated ... exclusively for ... charitable purposes."
Given the facts before me, I have no difficulty in answering the first of those two questions in the affirmative. As a nonprofit corporation, its charter will expressly prohibit the distribution of any income or profit to its officers or directors. Georgia Nonprofit Corporation Code 22-2102 (c) and 22-2613, based on Ga. Laws 1968, p. 565, as amended. Moreover, its directors will be required by law to serve in that capacity without pay. Insurance Code 56-1806. Also, while it might be possible for insiders to siphon off profits through the payment of premature or unwarranted claims, various provisions of the Insurance Code either render that possibility remote or vest the Commissioner of Insurance with power to remedy any abuse that might be found to exist. See e.g., Insurance Code 56-1815, 56-1819, 56-1828.
Having found that the corporation will not be organized or operated for private profit, I also have no difficulty in concluding that the corporation will be organized and operated for charitable purposes.5 The Georgia Supreme Court has defined the word "charity" to encompass

5 Insurance Code 56-1830, declaring medical services corporations to be "charitable and benevolent" institutions exempt from taxation, would appear to offer an easy resolution of this issue. The Georgia Supreme Court has, however, ruled the corresponding statute under Chapter 17 of the Insurance Code (Ga. Code Ann. 56-1718) violative of Ga. Const., Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404), authorizing tax exemptions only for "institutions of purely public charity." While it is possible that the declaration of charitable and benevolent character could be regarded as severable from the remainder of 56-1830, some doubt would remain as to the General Assembly's power to make such a declaration. Compare Pearle Optical v. State Board of Examiners, 219 Ga. 364, 371 (1963) with Gunby v. Yates, 214 Ga. 17, 19 (1958). It would therefore seem preferable to examine the nature of the corporation without regard to 56-1830.

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" 'substantially any scheme or effort to better the condition of society or any considerable part of it.' " Tharpe v. Central Georgia Council, Boy Scouts of America, 185 Ga. 810 at 813 (1938), citing Wilson v. Independence First Nat,ional Bank, 145 N.W. 1948 (S.Ct. Iowa, 1916). That notion is sufficiently broad to comprehend a scheme to "better the condition" of an identifiable segment of a community by providing low-cost medical care. 1\!Ioreover, my review of Georgia authorities satisfies me that a corporation may be conceived and administered for a charitable purpose even though that corporation never offers its services free of charge. As the Supreme Court recognized in Tharpe v. Central Georgia Council, supra, at 814, "charity" is a concept that extends to "practical enterprises for the good of humanity, operated at moderate cost to the beneficiaries, or enterprises operated for the general improvement and happiness of mankind" (citing 61 C.J. 455, 505).
Nor do such cases as Un,ited Hospitals Service Ass'n v. Fulton County, supra, and Georgia Osteopathic Hospital v. Alford, 217 Ga. 663 (1962), indicate the contrary. In those cases the Georgia Supreme Court interpreted the words "purely public charity," found in Ga. Const., Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404), to limit the tax exemption afforded by that provision to those organizations which to some extent make their services or facilities available to those who are unable to pay for them. Aside from the fact that, as discussed above, those cases involve policy considerations foreign to the Securities Act, in its opinions there the Supreme Court did not discount the possibility that a corporation may well have a charitable purpose even though it could not be termed a "purely public charity." 6 In this regard it is significant that in other jurisdictions whose corresponding tax exemptions do not incorporate the singular qualifying language of Ga. Code Ann. 2-5404, courts have attributed a charitable purpose to corporations very much like the one in question. Associated Hospital Service, Inc. v. City of Milwaukee, 109 N.vV.2d 271, 88 A.L.R. 2d 1395 (Wise. S.Ct. 1961); Cleveland Hospital Service Ass'n v. Ebright, 49 N.E.2d 929 (Ohio S.Ct. 1942).
It would thus be proper to ascribe a charitable purpose to the medical service corporation under review. Yet, even so, the corporation would not qualify for an exemption under Section 8 (i) if it appeared that the corporation had other, noncharitable purposes. To qualify for that exemption a corporation must be organized and operated "exclusively" for charitable purposes. In this instance, however, that restriction presents no obstacle: since I have concluded above that the purpose of providing a plan of medical and surgical care should
6 See United Hospitals Service Ass'n v. Fulton County, supra, at 33 ("... the fact that [a corporation] serves a benevolent purpose [does not] make it a 'purely public charity.' ").

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be deemed "charitable," and since Insurance Code 56-1804 provides that any corporation organized under that Chapter of the Insurance Code must be "governed and conducted ... for the sole purpose of offering and furnishing a medical service plan or plans to its members...." (emphasis added), it follows that the corporation's purpose will be exclusively charitable.

Since it appears that the proposed Griffin, Georgia, medical service corporation will satisfy the requirements of Section 8 (i) of the Securities Act of 1973, it is therefore my official opinion that the guarantee contracts which that corporation proposes to negotiate will qualify as exempt securities which would not have to be registered under Section 5. I express this opinion confident in the belief that it will result in no loss of protection for those citizens who will undertake to guarantee the corporation's working capital reserves. Those persons will be adequately protected by the Commissioner of Insurance, whose powers under Chapter 18 of the Insurance Code far surpass those conferred on the Commissioner of Securities by the Securities Act of 1973.

OPINION 74-111

To: Commissioner, Department of Administrative Services

August 16, 1974

Re: The position of Director of the Division of Communications in the Department of Administrative Services is in the unclassified service of the State Merit System of Personnel Administration.

This is in response to your recent letter requesting an opinion as to whether the Director of the Division of Communications in the Department of Administrative Services would be in the classified or unclassified service of the State Merit System of Personnel Administration. According to your letter, communications for State Government has been administered by a section of the general services division of your department; however, this section has grown in size to where it warrants division level status. The position of section supervisor is in the classified service of the State Merit System of Personnel Administration.

To determine if the position of division director is in the classified or unclassified service, the history of the development of the Communications Division is in order.

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Prior to 1969 there existed duplicate communication services throughout State Government with only 15 departments having wide area telephone service. See Ga. Laws 1969, p. 616. To correct that situation, in 1969 the General Assembly created the State Communications Committee to develop, maintain, coordinate and implement plans for effective communication in State Government. It was this committee that placed the State Government on the Centrex telephone system.

In 1972 the General Assembly reorganized the executive branch of government. Ga. Laws 1972, p. 1015; Ga. Code Ann. 40-3501 et seq. As part of that reorganization, all functions of the State Communications Committee were transferred to the Department of Administrative Services. Ga. Code Ann. 40-3551. That same Reorganization Act provided that the position of division director of any agency created by the transfer of functions shall be in the unclassified service of the State Merit System of Personnel Administration. Ga. Code Ann. 40-35221. However, since the functions transferred were performed by a section and not a division, the section supervisor was not placed in the unclassified service at that time.

These facts seem controlled by a recent opinion of this office that the position of head of a department or division director of any agency created by a transfer of functions is in the unclassified service of the State Merit System of Personnel Administration even if the position is created two years subsequent to the Executive Reorganization Act of 1972. Op. Att'y Gen. 74-93 (July 24, 1974). However, in this case we have one additional fact that was not present in that opinion.

The General Assembly, subsequent to the enactment of the Executive Reorganization Act of 1972, passed the Telecommunications Act of 1973. Ga. Laws 1973, p. 1261; Ga. Code Ann. Ch. 40-37. This Act gave certain duties and responsibilities to the Department of Administrative Services in the creation and maintainihg of a state-wide communications service; however, these duties and responsibilities seem well within the broad functions transferred from the State Communications Committee to the Department of Administrative Services under the Executive Reorganization Act of 1972. Consequently, this would not distinguish the present situation from our opinion of July 24, 1974.

Therefore, it is my official opinion that the position of Director of the Division of Communications of the Department of Administrative Services is in the unclassified service of the State Merit System of Personnel Administration Services.

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OPINION 74-112

To: Commissioner, Department of Public Safety

August 20, 1974

Re: The Department of Public Safety may establish by rule and regulation the prerequisites for the issuance of amber light permits, and amber lights may be used only in accordance with those rules and regulations. The issuance of an amber light special use certificate does not render that vehicle an emergency vehicle such as is exempt from certain motor vehicle operation laws.

It is unlawful to operate a motor vehicle in this state with flashing amber lights unless a proven need for such lights has been demonstrated to the Department of Public Safety and a permit issued thereby. Ga. Laws 1972, pp. 1092, 1093 (Ga. Code Ann. 68-416). You have sought legal guidance as to the proper interpretation and enforcement of this law.
My research has revealed only one other statute pertaining to amber lights and that statute applies only to rural mail carriers (Ga. Laws 1961, p. 202 (Ga. Code Ann. 68-1729) ), and has now been encompassed in the 1972 Act by an amendment passed by the most recent General Assembly. Ga. Laws 1974, p. 521 (Ga. Code Ann. 68-416.1). Consequently, there simply is no legal guidance available to resolve the questions you have raised outside the statute jtself.
The Act provides that the Department of Public Safety should establish rules and regulations governing the issuance of amber Hght use permits. Thus, it is not only appropriate, but it is required by law that the department promulgate rules and regulations which necessarily must include a description of what constitutes a "proven need." Utilization of amber lights without a permit or at any time or under any circumstance other than those set forth as the "proven need" would be illegal.
Only authorized emergency vehicles are exempt from certain motor vehicle operation laws. Ga. Laws 1974, pp. 633, 644 (Ga. Code Ann. 68A-107). "Authorized emergency vehicles" is defined by the statute as follows:
"a motor vehicle belonging to a public utility corporation and designated as an emergency vehicle by the Department of Public Safety, a motor vehicle belonging to a fire department or a certified private vehicle belonging to a volunteer fireman, or firefighting association, partnership or corporation, an ambulance, or a motor vehicle belonging to a federal, state or local law enforcement agency; provided said vehicles are in use as an emergency

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vehicle by one authorized to use said vehicle for that purpose." Ga. Laws 1974, p. 633 (Ga. Code Ann. 68A-101 (3) ).
Unless a motor vehicle with an amber light special use permit fits within the above definition, it would not be classified as an emergency vehicle exempt from certain motor vehicle operation laws.

OPINION 74-113

To: Comptroller General

August 21, 1974

Re: Credit life and disability insurance. Although a proposed "addon" transaction is a "refinancing" encompassed by Ga. Code Ann. 56-3305, it is not within the particular evil sought to be remedied by the statute, and therefore cannot be disapproved as a violation of that statute.

You have requested an opinion as to whether a proposed "add-on" arrangement in connection with certain credit life insurance transactions would be contrary to provisions of the Georgia Insurance Code (Ga. Code Ann. Title 56, based on Ga. Laws 1960, p. 289 et seq., as amended).
According to correspondence attached to your request, I understand that on October 15, 1973, the Policy Forms Division of your office disapproved forms to be used under a similarly disapproved amendment to a group credit life and disability certificate of insurance. The disapproved amendment provided, in pertinent part, as follows:
"Termination of a Debtor's Insurance. The insurance on the debtor shall immediately terminate on the earliest of the following dates: (a) the date of discharge of the debtor's indebtedness; however, in an 'add-on' transaction as described below, there is no discharge of the debtor's indebtedness, (b) .. . (c) .. . (d) .. . An 'add-on' transaction shall be defined as a credit transaction in which the debtor incurs an indebtedness to the creditor in addition to an existing indebtedness with the creditor."
The portions of the Georgia Insurance Code applicable to such credit life and accident insurance policies are as follows:
Section 56-3305: ''. . . The term of such insurance shall not extend more than 15

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days beyond the scheduled maturity date of the indebtedness except when extended without additional cost to the debtor. If the indebtedness is discharged due to renewal or refinancing prior to the scheduled maturity date, the insurance in force shall be terminated before any new insurance may be issued in connection with the renewed or refinanced indebtedness. In all cases of termination prior to scheduled maturity, a refund shall be paid or credited as provided in section 56-3308."
Section 56-3308 (3): "(3) Each individual policy, notice of proposed insurance or group certificate of credit life insurance and credit accident and sickness insurance shall provide that in the event of termination of the insurance prior to the scheduled maturity date of the indebtedness, any refund of premium due shall be paid or credited promptly to the person entitled thereto: Provided, however, that the commissioner shall prescribe a minimum refund and no refund which would be less than such minimum need be made. The formula to be used in computing such refund shall be filed with and approved by the commissioner."
To properly understand how our statute relates to the proposal in question, it is necessary to examine the manner in which credit insurance is made commonly available to consumers. A customer can become indebted to the creditor either in connection with an initial purchase or under an "add-on" transaction, which occurs when the customer, having an existing credit relationship with the creditor from a prior transaction, makes a new purchase. The creditor and customer then execute a new purchase agreement combining the two transactions. In connection with either transaction, the customer may elect life and disability insurance under a master group policy carried by the creditor. Any insurance coverage he receives pursuant to such an election would equal only the outstanding indebtedness, which is reduced or extinguished if the customer should die or become disabled.
In the particular plan under consideration, the applicant proposes not to terminate the insurance issued on the original purchase but to continue it, without any additional premium charge, for the term of the new, combined obligation. The insurance offered for the second purchase, the "add-on," would also be optional and for the amount of the new purchase only. Thus, whereas the debts from the two purchases are combined into one total indebtedness, the insurance covering those purchases continues as separate transactions.
I understand that Georgia is a "pilot" state in which the applicant is seeking initial approval for the proposed plans and forms. Due to the complexity and uniqueness of this filing, I know your department gave the situation much thought prior to disapproval because the

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transactions seemed to be a "refinancing" which would discharge the original indebtedness and necessitate compliance with Ga. Code Ann. 56-3305. I, too, have devoted considerable time and research to the problem and, as I will explain in the paragraphs that follow, I have come to the conclusion that the proposed arrangement would not be contrary to that statute.
The threshold question presented is whether this "add-on" transaction should be considered a refinancing of the original indebtedness. The word "refinance" has been defined as "to renew or reorganize the financing; provide capital for afresh; provide for an outstanding indebtedness by making another loan or a larger loan on fresh terms." Webster's Third New International Dictionary. This commonplace definition has long received wide-spread acceptance in financial circles (DuQuesnay v. Henderson, 74 P.2d 294, 295, 25 Cal. App. 2d 11 (1937) ), including the automotive insurance industry, American Indemnity Co. v. Allen, 138 S.W. 2d 445, 446 (Tenn. 1940). Although there is no Georgia case in point, in a recent federal case involving forms and procedures identical to those under our consideration, Judge Sidney 0. Smith of the United States District Court for the Northern District of Georgia declared that "an extension of time in which the outstanding balance on the ... [original) contract must be paid with a charge for that extension over-and-above the charge originally assessed can be deemed nothing other than a refinancing." Welmaker v. W. T. Grant Co., 365 F. Supp. 531, 538 (N.D. Ga. 1972) (on Motion for Certification, Oct. 1, 1973).
Thus, the transaction would appear to fit within a literal construction of the statute. However, in all statutory interpretations, it is necessary to "look diligently for the intention of the General Assembly, keeping in view at all times, the old law, the evil, and the remedy." Ga. Code 102-102 (9). A too literal construction of language should be avoided if it would defeat the legislative purpose. Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656, 160 S.E. 909 (1931). Therefore, I think it appropriate to examine the purpose of our Act to see if it was the intention of the General Assembly to require termination of credit insurance in every instance the debt is renewed or refinanced.
The Georgia Act to Regulate Credit Life and Accident and Health Insurance, of which 56-3305 is a part, is substantially the same as the Credit Life and Credit Accident and Health Model Bill adopted by the National Association of Insurance Commissioners in 1960. One of the reasons for which the NAIC recommended the enactment of the Model Bill in the various states was to remedy "pyramiding," a then prevalent abuse in the writing of credit life insurance. According to the NAIC, it was often necessary for a debtor to obtain an additional loan or credit before a previous debt was paid, and some un-

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scrupulous creditors retained the original insurance while also requiring the purchase of more insurance to cover the new total indebtedness. As a result, the debtor was paying for more than he would receive as a possible benefit through debt reduction or cancellation upon disability or death. This addition of excessive insurance was termed "pyramjding." A Background Study of the Regulation of Credit Life & Disability Insurance, NAIC, November, 1970, at 43; see also, Sanderson, The Legal Situation in Credit Insurance, 1957 Ins. L. J. 372, 375. In an effort to curb this abuse, the 1954 rules of the NAIC required that upon any refinancing all credjt insurance had to be cancelled and the premium refunded or credited to the debtor. Yet instead of requiring absolute cancellation of extant insurance upon each renewal or refinancing, the version of the Model Bill adopted in 1960 prohibited only the issuance of new insurance without cancellation of the old coverage. NAIC Background Study at 61-62.
Both section 5 of the Model Bill and Ga. Code Ann. 56-3305 provide that upon a renewal or refinancing "the insurance in force shall be terminated before any new insurance may be issued in connection with the renewed or refinanced indebtedness." As explained above, the language of the Model Bill was chosen in an attempt to prevent duplicative and excessive insurance coverage, not merely to require termination of insurance upon every debt refinancing. In view of the fact that the General Assembly chose language identical to that employed by drafters of the Model Bill, it would be proper to infer that these two groups also shared a common purpose, i.e., to eradicate "pyramiding." Consequently, the literal language of our statute should not be applied to refinancing practices which do not have a duplicative, i.e., "pyramiding," effect. I am aware that this view results in a somewhat narrow construction of our statute; however, I believe it comports well with general guidelines for statutory interpretation, as cited above.
In addition to NAIC and insurance industry commentators, I have also consulted other sources in an effort to ascertain how the proposed "add-on" transaction would be assessed with regard to consumer interests. Article 4 of the Uniform Consumer Credit Code ("UCCC") as drafted by the National Conference of Commissioners on Uniform State Laws, 7 ULA 47 et seq. (1970), deals with credit insurance. The official comment to 4.110 states that "a separate charge for insurance in connection with a deferral, or refinancing, or a consolidation, is permitted only if it has been agreed to by the debtor and bears an appropriate relation to the premium. No new charge may be made for a coverage to which the debtor is already entitled. Actual termination of existing insurance is not required.... [A]ugmenting existing insurance coverage for a separate charge is appropriate, but ... 'pyramiding' charges is not." 7 ULA at 250-51. Of course, the UCCC has

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not been adopted in Georgia, but it does reflect the thinking of others knowledgeable in the field and is further indication that the proposed "add-on" transaction is not the "pyramiding" considered repugnant to consumer interests.
Thus, while the proposed practice as outlined above might be a "refinancing" within the literal meaning of Ga. Code 56-3305, it would not constitute the particular variety of refinancing to which that statute was meant to apply, since it does not present the "pyramiding" problem which concerned the statute's framers. It is therefore my official opinion that it would be improper for you to disapprove the amendment and forms in question on the ground that they failed to comply with the provisions of Insurance Code 56-3305.
It would, of course, be entirely proper for you to disapprove them, if you should find that they "contain provisions which are unjust, unfair, inequitable, misleading, deceptive or which encourage misrepresentation of the policy." Ga. Code Ann. 56-3307. I would not presume to express any opinion on that matter, since it lies within the realm of your sound discretion.

OPINION 74-114

To: Commissioner, Department of Public Safety

August 22, 1974

Re: Driver's license examiners are subject to service dependent increases in salary.

This is in response to your letter dated August 15, 1974, in which you requested an official opinion regarding driver's license examiners and longevity. Specifically, you asked:
"Are driver's license examiners subject to increased compensation by reason of longevity, that is to say, service dependent percentage increases in salary?"
The answer to your question is in the affirmative. The 1974 General Assembly passed two bills which deal with salaries of driver's license examiners: (1) H.B. 1326 (Ga. Laws 1974, p. 1007) which became effective on March 26, 1974, and (2) H.B. 1606 (Ga. Laws 1974, p. 1122) which will become effective on September 1, 1974. Confusion may arise since H.B. 1326 specifically provides for longevity and H.B. 1606 does not. (Both Acts amended Ga. Code Ann. 92A-208.) However, both Acts leave untouched a portion of a viable 1960 law (Ga. Laws 1960, pp. 132, 135) which delineates the mechanism where-

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by longevity operates on "said salaries"; a term which, when read in the context of its previous paragraphs, clearly includes driver's license examiners. The 1960 Act states:
"Said salaries shall be automatically increased five percent annually for the first five years of service, three percent annually for the next five years of service, two percent annually for the next 10 years of service, and one percent annually for each year of service thereafter." Ga. Laws 1960, pp. 132, 135.
Hence, the salaries of driver's license examiners are currently subject to longevity increases and will continue to be so after H.B. 1606 becomes effective on September 1, 1974.

OPINION 74-115

To: State Auditor

August 23, 1974

Re: A state agency may not incur a fiscal obligation beyond that authorized by currently effective appropriations; contracts incurring an obligation dependent upon future appropriations or the continuation of any other source of state funds are invalid.

This is in reply to your request for my opinion as to whether, and under what circumstances, a state agency may lawfully execute a contract with a private party to purchase goods or services where the term of the contract extends beyond the current fiscal year. Your request is drawn in terms of an inquiry as to a proposed contract by the Department of Administrative Services for computer goods and an inquiry as to the extent the Board of Regents of the University System of Georgia is bound by the principles applicable to other state agencies in this area.
Because prior opinions on this question may not adequately explain their reasoning sufficiently to govern the specific inquiries made, I have undertaken to set forth herein a restatement of the underlying rationale and specific conclusions for the purpose of future guidance.l
I. The resolution of the issue presented requires consideration of several constitutionally embodied concepts, each of which is related to the underlying purpose of foreclosing the state from incurring "debt" except in specified instances.

1 This opinion deals exclusively with contracts between state agencies and private
parties. Contracts between state agencies or between a state agency and another instrumentality of the state involve different considerations. Ga. Const., Art. VII,
Sec. VI, Par. I (Ga. Code Ann. 2-5901).

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The first of these is Art. VII, Sec. III, Par. IV. With certain exceptions authorizing certain types of debt, none of which is here pertinent, it provides that
" ... the credit of the state shall not be pledged or loaned to any individual, company, corporation or association...." Ga. Canst., Art. VII, Sec. III, Par. IV (Ga. Code Ann. 2-5604).
This limitation, which gathers meaning from its own terms and from the exceptions authorizing the state to incur debt for certain purposes, forecloses the execution of any contract which pledges the faith and credit of the state. State Ports Authority v. Arnall, 201 Ga. 713 (1947). The purposes and meaning of this prohibition, contained also in the Constitution of 1877, were exhaustively treated by the Supreme Court in City Counsel of Dawson v. Dawson Waterworks Co., 106 Ga. 696 (1899), where, although dealing specifically with similar prohibitions applicable to political subdivisions of the state, the court delineated the pertinent limitations with reference to the state itself. The court noted that
"Taking into review, as the framers of the Constitution did, the condition of the public debt of the state ... , nothing can be plainer than that the power to create debts, incur liabilities and impose burdens to be discharged in the future, was liable to be grossly abused, if the same existed without restrictions ... in the hands of the General Assembly. . . . In light of all those facts, what is meant by the various provisions of the constitution we have above referred to? What was the plan to be followed in the future in regard to the public debt of the state itself? Nothing can be clearer. The public debt of the state must not be increased for any purpose except those few above mentioned. * * * The various departments of government must be supported from year to year by taxation, and only in [certain] instances is the state authorized to incur a debt...." Id. at 705-706.
The Supreme Court's definition of "debt" was also drawn in reference to the state itself. "Almost without exception," the court noted, "not only in regard to the subordinate public corporations of the state, but in regard to the state itself" the general rule had been that
" ... salaries and all expenses of government are paid by the year out of taxes raised during the year in which the service to be compensated was rendered. ***Debt, therefore, as used in the Constitution is to be understood as a liability which is undertaken and which must be discharged at some time in the future but which is not to be discharged by a tax levied within the year in which the liability is undertaken." Id. at 711-712.

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Specifically, the court held that
"The policy of the Constitution is not only against the incurring of liabilities to be discharged in the future for services rendered concurrently with the liability incurred, or previous thereto, but it is equally agaihst the incurring of a liability which is to be discharged in the future, notwithstanding that it depends upon the performances of some service to be rendered in the future." Id. at 712.
This delineation of the debt limitation was incorporated in the present constitutional provisions. Thompson v. Talmadge, 201 Ga. 867, 885-86 (1947).
Much of the court's discussion in Dawson, supra, is, of course, directed to municipalities of the state where there is a union of legislative and executive powers. When the issue is drawn to the state level, however, the required correspondence of the obligation and taxation as stated in Dawson, supra, is not entirely dispositive. That principle, established in Art. VII, Sec. III, must be considered with related provisions of the Constitution also bearing on the issue presented.
Article III, Sec. VII, Par. XI, provides:
"No money shall be drawn from the Treasury except by appropriation made by law." (Ga. Code Ann. 2-1911).
Article VII, Sec. IX, Par. I, requires the General Assembly to
" ... annually appropriate the funds necessary to operate all the various departments ... and meet the current expenses of the state for the next fiscal year." (Ga. Code Ann. 2-6201).
On the other hand, Art. VII, Sec. IX, Par. II, of the Constitution provides that the General Assembly
" ... shall not appropriate funds for any given fiscal year which, in aggregate, exceed a sum equal to the amount of unappropriated surplus ... together with an amount not greater than the total Treasury receipts from existing revenue sources anticipated to be collected in the fiscal year, less refunds...." (Ga. Code Ann. 2-6202).
These constitutional provisions are implemented by the Budget Act. Ga. Code Ann. Ch. 40-4, based on Ga. Laws 1962, p. 17, as amended.
Both under the Constitution and by statute, therefore, the General Assembly has, for purposes of the present issue, complete and absolute control over appropriations and other sources of state funds which may be made available to the department and has neither authorized any state agency to obligate the continued availability of appropria-

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tions or of any other sources of state funds, nor could it constitutionally do so, beyond the authorization contained in a presently effective General Appropriations Act.2
The import of these concepts on the question you presented may be succinctly stated: No agency of the state may execute a contract with a private party for the purchase of goods or services which purports to obligate appropriations or state funds from any other source not on hand at the time of the contract or where the fiscal obligation of the state agency depends for its full performance upon such future appropriations or the continued existence of any other source of state funds.
As a matter of general application, this principle forecloses a state agency from executing a contract the term of which extends beyond the current fiscal year. 3 In such a case, the required correspondence of the incurring of an obligation and the availability of funds to satisfy the obligation is provided.
However, this is not necessarily the case. For example, a state agency may execute a contract for the purchase of goods and services even though the term of that contract extends to the next fiscal year if the state agency has on hand at the time of the execution of the contract available appropriated funds necessary to meet its entire obligation under the contract. Such a contract does not obligate an appropriation not then made. Moreover, the Constitution itself specifically provides that appropriations which would otherwise lapse at the close of the fiscal year do not so lapse if the appropriated funds are "contractually obligated." Art. VII, Sec. IX, Par. II (Ga. Code Ann. 2-6202). The Constitution itself, therefore, specifically contemplates contracts of the type discussed above.
On the other hand, a state agency generally may not contract for the present purchase of goods or services in one fiscal year which is to be paid for out of appropriations, or funds to be derived from other sources, in a subsequent fiscal year.
A state agency may, however, under certain circumstances, execute a contract the term of which extends to the next fiscal year where the state's fiscal obligation is for services rendered or goods to be received in the subsequent fiscal year and is payable from an appropriation for that subsequent year as long as the General Appropriations Act for that fiscal year making the appropriation has become effective. While the appropriation constitutionally does not become available for expenditure until the fiscal year for which it is made

2 In certain instances, the Constitution mandates a continued availability of funds and we do not deal with those instances here. See, e.g., Ga. Const., Art. VII, Sec. IX, Par. IV (b) (Ga. Code Ann. 2-6204). 3 The implication in prior opinions that the frame of reference is any twelve month period is, of course, not correct. See, e.g., Ops. Att'y Gen. 70-8, 67-345.

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begins, such a contract does not anticipate future appropriations or obligate other sources of funds, and thus does not create a present, unfunded obligation.
II. In prior informal reviews of state agency contracts by this office, we have encountered multi-year contracts which contained several types of provisions designed to obviate the conflict with the Constitution which would otherwise be posed. The first of these is a contract, otherwise within the limitations stated above, which grants to the state agency, but not to the private party with whom the contract is made, an option to extend the term of the contract for an additional fiscal year. Generally, the option may be exercised by the state agency within 60 days prior to the beginning of the next fiscal year and thus at a time when appropriations for that fiscal year under a General Appropriations Act have become effective. Such a provision does not in any way obligate future appropriations and is thus within the constitutional limitations set forth above.4 A second alternative employed in otherwise invalid multi-year contracts is an attempt to deal directly with the problem inherent in them. Under this approach, a multi-year contract is subject to automatic termination at the end of any fiscal year included in its term if there is a failure on the part of the General Assembly to appropriate sufficient funds for its continuation. Several factors make it apparent that such a clause is insufficient to avoid the constitutional deficiency otherwise inherent in the contract. The General Assembly does not, in fact, and serious doubts exist as to whether constitutionally it may, appropriate with reference to specific contracts executed or to be executed by state agencies. Op. Att'y Gen. 73-132 (and constitutional provisions cited); Ga. Const., Art. I, Sec. I, Par. XXIII (Ga. Code Ann 2-123); Fuller v. State, 232 Ga. 581 (1974) (concurring opinion of Hall, J.); Boston & Gunby v. Cummins, 16 Ga. 102, 105 (1854). Absent such a scheme for the appropriations process, the continuing fiscal obligation inherent in such contracts would purport to govern expenditure of appropriations in fact made to the state agency. See, Irons v. Harrison, 185 Ga. 244, 253-54 (1937); Harrison v. State Highway Dept., 183 Ga. 290 (1936). For these reasons, it is my opinion that a "failure of appropriations" clause does not save an otherwise invalid multi-year contract. The third device is a provision granting to the state agency, or to both parties, under a contract which otherwise violates the Constitution, an option to terminate the contract. Generally, such an option
4 Prior opinions make clear, however, that penalties imposed on the state agency incident to the failure to exercise the options are invalid. See, e.g., Ops. Att'y Gen. 1963-65, p. 221; Op. Att'y Gen. 70-8.

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is subject to exercise within a period of time immediately preceding the beginning of a new fiscal year. In my opinion, such a contract does not comply with the Constitution and is beyond the authority of a state agency. A state agency is not authorized to pledge the credit of the state. A multi-year contract obligating future appropriations, even with an option to terminate, is a pledge of the state's credit thus beyond the authority of the state agency in the first instance and therefore void. Barwick v. Roberts, 188 Ga. 655 (1938); Ops. Att'y Gen. 1963-65, p. 221. The option to terminate the contract does not modify the pledge of credit and purports to vest in the state agency a power to determine whether the pledge shall be terminated. No state agency has such a power and this becomes especially apparent in view of the fact that, under such a contract, the state agency's neglect will suffice to continue the pledge as sufficiently as a conscious determination not to exercise the power. Ops. Att'y Gen. 1963-65, p.221.
III.
As you noted in your request, the Board of Regents of the University System of Georgia is not subject to the same limitations imposed on agencies of the state. See, e.g., State of Georgia v. Regents of the University System of Georgia, 179 Ga. 210, 222 (1934); Ga. Const., Art. VIII, Sec. IV, Par. I (Ga. Code Ann. 2-6701). On the other hand, the Board of Regents is not authorized to obligate future appropriations which are made to it in its departmental capacity. State of Georgia v. Regents, supra; State Ports Authority v. Arnall, 201 Ga. 713 (1947). With respect to appropriations to it, the Board of Regents is subject to the same limitations which apply to other agencies of the state.
In your request, you make reference to a specific multi-year contract executed by the Board of Regents for computer equipment which it now desires to replace. In the bid documents issued incident to securing replacement equipment, prospective vendors are advised that the successful vendor must make the necessary arrangements to liquidate the existing contractual obligation to the vendor of the equipment to be replaced. Without reference to the existing contract, of course, I cannot reach an opinion as to the validity of that document.
The limitations applicable to other state agencies are also applicable to the Board of Regents of the University System of Georgia to the extent its contractual obligations are dependent upon appropriations made to it in its capacity as a department of State Government.

IV.
Your specific request with respect to the Department of Administrative Services seeks my opinion as to whether, as presently drawn,

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a proposed contract for the rental by that department of computer equipment and related goods is consistent with the limitations stated above.
Under that contract, the department agrees to rent the equipment for an initial six-year period for a rental payable in monthly increments of $125,000. Anticipating the issue presented here, the contract provides:

"[DOAS] tmay terminate items of equipment ... upon ... written notice of hirty (30) days or the remainder of the ... fiscal year, whichever is less, certifying that the availability of budgetary funding from those sources currently supporting these items of equipment can no longer support the affected items ... so that termination of those items will have resulted from the loss of funding. It is not the intent of this provision to permit [the Department] to then make, request or allocate budgetary funding for the acquisition of new or use of existing [non-vendor] equipment...."

The Department of Administrative Services, in its provision of computer services, is in a unique position. Under the present statutory framework, the department does not receive for the provision of those services a direct appropriation to it. Instead, DOAS invoices the state agency users of that equipment and by this method funds the costs of providing those services.
That the fiscal obligations of DOAS under contracts with vendors are not payable from direct appropriations to it but depend instead on user fees in turn supported by direct appropriations does not render any less applicable the debt limitations stated above. See, State Ports Authority v. Arnall, 201 Ga. 713 (1947); Op. Att'y Gen. 72-59. Unless the "escape" clause noted above is sufficient to negate a future obligation, it is my opinion that the contract is invalid.
In my opinion, moreover, the "escape" clause is not sufficient to avoid the conclusion that the contract creates a debt. In the first instance, the initial obligation of the Department of Administrative Services is stated as a continuing, general obligation. Even if the quoted language were otherwise sufficient to modify this conclusion as to the nature of the obligation, however, the contract imposes an obligation not to "make, request or allocate budgetary funding for the acquisition or use of [non-vendor] equipment...." In my opinion, such a limitation retains the original character of the department's obligation and thus not only is insufficient to avoid the debt impediment but is further invalid because the nature of the obligation incurred and the period of time which that obligation encompasses is

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also beyond the contractual authority of the department conferred, or which might be conferred, by statute.5
However, because of the unique position occupied by the Department of Administrative Services, it is my conclusion that different considerations are applicable to its powers in connection with multiyear contracts. In my opinion, the department may remedy the deficiencies inherent in the existing language of the proposed contract if in lieu of the language quoted above the following is substituted:
" (a) The total monthly charge established hereunder is payable by the customer solely from fees received by the customer from other agencies of the State of Georgia for their use of the products, which, to the extent authorized by law, are established in the sole discretion of the customer. In no event shall the sum of the total monthly charges made in any fiscal year of the customer exceed the sum of the fees so received by the customer during such fiscal year.
"(b) In the event that the source of payment for the total monthly charge no longer exists or is insufficient with respect to the products or to any of them, then this contract as to all products, or, as the case may be, as to any products included under this contract, shall terminate without further obligation of the customer as of that moment. The certification by the customer of the event stated above shall be conclusive."
Under such a clause, the department does not obligate the continuation of any source as state funds and thus neither pledges the credit of the state nor obligates the state in a manner beyond the authority conferred by statute. See, e.g., City Counsel of Dawson v. Dawson Waterworks Co., 106 Ga. 696, 712 (1899); Miller v. Head, 186 Ga. 694 (1938).
It is my opinion, therefore, that if the Department of Administrative Services amends the proposed contract in the manner stated above, then the fact that the term of the contract extends beyond the current fiscal year does not invalidate the contract.

OPINION 74-116

To: Commissioner, Department of Corrections

August 23, 1974

Re: Georgia law does not permit inmates assigned to the Atlanta Advancement Center as work releasees to reside in their home.
5 Other considerations may also bear on the validity of such an undertaking but they are not pertinent here. Ga. Const., Art. IV, Sec. IV, Par. I (Ga. Code Ann. 2-2701); Ga. Code Ann. 26-2308 (a), based on Ga. Laws 1968, pp. 1249, 1308; Op. Att'y Gen. 67-23.

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Your letter of July 26, 1974, requested an opinion concerning the legality of assigning inmates to the Atlanta Advancement Center as work releasees, yet allowing these inmates to reside in their homes. As I understand the facts, the sole control of these inmates would be their requirement to report to the Atlanta Advancement Center twice daily for the purpose of signing in and out.
The statute which describes the duties of the State Board of Corrections in the assignment of prisoners to penal institutions is quite explicit in its designation of these institutions as places of confinement. Ga. Laws 1956, pp. 161, 171, as amended, Ga. Laws 1968, p. 1399 (Ga. Code Ann. 77-309 (b)), provides:

"'Where any person shall be ... sentenced to serve time in any penal institution in this state ... the Director of Corrections ... shall designate the place of confinement where the sentence shall be served.''

The Director of Corrections may designate as a place of confinement any appropriate correctional institution in the state. Ga. Laws 1956, pp. 161, 171, as amended, Ga. Laws 1968, p. 1399 (Ga. Code Ann. 77-309 (b) (1) ). This statute does require, however, that before the Director of Corrections may transfer a prisoner from one correctional institution to another, the State Board of Corrections must grant its approval.
There is authority for one means of extending the limits of the place of confinement of a prisoner. The Director of Corrections may permit a prisoner to work at paid employment or participate in a training program in the community. However, the statute specifies that a participant in such a work release program continues to be a prisoner of the institution to which he is committed. Ga. Laws 1956, pp. 161, 171, as amended, Ga. Laws 1969, p. 602 (Ga. Code Ann. 77-309 (b) (2) ).
Under the system of control you have described, it is my opinion that there is no authority for the superintendent of a correctional institution to allow work releasees to reside in their homes. The statute is quite specific concerning the conditions under which the limits of a prisoner's confinement may be extended, and expressly stipulates that a work releasee shall continue to be a prisoner of the institution to which he has been committed. Legislation is necessary before the limits of confinement can be extended to the degree requested by this proposal.

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OPINION 74-117

To: Commissioner, Department of Transportation

August 27, 1974

Re: Under Act 1309, Georgia Laws 1974, p. 3639, a state employee need not resign from an office to which he has been elected.

You have recently inquired as to whether or not, under Act 1309, Georgia Laws 1974, p. 3639 (repealing Ga. Code Ann. 89-934), a state employee must resign from an office to which he has been elected in a municipality of less than 1,000 persons. Assuming that the employee was elected between July 1, 1972 and March 28, 1974, I am of the opinion that he need not resign.
One of the rights enjoyed by the citizens of this state is the right to hold office. Ga. Code (1933) 79-205. All citizens are entitled to exercise this right unless specially prohibited by law. Ga. Code (1933) 79-206. The statutory wording limiting the right of a person to hold office is to be given a liberal, although not unreasonable, construction in favor of those seeking to hold office. Thornton v. McElroy, 193 Ga. 859 (1942). A person's eligibility for public office is determined at the time of the election. Hulgan v. Thornton, 205 Ga. 753 (1949).
With these principles in mind, I find no state law prohibiting a mere employee of the state from holding an elected municipal office. Georgia Code Ann. 89-101 (4), as amended by Ga. Laws 1972, p. 868, prohibits "persons holding any office of profit or trust" (emphasis added) under the government of the several states from holding a civil office in Georgia. However, this section would not apply to a mere employee holding a position of employment, rather than an office, within State Government. See Ops. Att'y Gen. 70-137, 72-69.
The idea that the merit system's rules and regulations prohibit merit system employees from holding public office arose as the result of an opinion issued by this office. Op. Att'y Gen. 67-145. That opinion, which was valid when written and is valid for elections held today, examined Paragraphs 3.101, 3.105 and 3.106 of Section 3.100 of Rule 3 of the Rules and Regulations of the State Merit System (now Paragraphs 3.501, 3.505 and 3.507, respectively, of Section 3.500 of Rule 3 of the merit system). In that opinion it was stated that because a merit system employee could not, under the merit system's rules and regulations, be a candidate for nomination to any public office, employees under the merit system were not entitled to hold public office.
The facts which you present were not present at the time that opinion was written nor were they contemplated therein. Between July 1, 1972 and March 28, 1974, merit system employees could become candidates for public office in a limited situation-in munici-

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palities of less than 1,000 population. Ga. Laws 1972, p. 387; Ga. Laws 1974, p. 3639; Rules and Regulations of the State Merit System, Rule 3, 3.500, ~ 3.508 (now repealed). The merit system's rules and regulations now again prohibit an employee's becoming, and require his removal upon becoming, a candidate for political office in this situation. Rules and Regulations of the State Merit System, Rule 3, 3.500. However, there is nothing in those rules to prohibit an employee's holding an office for which both state law and the merit system rules permitted his being a candidate at the time he was elected.
Therefore, it is my official opinion that a state employee elected to office in a municipality of less than 1,000 population pursuant to Georgia Laws 1972, p. 387, may finish out the term to which he was elected and cannot be removed from his position of employment because of the holding of that elected office.

OPINION 74-118

To: Commissioner, Department of Banking and Finance

August 27, 1974

Re: A state-chartered bank acting as a depository for public funds must provide security for those deposits as required by law, and Ga. Code 13-2068 does not authorize the pledge of assets of a bank other than the depository.

Your office has requested, by letter dated July 11, 1974, my opinion concerning the practice of state-chartered banks in which one bank will pledge its assets to secure public deposits in another bank.
Deposits of public funds have, by statute, long been granted a preferred status over ordinary deposits. Section 6 of Ga. Laws 1933, pp. 78, 83 (Ga. Code Ann. 89-813), creates a lien on the banks' assets in favor of the public body making the deposit. Moreover, funds deposited by the state are required to be secured by a bond or the pledge of certain enumerated assets of the bank. Ga. Code Ann 100-108, amended by Ga. Laws 1973, p. 149. A similar requirement is imposed with respect to deposits of all public funds by Section 6 of Ga. Laws 1933, pp. 78, 83 (Ga. Code Ann. 89-812). That Act states that persons having the authority to deposit public funds of the state, or any subdivision thereof, shall require the depository to give bond or make deposits of securities in trust to secure deposits of public funds.

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This section has been interpreted to impose a legal obligation upon a bank acting as depository to give bond or make deposits of security in trust, even if the public official making the deposit fails to require the security. Op. Att'y Gen. 62-24. Thus, Ga. Code Ann. 100-108 and 89-812 create a general requirement that a depository of public funds shall post security in the manner prescribed by statute. Since the language of these Code sections clearly contemplates that the depository bank pledge its own assets to secure the deposit of public funds, the requirement is not met by an alternative form of security, absent statutory authority therefor.I
Georgia Code Ann. 13-2068 (Ga. Laws 1973, pp. 526, 532) provides, inter alia, that "any bank may pledge assets as security for deposits of: (1) public funds ...." The phrase "any bank" does not intrinsically support a construction permitting a pledge of assets by a bank other than the depository. Moreover, such a construction would require an implied repeal of Code 89-812 and 100-108 that demand that the depository bank secure the deposits by bond or a pledge of its own assets. Such a construction is not favored. Sims v. State, 7 Ga. App. 852 (1910). Georgia Code Ann. U~-2068 must be interpreted and harmonized with other Acts of the General Assembly dealing with public deposits and pledges of assets. Ryan v. Commissioners of Chatham County et al., 203 Ga. 730 (1940). So construed, Code 13-2068 simply reflects the requirements stated in Code 100-108 and 89-812.
There is an additional obstacle to the pledge of assets by one bank to secure the deposits of public funds in another bank. Although the exact terms of the agreement between the two banks are not known, it appears to create a surety relationship. The courts have held that banks have no power to become a surety on the debt of another, and contracts creating such a relationship have been declared ultra vires. Bank of Omega v. Wingo, Ellett & Crump Shoe Co., 19 Ga. App. 177 (1917); First National Bank of Tallapoosa v. Monroe, 135 Ga. 614 (1910); Bank of Lumpkin v. People's Bank of Athens, 27 Ga. App. 459, 461 (1921).
It is therefore my opinion that, for the foregoing reasons, a statechartered bank acting as a depository for public funds must provide security for those deposits as required by law, and Code 13-2068 does not authorize the pledge of assets of a bank other than the depository to meet these security requirements.

1 See, for example, Ga. Code Ann. 100-105, amended by Ga. Laws 1973, p. 149, which allows the State Depository Board, in its discretion, to waive the security requirement entirely for state deposits placed in demand and special accounts.

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OPINION 74-119

To: Chairman, State Board of Pardons and Paroles

August 28, 1974

Re: Notices of preliminary and final hearings to consider parole revocation should include a statement that an indigent parolee may request appointed counsel.

You have requested an opinion concerning whether notices of preliminary and final hearings to consider parole revocation should include a statement that an indigent parolee may request appointed counsel.
In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court held that a parolee is entitled to protection of constitutional due process in proceedings to revoke his parole; however, the court did not reach the question whether the parolee is entitled to the assistance of retained counsel, or, if he is indigent, to the assistance of appointed counsel.
In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court stated that there is no difference between the revocation of parole and the revocation of probation and "that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer." Gagnon v. Scarpelli, supra at 782. Although the Court of Appeals had held that the state is under a constitutional duty to provide counsel for indigents in all probation or parole revocation cases, the Supreme Court rejected such a rule.
"[C]ounsel should be provided in cases where, after being inforrned of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim...." Gagnon v. Scarpelli, supra at 790. (Emphasis added.)
The indigent parolee is entitled to appointed counsel at revocation proceedings only where fundamental fairness requires it, but the language of Gagnon implies that an indigent parolee should always be informed of his right to request appointed counsel at revocation proceedings. See Case Note, 23 Emory L. J. 617 (1974).
My opinion is that Gagnon v. Scarpelli, supra, requires that notices of preliminary and final hearings to consider parole revocation include a statement that an indigent parolee may request appointed counsel. These notices should be supplemented, however, with a statement that counsel will not be automatically provided in every case.
I also call to your attention the following statement in the Scarpelli decision, supra:
" ... in every case in which a request for counsel at a preliminary

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or final hearing is refused, the grounds for refusal should be stated succinctly in the record...."
Therefore, the board should follow this requirement as laid down by the Supreme Court.

OPINION 74-120

To: Commissioner, Department of Banking and Finance

August 29, 1974

Re: Proposed reorganization of the Trust Company of Georgia is not inconsistent with the provisions of Ga. Code Ann. 13-207.

This is in response to a request for an opinion from your office dated April 15, 1974, in which you asked whether the proposed reorganization of the Trust Company of Georgia violates bank holding company restrictions imposed by Georgia law.
Georgia Code Ann. 13-207 (a) (Ga. Laws 1960, p. 67; 1973, p. 281) provides, inter alia, that after the effective date of the Act, "it shall be unlawful ... for any action to be taken which results in a company becoming a bank holding company ...." Subdivision (D) of Code 13-207 (a), however, excepts from the prohibition, "any action taken which results in a company becoming a bank holding company in a corporate reorganization involving an existing bank which is chartered under the laws of Georgia and which owns a bank holding company if, immediately after such reorganization, such company owns directly or indirectly no property other than (1) the shares of such bank, and (2) the property which such bank directly or indirectly owns."
The Trust Company of Georgia, a state-chartered bank, has proposed a reorganization in which a holding company will be superimposed on the present organization consisting of the Trust Company Bank which owns Trust Company Associates, a bank holding company. The new holding company will assume 100 percent ownership of the shares of Trust Company Bank, two other companies wholly owned by the bank and nothing more. It is, therefore, my opinion that although the proposed reorganization of the Trust Company of Georgia will result in a company becoming a bank holding company, it is consistent with objective standards set forth in subdivision (D) of Ga. Code 13-207 (a).
However, in addition to the objective standards set forth therein, subdivision (D) of Ga. Code 13-207 (a) also requires your determination that the reorganization is not inconsistent with the purposes

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of Code 13-207. Those purposes are expressed clearly in Section 1 of Ga. Laws 1960, p. 67, as follows:

"It is the intent of this Act to prevent the extension of statewide

banking by an institution and to encourage the normal growth
of banking units as the local communities. * * * It is the intent

of this Act to restrict further the acquisition of voting shares of

banks by bank holding companies. It is the intent of this Act

to keep banking units from expanding into territories beyond their

[county] limits." See Independent Bankers Assn. v. Dunn, 230

Ga. 345 (1973).



Unless the reorganization is found by you to be consistent with that policy, it should not be approved.
Finally, your request seeks our opinion on the constitutionality of the provisions of subdivision (D) of Code 13-207 (a).
The only issue of constitutional dimension which, in my opinion, is possibly involved in that provision arises because while on its face subdivision (D) is general in scope, in fact only one bank in the state is in a position to take advantage of its provisions. See Hansell v. Citizens & Southern National Bank, 213 Ga. 205 (1957). In my opinion, that fact does not bring an otherwise general law into conflict with Ga. Const., Art. I, Sec. IV, Par. I (Ga. Code Ann. 2-401). Such a conflict may arise only from the face of the statute. Murphy v. West, 205 Ga. 116 (1949). Moreover, even if those facts were other'vise pertinent, it is my opinion that the classification so made does not violate Art. I, Sec. IV, Par. I. In adopting the bank holding company restrictions contained in Ga. Code Ann. 13-207 (a) with a "grandfather" exception, the General Assembly necessarily created a special class. There is no question as to the reasonableness from a constitutional viewpoint of its doing so. See Featherstone v. Norman, 170 Ga. 370 (1930). Having lawfully created the class, the General Assembly has the power to deal with it as long as it does so in a manner strictly pertinent to the unique position occupied by the class. I cannot say that the provisions of subdivision (D) do not meet these standards.
For these reasons, it is my opinion that the provisions of subdivision (D) of Ga. Code 13-207 (a) are constitutional.

OPINION 74-121

To: Commissioner, Department of Banking and Finance

September 3, 1974

Re: Indirect powers of banks under Code 13-1802 and 13-2023 (h) may be exercised only in accordance with Code Ch. 13-2.

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This is in response to your request for advice as to whether a statechartered bank may establish, directly or through a subsidiary corporation, an office for performing data processing services for itself, and for other banks, and whether such an office may be established in a county other than the county in which its principal office is located. You further requested my opinion as to whether a statechartered bank may establish a subsidiary corporation for the purpose of engaging in the business of leasing tangible personal property and whether that corporation may establish an office outside the county in which is located the principal office of the bank.
In order properly to treat the questions presented, I believe it necessary first to examine the statutory framework related to powers of state-chartered banks.
I.
Initially, the powers of state-chartered banks flow essentially from two statutory provisions. Ga. Code Ann. 13-201, amended by Ga. Laws 1960, p. 67, defines a "bank" as:
" ... any moneyed corporation authorized by law to receive deposits of money and commercial paper, to make loans, to discount bills, notes and other commercial paper, to buy and sell bills of exchange, and to issue bills, notes, acceptances or other evidences of debt, and shall include incorporated banks, savings banks, banking companies, trust companies, and other corporations doing a banking business...."
Similarly, Ga. Code (1933) 13-1801 provides, in pertinent part, that:
"A bank organized under this Title shall have power:
* * *
"7. To discount bills, notes or other evidence of debt; to receive and pay out deposits, with or without interest; to receive on special deposit, money ... stocks, bonds, or other securities, or other property; to buy and sell ... negotiable paper; to issue and sell acceptances; to lend money ... ; to take and receive security...."
"'Vithout question, these provisions authorize a state-chartered bank to acquire and employ property necessary to perform these functions.
However, also without question, these provisions do not authorize a bank to sell computer or data processing services either to other banks or to the public generally nor do these provisions confer authority to engage in the business of leasing property.
Moreover, Code 13-2022, amended by Ga. Laws 1966, p. 590, prohibits banks from engaging in the:
" . . . purchase or handling of merchandise, farm or manufactured

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products, except to secure a debt previously contracted in good faith...."
However, Code 13-2022 excepts from the prohibition, and grants authority for:
" ... the purchase [by a bank] of personal property for the purpose of leasing upon the request of a prospective lessee thereof received before such property is purchased by the bank.... At the end to any lease ... the bank shall ... within six months enter into a renewal lease or a new lease as to such property, or shall dispose of such property...."
Thus, a state-chartered bank may not engage in the business of selling or leasing personal property except to the extent and in the manner specifically authorized by Code 13-2022.
Finally, with certain exceptions discussed hereinafter, Ga. Code 13-2023 (1933 Code, as amended) provides that:
''No bank shall subscribe for, purchase, or hold stock in any other bank ... nor in any other corporation...."
Thus, in order to engage in the sale to other banks of computer services, directly or through a subsidiary corporation, or in the leasing of property through a subsidiary corporation, the authority to do so must be otherwise founded.
II. Georgia Code 13-1802, added by Ga. Laws 1968, p. 1044, provides that a state-chartered bank:
" ... in addition to the powers enumerated in section 13-1801, shall have the corporate power to exercise ... subject to law, all such incidental powers as shall be necessary to carry on the business of banking when approved by the [Commissioner of Banking and Finance, but] such incidental powers shall not be greater than the powers and activities permitted to national banking associations under the laws of the United States."
While that language might be construed as merely a restatement of the theretofore recognized principle that banks did have such incidental powers necessary to carry on the business of banking as defined by Code 13-1801, Reynolds v. Simpson & Ledbetter, 74 Ga. 454 (1884), it is my opinion that the General Assembly intended to expand, though to a very limited extent, the existing powers under Code 13-1801. The "incidental powers" conferred in Code 13-1802 are expressly stated to be "in addition to" the powers previously conferred by Code 13-1801 which express powers necessarily included in the incidental powers necessary to exercise them.

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The exact scope of the additional powers thus granted by Code 13-1802 is not exactly defined. As a general outline of those powers, however, Code 13-1802 provides that any activity sought to be justified as an incidental power must be "necessary to carry on the business of banking," must be "approved by the [Commissioner of Banking and Finance]," and cannot encompass an activity not permitted to national banking associations. Finally, the exercise of such power, and thus the grant of it, is "subject to law."
III.
The use by a bank of data processing equipment and technology to perform functions authorized by Code 13-1801 is, of course, a power incident to an express power under that provision and thus is granted by Code 13-1801, independently of 13-1802. The sale of data processing equipment and technology services to other banks is not authorized by Code 13-1801, but in my opinion is authorized by Code 13-1802.1 The Comptroller of the Currency, in defining the permissible activity of national banks in this area, has concluded:
"A national bank may use data processing equipment and technology to perform for itself and others all services expressly or incidentally authorized under the statutes applicable to national banks. For example, as part of its banking business and incidental thereto, a national bank may collect, transcribe, process, analyze, and store, for itself and others, banking, financial, or related economic data. In addition, incidental to its banking business, a national bank may (i) market a by-product (e.g., program, output, etc.) of an above-described data processing activity; and (ii) market excess time on its data processing equipment so long as the only involvement by the bank is furnishing the facility and necessary operating personnel." 39 Fed. Reg. 14192.
In my opinion, this statement of incidental powers is intrinsically persuasive that such activities are "necessary to carry on the business of banking" within the meaning of Code 13-1802. I am not aware of any other provision of Code Title 13 which would prohibit such activity by state-chartered banks.
It is, therefore, my opinion that the activities described by 39 Fed. Reg. 14192 are permitted to state-chartered banks under Code 13-1802 if they are approved by the Commissioner of Banking and Finance. whether such approval should be given in a particular case requires, in my opinion, that the commissioner consider the proposed activity in light of other policies expressed in Code Title 13, including,

1 Such powers are also conferred by Ga. Code 13-2023 (g), as hereinafter stated, but the power there granted is limited to a specific method by which it may be exercised.

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for example, whether the undertaking is conducive to the stability of the bank involved and whether it is consistent with the policies underlying Code Ch. 13-2, as well as other factors.
IV.
The engaging in leasing activity by a bank presents different considerations. Those considerations flow from the fact that the inquiry concerning the power to engage in such activity is not simply a matter of finding authority under Code 13-1801 or 13-1802, but also involves the express limitation on such activity under Code 13-2022.
As noted above, the "handling" by a bank of "merchandise" for sale or lease is not only not authorized by Code 13-1801; it is expressly prohibited by Code 13-2022, except when undertaken in particular circumstances in a prescribed manner under that provision.
Under this framework, the power to engage in leasing activity flows solely from Code 13-2022 and is subject to the limitations imposed by that provision on the power granted.
Against this statutory framework, it is my opinion that Code 13-1802 does not confer any authority greater than that granted by Code 13-2022 and certainly does not grant a power to engage in any activity expressly prohibited by Code 13-2022.
In a prior opinion, Op. Att'y Gen. 73-44, I concluded that Code 13-1802, which expressly grants incidental powers "subject to law," did not repeal by implication existing express statutory limitations on banks. Indeed, the grant under Code 13-1802 is made expressly "subject to law." I adhere to that conclusion.
Code 13-1802 does not, therefore, confer authority for a bank to engage in the business of leasing property greater than the authority granted by Code 13-2022.
v.
Georgia Code 13-2023 provides that no bank shall hold stock in any other bank or in any other corporation, except in defined circumstances. Two of those exceptions are pertinent here.
The first is subsection (g) of Code 13-2023 which authorizes one or more banks to establish a bank service corporation:
" ... for the express purpose of performing necessary clearing, bookkeeping, statistical and related services through the cooperative use of automation equipment from a central processing point...."
The second is contained in subsection (h) of Code 13-2023 which in pertinent part provides:
" ... any bank may, subject to the prior approval of the [Commissioner of Banking and Finance], purchase and own all of the

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capital stock of one or more subsidiary corporations organized for the purpose of exercising such incidental powers authorized under section 13-1802 as may be necessary to carry on the business of banking."
The express language of Code 13-2023 (h) permits a bank to own all of the capital stock of one or more subsidiary corporations organized for the purpose of exercising the powers granted under Code 13-1802. It does not, however, authorize a bank to organize a subsidiary corporation for the purpose of exercising any or all of the powers granted by Code 13-1801. Thus, a bank may not incorporate a wholly owned subsidiary bank to perform all of the powers granted by Code 13-1801 nor may it organize a subsidiary corporation to perform any one of the direct powers granted by Code 13-1801, such as the power "to receive and pay out deposits, with or without interest...." Ga. Code 13-1801 (7). A bank's subsidiary may perform only the incidental powers granted by Code 13-1802; it may not perform all or any one of the direct powers granted by Code 13-1801.
As stated above, a bank's power to engage in the business of leasing tangible personal property does not flow from Code 13-1801 or from Code 13-1802. Instead that power is granted only by Code 13-2022.
The relationship desired by the General Assembly between Code 13-1802, 13-2022 and 13-2023 (h) is thus not entirely clear. However, because the power under Code 13-2022 is not otherwise granted by Code 13-1801, and because at the time the General Assembly adopted both Ga. Code 13-1802 and 13-2023 (h) this power was extant, it is reasonable to conclude that the General Assembly considered the power "incidental" to the direct powers of banks for the purposes of those provisions. For this reason, it is my opinion that these sections, construed together, authorize a bank to perform the functions authorized by Code 13-2022 through a subsidiary corporation under Code 13-2023 (g).
In sum, it is my official opinion that a bank may perform the data processing activities described above and the leasing activities otherwise authorized by Code 13-2022 through subsidiary corporations wholly owned by it.
VI.
You further inquired as to whether the branch-banking restrictions contained in Ga. Code Ch. 13-2 precludes the establishment of an office by a bank or by its subsidiary corporation for the purposes of engaging in either of the above activities outside the county in which is located the principal office of the bank.
Code 13-2023 (g) specifically authorizes one or more banks to organize a subsidiary corporation for the "express purpose" of per-

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forming clearing, bookkeeping, statistical and related services through the cooperative use of automation equipment:
" ... from a central processing point for one or more banks...."
In my opinion, the branch-banking restrictions do not apply to such corporations. Otherwise, at least one of two banks forming such a corporation would violate branching restrictions since it is a patent physical impossibj}ity for each bank to locate such equipment at its principal place of business. Code 13-2023 (g), therefore, does not contemplate the application of Code Ch. 13-2 to corporations formed thereunder.
It is my opinion, however, that the restrictions of Code Ch. 13-2 do apply to the performance by a bank of the incidental powers granted by Code 13-1802.
Code 13-204.1 provides
"No bank shall carry on or conduct or do a banking business in this state except on the premises of the place of business (banking house) established and operated under and pursuant to a permit .... A banking business is the business which a bank is authorized to do pursuant to Chapter 13-18 of this Title and the Banking Law. It is intended that this section be construed as a part of the laws of this state dealing with branch-banking."
That section was enacted by Ga. Laws 1970, p. 954, at a time when Ga. Laws 1968, p. 1044, had previously added Code 13-1802 to "Chapter 13-18 of this Title and the Banking Law," and Ga. Laws 1968, p. 1162, had added subsection (f) to Ga. Code 13-2023.
In my opinion, the prohibitions contained in Code Ch. 13-2 patently apply equally to banks and their subsidiary corporations performing incidental powers granted by Code 13-1802.
VII.
In your request, you noted that one state-chartered bank intended, through its subsidiary corporation, to employ a sales agent for the purpose of soliciting leasing business. Specifically, the sales agent would be provided an office outside the county in which the principal office of the bank is located. His expected functions were described as follows:
"It is possible, although unlikely at this point, that the representative would rent commercial office space.
"The representative's function would be to solicit leasing business, call on prospective customers, assemble some credit information, prepare leasing applications, and follow up with a lessee to the extent he felt there was a possibility for more business. We expect

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that the representative would be on the road about 80 percent of the time. He would not advertise his office as a place of business, seek walk-in traffic, or accept deposits or payments. The representative would not have the authority to execute or commit to leases. All decisions would be made [at the principal office of the bank], all lease documents would be kept [there], and for these reasons most questions or problems involving an existing lease would probably have to be handled from [there]."
Georgia Code Ch. 13-2 does not authorize the establishment outside the county in which the principal office of a bank is located either of "an additional principal place of business," Ga. Code 13-201.1 (b); or of "any additional place of business [operating] a complete banking service," Ga. Code 13-201.1 (c); or of "any additional place of business [operating] a limited banking service." Ga. Code 13-201.1 (d). (Code 13-201.1, based on Ga. Laws 1960, p. 67; 1963, p. 602; 1970, p. 954.) Op. Att'y Gen. 74-12.
Patently, a bank may not establish outside the county in which its principal office is located a "place of business" for the purpose of performing all banking services or any bank service.
For these reasons, it is my opinion that the establishment of a "place of business" as described above would violate the branchbanking restrictions whether it is established directly by a bank or indirectly through a wholly-owned subsidiary of the bank.

OPINION 74-122

To: State Superintendent of Schools

September 3, 1974

Re: General school funds may not be used to pay for rewards given individuals who provide information resulting in the arrest and conviction of persons responsible for damage to and destruction of public school property.

I write in response to your request for an opinion as to the legality of the utilization of general school funds for the payment of rewards offered by county school systems to individuals supplying information incidental to the arrest and conviction of persons responsible for damage to and destruction of school property. For reasons to be discussed subsequently, it is my opinion that school funds may not be lawfully expended for such a purpose.
Expenditures of general school funds are subject to a restriction to "educational purposes and none other." See Art. VII, Sec. II, Par. I,

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and Art. VII, Sec. IV, Par. II of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5501, 2-5702); Ga. Laws 1969, p. 721 (Ga. Code Ann. 32-942). While the Supreme Court of Georgia has specifically stated that the expression "for educational purposes" is to be given the broadest significance, Worth v. Board of Education, 177 Ga. 166, 175 (1933), and has indicated that the expression is" ... broad enough to cover all things necessary or incidental to the furtherance of education ..." Board of Com'rs of Roads and Revenues of Twiggs County v. Bond, 203 Ga. 558 (1948), the scope of educational purposes has not been enlarged to include any measure that ma,y simply be of assistance to a program of education. This limitation was recognized by the Supreme Court in Wright v. Absalom, 224 Ga. 6 (1968), wherein the use of common school funds in support of a school lunch program was determined not to be for educational purposes. In so holding, the court noted that while the school lunch program may render pupils more efficient and feeding of children is a worthy and beneficial undertaking, eating is not education.
Past opinions rendered by this office have been consistent with the conservative approach set forth in Wright v. Absalom, supra. In considering what is necessary and incidental to the furtherance of education, the Attorney General has opined that expenditure of school funds in support of extracurricular athletic teams is unauthorized (Op. Att'y Gen. 71-10); that expenditure of school funds for improving a public, county-maintained road to facilitate school transportation is unlawful (Ops. Att'y Gen. 1962, p. 189); that expenditure of school funds to purchase uniforms for noninstructional personnel is unlawful (Op. Att'y Gen. 67-182) ; and that expenditure of school funds to pay a rebate to the county tax collector to help defray tax collection expenses is unlawful (Ops. Att'y Gen. 65-3, 65-29).
It would appear that the expenditure of monies for the purpose you describe would almost certainly be considered further removed from educational purposes than a school lunch program or the other measures mentioned above. Although the reward might prove beneficial to existing school programs, I would hesitate to deem it necessary and incidental to the furtherance of education in Georgia.
Consequently, it is my official opinion that expenditure of school funds for the payment of rewards offered for information concerning damage to and destruction of school property is not an expenditure for educational purposes, and therefore not a lawful use of general school funds.

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OPINION 74-123

To: State Superintendent of Schools

September 5, 1974

Re: An incorporated college or university whose charter contains no express authority for it to confer degrees or diplomas, and which has not received the State Board of Education's "certificate" (under Ga. Laws 1937, pp. 864, 868) necessary to the issuance of such charter authority, would be acting ultra vires should it engage in the issuance of degrees or diplomas to its students.

This is in reply to your letter of July 31 to which you attach two corporate charters (i.e., one for a nonprofit college or school and the other for a church) and ask whether either would authorize the entity it incorporates under the laws of the State of Georgia to confer degrees or diplomas to students completing its educational program. As your letter correctly points out, neither charter contains any express authorization for the conferring of such degrees or diplomas, and the question thereby reduces itself to one of whether it can be said that the incorporated entity (i.e., the nonprofit college or church) has an implied power to do so on the ground that this is a usual and customary incident or concomitant of the power to operate a college or school. Of necessity involved in the consideration of this matter is Ga. Laws 1937, pp. 864, 868 (Ga. Code Ann. 32-415), the relevant portion of which declares that:
". . . no charter granting the right to confer such degrees or diplomas shall be granted or issued until the applicants therefor have obtained from the State Board of Education a certificate showing that such requirements of the board have been met." 1
Looking then in turn to each of the two charters, the situation would be as follows:
1. The charter establishing a nonprofit college or school.
This initial charter provides that the business of the corporation it brings into existence shall be that:
". . . of establishing, maintaining, conducting and operating an institution, school, college, academy and seminary for instruction in the arts and sciences and in the Bible."

1 This statute and the limited nature of the State Board of Education's regulatory authority thereunder has been discussed quite recently in Op. Att'y Gen. 74-94 (Opinion to Honorable Jack P. Nix, State School Superintendent, dated July 24, 1974).

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The stated powers of the corporation include the possession and enjoyment of:

"all rights and powers which are now or at any time hereafter may be granted to or exercised by a corporation organized exclusively for religious, charitable, scientific, literary or educational purposes as aforesaid."

As already indicated, the charter does not contain any express authority for the issuance of degrees or diplomas and the question is whether this can be done on the theory that it is an implied power.
Generally speaking, there is no question as to the fact that corporations ordinarily possess many "implied" powers. These "implied" powers exist not only as incidents or concomitants of their "express" charter powers, but by the laws of the State of Georgia applicable to corporations. Ga. Laws 1968, pp. 565, 736, as amended (Ga. Code Ann. 22-2202 (b)), in speaking of the implied powers which nonprofit corporations possess by reason of their very existence, declares that:

"[s]ubject to any limitations provided in this Code, or in any other law, each corporation also shall have power: ... (18) To have and exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is organized."

At first blush one may well be tempted to ask if this wouldn't give a nonprofit corporation which is expressly authorized to operate a college an implied power to confer degrees, since to do so would be quite customary and obviously "convenient." The answer, of course, is the initial proviso which subjects any such implied power to "any limitations provided ... in any other law." Here we have such a limitation in another law, to-wit: Ga. Laws 1937, pp. 864, 868, as amended (Ga. Code Ann. 32-415), and hence the existence of the implied power to confer degrees is precluded. As a consequence it is my opinion that an incorporated college or university whose charter contains no express authority for it to confer degrees or diplomas, and which has not received the State Board of Education's "certificate" (as required by Ga. Code Ann. 32-415 for degree-conferring charter authority), would be acting ultra vires should it engage in the issuance of degrees or diplomas to its students.

2. The charter establishing a church.

The second charter provides that the business of the corporation it

creates shall be "subscribing to and practicing all of the tenants and

Religious Doctrines of the

Faith" and "promoting the

general design and work of said church and to look after the general

interest of the same."

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Under this charter there is no express power to either (a) operate a college, school or seminary, or (b) to issue degrees or diplomas. The fact that the first-mentioned power (i.e., to operate a college) is not expressly written into the charter, however, poses no problem since Ga. Laws 1968, pp. 565, 824 (Ga. Code Ann. 22-5512), states that:
"Any eleemosynary or religious corporation heretofore created in Georgia or hereafter chartered is, by virtue of its existence, authorized ... to conduct schools for the training of youth ... and further to do everything necessary and proper for the accomplishment of the objects herein enumerated, and in general to carry on any lawful business necessary or incident to the attainment of these objects."
However, any argument that the second power (i.e., to issue degrees or diplomas) can be implied from the authority "to do everything necessary and proper" (under Ga. Code Ann. 22-5512) is negated for much the same reasons as have been already given with respect to the charter establishing a nonprofit college or school. Ga. Code Ann. 22-5512 must of necessity be construed in conjunction with Ga. Code Ann. 32-415, giving effect to both to the fullest extent possible. Hence even if it could possibly be said that the issuance of degrees by the church operated school was "necessary" (and this is open to question to say the least), it manifestly is not "proper" since it contravenes Ga. Code Ann. 32-415 unless the church school has first obtained the necessary certificate from the State Board of Education. Thus my conclusion that the issuance of degrees or diplomas would be ultra vires on the part of the incorporated college or school would be equally applicable to the issuance of degrees or diplomas by a college or school operated by an eleemosynary or religious corporation under Ga. Code Ann. 22-5512.
I am returning herewith the two charters which you furnished me with your letter of July 31.

OPINION 74-124

To: Secretary of State

September 5, 1974

Re: Volunteer services to a candidate's campaign are not subject to the reporting and disclosure requirements of the Campaign Financing Disclosure Act.

You have recently addressed an inquiry to this office concerning the applicability of the Campaign Fihancing Disclosure Act, Ga. Laws 1974, p. 155 (Ga. Code Ann. Ch. 40-38), to volunteer services ren-

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dered for a candidate in his campaign. Specifically, you have inquired whether or not such services must be included on the candidate's Campaign Financing Disclosure Report. It is my opinion that they do not.
As you know, this Act has recently undergone judicial scrutiny by the Supreme Court of Georgia. Fortson v. Weeks, 232 Ga. 472 (1974). In its opinion the court not only upheld the constitutionality of the Act, but it also interpreted certain ambiguous provisions of the Act to determine legislative intent. One of these interpretations reads as follows:
"We conclude that the donation of volunteer services to a candidate's campaign does not constitute a 'contribution' within the meaning of the Act and was not intended by the legislature to be the subject of reporting and disclosure." Id. at 480.
Thus, volunteer services do not have to be reported.

OPINION 74-125

To: Assistant Administrator, General Counsel, United States Department of Justice

September 6, 1974

Re: Whether Georgia law complies with the requirements of Executive Order 11755 relating to prison labor.

Your letter of August 23, 1974 requested the Attorney General of Georgia to verify whether the statutes of Georgia as set forth in Ga. Code Ann. 77-309 (b) (1) (2) 1 are in conformity to the requirements set out in Executive Order 11755, 39 Fed. Reg. 779 (1974), relating to prison labor.
This Executive Order provides that nonfederal prison inmates may be employed in the performance of federal contracts if the inmate participates in the work-release program on a voluntary basis, if representatives of local labor organizations have been consulted, if the inmate's employment will not result in the displacement of employed workers or result in a surplus of laborers in the locality, and if the rates of pay and other conditions of employment are not less than those provided for similar work in the locality.
In Georgia the warden may authorize prisoners to participate in a work-release program on a voluntary basis. Ga. Code Ann. 77-309 (b) (2). There are, however, three conditions that must be met before work-release is permitted. Representatives of local union central bodies

1 Ga. Laws 1956, pp. 161, 171; 1964, pp. 489, 490; 1968, p. 1399; 1969, p. 602; 1971, pp. 435, 436; 1973, pp. 1297, 1298; 1973, p. 1299.

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or similar labor union organizations must have been consulted. Ga. Code Ann. 77-309 (b) (2) (i). The inmate's employment must not result in the displacement of employed workers, or be applied in skills, crafts, or trades in which there is a surplus of available gainful labor in the locality, or impair existing contracts for services. Ga. Code Ann. 77-309 (b) (2) (ii). The rates of pay and other conditions of the inmate's employment must not be less than those paid or provided for work of a similar nature in the locality in which the work is to be performed. Ga. Code Ann. 77-309 (b) (2) (iii).
Ga. Code Ann. 77-309 is currently in force in Georgia, and in my opinion this statute fully complies with the requirements set forth in Executive Order 11755 relating to prison labor.

OPINION 74-126

To: State Superintendent of Schools

September 9, 1974

Re: A county school board is not authorized to acquire land for the purpose of general construction and subsequent resale of the improved property.

This is in reply to your letter of August 21 in which you refer to the desire of some local school boards to purchase land and building materials in connection with their vocational education programs. As I understand it, the students of such programs would erect buildings on the acquired property in conjunction with their vocational education courses and the thus improved property would then be resold. You ask whether such a purchase, improvement and sale procedure (in conjunction with a local school system's vocational education program) would be lawful. In answer to your question, I would say that whatever the merits of such a program might be from an educational viewpoint, it would be my opinion that it is not authorized by the present school laws of the State of Georgia.
As a starting point, I might mention that it is axiomatic that the powers of public officers and boards in Georgia are limited to those defined by law (see Ga. Code (1933) 89-903) with this rule being of especial force when the action in question is a disbursement of public funds. See Cole v. Foster, 207 Ga. 416, 418 (1950). Freeney v. Geoghegan, 177 Ga. 142 (1) (1933). As the Supreme Court of Georgia put it in Freeney:
"Authority for paying out the public money should be found in some law. One claiming to draw money out of the treasury of the county or the state should be able to point to a law that clearly authorizes the expenditure." 177 Ga. at p. 145.

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The only remaini;ng question is whether there is any "law that clearly authorizes the expenditure" of school funds by a county school board for the purchase, improvement and sale of property in the manner mentioned. In answer to this question, I can only say that I am unable to find any such authority within the existing school laws of the State of Georgia. To the contrary those statutes which do deal with the power of a county board of education to purchase real property would by implication seem to negate the existence of the same.

Ga. Laws 1919, pp. 288, 323, as amended (Ga. Code Ann. 32-909), for example, speaks of the county boards of education 1 having the power to "purchase, lease or rent school sites, build, repair or rent schoolhouses" (emphasis added) and to sell "schoolhouse sites" when the same have become unnecessary or inconvenient. The same situation appears in Ga. Laws 1946, pp. 206, 213-216 (Ga. Code Ann. 32-1401 to 32-1403) pertaining to the power of county boards of education to build and equip "schoolhouses" through the issuance of school bonds, and in Ga. Laws 1964, pp. 3, 24 (Ga. Code Ann. 32-624), the so-called MFPE Act, which provides for capital outlay funds for "public schools and all facilities related or incidental thereto." This simultaneous grant of a power and limitation of the power granted (i.e., the power to acquire, improve and sell real property) to transactions relating to schoolhouses might well be construed by a court to exclude acquisition for general rather than schoolhouse construction under the rule of statutory construction "inclusio unius est exclusio alterius" (the inclusion of one is the exclusion of another). When this rule and the earlier mentioned rule of the limited nature of official powers are considered together, as they must be in this particular situation, the conclusion that a county school board is not authorized to acquire land for the purposes stated seems irresistible.2

1 In responding to your question in terms of county boards of education, I do not overlook the fact that your precise question dealt with local boards of education. Needless to say, however, the situation as to any city board of education (the powers of which are more apt to stem from its very particular municipal charter provisions than from general school law) would depend upon its individual situation.
2 It must be recognized, of course, that this conclusion is limited to those county school boards whose powers in the matter are confined to those applicable to school systems generally. It is always possible that a given local school system (county or municipal) might possess the power in question by virtue of some local law or a constitutional amendment of strictly local application. The powers of Georgia's local school systems are not uniform in every respect.

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OPINION 74-127

To: Governor of Georgia

September 12, 1974

Re: The Constitutional Amendments Publication Board is authorized, pursuant to Ga. Laws 1970, p. 640, to proceed with the publication of constitutional amendments in the manner required by Article XIII of the Georgia Constitution. The general amendments must be published in one newspaper of general circulation published in each congressional district at the rate determined by the board. A newspaper of "general circulation" is one which publishes general news and circulates among the general public.

This is in response to your recent letter requesting my opinion concerning several questions which relate to the Constitutional Amendments Publication Board. This board was established by Ga. Laws 1970, p. 640, pursuant to Art. XIII, Sec. I, Par. I, of the Georgia Constitution (Ga. Code Ann. 2-8101). The board is composed of yourself, the Lieutenant Governor and the Speaker of the House of Representatives and has the sole function of providing for the publication of proposed constitutional amendments in the manner required by Article XIII of the Constitution. This Article provides that general amendments, that is, those amendments affecting the entire state, shall be published "in one newspaper of general circulation in each congressional district" and that local amendments shall be published in one newspaper of general circulation in the county in which the affected political subdivision(s) is located or in an adjoining county when there is no local newspaper.
You have asked five questions relating to this aspect of the process of amending the Georgia Constitution:
1. Whether the board is authorized to cause the amendments to be published;
2. Whether advertisements of general amendments are to be published in not less than one or ih only one newspaper in each congressional district;
3. Whether the newspaper chosen must be published within the congressional district or merely circulate within the district although published outside the district;
4. What is the legal definition of the constitutional language "newspaper of general circulation" in each congressional district; and
5. Whether the board may pay rates for publishing the constitutional amendments in excess of the rate for legal advertisements established by Ga. Code Ann. 39-1105?

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For the following reasons, it is my official opinion that the Constitutional Amendments Publication Board has been legally established by Ga. Laws 1970, p. 640, pursuant to Article XIII of the Constitution and that it is therefore authorized to provide for the publication of proposed constitutional amendments in a manner required by Article XIII. Each general amendment must be published in only one newspaper published in each congressional district which is a newspaper of general circulation. Further, the phrase "newspaper of general circulation" has unanimously been interpreted to refer to the character of the newspaper and of its circulation rather than to the mere number of its readers and I am of the opinion that this is the interpretation which the board should follow in arranging for publication of the proposed amendments. Finally, the board may contract to pay rates in excess of the legal rate if necessary to provide the best notice to the people of the proposed constitutional amendments.
After a constitutional amendment has been proposed by the Senate and House of Representatives, Art. XIII, Sec. I, Par. I, states:
"The Governor, the Attorney General, and the Secretary of State shall meet and determi'ne whether a proposed amendment is general, and if not general, shall determine what political subdivision or subdivisions are directly affected by such proposed amendment. If a proposed amendment is general, it shall be published, as provided by law, in full, once each week for three consecutive weeks immediately preceding the date of the election at which such proposed amendment is to be submitted, in one newspaper of general circulation in each congressional district of the state."
Article XIII does not establish the Constitutional Amendments Publications Board; however, it is my opinion that the General Assembly was authorized to establish the board since Article XIII states that amendments shall be published "as provided by law." Further, Article XIII does not clearly vest the duty to publish the amendments elsewhere and specifically it is not vested in the Governor, the Attorney General and the Secretary of State whose only function is to determine whether amendments are general or local in character. The board was established by the General Assembly prior to the first application of new Article XIII to proposed amendments which were submitted to the people in the 1970 general election. Thus, Ga. Laws 1970, p. 640, was a contemporaneous construction of Art. XIII, Sec. I, Par. I, and, as such, is entitled to great weight. See Epping v. City of Columbus, 117 Ga. 263, 272 (1903); Howell v. State, 71 Ga. 224 (1883).
Although you have not inquired about the possible violation of the separation of powers provision of the Constitution by virtue of the membership of the Speaker of the House of Representatives on the

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board, this question cannot be overlooked. See Fuller v. State, 232 Ga. 581 (1974), especially Hall, J., concurring. Article I, Sec. I, Par. XXIII, of the Georgia Constitution (Ga. Code Ann. 2-123) states:
"The legislative, judicial, and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time exercise the functions of either of the others, except as herein provided."
In establishing the Constitutional Amendments Publication Board, the General Assembly has placed one of its members, the Speaker of the House, on a board which is also composed of the Governor and the Lieutenant Governor, members of the Executive Branch. If this board exercises executive power, there is little doubt that the presence of the Speaker would violate the Georgia constitutional separation of powers provision.! However, it is my opinion that the separation of powers provision is not violated in this instance because the process of amending the Constitution is neither executive nor legislative in character but is outside both and that therefore members of both branches may participate in the process.
The nature of the constitutional amending process has been most often analyzed from the legislative perspective and the universal conclusion is that:
"In submitting propositions for the amendment of the Constitution, the legislature is not exercising its legislative power or any sovereignty of the people which has been entrusted to it, but is merely acting under a limited power which is conferred upon it by the people and which might with equal propriety have been conferred upon either House, the Governor, or a special commission or any other body or tribunal." 16 Am. Jur. 2d 205, Constitutional Law, 32. Accord, Cooney v. Foote, 142 Ga. 647, 653 (1914); Bourbon v. Governor of Maryland, 265 A.2d 477 (1970). See also, Jameson, Constitutional Conventions, 547.
Applying this analysis to the publication of the proposed amendments, I conclude that contracting for publication of proposed amendments is not an executive function, since no existing law is being executed by the Governor or other executive officers but rather an amendment to the fundamental legislation, the Constitution, is being

1 "It is a fundamental principle of the American governmental system that the legislature cannot usurp the powers of the executive department by exercising functions of the latter. The legislature can neither enforce the laws which it has the power to
make, nor, in the usual instance, appoint the agents charged with the duties of such enforcement. A state legislature may not confer purely executive power on a com-
mittee of its own members." 16 Am. Jur. 2d 481-482, Constitutional Law, 231,
quoted by Hall, J., concurring Fuller v. State, supra.

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proposed to the people.2 Therefore, the presence of the Speaker of the House on the Constitutional Amendments Publication Board does not conflict wi'th the separation of powers requirement of the Constitution of Georgia. Because the unique and sole function of the Constitutional Amendments Publication Board is to submit the constitutional amendments to the people, by proper publication, it is my opinion that members of both the Executive and Legislative Branches may serve on the board.
Your second question is whether the general amendments should be published in at least one or in only one newspaper in each congressional district. The constitutional language in question states that each general amendment should be published "in one newspaper of general circulation in each congressional district of the state." Constitutional language, of course, should be construed in its ordinary sense. Epping v. City of Columbus, 117 Ga. 263 (1903); Jones v. Darby, 174 Ga. 71 (1931). Although words denoting the singular are sometimes construed to include the plural, see Ga. Gode 102-102 (4), courts do not so construe them unless necessary to effectuate the obvious intent of the statute (or Constitution). First National Bank v. Missouri, 263 U.S. 640, 657 (1924); State of Georgia v. Camp, 189 Ga. 209, 214 (1939). Article XIII of the Constitution does not clearly evidence an intent to enlarge the singular to the plural and using the ordinary meaning of the word "one" is not contrary to the constitutional mandate. Thus, in the absence of legislative intent or judicial interpretation to the contrary, it is my opinion that "one" must be construed to mean "only one" and the board is therefore authorized to place advertisements for genera] amendments in only one newspaper in each congressional district.
You have also asked whether the newspaper selected must be published in the congressional district or will local circulation suffice. Although there is some authority to the contrary, it is my opinion that the newspaper chosen must be published, as well as circulated, within the congressional district. The Colorado Supreme Court has considered almost identical constitutional language and so concluded in In reHouse Resolution No. 10, 114 P. 293 (1911). Since the pertinent language is so similar, Georgia courts would probably be persuaded by this decision. See, e.g., Todd v. State, 228 Ga. 746 (1972). Additionally, this interpretation is supported by the language relating to publication of local amendments which are to be published in
"one newspaper of general circulation in each county in which

2 In fact, an earlier constitutional provision required the General Assembly to publish the amendments but it delegated the duty to the Governor without objection by the Supreme Court. Ga. Laws 1941, p. 384. See, Cartledge v. City Council of Augusta, 189 Ga. 267 (1939).

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the directly affected political subdivision or subdivisions are located. In the event no such newspaper is located in such county, a newspaper in an adjoining county shall be used." (Emphasis added.)
The addendum relating to counties with no local newspapers would have been illogical if local circulation were intended to be the only requirement. For these reasons, it is my opinion that one newspaper of general circulation should be selected in each congressional district for publication of general amendments.
The advertisement must be placed in one "newspaper of general circulation." Whi~e there is no Georgia case construing the quoted language, the established legal definition is a newspaper "of a general character, as distinguished from one of a special or limited character. It is not determined by the number of subscribers but by the diversity of the subscribers." Black's Law Dictionary, 4th Edition.
Generally, the two criteria for general circulation are (1) publication of news of general interest, such as national, state and local news, and (2) circulation among the general public either by subscription or from newsstands. When these criteria are met, courts have found that the constitutional or statutory requirements are satisfied even if the number of readers is small compared to the total population. See e.g., Puget Sound Publishing Co. v. Times Printing Co., 33 Wash. 551, 74 P. 802 (1903); Eisenberg v. Wabash, 355 Ill. 495, 189 N.E. 301 (1934). I am of the opinion that Georgia courts will follow this interpretation which has been applied by so many other courts. See Anno. 68 A.L.R. 542 (1930); Todd v. State, 228 Ga. 746 (1972).
Neither the Constitution nor Ga. Laws 1970, p. 640, which establishes the Constitutional Amendments Publication Board, prescribes the rate to be paid for publication of the amendments. A prior opinion, Op. Att'y Gen. 68-478, concluded that newspapers should be paid at the so-called "legal rate" established by Ga. Code 39-1105, amended by Ga. Laws 1968, p. 126. In 1968, however, the Constitutional Amendments Publication Board had not been created and it is my opinion that Ga. Laws 1970, p. 640, gives the board discretion to pay rates in excess of the legal rate in stating that the board "shall provide for the publication of proposed constitutional amendments...." Determination of the rates to be paid is one element of providing for publication. Also, you have advised me that some newspapers of wide circulation do not accept advertisements at the legal rate. Since the purpose of publishing the amendments is to provide notice to the people of the proposed amendments to be considered at the upcoming general election, newspapers of wide circulation best serve this purpose which would be frustrated if the board were required in all instances to pay the legal rate for publication. Therefore, it is my

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opinion that the board, in its discretion, may contract to pay rates in excess of the rate authorized by Ga. Code 39-1105 where reasonably necessary to provide notice to the people of the proposed amendments.
For these reasons, it is my official opinion that the Constitutional Amendments Publication Board is authorized to proceed with the publication of constitutional amendments which are to be submitted to the voters in the 1974 general election and that the board must provide for the publication of each general amendment in each of the state's congressional districts by causing the amendments to be printed in only one newspaper which publishes news of a general nature, circulates among the general public and is published in the congressional district, at the rates determined by the board.

OPINION 74-128

To: Secretary of State

September 15, 1974

Re: An elector loses his right to vote when convicted of a federal crime involving moral turpitude which is also punishable by the laws of this state with confinement in the penitentiary.

You have requested my opinion on the question of whether a Georgia elector convicted of a federal crime is disqualified from voting by reason of such conviction. For the following reasons, it is my official opinion that if a Georgia elector has been convicted of a federal crime involving moral turpitude which is also punishable by the laws of this state with confinement in a penitentiary, he thereby loses his right to vote in the State of Georgia.
The right to vote in both federal and state elections is established by state law. See United States Constitution, Art. I, Sec. II, Par. I, and Amendment XVII (Ga. Code Ann. 1-102, 1-823). The Federal Constitution limits the state's prerogatives in this regard only when a state qualification violates the Equal Protection Clause of the Fourteenth Amendment (Ga. Code Ann. 1-815). Therefore, the qualification of persons to vote in the State of Georgia must be determined solely with reference to the Georgia Constitution and laws.
The Georgia Constitution, Art. II, Sec. II, Par. I (Ga. Code Ann. 2-801), provides in part:
"The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold any office, or appointment of honor, or trust in this state, to-wit: 1st, those who
shall have been convicted in any court of competent jurisdiction

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of treason against the state, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this state with i'mprisonment in the penitentiary...."
The Georgia Supreme Court in Hulgan v. Thornton, 205 Ga. 753 (1949), has held that a federal felony conviction for larceny of an automobile, also a crime under Georgia law, of course, rendered a Georgia citizen ineligible to vote and hold office. After citing the foregoing constitutional provision and Code 89-101 (Code of 1933, as amended) (because the case involved the removal of a county commissioner from office), the court stated:
"It will be noted that both the constitutional provision and the Code section are not limited to such crimes as are committed in this state, but cover those committed elsewhere, where the offense is a felony or a crime involving moral turpitude according to the laws of this state."
Later in Huff v. Anderson, 212 Ga. 32 (1955), the Supreme Court also held that a person was disqualified by reason of a plea of guilty to a federal charge of presenting false claims to the United States Government. There is no doubt under these cases that a federal conviction may be grounds for disenfranchising a Georgia voter. Questions might arise about individual convictions and whether or not the crimes involved moral turpitude under the laws of this state, but I trust that these questions can be resolved on a case-by-case basis. See Anno. 39 A.L.R. 3rd 303.
You have asked, ih the event that I concluded that a federal con-
viction could be grounds for disqualification, how the voter registrars would obtain information about federal convictions and what procedure should be followed for removing the names of such persons from the voters lists. As you suggest, either the United States attorneys or clerks within the state would be the best sources for information. Since the Election Code does not establish a procedure for automatic disqualification of such voters (cf. Code 34-621), I suggest that written notice be given to the elector as required by Code 34-617 (e), or if the list has already been prepared, call upon the voter to show cause why his name should not be removed from the voters list as provided by Code 34-622. Although no procedure is established in the Election Code for disqualifying persons convicted of federal crimes, the registrars have the right and, indeed, the responsibility to inquire into this possible ground for disqualification and to use that procedure calculated to preserve the integrity of the voters lists as well as the right of citizens to vote. See Code 34-627. [Title 34 sections herein are based on Ga. Laws 1964, Extra. Sess., p. 26, as amended.1

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If you have any further questions wth regard to this matter, or if registrars need assistance in case-by-case evaluation of federal convictions, please do not hesitate to call this office.

OPINION 74-129

To: Commissioner, Department of Offender Rehabilitation

September 24, 1974

Re: The Department of Corrections is liable for medical expenses of probationers and parolees assigned to community centers operated by the Department of Corrections.

You stated that it is the practice of the Parole Board and the courts to assign probationers and parolees to community centers as part of their parole or probation plan. While assigned to these centers, they are required to live on the premises. You have inquired as to whether the Department of Corrections is liable for the medical expenses of probationers and parolees while they are assigned to these community centers.
Ga. Laws 1956, pp. 161, 171 (Ga. Code Ann. 77-309 (e)), provides:
"It shall be the responsibility of the governmental unit, subdivision or agency having physical custody of a prisoner to maintain such prisoners, furnishing ... any needed medical and hospital attention therefor...."
Since the community centers are operated by the Department of Corrections and the probationers and parolees are required to live at the community centers, the probationers and parolees are, practically speaking, in the physical custody of the Department of Corrections.
Therefore, my opinion is that the Department of Corrections is liable for medical expenses of probationers and parolees assigned to community centers operated by the Department of Corrections.

OPINION 74-130

To: Secretary of State

September 24, 1974

Re: A special election may be held on the day of the general election only if the general election deadlines for qualification by candidates and voter registration are met.

This is in response to your recent letter requesting my opinion concerning the application of Ga. Code Ann. 34-807 to special elections

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necessitated by events occurring within 75 days before the general election. Georgia Code 34-807, enacted in 1973 by Ga. Laws 1973, p. 174, provides:
"Whenever a special election shall be conducted at the same time of a general election, the time specified for the closing of the registration list and the time within which candidates must qualify for such election shall be the same as specified in this Title for general elections."
Prior to the enactment of this provision, special elections could be held along with the general election but pursuant to different deadlines. Candidates could qualify up to 15 days before the special election whereas candidates for the general election must qualify 75 days prior thereto. Ga. Code Ann. 34-1002 (Ga. Laws 1970, p. 347; 1971, p. 602). Similarly, voter registration may continue until five days after the call for a special election but must cease 50 days prior to a general election. Ga. Code Ann. 34-611 and 34-626 (both sections based on Ga. Laws 1964, Extra. Sess., p. 26, as amended). In previous years, the shorter deadlines for a special election delayed printing of the ballots and preparation of the voters lists. In requesting my opinion, you explained that election officials from several counties had inquired about the procedure for holding a special election where the event necessitating the election, usually the death or resignation of the incumbent, did not occur until after the close of qualifying by candidates for the general election. For the following reasons, it is my opinion that a special election cannot be held on the day of the general election unless candidates have qualified at least 75 days prior thereto and unless the voter registration list closes 50 days before the election.
Georgia Code Ann. 34-807 states unambiguously that special elections held on the day of the general election must be held according to the same qualification and registration deadlines. The section does not exempt elections which are necessitated by events occurring after the deadlines. You have explained that it would be more convenient and less costly if special elections could be held along with the general election and asked whether Ga. Code Ann. 34-807 should be construed to apply only to special elections caused by events occurring prior to the 75-day deadline. This construction is not authorized inasmuch as the statutory language itself is unambiguous and capable of application without further interpretation. See Floyd County v. Salmon, 151 Ga. 313 (1921). I cannot, and it is my opinion that the Georgia courts would not, construe Ga. Code Ann. 34-807 to apply only to a special election the need for which arose before the 75-day deadline. The wisdom of the new enactment is a matter reserved for consideration by the General Assembly. See New Amsterdam Casualty

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Co. et al. v. MacFarley, 191 Ga. 334, 337 (1940). It does appear to me, however, that although Ga. Code Ann. :34-807 might entail some extra expense, it also makes it possible for all ordinaries and boards of elections to proceed with the printing of the ballots and preparation of voter lists without being delayed by the shorter special election deadlines.
You have advised me of an unusual local law in one county which requires the holding of the special election to fill a particular vacancy "at the next general election." The vacancy occurred after the qualifying deadline. In view of the foregoing opinion regarding Ga. Code Ann. 34-807, it is clear that the special election to fill this vacancy must be held at the 1976 general election, since it is impossible to hold it in 1974. See Pope v. United States Fidelity & Guaranty Co., 198 Ga. 304 (1944).
For these reasons, it is my opinion that no special election may be held on the day of the general election unless the general election deadlines for candidate qualification and voter registration are met.

OPINION 74-131

To: Commissioner, Department of Offender Rehabilitation

September 25, 1974

Re: Board of Pardons and Paroles may consider pre-parole evaluations by psychologists and psychiatrists but in general is not required to consider either.

By letter your predecessor indicated that your department answers requests from the Board of Pardons and Paroles for "psychiatric and psychological evaluations on parole eligible inmates." The letter asks that I answer whether the law requires the Board of Pardons and Paroles to consider specifically either kind of evaluation.
In exercising its "power" to grant parole, it is the "duty" of the Board of Pardons and Paroles "personally ... to determine (the) ultimate fitness" of persons potentially eligible for parole. Ga. Laws 1943, pp. 185, 187; 1973, pp. 1294, 1295 (Ga. Code Ann. 77-511).
In making the determination of "ultimate fitness," the board has a "duty" to make 11such investigations as may be necessary ...." Code 77-511. For this purpose, the board is given access to a variety of material possessed by other public agencies. See Ga. Laws 1943, p. 185 (Ga. Code Ann. 77-512, 77-516, 77-521). Finally, the board 11may appoint ... expert assistants .... " Ga. Laws 1943, pp. 185, 186 (Ga. Code Ann. 77-509).
While these provisions might make psychiatric or psychological re-

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ports available to the board, they themselves cannot be construed as requiring that the board consider either form of report.
At one time, the board had an advisory staff created by statute whose members included two psychiatrists. Ga. Laws 1956, pp. 580, 581. In lieu of this authority, the board was later given ad hoc authority to hire outside personnel to do what the staff itself had formerly done. Ga. Laws 1959, p. 24. Later this authority was itself deleted. Ga. Laws 1972, p. 1011 (Ga. Code Ann. 77-535). As a result, in part, the board now relies to some extent on the expertise within your department.
In abolishing the advisory staff, neither the 1959 nor the 1972 legislation expressly repealed a provision of the original, advisory staff law, which authorized examinations of persons convicted of certain "sex crimes," i.e., those involving a rape, assault with intent to rape, sodomy, kidnapping of a female by a male, incest, and molesting a child to gratify a sex urge. Ga. Laws 1956, pp. 580, 582; 1972, p. 1158 (Ga. Code Ann. 77-539).
Originally, this Act gave the board discretionary authority to have a sex offender examined by the advisory staff 60 days prior to his eligibility for parole consideration. Id. It also authorized the chairman of the board, in his discretion, to order a similar examination for a sex offender durilng the last 90 days of his sentence. Id.
If either of the reports contemplated by this Act would fail to support an application for parole, the report must be sent to the district attorney where the offender resides (or, if he is from out-of-state, to the convicting district attorney). The district attorney must then cause a hearing to be conducted pursuant to Ga. Laws 1969, p. 505 (Ga. Code Ann. 88-507.3). This is a hearing in which the issue is whether to impose enforced judicial hospitalization of the mentally ill.
The procedures by which the Board of Pardons and Paroles may initiate such a hearing are exceptional. Normally, such a hearing is initiated by a petition, under oath, accompanied by the "certificate of a physician ...." Ga. Laws 1969, p. 505 (Ga. Code Ann. 88-507.2). For this purpose, a "physician" is a "doctor of medicine ... licensed ... in this state." Ga. Laws 1969, p. 505 (Ga. Code Ann. 88-501 (f) ).
Thus, the report on sex offenders authorized by Code 77-539 originally was to be done by a pardons and paroles staff which included two "medical experts" (psychiatrists), and it substitutes for a physician's (medical doctor's) certificate, which is the usual prerequisite to an enforced hospitalization hearing. This common pattern, and the principle that separate laws dealing with the same topic must be construed together, lead me to conclude that a 77-539 report must be a medical report if it is intended to initiate a hearing for enforced

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hospitalization. See Lucas v. Smith, 201 Ga. 834, 837, 41 S.E.2d 527 (1947) (statutes in pari materia).
Since the advisory staff, which originally performed the duties of 77-539, has been abolished, one may ask whether the section itself has been abolished. I have specifically considered that issue. After abolishing the advisory staff, Ga. Laws 1972, p. 1011, the General Assembly two days later then enacted Ga. Laws 1972, p. 1158, which amends and reaffirms the law codified at 77-539. From this, I conclude that, while abolishing the staff itself, the General Assembly continued to authorize those procedures for which the staff was formerly utilized in regard to sex offenders. See Webb v. Echols, 211 Ga. 724, 727 (1955) (related rule in repeal and reenactment).
An additional question then remains: whether the report requested by the board or chairman for purposes of a hearing pursuant to 77-539 and 88-507.3 must be prepared by "two medical experts" (psychiatrists), qualified as required by the 1956 Act which origmally created the advisory staff, and in addition "one legal expert who is a member of the Attorney General's office" with seven or more years of active trial practice. Ga. Laws 1956, p. 580.
The probable answer to this question lies in the principle that penal laws are construed strictly against the state and in recognition of the fact that under the procedures involved here, a person may be forcibly hospitalized for an additional year beyond the expiration of his criminal sentence. Cf. Matthews v. Everett, 201 Ga. 730, 41 S.E.2d 148
(1947). If 77-539 and 88-507.3 are to be utilized with confidence in the
validity of the proceeding, the 77-539 examination should be conducted by three persons constituted as originally described in the 1956 Act, Ga. Laws 1956, pp. 580, 581. These persons may not be employed by the board, either as a permanent staff or as temporary, outside experts (Ga. Laws 1972, p. 1011 (Ga. Code Ann. 77-535) ). However, the board does have authority to "appoint" such a trio. Ga. Laws 1943, pp. 185, 186 (Ga. Code Ann. 77-509).
The decision whether to implement the procedure is, of course, entirely within the discretion of the board and its chairman. Neither he nor the board is required to cause a special examination of any sex offender. Nor does the availability of the 77-539 examination preclude the use of other provisions of the law concerning treatment of the mentally ill.
In summary, my official opinion is that either psychiatrists or psychologists may make pre-parole evaluations to assist the board in making the determination of "ultimate fitness" for parole, but the board in general is not required to consult either. However, to utilize the particular procedures of 77-539 toward enforced hospitalization of sex offenders, there should be a report by persons qualified under

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the provisions of Ga. Laws 1956, pp. 580, 582. Whether to ask for such a report is a matter within the board's discretion; it need not do so.

OPINION 74-132

To: Administrator, State Crime Commission

September 25, 1974

Re: Georgia law does not permit the State Planning Agency to grant Law Enforcement Assistance Administration planning grants directly to local governments which lie within a Standard Metropolitan Statistical Area as defined by Ga. Laws 1971, p. 17.

You have requested an opinion concerning whether Georgia law permits the State Planning Agency to grant Law Enforcement Assistance Administration planning grants directly to local governments which lie within a Standard Metropolitan Statistical Area as defined by Ga. Laws 1971, p. 17, rather than to the Metropolitan Area Planning Commissions.
Ga. Laws 1971, pp. 17, 18, designates the Area Planning Commission "as the official planning agency for all state and federal programs to be carried out in the area" and "as the planning agency under ... 42 U.S.C.A. 3725 [Allocation of Law Enforcement Assistance Administration funds]."
It is my opinion that Georgia law requires that the State Planning Agency grant L.E.A.A. planning grants directly to the Metropolitan Area Planning Commissions and does not permit the State Planning Agency to grant L.E.A.A. planning grants directly to local governments which lie within the Standard Metropolitan Statistical Area.

OPINION 74-133

To: Secretary of State

September 25, 1974

Re: In applying Ga. Code Ann. 34-620 (a) to persons who have requested absentee ballots, such persons shall only be counted as having voted if they have returned the completed absentee ballot and if the registrar has entered the absentee voter's name on the numbered list of certified absentee voters as required by Ga. Code Ann. 34-1407.

[Ga. Code Ann. Title 34 sections herein are based on Ga. Laws 1964, Extra. Sess., p. 26, as amended.]

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This is in response to your letter requesting my opinion concerning the proper method for determining whether persons requesting absentee ballots have voted within the meaning of Ga. Code Ann. 34-620 (a) which provides that no person shall remain an eligible voter if he has not voted within the last three years. For the following reasons, it is my opinion that an absentee elector has voted when he returns the ballot to the registrar with complete identifying information required by Ga. Code Ann. 34-1404 so that his name is placed upon the list of certified absentee electors as required by Ga. Code Ann. 34-1407.
Georgia Code Ann. 34-620 (a) provides, in part:
''No person shall remain a qualified voter who does not vote in at least one general or special election or primary ... within a three-year period unless he shall specifically request continuation of his registration in the matter hereinafter provided."
Persons meeting certain qualifications are allowed to vote by absentee ballot, according to the special procedures established by Ga. Code Ann. Chapter 34-14. In deciding upon the proper method for determining whether persons have voted within the past three years, it is important that absentee electors and regular electors be treated as similarly as possible despite the varying procedures. Electors, other than absentee electors, are considered to have voted when their name is recorded on the numbered list of voters. Ga. Code Ann. 34-1:316, 34-1328, 34-1335. Similarly, absentee voters should be recorded as having voted in a particular election when their names are found on the numbered list of certified absentee voters prepared by the registrars in accordance with Ga. Code Ann. 34-1407. It follows, therefore, that ineffective attempts at voting by absentee ballot cannot be counted. For example, ballots which are rejected because of insufficient information on the envelope or ballots received after the day of the primary or election cannot be considered as a vote. Only those electors, whether voting in person or by absentee ballot, who actually cast a ballot should be recorded as having voted in a particular primary or election.

OPINION 74-134

To: Commissioner, Department of Transportation

September 27, 1974

Re: (1) No outdoor advertising device in Georgia may arbitrarily be considered abandoned. (2) The owners of lawfully erected outdoor advertising devices which failed to meet the spacing requirements of

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Ga. Code Ann. 95A-916 on March 28, 1974, or which subsequently fail to meet the spacing requirements because of changed conditions beyond the control of the owner, are due compensation for their devices.

This is in reply to your recent request for my official opinion regarding two aspects of the Highway Beautification Program in Georgia. For clarity, the questions will be answered in the order presented.
You first request my opinion as to what constitutes an abandoned outdoor advertising device in Georgia. It is my official opinion that no outdoor advertising device in Georgia may be considered abandoned until there is an expression, either by judicial determination or some affirmative act on the part of the owner, that the owner of the device has relinquished all intent of ever again using it.
Abandonment is predominately a question of intent. Arlington Cemetery Corp. v. Bindig, 212 Ga. 698, 704 (1956). Although there are no Georgia cases defining an abandoned outdoor advertising device, some insight can be gained by applying the accepted Georgia judicial definition of "abandon" to the outdoor advertising situation. So doing, an abandoned outdoor advertising device in Georgia would be one which the owner has relinquished or given up absolutely with the intent of never again resuming or claiming his rights or interests in it. See Johnson v. Strickland, 88 Ga. App. 281 (1953); McComas v. Glendinning, 59 Ga. App. 234 (1938). Until there is some affirmative, preferably written, expression of this intent by the owner, it could not be said that the outdoor advertising device was abandoned.
You next request my opinion as to whether or not the Department of Transportation must compensate the owner of an outdoor advertising device under certain specified facts. The facts outlined in your request are that the advertising device in question was lawfully erected prior to the Outdoor Advertising Control Act, but failed to comply with the provisions of the Act only because the owner neglected to obtain the required permit, which could have been granted if requested. Subsequently, a second device was erected and permitted in such proximity to the first that the first cannot now be permitted because of the spacing requirements of Ga. Code Ann. 95A-916 (based on Ga. Laws 1973, pp. 947, 1077; 1974, p. 1422). It is my official opinion that if the first device could not have been permitted on March 28, 1974, or if the device cannot now be permitted because of changed conditions beyond the control of the owner, the owner is due compensation.
The Department of Transportation may acquire two types of lawfully erected outdoor advertising devices. The first type consists of those devices "which do not conform to the provisions of this Article [Article IV of Chapter 95A-9 of the Code of Public Transportation]

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...." Ga. Code Ann. 95A-923, as amended (matter in brackets added). The wording of the statute makes it clear that the date for determining conformity is the date upon which the language in question became law. The above-quoted language was added by Georgia Laws 1974, pages 1422, 1434, which became law on March 28, 1974. Therefore, a lawfully erected outdoor advertising device which did not meet the statute's spacing requirements and could not be permitted on March 28, 1974 is due compensation.

The second type of lawfully erected outdoor advertising device which the department may acquire consists of those devices which "at a later date fail to comply with the provisions of this Article due to changed conditions beyond the control of the sign owner." Ga. Code Ann. 95A-923, as amended. The status of the device prior to the changed condition appears immaterial, and the sole question becomes whether the changed condition, in this case the permitting of a second device, is beyond the control of the owner of the first device.

Because the procedure for securing a permit is between the Department of Transportation and the owner of the outdoor advertising device, it would initially appear that the owner of the first device would have no control over that procedure as between the department and the owner of a second device. However, a more careful evaluation shows that the first owner could have prevented the changed condition by applying for, and receiving, a permit within a reasonable time after one was required for his device. Therefore, the changed condition was not in fact beyond his control and he would not be entitled to compensation for his device.

It is, therefore, my official opinion that no outdoor advertising device in Georgia can be considered abandoned until there is an expression, either by judicial determination or some affirmative act on the part of the owner, that the owner of the device has relinquished all intent of ever again using it. It is further my official opinion that a lawfully erected outdoor advertising device which could not be permitted on March 28, 1974, or a device which cannot now be permitted because of changed conditions beyond the control of the owner, is due compensation. This second opinion applies only in the situation wherein there was a lawfully erected outdoor advertising device and a second device was later erected and permitted in such proximity to the first that the first cannot now receive a permit because of the spacing requirements of Ga. Code Ann. 95A-916.

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OPINION 74-135

To: Commissioner, Department of Public Safety

September 27, 1974

Re: The Director of the Department of Public Safety does not have authority to issue weapons to trooper cadets (trainees), a job classification administratively created under the merit system.

You have indicated that several recent incidents have caused you concern for the safety of trooper cadets who accompany troopers and who are expected to come to the aid of a trooper in an emergency situation.
You have requested my official opinion relative to this matter, and have asked the following questions:
1. Can the Department of Public Safety authorize trooper cadets to carry firearms in the performance of their duty'?
2. What changes, if any, should be made in the present statutes or regulations to permit the Department of Public Safety to authorize trooper cadets to carry firearms?
In response to your first question, the Director of the Department of Public Safety is authorized to provide members of the Uniform Division with proper uniforms, weapons and other supplies. Ga. Laws 1937, pp. 322, 333, as amended (Ga. Code Ann. 92A-226). Implicit in this provision is the director's authority to authorize the carrying of such weapons, subject to the limitation that they be provided only to "members" of the Uniform Division.
The director's authority to authorize trooper cadets to carry firearms in the performance of their duty, therefore, depends on whether trooper cadets are "members" of the Uniform Division. The Uniform Division was created as a division of the Department of Public Safety and its members are " ... known and designated as the Georgia State Patrol. ..." Ga. Laws 1937, pp. 322, 328, as amended (Ga. Code Ann. 92A-201).
It is clear from the language of the Act creating and establishing the Georgia State Patrol that not every employee of the Uniform Division is a "member" of that division. The salary scale for members of the Uniform Division includes only officers, noncommissioned officers, corporals and troopers. Ga. Laws 1937, pp. 322, 329, as amended (Ga. Code Ann. 92A-208). That Code section also expressly provides that recruits, radio operators and license examiners shall not be "members" of the Uniform Division.
The job classification, trooper cadet, is a recent one, administra-

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tively created under the merit system. The cadet's primary duties are to accompany an on-duty trooper and to observe his operations with a view toward eventually becoming a trooper upon the completion of his training. Trooper cadets are trainees, rather than sworn officers.
Since this class of employees is a recent one, there is, of course, no mention of the class, trooper cadet, in the Act, as originally passed, which established the Uniform Division. Also, there has been no amendment to that Act which designates trooper cadets "members" of that division.
Based on the foregoing analysis, it is my official opinion that trooper cadets are not members of the UnHorm Division of the Department of Public Safety, and the director has no authority to authorize them to carry firearms in the performance of their duty.
In answer to your second question, it is my opinion that it would be necessary to amend Code 92A-226, relating to the director's authority to provide weapons for members of the Uniform Division, and to extend that provision to include authorization to provide weapons for trooper cadets.
However, since trooper cadets are not "peace officers" within the meaning of Ga. Code Ann. 26-2907 (based on Ga. Laws 1968, pp. 1249, 1325; 1974, p. 481) relating to exemptions from the provisions which regulate the carrying of weapons (see Vandiver v. Endicott, 215 Ga. 250 (1959) ), they would be subject to the licensing requirements of Chapter 26-29.

OPINION 74-136

To: Commissioner, Department of Banking and Finance

September 27, 1974

Re: (1) Ga. Laws 1973, p. 924, relating to taxation of certain federal and national institutions, becomes effective January 1, 1975. (2) Section 41A-3113 of the Financial Institutions Code, effective April 1, 1975, will exempt purchases of state-chartered credit unions from the sales and use tax.

This is in reply to your request for my opinion on two separate issues. You asked, first, whether the appropriation of $26,920 by Ga. Laws 1974, pp. 1508, 1611, Section 32 (12), to the Intangible Tax Equalization Fund was sufficient to trigger Ga. Laws 1973, p. 924, so as to make it effective January 1, 1975. Second, you asked whether Section 41A-3113 of the Financial Institution Code of Georgia will, upon its becoming effective April 1, 1975, exempt state-chartered

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credit unions from the Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. Laws 1951, p. 360, as amended (Ga. Code Ann. Ch. 92-34A).
1. Section 3 (j) of Ga. Laws 1973, p. 924 (Ga. Code Ann. 92-145.1) creates an "Intangible Tax Equalization Fund" as follows:
"There is herewith created an Intangible Tax Equalization Fund to be funded in Fiscal Year 1974 in the amount of $3.5 million and annually thereafter in an amount to be determined by the General Assembly...."
The stated purpose of the fund is to compensate certain political subdivisions of the state for revenue losses occasioned by the taxation of banks and other financial institutions in the same manner as commercial corporations, a result sought to be achieved by Ga. Laws 1973, p. 924.
However, Section 4 of Ga. Laws 1973, p. 924, specifically provided:
"This Act shall become effective January 1, of the calendar year following any year in which the General Assembly shall have appropriated the monies as provided in Section .3 (j) hereof to the Intangible Tax Equalization Fund." (Emphasis added.)
No appropriation was made to the fund for Fiscal Year 1974 and only $26,950 was appropriated for Fiscal Year 1975 by Section 32 (12) of Ga. Laws 1974, p. 1508. The specific question involved is whether the latter appropriation triggered Section 4 of Ga. Laws 1973, p. 924. In my opinion, it did.
Literally, Section 4 of Ga. Laws 1973, p. 924, depends upon an appropriation in "any year" "as provided in Section 3 (j) hereof." Section 3 (j) provides that the Intangible Tax Equalization Fund is "to be funded in Fiscal Year 1974 in the amount of $3.5 million" and "annually thereafter in an amount to be determined by the General Assembly." Since Ga. Laws 1974, p. 1508, makes an appropriation in an amount determined by the General Assembly, there has been an appropriation "as provided in Section 3 (j)" within the meaning of Section 4 of Ga. Laws 1973, p. 924.
The alternative construction of Section 4 is that it requires an appropriation of at least $3.5 million with additional amounts annually to be determined by the General Assembly. However, this construction is not available since in order to reach it the entire condition of Section 3 (j), not simply a part of it, must apply-that is, the fund
must "be funded in Fiscal Year 1974in the amount of $3.5 million...."
(Emphasis added.) That construction produces an absurdity which is not required by the language of the statute and thus is not to be attributed to the General Assembly in drafting the statute. DeWitt v. Richmond County, 192 Ga. 770 (1941).

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It is, therefore, my official opinion that Ga. Laws 1973, p. 924, will become effective January 1, 1975.
iB. Your second inquiry concerns Section 41A-3113 of the Financial Institutions Code, effective April 1, 1975, which provides as follows:
"Credit unions shall not be subject to any tax except the ad valorem tax upon property imposed by the Constitution of this state unless made subject thereto by express provision of the law specifically naming credit unions and making them subject thereto." Ga. Laws 1974, pp. 705, 904 (Ga. Code Ann. 41A-3113).
This language was the subject of an official opinion of my predecessor. Ops. Att'y Gen. 1954-56, p. 848. There, the language of former Ga. Code Ann. 25-123, which is now contained in Ga. Code Ann. 41A-3113, was construed as being ineffective to confer an exemption to state-chartered credit unions under the Georgia Retailers' and Consumers' Sales and Use Tax Act since it preceded that Act.
However, in restating that language as Code 41A-3113 the General Assembly does so in reference to the law existing at the time of the restatement, and the restatement is to be treated as a new enactment. Since the prior opinion was not premised upon a construction of the language of Code 25-123 but instead on the fact that it preceded the Sales and Use Tax Act and thus could not override the subsequent legislation, it is my official opinion that Ga. Code Ann. 41A-3113, being later in time than the Sales and Use Tax Act, will exempt purchases of credit unions from the taxes imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act.

OPINION 74-137
To: Secretary of State

September 30, 1974

Re: A person incarcerated in a jail, awaiting trial, is not disqualified from registering to vote or voting by reason of such incarceration.

This is in response to your letter requesting my opinion concerning a person's eligibility to vote when he is incarcerated awaiting trial but has not yet been convicted of any crime. For the following reasons, it is my official opinion that a person incarcerated while awaiting trial is eligible to register and to vote, assuming he otherwise posseses the qualifications of an elector.
The right to vote, of course, is a fundamental right. Reynolds v. Sims, 377 U.S. 533 (1964). Under Georgia law, a citizen cannot be deprived of that right without specific constitutional or statutory authorization and disqualifications are not favored by the law. Op. Att'y Gen. 73-58. The Georgia Constitution disenfranchises persons

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"who shall have been convicted in any court of competent jurisdiction of treason against the state, or embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this state with imprisonment in a penitentiary, unless such person shall have been pardoned." Ga. Const., Art. II, Sec. II, Par. I (Ga. Code Ann. 2-801). (Emphasis added.)
This provision establishes a disqualification only for persons who have been convicted of crimes. No statutory provision extends the disqualification to persons awaiting trial. See Op. Att'y Gen. 68-102 (unofficial). Further, persons incarcerated awaiting trial should be treated no differently than persons not incarcerated because of their ability to post bond. See O'Brien v. Skinner, __ U.S. __ (1974) (42 U.S.L.W. 4151). The latter are clearly eligible to register and vote under Georgia law. Therefore, it is my opinion that persons awaiting trial are eligible to register and to vote and that those who are incarcerated cannot be denied these rights by virtue of their incarceration.
You have asked, in the event I were to find that incarcerated persons are eligible to register, what provisions should be made for their registration. The simplest method would be to request that local law enforcement personnel bring incarcerated persons wishing to register to one of the designated registration places within the county. Alternatively, a registration place could be established at the jail. See Ga. Code Ann. 34-610, based on Ga. Laws 1964, Extra. Sess., pp. 26, 54; 1968, pp. 871, 873.

OPINION 74-138

To: Commissioner, Department of Corrections/ Offender Rehabilitation

October 4, 1974

Re: Eighteen year olds may legally be hired for correctional officers.

This is in response to your recent request for my official opinion regarding the above-mentioned matter. From telephone conversations with a member of your staff, we understand that the State Personnel Board, at the request of the Department of Corrections, has lowered the minimum age qualification for correctional officers from 21 years to 18 years. You wish to know if you can now legally hire 18 year olds as correctional officers.
I do not know of any state law that would require a minimum age greater than 18 years for employment as a correctional officer. Therefore, it is my official opinion that your department may employ individuals who are 18 years old or older as correctional officers.

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OPINION 74-139

To: Commissioner, Department of Human Resources

October 9, 1974

Re: Several questions pertaining to the detention and confinement of juveniles and young offenders in facilities operated by the Department of Human Resources.

This is in response to Mr. Saucier's request for an official opinion concerning several questions relating to the Department of Human Resources' responsibility for the detention and confinement of juveniles and young offenders. The questions and responses thereto are set forth below. 1. Is the Department of Human Resources authorized to establish policies for the detention of children in regional youth development centers without regard to detention orders of the juvenile or superior court?
The department, pursuant to the authority granted by Ga. Laws 1963, pp. 81, 100 (Ga. Code Ann. 99-211 (d)), has established regional youth development centers to which children may be committed prior to the disposition of their cases in juvenile or superior courts. Children placed in the centers have not been committed to the department for treatment and rehabilitation in the discretion of the department. Rather, such children have been placed in detention facilities pending a hearing or trial because the judge has determined that the child must be detained for his own safety or that of the community. Neither the .Juvenile Court Code (Title 24A) nor Code Title 27, relating to criminal procedure, authorizes the department to inquire into the reasons for or the wisdom of a court's detention order. Thus, it is my opinion that the department does not have the authority to establish policies for admission to or discharge from regional youth development centers which negate detention orders of the juvenile court or superior court judges. Of course, the department does have the authority to estabHsh standards and policies supplementary to the detention orders. 2. What is the liability of departmental staff for injuries sustained by children being transported by the staff in their own automobiles or in state-owned automobiles?
Departmental employees, like other drivers, are liable for their ordinary negligence which causes injuries to nonguest passengers. The Department of Administrative Services informs me that state vehicles are covered by liability insurance which would pay for such injuries to the extent of $2,000 per authorized passenger. The state, of course, is not liable for the negligent acts of its employees. See Crowder v. Department of State Parks, 228 Ga. 436 (1971). Therefore, the drivers

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would be solely responsible for their negligent acts beyond the limits of the state insurance policy. It is possible, although not likely, that some employees have private insurance to cover such accidents. I would advise each employee transporting children to check with his own insurance carrier. It would also be appropriate for the department to purchase liability insurance for its employees, as part of their compensation, which would cover liability for ordinary negligence in such situations (see Op. Att'y Gen. 73-167), subject to the approval of the State Personnel Board. See Ga. Laws 1971, p. 45 (Ga. Code Ann. Ch. 40-22). 3. Do the detention standards adopted by the Board of Human Resources for juvenile detention facilities apply to jails in which juveniles are confined?
The department, pursuant to Ga. Laws 1963, pp. 81, 110 (Code Ann. 99-214 (p) ), is authorized to inspect "facilities wherein children and youth are detained operated by any department or agency of the state, county or municipal government." Children are sometimes detained in jail pending hearing in juvenile or superior court. The jail, therefore, may be inspected by departmental staff and reports made privately to the proper authorities.1 In addition to the right of the department to inspect all detention facilities holding juveniles, the department, in cooperation with persons operating detention facilities, may adopt standards governing those facilities. You have asked whether the current standards adopted by the Board of Human Resources apply to jails. In my opinion, they do not. First, the preamble to the standards does not indicate that any authorities operating jails were consulted in the formulation of the standards although Ga. Laws 1963, pp. 81, 110, requires such consultation. Second, the standards themselves apply only to those facilities which detain juveniles exclusively. For example, the one requirement in the Juvenile Court Code which clearly applies to jails (Code 24A-1403; Ga. Laws 1971, pp. 709, 724; 1973, pp. 882, 886)-that there be a separate room for juveniles detained therein~-is not even discussed in current standards. Also, there are no policies in the present standards for jails which hold only a few juveniles, making it impossible for these jails to meet the present standards. In sum, although Ga. Laws 1963, pp. 81, 110, gives the department the authority to draft standards to apply to jails detaining juveniles, these standards have not yet been developed and the current standards are not applicable. If standards are drafted they can be enforced first by publicizing the deficiency(ies) of the jail and later by a written report to the Governor. There is no provision for closing a facility or penalizing a person operating it.
1 The department has the authority under Ga. Laws 1973, p. 890 (Ga. Code Ann. Ch. 77-8), to establish certain standards for all jails regardless of whether or not juveniles are confined therein.

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4. Does the commitment of juveniles to the department pursuant to an order of the juvenile court terminate at the age of 21 or at the age of 18?
Children subject to the jurisdiction of the juvenile court are those under the age of 17 or over the age of 17 and under 21 who committed acts of delinquency before reaching 17. See Code 24A-401; Ga. Laws 1971, pp. 709, 713, as amended. Orders committing children to the department for treatment or rehabilitation are of two years duration unless the department requests an extension. Code 24A-2701 (b). Code 24A-2701 (e) provides
" ... when the child reaches the age of 21 years of age, all orders affecting him then in force terminate and he is discharged from further obligation or control." Ga. Laws 1971, pp. 709, 738; 1974, pp. 1126, 1131.
The Juvenile Court Code was enacted in 1971, and in 1972 the General Assembly reduced the age of majority from 21 to 18. Ga. Laws 1972, p. 193; Ga. Code Ann. 74-104. You have asked whether this changes Code 24A-2701 (e) and hence requires termination of all orders at age 18. The Age of Majority Act does not expressly amend any provision of the Juvenile Court Code. However, it must be determined whether the General Assembly implicitly intended to reduce the age for the exercise of juvenile court jurisdiction and supervision. See Op. Att'y Gen. 72-51. It is my opinion that this was not the intent of the General Assembly and that therefore orders committing children to the department may extend past the child's 18th birthday. The primary reason for this conclusion is that in 1973, subsequent to the Age of Majority Act and to an amendment to that Act (Ga. Laws 1973, p. 590), the General Assembly amended the Juvenile Court Code and included in the amendment the definition of child as
" ... any individual who is: ... (2) under the age of 21 years who committed an act of delinquency before reaching the age of 17 years and who has been placed under the supervision of the court or on probation to the court." Ga. Laws 1973, p. 882 (Code 24A-401 (c) ).
This amendment is the latest expression of the General Assembly and is dispositive of the question. By virtue of this amendment, the age at which all juvenile orders terminate must remain age 21 so that the juvenile court may enter dispositional orders for children between the ages of 17 and 21. This also allows the department to seek extension of orders to remain in force past the child's 18th birthday where necessary for his treatment and rehabilitation. See Code 24A-2701 (b). Such an extension is not in irreconcilable conflict with the Age of Majority Act since it merely allows a young adult to be treated and

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rehabilitated by the department on the basis of a delinquent act committed prior to his reaching majority. Therefore, it is my opinion that under the provisions of the Juvenile Court Code, the department's custody of a child is not necessarily terminated when he reaches his 18th birthday. 5. 'When is the department required to discharge children committed to it pursuant to Ga. Laws 1963, p. 81, as amended by Ga. Laws 1974, p. 1455, from custody?
Georgia Laws 1963, p. 81, as amended, particularly by Ga. Laws 1974, p. 1455 (Ga. Code Ann. 99-209 (a) (5)) provides that the Department of Human Resources is the exclusive agency for the acceptance and incarceration of children under the age of 17 who have been convicted of noncapital crimes, except for second offenders who may be sentenced to the Department of Offender Rehabilitation. It is my opinion that the Department of Human Resources' legal responsibility for such children ends when they reach the age of 17 at which time they must either be released or transferred to the Department of Offender Rehabilitation, in accordance with the court's order. The Board of Corrections and the Department of Offender Rehabilitation administer the penal system of this state and have exclusive jurisdiction over persons convicted of crimes, except as otherwise specifically provided by law. Ga. Canst., Art. V, Sec. V, Par. I (Code Ann. 2-3401); Ga. Laws 1956, pp. 161, 171, as amended (Code Ann. 77-309). Georgia Laws 1963, p. 81, as amended, particularly by Ga. Laws 1974, p. 1455, does make a specific exception for certain youthful criminals; but it limits the department's jurisdiction to acceptance and incarceration of those under the age of 17. Therefore, even if the child is committed to the department before his 17th birthday, the department cannot confine him beyond that date and its legal responsibility for him terminates on that date. Prior to a committed child's 17th birthday the department should notify the sentencing court that a further disposition or a release must be made. Ga. Laws 1969, pp. 996, 997 (Code Ann. 99-222), provides that the sentencing court retains jurisdiction to transfer the child to the custody of the Department of Offender Rehabilitation.

OPINION 74-140

To: Commissioner, Department of Public Safety

October 10, 1974

Re: The Department of Public Safety may receive, maintain and disburse supplemental funds obtained from private foundations.

You have requested my official opinion concerning the receipt and

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use by the Department of Public Safety of private foundation funds. Specifically, you have asked the following questions:
1. May the Department of Public Safety accept private foundation funds which are designated by the foundation for a specific project?
2. If such funds may be accepted by the Department of Public Safety must they be deposited in the state treasury or may they be disbursed by and for the use of the department?
3. Would such funds supplement rather than replace funds appropriated to the Department of Public Safety?
In the following paragraphs, I shall answer each of your questions in turn.
Question One. One of the stated purposes of the Act creating the Department of
Public Safety [subsequently re-created by the 1972 Reorganization Act (Acts 1972, pp. 1015, 1059; Ga. Code Ann. 40-35165)] is"... to authorize the Department of Public Safety to accept gifts of property, equipment or services in the name and in behalf of the State of Georgia which may be donated for the use of such department or any division thereof. ..." Ga. Laws 1937, pp. 322, 324, as amended. This purpose is enunciated in Section 12 of that Act. Ga. Laws 1937, pp. 322, 336 (Ga. Code Ann. 92A-234). The language is broad and authorizes the acceptance of any donations which may be of value to headquarters or any division or district of the Department of Public Safety. However, the acceptance of donations is subject to the following limitations:
(1) the gift must be accepted in the name of and in the behalf of the State of Georgia;
(2) any conditional gift must not require the Department of Public Safety to exceed its powers;
(3) all gifts of money must be held in accordance with Ga. Code (1933) Ch. 100-1, relating to the deposit of money in state depositories.
Subject to the above-mentioned limitations, it is my opinion that the Department of Public Safety may accept private foundation funds which are designated by the foundation for specified projects.
Question Two. You have indicated that your second question was raised because
of a requirement in the law that certain Department of Public Safety funds be deposited in the state treasury. Ga. Const., Art. VII, Sec.

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II, Par. III (Code 2-5503), provides that all funds collected from "taxes, fees and assessments ... authorized by revenue measures ..." shall be paid into the general fund of the state treasury. However, a gift is not a sum collected from "taxes, fees and assessments," and there is no requirement that gifts shall also be deposited in the state treasury.
Consequently, it is my opinion that funds donated to and accepted by the Department of Public Safety for a designated purpose need not be deposited in the treasury of the State of Georgia.
Question Three.
The Georgia Constitution provides that the General Assembly shall annually appropriate the funds necessary to operate all of the various departments and agencies of the state, sufficient to meet the current expenses of the state for the ensuing fiscal year. Ga. Const., Art. VII, Sec. IX, Par. I (Ga. Code Ann. 2-6201 (a) and (b)). With the exception of certain mandatory appropriations (which do not apply to the Department of Public Safety), each General Appropriations Act, with amendments as may be adopted, continues in effect for the next fiscal year after adoption. Ga. Const., Art. VII, Sec. IX, Par. II (Ga. Code Ann. 2-6202 (a) ).
I have reviewed the appropriations sections and have been unable to find any provision requiring a pro tanto displacement of an appropriation for the receipt of a gift. Therefore, it is my opinion that donated funds received by the Department of Public Safety supplement rather than replace funds appropriated to the department.
Based on the foregoing analysis, it is my official opinion that the Department of Public Safety may receive, maintain and disburse supplemental funds obtained from private foundations.

OPINION 74-141

To: State Superintendent of Schools

October 11, 1974

Re: The Board of Education ''certification" requirements of Ga. Laws 1937, pp. 864, 868 (Ga. Code Ann. 32-415), are not to be given retroactive application and hence would not be applicable to schools or colleges chartered prior to July 1, 1937.

On July 24, 1974, this office rendered an opinion to you (Op. Att'y Gen. 74-94) concerning the limited scope of the State Board of Education's authority respecting enforcement of Ga. Laws 1937, pp. 864, 868 (Ga. Code Ann. 32-415). This was followed on September 5, 1974, by a second opinion (Op. Att'y Gen. 74-123) in which we concluded, with reference to a college or school chartered under the laws

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of Georgia subsequent to enactment of that 1937legislation, that where the charter is (1) granted without the State Board of Education certificate provided for by Ga. Code Ann. 32-415 and (2) silent respecting the power to issue degrees or diplomas, this power cannot be said to exist in the corporation as an "implied power." We further stated that the issuance of degrees or diplomas by a college or school incorporated under the laws of Georgia in such circumstances would be ultra vires.
You now desire to know whether this conclusion of our September 5 opinion would also be applicable to colleges or schools chartered prior to the 1937 legislation, and also what application the September 5 opinion might have where the original pre-1937 charter has expired and been renewed subsequent to 1937.
Looking to your initial question it is my opinion that the opinion of September 5 would not have any application to colleges or schools chartered prior to the 1937 Act. It must be remembered that the State Board of Education "certificate" requirements of Ga. Code Ann. 32-415 relate not to any sort of continuing regulatory authority, but simply to a requisite for the initial issuance of a charter granting the right to confer degrees or diplomas.l Only in the most extraordinary circumstances will the courts give legislation a retroactive effect. See, e.g., Ga. Code 102-104; Anthony v. Penn, 212 Ga. 292, 293 (1956). It is important to note that this 1937 legislation, which was approved on February 10, 1937, expressly provides in Section 10 that it "shall become effective July 1, 1937." See Ga. Laws 1937, pp. 864, 869. I consequently conclude that the legislation was intended to apply only prospectively to those degree or diploma granting colleges or schools petitioning for incorporation on or after July 1, 1937, and was not intended to have any effect upon either the existence or the powers (whether express or implied) of colleges or schools chartered prior to that date.
Your second question, relating to the applicability of the September 5 opinion in situations where a pre-July 1, 1937, charter has subsequently expired and then been renewed, poses more difficult problems, some of which, for the reasons stated in the July 24 opinion, are not really susceptible of answer (e.g., the status of a school which has been issued a charter granting the right to confer degrees or diplomas without the State Board certificate which the superior court should have but didn't require as a condition precedent to incorporation). As a rule of thumb it would seem that answer might well turn on whether the expiration of the original pre-1937 charter was followed by the filing of petition for and the grant of an entirely new charter (in which case the certificate requirements of Ga. Code Ann.
1 The nature of the "certificate" requirement under Ga. Code Ann. 32-415 is rather fully discussed in our July 24, 1974 opinion.

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32-415 would presumably apply to the same extent and degree as they would for any new school or college seeking its initial charter), or whether the situation was simply one of the entry of a court order renewing and/or continuing the original pre-1937 charter (in which case a court might well hold that the renewal carried with it all corporate prerogatives and powers, whether express or implied, appertaining to the original charter). It might further be pointed out that in some situations the second question might be rendered academic by the 1968 enactment of the Georgia Business Corporation Code, since under that Code Georgia corporations now have perpetual existence unless their charters provide for a more limited life. See Ga. Code Ann. 22-202. It must be noted that this same Code provision further states that:
"Each corporation existing on the effective date of this Code shall have perpetual duration unless its articles of incorporation are amended under this Code to provide for a li'mited period of duration." Ga. Laws 1968, pp. 565, 573; 1969, pp. 152, 159.
A more definitive answer to your second question is precluded by the vast number of differing factual circumstances which conceivably might obtain but it is my hope that the foregoing coupled with what we have stated in our opinions of July 24 and September 5 will be of some assistance to you concerning the State Board of Education's role in connection with this quite nebulous 1937 statute.

OPINION 74-142

To: Director, State Merit System of Personnel Administration

October 28, 1974

Re: Prisoners in work-release status may be employed by state agencies, provided that the prisoners are not appointed to a civil office.

This is in response to your recent request for my opinion concerning several questions regarding the legality of public employment of work-release prisoners.
Before answering your questions, we need to define what is meant by a work-release prisoner. This is a prisoner who, in the Director of Corrections' judgment, is worthy of trust. Ga. Laws 1956, pp. 161, 171, as amended (Ga. Code Ann. 77-309 (b) (2) ). Based on this trust, the director extends the prisoner's area of confinement so that the latter may find gainful employment. Ga. Code Ann. 77-309 (b) (2). This affords the prisoner an opportunity to work his way back into free society.

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With this discussion in mind, the questions and responses thereto are set forth below.

1. Can a state department use a work-release prisoner as an independent contractor?
I know of no law that would prohibit a state department or agency from contracting with a work-release prisoner as an independent contractor.
2. Can a state department employ a work-release prisoner in positions that are not classified under the State Merit System?
Under Georgia law, a person convicted and sentenced for a felony involving moral turpitude is disqualified from holding any civil office. Code of 1933, as amended (Ga. Code Ann. 89-101 (3) ). A civil office is any public office other than positions in the military. See Sheffield v. State School Authority, 208 Ga. 575, 584 (1952). However, a civil office would not include all positions in State Government. See Morris v. Peters, 203 Ga. 350,356 (1948); McDuffie v. Perkerson, 178 Ga. 230, 234 (1933). A public office is one created by the Constitution, by some statute, or by municipal ordinance. See Morris v. Peters, supra at 356; McDuffie v. Perkerson, supra at 234; Op. Att'y Gen. 66-76. A public office is the right, authority, and duty conferred by law on an individual vesting him with some portion of the sovereign functions of the government. See Morris v. Peters, supra at 357; McDuffie v. Perkerson, supra at 234. Clearly the vast majority of the positions in State Government would not fall in this category.
Other than this provision, I do not know of any law that would prohibit work-release prisoners from being employed by state departments and agencies. Therefore, work-release prisoners may be employed in any unclassified position that is not a civil office.
3. May a state department employ a work-release prisoner in a position classHied under the State Merit System?
The limitation that applies to employing a work-release prisoner in an unclassified position would also apply to his employment in a classified position. Besides that basic limitation, the Merit System Director, in his discretion, may refuse to examine an applicant or disqualify his name from the register, if the applicant has been convicted of infamous, criminal, or notoriously disgraceful conduct. Rules and Regulations of the State Merit System, Rule 6.204.j.
Besides these limitations, I know of no other state Jaw or merit system rule that would prohibit a work-release prisoner from being employed in a position classified under the State Merit System of Personnel Administration.

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4. Is the Department of Corrections prohibited from employing workrelease prisoners because of any possibility of conflict of interest?
There may be cases in which the employment of a particular prisoner in a particular position within the Department of Corrections would give rise to a conflict of interest. However, the Department of Corrections will have to decide the individual cases as they arise.
There is one other limitation on the employing of work-release prisoners by the Department of Corrections. A work-release prisoner cannot receive compensation for work performed in the institution where he is confined. Op. Att'y Gen. 73-7. However, I do not know of any other special limitation that would prohibit the Department of Corrections from employing work-release prisoners.
Based on the foregoing discussion, it is my official opinion that state departments may employ work-release prisoners provided that the prisoners are not appointed to a civil office.

OPINION 74-143

To: Secretary of State

October 29, 1974

Re: Code 34-602 permits persons moving from one county in this state to another within the 50 days prior to a primary or general election to register specially at least 14 days prior to the primary or election to vote for the offices of Governor and Lieutenant Governor only.

This is in response to your letter requesting my opm1on on the proper application of Code 34-602 (2) which provides for a special registration deadline for certain voters so that they may vote for the offices of Governor and Lieutenant Governor. For the following reasons, it is my opinion that Code 34-602 (2) allows persons moving from one county in this state to another within 50 days prior to the primary or election to register specially up to 14 days prior to the primary or election to vote for the offices of Governor and Lieutenant Governor only.
The Georgia Election Code requirements concerning residency and registration have undergone significant changes since the Code was enacted in 1964. Originally, Code 34-602 provided that a person must reside in a county at least six months before being allowed to register and vote in that county. Ga. Laws 1964, Extra. Sess., pp. 26, 45 (former Code 34-602 (d) ). In 1968, subsection 2 was added in order to allow persons moving from one county to another to vote for Governor and Lieutenant Governor even if they were not otherwise eligible to vote because of the county residence requirement. Ga.

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Laws 1968, p. 847; former Code 34-602 (2). Code 34-602 (2) was revised in 1971 and now reads:
"(2) Where a person moves from one county in this state into another county in this state and registers at least 14 days prior to the primary or election to nominate or elect candidates for the office of Governor or the office of Lieutenant Governor, and such a person would have been entitled to vote for such persons except for the county residence requirements contained in (d) above, and such person is not entitled to vote for such persons in any other county, then such person shall be eligible to register and vote in such primary or general election or both, but only for the above mentioned candidates for nomination or for public office." Ga. Laws 1971, Extra. Sess., pp. 61, 63.
In 1974, however, the six months durational residence requirement was eliminated entirely and it is now only necessary for a person to be a resident of this state and of the county in order to register. Ga. Laws 1974, p. 95; Ga. Code 34-602. Subsection 2 was not amended or repealed at the time the durational residence requirement was eliminated.
Since the durational residence requirement was deleted, I have considered the possibility that subsection 2, providing for special registration, has been repealed by implication. However, repeals by implication are not favored and occur only when a later statute cannot be harmonized with the earlier one. See Mayor &c. of Athens v. Wansley, 210 Ga. 174, 177 (1953).
I have concluded that subsection (2) is not wholly inconsistent even with the 1974 version of subsection (1) so that it has not been repealed and remains effective to authorize special registration for certain persons, as explained below.
Code 34-611 and 34-625 (based on Ga. Laws 1964, Extra. Sess., p. 26 et seq.) provide that the boards of registrars must cease taking applications for registration 50 days prior to the general primary or the general election. Code 34-602 (1) requires, of course, that an applicant be a resident of the county in which he seeks to register. Therefore, persons moving into the county after the deadline for normal registration would not be able to register at all since they were not residents of the new county and thus prohibited from registering before the 50-day deadline. Reading Code 34-602 (2), the special 14-day registration provision, along with the Code 34-611 and 34-625 which establish the 50-day deadlines, it is my opinion that Code 34-602 (2) now allows persons moving from one county into another county in this state within the 50 days prior to a primary or election but before 14 days prior to a primary or election to register specially to vote for Governor and Lieutenant Governor since, by

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virtue of the residence requirement in Code 34-602 (1) (d), they were unable to register prior to the usual 50-day deadline. Thus, persons not already registered in their prior county of residence may register to vote only for Governor and Lieutenant Governor in their new counties. You asked whether a person moving into a county prior to the 50-day deadline could be allowed to register pursuant to Code 34-602 (2). In light of the foregoing interpretation, special registration for such persons would not be permissible since they were not ineligible to register prior to the usual deadline because of the residence requirement but simply failed to register. Nor does the special registration provision of Code 34-602 (2) apply to persons already registered in their former county of residence since Code 34-631 (a)-(c) (amended by Ga. Laws 1974, pp. 95, 98) provides for transfer of their registration from one county to another at least 15 days prior to the primary or election in which they wish to vote, entitling such persons to vote in the usual manner.
You have also asked whether the registrars are required to send a duplicate of the application for special registration to the applicant's former county of residence even though the voter was not formerly registered. Code 34-602 (4) does clearly require that a duplicate of the application be sent to the former county and subsection (5) requires the registrars to maintain a file on all special registrants to receive information from the former county of residence. While the index would not be necessary for those persons who were in fact not registered, it would allow the registrars to cross-check the voter's declaration that he was not previously registered, thus facilitating detection of election irregularities.
For these reasons, it is my opinion that although the deletion of the durational residence requirement has substantially decreased the function of Code 34-602, it has not been repealed entirely and still permits a special 14-day registration for persons moving from one county in this state to another after the usual close of the registration books mandated by Code 34-611 and 34-625.

OPINION 74-144

To: Commissioner, Department of Transportation

November 4, 1974

Re: Existing statutes do not provide that the Department of Transportation may permit MARTA to encroach upon limit of access rightsof-way.

[Title 95A of the Ga. Code Ann. is based on Ga. Laws 1973, p. 947 et seq.]

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This is written in response to your recent letter wherein you request my opinion on the question of whether or not the Department of Transportation has the legal authority to permit MARTA encroachment upon limit of access rights-of-way by granting easements or issuing permits to MARTA.
In addition to the general powers given to the Department of Transportation (Ga. Code Ann. 95A-302), the General Assembly has specifically defined the powers of the department as to limited access facilities. Ga. Code Ann. 95A-936. This section prohibits the department from conducting or allowing to be conducted any commercial enterprise or activities on any property upon which a limited access facility has been constructed. It may be summarily concluded that MARTA is not a commercial enterprise or activity so the statute's express prohibition is not applicable to your inquiry. However, the statute under consideration appears to provide that only public utility facilities shall be allowed on limited access rights-of-way.
The Code of Public Transportation at Ga. Code Ann. 95A-104 provides a definition of public utility as any publicly owned
"[L]ine, facility, or system for producing, transmitting or distributing communications, power, electricity, light, heat, gas, oil products, water, steam, clay, waste, storm water not connected with highway drainage, and other similar services and commodities, including publicly-owned fire and police and traffic signals and street lighting systems, which directly or indirectly serve the public or any part thereof; ..."

MARTA does not appear to fit within the definition of a public utility as that term is defined by this statute.
There appears in the 1971 amendment to the MARTA Act, Ga. Laws 1971, pp. 2082, 2086, a provision as follows:
"This provision shall not prevent the state from contracting with said authority [MARTA] for services, nor from granting to said authority easements, rights-of-way and leasehold interests in and through state property." (Matter in brackets added.)

As noted, the above appears as a proviso and is contained in a local statute. Thus, the proviso would not be sufficient authorization for the department to grant or lease limited access right-of-way to MARTA.
After a review of the statutes, it must be concluded that the existing general statutory scheme did not contemplate or foresee the need for allowing limited access rights-of-way to be used for transportation purposes other than departmental public transportation purposes. While I find no express legal prohibition against the department allowing MARTA to jointly utilize limited access right-of-way, neither do

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I find any express or implied authority for such use. Apparently, this is an area where express legislation is needed.
In addition, as you may be aware, any violation of a limited access right-of-way on a highway which has received federal aid must have the prior approval of the Federal Highway Administration. 23 U.S.C.A. 111.
This office will be most happy to prepare the legislation which you may desire in this area.

OPINION 74-145

To: Commissioner, Department of Banking and Finance

November 5, 1974

Re: Public funds held by county officials must be deposited in one or more solvent banks pursuant to Ga. Code (1933) 89-811, and may not be deposited in savings and loan associations.

This is in response to a recent request from your office in which you requested our opinion as to whether counties fell within the definition of "municipalities and other public corporations and bodies" as that phrase is used in Ga. Code Ann. 16-437 (Ga. Laws 1937-38, Extra. Sess., p. 322, as amended), so as to authorize county officials to deposit public funds in savings and loan associations.
Georgia Code (1933) 89-810, concerning the deposit of public money, reads in part as follows:
"It shall be the duty of every ... officer, ... upon any money belonging to any public body coming into his hands, promptly to deposit the same in a bank or depository as hereinafter stated ...."
This Code section is limited, insofar as it pertains to counties, by Ga. Code (1933) 89-811, which speaks directly to deposits of county funds, saying:
"The county authorities shall designate one or more solvent banks as depositories of all county moneys ...."
Therefore, county officers are required to deposit public money which they have in their possession in solvent "banks," and would not be authorized to deposit public moneys in savings and loan associations, since savings and loan associations are not within the definition of the term "bank" contained in Ga. Code Ann. 13-201 (amended by Ga. Laws 1960, pp. 67, 69).
While I realize that Ga. Code 16-437 was enacted later in time than Ga. Code 89-811, a repeal by implication, which would be the

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effect of interpreting the terms "municipalities and other public corporations and bodies" to include counties, is not favored, and never occurs except when the later Act is clearly and indubitably contradictory and contrary to the former Act. See Montgomery v. Board of Education of Richmond County, 74 Ga. 41 (1884).
Therefore, it is my opinion that savings and loan associations are not proper depositories for public funds maintained by county officials.

OPINION 74-146

To: Commissioner, Department of Corrections/Offender Rehabilitation

November 7, 1974

Re: Correctional staff are authorized to search visitors entering or leaving a correctional institution.

You have requested an opinion whether correctional staff are authorized to search visitors entering or leaving a correctional institution.
Ga. Laws 1971, pp. 220, 221 (Ga. Code Ann. 77-326), provides:
"It shall be unlawful for any person to come inside the guard lines established at any penitentiary camp with a gun, pistol or any other weapon, or any intoxicating liquor, or amphetamines, or biphetamines, or any other hallucinating or any drugs given, without the knowledge and consent of the warden or his deputy wardens in charge ...."
Since correctional officials have the duty of maintaining the custody, discipline, and safety of those in their institutions and enforcing the above statute, it is reasonable to assume that the courts will permit the correctional institution to condition a visit to the institution on the visitor's willingness to submit to a search.
This statement is supported by a clear line of cases concerning similar circumstances. For example, those "who actually present themselves for boarding on an airliner, like those seeking entrance into the country, are subject to a search based on mere or unsupported suspicion." United States v. Skipworth, 482 F.2d 1272, 1276 (5th Cir. 1973); cf. Downing v. Kunzig, 454 F.2d 1230 (6th Cir. 1972) (government building); United States v. Miles, 480 F.2d 1217 (9th Cir. 1973) (restricted military area).
It was held in each of the above cases that the public interest in preventing the introduction of dangerous material into the particular area involved was sufficiently strong to make it reasonable for the government, without a warrant or probable cause, to condition access upon submission to a search adequate to exclude the dangerous material from the restricted area.

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Furthermore, it may be as dangerous to prison safety to let certain material surreptitiously leave the institution as it is to let other items in. Thus, a visitor's entry to the prison may be conditioned on his consent to a search on leaving as well as on entering. Cf. United States v. Skipworth, 482 F.2d 1272, 1277, 1281 (5th Cir. 1973).
These searches may be conducted by regular members of your correctional staff, properly supervised and trained. They should conduct the searches according to clear guidelines prepared for them by the Department of Corrections. I presume that you have something in mind similar to those searches conducted at airports, e.g., a magnetometer scan and an inventory of personal effects such as purses, briefcases and packages. In preparing the guidelines, your staff may wish to compare similar guidelines prepared for other prisons, airports or government buildings.
The key to the validity of the guidelines and searches conducted under them will be their rationale for each aspect of the search. A member of my staff would, of course, be happy to review the guidelines for their legal sufficiency, and it would be essential for this review that such rationales be articulated.
In summary, it is my official opinion that correctional officers at your institutions may condition entry to a prison on the visitor's consent to a search on both entering and leaving. However, your staff should decide exactly what kinds of searches are necessary for the particular requirements of your system and its individual institutions. These guidelines and their reasons should be reviewed by my staff and then used as the basis for training and supervising the employees who implement them.

OPINION 74-147

To: Chairman, State Board of Pardons and Paroles

November 7, 1974

Re: Where a prisoner is incarcerated in Michigan and is serving Michigan and Georgia sentences concurrently, a provision for suspension of the Georgia sentence in the event of a parole by Michigan authorities does not usurp the functions of the Board of Pardons and Paroles.

This is in response to your request for an opinion as to whether a certain felony sentence was imposed in such a manner as to usurp the powers and functions of the Board of Pardons and Paroles, contrary to the provisions of Ga. Laws 1953, Nov. Sess., pp. 210, 212 (Ga. Code Ann. 77-534).

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The sentence in question was imposed following the defendant's plea of guilty to burglary. The court sentenced the defendant to five years imprisonment, with three years to be served and the balance suspended. The sentence stated that it was to run concurrently with a Michigan sentence then being served by the defendant and that it was to be computed from August 15, 1972, the date of the Michigan sentence. The court then added the provision which is the subject of your inquiry, stating that "if the state of Michigan paroles the above defendant prior to the expiration of the period of servitude owed the State of Georgia, then said period of servitude shall be commuted to time served and the balance of said sentence shall be suspended upon the general grounds."
It must be initially emphasized that a trial judge has broad power and discretion to impose conditions as part of a suspended or probated sentence. The Georgia Supreme Court has recently stated:

"In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved. Probated and suspended sentences, upon reasonable conditions, have traditionally been used by trial judges in Georgia as effective tools of rehabilitation and serve a useful purpose in appropriate cases as an alternative to confinement." State v. Collett, 232 Ga. 668, 670 (1974).

The statute to which you refer (Ga. Laws 1953, Nov. Sess., pp. 210, 212 (Ga. Code Ann. 77-534) ) is a declaration of legislative policy that no other governmental body is authorized to usurp the functions of the Board of Pardons and Paroles, whose duties, powers and functions are declared to be "executive in character." This statutory language was enacted along with the provisions for classification of certain information as confidential and for public hearings. Ga. Laws 1953, Nov. Sess., pp. 210, 211 (Ga. Code Ann. 77-533). The language stating that no other body is authorized to usurp the board's power is essentially a general declaration of legislative policy, and has never been interpreted by the appellate courts of this state. This statutory provision is consistent with the constitutional mandate for the separation of powers among the three branches of government. Ga. Const., Art. I, Sec. I, Par. XXIII (Ga. Code Ann. 2-123).
The issue presented by your inquiry is whether the sentence in question was within the scope of the court's authority, insofar as it provided for suspension of the balance of the prisoner's Georgia sentence if he is paroled in Michigan. The Georgia Constitution provides that the Board of Pardons and Paroles has the authority to commute sentences. Ga. Const., Art. V, Sec. I, Par. XI (Ga. Code Ann. 2-3011).

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Exercise of this power by any other branch of government is prohibited. Parks v. State, 206 Ga. 675, 679 (1950).
In my opinion the sentencing court's reference to commutation does not establish a fortiori that the court was attempting to exercise an executive function. While use of a term other than "commuted" might have been preferable, the court's intention in imposing the sentence is clear. In the interpretation and construction of a sentence, the entire judgment, rather than any single word or phrase, must be considered. Shepard v. Bozeman, 222 Ga. 585, 587 (1966). The language in a sentence "should be given its ordinary meaning and should be construed to give effect to the intention of the judge who imposed it if possible." 24 C.J.S. Criminal Law, 1585. When a sentence is ambiguous or uncertain, the accused must be given the benefit of the doubt. Cross v. Huff, 208 Ga. 392, 396 (1951).
It further appears from the language of the sentence that this prisoner is now serving a sentence in Michigan and is not currently incarcerated in any Georgia penal institution. The Georgia Board of Pardons and Paroles thus has no jurisdiction to act on this individual's sentence until such time, if ever, that he is returned to Georgia for service of the remainder of his Georgia sentence. See Op. Att'y Gen. 72-35. The situation is therefore different from a hypothetical case in which a court attempts to provide for suspension of a sentence should certain conditions be met after one has commenced service of the sentence in a Georgia prison. The latter sentence could constitute an infringement on the board's authority. In the situation presented in your question, the board currently has no authority to act upon the individual's sentence and conceivably might never acquire such authority, since, based on the information given, the Georgia sentence could expire prior to his parole or his completion of the Michigan sentence.
Based upon the foregoing discussion and citation of authorities, it is my opinion that the sentence in question does not usurp the functions of the Board of Pardons and Paroles.

OPINION 74-148

To: Joint Secretary, State Examining Boards

November 8, 1974

Re: The exemption from the prov1s10ns of Ga. Laws 1973, p. 40 (Ga. Code Ann. Ch. 84-65), given to certain peace officers by Ga. Laws 1973, pp. 40, 54 (Ga. Code Ann. 84-6515), extends only to those persons charged by law with the duty to maintain public order or to make arrests for violations of the law, and who devote, on a regular basis, their full time to the performance of such duties.

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This is in response to your recent request for my opinion as to the scope .of the exemption given "peace officers" as that term is used in Ga. Laws 1973, pp. 40, 54 (Ga. Code Ann. 84-6515).
Georgia Laws 1973, pp. 40, 54, provides exceptions to the provisions of Ga. Laws 1973, p. 40 (Ga. Code Ann. Ch. 84-65), relating to the licensure of private detective and security agencies. That section provides, in part, that:
"(a) This Chapter does not apply to:
* * *
"(5) a peace officer employed on a full-time basis by a state, county or local law enforcement agency, working during his off-duty hours if such off-duty employment: "(A) would otherwise come under the provisions of this Chapter, and "(B) is on an independent contractor basis with an employer other than another peace officer or a business covered by the provisions of this Chapter ...."
In order for an individual to come within the scope of the exemption, the person asserting the exemption must be a "peace officer."
The term "peace officer" is generally defined by Ga. Code 26-401 (k), which reads as follows:
" 'Peace officer' means any person who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests for offenses, whether that duty extends to all crimes or is limited to specific offenses." Ga. Laws 1968, pp. 1249, 1263, as amended.
A second, more limited definition of the term "peace officer" is found in Ga. Laws 1970, p. 208 (Ga. Code Ann. 92A-2102 (d)), which reads as follows:
" 'Peace officer' means any officer or member of a law enforcement unit employed full time by the Department of Public Safety, a municipality or a county, who has the power of arrest, and who is responsible for the enforcing of criminal laws of this state or its political subdivisions ...."
In order to determine whether any person comes within these definitions, it would be necessary to examine, on an ad hoc basis, either the law which creates the office the individual holds or the law which authorizes the employment of such person, to determine if, in fact, a person holding such office or so employed is charged by law with the duty to maintain public order or to make arrests.

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The simplest test, of course, is to ascertain whether the person is authorized to make arrests by virtue of his employment. If he is, then he would come within the general definition of "peace officer" and within the exemption contained in Ga. Code Ann. 84-6515, if the remaining conditions of that section are met.
The more difficult question is whether the person who asserts such status, but does not have arrest powers, is vested by law, because of his office or employment, with the duty to maintain public order. The duty to maintain public order has been defined as the duty to maintain the tranquility and security which every person feels under the protection of the law, a breach of which is an invasion of the protection which the law affords. See Board of Com'rs v. Clay, 214 Ga. 70, 102 S.E.2d 575 (1958). This again can only be ascertained on an ad hoc basis by an examination of the particular statute in question in each case.
If, however, a person brings himself within this definition of peace officer, by demonstrating that his office or public employment authorizes him to make arrests or to maintain public order, he may still not be within the exemption granted peace officers.
In addition to being a peace officer, the person asserting the exemption must also be employed in that capacity on a full-time basis and must be performing the acts which would otherwise be within the purview of Ga. Code Ann. Ch. 84-65, during his off-duty hours.
while the phrase, "on a full-time basis," is not clearly defined, if any ambiguity results from the language of a statute, Ga. Code 102-102 (9), requires that:
"In all interpretations, the courts shall look diligently for the intention of the General Assembly ...."
Further, the Supreme Court has ruled that, in construing a statute, the legislative intent must be determined from a consideration of the statute as a whole. See Williams v. Bear's Den, Inc., 214 Ga. 240, 104 S.E.2d 230 (1958).
Therefore, in ascertaining the meaning of the phrase, "on a funtime basis," we must look at the balance of the statute. The most obvious aid in the interpretation of the phrase, "on a full-time basis," is the use in the statute of the phrases "off-duty hours" and ''offduty employment," used in the same paragraph as the phrase, "on a full-time basis." The use of such terms obviously contemplates a regular schedule of employment, with certain times being considered "on-duty" and others being "off-duty." When coupled with the phrase, "on a full-time basis," the section obviously contemplates employment during which there are regular periods in which the peace officer is devoting his sole attention to his duties as a peace officer.
Therefore, it is evident that in addition to being a peace officer

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employed by a state, county or municipality, such employment must be full time, that is, the person must regularly devote his efforts solely to his duties as a peace officer, rather than performing such duties as a mere incident to or in addition to his regular employment.
I trust that this will provide sufficient guidelines to enable the Board of Private Detectives and Private Security Agencies to determine who is and who is not within the purview of the exemption for "peace officers" contained in Ga. Code Ann. 84-6515.

OPINION 74-149

To: Commissioner, Department of Banking and Finance

November 27, 1974

Re: A regulated certificated bank is not authorized by law to amend its charter to provide for authorized but unissued shares of common stock.

In a letter received from your office dated October 30, 1974, you stated that the Department of Banking and Finance had received an application for amendment to the charter of a regulated certificated bank whereby the authorized capital stock would be increased from 50,000 shares to 100,000 shares, such shares to be issued at a future date. You requested my opinion as to whether such an amendment is authorized by law.
Under the Regulated Certificated Bank Act, regulated certificated banks are specifically authorized to amend their charter so as to change the number of shares into which its capital stock is divided. Ga. Laws 1966, pp. 692, 708 (Ga. Code Ann. 13-2328). Georgia Code Ann. 13-2332 provides that
" ... in case said application [for charter amendment] is for the increase of the capital stock, that the amount of such additional capital has been paid in, in cash, except where surplus is capitalized ...."
While the Act is far from clear, it is my opinion that this section properly construed precludes approval of the application.
Georgia Code Ann. 13-2332 precludes an amendment to increase the "capital stock" unless "the amount of such additional capital has been paid in, in cash." While the reference to "capital stock" is hardly clear, it is a fair construction of this provision and other provisions of Code Ann. Ch. 13-23 (based on Ga. Laws 1966, p. 692 et seq.) that it precludes obtaining authority to increase the number of capital shares unless the "amount of such additional capital [represented

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thereby] has been paid in, in cash." This necessarily precludes an amendment to increase the authorized shares with the concurrent issuance of those shares. See Ga. Code Ann. 13-2307 (b) (4), 13-2314, 13-2335, 13-2336.
Moreover, Ga. Code Ann. 13-2336 provides that when the capital stock of any regulated certificated bank shall be increased, the additional stock shall be offered to the stockholders of record at the time of such increase. Thus, while a charter amendment providing for increased capital stock is permitted, Ga. Code Ann. 13-2336 additionally requires that such increase be offered to the stockholders.
It 4;, therefore, my opinion that a charter amendment providing for authorized but unissued shares of stock in a regulated certificated bank would not be consistent with the terms of Ga. Code Ann. Ch. 13-23.

OPINION 74-150

To: Secretary of State, Commissioner of Securities

December 6, 1974

Re: The Securities Act of 1973 vests the Commissioner of Securities wi~h no authority to refund the $250 filing fee tendered under Section 9 (e) when the party paying the fee subsequently withdraws the federal registration statement on which the exemption provided by that section depends.

You have asked for my opinion on a question that has arisen in your administration of Section 9 (e) of the Georgia Securities Act of 1973 (Ga. Laws 1973, p. 1202; Ga. Code Ann. Title 97). That section provides a transactional exemption from the registration requirements of Section 5 of the Act for offers and sales of securities "pursuant to a registration statement effective under the [federal] Securities Act of 1933...." The exemption thus conferred is expressly limited, however, to offers and sales that occur after the commissioner has received certain prescribed documents, accompanied by the $250 "filing fee" required by Section 9 (e) (3), and has issued a certificate to that effect.
It appears that several parties who had planned to rely on Section 9 (e) submitted the appropriate documents, paid the necessary filing fee, obtained your "certificate of compliance," but then withdrew their federal registration statements. No longer intending to sell securities in this state, they have now applied to you for refund of their filing fees. Since Section 9 (e) does not expressly provide for the return of any amounts collected as filing fees, you have asked me to advise you whether those refunds should be paid.

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As the Supreme Court has so often held, "[T]he cardinal rule in the construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law." Foster v. Vickery, 202 Ga. 55 at 60 (1947) (other cases cited). In this instance an indication of the General Assembly's intent can be discerned by comparing the provisions of Section 9 (e) with those of Section 6 (a). Quite obviously, the General Assembly recognized the possibility that a registration statement filed under Section 5 of the Act might be withdrawn before its effective date, for Section 6 (a) expressly authorizes a refund of a portion of the filing fee in that event. Since that is so, it is logical to assume that the legislature must also have recognized that a registration statement filed with the Securities and Exchange Commi~sion could be withdrawn in the same fashion. It follows that since no provision was made for a refund of Section 9 (e)'s $250 filing fee in the event of a withdrawal of the federal registration statement which that section presupposes, no such refund was intended.
It is therefore my opinion that the Securities Act of 1973 vests you with no authority to pay the refunds in question. Anyone who intends to claim an exemption under Section 9 (e) but who is concerned about the potential loss of his $250 filing fee in consequence of the withdrawal of his federal registration statement should take care not to apply for a Section 9 (e) certificate of compliance until he has finally determined to complete the federal registration process.

OPINION 74-151

To: Commissioner, Department of Banking and Finance

December 9, 1974

Re: Independent trustees of the profit-sharing plan for the employees of the Citizens and Southern National Bank would, in the event that the trust should directly or indirectly own, control, or hold, with the power to vote, more than five percent of the voting shares of two or more banks, be a bank holding company within the meaning of Georgia bank holding company laws.

Your office has requested, by letter dated November 1, 1974, my opinion concerning the status of independent trustees of a profitsharing plan for the employees of the Citizens and Southern National Bank. You specifically inquired whether the trust would constitute a bank holding company should it acquire more than five percent ownership in two or more banks.
The key to determining the legal status of any group or organization is the statutory definition of "company." It is,

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" ... any corporation, partnership, foundation, joint stock company, business or voting trust, association or similarly organized group of persons, whether incorporated or not, ... and including any foreign corporation or other organization or association doing business in Georgia." Ga. Code Ann. 13-207 (b) (Ga. Laws 1960, p. 67, as amended).
The Supreme Court of Georgia has stated that this definition is "comprehensive" and therefore not limited to those types of companies expressly mentioned in that section. Independent Bankers Ass'n v. Dunn, 230 Ga. 345, 364 (1973). The intent of this section in light of Supreme Court interpretation is clearly to limit group action that results in greater than five percent control of two or more banks. The independent trustees are, by definition, an organization doing business in Georgia, and therefore must be viewed as a company for the purposes of Ga. Code Ann. 13-207.
The next step in the statutory scheme involves a company becoming a bank holding company, a transition which is prohibited by Ga. Code 13-207 (a) (1). This occurs when a company:
" ... directly or indirectly owns, controls, or holds, with power to vote, more than five percent of the voting shares of each of two or more banks." Ga. Code Ann. 13-201.1 (e) (amended by Ga. Laws 1970, p. 954).
There are, however, certain circumstances under which a company may become a bank holding company and the prohibitions of Ga. Code 13-207 do not apply. Only one is relevant to the case of the independent trustees, namely:
" ... shares acquired by a bank in good faith in a fiduciary capacity, except when such shares ... are held for the benefit of the shareholders of such bank. ..." Ga. Code Ann. 13-207 (a), division (B), (i).
This exemption recognizes the legitimate function of a bank in providing trust services to its customers. The good faith requirement would, of course, prohibit a bank from acquiring more than five percent of the voting shares of two or more banks with the intent of exercising control over the banks, under the guise of performing investment services for their customers.
To come under the aforementioned exception, the independent trustees must first establish that they are a bank. A person claiming . the benefit of a statutory exception must establish that he comes within it. Barlowe v. Story, 120 Ga. App. 48 (1969). A bank is defined, for the purposes of Ga. Code Title 13, as:
" ... any monied corporation authorized by law to receive de-

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posits of money and commercial paper, to make loans, to discount bills, notes and other commercial paper, to buy and sell bills of exchange, and to issue bills, notes, acceptances or other evidences of debt...." Ga. Code Ann. 13-201, amended by Ga. Laws 1960, p. 67.
The words "authorized by law" seem to contemplate a corporation that has been granted a charter to perform banking activities. Although it appears that the independent trustees could not reasonably contend that their receipt and investment of contributions by employees of certain banks brings them within the statutory definition of banking, their failure to obtain a charter conclusively precludes them from claiming such a status. This conclusion is further reinforced by the rule of statutory construction that exceptions to general rules must be strictly construed, particularly where the purpose of the statute is remedial in character. Dalton Brick and Tile Co. v. Huiet, 102 Ga. App. 221 (1960).
It is, therefore, my opinion that the independent trustees, because they are a company within the meaning of Ga. Code Ann. 13-207, would, in the event that the trust should directly or indirectly own, control, or hold, with the power to vote, more than five percent of the voting shares of two or more banks, be a bank holding company within the meaning of Ga. Code 13-201.1 (e), and would further be in violation of Ga. Code 13-207 (a) (1) which prohibits a company from becoming a bank holding company.

OPINION 74-152

To: Joint Secretary, State Examining Boards

December 10, 1974

Re: Employees of the State of Georgia and its political subdivisions are not required to be licensed as electrical contractors even though providing services similar to those otherwise provided by electrical contractors for the state or its political subdivisions.

This is in response to your recent letter requesting my official opinion as to whether city, county or state employees, performing work on properties owned by the State of Georgia or its political subdivisions, would be required to hold a state-issued electrical contractor's license to do such work.
The answer to your inquiry is found in Ga. Code 102-109, and the cases construing that section. Georgia Code 102-109 provides that:

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"The state is not bound by the passage of a law unless named therein, or unless the words of the Act should be so plain, clear and unmistakable as to leave no doubt as to the intention of the legislature."
The courts have made it clear that the same applies to the political subdivisions of the state. See Lingo v. Harris, 73 Ga. 28 (1884).
Since neither the state nor its political subdivisions are specifically included within the provisions of Ga. Laws 1971, p. 583 (Ga. Code Ann. Ch. 84-57), and since, in view of the exemptions provided for public utilities and similar bodies, there did not appear to be any intent on the part of the General Assembly to bind the state or its political subdivisions by the passage of Ga. Laws 1971, p. 583, the scope of the Act is not so broad as to include employees of the state or its political subdivisions.
Therefore, it is my opinion that employees of the State of Georgia and its political subdivisions need not be registered under the provisions of Ga. Laws 1971, p. 583 (Ga. Code Ann. Ch. 84-57), in order to provide services which would otherwise come within the scope of that law, when such services are provided for the state or its political subdivisions on property owned by those entities.

OPINION 74-153

To: Secretary of State, Commissioner of Securities

December 11, 1974

Re: Sales of mortgages or interests therein to the public would be sales of securities which may be subject to the registration provisions and will be subject to the disclosure requirements of the Georgia Securities Act of 1973 (Ga. Code Ann. Title 97).

You have forwarded to me a letter which indicates that certain persons intend to sell mortgages 1 and interests in mortgages to the public in Georgia. You have asked me to render an official opinion detailing the applicability of the Georgia Securities Act of 1973 2 (hereinafter "Act") to such sales. It is my opinion that:
(a) Such sales of mortgages would be sales of securities subject to the Georgia Securities Act;

1 For the purposes of this opinion, the term "mortgage" should be understood to include all instruments described in Section 8 (k) of the Georgia Securities Act of 1973 and would include the note and deed to secure debt which is commonly utilized in Georgia real estate transactions. 2 Ga. Laws 1973, p. 1202, as amended by Ga. Laws 1974, p. 284 (Ga. Code Ann. Title 97).

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(b) Whether such securities would be exempt from the registration provisions of Section 5 of the Act would depend upon the degree of reliance on and participation by the seller;
(c) The seller would, in most cases, be required to register as a dealer or salesman of securities pursuant to Section 3 of the Act; and
(d) The full disclosure requirement of Section 12 of the Act would be applicable to any such sales.
The proposed offering.
The proposed course of business, as I understand from your opinion request, will be for a person or firm (hereinafter "broker") to buy and sell mortgages both for his own account and as agent on behalf of persons who desire to buy or sell mortgages. The mortgages would be, in most cases, in the form of a note and deed to secure debt as is customary in Georgia real estate transactions. The mortgages could be first, second, or lower priority liens on the property which may be developed or undeveloped. The broker intends to sell these mortgages to the general public, and thus will advertise his services in publicly disseminated advertisements and sales literature.
Is it a security?
The first question that must be asked is whether mortgages sold as described above would be securities.
Section 2 (a) (16) of the Act defines a security as:
"any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of indebtedness, ... investment contract ... or any other instrument commonly known as a security, including any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing." (Emphasis added.)
This definition embodies two rationales by which the proposed offering can be found to be an offering of securities. First, the mortgage itself is a "note," "evidence of indebtedness" or "certificate of indebtedness." Secondly, if the mortgages are advertised or sold in such a way that the purchaser relies upon the broker or an affiliate for essential managerial efforts, the sales will be sales of "investment contracts." These two rationales must be considered separately because they lead to different registration requirements.
A. The "note," "evidence of indebtedness" or "certificate of indebtedness" rationale.
As has been discussed, a "note" is explicitly denominated as a security by the Act. There can be little doubt that any mortgage arrangement would be an "evidence of indebtedness" or a "certificate of indebtedness." The usual rule is that:

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"Instruments may be included within any of [the Act's] definitions, as a matter of law, if on their face they answer to the name or description." S.E.C. v. C. M. Joiner Leasing Corp., 320 U.S. 344, 351 (1943); accord, Tcherepnin v. Knight, 389 U.S. 332, 339 (1967); Rekant v. Desser, 425 F.2d 872, 878 (5th Cir. 1970).
The overriding rule in interpreting any provision of any securities Act is, however, that "form should be disregarded for substance and the emphasis should be on economic reality." Tcherepnin v. Knight, supra, at 336; accord Georgia Market Centers, Inc. v. Fortson, 225 Ga. 854, 858 (1969). Following this rule, recent judicial decisions have,
"restricted the application of the [federal securities Acts] to those notes that are investment in nature and have excluded those notes which are only reflective of individual commercial transactions." McClure v. First National Bank of Lubbock, Texas, 497 F.2d 490 (5th Cir. 1974); compare S.E.C. v. Continental Commodities Corp., 497 F.2d 516 (5th Cir. 1974).
It is my official opinion that the same distinction obtains under the Georgia securities law and that notes given in an essentially commercial transaction between a payor and payee are not subject to the provisions of the Georgia Securities Act while sales of notes or mortgages will be subject to the Georgia Securities Act if the transaction, as a matter of economic reality, is an investment.
Based on the foregoing analysis, it is my opinion that sales of mortgages to members of the public who would purchase them as investments would involve offers to sell and sales of securities and would be subject to the Georgia Securities Act. The proposed offering would, therefore, be an offering of securities under this rationale.
B. The "investment contract" rationale. The Georgia Court of Appeals has recently held there are at least
four "tests" by which an investment can be judged to determine if it is an investment contract. J aciewicki v. Gordarl Associates, Inc., 132 Ga. App. 888 (1974). Two tests appear to be particularly applicable to a mortgage brokerage business. The first is the "Howie" test that:
"[A]n investment contract for purposes of the Securities Act means a contract whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party." S.E.C. v. W. J. Howie Co.,
328 u.s. 293, 298-99 (1945).
The other is the "managerial efforts" test: that a seller of an investment opportunity sells an investment contract if "the essential managerial efforts which affect the failure or success of the enterprise are those of [the seller]." S.E.C. v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476, 483 (9th Cir. 1973).

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The United States Securities and Exchange Commission has ruled that a sale of mortgages can be considered an "investment contract" and not be entitled to the "mortgage" exemption in the federal securities Acts.3 In applying the Howie test to sales of mortgages, the Securities and Exchange Commission ruled that the rendering of certain services by the seller of mortgages may give rise to the creating of "investment contracts." These services are:
"(a) Complete investigation and placing service. (b) Servicing collection, payments, foreclosure, etc. (c) Implied or express guarantee against loss at any time or providing a market for the underlying security. (d) Making advances of funds to protect the security of the
investment. (e) Acceptance of small uniform or continuous investments. (f) Implied or actual guarantee of specified yield or return. (g) Continual reinvestment of funds. (h) Payment of interest prior to actual purchase of the mortgage or trust note. (i) Providing for fractional interests in mortgages or deeds of trust.4 (j) Circumstances which necessitate complete reliance upon the seller, e.g., great distance between mortgaged property and investor. (k) Seller selection of the mortgage or deed of trust for the in-
vestor." S.E.C. Release Nos. 33-3892 and 34-5633, Jan. 31, 1958, 23 F.R. 840, CCH Fed. Sec. L. Rep.~ 2755.
These criteria of the Securities and Exchange Commission have been tested and approved in the courts. See, e.g., Los Angeles Trust Deed & Mortgage Exchange v. S.E.C., 285 F.2d 162 (9th Cir. 1961), cert. den., 366 U.S. 919 (1961); S.E.C. v. Lake Havasu Estates, 340
a The exemption structure of the federal securities Act with respect to mortgages is somewhat different from that of the Georgia Securities Act. The Securities and Exchange Commission by its Rule 234 has exempted from the registration requirements of the Securities Act of 1933 certain "promissory notes directly secured by a first lien on a single parcel of real estate upon which is located a dwelling or other residential or commercial property." An exemption from the broker-dealer registration and net capital requirements of the Securities and Exchange Act of 1934 is provided by Rule 3a12-4 for dealers in certain types of mortgage securities. Except as will be discussed in footnote 4, infra, it is my opinion that the differences between the federal and Georgia exemptions for mortgage securities are not significant when considering when an investment ceases to be an exempt mortgage and becomes an investment contract. See S.E.C. Rel. No. 34-10828, CCH Fed. Sec. L. Rep. 73-74 DEC. ~79, 803; S.E.C. Rel. No. 33-4305, 25 F.R. 12912. 4 Currently, the effect of this service is explicitly controlled by the applicable exemption. The exemption from broker-dealer registration of Rule 3a12-4 is available only for sales of whole mortgages or sales of one of only two interests in one or more mortgages. The exemption from registration under the Securities Act of 1933 is available under Rule 234 for up to 125 notes secured by first liens on the same piece of property.

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F.Supp. 1318 (D. Minn. 1972). It is my opinion that the same factors should be weighed in determining whether a mortgage sales arrangement becomes an "investment contract" under the Georgia Securities Act. In weighing these factors, it should be possible to determine the fundamental question: Is the success of the investment essentially dependent upon the efforts of the seller or some third person? If so, the security being sold is an "investment contract."
Must the mortgages be registered?
Section 5 of the Georgia Securities Act of 1973 provides that it is unlawful for any person to offer to sell or to sell any securities unless they are registered or exempt from registration. Any of the exemptions of Sections 8 and 9 of the Act could be applicable to mortgage securities,5 and one exemption is explicitly applicable to mortgages:
"Section 5 of this Act shall not apply to any of the following securities:
* * *
"(k) notes issued in connection with the acquisition of real or personal property and extensions or renewals thereof, if such notes are issued to the sellers of and are secured by all or part of the real or personal property so acquired." Section 8 of Act.
Since Section 8 of the Act designates "exempt securities" subsection 8 (k) exempts from registration not only the original mortgage transaction, but any subsequent transaction in the security created thereby. A mortgage thus continues to maintain its exemption from registration no matter how many times it is bought, sold or traded, and, so long as the mortgage being sold remains within the description of Section 8 (k), there is no requirement for registration.
If, however, the broker sells mortgages in such a way that they become investment contracts, the Section 8 (k) exemption is not available. Section 8 (k) exempts only the mortgage; it does not provide an exemption for an investment contract, one of the elements of which is an exempt mortgage.
In summary, it is my opinion th;1t sales of mortgages described in Section 8 (k) of the Act are exempt from the registration requirement of Section 5 of the Act, but mortgage offerings which are structured or promoted in such a way that they become investment contracts
5 Two exemptions which might be of particular interest are Section 9 (g) which exempts sales to certain institutional investors and Section 9 (m) which exempts sales of securities of an issuer to 15 persons in any 12-month period if certain other conditions are met. It should be noted in connection with the 15 purchaser limitation of Section 9 (m) that the "issuer" of an investment contract would be the broker or affiliate who undertakes to provide the services which constitute the investment contract. It should also be noted that the Section 9 (m) exemption is not available if offers are made by means of publicly disseminated advertisements or sale literature.

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must be registered pursuant to Section 5 unless they qualify for some exemption from registration other than Section 8 (k).
Must sellers be registered as dealers and salesmen? Section 2 (a) (5) defines a "dealer" as
"[E]very person, other than a salesman registered under the Act, who engages, either for all or part of his time, directly or indirectly, as agent, broker, or principal in the business of offering, buying, selling or otherwise dealing or trading in securities issued by another person...."
There can be little doubt that a person who engages in the mortgage brokerage business as you have described it would be a dealer under this definition.6 An individual employed or appointed or authorized by such a dealer to sell mortgages in this state would therefore be a "salesman" of securities. Section 2 (a) (15).
Section 3 (a) of the Act states that:
"No dealer, limited dealer, salesman or limited salesman shall offer for sale or sell any securities within or from this state, except in transactions exempt under subsection (a), (b), (f), (g), (h), (i), (k), or (1), of Section 9, unless he is a registered dealer, limited dealer, salesman or limited salesman pursuant to the provisions of this section."
Since the exempt securities of Section 8 of the Act, and in particular, the "mortgage" exemption of Section 8 (k) of the Act do not provide an exemption from the dealer and salesman registration provisions of the Act, it does not matter for the purposes of Section 3 of the Act whether the security is an "investment contract," or only a mortgage.
It is my opinion, therefore, that a person who engages in the business of selling mortgage securities to the public is required to register as a dealer under the Act and the individuals who work for such a dealer are required to register as salesmen unless they qualify for one of the exemptions enumerated in Section 3 of the Act.
Are the disclosure requirements applicable?
Section 12 (a) (2) makes it unlawful to offer to sell or sell a security by means of any false statement of a material fact or any omission to
''"'"!!!!
6 The "issuer" of a mortgage is the obligor under the mortgage (Section 2 (a) (7) ). The broker is therefore trading in "securities issued by another person." This would be true with any course of business in which the broker sells interests in third-party mortgages, even if the interest is sold in such a way that it is also an investment contract of which the broker would be issuer. Such an investment contract is composed of two distinct securities: the obligation of the mortgagor and the undertakings of the issuer.

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state a material fact necessary in order to make the statements made not misleading. There are no exemptions from this requirement of the Act. It is my opinion, therefore, that any person who sells mortgage securities is required by the Act to fully and truthfully disclose all material facts concerning the value and risks of the investment.
Conclusion.
In conclusion, it is my official opinion that the Georgia Securities Act is applicable to the sale of mortgages if such sales take place in an "investment" context rather than as a commercial transaction. It is my official opinion that there is no requirement for registration of "mortgage" securities which fall in the description of Section 8 (k) of the Act, but that Section 8 (k) provides no exemption from registration for sales of mortgages that are also sales of "investment contracts" by virtue of the investor's returns being essentially dependent upon efforts of the broker or an affiliate. It is also my opinion that there is no exemption from registration as dealers and salesmen which is generally applicable to persons who engage in the business of selling mortgages to the public. Also, finally, it is my opinion that any mortgage which is sold in such a way that it becomes a sale of a security is subject to the full disclosure requirements of the Act.

OPINION 74-154

To: Governor-Elect, State of Georgia

December 12, 1974

Re: Under Section 37 of APEG the "teacher allotment" for state funding purposes must be based upon the projected or anticipated average daily attendance of pupils for the first four months of the coming school year, and not on attendance figures for the preceding year as was called for by the MFPE Act. The State Board of Education may use the projection formulae recommended by the "Report of the Minimum Foundation Program of Education Study Committee" if it so chooses.

This is in reply to your letter of December 9 in which you refer to changes which APEG 1 makes in the calculation of funds to be allocated to local school systems for teachers' salaries. You ask whether APEG will require the so-called "teacher allotment" to be made on the basis of the anticipated or projected average daily attendance of pupils during the first four months of the coming school year, rather
1 "APEG" is the appellation which will for obvious reasons come into popular usage when referring to the Act which "shall be known and may be cited as the 'Adequate Program for Education in Georgia Act'," Ga. Laws 1974, pp. 1045-1097 (Ga. Code Ann. Ch. 32-6A).

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than on the basis of the attendance figures for the first four months of the past school year-as is currently called for (subject to certain "adjustments") under the soon-to-expire MFPE Act. 2 You also ask whether in the event of an affirmative answer to this initial question, the State Board of Education, in making its projections for average daily attendance during the first four months of the next school year, could use a formula similar to that recommended in the December 1973 "Report of the Minimum Foundation Program of Education Study Committee."
It is my opinion that the proper answer to both questions is "yes." Looking by way of background to the funding procedures under the MFPE Act, we find that the starting point for the calculation of funds to be allotted to a local school system for teachers' salaries was the pupils the system had in average daily attendance "during the first four months of the preceding school year." See Ga. Code Ann. 32-611. This base figure was subject to certain adjustments, most of which resulted in upwards rather than downwards mobility. To start with, if the average daily attendance in any one of the first four months was more than 15 percent lower than the average for the remaining three months, that month was disregarded and the calculation was made on the basis of the highest three of the first four months. Ga. Code Ann. 32-648. Under the "midterm adjustment" provisions of this same section of the MFPE Act the State Board of Education was required, "at least semiannually" during the school year, to increase the state allotment of MFPE funds in proportion to increases in enrollment and average daily attendance in a local unit during the school year-as reflected in the reports submitted by the local school system. Ga. Code Ann. 32-648.
The same provision expressly provided, however, that the "midterm adjustment" could not be used to reduce state fiscal support by reason of a decrease in the enrollment or average daily attendance during the school year. Ibid. The sole "adjustment" which did cut both ways, also set forth in Section 48 of the MFPE Act, was that provision which said that the State Board of Education should:
"determine the rate and percentage of increase or decrease in average daily attendance of pupils in the several local units of administration for the preceding five-year period, and shall adjust the initial allotments [based on the first four months of the preceding school year] ... so as to allot teachers ... for the next :fiscal year on the basis of the estimated average daily attendance

2 The MFPE (Minimum Foundation Program of Education Act), Ga. Laws 1964, pp. 3-49 (Ga. Code Ann. Ch. 32-6), under which state fiscal assistance has been extended to local school systems over the past decade, is repealed by APEG as of July 1, 1975, the effective date of the latter enactment.

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of pupils in the local unit during the next year." [Bracketed material inserted.] Ga. Code Ann. 32-648.
Under APEG, the General Assembly has abandoned both the starting point and the adjustment calculations of the MFPE Act (other than the "midterm adjustment" which is carried over substantially intact 3). While "teacher allotments" continue to be determined by the number of pupils in average daily attendance (see APEG Section 10; Ga. Code Ann. 32-610a), this figure is no longer based upon actual attendance during the first four months of the preceding school year, but must now be estimated or anticipated for the first four months of the coming school year. As stated in APEG Section 37 (Ga. Code Ann. 32-637a):
"The State Board of Education shall annually allot teachers to local units of administration as provided in section 10 [Ga. Code Ann. 32-610a]. Such allotment shall be based on proJected average daily attendance for the first four months of the school year made under rules adopted by the State Board of Education designed to project the average daily attendance for individual school systems, adjusted as provided for in section 42 of this Act [Ga. Code Ann. 32-642a, which carries forth the 'midterm adjustment' provisions of the MFPE Act substantially intact] ...." (Italic and bracketed material added.)
I do not believe that there can be any substantial question as to the fact that the word "project" is used here in its sense of thrusting forward into the future, and that it will no longer suffice to simply adopt the attendance figures of the preceding school year as was called for (with the adjustments indicated) by the soon-to-expire MFPE Act. Quite aside from the seemingly clear future connotation of the word "project" when used as a verb, it must be assumed that when the General Assembly makes significant alterations in its legislative treatment of a matter, it does so for a reason. If the General Assembly wanted to simply continue the old MFPE "teacher allotment" calculation procedures it obviously could have done so with much less effort than was required to develop an entirely new approach to the matter. In light of this I believe that the well recognized rules of construction that (1) words in a statute are in general to be accorded their everyday meaning (Ga. Code 102-102 (1) ), and (2) that one should look diligently for the intention of the General Assembly in making the statutory change (Ga. Code 102-102 (9) ), combine to evidence a direction from the General Assembly to the State Board of Education to calculate the anticipated or projected number of pupils which will be in average daily attendance in each local school system
3 See APEG Section 42 (Ga. Code Ann. 32-642a).

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during the first four months of the next school year. Presumably this was done to make the calculation more acutely and immediately responsive to significant changes in pupil enrollment and average daily attendance. See, e.g., Report of the Minimum Foundation Program of Education Study Committee, pp. 87-88 (Dec. 1973).
In calculating the anticipated average daily attendance figures for a future time period (i.e., the first four months of the next school year), it goes without saying that the State Board of Education cannot be expected to be infallible. The board does have flexibility in the matter, having been granted the authority to adopt such methods, procedures and rules for the calculation as it may deem appropriate. All that is required is that the means it selects to make the projection must be such as would be anticipated to produce at least some reasonable degree of accuracy. You ask whether the State Board of Education would be authorized to utilize the formulae recommended by the Minimum Foundation Program of Education Study Committee at pages 87-88 of its December 1973 report. While not pretending to be an expert in fiscal matters it would seem to me that these formulae, which would appear to quickly reflect even significant yearly variations in average daily attendance, could be expected to produce a reasonable degree of accuracy in projecting the anticipated average daily attendance for the first four months of the coming school year. Hence it is my opinion that the State Board of Education may properly use these committee recommended formulae. As already indicated, however, it is not required to do so since it is legally authorized to select whatever calculation procedure it desires so long as the procedure it does select can reasonably be said to be likely to produce a reasonable degree of accuracy.

OPINION 74-155

To: State Superintendent of Schools

December 14, 1974

Re: Neither state nor local school funds may be used to provide lunches for children not enrolled in the public school program. No direct provision of law prohibits a local school system from providing school lunches for children not enrolled in the public school program, assuming full reimbursement is made to the school system for expenses incurred in the providing of such service.
You have requested my opinion as to the propriety of certain expenditures to be made from local and state school funds. The following questions form the basis of your inquiry:
(1) May local and/or state school funds be used to provide lunches for children not enrolled in the public school system?

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(2) Assuming full reimbursement is made to the school system for expenses incurred in providing school lunches for children not enrolled in the public school program, may a local school system provide such a service?
In the first instance you have mentioned, it is my opinion that neither state nor local school funds may be used for providing lunches for children not enrolled in the public school program. The use of common school funds has long been restricted to " ... educational purposes and none other." See Ga. Const., Art. VII, Sec. II, Par. I (Ga. Code Ann. 2-5501), and Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702); Ga. Laws 1969, p. 721 (Ga. Code Ann. 32-942). Obviously, where constitutional and statutory exceptions to this rule do not exist, an educational purpose must support each expenditure from the common school fund. The expenditures you propose cannot be founded on either of these two bases.
The parameter of the expression "for educational purposes" has been the subject of no small amount of conjecture. While the Supreme Court of Georgia has specifically stated that the expression is to be given the broadest significance (Worth v. Board of Education, 177 Ga. 166, 175 (1933) ), and has indicated that the terms are " . . . broad enough to cover all things necessary or incidental to the furtherance of education ...." (Board of Com'rs of Roads and Revenues of Twiggs County v. Bond, 203 Ga. 558 (1948) ), the scope of educational purposes has not been enlarged to i,nclude any measure that may simply be of assistance to a program of education. The limitation was recognized by the Georgia Supreme Court in Wright v. Absalom, 224 Ga. 6 (1968), in which the use of common school funds in support of a school lunch program was determined not to be for educational purposes. It is very significant that in so ruling, the court reasons that a school lunch program did not meet the aforementioned "necessary or incidental to the furtherance of education" test.
Accordingly, it would seem that if a school lunch program for public school students was not authorized, absent a specific constitutional exception to the educational purposes limitation, there could be no justification for a school lunch program for nonpupils, absent additional constitutional authorization. Subsequent to the decision rendered in Wright v. Absalom, supra, an amendment to the Georgia Constitution allowing the use of state funds for "school lunch purposes" was ratified. Ga. Const., Art. VII, Sec. I, Par. I (Ga. Code Ann. 2-5501 (11) ). A similar amendment allowing use of county funds for school lunches was ratified in 1966 and provides for taxation and expenditure of county tax funds for public purposes, including the provision of:
" ... support and maintenance of public schools, public educa-

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tion, and activities necessary and incidental thereto, including school lunches ...." Ga. Const., Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702 (14) ).
These constitutional mandates expressly permit the utilization of state and local funds for the establishment of lunch programs in the public schools. These lunch programs are to be in support of the public schools and the students attending those public schools. There is no language indicating an expansion of this program to nonstudents, and considering the Supreme Court's conclusion in Wright v. Absalom, supra, that eating is not education, I would seriously doubt that feeding of nonpublic school students could be considered a public educational concept. Considering the restrictive tenor of the judicial language used in that decision and the somewhat exclusive nature of "educational purpose," it is my opinion that state and local common school funds may not be expended to provide lunch for those students not actually attending public schools.
Your second question poses an inquiry more difficult to respond to in terms of legal authority. The function of the local boards of education and school superintendents is to provide for the government of their respective school systems. Ga. Laws 1919, p. 288, as amended (Ga. Code Ann. 32-912). The problems and objective of the local public school system is to provide quality educational opportunity and instruction for the youth attending accredited public schools. Ga. Const., Art. VIII, Sec. I, Par. I (Ga. Code Ann. 2-6401); Ga. Laws 1964, pp. 3, 6 (Ga. Code Ann. 32-602). The programs initiated by the local school system and board must necessarily project to this end, whether of a direct or incidental nature, or of statutory or constitutional inception.
\Vhile the provision of lunches for nonpublic school students may not be within the realm of educational functions to be performed by local school systems as envisioned by the current framework of the laws of this state, such action is not prohibited by law and there may be possible advantages to the community to be derived therefrom. In this connection, a local board of education may permit school property and facilities to be used by other public or private agencies when the usage doesn't interfere with regular school operations. See, e.g., Op. Att'y Gen. 65-88 (use of schools as polling places); Ops. Att'y Gen. 1963-65, p. 401 (use of classrooms by private teachers for private lessons). See also, e.g., 78 C.J.S. Schools and School Districts, 259 (b) (2).
There may be some administrative inconvenience in the computation of an appropriate reimbursement, should the local school system elect to provide a noneducational service or to make available any of its facilities for such services, but this may factually be accomplished

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by the consideration of such factors as personnel salaries, capital outlay funds, inventory costs, and other incidental costs. I must conclude, therefore, that there is no direct provision of law which prohibits a local school system from providing school lunches for children not enrolled in the public school program, assuming full reimbursement is made to the school system for expenses incurred in the providing of such service.

OPINION 74-156

To: Commissioner, Department of Agriculture

December 18, 1974

Re: A state senator in the private practice of veterinary medicine may be retained by the Department of Agriculture to perform meat inspections.

This is in response to your request for an official opinion concerning the question of whether a state senator-elect who is a veterinarian may continue to work as a meat inspector for the Department of Agriculture after taking office. You have informed me that the senatorelect is not employed by the department but maintains a private practice of veterinary medicine and is on call by the department when needed for meat inspections. For the following reasons, it is my official opinion that he may continue to be retained by the department on this basis subsequent to taking office.
Georgia Code Ann. 26-2309, which enforces the separation of powers provision of the Georgia Constitution, provides, in part:
"It shall be unlawful for (a) members of the General Assembly to accept or hold office or employment in the executive branch of State Government, or any agency thereof. ... A person who knowingly disburses or receives any compensation or money in violation of this section is guilty of a misdemeanor...." Ga. Laws 1968, pp. 1249, 1309.
However, under the department's arrangement with this senatorelect, he is neither an officer or employee of your department so that Code 26-2309 is not applicable.
Nor does the Honesty in Government Act, Ga. Laws 1956, p. 60, prohibit this particular arrangement between the senator-elect and your department. Section 1 (Code Ann. 89-913) provides:
"It shall be unlawful for any full-time appointive state official or employee to contract to buy from or sell to the state any real or

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personal property, goods or services, or a combination thereof, when such purchase or sale would benefit, or be likely to benefit, such an official or employee."
Since a senator is neither a full-time appointive official or employee, this section also is not applicable.
Finally, I am unaware of any other provision of law which would require discontinuance of the existing relationship between your department and the senator-elect upon his taking office. Therefore, it is my official opinion that a state senator, in the private practice of veterinary medicine, may be retained by the Department of Agriculture to perform meat inspections.

OPINION 74-157

To: Commissioner, Department of Corrections/Offender Rehabilitation

December 18, 1974

Re: In certain described circumstances the Georgia Correctional Industries Administration may be authorized to sell prisoner-made products to factories for the blind located in other states.

This is written in response to your recent request for my opinion on the legal ramifications of the anticipated sale of prisoner-made goods by the Georgia Correctional Industries Administration to factories for the blind located in various states other than Georgia.
Ga. Code Ann. Ch. 77-9 establishes the Georgia Correctional Industries Administration and sets forth its powers. Under Ga. Code Ann. 77-904 the general powers of the administration are enumerated. Subsection (d) of that section provides that: "The administration shall have the same powers and authority as now possessed by the State Board of Corrections in connection with the manufacture and sale of products...." Ga. Laws 1960, p. 880; 1968, p. 1011; 1973, p. 1300.
Ga. Code Ann. Ch. 77-3 deals with the powers of the State Board of Corrections regarding the control and disposition of prisoners. Ga. Code Ann. 77-318 specifically sets forth the limitations on the sale of goods produced by inmates of prisons or public works camps.! Subsection (b) of this Code section provides:
"No goods, wares or merchandise, manufactured, produced, or mined wholly or in part by the inmates of any prison or county correctional institution [public works camp] operated under the jurisdiction of the State Board of Corrections shall be sold in

1 "County correctional institutions" have been substituted for "public works camps" by Ga. Laws 1972, p. 838 (see Ga. Code Ann. 77-312.1).

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this state to any private person, firm, association or corporation, except that nothing herein shall be construed to forbid the sale of such goods or merchandise to other political subdivisions, public authorities, municipalities or agencies of the state or local governments, to be consumed by them, or to the agencies of the state to be in turn sold by such agency to the public in the performance of such agency's duties as required by law. This does not prohibit the sales of unprocessed agricultural products produced on state property." Ga. Laws 1956, p. 161, as amended.
There are no expressed prohibitions in this Code section against sales to buyers located outside the State of Georgia. Furthermore, even a prohibition against sales to private persons, firms or corporations outside of the state cannot be gleaned from the wording of this statute. See my opinion dated September 29, 1967, Op. Att'y Gen. 67-349, a copy of which is attached for your reference.
At this point a federal criminal provision should be noted. 18 U.S.C. 1761 provides in part as follows:
"(a) Whoever knowingly transports in interstate commerce ... any goods, wares, or merchandise manufactured, produced, or mined, wholly or in part by convicts or prisoners, except convicts or prisoners on parole or probation, or in any penal or reformatory institution, shall be fined not more than $1,000 or imprisoned not more than one year, or both.
"(b) This chapter shall not apply to ... commodities manufactured in a federal, District of Columbia, or state institution for use by the Federal Government, or by the District of Columbia, or by any state or political subdivision of a state."
The Supreme Court of the United States in Kentucky Whip & Collar Co. v. Illinois Central Railroad Co., 299 U.S. 334 (1936), has stated that the purpose of the type statute quoted above is to prevent competition in the open market of convict-made goods with the products of free labor and free enterprise. The court noted that at that time (1936) 21 states had laws prohibiting the sale of convict-manufactured goods within the respective states.
The above-quoted federal statute, by its part (b), appears not to apply to prisoner-made goods which were made in a state institution to be sold to a state or political subdivision of another state. Ga. Code Ann. 99-805 (amended by Ga. Laws 1960, p. 172) provides that the Georgia Factory for the Blind is a state institution. Thus, if you desire to sell to a factory for the blind which was similarly created as the Georgia Factory for the Blind, the federal criminal statute quoted above would not be applicable. Of course, any factory for the blind in another state wishing to retail products of the Georgia Correctional

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Industries Administration would need to determine whether the local state law prohibited the sale of prisoner-manufactured goods.
You have inquired as to the tax consequences of the type sale you described in your letter. Regardless of whether or not the Georgia Correctional Industries Administration would be exempt from Georgia sales and use tax as a purchaser, it would have certain duties and responsibilities as a seller (dealer). See Ga. Code Ann. 92-3415a. While it appears that you envision engaging in exempt sale-for-resale transactions (see Ga. Code Ann. 92-3402a and 92-3403a C (1) ), you should contact the Sales and Use Tax Unit of the State Department of Revenue concerning your administrative duties and responsibilities as a dealer. (Ga. Code Ann. Ch. 92-34A sections herein are based on Ga. Laws 1951, p. 360, as amended.)
You mention in your request for my opinion that there is a "remote possibility" of the Georgia Correctional Industries Administration desiring to make sales of its products to foreign countries. At such time as you can determine to which country you wish to make such a sale and when the sale becomes something more than a "remote possibility," I will be able to give you an opinion as to the legal consequences of such a contemplated action.

OPINION 74-158

To: Commissioner, Department of Agriculture

December 26, 1974

Re: State funds appropriated by a state agency from the Governor's emergency fund may be utilized for improvements to real estate held by the State of Georgia in fee simple, but may not be used for such improvements to real property owned by individual counties. The expenditures for improvements to state-owned property must be consistent with and authorized by the enumerated powers of the governmental agency proposing the improvements.

This is in response to your inquiry as to the legality of the use of state funds transferred to the Department of Agriculture from the Governor's emergency fund for two different purposes:
(1) To construct a livestock arena on county property, and
(2) To complete a livestock facility at the State FFA-FHA camp.
For the reasons to be discussed subsequently, it is my opinion that state funds may not be used for either of the purposes you propose.
Georgia Laws 1961, p. 47, as amended (Ga. Code Ann. 91-117), specifical1y provides that:

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"Any real estate held by the State of Georgia in fee simple or under a quitclaim deed with a reversionary interest in the Federal Government or under a long term federal license with a reversionary interest in the Federal Government may be improved with funds appropriated for a state department ..."
Accordingly, this office has opined on many occasions that state funds may not be used for such purposes when the state does not hold one of the three proprietary interests set forth in the statutory language. See Ops. Att'y Gen. 73-30, 69-203, 69-311, 67-298. Necessarily, this determination must result where the real property in question is owned by a county. See Op. Att'y Gen. 73-122. As the construction contemplated on county property involves the initial building of a large permanent structure, there can be no question that the activity is an improvement to the real property. Ops. Att'y Gen. 1962, p. 398. The obvious conclusion is that an expenditure of state funds for that construction is not authorized by the laws of this state.
In the second situation you describe, I understand that the land upon which the FFA-FHA camp is established is held in fee simple by the State of Georgia. Therefore, the improvement of the land is not expressly precluded by the provisions of Ga. Laws 1961, p. 47, as amended. However, the funds for that improvement may be transferred from the Governor's emergency fund to the Department of Agriculture, as a state agency within the purview of Ga. Laws 1962, pp. 17, 25 (Ga. Code Ann. 40-408), and expended by the department only if the use of the funds is consistent with and authorized by the enumerated powers of the Department of Agriculture. Ops. Att'y Gen. 72-150, 69-51.
For a determination as to the propriety of the use of Agriculture Department funds, I would necessarily require additional information concerning the nature of the "State FFA" and its relationship to the Georgia Department of Agriculture. This pertinent information would have to include the purposes for which the land in question is utilized. At present, there is insufficient factual data on which a determination of the authority of the expenditure may be based.

335
UNOFFICIAL OPINIONS of
THE ATTORNEY GENERAL 1974

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UNOFFICIAL OPINION U74-1

To: Judge of Superior Court

January 2, 1974

Re: The judge of a superior court has the authority to appoint a reporter for his court and to employ a secretary for his office. There is nothing in the law of Georgia which would prohibit him from appointing the same person to fill these two positions, provided that the person so appointed had the qualifications necessary for each position.
This is in response to your letter of December 6, 1973, requesting my opinion as to whether the secretary which you had employed for your office could also be appointed by you to be the reporter for your court.
Georgia Laws 1972, p. 617 (Ga. Code Ann. 24-2931), authorizes each superior court judge in the State of Georgia to employ a secretary and, further, allows the appointing judge to determine the secretary's qualifications, duties and, within certain limits, salary. Nothing in this Act prevents any secretary so appointed from obtaining any other employment which would not conflict with her duties as secretary to the appointing judge.
Georgia Code (1933) 24-3101 allows the judge of each superior court, among other things, to appoint a reporter for his court. That Code section delineates the duties of the reporter and does not indicate that the court reporter may not accept other employment which does not conflict with his duties as court reporter.
While there are statutes which prohibit public officials from holding multiple posts in certain situations (see Ga. Code (1933) 89-101, 89-103), none of these provisions would apply to a court reporter, since the court reporter is not a public official and, by the same token, they would not apply to the secretary of a superior court judge.
Therefore, it is my unofficial opinion that there is nothing to prohibit you from appointing a person to the position of reporter for your court and also employing that same person as your secretary.

UNOFFICIAL OPINION U74-2

To: State Senator

January 2, 1974

Re: State law does not govern the establishment of branch offices of a Federal Savings and Loan Association.

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This is in reply to your request for an unofficial opinion as to whether Georgia law prohibits the establishment by a federal savings and loan association of a branch office 290 miles distant from its home office.
State law has no voice upon the subject and whether a branch office so described shall be permitted is vested exclusively in the discretion of the Federal Home Loan Bank Board. Ga. Code (1933) Ch. 13-2, as amended; Bridgeport Federal Savings & Loan Ass'n v. Federal Home Loan Bank Board, 307 F.2d 580 (3rd Cir. 1962), cert. denied, 371 U.S. 950; Springfield Inst. for Savings v. Worcester Federal Savings & Loan Ass'n, 329 Mass. 184, 107 N.E.2d 315 (1952); 12 U.S.C.A. 1464 (c).

UNOFFICIAL OPINION U74-3

To: State Records Management Officer, Department of Archives and History

January 9, 1974

Re: Records disposition; certain traffic and driver's license records of Department of Public Safety may be scheduled for disposition under the Georgia Records Act.

You have asked for advice concerning a possible conflict between the Georgia Records Act (Ga. Code Ann. Ch. 40-8C) and a provision of Georgia law requiring the Department of Public Safety to maintain a permanent record of certain material.
The public safety law referred to is as follows:
"The Department of Public Safety shall file each ... application for (driver's) license received in a permanent file ... and shall maintain permanent records of
"(1) Each application received, with name and number;
"(2) A duplicate of all licenses granted;
"(3) A complete file of all licenses suspended, revoked or canceled, with the reasons therefor, and a record if such license is renewed;
"(4) A record of all prosecutions made, of accidents in which the holder of the license may be involved, and such other information as may enable said department to effectively enforce this Act." Ga. Laws 1937, pp. 322, 350 (Ga. Code Ann. 92A-429) (hereinafter "Section 429").
The issue you have raised is whether this language prevents the Department of Public Safety from scheduling a Section 429 item for storage and possible destruction under procedures of the Georgia Records Act. This Act requires each state agency to recommend a disposition standard for each record series in its custody. Ga. Laws

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1972, pp. 1267, 1270, as amended (Ga. Code Ann. 40-805c (e)). These standards are reviewed for approval by the State Records Committee, consisting of the Governor, Attorney General, and the State Auditor. Ga. Laws 1972, pp. 1267, 1268 (Ga. Code Ann. 40-803c).
These required procedures are substantially similar to the permissive procedures allowed under the earlier records law. Ga. Laws 1943, p. 468 (former Ga. Code Ann. 40-809, 40-810). This Act was the subject of two opinions of the Attorney General which recently dealt with similar situations for the Board of Pardons and Paroles. As applied to the current problem, these opinions suggest that the Department of Public Safety may not unilaterally destroy Section 429 records but may implement disposition standards for them approved by the State Records Committee. Ops. Att'y Gen. 71-196, 70-26. Except as qualified below, I believe that this is the case, i.e., that Section 429 items may be scheduled for disposition.
The Georgia Records Act, of course, is not intended "to compel the removal of records deemed necessary by (agency heads) in the performance of their statutory duties." Ga. Laws 1972, pp. 1267, 1270 (Ga. Code Ann. 40-806c); Op. Att'y Gen. 72-89. This is, of course, a discretionary decision for the agency head. It is also the duty of each state agency to preserve records documenting the "essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities." Ga. Laws 1972, pp. 1267, 1269 (Ga. Code Ann. 40-805c (a)); Op. Att'y Gen. 72-175.
I have found no statutory reason to believe that individual members of the public have a right to have the Department of Public Safety maintain permanent files of Section 429 items. Section 429 itself speaks only in terms of such "information as may enable said department to effectively enforce [Ga. Laws 1937, p. 322]." In other words, the requirement of permanence is for the department's own purposes.
While the public may sometimes have access to certain 429 items, the applicable laws give no indication that 429 records must be maintained permanently for that reason. See Ga. Laws 1951, pp. 565, 567, as amended (Ga. Code Ann. 92A-603); Ga. Laws 1952, p. 290 (Ga. Code Ann. 92A-128); Ops. Att'y Gen. 1958-1959, p. 332; 1952-1953, p. 245. Even if available, any reports made for purposes of the safety responsibility laws would be inadmissible in a private, civil suit for damages. Ga. Laws 1951, pp. 565, 574 (Ga. Code Ann. 92A-612). For any file, the most obvious courtroom need would involve auto accident cases, where most causes of action probably would have expired in at least four years. Ga. Code 3-1002, 3-1004, Code of 1933, as amended.
While some 429 items do have a possible role as information for

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law officers, this would not prevent their scheduling for disposition. See e.g., Ga. Laws 1937, pp. 322, 351, as amended (Ga. Code Ann. 92A-431).
In terms of the department's own activities, a record of drivers license revocations is pertinent because three such revocations over any period of time prevent early reinstatement of the drivers license. Ga. Laws 1951, pp. 565, 571, as amended (Ga. Code Ann. 92A-608). A record of traffic violations for the past 18 months has a role in implementing the Georgia point system of license suspension and revocation. Ga. Laws 1968, pp. 430,431 (Ga. Code Ann. 92A-445). The analogous period of time during which offenses accumulate under the habitual violator provisions is 10 years. Ga. Laws 1972, pp. 1086, 1087 (Ga. Code Ann. 92A-456).
Accident reports do not appear to be involved in any long-term statutory requirements. Their immediate use is in determining, in administrative and judicial proceedings, whether a security deposit is required under the safety responsibility laws. Ga. Laws 1951, pp. 565, 568, as amended (Ga. Code Ann. 92A-604); see Bell v. Burson, 402
u.s. 535 (1971).
As you will note, only revocations are significant for an indefinite period of time. I can find no statutory reason for requiring the department to maintain Section 429 items indefinitely, although the commissioner may determine that they are necessary to performance of agency duties. Even as to revocations, at some point in time, the commissioner might properly determine that a record of revocation is so old that its enforcement role is practically nil.
My unofficial opinion then is that the Department of Public Safety may implement records disposition standards for items described in laws codified at Georgia Code Ann. 92A-429, if those standards were promulgated under the Georgia Records Act or its predecessors. I emphasize, however, that in preparing this unofficial opinion, I was concerned with application of the Georgia Records Act only in this one, narrow situation.
UNOFFICIAL OPINION U74-4

To: Representative, District 89, Post 6

January 10, 1974

Re: A referendum held by the City of Macon is insufficient to exempt the water system of the Macon-Bibb County vVater and Sewerage Authority from the provisions of the Fluoridation Act of 1973.

Your recent letter requests my opinion on two issues dealing with the Macon-Bibb County Water and Sewerage Authority. These questions will be dealt with in the order in which they were presented in your letter.

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1. You state that the City of Macon held a referendum in November 1973, in which the City of Macon voted to exempt itself from the operation of the Fluoridation Act of 1973. You question whether the referendum of the City of Macon is effective to resolve the question of fluoridation of the water system of the Macon-Bibb County Water and Sewerage Authority.
In 1973 the General Assembly enacted the Macon-Bibb County Water and Sewerage Authority Act (Ga. Laws 1973, p. 2603). This Act gave the authority broad powers "to secure for Bibb County a satisfactory and reliable water and sewerage system at the most reasonable cost possible." I understand from your letter that the MaconBibb County Water and Sewerage Authority is presently operating a water system which services the residents of Bibb County, including the residents of the City of Macon.
The Fluoridation Act of 1973 (Ga. Laws 1973, p. 148; Ga. Code Ann. 88-2603, 88-2603.1, 88-2603.2) authorized the state to require incorporated communities to fluoridate their public water supplies. The Act further provides as follows:
"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."
In the context of a water system which operates county-wide, it seems clear that the political subdivision referred to in the Act must in that case be the county, rather than a municipality within the county. Thus it is my unofficial opinion that a referendum held only within the City of Macon is insufficient to exempt the water system of the Macon-Bibb County Water and Sewerage Authority from the operation of the Fluoridation Act of 1973.
2. Your second question deals with the rates charged by the MaconBibb County Water and Sewerage Authority. You state that the authority is charging a higher rate to those living outside the City of Macon than to residents of Macon. You question whether this rate differential is legal.
The Macon-Bibb County Water and Sewerage Authority Act of 1973 gives the Authority the following power with regard to rates:
"[T]o fix from time to time the rates to be charged for water and sewerage service and to classify said rates in a reasonable manner, including, but not limited to the designation of small, intermediate and large consumers, and industrial, commercial and residential consumers; and to fix from time to time the rates to be charged for sewer services with the right to make reasonable classifications

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of said rates including, but not limited to, the designation of small, intermediate and large users, and industrial, commercial and residential users and according to biological oxygen demand of sewerage of users." (Sec. 9, at 2610-11.)
The rates charged to water-sewer consumers thus must be reasonable under all the circumstances. A thorough examination of the facts involved would be required to make any judgment as to the reasonableness of the rates charged by the authority, and therefore I am unable to give you any opinion as to the legality of the differing rates.

UNOFFICIAL OPINION U74-5

To: City Attorney, City of Cartersville

January 14, 1974

Re: A leasehold interest held by a private corporation does not attain tax exempt status through operation of Ga. Laws 1969, pp. 137, 144 (Ga. Code Ann. 69-1510).

Your request for an unofficial opinion asks whether or not a leasehold interest created by a lease agreement between a development authority and a private corporation is taxable for ad valorem tax purposes.
In Op. Att'y Gen. 67-280 (unofficial), it was pointed out that the question of taxability depends upon whether the lease agreement creates an estate for years, which is subject to ad valorem taxation (Delta Air Lines, Inc. v. Coleman, 219 Ga. 12, 131 S.E.2d 768 (1963)), or only a usufruct, which is not subject to ad valorem taxation (Henson v. Airways Service, Inc., 220 Ga. 44, 136 S.E.2d 747 (1964)). Thisis a factual question which necessarily must be decided by local taxing authorities.
The exemption from ad valorem taxation found in Ga. Laws 1969, pp. 137, 144 (hereinafter cited as "Ga. Code Ann. 69-1510"), applies only to a development authority created pursuant to Art. VII, Sec. VII, Par. V-A of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-6005.1). Georgia Code Ann. 69-1510 states that the "Authority shall be required to pay no taxes or assessments imposed...."
As pointed out by the court in Delta Air Lines, Inc. v. Coleman, supra, at page 16, several separate and distinct estates in a parcel of land can exist. The authority, therefore, is not required to pay any ad valorem taxes on the estates held by it, but the exemption contained in Ga. Code Ann. 69-1510 does not extend to other estates held by any other entity.

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It is, therefore, my unofficial opinion that while a development authority is not required to pay any ad valorem taxes on any estate it holds, an estate in property held by another entity is not exempt from ad valorem taxation under the provisions of Ga. Code Ann. 69-1510.

UNOFFICIAL OPINION U74-6

To: Clerk, Superior Court of Sumter County

January 22, 1974

Re: The district attorney and the state court solicitor are the persons who are charged with the collecting and distributing of fines levied by the Superior and State Courts of Sumter County. Further, it is not proper to have a defendant enter a plea prior to the issuance of an accusation in the matter in which he is entering the plea.

This is in reply to your letter requesting our opinion on the two following questions:
1. Who has the responsibility to collect and disburse fines assessed by the Superior and State Courts of Sumter County?
2. Can a defendant in a case before the State Court for which an accusation is to be entered appear before the court and enter a plea prior to the accusation being drawn?
With regard to the collection and disbursement of fines assessed by the superior court of your county, Ga. Code (1933) 24-2908, which relates to the duties of district attorneys, contains the following prOVISIOn:
"The duties of the district attorneys within their respective circuits are-
* * *
"7. To collect all monies arising from fines and forfeited recognizance, all costs in criminal cases when paid into court before judgment, and not otherwise; and at the fall term of each court, every year, to settle with the county treasurer, and pay over to him all monies due him according to law, after a fair and full settlement."
This is also supported by Ga. Code (1933) 27-2903, which reads as follows:
"All monies arising from such fines and forfeitures shall be, at each term of the court, distributed by the [district attorney], under order of the court, to such persons and according to the

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priorities now prescribed by law; and on his failure to do so, he shall be subject to a rule at the instance of any party aggrieved."
The only provision of the law which casts some doubt upon the two provisions cited above is Ga. Code (1933) 27-2902, which reads in part as follows:
"The officers of the several courts, including the prosecuting officers, shall pay into the county treasury of the county where said court is held all monies arising from fines and forfeitures by them collected...."
This last section seems to indicate that other officers besides the district attorney can collect fines, but nowhere in the Code is any other officer of the court charged with that responsibility.
With respect to the State Court, which was formerly the City Court of Americus, having jurisdiction over the entire County of Sumter, the Act of the legislature which created the court indicates fines may be disposed of in the following manner:
" ... (a) 11 fines and forfeitures arising from cases tried on accusation in said city court shall be distributed by the solicitor of said city court under the same rules and regulations as now or may hereafter govern the distribution of fines and forfeitures in the superior court by the solicitor general." Ga. Laws 1900, pp. 93, 103.
While that provision relates solely to the distribution of the fines collected by the state court, it appears from the Act that the laws regulating the practice, procedure and enforcement of judgments in the superior court of the county shall apply equally to the state court. See, e.g., Ga. Laws 1900, pp. 93, 99. Since the district attorney is charged with the collection of the fines in the superior court, it seems by analogy that the solicitor of the state court would be charged with that responsibility, subject to the same qualification that there is some authority in the Code, however indefinite, that other officers of the court may collect fines.
With respect to the second question, it is clear from Georgia Laws 1900, p. 93, that a criminal suit may be initiated by a written accusation founded on an affidavit made by the prosecutor. In your request, you inquired as to whether a person could be arraigned and enter a plea of guilty prior to the execution of the accusation. Section 30 of the Act which created the City Court of Americus, now the State Court of Sumter County (Ga. Laws 1900, p. 93), sets forth the procedure which must be followed in the trial of one accused of some offense which is triable by the State Court of Sumter County. The procedure which that Act requires involves the drawing of an accusation and the

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filing of the ae:cusation with the clerk of the court prior to the arrest and arraignment of the defendant. Therefore, it seems clear that the procedure which is outlined in the Act creating the court requires that an accusation be drawn before the defendant is arraigned, and therefore it would seem improper to have the defendant appear in court and plead guilty, and then have the accusation drawn and filed with the clerk.
Therefore, in response to your questions, it is my unofficial opinion that the district attorney and the state court solicitor are ultimately charged with the responsibility of collecting and distributing the fines levied by their respective courts, and it is also my unofficial opinion that where the state court solicitor elects to proceed by an accusation, such accusation must be written and filed with the clerk of the court before the defendant can be arraigned before the court.

UNOFFICIAL OPINION U74-7

To: District Attorney, Stone Mountain Judicial Circuit

January 22, 1974

Re: Costs in peace warrant proceedings are payable upon return of the proceedings to the superior court which has responsibility for assessment of the costs. Peace warrant proceedings must be returned to the superior court of the county in which the warrant was issued. Under the decision in Levar v. State, 103 Ga. 42 (1897), collection of costs in a peace warrant proceeding which was never returned to the superior court for disposition would be a violation of Ga. Code 89-9909 and a misdemeanor.

This is in response to your recent letter raising several questions about the payment of costs in peace warrant proceedings.
You first ask the question of when costs become payable in peace warrant proceedings and who is responsible for the setting of the costs. Several previous opinions of this office have considered this question. Ops. Att'y Gen. 1958-59, pp. 56-58; U70-181.
As noted in those opinions, the Georgia Supreme Court has held that in peace warrant proceedings costs cannot be collected until the proceedings have been returned to and passed upon by the superior court. Levar v. State, 103 Ga. 42 (1897). The Levar decision also stated:
"(1) that it is the duty of justices of the peace to return all peace bonds taken by them to the superior court; (2) that the question as to who shall pay the costs therein is to be determined by the judge of the superior court, after proper investigation into the

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merits of the case; and (3) that the amount of the costs to be taxed in these cases as due to magistrates and constables is to be arrived at by reference to the fee-bills prescribing their compensation in criminal cases." I d. at 48.

Under Levar holding, the costs do not become payable until the peace warrant proceedings are returned to and heard by the superior court, and the superior court has the responsibility of determining who shall pay the costs. As discussed in Op. Att'y Gen. U70-181, Ga. Code (1933) 27-421 provides that when a warrant is returned to the superior court from a justice of the peace court, the justice of the peace shall make out a bill of costs and forward it to the superior court with the other papers in the case. This statute further provides that such costs are taxed and collected along with the other costs accrued in the case.
Your next question is whether peace warrant proceedings must be returned to the superior court of the county in which the peace warrant was issued. While I am unable to find any express requirement that the return must be made to the superior court of the county in which the warrant was issued, such a requirement would appear to exist by implication.
Ga. Code (1933) 76-101, which provides for issuance of bonds for good behavior, refers to a bond required "until the next term of the superior court of the county." Additionally, Ga. Code (1933) 76-103 provides for automatic expiration of a behavior bond if it is not extended within the term of the superior court. Despite the absence of an express statutory provision that a peace bond shall expire unless extended by the superior court, it has been held that "unless discharged or extended by the court, a peace bond must and does expire automatically like a good behavior bond." Dukes v. Dukes, 119 Ga. App. 842, 843 (1969).
Under the ratjonale of the Dukes case, the reference in Code 76-101 to "the next term of the superior court of the county" would appear to apply also to peace bond proceedings. Moreover, return of the proceedings to the superior court of the county in which the peace warrant was issued is apparently the result contemplated by the language of the cases. The requirement that the proceedings be returned to the "next term of the superior court" clearly implies that the return shall be to the superior court of the county where the warrant was issued. Stephens v. Wallis, 75 Ga. 726, 727 (1885); Dukes v. Dukes, supra, 843-44.
For these reasons, it is my unofficial opinion that the proceedings in a peace warrant case must be returned to the superior court of the county in which the warrant was issued.
The final question raised in your letter is whether there is "a violation of the criminal law if costs in a peace warrant proceeding are

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collected and the proceedings in said matter are never returned to the superior court and acted upon by the presiding judge?"
In the Levar case the defendant was a constable who had "under color of his office, exacted from one Rosa Patterson, of whom a bond to keep the peace had been required, the costs alleged to be due to the magistrate and to himself upon the peace warrant." Levar v. State, 103 Ga. 42, 48 (1897). The costs had been collected before the proceedings were returned to the superior court. Rejecting the defense of good faith, the court affirmed the conviction of the constable, holding that he was guilty of extortion as defined in 298 of the Penal Code. I d. at 48, 49.
The statute under which the defendant in Levar was convicted is found in Ga. Code (1933) 89-9909. This statute provides that:
"Extortion shall consist in unlawfully taking by a public officer under color of his office, from any person, any money or thing of value that is not due to him, or more than is due."
The only variation in language from the statute construed in Levar is the substitution of the phrase "unlawfully taking by a public officer under color of his office" for the phrase "any public officer's unlawfully taking, by color of his office," as found in 298 of the Penal Code of 1895. Ga. Code 89-9910 provides that any public officer who is guilty of extortion shall be punished as for a misdemeanor and shall be dismissed from office.
I am unaware of any reason why Ga. Code 89-9909 and 89-9910 are not valid and of full force. Accordingly, under the decision in the Levar case, the collection of costs in a peace warrant proceeding which is never returned to the superior court would be a violation of these statutes and a misdemeanor.

UNOFFICIAL OPINION U74-8

[The conclusions and observations expressed in this opmton should be considered in conjunction with a later opinion issued to the Firemen's Pension Fund under date of June 19, 1974
(U74-53).]

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

January 25, 1974

Re: Volunteer firemen may not receive credit under the Georgia Firemen's Pension Fund for calendar years of service in which they did not attend 75 percent of all drills, meetings and fires.

This responds to your letter requesting an opinion on the construction of one aspect of the law defining volunteer firemen. You advise

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you are concerned that certain retired volunteer firemen are drawing benefits from the Firemen's Pension Fund without being so entitled.
As I understand the situation, based on information provided by you, there are a number of "retired" volunteer firemen presently being paid retirement benefits from the fund whose eligibility to do so you question. It has recently come to the attention of your board of trustees that these volunteers don't, in fact, have the requisite number of years of service for retirement under the "75 percent requirement." This has been ascertained after a review and evaluation of the fund's records as to the creditable service of all members of the fund.
The "75 percent requirement" you mention is actually a portion of the definition of "volunteer firemen" for fund purposes. Essentially, to be eligible to retire under the provisions of the Firemen's Pension Fund, a volunteer must qualify under the statutory definition, and for the required number of years of service (among other conditions not relevant here). Ga. Laws 1955, p. 339 et seq., as amended (Ga. Code Ann. 78-1001 (2) and 78-1007, as amended); Op. Att'y Gen. U73-79. The definition of "volunteer firemen" includes the requirement that, to be classified as a volunteer for fund retirement purposes, an individual must attend" ... not less than 75 percent of all drills, meetings, and fires in every calendar year (for which he claims credit)." (Parenthetical matter added.) Ga. Laws 1955, p. 339 et seq., as amended (Ga. Code Ann. 78-1001 (2)).
The Firemen's Pension Fund Act states that at a certain age, and after requisite service, any eligible fireman or volunteer fireman shall, upon application, be retired at a specified rate of benefits. Ga. Laws 1955, supra (Ga. Code Ann. 78-1007), both as amended. The term "volunteer firemen," wherever used in the Act, is required to carry its statutory definition. Ga. Code Ann. 78-1001. Eligibility for retirement and benefits under the fund can only follow definitional conformity. ':Vhere a statute is clear and plain, it should be held to mean what has been clearly expressed. Barnes v. Carter, 120 Ga. 895 (1904).
At this juncture, it should be noted that the Act appears to allow some flexibility in the "75 percent requirement." It provides in pertinent part:
" ... the board of trustees of said fund is hereby authorized and empowered to pass upon and determine the eligibility for membership in the fund of any volunteer fireman who, for providential or other cause beyond his control, is unable to attend 75 percent of all drills, meetings and fires in a calendar year." (Ga. Laws 1961, p. 417 (Ga. Code Ann 78-1021)).
I have read this section closely. In my judgment, it applies only to membership in the fund, as it states, and not retirement under the fund.

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This section would allow the board to permit an individual to join the fund as a volunteer fireman who, for " ... providential or other cause beyond his control ..." will not be able to attend 75 percent of the drills, meetings and fires in a calendar year. It would not operate to allow the board, looking back, to excuse a volunteer fireman, already a member, from certain years in which he did not achieve the required attendance percentage. Again, I am reading the law as I see it plainly stated. Barnes v. Carter, supra.
Therefore, based on the foregoing rationale and authorities, it is my opinion that volunteer firemen may not receive credit under the Georgia Firemen's Pension Fund for calendar years of service in which they did not attend 75 percent of all drills, meetings and fires. The fact that certain volunteers have had ineligible years credited to their retirement accounts, unfortunately, makes no difference. The board of trustees is not estopped, upon learning the true facts, to make a later determination of ineligibility and effect a cessation of benefit payments. McCallum v. Almand, 213 Ga. 701 (1957); Board of Commissioners v. Clay, 214 Ga. 70 (1958).
To the extent this opinion may affect any volunteer firemen presently receiving benefit payments, I am genuinely sorry. As your legal advisor by statutory designation, this office's duty, in response to your question, is to state its opinion on the applicable law in order to protect the board and its members from any potential liability. See, e.g., American Surety Co. of N. Y. v. NeSmith, et al., 49 Ga. App. 40 (1934).

UNOFFICIAL OPINION U74-9

To: Representative, District 50

January 25, 1974

Re: Under the State Constitution zoning powers are exercisable solely by the governing authorities of municipalities and counties; in the absence of constitutional authorization, the General Assembly cannot exercise zoning powers through general or local legislation.

This is in response to your letter of December 14, 1973, in which you ask for my opinion on three questions, all of which relate to the authority and power of the General Assembly over zoning matters. The questions you have presented are in fact far more complex than they might appear to be on their face and before responding to each in turn, I think that a few observations on the general nature of the power to zone in Georgia are in order-if not indispensable.
Historically speaking, the Supreme Court of Georgia took a hostile view quite early to the intrusion of the state's police power upon the right of a property owner to use his property any way he saw fit. Zoning statutes enacted by the General Assembly and implementing

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ordinances of local governmental bodies which attempted to bar the erection of buildings or conduct of businesses which were not per se nuisances were uniformly held to be violative of the property rights secured to the owner by the "due process" clauses of both the State and Federal Constitutions. See, e.g., Howden v. Mayor & Aldermen of Savannah, 172 Ga. 833, 841 (1931); Morrow v. City of Atlanta, 162 Ga. 228 (1926); Smith v. City of Atlanta, 161 Ga. 769, 776-779 (1926). While the Supreme Court of the United States rejected this view insofar as the "due process" clause of the United States Constitution is concerned in Village of Euclid v. Ambler Realty Company, 272 U.S. 365 (1926),1 the Supreme Court of Georgia wasted little time in announcing that it would not follow the Supreme Court's lead in connection with its own prerogatives concerning interpretation of "due process" under the State Constitution. See City of Atlanta v. Smith, 165 Ga. 146 (1927). The rule in Georgia remained that the police powers of the state could not be used to enact zoning legislation or ordinances which would interfere with a property owner's right to use his property for any purpose he saw fit (so long as the use was not a nuisance per se). The legal consequence was, and so far as I am aware still is, that in the State of Georgia no general zoning power can exist in any governmental body beyond that which is expressly provided for by the various constitutional amendments ratified by the people of Georgia subsequent to the State Supreme Court's 1927 decision in City of Atlanta v. Smith, supra. See, e.g., Hunt v. McCollum, 214 Ga. 809, 810 (1959); Howden v. Mayor & Aldermen of Savannah, 172 Ga. 833, 841-843 (1931). It is in light of this constitutional framework that I respond to each of your three questions in turn.
1. Does the General Assembly have the power and authority to enact general laws dealing with planning and zoning matters that would have the effect of changing planning and zoning procedures previously adopted by local ordinances of local governments involving the same?
The earlier of the two general constitutional provisions pertaining to zoning is Art. III, Sec. VII, Par. XXIII of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-1923). It provides that:
"The General Assembly of the state shall have authority to grant the governing authorities of the municipalities and counties authority to pass zoning and planning laws whereby such cities or counties may be zoned or districted for various uses and other or different uses prohibited therein, and regulating the use for which said zones or districts may be set apart, and regulating the plans for development and improvements on real estate therein."
1 The court held that zoning regulations constitute a permissible exercise of a state's police power so long as they have some reasonable relationship to public health, safety, morals or general welfare.

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It seems clear that under this provisiOn the only governmental bodies which may be authorized to exercise zoning powers are the governing authorities of the municipalities and counties of this state. As the Supreme Court of Georgia put it in Hunt v. McCollum, 214 Ga. 809, 810 (1959):
"Sight must never be lost of the fact that the Constitution (Code Ann. 2-1923) confers the power to zone upon the 'governing authorities' [of municipalities and counties] and none other. Without constitutional sanction no one could exercise such power. Therefore it logically follows that the foregoing attempt by the legislature to confer such power . . . [elsewhere] . . . is beyond constitutional limits and is void."
However, the fact that the legislature may not exercise zoning powers itself under the above constitutional provision does not mean that it is prohibited by this particular constitutional provision from either withdrawing such power from municipal and county authorities [even though if so withdrawn the power cannot be placed elsewhere] or from fixing the dimensions of the power or the procedures to be followed by local governments in its exercise. The power to authorize would unquestionably be held by the courts to include the power to revoke the authorization or to fix its limits and the means of its exercise. Thus, looking at Art. III, Sec. VII, Par. XXIII, alone, it would seem that while the General Assembly could not itself exercise zoning powers, it could regulate the means and procedures by which municipal and county governments exercise the zoning powers they have been given by the General Assembly. Insofar as municipalities are concerned the General Assembly has long since specified the procedures they must use in the exercise of their zoning powers. See Ga. Laws 1946, p. 191 et seq. (Ga. Code Ann. Ch. 69-8).
At this point, however, the matter becomes more complex by virtue of a subsequent constitutional amendment relating to "home rule." See Art. XV, Sec. II-A, Par. III (Ga. Code Ann. 2-8404). This provision provides with respect to counties [but note not with respect to municipalities] that:
"The governing authority of each county is empowered to enact for unincorporated areas of the county appropriate planning and zoning ordinances for public safety, historic, health, business, residential, and recreational purposes. Such governing authority is hereby authorized to establish planning and zoning commissions separately or in conjunction with any combination of other counties and municipalities of this state and adjoining states. The General Assembly is hereby authorized to provide by law for such joint planning and zoning commissions and provide the

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powers and duties thereof. Such governing authority is hereby authorized to participate in the costs of such planning commission."
The obvious conflict between the two constitutional provisions (county governments no longer receiving their zoning powers by virtue of constitutionally authorized legislative grants under the former but directly from the Constitution itself under the latter) came before the Supreme Court in Johnston v. Hicks, 225 Ga. 576 (1969), where the court held that the latter Home Rule Amendment (i.e., 2-8404) impliedly repealed the earlier constitutional provision (i.e., 2-1923) insofar as it applied to unincorporated areas. The court said:
"The General Assembly has no authority to grant a county the authority to enact zoning and planning laws except by constitutional provision. Under the express provisions of the Home Rule for Counties Amendment, direct authority is granted to the counties to enact planning and zoning laws for unincorporated areas. It was the intent of the General Assembly in submitting this amendment that the legislature, upon its ratification, would no longer have the authority to enact local laws concerning planning and zoning for unincorporated areas."
Although I recognize that Johnston v. Hicks, supra, dealt with attempts to modify a county's zoning power by local law, the rationale of the court's decision (and indeed much of its language) is equally applicable to any attempt to~interfere with a county's constitutional powers in the matter through general legislation. For the foregoing reasons I conclude as follows with respect to your initial question:
(1) Insofar as county government is concerned their zoning powers are constitutionally vested ( 2-8404) and cannot be limited, restricted or interfered with by any legislative enactment (general or local) of the General Assembly.
(2) Insofar as municipal government is concerned the zoning powers which they have been authorized by the General Assembly to exercise ( 2-1923) can be withdrawn by the General Assembly (although in such event these zoning powers are not capable of being placed elsewhere by the General Assembly) and can be subjected to such limitations and procedural requisites as the General Assembly may reasonably think proper.
2. May a "local" constitutional amendment repeal or change (or authorize the General Assembly by local Act to repeal or change) a planning or zoning ordinance adopted by local governmental authority.

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Yes. As the Supreme Court put it in Johnston v. Hicks, supra, at 580: "A constitutional amendment may amend, modify or repeal a prior constitutional provision." The rule of preemption which the State Constitution imposes upon special or local legislation as to matters which have been provided for by general legislation (see Art. I, Sec. IV, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-401)), has no application with respect to the construction of constitutional provisions. In point of fact I note that the General Assembly has already proposed an amendment to the State Constitution which would authorize the General Assembly to provide by local law for the exercise of planning and zoning powers within Cobb County (thus terminating the applicability of 2-8404 within that county). See Ga. Laws 1973, p. 1527.
3. May the General Assembly by general law "require" each municipality and county to appoint a planning commission and adopt a land use plan?
Insofar as municipalities are concerned we have already discussed the fact that since their power to exercise zoning powers under Code 2-1923 depends upon precisely what the General Assembly authorizes under that constitutional provision, this power, although it cannot be vested elsewhere (e.g., in a "planning commission"), can be subjected to various procedural requisites. Hence, the General Assembly may, and indeed already has required, that if a municipal government exercises its zoning powers it must do so "in accordance with a comprehensive plan designed for the purposes, among others, of lessening congestion in the roads and streets ... [and other enumerated purposes] ...", and that if a municipality exercises its zoning powers it must appoint a "municipal planning board" which plays a specified role in developing the plan for consideration by the municipal authorities. See Ga. Laws 1946, p. 191, as amended (Ga. Code Ann. Ch. 69-8). It should be emphasized, of course, that this power of the General Assembly to prescribe the procedure a municipality must follow if the municipality chooses to exercise its zoning powers is not to be equated with the power to compel a municipality to exercise zoning powers. Under the Constitution, the General Assembly cannot require a municipality to engage in zoning activities if it doesn't want to.
With respect to counties, the direct constitutional grant of zoning powers to "the governing authority of each county" under Code 2-8404 would seem to preclude the possibility of legislatively requiring a county, even as a matter of procedure, to appoint such a commission or to adopt a land use plan. In this limited area the Constitution places the power to legislate in county government rather than the General Assembly. Cf. Johnston v. Hicks, 225 Ga. 576, 580 (1969).

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354

ADDENDUM of February 4, 1974:
It has come to my attention that some question may exist as to the intended scope of the unofficial opinion on county and municipal zoning which we rendered you on January 25, 1974. In specificity it has been asked whether the opinion was intended to extend to the authority of the state itself to engage in planning or control over "land use."
To resolve any possible doubt on this point, I would like to make it quite clear that the opinion was intended to deal solely with the questions asked, all of which revolved around the power of the General Assembly to control or interfere with the exercise of zoning powers by county and municipal governments. I am writing this addendum to emphasize the fact that the unofficial opinion of January 25 was: (1) not intended to cover or extend to the question of whether the term "land use" differs from or is broader than the term "zoning"; and (2) not intended to deal with the extent to which the state may engage in land use planning and control to the extent that the terms may differ. The opinion of January 25 is not to be taken as an expression of views one way or the other as to these perhaps quite different and certainly equally complex issues.

UNOFFICIAL OPINION U74-10

To: District Attorney, Ogeechee Judicial Circuit

January 25, 1974

Re: Georgia Laws 1968, p. 992, authorizes the governing authority of any county to pay all necessary expenses incident to the operation of the district attorney's office for that county's superior court.

This is in response to your letter of January 10, 1974, requesting our opinion as to whether the four counties in your judicial circuit could make monthly payments to your office in order to provide for the operating expenses as provided in Section 7 of Georgia Laws 1968, p. 992 (Ga. Code Ann. 24-2928).
The question which you have posed primarily concerns the authority of any county to pay out county funds without specific local legislation authorizing the expenditure. This question is particularly pertinent because the law in Georgia is that one who draws money out of the treasury of a county or the state must be able to point to a law that clearly authorizes the expenditure. See Houston County v. Kersh and Wynne, 82 Ga. 252 (1888).
However, the Georgia Constitution, Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702 (a)), authorizes the governing authority of

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the various counties of this state to "provide for the operation of the courts, the maintenance and support of prisoners, and the handling of litigation affecting the county," by exercising the power of taxation which is reserved to the county. This section specifically authorizes the county to levy taxes in order to raise the money to support the operation of the courts.
In addition to this authority contained in the Constitution which allows the county to raise the money to support the courts in general, Ga. Laws 1968, p. 992 (Ga. Code Ann. 24-2928), specifically authorizes the counties to
". . . provide all necessary offices, utilities, telephone expense, materials and supplies as may be necessary to equip, maintain and furnish the office of the [district attorney] of that county's superior court, and said governing authority may pay all necessary expenses connected with the operation of the [district attorney's] office within such county...."
It is clear that the constitutional provision which authorizes the exercise of the taxation power for the maintenance of the court system and the Act cited above authorizing the governing authority of each county to pay the necessary expenses for the operation of the district attorney's office in the county will allow the counties to pay those expenses covered by the Act without any further local legislation.
Therefore, it is my opinion that as long as any county in your judicial circuit is only paying for those expenses which are attributable to the operation of your office in its county, such payment is authorized, regardless of the timing or place of payment.

UNOFFICIAL OPINION U74-ll

To: Director, State Merit System of Personnel Administration

January 25, 1974

Re: A permanent status employee who is promoted but is unsuccessful in his new job during the working test period still has permanent status in his former position.

This is in response to your letter of January 15, 1974, requesting an unofficial opinion as to what occurs when a classified employee is promoted but does not receive permanent status in that higher position, and that higher position is in a different department than his former position. This situation is governed by paragraph 10.101 of the Rules and Regulations of the State Merit System of Personnel Administration (hereinafter Rule 10.101), which provides that:

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"A promotion is a filling of a vacancy by the advancement of a permanent employee from a position of a lower class. For this purpose a lower class means any class of positions having a maximum salary lower than the maximum salary of a vacant position. No employee shall be promoted unless he has permanent status. Promotions may be made on either a competitive or a noncompetitive basis. An employee who is promoted shall be required to serve a working test period in the high position as provided in Section 11.100. The serving of a working test period shall not affect the employees' (sic) status in a lower position." (Emphasis added.)
In other words, this rule provides that before an individual may be promoted from a lower position to a higher position he must have permanent status. This same individual must serve a working test period in that higher position. The serving of the working test period in the higher position does not affect his status in his lower position. This rule does not make any exceptions for an individual who is promoted to a higher position in one state department or agency from a lower position in another state department or agency. Therefore, it is my unofficial opinion that an employee who is promoted to a higher position, but performs unsatisfactorily during his working test period, still retains his status in his earlier lower position.

UNOFFICIAL OPINION U74-12

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

January 28, 1974

Re: The Board of Trustees of the Georgia Firemen's Pension Fund can prescribe, by rule and regulation, the manner and method of reports from fire departments and proof of creditable service by members of the fund.

You have requested by letter my opinion on what information andrecords should be submitted to the Georgia Firemen's Pension Fund on behalf of firemen and volunteer firemen seeking to establish years of creditable service. You inform me that some of the reports from various firemen and fire departments are complete and detailed, but some apparently are not-especially those from volunteer fire departments. You express the concern that insufficient or incomplete information is being submitted to the board of trustees. Basically, your inquiries congeal into one threshold question: What should the board of trustees require as proof of years of creditable service for purposes of fund retirement benefits?

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The answer to your question is governed primarily by Ga. Laws 1955, p. 339 et seq., Ga. Code Ann. 78-1004, both as amended, which reads in part as follows:

"The board of trustees hereby created shall have the following powers and duties ... : to determine all applications for pensions; ... to make all necessary rules and regulations not inconsistent with the laws of Georgia for the government of this fund; to prescribe rules and regulations of eligibility of persons who receive pensions hereunder; . . . to generally exercise all other powers necessary for the administration of the fund created by this Act."

I read the quoted portion of the Act to allow the board of trustees to prescribe, by rule and regulation, whatever it wishes to require of departments, firemen and volunteer firemen to show eligibility for years of service.
This statutory authority is not, of course, unbridled. It should be exercised reasonably so that members of the fund may verify and prove their creditable service, and records may be kept, without untoward labor or expense. See generally, Roberts v. State, 4 Ga. App. 207 (1908). By the same token, the board of trustees should bear in mind its fiduciary relationship to all the members of the fund, and must exercise a high degree of diligence in the performance of its duties. Westbrook v. Davis, 48 Ga. 471 (1873).
Based on the foregoing authorities, it is my opinion that the Board of Trustees of the Georgia Firemen's Pension Fund can prescribe, by rule and regulation, the manner and method of reports from fire departments and proof of creditable service by members of the fund. It would appear to me that required reports and forms from departments and firemen should be moderately simple to execute, but complete and detailed enough to assure the board members of the correctness and validity of any claimed service, activities, classification or rating.
You have shown me the applications and forms currently employed by the fund and I am unaware of any reason these would not be sufficient to fully apprise the board as to the service, activities, classification or rating of any fire department, fireman or volunteer fireman. I would suggest that, for the purpose of certifying creditable years, your forms be signed by the applicant fireman, his fire chief, and, if at all possible, the highest governmental official (mayor, chairman of the county commission, etc.) under which a department functions. I would also suggest it be sworn to and notarized.

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358

UNOFFICIAL OPINION U74-13

To: Senator, District 40

January 29, 1974

Re: Georgia Laws 1972, pp. 4125-7, dealing with municipal pensions, is not invalid due to the failure of attachment of one of the fiscal notes required by Ga. Laws 1969, pp. 570-1.

This responds to the recent letter from your office. You inquire whether the absence of a certain fiscal note in the Department of Archives and History's packet containing S.B. 429, passed at the 1972 General Assembly Session, renders the bill invalid.
I have determined the Senate Bill to which you refer became Act No. 1559 of the 1972 Session, approved by the Governor on April 7, 1972. Ga. Laws 1972, pp. 4125-7. It provides that cities having a population of more than 150,000 as disclosed by the United States Census of 1920, or any subsequent census, shall furnish pensions to officers (with certain required years of service) who fail to be reelected or reappointed, do not offer for reelection at the end of any term, resign or retire during any term, or whose office is abolished.
The missing fiscal note you ask about is required by Ga. Laws 1969, p. 570 (Ga. Code Ann. 47-1302, 47-1302.1). This law requires, inter alia, that the State Auditor and State Budget Officer jointly prepare a fiscal note as to the fiscal effect of any bill relative to any retirement, pension or emeritus system. The principal administrative officer of the retirement, pension or emeritus system affected is also required to prepare a separate fiscal note. These notes are to be attached to the bill by the chairman of the committee to which it is referred, and read to the members of each house of the General Assembly at the third reading of the bill. Additionally, a copy of each fiscal note is required to be distributed to all members of each house prior to the vote on the bill. As I understand it, you are concerned because the note prepared jointly by the State Auditor and State Budget Officer cannot now be found attached to the Act, although the one prepared by the principal administrative officer is still attached.
As I read the statutes involved, the purpose of the preparation, attachment, dissemination and reading of the fiscal notes is to apprise the members of the General Assembly as to the fiscal effect of any retirement or pension bill before a vote on it is held. There is no language in Ga. Code Ann. 47-1302 or 1302.1 prescribing any penalty for noncompliance with its requirements. Nor is there a provision making the Act invalid upon the failure of the preparation, attachment, dissemination or reading of the notes.
"Generally, statutes directing the mode of proceeding by public

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officers, designated to promote method, system uniformity, and dispatch in such proceeding, will be regarded as directory if a disregard thereof will not injure the rights of parties, and the statute does not declare what result shall follow noncompliance therewith, nor contain negative words importing a prohibition of any other mode of proceeding than that prescribed." Southern Security Co. v. American Discount Co., 55 Ga. App. 736 (1937), quoting from 59 C.J., Statutes, 633. See also, Crane v. Los Angeles County, 17 Cal. App. 2d 360, 62 P.2d 189 (1936); 50 Am. Jur. Statutes, 26.
Under the above test, the statute under consideration requiring such fiscal notes appears precatory or recommendatory in nature, designed to assist the General Assembly members in deciding how to vote. The failure of attachment of one of the notes, then, is not fatal. This is not to say, however, that the terms of Ga. Code Ann. 47-1302 and 1302.1 should not be followed. The law should be followed and the members and committees of the General Assembly could require the law's adherence prior to voting on any retirement bill.
Additionally, S.B. 429 (1972) was passed by both Houses of the General Assembly and became law upon approval by the Governor. Any doubts as to a statute should, if at all possible, be resolved in favor of its validity. Lindsey v. Colquitt County, 169 Ga. 368 (1929). The fact that the fiscal note of the Auditor and Budget Officer is not now attached to the Act does not mean it was never prepared, read and disseminated to the General Assembly. When dealing with questions of compliance with statutes by public officials, substantial compliance shall be deemed sufficient. Ga. Code 102-102 (6).
Therefore, based on the foregoing rationale and authorities, it is my unofficial opinion that Ga. Laws 1972, pp. 4125-7, dealing with municipal pensions is not invalid due to the failure of attachment of one of the fiscal notes required by Ga. Laws 1969, pp. 570-1.

UNOFFICIAL OPINION U74-14

To: County Attorney, Bacon County

.January 29, 1974

Re: The Judge of the Small Claims Court of Bacon County is authorized to issue arrest warrants.

This is in response to your letter of January 15, 1974, requesting our opinion as to the authority of the Judge of the Small Claims Court of Bacon County to issue arrest warrants.
Georgia Laws 1973, p. 2337, created the Small Claims Court of

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Bacon County and delineated the jurisdiction of that court, which is set out in Section 1 of that Act and reads in part as follows:
"Said court shall have civil jurisdiction in cases ex contractu in which the demand or value of the property involved does not exceed $1,000.00, said jurisdiction to be concurrent with the . jurisdiction of any other court or courts now or hereafter established in said county. Said jurisdiction shall include the power to issue writs of garnishment and attachment and, in addition to the powers specifically granted, all the powers granted to justices of the peace by the laws of the State of Georgia."
While it appears that the jurisdiction of the court would be limited to those cases ex contractu in which the damages did not exceed $1,000.00, the Supreme Court of Georgia has held in the case of Bush v. Wilcox, 223 Ga. 89, 153 S.E.2d 701 (1967), that a grant of those powers normally reserved to a justice of the peace would clothe a judge of a small claims court with the authority to issue criminal warrants for offenses committed in his county. Since this case addresses itself directly to the question in point, it would be controlling in this case.
Therefore, it is my unofficial opinion that the Judge of the Small Claims Court of Bacon County does have the power to issue criminal warrants for offenses committed in his county.

UNOFFICIAL OPINION U74-15

To: County Attorney, Richmond County

January 31, 1974

Re: Ga. Laws 1959, p. 19 (Ga. Code Ann. 89-920), authorizes appointment by the Governor of counsel to defend district attorney in in certain civil actions.

This is in reply to your request for advice as to whether a county may employ private counsel to defend a district attorney in a civil action by a private party asserting a claim arising out of the district attorney's performance of his official duties in that county.
The district attorney is, of course, an officer of the state, not the county. Ga. Const., Art. VI, Sec. XI (Ga. Code Ann. Ch. 2-46). In view of this status, it is not at all clear that Ga. Const., Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702 (3)), insofar as it authorizes county expenditure of public funds for "the handling of litigation affecting the county," furnishes authority to provide counsel for a state official for actions taken on behalf of the state. DeVaughn v. Booten, 146 Ga. 836,92 S.E. 629 (1917).

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As you mentioned, Section 7 of Georgia Laws 1968, p. 992 (Ga. Code Ann. 24-2928), authorizes the governing authority of each county to
" ... pay all necessary expenses connected with the operation of the district attorney's office within such county."
However, it is not clear that the employment of counsel for defense of a civil action against the district attorney fits within the qualifying phrase "all necessary expenses connected with the operation of the district attorney's office within such county." To reach the conclusion that such an expense was covered, it would be necessary first to conclude that the district attorney was otherwise empowered specially to employ counsel to represent himself, and such a power is not clear. Cf. Mach v. State, 109 Ga. App. 154, 135 S.E. 2d 467 (1964).
As you know, a claim against public funds must be supported by clear legal authority. Freeney v. Geoghegan, 177 Ga. 142 (1), 169 .S.E. 882 (1933). While none of the above provisions clearly furnish such authority, it is my unofficial opinion that Ga. Laws 1959, p. 19 (Ga. Code Ann. 89-920 et seq.), clearly speaks to this situation. That law provides:
"When any action is filed in any court ... against a public officer ... which seeks relief, legal or equitable, against such public officer ... in the administration of his ... duties, and where the state ... allocates moneys to such public official . . . which is used in the administration of his . . . functions, . . . and where no regular counsel is provided for such public officer ... the Governor of the State ... may designate legal counsel in such case for such public officer. . . . "
Since the action referred to in your letter seeks legal relief against the district attorney for actions taken in the administration of his office, it is my unofficial opinion that counsel to defend such suit may be provided in accordance with the above provision. See also, Ga. Code Ch. 40-16 (1933 Code, as amended).

UNOFFICIAL OPINION U74-16

To: Senior Assistant Regional Counsel, United States Postal Service

February 11, 1974

Re: Private persons and companies are relieved of the liability of purchasing registration tags (license plates) from the State of Georgia on vehicles leased to the United States Postal Service.

This is in reply to your request for an opinion on whether private

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persons and companies must purchase registration tags (license plates) from the State of Georgia for vehicles leased by them to the United States Postal Service.
To relieve the lessors from the li'ability of obtaining registration tags during the lease periods, the Postal Service must be considered the "owner" of the vehicles and maintain their use and operation during the lease periods.
Georgia Code (1933) 68-101 defines owner as follows:
" 'Owner'-Any person, firm, corporation or association holding title to a vehicle or having exclusive right to the use thereof for a period of more than 30 days." See Ops. Att'y Gen. 1960-61, p. 305 (unofficial); 69-246.
Since your letter states the leases are usually for terms of from one to four years, and the Postal Service has exclusive use of the vehicles during the lease periods, it would appear that the conditions to relieve the lessors from liability are met. Of course, when the lessors regain the use of the vehicles on the termination of the leases or before their termination, they will again be responsible for the purchase of registration tags for the vehicles.
Therefore, it is my unofficial opinion that the lessors of the vehicles are relieved of the liability of purchasing registration tags for vehicles leased to the Postal Service, when said leases are longer than 30 days duration and the Postal Service has exclusive use of the vehicles during the lease periods.

UNOFFICIAL OPINION U74-17

To: Member, House of Representatives

February 14, 1974

Re: Constructive delivery will effect the purposes of Section ll(b) of the Georgia Land Sales Act of 1972, provided certain conditions are met.

This is in reply to your letter requesting an unofficial opinion concerning the Georgia Land Sales Act of 1972.1 This situation with which you are concerned arises from your representation of a client that offers out of state land for sale to Georgia residents.
Your first question deals with the applicability of the Act to out of state lands registered under the Out of State Land Sales Act2 prior to July 1, 1973. The answer to your question may be found in a 1973
1 Ga. Laws 1972, p. 638, Ga. Code Ann. Ch. 84-61 [hereinafter referred to as "the Act"J. 2 Ga. Laws 1971, p. 856, Ga. Code Ann. Ch. 84-58.

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opinion of this office. I have enclosed a copy of the opinion for your consideration. In answer to your question, Section 11 (b) (Ga. Code Ann. 84-6111 (b)) applies to out of state lands registered prior to July 1, 1973, under the Out of State Land Sales Act, cited above. Op. Att'y Gen. 73-157.
The second question you posed is whether constructive delivery of a warranty deed to an escrow agent will satisfy Section 11 (b) of the Act, which provides in part:
"Every sales contract relating to the purchase of real property in the subdivision shall provide that the purchaser shall receive his warranty deed to the property ... within not more than 120 days from the date of execution of the contract...." Ga. Code Ann. 84-6111 (b).
It is my understanding that your client operates with a conditional sales contract called a Homesite Purchase Agreement, not a warranty deed. As you know, there is no provision in the Act for a Homesite Purchase Agreement. However, in answer to your second question, Georgia real property law has traditionally held that delivery of a deed may be either actual or constructive. Domestic Loans of Washington v. Wilder, 113 Ga. App. 803, 805 (1) (1966); Dobbs v. First National Bank of Atlanta, 65 Ga. App. 796 (2) (1941).
Accordingly, constructive delivery of a warranty deed may be effected by delivery to an escrow agent within 120 days after execution of the sales contract for purposes of Section 11 (b) of the Act, provided all of the following elements are present:
1. The escrow agent must be the agent of both the seller and the buyer, not just that of the seller. Byrd v. Riggs, 213 Ga. 593, 597 (1957); Brown v. Brown, 192 Ga. 852 (1) (1941);
2. The seller must release all control over the warranty deed when he delivers it to the escrow agent. Allgood v. Allgood, 230 Ga. 312 (1) (1973); Morris v. Johnson, 219 Ga. 81, 89-91 (1963);
3. The escrow agent must be instructed to deliver the warranty deed to the buyer on the happening of a specific future event involving monetary consideration. Ga. Code 29-105 (1933); Morris v. Johnson, 219 Ga. 81, 89-91 (1963);
4. The escrow agent must be able to enforce the covenants and warranties found in Ga. Laws 1935, p. 112, as amended, Ga. Code Ann. 29-301; Ga. Code 29-303, 29-304 (1933), on behalf of the buyer;
5. The real estate transaction must be properly recorded to put the world on notice of the buyer's equitable interest in the realty. Ga. Code 29-401 (1933).

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UNOFFICIAL OPINION U74-18

To: Attorney at Law

February 20, 1974

Re: The Baker County Board of Education should withhold and remit social security contributions from the salaries of teacher aides and paraprofessional personnel employed in the Baker County public schools.

This responds to your letter asking for an unofficial opinion relating to the withholding of social security contributions from salaries of teacher aides and paraprofessional personnel. You state your question was generated by the superintendent of the Baker County public schools.
As I understand the problem, the Baker County Board of Education is not withholding social security contributions from the salaries of teacher aides and paraprofessionals, but is withholding same from the salaries of clerical and administrative personnel within the public school system. The superintendent has inquired why the former class of employees should be treated differently from the latter. In somewhat of a chronological fashion, the distinction and reasons follow.
The Georgia Teachers Retirement System (hereinafter TRS) Act did not originally include clerical personnel within the definition of a teacher, thus not authorizing their membership in the TRS. Ga. Laws 1943, p. 640 et seq.; Ga. Code Ann. Ch. 32-29, both as amended. By statutory amendment in 1950, public school employees serving in a clerical position were included within the definition of a teacher, authorizing them to participate in the TRS. Ga. Laws 1950, p. 261 et seq., Ga. Code Ann. 32-2901 (5), both as amended.
Pursuant to congressional provisions in Title II of the Federal Social Security Act (49 Stat. 620; 42 U.S.C.A. 401 et seq., as amended), and a federal-state agreement thereunder (sanctioned by1 Ga. Laws 1951, pp. 457-465 and 42 U.S.C.A. 418), the Employees Retirement System of Georgia (hereinafter ERS) administers the social security collections and disbursements for, among others, the public school systems in Georgia. In such administration, the ERS entered into a Social Security Plan and Agreement with the Baker County Board of Education, approved December 23, 1955. (I understand you have been provided with a copy of that Plan and Agreement.) Section II (a) of that agreement provides, in essence, that it includes and covers all employees of the Baker County Education Board except those who, on the date of the agreement, are (were) covered by a retirement system. The agreement, then, has never applied to the
1 For present law, see Ga. Code Ann. Ch. 99-21, based on Ga. Laws 1953, Nov. Sess., p. 294, as amended.

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superintendents, principals, teachers, secretaries, clerical help, or any other employees of the board covered under the TRS at the time the agreement was executed.
Teacher aides and paraprofessional personnel were first included as definitional teachers for TRS purposes in 1972 by Ga. Laws 1972, p. 909 et seq. (Ga. Code Ann. 32-2901 (5)). Under the terms of the agreement between the Baker County Board and the ERS, these aides and paraprofessionals are included within social security coverage since they were not covered under the TRS on the 1955 effective date of the agreement. Their continued coverage under social security is sanctioned by Title II of the Social Security Act, supra, specifically 42 U.S.C.A. 418. I am informed the ERS has provided you a copy of the portion of the Handbook for State Social Security Administrators which specifies the continuation of social security coverage for positions under an "absolute coverage group" (e.g., not under a retirement system) even if the position later is included within a retirement system.
Therefore, based on the foregoing, it is my unofficial opinion that the Baker County Board of Education should withhold and remit social security contributions from the salaries of teacher aides and paraprofessional personnel employed in the Baker County public schools.

UNOFFICIAL OPINION U74-19

To: County Attorney, Putnam County

February 21, 1974

Re: Pursuant to Ga. Laws 1971, p. 380 (Ga. Code Ann. 24-2832), a county sheriff is entitled to a five percent increase in his compensation at the completion of each term of office ending after April 2, 1971; however, this Act makes no provision for an increase at the end of any term the duration of which is less than four years.

This is in response to your letter of January 29, 1974 requesting our opinion as to whether the sheriff of Putnam County was entitled to an increase in compensation pursuant to Ga. Laws 1971, p. 380 (Ga. Code Ann. 24-2832). In your letter you indicated that Willie G. Jones was elected sheriff of Putnam County in a regular election for a term beginning January 1, 1969; that Mr. Jones subsequently resigned; and that the present sheriff, John C. Alliston, was appointed in his stead on May 12, 1969. You further stated that Mr. Alliston was later elected to the unexpired term of Mr. Jones and he occupied that office until January 1, 1973 when he began a regular four-year term to which he had been elected.
Georgia Laws 1971, p. 380 (Ga. Code Ann. 24-2832), provides a schedule of minimum salaries for county sheriffs depending on the

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size of their county and provides that the minimum level of compensation be increased by five percent for each four-year term of office served by the sheriff, figured at the end of each such period of service. The law further provides that the five percent increase in compensation shall not be based on any terms completed before April 2, 1971.
Georgia Laws 1971, p. 380 (Ga. Code Ann. 24-2832), indicates that the five percent increase in compensation will be granted at the end of each four-year term of office, and no reference is made to any increase in the compensation of a sheriff who has served less than a four-year term as would occur when a vacancy occurs because of the death or resignation of the person who was duly elected to a regular four-year term.
Since the statute clearly makes no reference to any increase in compensation for a sheriff who completes a term whose duration is less than four years, the granting of an increase in compensation to such a sheriff based solely on the provisions of Ga. Laws 1971, p. 380 (Ga. Code Ann. 24-2832), would be inappropriate because expenditures of state or county funds must be clearly authorized by law. See Houston County v. Kersh and Wynne, 82 Ga. 252 (1888).
Therefore, it is my unofficial opinion that the five percent increase in compensation authorized by Ga. Laws 1971, p. 380 (Ga. Code Ann. 24-2832), is only authorized at the end of each full four-year term and, thus, a sheriff completing a term of less than four years would not be eligible for this increase.

UNOFFICIAL OPINION U74-20

To: County Attorney

March 13, 1974

Re: By resolution, the governing body of a county may extend workmen's compensation coverage to include all elected officers of that county.

This is in response to your letter of February 18, 1974, requesting an opinion as to the interpretation of a portion of Ga. Code Ann. 114-101. The portion in question was added by a 1968 amendment to the original Act and provides as follows:
"All full-time county employees and employees of elected salaried county officials are hereby specifically included herein. There shall also be included within said term the various elected county officers of an individual county if the governing authority of said county shall provide therefor by appropriate resolution." Ga. Laws 1968, pp. 1163, 1164 (Ga. Code Ann. 114-101).

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U74-21

From reading the above-cited portion and realizing the liberal construction given to provisions of the workmen's compensation law so as to cover as many workers as is fairly possible, it would appear that the resolution passed by the governing body would have to extend the coverage to all elected officials of that county. See Lee v. Claxton, 70 Ga. App. 226, 228 (1943).
Therefore, it is my unofficial opinion that if the governing body of a county passed a resolution to extend the workmen's compensation coverage to the various elected officers, that resolution must include all elected county officers.

UNOFFICIAL OPINION U74-21

To: City Attorney

March 14, 1974

Re: The Fiscal Assistance to State and Local Governments Act does not authorize municipalities to expend funds in violation of state law.

You have posed the question of the permissible scope of expenditures of Federal Revenue Sharing Funds by municipalities, particularly with reference to the extent to which state law restricts the purposes for which such funds may be expended.
The Fiscal Assistance to State and Local Governments Act, Public Law 92-512 (31 U.S.C.A. 1222 (Supp. 1973)), provides:
"(a) Funds received by ... local government ... may be used only for priority expenditures.... '(P]riority expenditures' means only-
(1) ordinary and necessary maintenance and operating expenses for(A) public safety (including law enforcement, fire protection, and building code enforcement), (B) environmental protection (including sewage disposal, sanitation, and pollution abatement), (C) public transportation (including transit systems and streets and roads), (D) health (E) recreation (F) libraries (G) social services for the poor or aged, and (H) financial administration; and
(2) ordinary and necessary capital expenditures authorized by law."
While it is clear that funds received by municipalities may not be expended for purposes unauthorized by the Revenue Sharing Act,

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Mathews v. Massell, 356 F. Supp. 291 (N.D. Ga. 1973), it also is clear that the Act does not purport to authorize expenditures beyond those purposes permissible under state law. Generally, municipal corporations may expend no public funds except as expressly authorized by state law. Covington & Macon R.R. v. City of Athens, 85 Ga. 367 (1890); Miller v. City of Cornelia, 188 Ga. 674 (1939). See also, City of Midway v. Midway Nursing & Convalescent Center, 230 Ga. 77 (1973).
The first classification of expenditures permitted by the Act is "ordinary and necessary maintenance and operating expenses" for public safety, environmental protection, public transportation, health, recreation, libraries, aid to indigents and aged, and financial administration. 31 U.S.C.A. 1222 (a) (Supp. 1973).
It is my unofficial opinion that this language does not purport to authorize expenditures other than those that are lawful under state law. The language contemplates the cost of operating and maintaining such programs as local government may maintain or institute pursuant to the laws of the state. It does not attempt to authorize outlays to establish services which the municipality is otherwise unauthorized to provide.
Capital outlays, the second class of expenditures authorized by the Act, are treated separately and are specifically restricted to expenditures "authorized by law." 31 U.S.C.A. 1222 (a) (2) (Supp. 1973). This is an obvious reference to state law since federal law does not confer or define the general powers exercised by municipal corporations.
That this is the proper construction of 31 U.S.C.A. 1222 becomes apparent by reference to 31 U.S.C.A. 1243 (a) (4), which requires that in order to be eligible for payments, a local government must provide assurance (through procedures established by regulation) that
"it will provide for the expenditure of amounts received ... only in accordance with the .laws and procedures applicable to the expenditure of its own revenues."
It is therefore my unofficial opinion that funds received by municipalities through the Fiscal Assistance to State and Local Governments Act are subject to the same constitutional and statutory proscriptions, with respect to the permissible objects of expenditures of public funds, that apply to other public funds in the hands of municipalities. The federal Act contemplates and embraces these limitations, and does not attempt to override them.
With respect to the second question you posed (funding of various federal programs), I have no knowledge of the nature of these programs and am therefore unable to reply to that inquiry except to say that the principle enunciated hereinabove is applicable to any particular proposed expenditure; however, I feel certain .that you can determine what expenditures are authorized by state law.

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UNOFFICIAL OPINION U74-22

To: Ordinary of Twiggs County

March 14, 1974

Re: The vacancy on the Twiggs County Board of Commissioners of Roads and Revenues should be filled in accordance with the applicable local law, if any.

A Twiggs County Commissioner of Roads and Revenues died on February 12, 1974, thus creating a vacancy on the Board of Commissioners. You have asked how this vacancy should be filled. Ga. Code 23-801 (based on Ga. Laws 1898, p. 93; 1947, p. 173) provides:
"When a vacancy occurs in the office of commissioners of roads and revenues in any county in which the special Act creating a board of commissioners of roads and revenues for said county makes no provision for succession to fill such vacancy, and the unexpired term of office exceeds six months in duration, it shall be the duty of the ordi'nary of any such county to call a special election to elect a successor and fill said vacancy in not less than 20 nor more than 30 days, said election to be held as provided by existing laws governing all special elections and the cost of same to be defrayed by the proper county authorities. In the event the unexpired term to be filled is less than six months in duration, the judge of the superior court of the county shall have power to appoint a successor to fill the unexpired term.''
Since the unexpired term is greater than six months, the last sentence is inapplicable.
However, if Twiggs County has a special Act which varies Code 23-801, the county must follow the procedure there set forth. Ga. Laws 1923, pp. 324, 326, creating the Twiggs County Board of Commissioners of Roads and Revenues, provides:
"Section 6. Be it further enacted by the authority aforesaid, that vacancies in said board shall be filled by said board during their term in office. Said vacancies to be filled by the election of a person to fill any vacancy that may occur on said board by the remaining members of said board."
There have been several proposed substitutes for Ga. Laws 1923, p. 324. See e.g., Ga. Laws 1953, Nov.-Dec. Sess., p. 2570; Ga. Laws 1933, p. 699; Ga. Laws 1929, p. 734; Ga. Laws 1927, p. 713. However, in order to be effective, each had to be approved in a referendum. I am unable to determine from state records whether any of the last three1
1 The Secretary of State informs me that the 1953 Act was disapproved in the required referendum.

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were approved or disapproved although it would appear that Ga. Laws 1923, p. 324 is sWl in effect since it was amended as recently as 1969. Ga. Laws 1969, p. 2286. Also, there are provisions in the three proposed Acts which are inconsistent with the present composition of the Board of Commissioners which is presumably acting under the 1923 Act. Your county attorney might be able to shed more light on this aspect of the question.
It is therefore my unofficial opinion that if Ga. Laws 1923, p. 324, is still in effect, its provision with regard to filling a vacancy on the Board of Commissioners of Roads and Revenues supersedes Code 23-801.

UNOFFICIAL OPINION U74-23

To: City Attorney

March 28, 1974

Re: A municipal corporation may, by ordinance, require that any person wishing to transport a house within the corporate limits of the municipality obtain a permit to do so from the municipality.

This is in response to your letter of March 6, 1974, requesting an unofficial opinion as to whether the City of Forest Park could require a fee of those persons who wish to move houses through the City of Forest Park.
The Supreme Court of the United States, in Wilson v. Eureka, 173 U.S. 32 (1899), has held that a municipality which has been delegated the authority to control the streets and highways located within its corporate limits may adopt an ordinance requiring a permit as a prerequisite to moving a house through the city. Some courts have even held that municipalities may entirely prohibit certain types of traffic on their highways and streets, as long as there is a reasonable and rational basis for such a ban. See Edison Electric Light and Power Co. v. Blomquist, 185 F. 615 (Minn. 1911).
It should be noted that a requirement for a permit can be enforced even against those persons who are in interstate commerce, so long as the ordinance does not discriminate against or unduly burden interstate commerce. See Morris v. Duby, 274 U.S. 135 (1927).
In addition to requiring a permit as a prerequisite to moving a house through the city limits of a municipality, it is also permissible to charge a fee to obtain this permit, provided that such fees are reasonable and are related to the actual expenses incurred by the municipality. In Moore v. Gilbert, 207 Minn. 75, 289 N.W. 837 (1940), the court ordered the return of fees which were clearly in excess of the actual cost to the municipality caused by the moving of a house

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witlrin its corporate limits. However, the court in that case only required the return of the excess fees, and did not comment on those fees taken to cover the reasonable cost incurred by the municipality. For a more complete and detailed discussion of the legal aspects of moving a house within the corporate limits of a municipality, see 83 A.L.R.2d 464.
The question of obtaining permits and paying fees in order to move houses within the corporate limits of a municipality in the State of Georgia has not appeared before our courts. However, the existence of ordinances requiring permits and setting fees for such permits have been acknowledged in dicta. See City of College Park v. Hamilton, 220 Ga. 629, 140 S.E.2d 878 (1965).
Therefore, it is my unofficial opinion that a municipal corporation, which has the authority to control the streets and highways within its corporate limits, may enact an ordinance requiring that permits be obtained prior to moving houses on streets and lrighways lying within the corporate limits and that a fee, reasonably related to the expenses incurred by a municipality during the course of moving a house, may be charged.

UNOFFICIAL OPINION U74-24

To: County Attorney, Gordon County

April 2, 1974

Re: Commissions due Gordon County Tax Commissioner.

This is in reply to your letter asking whether the Tax Commissioner of Gordon County is entitled to commissions provided for in Ga. Code Ann. 92-5304 for collecting ad valorem taxes.
The Tax Commissioner of Gordon County was placed on a salary basis by Ga. Laws 1964, p. 3066, the salary being $7,200 per annum. Section 4 of the Act states:
"It is specifically provided that the salary provided herein for the tax commissioner shall be in lieu of all fees, commissions, costs, fines, emoluments and perquisites of whatever kind, including those co1IliWssions allowed by an Act relating to the commission of taxes collected in excess of a certain percentage of the taxes due according to the tax net digest, approved January 17, 1938 (Ga. Laws 1937-38, Extra. Sess. p. 297), as amended."
Subsequent to passage of the local Act establislring the salary of the Tax Commissioner of Gordon County, Ga. Code Ann. 92-5304 was amended by Ga. Laws 1965, pp. 626, 627, to specifically provide

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,

that a tax commissioner receiving a salary of less than $8,000 be en-

titled to the commissions. The general law allowing a tax commissioner

who receives less than $8,000 per annum to receive commissions must

prevail over the local Act, since the general law is the last expression

of the General Assembly on the subject. See Clark v. Kaylor, 219 Ga.

256 (1963); Laurens County v. Keen, 214 Ga. 32 (1958).

Whether or not the tax commissioner would be entitled to 10% of

the taxes collected in excess of 80% (as opposed to 10% of collections

in excess of 90% of the taxes due) of the total taxes due according to

the net tax digest would depend on whether or not there is an appro-

priate resolution to the governing authority in force and effect. We

do not have sufficient information to render an opinion on this aspect

of the question but will be happy to discuss it with you.

Therefore, it is my unofficial opinion that the Tax Commissioner of

Gordon County is entitled to receive commissions on the ad valorem

taxes collected as provided by Ga. Code Ann. 92-5304.

UNOFFICIAL OPINION U74-25

To: Ordinary, Cobb County

April 5, 1974

Re: Georgia Code Ann. 88-507.3 (e) only allows an ordinary to order an examination of a patient suspected of having a mental disorder during the pendency of the hearing required by Ga. Code Ann. 88-507.3, and such proceedings can only be initiated by compliance wi'th Ga. Code Ann. 88-507.2; therefore, full compliance with the latter section is a necessary prerequisite to any such examination.

This is in response to your letter of March 8, 1974, requesting my opinion as to whether the provisions of Ga. Code Ann. 88-507.2 must be fully completed and complied with before the examination provided for by Ga. Code Ann. 88-507.3 (e) could be ordered.
Georgia Code Ann. 88-507.1 to 88-507.3 (based on Ga. Laws 1969, p. 505) provide the method by which a person may be judicially hospitalized because of mental illness.
Georgia Code Ann. 88-507.2 establishes the initial step in seeking judicial hospitalization for any person. That section provides:
"Any person may file a petition, executed under oath, in the court of ordinary in the county where the patient is found, alleging that the criteria of section 88-507.1 are met. The petition shall be accompanied by the certificate of a physician stating that the physician has examined the patient within the preceding five days and that the criteria of section 88-507.1 are met."

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Georgia Code Ann. 88-507.3 provides for a hearing, to be held after the filing of the petition cited in the section above, to determine whether or not in fact the criteria established by Ga. Code Ann. 88-507.1 are indeed met.
Since the particular section which you have inquired about authorizes an examination only during the pendency of the proceedings, it seems evident that the initiation of the proceedings, pursuant to Ga. Code Ann. 88-507.2, is a prerequisite to taking any action under Ga. Code Ann. 88-507.3.
It is, therefore, my opinion that the ordinary cannot take any steps pursuant to Ga. Code Ann. 88-507.3 until the proceedings have been properly initiated pursuant to Ga. Code Ann. 88-507.2.

UNOFFICIAL OPINION U74-26

To: Mayor, City of Brunswick

April 9, 1974

Re: A long term contract entered into by a municipal corporation and private industry, providing for industrial waste water treatment services, is authorized by Georgia Laws 1974, p. 617, Act No. 1042, approved March 21, 1974.

Your letter of February 13, 1974 requested an opinion on the question of whether a city has the legal authority to enter into a long term contract with private industry, where that contract provides for industrial waste water treatment services to be supplied by the city.
It is my understanding that the factual situation out of which this question arose is as follows: In order for a city to receive federal funds for construction of waste water treatment facilities, a city must show that the potential users of the facility will pay their pro rata share of the costs of providing such services. Therefore, pursuant to the federal requirement, a municipality proposes to enter into a long term contract with an industrial user whereby the city would accept all of the user's wastes. Provided in the contract is a formula for determining rates as well as other obligations on the part of the industry involved.
The answer to your inquiry is found in Georgia Laws 1974, p. 617, Act No. 1042, which was approved by the Governor on March 21, 1974. The relevant portion of this Act provides that,
" ... each municipal corporation and each county of this state is hereby authorized ... to enter into valid and binding contracts ... with private persons, firms, associations, or corporations for any period of time not to exceed 50 years, to provide industrial waste water treatment services to such private persons, firms, associations, or corporations...."

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There is also a proviso which requires that the terms of such contracts must insure that the charge for treatment services will never be less than the actual cost to the municipal corporation or county of providing such services.
It is clear that the type contract contemplated in your question is specifically authorized by this statute. The only restrictions are that any such contract must terminate within a period of not more than 50 years and must comply with the proviso stated above.
Therefore, it is my unofficial opinion that a city does indeed have the legal authority to enter into a long term contract with private industry, whereby the city agrees to provide industrial waste water treatment services to said industry.

UNOFFICIAL OPINION U74-27

To: City Attorney

April 12, 1974

Re: The City of Saint Marys is not authorized to use the values established in the 1961 contract with Gilman Paper Company in assessing the property of the company for ad valorem tax purposes.

This is in reply to your letter regarding the legal consequences arising from certain facts relating to the ad valorem taxation of Gilman Paper Company (formerly Saint Marys Kraft Corporation and Kraft Bag Corporation, hereinafter sometimes referred to as "the company") set out in said letter and documents attached thereto. Following is a summary of those facts.
In 1958 the City of Saint Marys adopted a resolution stating that Kraft Bag Corporation had agreed to locate an additional plant in the city limits upon the condition that the governing body agree to establish a "stabilized city property tax program." In said 1958 resolution the city agreed to accept annual property tax returns from Kraft Bag Corporation based on 1958 values for a period of 15 years without change, and at the end of the 15-year period the city would accept annual returns based on 10 percent of the actual book value of the property at the end of said 15-year period. The city also agreed to accept annual property tax returns from Saint Marys Kraft Corporation based on 1958 values plus 10 percent of the cost of all additions added in the future, provided, however, in no event could the millage exceed 15 mills. The city also agreed in the resolution to seek a local constitutional amendment to authorize the action taken.
A local constitutional amendment, ratified on November 8, 1960 (Ga. Laws 1959, p. 460), provided as follows:
"The City of St. Marys is hereby granted authority to bind itself

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by contract to a stabilized property tax program with any corporation, partnership or individual."
The language on the ballot which submitted this local constitutional amendment to the people of the city provided as follows:
"For ratification of amendment to the Constitution so as to grant authority to the City of St. Marys to bind itself by contract to a stabilized property tax program. "Against ratification of amendment to the Constitution so as to grant authority to the City of St. Marys to bind itself by contract to a stabilized property tax program."
Following ratification of the above-described local constitutional amendment, the city adopted a resolution on November 2, 1961, approving a contract and agreement between the company and the city. Said contract included the same basic provisions relating to the ad valorem taxation of the company set out in the 1958 resolution and was signed by the city and the company on December 1, 1961.
A failure to tax is the equivalent of an exemption. Atlanta National Building and Loan Assn. v. Stewart, 109 Ga. 80 (1899). The resolution and contract have the effect of granting a pro tanto exemption to Gilman Paper Company to the extent that the company's property is not taxed at the same value and rate as other property in the city.
Ga. Const., Art. VII, Sec. I, Par. IV (Ga. Code Ann. 2-5404), states, inter alia,
"All laws exempting property from taxation, other than the property herein enumerated, shall be void."
The Georgia Supreme Court has described the above language as meaning that,

" . . . all property is subject to taxation . . . except that specifically exempt under Code (Ann.) 2-5404 and Code (Ann.) 92-201. ..." Macon Coca-Cola Bottling Co. v. Evans, 214 Ga. 1 (1958). (Emphasis added.)

It is clear that the requirement that a tax exemption be specifically granted has not been met by the wording of the local constitutional amendment. The foregoing conclusion is further supported by the wellestablished rule in this state that exemptions from taxation are strictly construed against the exemption, e.g., Cherokee Brick and Tile Co. v. Redwine, 209 Ga. 691 (1953). Moreover, the language in the local constitutional amendment was added at the end of Article VII of Georgia Constitution of 1945 and was not included in the paragraph of said Article relating to tax exemptions. In light of the foregoing, it

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is my unofficial opinion that the resolution and contract are violative of the prohibition on exemptions in Article VII, Section I, Paragraph IV of the Georgia Constitution.
The very heart of our system of ad valorem property taxation in Georgia is stated in Ga. Const., Art. VII, Section I, Par. III (Ga. Code Ann. 2-5403) as follows:
"All taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax."
The Georgia Supreme Court has held that this provision means,
" . . . that all kinds of property of the same class not absolutely exempt must be taxed alike, by the same standard of valuation, equally with other property of the same class, and coextensively with the territory to which it applies, meaning the territory from which the given tax, as a whole, is to be drawn." Hutchins, et al. v. Howard, et al., 211 Ga. 830 (1955).
The people of Georgia could not have stated more clearly their desire, nay, their demand, to be treated equally with their neighbors in sharing the burden of financing their government, be it state or local.
The resolution and contract are obviously in violation of the abovestated principles of uniformity of taxation. The only question, of course, is whether the local constitutional amendment changes this result.
In construing different parts of the Constitution, where a conflict is alleged, the following rule governs:
"The different provisions of the Constitution should be harmonized if practicable. If an amendment duly adopted necessarily conflicts with some previous provision, the amendment, being the last expression of the sovereign will of the people, will prevail as an implied modification pro tanto of the former provision." [Citations omitted.] Cason v. State of Georgia, 217 Ga. 339 (1961).
While it is unclear as to the exact authority given to the city by the local amendment, I am unable to construe said local amendment as being necessarily in conflict with the uniformity provision such that the local amendment would override said uniformity provision. Rather, I am of the opinion that whatever authority may be granted by the local amendment, such authority must be exercised by the city with respect to all of its taxpayers or none. To construe the local amendment as authorizing the patent discrimination evidenced by the city's contract with one taxpayer allowing that taxpayer to bear a grossly disproportionate share of the cost of the government of Saint Marys would be untenable. In light of the foregoing, it is further my un-

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official opiruon that the resolution and contract are also violative of the uniformity requirement of Ga. Const., Art. VII, Sec. I, Par. III (Ga. Code Ann. 2-5403).
There possibly are other problems with the local constitutional amendment, resolution and contract, such as:
(a) denial of equal protection under the Federal Constitution; (b) vagueness of the local amendment; (c) misleading nature of the ballot language; and (d) lack of consideration for the contract.
These problems wm not be discussed further in view of the fact that the previous discussion is dispositive of the issue.
Therefore, it is my unofficial opinion that the resolution and contract entered into thereunder are illegal and void.

UNOFFICIAL OPINION U74-28

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

April 12, 1974

Re: The Board of Trustees of the Georgia Firemen's Pension Fund is authorized to return dues to those volunteer firemen who did not comply with the "75 percent requirement" in 1973.

You have requested by letter an opinion on the question of whether the Board of Trustees of the Georgia Firemen's Pension Fund is authorized to return dues to those volunteer firemen who did not meet the "75 percent requirement" in calendar year 1973, and who, therefore, did not receive any creditable service in that year.
The "75 percent requirement" to which you refer is found in Georgia Laws 1955, p. 339 et seq., as amended, which requires that to be classified as a volunteer for fund retirement purposes, an individual must attend not less than 75 percent of all drills, meetings, and fires in every calendar year for which he claims credit. Ga. Code Ann. 78-1001.
The answer to your inquiry is governed by Georgia Laws 1956, p. 368 et seq. (Ga. Code Ann. Ch. 78-10), the relevant portion of which reads as follows:
"Any member who fails to meet the attendance requirements relative to drills, meetings, and fires ... for the calendar year shall not be granted credit for such year's service, and in the event he has paid any dues into the fund therefor, he shall be entitled to a refund of ninety-five percent (95 %) thereof. Any refunds granted ... shall be without interest."

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Under this statutory language, it is clear that a member who does not comply with the "75 percent requirement" is entitled to the return of 95 percent of the dues which said member pays into the fund for that calendar year, without interest.
Based on the foregoing, it is my opinion that for those volunteer firemen who did not meet the "75 percent requirement" in calendar year 1973, the Board of Trustees of the Georgia Firemen's Pension Fund is authorized to return 95 percent of the dues contributed by such member in that year.

UNOFFICIAL OPINION U74-29

To: Ordinary, Forsyth County

April 15, 1974

Re: A sheriff may resign by submitting his resignation to the Governor of the State. As soon as the resignation is accepted the office becomes vacant and the ordinary must appoint some qualified person to discharge the duties of sheriff until the vacancy is filled by election. If the ordinary fails to fill the vacancy, the coroner of the county shall act as sheriff, and if there is no coroner, the sheriff of any adjoining county is authorized to act as sheriff.

[Sections referred to herein will be found in the 1933 Georgia Code.] This is in response to your letter of March 27, 1974, requesting my opinion as to the proper procedure to be followed by a sheriff when resigning and the procedure to be followed in filling the vacancy caused by such a resignation. The only provisions for reporting resignations of public officers is found in Ga. Code 89-504, which states that:
"The resignations of Senators and Representatives in Congress, members of the General Assembly, and of all officers whose commissions issue from the office of Secretary of State or the Executive Department, and whose places may be supplied by executive appointment, shall be made to the Governor."
While this provision is subject to interpretation, the sheriff is an officer commissioned by the Executive Department pursuant to Ga. Code 89-202, and therefore should submit his resignation to the Governor.
Georgia Code 89-501 (2) provides that the resignation shall become effective and the office shall be vacated when the resignation is accepted.
Once the office is vacated, Ga. Code 24-2803 provides that the vacant office be filled as are vacancies in the offices of clerks of the

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superior courts. Georgia Code 24-2707, made applicable to sheriffs by the provisions cited above, provides that the office of clerk shall be filled as soon as a vacancy occurs by an appointment of a qualified person by the ordinary.
Georgia Code 24-2704, also made applicable to the office of sheriff by the above-cited Code section, provides that when a vacancy occurs in the office of clerk of a superior court, the ordinary of the county shall call a special election by giving notice " ... in one or more of the public newspapers of said county ... and at the courthouse, and at three or more of the most public places of said county, 20 days previous to the day of election, which shall be appointed by him."
However, it should be noted that Ga. Code 24-2709, made appli~able to the office of sheriff pursuant to the above-cited Code section, provides that if an election cannot be held more than six months from the time the existing term expires, the person appointed by the ordinary pursuant to Ga. Code 24-2707 shall serve the balance of the unexpired term.
In the event that the ordinary fails to appoint a person to fill the office of sheriff, Ga. Code 24-2803 provides that the coroner of the ~ounty shall act as sheriff, and if there is no coroner the ordinary shall make a temporary appointment, and, on the failure of both, the sheriff of any adjoining county is authorized to act as sheriff until the ordinary shall make the appointment or until there is an election.

UNOFFICIAL OPINION U74-30

To: Chief, Private Employment Agency Inspections

April 19, 1974

Re: Personnel consultants, who do not and may not charge a fee to any applicant for employment, are not covered under the definition of "employment agent" or "employment agency" in the Georgia "Private Employment Agencies Act."

This is in response to your letter of March 25, 1974, requesting my opinion as to whether personnel consultants, who are retained and paid solely by the employer, are covered under the Georgia "Private Employment Agencies Act" (hereinafter referred to as the PEAA).
The PEAA was recently enacted by the Georgia General Assembly and signed into law. Act No. 1016 of the 1974 Georgia General Assembly (Ga. Laws 1974, p. 567). The definition of "employment agent" and "employment agency" found in Section 3(c) of the PEAA, is:
" 'Employment agent' or 'employment agency' shall mean any person who, for a fee charged or could be charged to an applicant,

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(1) promotes, procures, offers or attempts to promote or to procure employees for persons seeking the services of employees or employment for persons seeking employment, or (2) who, for a fee charged or could be charged to an applicant, in seeking to perform any of the foregoing, gives information by any means as to where employment may be obtained, or (3) who, with a view to profit, shall undertake any of the aforementioned functions through the medium of cards, circulars, pamphlets of any nature whatsoever, or through the display of a sign or bulletin offer to secure employment or give information as to where employment may be secured. This definition of 'employment agent' or 'employment agency' shall not include 'executive counsellor,' 'temporary help service' or 'news periodicals'." (Emphasis added.)
Clearly, from the emphasized portion of the above-quoted statute, it appears that the various subsections of the definition of "employment agent" or "employment agency" apply only to persons who "for a fee charged or could be charged to an applicant" performs one of the various functions attributable to an employment agency. This would seem not to include a personnel consultant who charges fees only to the employer and never to an applicant. However, this definition would include any personnel consultant or other person whose fee contract would allow any possibility for collecting the fee from the applicant, including contracts making the applicant responsible for the fee in the event that the employer fails to pay it or in the event that the applicant does not remain in the employer's service for a certain period of time.
Consequently, it is my unofficial opinion that unless the personnel consultants charge a fee or may charge a fee to the job applicant, they would not come within the definition of "employment agency" or "employment agent" and therefore would not be covered under the PEAA.

UNOFFICIAL OPINION U74~31

To: Representative, District 114, Post 4

April 19, 1974

Re: The City Courtt of Albany, Georgia is a court of record within the meaning of the Civil Practice Act.

This is in reply to your request for advice as to whether the City Court of Albany, Georgia is a court of record within the meaning of the Civil Practice Act (Ga. Code Ann. Title 81A, based on Ga. Laws 1966, p. 609).
The law creating the City Court of Albany provides that the said

1 "City courts" have been changed to "state courts" in accordance with Ga. Code Ann. 24-2102a. The name of the instant court is State Court of Dougherty County.

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court shall be a court of record and shall keep such records as are required to be kept by superior courts. Ga. Laws 1897, p. 414. The Supreme Court of Georgia has held that the declaration of the legislature that a court was a court of record, coupled with provisions requiring the keeping of permanent records, constituted such a court as a court of record within the meaning of the Civil Practice Act. See Gresham v. Symmers, 227 Ga. 616 (1971), citing Crosby v. Dixie Metal Co., 227 Ga. 541 (1971).
It is, therefore, my unofficial opinion that the City Court of Albany is a court of record within the meaning of the Civil Practice Act.

UNOFFICIAL OPINION U74-32

To: Senator, District 25

April 19, 1974

Re: Pharmacies located in general merchandising establishments.

You have inquired as to the proper construction of Ga. Code Ann. 79A-510 (b) (based on Ga. Laws 1967, p. 296) dealing with pharmacies located in general merchandising establishments. If a pharmacy is located in such an establishment, the portion of the establishment which is to be operated as a pharmacy may be set aside and permanently enclosed so that only that portion of the store will be subject to the requirements of the pharmacy law. However, if this is to be done, the area must be directly accessible from the street, public thoroughfare, or public passageway, and may be accessible from the general merchandising establishment by no more than one entrance which shall be no wider than four feet, and which entrance shall be capable of being locked. If these requirements are complied with, the pharmacy law applies only to that small portion of the general merchandising establishment.
However, unless a pharmacy complies strictly with Code 79A-510 (b), it is required by Code 79A-511 to be open for business at all times that the business establishment is open to the public, except for certain temporary absences of a pharmacist. One of the requirements of Code 79A-510 (b) is that the area set aside and enclosed as the pharmacy must be accessible directly from a street, public thoroughfare, or public passageway, and may be accessible from the general merchandising establishment by no more than one entrance, which entrance shall be no wider than four feet. From this requirement it can be seen that unless there is an "outside" entrance into the area set aside as a pharmacy, the requirements of Code 79A-510 (b) will not have been met. Mere access from the general merchandising establishment but not from a street, public thoroughfare,

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or public passageway, is not sufficient to comply with this Code section. In short, a general merchandising establishment is not a public passageway within the meaning of Code 79A-510 (b).

UNOFFICIAL OPINION U74-33

To: Judge, State Court of Tattnall County

April 19, 1974

Re: The judge of the State Court of Tattnall County may appoint more than one court reporter.

This is in response to your letter dated April 12, 1974, in which you asked whether you had the authority to appoint a second court reporter.
Georgia Laws 1970, p. 679 et seq. (Ga. Code Ann. Ch. 24-21A), governs the practice and procedure in courts below superior court level, including the State Court of Tattnall County. The law states that court reporting personnel shall be made available, and that appointment of a reporter or reporters for court proceedings shall be made by the judge. The express use of the plural in reference to reporters is sufficient to authorize the appointment of another court reporter for the State Court of Tattnall County.
It is, therefore, my unofficial opinion that you, as judge of the State Court of Tattnall County, may appoint another court reporter.

UNOFFICIAL OPINION U74-34

To: County Ordinary

May 1, 1974

Re: Issuance of marriage license.

This is in response to your request for information pertinent to the issuance of marriage licenses. I direct your attention to Subsection A of Ga. Code Ann. 53-204, amended by Ga. Laws 1972, p. 193, which states:
"In cases where the parties applying for a license have not yet reached the age of majority, their ages to be proved as hereinafter provided, the parents or guardians of each underage applicant must appear in person before the ordinary and consent to the proposed marriage...."
As specified in Section 1 of Ga. Laws 1972, pp. 193, 194 (Ga. Code Ann. 74-104), the age of majority in the State of Georgia has been established as 18 years of age.

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In consideration of the foregoing, it is my unofficial opinion that parental consent is mandatory for the issuance of a marriage license to a male applicant of 17 and a female applicant of 16, notwithstanding the fact that the female applicant is pregnant. Provided the requisite parental consent is supplied, a male applicant under the age of 18 may obtain a marriage license in the State of Georgia.

UNOFFICIAL OPINION U74-35

To: Judge, Court of Ordinary

May 2, 1974

Re: An executor is not required to wait six months after his qualification before he may file a petition for discharge pursuant to Ga. Code Ann. 113-2307.

This is in response to your letter dated April 2, 1974, in which you asked whether an executor may file a petition for discharge under Ga. Code Ann. 113-2307, based on Ga. Laws 1964, p. 269, within six months after his qualification.
Ga. Code Ann. 113-2307 contains no express six-month requirement. The only prerequisites to filing a petition are a provision in the will that relieves the executor of the duty of making returns to the ordinary, a will that has been fully executed and a fully administered estate. Ga. Code Ann. 113-2308 provides that if a petition setting out the aforementioned requirements is filed, and after publication the court is not shown cause to the contrary, then "the ordinary shall issue to such executor letters of dismission ...."
You point out in your letter that Ga. Code Ann. 113-2310, based on Ga. Laws 1971, p. 433, dealing with a petition for discharge by an administrator, is operable only after six months from the date the administrator qualified. Ga. Code Ann. 113-1101 (1933 Code, as amended by Ga. Laws 1970, p. 523), among other things, provides that all provisions of the Code referring to administrators of estates obtaining letters of dismission shall apply to executors also, and this may give rise to a question of whether Code 113-2310 abrogates the privilege afforded under Code 113-2307. It is my opinion that it does not.
Ga. Code Ann. 113-2311, based on Ga. Laws 1971, p. 433, would abrogate the privilege granted by Code 113-2307 only by an implied repeal. An implied repeal results only where there is an irreconcilable conflict between the sections. Sims v. State, 7 Ga. App. 852 (1910). There is no conflict in the present case because the General Assembly expressly determined that different procedures will apply to executors and administrators.

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It is therefore my unofficial opinion that, by virtue of the clearly expressed intent of the General Assembly, an executor need not wait six months after his qualification in order to seek discharge under Code 113-2307.

UNOFFICIAL OPINION U74-36

To: Representative, District 5

May 3, 1974

Re: Exercise of the veto power under Ga. Const., Art. V, Sec. I, Par. XV (Ga. Code Ann. 2-3015), against amended appropriation leaves intact the prior appropriation for that purpose. Veto of an additional appropriation in an Act amending a General Appropriations Act renders ineffectual that appropriation.

This is in reply to your request for my unofficial opinion on the efficacy of vetoes by the Governor of certain language contained in Act No. 1379 (Ga. Laws 1974, p. 1459; H.B. 1376), which was an amendment to the General Appropriations Act for Fiscal Year 1974, Ga. Laws 1973, p. 1353. Specifically, you ask
(1) Does the Governor's veto of the item relating to Cooperative Educational Services Across County Lines in Section 16 of Act 1379 of the 1974 Regular Session of the Georgia General Assembly constitute a proper and effective exercise of the authority vested by Art. V, Sec. I, Par. XV of the Constitution?
(2) Does the Governor's veto of the $150,000 item relating to the Herty Foundation in Section 27 of said Act constitute a proper and effective exercise of said constitutional authority?
In form, Section 1 of Act No. 1379 (Ga. Laws 1974, p. 1459) purports in one sentence to strike Sections 1 through 42 of Ga. Laws 1973, p. 1353, and insert in lieu thereof new Sections 1 through 41. The substituted sections, insofar as material here, proposed to increase the amount of appropriations previously made for certain purposes in the corresponding sections of Ga. Laws 1973, p. 1353, decrease the amounts made for other purposes,! and add appropriations for other purposes not formerly contained in the General Appropriations Act for Fiscal Year 1974.
1 For example, substituted Section 13 reduces the prior appropriation to the Department of Community Development for its operating expenses in connection with the World Congress Center from $200,000 to $100,000. The Governor vetoed "so much of the amendment ... as reduces the appropriation of $200,000...." In view of our opinion dated April 25, 1974, to James T. Mcintyre, Jr. (Op. Att'y Gen. 74-53), our opinion on the second aspect of your question will necessarily determine whether the veto of the reduced appropriation leaves intact the appropriation originally made by Ga. Laws 1973, p. 1353.

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In the latter category falls the $150,000 item relating to the Herty Foundation in Section 27 as amended by Act 1379. There was no similar language contained in the General Appropriations Act for Fiscal Year 1974, Ga. Laws 1973, p. 1353, prior to the attempted amendment.
The exercise of the veto power with respect to that language falls clearly within the proper scope of that power under Ga. Const., Art. V, See. I, Par. XV (Ga. Code Ann. 2-3015). In my prior opinion, Op. Att'y Gen. U73-94, I concluded that the appropriations veto power could be properly exercised against language of an appropri:ation bill which authorized the expenditure of a specified amount of public funds for a specified purpose. The pertinent language in substituted Section 27 is as follows:

"A. Operations ................................. $23,560,832

Grants:

** *

* * *
Herty Foundation .......................... $ 150,000"

The language vetoed facially authorized the expenditure of a specified amount, $150,000, for a specified purpose, a grant to the Herty Foundation, and thus fits within the subject matter against which a veto may be properly exercised. It is, therefore, my unofficial opinion that the Governor's veto of the $150,000 item relating to the Herty Foundation in the amendment by Act No. 1379 to Section 27 of Ga. Laws 1973, p. 1353, constituted a proper and effective exercise of the power conferred by Art. V, Sec. I, Par. XV of the Constitution.
A more difficult question is presented by the exercise of the veto with respect to the language contained in the substituted Section 16. That language is as follows:

"Non-MFPE Grants:

* * *
Cooperative Educational Services Across County Lines ........................... $2,530,000"

Identical language was contained in Ga. Laws 1973, p. 1353, except that the amount set forth was $2,430,000.
The substituted language of Act No. 1379 was stricken by the Governor and in the margin he wrote :

"Veto so much of the appropriation for Cooperative Educational Services Across County Lines as increases such appropriation above the amount of $2,430,000 which was appropriated in the General Appropriations Act approved April 19, 1973."

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The difficulty in determining whether the veto of the substituted language was within the power conferred by Art. V, Sec. I, Par. XV, arises from the form of Act No. 1379. However, it is my opinion that this difficulty is more apparent than real.
The language vetoed, authorizing an expenditure of public funds in a specified amount for a specified purpose, clearly falls within the subject matter subject to the exercise of the veto power; that question is not involved. Instead, the question involved is whether given the form employed by the General Assembly in Act No. 1379, that power may be used to prevent an amendment increasing (or decreasing) the amount of an existing appropriation.
To illustrate, instead of using the form actually employed in Act No. 1379, the General Assembly might have accomplished each desired alteration in the General Appropriations Act for Fiscal Year 1974 by separate sections, which is a format employed in the past. See, e.g., Ga. Laws 1973, p. 1316. Had the particular amendment involved here been made in that form, i.e., by a separate section striking the existing language and substituting the desired language, it would be beyond question not only that the Governor could veto that section but also that the veto would operate to continue the existing appropriation without change, for the failure of the amendment, for any reason, would leave the prior appropriation intact. Cf. United States Casualty Co. v. Watkins, 211 Ga. 619 (1955).
The question is whether the form of Act No. 1379, foreclosed that result, obviously sought by the language of the veto employed by the Governor, by incorporating the desired substitute language in quoted matter designed to displace the former General Appropriations Act almost in its entirety. The obvious argument in favor of an affirmative answer to that question is that because the Governor had not vetoed the amendment in its entirety, a veto of a specific appropriation within the amendment cannot continue in force the existing appropriation for that purpose since the amendment as a whole, which has not been vetoed, strikes the existing appropriation. I cannot accept that argument for several reasons.
First, as I concluded in Op. Att'y Gen. U73-94, the veto power is wholly legislative in character. In exercising that power, the Governor is not exercising executive power, that is, the power of enforcing or implementing law, but is instead exercising a legislative power in determining what the law shall be. Even though the veto may be used solely to arrest the operation of a bill, or in the case of an appropriations Act, a particular part of it, the result of its exercise is the statute itself and the meaning of the statute is to be ascertained from the cumulative result of all steps in the legislative process.
Second, the overriding theory underlying the constitutional grant of the appropriations veto power is inconsistent with the theory that

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by the tactical device of a particular form, an amendment to an existing appropriation, whether increasing or decreasing it, is shielded from the constitutionally expected determination by the Governor of whether the amendment is sound.
As noted above, it has long been established in this and other states that the failure of an amendment to an existing law leaves intact the existing law. United States Casualty Co. v. Watkins, 211 Ga. 619 (1955); State v. Rosellini, 348 P.2d 971 (Wash. S.Ct. 1960). In the context of the appropriations veto power under Art. V, Sec. I, Par. XV, which provides that a vetoed appropriation "shall not be effectual," that principle leads inescapably to the conclusion that the veto of a specific appropriation designed to displace an existing appropriation for the same purpose renders the displacement "ineffectual" and leaves standing the existing appropriation.
Finally, in view of Ga. Const., Art. VII, Sec. IX, Par. I (Ga. Code Ann. 2-6201), I could not attribute to the legislative process an intent to cause a prior appropriation to fail in those circumstances. However, in this case, the Governor's veto specifically indicated the intent underlying the veto. The factors set forth above, in my opinion, require recognition and effectuation of that intent.
For these reasons, it is my unofficial opinion that the effect of the veto of the Cooperative Educational Services language was to arrest the operation of Act No. 1379 insofar as it purports to amend the prior language authorizing an expenditure of funds for that purpose, thus leaving intact the prior appropriation.
This conclusion does not mean that I have receded from my prior opinion that a veto may be exercised only against an appropriation as a whole. Nor does it mean that I have concluded that the Governor may exercise the power to reduce the amount of an appropriation. The power was here exercised against the whole appropriation as contained in Act No. 1379. The question involved is what was the effect of that veto. For the reasons stated above, especially considering the language employed in the exercise of that legislative power, it is my unofficial opinion that the effect of the veto was clearly to arrest the operation of Act No. 1379 insofar as it purported to amend the existing appropriation.

UNOFFICIAL OPINION U74-37

To: County Attorney

May 6, 1974

Re: Georgia Laws 1958, p. 3068, provides for the filling of a vacancy on the board of commissioners of Troup County by the grand jury of Troup County if less than one year remains on the term which is to be filled. Within 60 days of such appointment, the clerk of the

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388

superior court of Troup County must publish a notice of the proposed action once a week for two weeks in the official organ of the county.

This is in response to your letter of April 26, 1974, requesting that this office review an opinion issued by you as county attorney for Troup County, Georgia. The substance of your opinion was that a vacancy on the board of commissioners of Troup County would have to be filled by the grand jury of that county if less than one year remained on the term of the office which had been vacated. You were also of the opinion that, within 60 days of the selection by the grand jury of the person to fill the vacancy, the clerk of the superior court of Troup County would have to give notice of the proposed action of the grand jury by having such notice published once a week for two weeks in the official organ of the county.
Georgia Code Ann. 23-801 (Ga. Laws 1898, p. 93; 1947, p. 173), relating to vacancies in the office of county commissioner, reads in part as follows:
"When a vacancy occurs in the office of commissioner of roads and revenues in any county in which the special Act creating a board of commissioners of roads and revenues for said county makes no provision for succession to fill such vacancy, ... it shall be the duty of the ordinary of any such county to call a special election to elect a successor ...."
The Act creating the board of commissioners for Troup County, found in Ga. Laws 1958, p. 3068, does contain a specific provision which regulates the filling of vacancies on the board. Therefore, pursuant to the Code section cited above, the local Act will control. That section in Ga. Laws 1958, p. 3068, which provides the method of filling vacancies reads in part as follows:
"Section 5. In the event a vacancy in the membership of the board of commissioners occurs less than one (1) year of the expiration of the term of office vacated, the grand jury of Troup County shall have the power to fill such vacancy ...."
Therefore, since you have indicated that there is less than one year remaining on the term of office vacated, the above-cited section of the local Act will control the method of filling the vacancy.
The second part of your opinion concerned the notice which was to be given concerning the impending appointment of a commissioner by the grand jury of Troup County.
Georgia Laws 1958, pp. 6$6, 687, as amended (Ga. Code Ann. 59-319), provides that:
"It shall be the duty of the clerk of the superior court to publish in the official organ of the county a notice that certain officers

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are to be elected, selected or appointed by the grand jury of said county. Such publication shall be made once a week for two weeks during a period not sooner than 60 days prior to such election, selection or appointment. The cost of such advertisement shall be paid from the funds of the county, and it shall be the duty of the governing authority of the county to promptly pay said cost." (Emphasis added.)
The problem raised by the section is the meaning of the words, "not sooner than 60 days prior to such election, selection or appointment." You have interpreted this section to mean that the advertisements must be made within 60 days of the appointment, selection or election, but have indicated that it has been suggested to you that the phrase could possibly mean that more than 60 days must elapse after the last publication before such a selection could be made.
Georgia Code 102-102 (1) reads in part as follows:
"The ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject matter."
To give any construction to Ga. Code 59-319 other than that given it by you would result in reading the phrase, "not sooner than 60 days prior to such election, selection or appointment," as meaning the same as "not later than 60 days prior to such election, selection or appointment." Such a construction would violate the provisions of Ga. Code 102-102 (1), cited above.
Therefore, it is my unofficial opinion that the opinions expressed by you in your letter of April 26, 1974 are correct.

UNOFFICIAL OPINION U74-38

To: City Attorney

May 7, 1974

Re: The word "value" as used in Ga. Code Ann. 92-4101 means assessed value.

You have requested an opmwn as to whether Ga. Code Ann. 92-4101, as amended, which limits the amount of ad valorem tax a municipality may levy and collect, as construed in light of Ga. Laws 1972, p. 1103, as amended by Ga. Laws 1974, p. 1206 (Ga. Code Ann. 92-4004), refers to fair market value or assessed value after being reduced to 40 percent of 100 percent fair market value.
Georgia Code Ann. 92-4101, as amended, provides in part:

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"No municipal corporation shall levy or collect for the ordinary current expenses of said corporation, except as hereinafter provided, any ad valorem tax upon the property within said corporation, exceeding one-half of one percent upon the value of _said property ...." (Emphasis added.)
Georgia Laws 1972, p. 1103, as amended (Ga. Code Ann. 92-4004), provides for the use by municipalities of the 100 percent fair market value determined for ad valorem tax purposes by counties.
Georgia Code Ann. 92-5703, as amended by Ga. Laws 1968, p. 358, and Ga. Laws 1972, p. 1102, contains one of the most recent expressions of legislative intent in regard to property taxation by municipalities. That statute states, inter alia:
"It is the intent and purpose of the General Assembly of this state that the value of tangible property as referred to in the tax laws of this state shall be 40 percent of the fair market value of such property."
In addition, the provisions of Ga. Code Ann. 92-4101 are expressed in terms of levy and collection; and tax levies by municipalities for property tax purposes are to be made upon 40 percent of fair market value, Ga. Code 92-5703, as amended.
In light of the above-quoted legislative statement of intent and the manner in which municipalities are authorized to tax tangible property, it is my unofficial opinion that the term "value" as used in Ga. Code Ann. 92-4101 means 40 percent of the fair market value of the property. Therefore, the one-half of one percent limitation of Ga. Code 92-4101 is to be applied against 40 percent of the fair market value used for city ad valorem tax purposes.

UNOFFICIAL OPINION U74-39

To: County Attorney

May 7, 1974

Re: The Superintendent of Elections may appoint persons to serve on election district boards of managers whose names are not submitted by political parties.

This is in response to your letter of April 30 in which you request an opinion regarding the method established by Ga. Code Ann. 34-501 for appointing election district managers. In pertinent part, this section provides as follows:
"All elections and primaries shall be conducted in each election district by a board consisting of a chief manager, who shall be

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chairman of such board, and two assistant managers, assisted by clerks, as hereinafter provided. The managers of each election district shall be appointed by the superintendent. If the political parties involved elect to do so, they may submit to the superintendent, for his consideration in making such appointment, a list of qualified persons. When such lists are submitted to him, the superintendent, insofar as practicable, shall make his appointment so that there shall be equal representation on such boards for the political parties involved in such elections or primaries." Amended by Ga. Laws 1970, p. 347.
You have asked whether this section permits the superintendent to appoint persons other than those submitted by the parties. For the following reasons, it is my unofficial opinion that if the political parties submit lists of persons to serve as managers, the superintendent may appoint persons who are not on the lists and not affiliated with the parties, and if he also appoints some qualified persons from the lists, he must assure insofar as he is able that the parties have equal representation on the boards.
The superintendent is responsible under Code 34-501 for appointing the boards of managers for election districts within his county. The parties may submit recommended lists for his consideration but this opportunity does not remove the superintendent's discretion in making appointments. The proviso regarding equal representation should be interpreted to read as follows:
When such lists are submitted to him, the superintendent if he chooses to appoint persons on the parties' lists shall make his appointments so that there shall be, insofar as practicable, equal representation on such boards for the political parties.
A practical consideration also compels a similar interpretation. Since there are two major political parties, there could not be equal representation on the three-member boards unless an independent were chosen as the third member.

UNOFFICIAL OPINION U74-40

To: County Ordinary

May 8, 1974

Re: Act 937, approved March 21, 1974 (Ga. Laws 1974, p. 455), provides a schedule of minimum salaries for ordinaries based upon the population of each county. However, the Act also provides that nothing in the Act shall be construed to affect salaries established by local legislation except where such local legislation provides for a salary lower than the salary provided for in Act 937, in which case

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the provisions of Act 937 prevail. For the purposes of calculating the present salary of the ordinary, in order to determine the salary fixed by local legislation, all compensation for services rendered must be included, including raises attributable solely to longevity.

This is in response to your letter of April 8, 1974, requesting my opinion as to the proper level of compensation for the ordinary of Clarke County.
Act 937, approved March 21, 1974 (Ga. Laws 1974, p. 455), provides a minimum annual salary for the ordinary in each county of the State of Georgia, calculated according to a schedule contained in the Act which is based on the population of the county as determined by the United States Decennial Census of 1970.
Using the schedule established by Act 937, the ordinary of Clarke County should receive a minimum salary of $14,000 per year. As I understand your question, you and the commissioners of Clarke County have reached this salary figure already, but the point of contention concerns the characterization of a supplemental amount, $900, which is paid to you pursuant to Section 2 (b) of Ga. Laws 1972, pp. 2084, 2085. That section provides that the incumbent ordinary at the time of the passage of the law was to receive an additional $900 per year and that the incumbent and all ordinaries who succeeded the incumbent were to receive an additional increase of $900 per year for each full four-year term of office completed after December 31, 1972. The question, then, is whether this additional $900 is salary, and thus supplanted by the minimum salary provided by Act 937, or whether it is a bonus or gratuity not to be included in salary and thus to be granted in addition to the $14,000 per annum provided by Act 937.
Act 937 provides for minimum salaries for ordinaries and the term "salary" has been defined as compensation for services rendered. See Savannah Bank and Trust Co. v. Mason, 209 Ga. 364, 72 S.E.2d 720 (1952). Therefore, all compensation paid for services rendered is included in the term salary and would be thus supplanted by the minimum salary provided by Act 937.
In order to characterize the additional $900 a year given you, we must consider the alternatives. It clearly must fall in one of two categories. It is either compensation for your services or it is not. If it is not compensation for services it must then be a gratuity. Article VII, Sec. I, Par. II of the Georgia Constitution (Ga. Code Ann. 2-5402) states that the General Assembly of Georgia may not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association.
In Kent v. State, 18 Ga. App. 30, 88 S.E. 913 (1916), it was held that when any statute is subject to two interpretations, as is the statute here regarding the correct characterization of the $900, and

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one construction would make the statute legal and the other illegal, the construction which would make the statute legal should be adopted. Since the construction of the $900 as a gratuity would render the statute illegal, and the construction of the $900 as compensation for services rendered would make the statute legal, the latter construction must be adopted, and thus the $900 is compensation for services rendered. As discussed above, since it is compensation for serVIces rendered, it must be considered with all other compensation as salary.
Thus, it is my unofficial opinion that the salary of the ordinary of Clarke County is presently $12,900 and that Act 937, approved March 21, 1974 (Ga. Laws 1974, p. 455) authorizes a higher minimum salary for the ordinary of Clarke County, and therefore the minimum salary set by Act 937 is the proper rate of compensation for the ordinary of Clarke County.

UNOFFICIAL OPINION U74-41

To: County Attorney

May 13, 1974

Re: The county commissioners of Cook County may not authorize retroactive pay raises for county officials.

This is in response to three letters from your office, all dated March 22, 1974, in which you furnished this office with certain opinions rendered by you and requested our comments on the conclusions which you reached.
vVe concur with your interpretation of the laws dealing with approval of the minutes of the board of commissioners of Cook County, and with your interpretation concerning the number of commission members who constitute a quorum, the number of commissioners who must agree on official action to carry a motion, and the right of the chairman to vote. However, we disagree with that portion of your opinion which concerns the retroactive pay raises voted by the commissioners for certain county officers.
In your letters you noted that on February 4, 1974, the county commissioners of Cook County passed a resolution increasing the salaries of certain county officers, making the increase effective February 1, 1974. You also stated that on February 12, 1974, the board met and adopted another resolution changing the salaries again, this latter resolution also being effective as of February 1, 1974. You concluded in your opinion that the pay raises should be effective from February 1, 1974.
Article VII, Sec. I, Par. II of the Constitution of the State of Georgia (Ga. Code Ann. 2-5402) states in part that:

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"The General Assembly shall not grant or authorize extra compensation to any public officer, agent or contractor after the service has been rendered or the contract entered into."
While the retroactive pay raises here were enacted by the board of commissioners, they were acting pursuant to the authority granted them by the General Assembly of Georgia (see Ga. Laws 1969, p. 3402 et seq.) and the General Assembly cannot do indirectly what it could not do directly. Therefore, the constitutional prohibition against retroactive pay raises is equally applicable to the county commissioners. I have enclosed a copy of an opinion of the Attorney General, dated May 1, 1967 (Op. Att'y Gen. 67-150), which addresses itself more fully to this question.
Therefore, it is my unofficial opinion that any increase in compensation authorized by the board of commissioners can be only effective from the date that such an increase in compensation is authorized and the county commissioners may not authorize increases effective prior to the adoption of the resolution authorizing such increases.

UNOFFICIAL OPINION U74-42

To: County Attorney

May 14, 1974

Re: Commissions a county is entitled to receive as county funds under Ga. Code Ann. 92-5304.
This is in response to your inquiry as to whether Peach County is entitled to a 10 percent commission on all taxes collected in excess of 80 percent of the total taxes due according to the net county tax digest. However, before your question concerning the amount of the commission can be addressed, it must first be determined whether Peach County is entitled to any commissions.
when a county has placed its tax collector or tax commissioner purely on a salary basis of $8,000 or more, the commissions previously allowed the tax collector or tax commissioner shall be county funds. Ga. Laws 1937-38, Extra. Sess., pp. 297, 298; 1939, p. 370; 1951, pp. 815, 816; 1955, pp. 176, 178; 1965, pp. 626, 627 (Ga. Code Ann. 92-5304). The tax commissioner of Peach County was placed on a purely salary basis by Ga. Laws 1968, p. 2667, with the salary being established at not less than $9,500 per annum; thus, Peach County is entitled to the commissions as county funds.
As to the amount of commission to be received, Ga. Code Ann. 92-5304 provides :
"On all taxes collected in excess of 90 percent of the total of taxes due, according to the tax net digest, the tax collector's or tax

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commissioner's commission shall be for such taxes 10 percent of all such collections, ... Provided, however, that the governing authority of the county, by appropriate resolution, may provide that the tax collector's or tax commissioner's commission shall be 10 percent of all taxes collected in excess of 80 percent of the total taxes due according to the net tax digest."
From the information you provided, it is my understanding that the governing authority of Peach County passed such an "appropriate resolution" on March 8, 1951.
After reviewing Ga. Code Ann. 92-5304, I am of the opinion that if an "appropriate resolution" establishing the commission to be 10 percent of all taxes collected in excess of 80 percent has been passed by the governing authority of a county prior to the tax collector or tax commissioner of the county being placed purely on a salary basis of $8,000 or more, then the county is entitled to the same commissions the tax collector or tax commissioner would receive if not on a salary basis, i.e., 10 percent of the excess of 80 percent.
Therefore, it is my unofficial opinion that since Peach County had such an "appropriate resolution" prior to placing the county tax commissioner on a purely salary basis, the county is entitled to receive commissions in the amount of 10 percent of the tax collections above 80 percent.

UNOFFICIAL OPINION U74-43

To: State Chairman, Democratic Party of Georgia

May 16, 1974

Re: Georgia Laws 1974, p. 16, requires a candidate for representative from a newly created district in Muscogee County to live in the territory within the district for one year in order to be qualified for the 1974 general election.

This is in response to your letter of May 10, 1974, requesting an interpretation of a portion of the amended reapportionment Act for the Georgia House of Representatives. Ga. Laws 1974, p. 16. The section in question requires a representative to live in the territory within his district for a year prior to his election but it contains a provision which states:
"Provided, however, that in order to be qualified for the 1974 general election in any newly created district lying wholly within a county that, for the purposes of the 1972 general election, was not divided into two or more districts, but which county, for the

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purposes of the 1974 general election, contains two or more districts, a candidate must have lived within the county in which such newly created district lies for at least one year immediately preceding the date of the 1974 general election and must be a resident of the district for which he is elected for the period beginning with the last date for qualifying as a candidate in the primary to nominate candidates for the office of member of the House of Representatives from such district and continuing through the date of the 1974 general election." Ga. Laws 1974, pp. 16, 70.
You have asked whether the proviso quoted above applies to the representatives from Muscogee County to be elected in the 1974 general election. For the following reasons, it is my opinion that the above quoted language does not apply to Muscogee County so that a representative from that county must have resided within the territory embraced by the district for one year prior to his election.
In order for a representative to be qualified pursuant to the proviso quoted above he must represent a district (1) which was created by Ga. Laws 1974, p. 16; (2) which lies wholly within a county; (3) which county was not divided into two or more districts for the 1972 election; and (4) which county is divided into two or more districts for the 1974 election. Muscogee County has five newly created districts lying wholly within it. However, Muscogee County was previously divided into two 2-member districts and a floterial district for the 1972 election. Ga. Laws 1972, pp. 250, 281. Therefore, the proviso cannot apply to Districts 92, 93, 94, 95, 96 and 97 which are newly created districts in Muscogee County. In order to represent these districts, a representative must have lived within the territory encompassed by his district for one year preceding his election.

UNOFFICIAL OPINION U74-44

To: Judge, State Court of Lowndes County

May 24, 1974

Re: Georgia Laws 1901, pp. 176, 177, provides that the Governor of the State of Georgia shall fill all vacancies occurring on the bench of the City Court of Valdosta, now the State Court of Lowndes County, and any person so appointed shall serve the full unexpired term of the person vacating the bench. All inquiries concerning the operation of the Code of Judicial Conduct, adopted by the Supreme Court of the State of Georgia and effective as of January 1, 1974, should be directed to the Judicial Qualifications Commission.

This is in response to your letter requesting my opinion as to the duration of your present term as Judge of the State Court of Lowndes

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County and my opinion as to the effect of the Code of Judicial Conduct, adopted by the Supreme Court of the State of Georgia and effective January 1, 1974, on you in your capacity as judge of that court.
Georgia Laws 1901, p. 176 et seq., as amended, provide for the creation of the City Court of Valdosta, having jurisdiction throughout Lowndes County. The City Court of Valdosta thereafter became the City Court of Lowndes County and then, pursuant to Ga. Laws 1970, p. 679 et seq., the State Court of Lowndes County.
Section 2 of Ga. Laws 1901, pp. 176, 177, provides, with regard to vacancies on the bench of the City Court of Valdosta, that:
" ... all vacancies ... shall be filled by appointment of the Governor for the residue of the unexpired term . . . ."
I, like you, have been unable to find any provision in the law which changes this provision for the filling of vacancies on the bench of the State Court of Lowndes County. Therefore, I conclude that your appointment to the vacancy created by the resignation of the Honorable T. Guy Connell is effective for the entire duration of the unexpired term of Judge Connell.
Your second question concerns the effect of the Code of Judicial Conduct upon your act;vities as a practicing attorney while serving as Judge of the State Court of Lowndes County. You should contact the Judicial Qualifications Commission for information of this nature. I have been informed that H. H. Perry of that commission would be the person to whom you should address your inquiry.

UNOFFICIAL OPINION U74-45

To: Secretary-Treasurer, Firemen's Pension Fund

May 24, 1974

Re: Upon the withdrawal of a fireman or volunteer fireman from membership in the Georgia Firemen's Pension Fund, five percent of the dues contributed to the fund by such member may be retained in said fund.

This is in reply to your request for my opinion as to whether the Georgia Firemen's Pension Fund can retain five percent of the dues contributed by a member who withdraws from the fund.
The answer to your inquiry is found in Ga. Laws 1955, p. 339 et seq., as amended (Ga. Code Ann. 78-1011), the relevant portion of which reads as follows:
"Any member withdrawing from this fund shall, upon proper application and approval of the board, be paid all the monies

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such individual contributed to said fund after deducting five percent."
This statutory language specifically authorizes the retention of five percent of all dues contributed by a fireman or volunteer fireman who withdraws from membership in the fund. It is clear that the legislature provided for this deduction of five percent so as to take into account the costs involved in administering the fund; therefore, this retention should be considered as a bookkeeping expense.
In conclusion, it is my opinion that the Firemen's Pension Fund is authorized to retain five percent of the dues contributed by a fireman or volunteer fireman who withdraws from membership in the fund.

UNOFFICIAL OPINION U74-46

To: County Attorney

May 24, 1974

Re: Party who files notice of appeal under Code 92-6912 (6) is party bearing burden of cost deposit under Code 24-2727 and 24-3406.

This is in reply to your request for an unofficial opinion as to which party bears the liability for the initial cost deposit established by Ga. Code Ann. 24-2727 and 24-3406 (both sections amended by Ga. Laws 1972, p. 664) when a taxpayer appeals to the superior court from the decision of a county board of equalization pursuant to Ga. Code Ann. 92-6912 (6) (amended by Ga. Laws 1974, pp. 609, 610).
Code 92-6912 (6) provides that the action initiated thereunder shall constitute "a de novo action." It is my unofficial opinion, therefore, that such a proceeding falls within the term "any civil case or proceeding," as used in Code 24-2727 and 24-3406.
The burden of the cost deposit under Code 24-2727 and 24-3406 falls in the party desiring to file the action, that is, the party initiating the action. This conclusion can be drawn from a "common sense" analysis of those provisions. It is also evident from the provision in both sections excusing a cost deposit if the "party desiring to file such case or proceeding" is unable by reason of poverty to pay the costs. (Emphasis added.)
Finally, in the proceeding described by Code 92-6912, it is the party initiating the appeal, by filing a notice of appeal, who is the "party desiring to file" the action. The county board of tax assessors, while it transmits the record to the superior court for filing where the taxpayer has filed a notice of appeal, acts only as a result of the initiative of the appealing party and is not the party initiating the action. It is my unofficial opinion, therefore, that the party filing the notice of appeal is the "party desiring to file" within the meaning of Ga. Code Ann. 24-2727 and 24-3406, and thus subject to the burden of the cost deposit required thereby.

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UNOFFICIAL OPINION U74-47

To: Fannin County Attorney

May 27, 1974

Re: (1) Fannin County may compensate a sheriff's deputy in addition to those deputies specifically mentioned in Ga. Laws 1969, p. 2634. (Ops. Att'y Gen. U69-28, U69-68 modified.) (2) Counties may pay expenses reasonably necessary for the proper functioning of the sheriff's office. (3) The clerk of the board of commissioners of Fannin County may be paid additional compensation pursuant to the county home rule amendment to the Constitution. (4) The members of a board of county commissioners are not personally liable for money appropriated without legal authority in the absence of bad faith, malice or fraud, coupled with a showing of direct or indirect pecuniary gain or a violation of criminal statutes.

You have posed four questions, accompanied by a brief of authorities, with respect to the fiscal powers of the Fannin County commissioners. I shall address each question separately.
(1) "Can Fannin County employ an additional deputy other than those two deputies specifically mentioned in Ga. Laws 1969, pp. 263/r-36?"
This office has issued two unofficial opinions stating that the provisions of the county home rule amendment to the Constitution, Ga. Const., Art. XV, Sec. II-A, Par. I (Ga. Code Ann. 2-8402), prevent county commissioners from taking any action whatsoever affecting sheriffs' deputies since such action would affect the personnel of an elective office of the county. Ops. Att'y Gen. U69-28, U69-68.
The principle apparent from the county home rule amendment is that county governing authorities cannot use their home rule power to affect other county elective offices, the affairs of such offices be:i,ng governed by general or special law. The purpose of this policy is manifest, in view of the potential conflicts between elected officials if one office were able to withdraw personnel or funds from another office at will. This principle was enunciated clearly in Warren v. Walton, 231 Ga. 495 (1973), where the Supreme Court held that a county governing authority could not withhold the salaries of deputy sheriffs employed pursuant to special law, since the governing authority had no power to amend such special law by its own resolution. The specific question which you have raised, however, is whether the sheriff may appoint deputies in addition to those specified by local law, and whether the county may compensate such deputies from county funds.
At first impression it might seem that the aforestated principle is controlling, but further consideration reveals that this is not the case. The county home rule amendment specifically provides that matters affecting the salaries and personnel of county elective offices shall be the subject of:

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" ... general law, or ... local Acts of the General Assembly to the extent that the enactment of such local Acts is otherwise permitted under [the] Constitution." Ga. Const., Art. XV, Sec. II-A, Par. I (Ga. Code Ann. 2-8402 (c) ).
It seems clear from both common and statutory law that sheriffs historically have had the authority to appoint such deputies as they may require. Warren v. Walton, supra, and authorities cited; Ga. Code (1933) 24-2811. This power flows clearly from general law and not from local Acts. It is also clear that this authority could not be diminished by subsequent local legislation, since such legislation may not generally amend or modify existing general law. Ga. Const., Art. I, Sec. IV, Par. I (Ga. Code Ann. 2-401). However, one dramatic diminution of the sheriff's power has occurred. The fees which sheriffs once collected and used to compensate their deputies now flow into the county treasury and the compensation of both sheriffs and deputies must be paid by an appropriation of county funds. Ga. Laws 1964, p. 310 (Ga. Code Ann. 24-2826); Ga. Laws 1971, p. 380 (Ga. Code Ann. 24-2831); Ga. Laws 1964, p. 337 (Ga. Code Ann. 23-1029). The county governing authority is clearly vested with the responsibility for safeguarding and appropriating county funds for lawful purposes, and has broad discretion in the management of such funds. Ga. Code Ann. 23-701 (Ga. Laws 1964, Extra. Sess., pp. 26, 198); Ga. Laws 1969, p. 2641; Whatley v. Taylor County, 224 Ga. 669, 670 (1968); Turner v. Johnston, 183 Ga. 176 (1936); Wolfe v. Huff, 232 Ga. 44 (1974). It is therefore clear that while sheriffs retain their traditional power to appoint and employ their own deputies (Warren v. Walton, supra), the power to compensate these deputies has been shifted to county governing authorities.
This situation creates an obvious potential for conflict between these two elective county offices. Apparently, in order to remove the basis for such conflict, many counties have had local statutes enacted providing for a specified number of deputies at specified salaries. This is the case in Fannin County, where the applicable local law provides that the sheriff of Fannin County has:
"sole power and authority to appoint one deputy who shall be compensated in the amount of $6,000 per annum, payable in equal monthly installments from the funds of Fannin County and one additional deputy who shall receive an annual salary of $5,000, payable in the same manner.... It shall be within the sole power and authority of the sheriff, during his term of office, to designate and name the persons who shall be employed as deputies ... and to prescribe their duties and assignments and to remove or replace such employees at will and within his sole discretion." Ga. Laws 1969, p. 2634.

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As has been stated, such a local statute is not a limitation upon the power of a sheriff to appoint and employ his own deputies. See Warren v. Walton, supra. However, such local legislation could limit the authority of county commissioners to compensate deputy sheriffs since the General Assembly, in reference to county commissioners, has the authority to amend even general law by special Act. Moore v. Whaley, 189 Ga. 647 (1949). The effect of such a special statute is to require that the county governing authority compensate the deputies specified in such statute at the specified rate. 1
It does not follow, however, that this particular statute limits the authority of the commissioners to compensate additional deputy sheriffs. As shown above, the county commissioners possess broad discretion in appropriating funds for lawful purposes and Ga. Laws 1969, p. 2634, need not be construed as a broad limitation upon that power. Amendment by implication is disfavored and will be given effect only to the extent that such intention is clear and manifest. Moore v. Whaley, supra, at 650. No intention to absolutely restrict the county governing authority's power to appropriate funds for deputy sheriffs appears from an examination of Ga. Laws 1969, p. 2634; rather, the intention clearly appears to be to limit the discretion of the commissioners to compensate fewer than two deputies. Therefore, if there is sufficient authority for Fannin County to expend county funds for deputy sheriffs generally, Ga. Laws 1969, p. 2634, only serves to restrict that power by requiring that at least two deputies be compensated from county funds.
The authority of counties to expend funds for deputies, as an abstract proposition, seems clear by virtue of various authorities. Constitutional authority can be found in Ga. Const., Art. XI, Sec. III, Par. I (Ga. Code Ann. 2-7901a), authorizing counties to provide "police protection." Sheriffs enforce all laws enacted for the protection of the lives, persons, property, health and morals of the people (Elder v. Camp, 193 Ga. 320 (1942) ), and certainly this is the traditional and common understanding of "police" protection. "Words in constitutions are to be understood ordinarily in the sense they convey to the popular mind." Collins v. Mills, 198 Ga. 18, 23 (1944). This particular section is in addition to Ga. Const., Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702), which authorizes counties to establish and maintain a county police department. Since there was already specific authorization to provide for a county police department, the words "police protection" in a separate provision should be construed to authorize police protection generally. Where a qualifying word is found in one provision of the Constitution and not in some other pro-
1 This is the holding of Warren v. Walton, supra, and, in view of that case, the constitutional authority of the General Assembly to so limit the governing authority's discretion must be assumed.

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vision, the presumption is that the other provision was not intended to have such qualification. Thompson v. Talmadge, 201 Ga. 867, 883 (1947).
Counties may also expend funds to "provide for the operation of the courts." Ga. Const., Art. VII, Sec. IV, Par. II. Sheriffs are charged with numerous duties in aid of the courts (Ga. Code (1933) 24-2813), and may require deputies in order to discharge these duties. Moreover, Ga. Const., Art. VII, Sec. IV, Par. II, provides that counties may expend funds to "pay the expenses of administration of the county government." Since the sheriff is a county officer (Truesdel v. Freeney, 186 Ga. 288, 292 (1938) ), the county may pay a deputy to assist in the functions of that office if such is reasonably necessary. Whatley v. Taylor County, 224 Ga. 669 (1968); Lumpkin County v. Davis, 185 Ga. 393, 395 (1938). Finally, Ga. Laws 1971, p. 380 (Ga. Code Ann. 24-2831, 24-2832), implies that deputies' salaries are to be paid from county funds; Ga. Code Ann. 92-3701 (5) (Ga. Laws 1946, p. 87, as amended), provides for county expenditures for sheriffs; and, in the particular case of Fannin County, Ga. Laws 1965, pp. 2294, 2296 (Section 5), provides:
"The necessary operating expenses of the office of the sheriff of Fannin County, expressly including the compensation of the sheriff and his employees, shall be paid from ... funds of the county. . . . "
In determining whether a particular expenditure is authorized by a constitutional or statutory provision, it has been held that those expenditures which are necessary or incidental to the main purpose authorized are also authorized. Wood v. Vienna Telephone Co., 8 Ga. App. 209 (1910); Board of Com'rs of Twiggs County v. Bond, 203 Ga. 558, 560 (1948). Deputy sheriffs seem to fall within this principle with respect to the constitutional and statutory purposes set forth hereinabove, thus making it lawful for a county governing authority to exercise its discretion to appropriate funds to compensate deputies appointed by a sheriff.
It is therefore my unofficial opinion that under existing law, the sheriff of Fannin County may appoint deputies in addition to those specified by Ga. Laws 1969, p. 2634, provided the county governing authority concurs and exercises its discretion to appropriate the necessary funds to compensate such deputies. In support of this conclusion, see Whatley v. Taylor County, 224 Ga. 669 (1968). Ops. Att'y Gen. U69-28, U69-68 are hereby modified to the extent that they are inconsistent with this opinion.
In closing, it should be noted that counties may employ such temporary personnel as may be necessary to assist the sheriff in special circumstances. Ga. Laws 1968, p. 447 (Ga. Code Ann. 23-3003).

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(2) "Can the county governing authority by majority vote authorize payment of additional expenses of the sheriff's office not specifically authorized in Ga. Laws 1969, pp. 2634-36?"
County governing authorities may expend funds for items that are necessary for the proper and efficient functioning of the office of sheriff. Lumpkin County v. Davis, 185 Ga. 393, 395 (1938). However, Ga. Laws 1965, pp. 2294, 2296 (Section 5), specifically provides:
"The necessary operating expenses of the office of the sheriff [of Fannin County] ... shall be paid from funds of the county.... All supplies, equipment, materials, furnishings, [etc.] reasonably required in discharging the official duties of said office shall be furnished by the county and shall be paid from [county funds]."
This seems quite obviously to cover the uniforms, pistols and ammunition to which your request is directed. (3) "Can the county governing authority by majority vote legally authorize additional payment to the clerk of said county, above and beyond the amount set forth in Ga. Laws 1969, pp. 2641-48, where the additional compensation is being paid for the clerk to perform additional secretarial, clerical and administrative duties other than those duties set forth in Ga. Laws 1969, pp. 2641-48?"
The county governing authority of Fannin County may increase the salary of the clerk of the board of commissioners pursuant to Ga. Const., Art. XV, Sec. II-A, Pars. I and II (Ga. Code Ann. 2-8402, 2-8403). (4) "Assuming that any of the above expenditures are made, and they are illegal, will the commissioner or commissioners authorizing the expenditures be personally liable for the expenditures?"
Although the specific question posed has apparently not been presented to the appellate courts of this state, the case of Koehler v. Massell, 229 Ga. 359 (1972), is sufficiently broad to furnish the proper answer. In that case, the Supreme Court held, in relation to a city governing authority, that:
"in the absence of a showing of bad faith, malice or fraud, coupled with a showing of direct or indirect pecuniary gain ... or a showing of the violation of the provisions of Code Ann. 26-2304 (b) or of 26-2305 (b) relating to the acceptance of bribes ... [a] mayor and board of aldermen [are] not ... individually liable to respond in damages for legislative action taken by them. Koehler v. Massell, supra, at 365-66. (Emphasis added.) 2

2 See also, Annot. 22 A.L.R. 125 (1923). This view, however, is not unanimous. See, e.g., In re Audit of Susquehanna County, 118 Pa. Super. 47, 180 A. 148 (1935); Fannin v. Davis, 385 S.W. 2d 321 (Ky. 1964). See also, Nelson v. Wainwright, 224 Ga. 693
(1968).

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The above-cited decision clearly holds the appropriation of funds by a governing authority to be legislative action. It is therefore my unofficial opinion that the members of a board of county commissioners are not personally liable for money appropriated without legal authority in the absence of bad faith, malice or fraud, coupled with a showing of direct or indirect pecuniary gain or a violation of criminal statutes.

UNOFFICIAL OPINION U74-48

To: District Attorney, Coweta Judicial Circuit

May 31, 1974

Re: A district attorney may seek election to the office of superior court judge while serving as a district attorney. Further, considering the possible consequences of the 1962 state emeritus office forfeiture amendment, it is deemed advisable for any state official subject to the 1962 amendment to defer the attainment of emeritus status at least until the conclusion of any attempt to seek another public office.

This responds to your letter seeking advice on questions relating to your possible offer for election to the position of superior court judge in this year's primary and general elections. You have asked, essentially (1) whether you can offer for election to this position while serving as district attorney for the Coweta Judicial Circuit, and (2) whether, if you pay for and claim certain years of creditable service to which you are entitled and therefore become eligible for appointment as a district attorney emeritus, you would be required to forfeit your emeritus eligibility in order to offer for election.
As I understand the situation, you are presently serving in your seventh year as district attorney and have received these seven years of credit under the District Attorneys Emeritus Act. You have also been credited with five years of military service for service rendered in World War II. Additionally, you are entitled under the Act to purchase several years of creditable service as solicitor of a city court. However, you have not, to date, paid for and claimed these additional years. If you do so, you wHl be eligible under the Act for emeritus status.
In answer to your first question, the right of any citizen to hold public office is rudimentary and fundamental, with ineligibility being the exception. A citizen may not be deprived of this right except by some disqualification declared by the Constitution or statutory law. McLendon v. Everett, 205 Ga. 713 (1949). I can find no prohibition in either Georgia statutory law or the Georgia Constitution which would prohibit your seeking election to the position of superior court judge

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while serving as district attorney. To the contrary, in fact, the District Attorneys Emeritus Act specifically provides conditions under which a DA emeritus or one eligible for emeritus status may seek and hold other public office. Ga. Laws 1949, p. 780 et seq., as amended (Ga. Code Ann. 24-2904a).
Your second question is somewhat more troublesome. On the one hand, as previously stated, the District Attorneys Emeritus Act specifically includes in one of its sections conditions under which any DA, who has been appointed DA emeritus or who is eligible for such appointment, may hold some other office of profit or trust under the U.S. or Georgia Constitution. The election or appointment to such an office does not affect any existing rights of a DA under the District Attorneys Emeritus Act except to suspend the right to hold the emeritus office and receive the salary provided therefor during the time of tenure in another office. Ga. Laws 1949, p. 780 et seq., as amended (Ga. Code Ann. 24-2904a).
The above statute would provide by itself a full and complete answer to your question were it not for an Act of the General Assembly enacted in 1962. The Act creating emeritus offices for certain specific state officials (Ga. Laws 1957, p. 206 et seq. (Ga. Code Ann. Ch. 78-12)) was amended in 1962 with the following language:

"No person holding and enjoying, or eligible to hold and enjoy, the pay, perquisites, duties and responsibilities of an emeritus office or emeritus status shall offer or qualify as a candidate in any primary, special, general or other election as a candidate for any other public office provided for under the terms of the State Constitution, or any law made pursuant thereto, unless he shall first tender his resignation to the Governor resigning his said emeritus office or emeritus status, or eligibility therefor, and upon such tender of said resignation all rights, pay, perquisites, duties, eligibility and responsibilities pertaining to said emeritus office or emeritus status shall cease forthwith and be forfeited. The provisions of this section shall apply to all emeritus offices and emeritus status created under the Act approved March 7, 1957, hereinabove referred to, and any and all other state emeritus offices and state emeritus status now existing by virtue of Acts of the General Assembly of Georgia." Ga. Laws 1962, pp. 602, 603 (Ga. Code Ann. 78-1206).

In previous unofficial opinions, this office has suggested that accepted rules of statutory construction might operate to res.trict the quoted amendment above to those specific state officials covered by the original 1957 Act, namely, the State Treasurer, State School Superintendent, Comptroller General, Secretary of State, Attorney General,

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Commissioner of Labor, Public Service Commissioner, and the Commissioner of Agriculture. Ops. Att'y Gen. 68-199, 68-346.
While a good argument can be made that the 1962 amendment should not apply to district attorneys emeritii, whether the courts would agree w1th and sustain such an argument is debatable. In my judgment, a district attorney emeritus, or one eligible for such status, would assume a substantial risk in presupposing such an outcome. In view of the rather severe consequences of the 1962 amendment, should it be read by the courts literally and technically, the wiser course for you to follow would be to defer your payment and claim of any years as a city court solicitor until a later date, thereby remaining ineligible at present for DA emeritus status and concomitantly preventing the application of the 1962 forfeiture amendment as to your situation. At some future date, when your political ambitions and aspirations are determined, you will undoubtedly be in a better position to decide whether to achieve state emeritus office status in any position.
In summary then, it is my unofficial opinion that a district attorney may seek election to the office of superior court judge while serving as a district attorney; and it is my further opinion that, considering the possible consequences of the 1962 state emeritus office forfeiture amendment, it is deemed advisable for any state official subject to the 1962 amendment to defer the attainment of emeritus status at least until the conclusion of any attempt to seek another public office.
In view of the fact that you took office as a district attorney after the referenced 1962 amendment, the question of any vested right to a mere suspension of your emeritus status, as opposed to forfeiture, is pretermitted. See, generally, Bender v. Anglin, 207 Ga. 108 (1950).

UNOFFICIAL OPINION U74-49

To: Associate City Attorney

June 3, 1974

Re: An operator of a small truck which is not subject to Class IV or V licensing requirements is only required to possess a Class I license even when towing a pole trailer.

By letter of April 30, 1974, you have inquired as to whether the holder of a Class I driver's license may operate a small truck pulling a pole trailer. Your inquiry is addressed to situations where the truck in question would not be so large as to require a Class IV license.
Ga. Laws 1937, pp. 322, 342, as amended, particularly by Ga. Laws 1972, p. 1078 (Ga. Code Ann. 92A-401) (hereinafter referred to by the Georgia Code Annotated citation), specifies what types of vehicles may be operated by holders of different license classifications. With

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respect to Class I license holders, it is provided that such holders may operate any motor vehicle "not included in Class II through V." In order to answer your question it is, therefore, necessary to ascertain the vehicles for which a Class II through V license is required.
Upon inspection the question is narrowed to whether a Class V license is required for a truck hauling a pole trailer since Classes II, III and IV deal with motorcycles, motor vehicles 80 inches or more in width and carrying 10 or more passengers used as common carriers, and trucks licensed and registered for 24,000 pounds or more gross weight.
An individual must hold a Class V license in order to operate "tractor-trailers." "Tractor" is defined essentially as a motor vehicle designed and used primarily for drawing other vehicles and not for carrying any load thereon. Ga. Code Ann. 92A-401 (d) (4). The definition of "trailer" specifically excludes pole trailers. Ga. Code Ann. 92A-401 (d) (5). Thus, the term "tractor-trailers," the operation of which requires a Class V license, does not include load bearing trucks towing pole trailers.
In answer to your question, the operator of a truck that is not a tractor and that weighs less than 24,000 pounds need only hold a Class I license even when towing a pole trailer with that truck.

UNOFFICIAL OPINION U74-50

To: Secretary-Treasurer, Firemen's Pension Fund

June 4, 1974

Re: A member of the Georgia Firemen's Pension Fund, who leaves service as a fireman or volunteer fireman after the effective date of the 1973 amendment (Ga. Laws 1973, p. 186), and who is otherwise eligible, may begin receiving pension benefits upon attaining 55 years of age.

This responds to your letter requesting an opinion on the construction of that portion of the law which sets out the age requirement for retirement under the Georgia Firemen's Pension Fund. Your concern centers around an apparent discrepancy in the law concerning such age requirement.
As I understand the situation, the possible discrepancy revolves around Ga. Laws 1955, pp. 339, 342, as amended specifically by Ga. Laws 1973, p. 186 (Ga. Code Ann. 78-1007), and Ga. Laws 1960, pp. 991, 992 (Ga. Code Ann. 78-1018). This 1973 amendment provides in relevant part as follows:
"Any eligible fireman or volunteer fireman who has served twenty-

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five (25) years as a fireman or volunteer fireman ... shall be retired upon monthly pension of one hundred twenty-five ($125.00) dollars. Provided that any fireman or volunteer fireman retiring after twenty-five (25) years of service, but before reaching the age of fifty-five (55) years, may cease his monthly five ($5.00) dollar payment to the fund, and upon reaching the age of fifty-five (55) years and being otherwise eligible, he shall be paid a pension of one hundred twenty-five ($125.00) dollars per month." (Emphasis added.)
The statute as originally enacted in 1955 required a member to attain "sixty (60) years" of age to retire under the fund. However, in 1971, the legislature reduced the age requirement from 60 to 58 (Ga. Laws 1971, p. 332), and, as set out above, the 1973 amendment further lowered the retirement age to 55. Therefore, there is no question but that the legislature i;ntended to reduce the age requirement for retirement under the fund, first of all from age 60 to 58, and then secondly from age 58 to 55.
The problem arises when one looks at this 1973 amendment in conjunction with Ga. Laws 1960, pp. 991, 992 (Ga. Code Ann. 78-1018). This 1960 statute reads in relevant part as follows:
"Any fireman retiring after twenty-five (25) years of service, but prior to reaching the age of sixty (60) years and thereupon ceasing to make his five ($5.00) dollar monthly payment to the fund as provided ii!l Section 7 of this Act (Ga. Code Ann. 78-1007), and being otherwise eligible, shall be entitled to receive, as monthly pension upon his attaining the age of sixty (60) years, the amount which is specified by this Act as of the date such fireman attains his sixtieth birthday." (Emphasis and parenthetical matter added.)
The legislative purpose behind this statutory enactment evidently was to allow firemen, who retire and cease their contributions to the fund after 25 years of service, to take advantage of increases in pension benefits enacted prior to their meeting the age requirement. As a matter of fact, the legislature has increased such benefits several times since the original passage of this section.
In my opinion, the references to attaining 60 years of age were inserted so as to make the section consistent with Ga. Code Ann. 78-1007, to which it refers, since at the time of the enactment of the 1960 law, the age requirement was indeed "sixty (60) years." Furthermore, it is the general rule that laws pertaining to pensions must be liberally construed in favor of the pensioner. See, for example, City of Macon v. Herrington, 198 Ga. 576, 589 (1944); Burks v. Board of Trustees, 214 Ga. 251 (1958). With this in mind, it is my considered judgment that a court of law would hold that the phrases "the age

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of sixty years" and "his sixtieth birthday" used in Ga. Laws 1960, pp. 991, 992 (Ga. Code Ann. 78-1018), in actuality, mean "theretirement age." Although my opinion that a court would so hold is firm, it would be appropriate for the fund to seek "housekeeping" legislation next year conforming the age requirements of the two apparently conflicting statutes. I will be glad to assist the fund in the preparation of such legislation.
To summarize, it is my unofficial opinion that a member of the Georgia Firemen's Pension Fund, who leaves service as a fireman or volunteer fireman after the effective date of the 1973 amendment (Ga. Laws 1973, p. 186), and who is otherwise eligible, may begin receiving pension benefits upon attaining 55 years of age.

UNOFFICIAL OPINION U74-51

To: Chief Judge, Clayton Superior Court

June 11, 1974

Re: To whatever extent the 1962 state emeritus office forfeiture amendment may be applicable to judges of the superior courts generally, it cannot be applied constitutionally to a judge of the superior courts who was covered under the Emeritus Act prior to the 1962 amendment.

This responds to your letter requesting information and advice relative to your seeking election to the Supreme Court of Georgia. Since you are presently eligible for appointment to the office of judge of the superior courts emeritus, your concern focuses upon what restrictions the law imposes upon a judge eligible to attain emeritus status should he decide to seek election to another public office.
As I understand the situation, you assumed your present office as judge of the superior courts in the Clayton Judicial Circuit on January 1, 1961. At that time you became a contributing member of the Superior Court Judges' Emeritus Retirement Fund which was created by Ga. Laws 1945, p. 362 et seq. (Ga. Code Ann. Ch. 24-26A). At this point in time, you are understandably concerned as to whether Georgip, statutory law requires that your emeritus status be suspended during any tenure you may have in another public office or, on the other hand, whether you are required by statutory law to forfeit your emeritus eligibility in order to pursue further judicial ambitions.
At the time you assumed your position as judge of the superior courts, the Superior Court Judges' Emeritus Retirement Fund statutes had been amended in 1960 to specifically provide that any judge of the superior court who was eligible for appointment as an emeritus judge could be elected or appointed to another office of profit or trust

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under the Constitution of the United States or the Constitution of Georgia, with his right to appointment as an emeritus judge only suspended during the period of time that he should hold another public office. Ga. Laws 1960, p. 161 et seq. (Ga. Code Ann. 24-2605a.l.). The restriction supplied by this law operates to suspend the right of appointment as a judge emeritus during the time a superior court judge is holding another constitutional office, with the full right of reinstatement to such eligibility upon his completion of tenure in the other office. The legislative intendment of this statute seems clear and indicates that the General Assembly considers it appropriate and proper, under certain conditions, for judges eligible for emeritus status to seek other public office.
The foregoing statute would be dispositive of your inquiry were it not for a later Act of the General Assembly (Ga. Laws 1962, p. 602). By Act of the General Assembly in 1957, certain emeritus offices for specific state officials were created. Ga. Laws 1957, p. 206 et seq. (Ga. Code Ann. Ch. 78-12). This law created emeritus offices for the State Treasurer, State School Superintendent, Comptroller General, Secretary of State, Attorney General, Commissioner of Labor, Public Service Commissioner and the Commissioner of Agriculture. The later Act of the General Assembly to which I refer amended the 1957 Emeritus Act for specific state officials with the following language:
"No person holding and enjoying, or eligible to hold and enjoy, the pay, perquisites, duties and responsibilities of an emeritus office or emeritus status shall offer or qualify as a candidate in any primary, special, general or other election as a candidate for any other public office provided for under the terms of the State Constitution, or any law made pursuant thereto, unless he shall first tender his resignation to the Governor resigning his said emeritus office or emeritus status, or eligibility therefor, and upon such tender of said resignation all rights, pay, perquisites, duties, eligibility and responsibilities pertaining to said emeritus office or emeritus status shall cease forthwith and be forfeited. The provisions of this section shall apply to all emeritus offices and emeritus status created under the Act approved March 7, 1957, hereinabove referred to, and any and all other state emeritus offices and state emeritus status now existing by virtue of Acts of the General Assembly of Georgia." Ga. Laws 1962, p. 602 (Ga. Code Ann. 78-1206).
Construing the quoted portion of the 1962 amendment literally and technically, it would appear to require any judge of the superior courts eligible to obtain emeritus status to resign his right to such eligibility prior to seeking a seat on the Supreme Court of Georgia. However, the question you ask is further convoluted by even a later Act of the

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General Assembly in 1964. Under Ga. Laws 1964, p. 683 et seq., the General Assembly amended the referenced 1957 Act, as already amended by the quoted portion of the 1962 amendment, by stating as follows:
"Provided, however, that the provisions of this Act, and of any amendatory Acts thereto, shall not be applicable to any judge of the superior court or any judge of the superior courts emeritus." (Emphasis supplied.) Ga. Laws 1964, p. 683, amending Ga. Code Ann. 78-1201.
In a previous unofficial opinion, I concluded that the 1964 amendment quoted immediately above makes the forfeiture or resignation provisions of the 1962 amendment inapplicable to judges of the superior courts emeritus or superior court judges eligible to attain such status. Op. Att'y Gen. 68-199. I reached this conclusion through the application of several fundamental rules of statutory construction. In the first place, the clear language of the 1964 amendment specifically excludes judges of the superior courts from the forfeiture and resignation provisions and seems to mean exactly what it says. See, generally, Barnes v. Carter, 120 Ga. 895 (1904).
Secondly, forfeitures of rights such as provided by the 1962 amendment are not favored in Georgia law. Roby v. Newton, 121 Ga. 679 (1904). Thirdly, statutes providing retirement benefits for public officials are entitled to liberal construction insofar as they advance the legitimate governmental purpose of securing and retaining more desirable public officials. Burks v. Board of Trustees, 214 Ga. 251 (1958); City of Macon v. Herrington, 198 Ga. 576 (1944); Griffin v. Bass, 96 Ga. App. 892 (1958).
In researching the law in preparation of this opinion, I have had an opportunity to review my 1968 unofficial opinion (Op. Att'y Gen. 68-199), as well as the statutes referred to previously. Although repeals of statutes by implication are not favored in our law, an argument can be advanced that the 1962 amendment, quoted previously, repealed by implication the 1960 Act providing for a mere suspension of emeritus eligibility for a judge of the superior courts who seeks another public office. See, e.g., Williams v. Western & Atlantic R. R. Co., 142 Ga. 696 (1914); West End and Atlanta Street R. R. Co. v. Atlanta Street R. R. Co., 49 Ga. 151 (1873). Also, my review of the 1964 amendment purporting to exclude judges of the superior courts from the forfeiture and resignation provisions of the 1962 amendment has revealed what might be construed as a variance between the title and body of the 1964 amendment which could render the exclusion nugatory and invalid.
Notwithstanding the foregoing possibilities, I shall continue to adhere to my previous opinion expressed in Op. Att'y Gen. 68-199. I do

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so, essentially, for two reasons. First of all, the law in Georgia is quite clear that a repeal of a statute by implication is not favored and can only occur when laws are in irreconcilable conflict with each other, are clearly contradictory, and by no construction may stand together. Mayor of Athens v. Wansley, 210 Ga. 174 (1953); Adcock v. State, 60 Ga. App. 207 (1939). Additionally, in approaching the question of whether any statute is unconstitutional or invalid, it should be borne in mind that there is a presumption in favor of the constitutionality of the statute. Cooper v. Rollins, 152 Ga. 588 (1921). Accordingly, although arguments may be advanced contra, I feel my previous opinion to be correct.
Assuming, however, for the purpose of argument, that the courts would not sustain my position as stated, I find it unnecessary, in your case, to attempt to harmonize the maze of judicial decisions on repeals of statutes by implication and the other problems of statutory interpretation involved here. Based on the constitutional law of our state, it is my judgment that the 1962 forfeiture and emeritus resignation amendment is not applicable to you personally.
Our State Constitution provides in Article I, Section III, Paragraph II (Ga. Code Ann. 2-302) that no law impairing the obligation of contracts shall be passed. When you assumed the position of superior court judge in 1961, the statutes comprising the Superior Court Judges' Emeritus Retirement Fund were incorporated as part of your employment contract with the State of Georgia. See, e.g., Burks v. Board of Trustees, 214 Ga. 251 (1958); Ops. Att'y Gen. 71-5, 72-122. The 1962 forfeiture and resignation amendment, enacted the next year, in my judgment, restricts and impairs that portion of your statutory employment contract which allows you to seek another office of profit or trust under the Federal or State Constitutions subject only to the condition that your rights and responsibilities as an emeritus judge are suspended as opposed to forfeited. This right, as stated previously, was given you by the 1960 amendment to the Superior Court Judges' Emeritus Retirement Fund law and was of force and effect when you took office.
When you entered into service as a judge of the superior courts, you had the right to offer for election to another office without forfeiting your rights under the Emeritus Act. Upon your election to another public office, your rights to emeritus status would not be forfeited but would be suspended. Even upon defeat, your rights to emeritus eligibility would continue. The right to hold public office is a fundamental right given all citizens. McLendon v. Everett, 205 Ga. 713 (1949). It is reasonable to assume that it was of no little consequence to you as a lawyer in 1960, as you pondered whether you should assume the office of superior court judge, that you knew if you later desired to do so, you could become a candidate for another

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public office without forfeiting your emeritus eligibility or rights. There is no doubt that the rule of law in Georgia specifies that a
contractual relationship arises between a public employee and the employing authority at the time the employment begins. Retirement or pension statutes conferring rights and benefits and becoming part of an employment contract may not thereafter be diluted, restricted or impaired. City Council of Augusta v. Young, 218 Ga. 346 (1962); Burks v. Board of Trustees, 214 Ga. 251 (1958); City of Atlanta v. Anglin, 209 Ga. 170 (1952); Bender v. Anglin, 207 Ga. 108 (1950); Webb v. Whitley, 114 Ga. App. 153 (1966).
Based on the foregoing, it is my opinion that to whatever extent the 1962 forfeiture and resignation amendment may be applicable to judges of the superior courts generally, it cannot be applied constitutionally to you to restrict or impair the retirement rights and benefits you received under the Emeritus Act in effect when you took office. Consequently, it is my further opinion that you are not required to resign your emeritus eligibility prior to seeking a seat on the Supreme Court of Georgia.

UNOFFICIAL OPINION U74-52

To: County Attorney

June 17, 1974

Re: The Sheriff's Retirement Fund of Georgia is to be paid $1.50 out of each fine of $5 or more, which fine includes costs and which is levied and collected by a court which the sheriff serves. The $1.50 is to be paid to the fund by the "collecting authority," irrespective of who that may be in any particular situation. The same is true regarding funds distributed to the retirement fund for ordinaries.

This is in response to your letter of April 22, 1974, requesting our opinion regarding payments of $1.50 made to the Sheriff's Retirement Fund of Georgia from each fine of $5 or more which is levied or collected by the courts which the sheriff serves.
Georgia Laws 1968, pp. 1203, 1207 (Ga. Code Ann. 24-2810a), states in part that:
"In all criminal and quasi-criminal cases ... before any court in this state in which any sheriff of the several superior courts of this state ... acts as sheriff thereto by virtue of his office, and in which a fine ... is collected, or wherein a bond ... is forfeited and collected, in the amount of $5 or more, the sum of $1.50 thereof is hereby allocated to the board of commissioners of the Sheriff's Retirement Fund of Georgia and shall be paid to said board quarterly ... by the clerk of the court wherein such is collected or the collecting authority."

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You indicated in your letter that Ga. Laws 1964, Extra. Sess., pp. 2213, 2214, placed the sheriff of Bacon County on the salary system and abolished the fee system, providing that:
"After the effective date of this Act, the sheriff shall diligently and faithfully undertake to collect all fees, fines, forfeitures, commissions, costs, allowances, penalties, funds, moneys and all other emoluments and perquisites formerly allowed him as compensation for services in any capacity ... and shall pay the same to the county fiscal authority ...."
You indicated that this provision has been construed to mean that the sheriff is to turn over all funds collected by him directly to the county officers rather than to the clerk of the court which levied the fine so collected, thus concluding that this generated a problem as to who was to pay the requisite fees into the retirement fund.
The difficulty is wholly superficial in that Ga. Code Ann. 22-2810a requires that the fees shall be paid to the retirement fund by either the clerk of the court or by "the collecting authority." (Emphasis added.) Therefore, for those fines which are collected by the sheriff and turned over to the county and which never pass through the clerk of the court, the collecting authority, rather than the clerk, should pay the funds to the retirement fund. For those funds paid or collected by the clerk, the clerk should make the payment to the fund.
Therefore, it is my unofficial opinion that the "collecting authority" of any such funds, whoever that may be in Bacon County, is authorized and directed to take $1.50 out of every fine of $5 or more which is levied and collected, and to disburse that money to the board of commissioners of the Sheriff's Retirement Fund of Georgia. The same rationale applies to your question concerning the contributions to the rethement fund for ordinaries.

UNOFFICIAL OPINION U74-53

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

June 19, 1974

Re: The board of trustees of the Georgia Firemen's Pension Fund is authorized and empowered to excuse volunteer firemen from the required attendance percentage at drills, meetings and fires of their respective departments, so long as the attendance is prevented by cause beyond the control of the volunteer firemen.

This responds to your letter of June 17 requesting an opinion on one feature of the law creating and establishing the Georgia Firemen's

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Pension Fund. Ga. Laws 1955, p. 339 et seq. (Ga. Code Ann. Ch. 78-10), both as amended.
The situation generating your request for an opinion is basi,cally as follows. On May 23, 1974, the board of trustees of the Georgia Firemen's Pension Fund held a hearing to consider the status and eligibility for retirement benefits of 14 volunteer firemen whose records revealed that during certain years for which they claimed retirement credit, they did not attend the statutorily prescribed percentage of the fires, meetings and drills of their departments. Each of these volunteer firemen offered cogent explanations as to why their records were incomplete. Some produced affidavits, witnesses and other evidence to show that, in fact, they did attend the required percentage of drills, meetings and fires. Specifically, your question is whether the board of trustees may excuse these volunteer firemen from their failure of attendance during the years in question so as to allow the continuation of their eligibility for retirement benefits.
In a previous unofficial opinion to you under date of January 25, 1974, Op. Att'y Gen. U74-8, this office advised you that only those volunteer firemen who fit the statutory definition could be retired under your fund. The Act creating the fund defines "volunteer firemen" at Ga. Laws 1955, p. 339 et seq. (Ga. Code Ann. 78-1001 (2) ), both as amended. This definition requires that volunteer firemen attend a required percentage of the fires, drills and meetings of their departments in order to be classified as volunteers for fund purposes. I refer you to that opinion and reiterate my statement that eligibility for retirement and benefits under the Firemen's Pension Fund can only follow definitional conformity.
As to those volunteer firemen who did not attend the required percentage of fires, meetings and drills, you ask whether the board of trustees may excuse such failure of attendance. Previously, the law was unclear and needed statutory interpretation. (See the unofficial opinion to the fund dated January 25, 1974, Op. Att'y Gen. U74-8.) This was so because the phrase "membership in the fund" was not clearly defined and was used somewhat indiscriminately in your Act to mean entry into, membership in or retirement under the fund.
The General Assembly has now spoken distinctly on this issue. In its most recent session, the General Assembly enacted Act 861, Ga. Laws 1974, p. 377, approved by the Governor on March 21, 1974, which reads i;n pertinent part as follows:

"Notwithstanding any provision to the contrary contained in this Act, the board of trustees of said fund is hereby authorized and empowered to pass upon and determine the eligibility for membership in, and retirement under the provisions of, the fund of any volunteer fireman who, for cause beyond his control, is or was unable

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to attend, during any calendar year or years, the prescribed annual percentage of all drills, meetings and fires . ..." (Emphasis added.)
The above-quoted portion of Act 861, amending the Firemen's Pension Fund Act, must be read to mean what it clearly expresses. Gazan v. Heery, 183 Ga. 30 (1936). It would appear, then, that volunteer firemen who are prevented, for cause beyond their control, from attendance at the requisite percentage of fires, drms and meetings, during any calendar year or years, may stm be afforded creditable service for that year or years. At this point, however, I feel impelled to emphasize to the board of trustees that only those volunteers who show that the prevention of the required attendance was due to causes beyond their control may be accorded such credit. Certainly the board of trustees has the statutory authority to allow such credit. However, this authority must be born of the board's discretion, and that discretion must be well-reasoned and not abused. United States Nat. Bank of Kenosha v. Sullivan, 69 F.2d 412 (1934).
The board of trustees should look at each volunteer fireman individually and separately and determine whether, in its judgment, the volunteer was prevented by causes beyond his control from meeting the statutorily required attendance. This should be a carefully considered decision of the board of trustees.
Therefore, based on the foregoing, it is my unofficial opinion that the board of trustees of the Georgia Firemen's Pension Fund is authorized and empowered to excuse volunteer firemen from the required attendance percentage at drills, meetings and fires of their respective departments, so long as the attendance is prevented by cause beyond the control of the volunteer firemen. As stated previously, the General Assembly has spoken clearly on this issue in the 1974 Session through Ga. Laws, Act 861. To the extent that any observations or conclusions contained in the earlier opinion of this office (Op. Att'y Gen. U74-8, dated January 25, 1974), prepared prior to Act 861, differ with those herein contained, the former observations and conclusions are withdrawn.

UNOFFICIAL OPINION U74-54

To: Assistant Solicitor, Criminal Court of Fulton County

June 20, 1974

Re: Ga. Laws 1968, p. 2983, pertaining to the hauling of gravel, dirt, or sand in certain counties, was not repealed, expressly or by implication, by the enactment of the Georgia Code of Public Transportation, Ga. Laws 1973, pp. 947, 1095.

Your letter of .June 7, 1974, requested an opinion on the question of whether Ga. Laws 1968, p. 2983, was repealed, at least by impli-

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cation, by Ga. Laws 1973, pp. 947, 1095 (Ga. Code Ann., 95A-955). Ga. Laws 1968, p. 2983, is a general Act with application to counties
having a population of 500,000 or greater. It makes unlawful the operation of any motor vehicle hauling gravel, dirt, or sand in a manner causing the load to spill or be dislodged and requires a protective covering on all such vehicles traveling two or more miles on streets or highways. Ga. Laws 1973, pp. 947, 1095, is an Act of general application throughout the state. It proscribes operation on any public road of any vehicle which is not constructed, loaded, or covered to prevent dropping, escaping, or shifting of its loads and requires that the load or any cover thereon be securely fastened to avoid creation of a safety hazard.
As a general rule, unless they expressly provide to the contrary, Acts of the General Assembly continue in force as law until abrogation by subsequent legislation. Mayor of Athens v. Wansley, 210 Ga. 174, 177 (1953); 2 C.Sands, Statutes and Statutory Construction, 34.01 (4th ed. 1972 revision of Sutherland Statutory Construction). Repeal of existing law may be accomplished expressly, provided that the repealing Act "shall distinctly describe the law to be amended or repealed, as well as the alteration to be made." Ga. Const., Art. III, Sec. VII, Par. XVI (Ga. Code Ann., 2-1916). The 1968 Act was not expressly repealed by the subsequent enactment of the Georgia Code of Public Transportation. See Section 2, Specific Repealer, Ga. Laws 1973, pp. 947, 1174-1190.
Repeal may also be effectively accomplished by implication; however a judicial presumption exists against such repeals, which are "not favored" in the law. Bragg v. Bragg, 225 Ga. 494, 495 (1969); Lewis v. City of Smyrna, 214 Ga. 323, 326 (1958); 1A C.Sands, Statutes and Statutory Construction, 23.10 (4th ed. 1972 revision of Sutherland Statutory Construction). Repeals by implication "never occur except where the 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). "The intention to repeal must be plain and unmistakable." Geeslin v. Opie, 220 Ga. 53, 56 (1964). There must be a "positive repugnancy" between the provisions of the new law and those of the old. Mayor of Athens v. Wansley, supra.
Ga. Laws 1973, pp. 947, 1095, is a relatively new provision in Georgia law, basically requiring safe loading and covering of vehicles to prevent safety hazards to users of the public roads. See Op. Att'y Gen. 73-149. It applies to any vehicle of whatever load traveling for any distance on any public road in the state. Ga. Laws 1968, p. 2983, also applying to vehicle loads, is more particular and imposes additional requirements upon vehicles in certain counties, carrying certain loads, and traveling a distance of two miles or more. "The mere enact-

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ment by the legislature of a general statute upon a subject-matter dealt with in a formerly passed particular statute will not alone repeal the latter." Crosby v. Dixie Metal Co., 124 Ga. App. 169 (1971). Nor does there appear positive repugnancy or clear contradiction between the two Acts which can be reconciled such that both may stand. The existence of the later Act does not prevent the enforcement of the more particular earlier Act in Fulton County as to vehicles carrying gravel, dirt, or sand. Indeed, such enforcement advances the aim of avoiding safety hazards sought by the later Act. Conversely, the earlier Act in no way interferes with enforcement of the later Act as to all vehicles throughout the state, including Fulton County.
Based on the foregoing, it is my unofficial opinion that Ga. Laws 1968, p. 2983, was not repealed by Ga. Laws 1973, pp. 947, 1095.

UNOFFICIAL OPINION U74-55

To: Attorney for County Board of Education

July 2, 1974

Re: The expenses of a school bond election must be borne by the county board of education and not the county board of commissioners.

This is in response to your letter requesting an opinion on whether the board of education or the county board of commissioners is responsible for paying the expenses of a special bond election called by the board of education. For the following reasons, it is my opinion that the board of education must pay the expenses of the election.
Each county in this state is a school district, exclusive of independent school districts in existence prior to the Constitution of 1945. Ga. Const., Art. VIII, Sec. V, Far. I (Ga. Code Ann. 2-6801). County boards of education may incur bonded indebtedness (Ga. Code Ann. 32-1403; Ga. Laws 1946, p. 206), if approved in an election held pursuant to Ga. Code Ch. 87-2. The expenses of the election are incident to issuing bonds and could therefore properly be paid by the school board.
Each county school district is a separate political subdivision of the state which is controlled and managed by a board of education. See Grier v. Loyless, 143 Ga. 428 (1915). Since the school district is a separate subdivision and the board of education exercises control over the fiscal affairs of the district, incidental expenses must be paid by the board of education unless a provision of law requires the board of commissioners to bear the expense. I can find no such requirement.
Georgia Code Ch. 87-2 governs elections to incur bonded indebtedness. Ga. Code (1933) 87-202 provides:
"The election ... shall be held at all voting or election precincts

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within the limits of the county, municipality, or political division, and shall be held by the same persons, in the same manner, and under the same rules and regulations that elections for officers of said county, municipality or political division are held, and the returns shall be made to the officers calling or ordering the election, who shall, in the presence of and together with the several managers (who bring up the returns) consolidate said returns and declare the result."
The manner of holding elections for officers and the rules and regulations governing such elections are found in Title 34, the Georgia Election Code. Code 34-402 (Ga. Laws 1964, Extra. Sess., pp. 26, 41; 1970, pp. 347, 351) requires the county to appropriate to the ordinary the funds necessary to conduct elections. However, Ga. Code 87-202 does not incorporate this section inasmuch as Ga. Code 34-402 does not relate to the manner of holding the election but to county appropriations. If the Election Code, in toto, were applicable to bond elections, then Ga. Code 87-202 would be surplusage. In enacting the Election Code, the General Assembly is presumed to have reviewed all existing statutes on the subject of elections. Laite v. Stewart, 112 Ga. App. 853, 855 (1965). Therefore, Ga. Code 87-202 must have been considered necessary to govern bond elections, and the Election Code applies only to the extent that it prescribes the manner of holding elections.
In Nelms v. Stephens County School District, 201 Ga. 274, 276 (1946), the Supreme Court held that the county board of education was the "proper authority to call, manage, consolidate and declare the result of an election for the purpose of incurring bonded indebtedness for build~ng and equipping schoolhouses." Considering this plenary authority of the board of education over bond elections, practical considerations dictate that the board assume financial responsibility for the elections. If the board of commissioners were required to pay for bond elections, it might encourage the board of education to incur greater election expenses. While this is probably an unlikely result, it nevertheless appears that there is no compelling reason why one political subdivision should bear another's expenses. It is therefore my opinion that the board of education is both authorized and obliged to pay the expenses of a school bond election.

UNOFFICIAL OPINION U74-56

To: Attorney at Law

July 10, 1974

Re: The tax on transfer of real property, Ga. Code Ann. Ch. 92-g, does not apply to property acquired by the Department of Transportation under the authority of Ga. Code Ann. Ch. 95A-6.

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Your letter of June 4, 1974, requested an opinion as to when and by whom the transfer tax on right-of-way deeds and easements is paid for certain projects for the Department of Transportation.
The tax on transfer of real property is governed by Chapter 92-8 of the Georgia Code which generally imposes a tax on all deeds or instruments which transfer real estate to a purchaser for consideration in excess of $100. Ga. Code Ann. 92-801 (Ga. Laws 1967, p. 788; 1971, p. 266). The tax may be paid by the grantor or by the person for whose use the deed is executed. Ga. Code Ann. 92-802 (Ga. Laws 1967, pp. 788, 789). In theory this is an excise tax on the privilege of selling real property and is imposed primarily on the transferor and secondarily on the transferee. See Op. Att'y Gen. U68-75. In practice, however, since payment of the tax is a prerequisite to recording the deed, the ultimate burden for payment shifts to the purchaser. Ga. Code Ann. 92-805 (Ga. Laws 1967, pp. 788, 790; 1971, pp. 266, 267).
More to the point of your specific questions, the acquisition of real property for public transportation purposes is governed by Chapter 95A-6 of the Georgia Code which states "The provisions of Chapter 92-8 shall not apply to property acquired under the authority of this Chapter." Ga. Code Ann. 95A-602 (Ga. Laws 1973, pp. 947, 1007). By this provision in the 1973 Act, the General Assembly expressed a clear intent to remove the requirement of transfer taxes and documentary stamps, established by the 1967 Act, from acquisitions by the Department of Transportation.
Based on the foregoing, it is my unofficial opinion that by virtue of Ga. Code Ann. 95A-602 (Ga. Laws 1973, pp. 947, 1007), no transfer tax is payable by the grantor or the Department of Transportation on the projects in question.

UNOFFICIAL OPINION U74-57

To: Ordinary, Stephens County

July 12, 1974

Re: (1) If two incumbent county commissioners qualify for the same post they must both be listed as "incumbents" on the primary ballot; and (2) The foregoing is not affected by an order of the superior court of Stephens County declaring the post vacant by reason of the incumbent's nonresidence in the county since the order has been superseded by an order of the Georgia Supreme Court.

This is in response to your letter of July 2, 1974, requesting an opinion concerning a very complicated situation in Stephens County. You have related to me the following facts. Stephens County has three county commissioners who were elected by the entire county but must qualify by numbered posts. Two persons claiming to be incumbent

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commissioners have qualified for the same numbered post and you asked whether they should both be designated as "incumbents" on the primary ballot pursuant to Code 34-1102 (c) (Ga. Laws 1964, Extra. Sess., pp. 26, 97, as amended). The situation is further complicated because one of the commission posts has been declared vacant by an order of the superior court of Stephens County because of the nonresidence of the incumbent. However, the commissioner has appealed and the Supreme Court of Georgia granted a supersedeas pending appeal which states, in essence, that the order of the superior court is superseded but that the appellant shall not act or serve as commissioner during the pendency of the appeal. Martin et al. v. Moore et al. (Ga. Supreme Court, Order of Supersedeas, dated March 21, 1974). Your second question therefore is whether the appellant-commissioner is an incumbent and should be listed as such on the ballot.
Your first question is answered by Op. Att'y Gen. 72-74 (a copy of which is enclosed). In that opinion the Attorney General concluded that a member of the House of Representatives was an incumbent and should be listed as such on the ballot even if he ran in a new district or was forced to challenge another incumbent because of reapportionment of the House of Representatives. Thus, the technical designation of the office, by number, was not determinative of incumbency status. Instead, possession of the office of member of the Georgia House of Representatives was "incumbency" within the meaning of Ga. Code Ann. 34-1102 (c). In the present situation, both candidates for the board of commissioners are present county commissioners elected by the citizens of the county and therefore are incumbents. In my opinion, Op. Att'y Gen. 72-74 applies to this situation even though the commissioners chose to qualify for the same post rather than being forced to run for the same post by external circumstances.
Your second question is more difficult because it involves the effect, first, of the superior court order holding one post vacant and, second, of the Supreme Court's supersedeas. The Stephens County Superior Court ordered the appellant removed from office because of his nonresidence. This was a final judgment and if no appeal had been taken, it would be clear that the appellant could not be an incumbent since he would have been removed from office by virtue of Ga. Code (1933) 89-501 (5). However, a filing of a notice of appeal in a civil case supersedes the judgment of the superior court. Ga. Code Ann. 6-1002 (a) (Ga. Laws 1965, p. 18). In its supersedeas order, the Georgia Supreme Court stated:

"We hold that the movant is entitled to have the judgment of the trial court removing him from office reviewed, and that the trial court's judgment of removal does not become final unless

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and until affirmed on appeal. We therefore hold that it is inappropriate and illegal to either appoint or elect a successor commissioner prior to the judgment of removal becoming final."
Thus, in this case, the effect of the supersedeas is to leave the appellant-commissioner in office, pending appeal. The Supreme Court did, however, direct the superior court to prohibit the appellantcommissioner from acting and serving as commissioner pending appeal. This portion of the order does not affect his status as an incumbent, that is, as the person presently entitled to hold the office of county commissioner.
Therefore, it is my unofficial opinion that both commissioners who are running for the same post on Stephens County Board of Commissioners should be listed on the primary ballot as "incumbents."

UNOFFICIAL OPINION U74-58

To: Burke County Attorney

July 16, 1974

Re: The Burke County Development Authority cannot legally finance the construction of a building which would be used to house various state and federal agriculture agencies and which would also include an auditorium.

This is in response to your letter of June 12, 1974, in which you requested an opinion on the following question: Can the Burke County Development Authority legally finance the construction of a building which would be used to house various state and federal agriculture agencies and which would also include an auditorum?
Section 7(g) of the Burke County Development Act, Ga. Laws 1963, p. 2369 (hereinafter referred to as the "Act"), grants the authority power to:
" ... construct, erect, acquire, own, repair, remodel, maintain, extend, improve, sell, equip, expand, add to, and manage projects and to pay the cost of any such project from the proceeds of revenue bonds or any other income of the authority, or from any contribution or loans by persons, firms, or corporations, all of which the authority is hereby authorized to receive and accept and use."
The word "project" is defined by Section 3 (b) of the Act to mean and include:
" ... the acquisition of lands, properties and improvements for developments, expansion and promotion of jobs and payrolls in

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industry, commerce, agriculture, and natural resources; the construction of buildings and plants or the acquisition of equipment for the purpose of selling, leasing or renting such structures or equipment to private persons, firms or corporations." (Emphasis added.)
To be legally financed by the authority the proposed construction must satisfy the definition of "project" as given in Section 3 (b) of the Act. The information provided is that the proposed building is not to be leased or rented to a "private person, firm or corporation," but to Burke County. Thus, the proposed building would not be a proper project as defined by the Act.
Therefore, it is my unofficial opinion that the Burke County Development Authority cannot legally finance the construction of the proposed building.

UNOFFICIAL OPINION U74-59

To: City Attorney

July 17, 1974

Re: A contribution by a city to a private person, corporation or association for any purpose which is not authorized by the charter of that city or by any provision of the Constitution or general law of this state is prohibited by Art. VII, Sec. I, Par. II, of the Constitution of the State of Georgia (Ga. Code Ann. 2-5402).

This is in response to your recent letter inquiring as to whether it would be proper for the City of Perry to make a donation or contribution to the Houston County Child Development Center, which is evidently a private corporation or association providing day care services in your county.
I am in agreement with your opinion to us which was expressed in your letter of June 18, 1974, which indicated that you could find no authority for such a donation or contribution.
Article VII, Sec. I, Par. II, of the Constitution of the State of Georgia (Ga. Code Ann. 2-5402) reads in part as follows:
"The General Assembly shall not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association."
The Supreme Court of Georgia has held that this provision is equally applicable to counties and municipalities. See Grand Lodge of Georgia, Independent Order of Odd Fellows v. City of Thomasville, 226 Ga. 4, 172 S.E.2d 612 (1970); Wright v. Absalom, 224 Ga. 6, 159 S.E.2d 413 (1968); Atlanta Chamber of Commerce v. McRae, 174 Ga. 590, 163 S.E. 701 (1932).

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In the absence of any provision in the city charter of Perry or in the general law authorizing a municipality to provide day care services or authorizing the municipality to contract with private parties to furnish that service, it would seem evident that any grant of money to a private association or corporation could only be in the nature of a gratuity or donation. I, like you, could find no provision in the city charter of Perry which would authorize the city to operate day care centers or to contract with private parties to operate such centers for this city. Neither can I find any provisions in the general law or in the Constitution which would authorize the city to buy such services in the absence of a provision in the city charter authorizing them to do so.
Therefore, I must also conclude that any contribution to the Houston County Child Development Center would have to be a donation or gratuity and thus would be in violation of the section of the Constitution cited above.

UNOFFICIAL OPINION U74-60

To: Elbert County Attorney

July 18, 1974

Re: A public defender may engage in the practice of private civil law but not private criminal law.

This is in response to your recent letter requesting an opinion regarding a provision of the Georgia Criminal Justice Act, Ga. Laws 1968, p. 999. You have stated that you have been appointed as public defender pursuant to Section 6 of the Act and want to know whether you may continue the private practice of law.
Section 6 (b) of the Georgia Criminal Justice Act (Ga. Code Ann. 27-3206) provides for the appointment of public defenders by the superior courts and adds this restriction:
"During his incumbency, the public defender may not engage in the practice of criminal law other than in the discharge of the duties of his office." (Emphasis added.)
The only express limitation on the practice of law by the public defender is on the practice of criminal law. One maxim of statutory interpretation, expressio unius est exclusio alterius (the inclusion of one is the exclusion of others), is thus applicable. See e.g., Bailey v. Lumpkin, 1 Ga. 392, 403 (1846). In applying the maxim to the cited section, it is apparent that the General Assembly intended to exclude only the practice of private criminal law but not of private civil law. Therefore, I concur in your opinion that a public defender may engage in the private practice of law so long as he does not practice criminal law except in discharging the duties of his office.

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U74-61

UNOFFICIAL OPINION U74-61

To: State of Georgia Advisory Council on Vocational Education

July 19, 1974

Re: The Governor may not transfer for fiscal and administrative purposes the Advisory Council on Vocational Education from the State Department of Education to the Office of Planning and Budget.

This is in reply to your query as to the authority of the Governor to transfer for fiscal and administrative purposes the Advisory Council on Vocational Education from the State Department of Education to the Office of Planning and Budget. As I understand the current situation, the advisory council is presently attached to the Department of Education for the administration of fiscal functions and desires to be assigned to the Office of Planning and Budget.
Pursuant to the enabling provisions of 20 U.S.C.A. 1244 (b), the advisory council was established for the State of Georgia by Executive Order of the Governor dated March 20, 1969. It was administratively attached to the Department of Education to enable that department to act as fiscal agent for the council. For the reasons to be discussed subsequently, the advisory council must remain within the administrative jurisdiction of the Department of Education.
All statutory provisions with respect to the receipt and use of federal funds allocated for state vocational educational purposes are consistently emphatic in language and intent to the effect that the State Board of Education is the designated state agency to receive, use, allot, or distribute said funds in accordance with the intent and conditions of the grants. The state board is empowered and authorized under Ga. Laws 1937, p. 864, as amended (Ga. Code Ann. 32-413), to:
" ... accept on behalf of the State of Georgia any funds which may be now or hereafter provided for, or be or hereafter become available or allotted to the State of Georgia by virtue of any appropriation by Congress or under any governmental regulation, order or declaration of policy for either vocational or other educational purposes conducted either in or out of school, in connection with, or as an incident of, any program of vocational education now or hereafter established ... , and whether as part of a federal or a state program or a combination of both, in furtherance of vocational educational objectives generally ...."
Similarly, the board is the desjgnated agency for the receipt, use, allocation and distribution of federal grants of money made available to the state for educational television purposes at all levels of education. Ga. Laws 1963, pp. 431, 432 (Ga. Code Ann. 32-413.1). This

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designation is also reiterated in Ga. Laws 1953, Nov. Sess., p. 401 (Ga. Code Ann. Ch. 32-23A), an Act establishing within the State Department of Education a Division of Vocational Education Service, wherein the state board is granted the power to represent the state in:
" ... any and all matters with reference to the distribution and disbursement of all funds for vocational education received from the Federal Government and to appropriate, apportion and use said moneys in whatever way, in its discretion, best serves the vocational training needs of the state and in conformity with the spirit and intent of the Acts of Congress and the provisions of the approved state plan for vocational education." Ga. Laws 1953, Nov. Sess., pp. 401, 406 (Ga. Code Ann. 32-2307a).
The advisory council was created to utilize federal funding appropriated for the purpose of promoting and supporting vocational education. Therefore, the amounts allocated from federal sources are subject, as aforementioned, to the auspices of the State Department of Education and State Board of Education. It would appear that the clear inference, if not the absolute conclusion, to be drawn is that the function of fiscal agent for a unit organized and operated on a statewide basis with federal funds for the furtherance of vocational educational objectives is, by statute, necessarily assigned to the jurisdiction of the Department of Education.
Even if the preceding obstacles to the proposed transfer were removed, I feel that additional considerations would preclude such action. The Executive Reorganization Act of 1972, Ga. Laws 1972, p. 1015 (Ga. Code Ann. 40-3526), narrowly limits the procedures by which any reorganization of the Executive Branch of State Government may be effected. Section 26 of the Act provides:
"Whenever the Governor makes a proposal for reorganization a bill shall be prepared containing his recommendations for reorganj zation. The Governor shall cause such bill to be introduced into the General Assembly and such bill shall receive the same number of readings and be subject to the same procedure as required by the Constitution and laws of this state for the passage of any other bill. No reorganization or part thereof proposed by the Governor shall become effective until such bill as introduced
or as changed py the General Assembly becomes law."
This language amends an Act previously authorizing the Governor to effectuate the reorganization of the Executive Branch (Ga. Laws 1971, p. 4) that had permitted the Governor to implement reorganization where the functions reorganized were not "established by and placed by statute or the Constitution of this state." Ga. Laws 1971, pp. 4, 6. This authority is stricken in its entirety by the amending

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statute, so that the implication and result is clearly a restriction of the Governor's powers with regard to reorganization.
Accordingly, the decisive question becomes the scope of the term "reorganization." Section 1 (b) of Ga. Laws 1971, pp. 4, 5, includes within the definition of reorganization:
"(1) the transfer of the whole or any part of any agency or of the whole or any part of the functions or procedures thereof, to the jurisdiction and control of any other agency; or .... "(3) the consolidation or coordination of the whole or any part of any agency, or of the whole or any part of the functions or procedures thereof, with the whole or any part of any other agency or the functions or procedures thereof. ..."
It would seem that the proposed transfer of the advisory council would fall within the purview of these definitional guidelines, in that the fiscal administration of the council is being transferred from one agency within the Executive Branch to another. While the purported change is only administrative in nature and the council will maintain its basic autonomy, the proceeding is not purged of its reorganizational character. Administrative assignments are expressly recognized in Section 3 of the Executive Reorganization Act, Ga. Laws 1972, pp. 1015, 1020 (Ga. Code Ann. 40-3505), and are incorporated into the reorganizational provisions of that Act. See Ga. Laws 1972, pp. 1015, 1025 (Ga. Code Ann. 40-3514).
In consideration of the foregoing, it is my opinion that the function of fiscal agent for the Advisory Council on Vocational Education is a responsibility accruing to the State Department of Education and alterable only by action of the General Assembly.

UNOFFICIAL OPINION U74-62
To: Director of Accounting Services, Department of Revenue

July 19, 1974

Re: In the absence of authorizing legislation it would not be lawful for a state agency to deduct dues, contributions or donations from a pubiic employee's pay check for transmittal to some third party with which the state agency has no contractual relationship.
This is in reply to your letter of the 9th in which you ask whether there are any laws prohibiting a state agency from making payroll deductions for charitable purposes from a state employee's pay on a voluntary basis.1
1 While your letter in fact poses a second question, the need for any comment upon this second question is (for reasons which will soon be seen to be obvious) obviated by our answer to the first.

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428

Article VII, Section I, Paragraph II of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5402), provides that with certain enumerated exceptions not here applicable:
"The General Assembly shall not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association...."
While the language of this constitutional provision by its terms speaks of grants by the General Assembly, it has long since been settled that it is equally applicable to subordinate agencies and even political subdivisions of the state. See e.g., Grand Lodge of Georgia, Independent Order of Odd Fellows v. City, 226 Ga. 4, 8 (1970); Atlanta Chamber of Commerce v. McRae, 174 Ga. 590 (1932). Ops. Att'y Gen. 73-116, 73-120.
I do not think it can be questioned but that deducting dues, contributions, donations or other payments from the pay checks of public employees and then transmitting the sums withheld to various third parties would impose a significant bookkeeping and administrative burden upon the state department or agency concerned. Nor do I think that it can seriously be questioned but that the third party recipients of the sums withheld would receive a very valuable service as a concomitance of the state's assumption of this burden. When a third party recipient is not in a contractual relationship with the state it would seem to follow that what it receives (i,e., the state's bookkeeping and administrative support and services) is a "donation or gratuity" within the meaning of Article VII, Section I, Paragraph II of the State Constitution. That the objective of the dues checkoff or other deduction for a third party may be for a worthy or even charitable cause would not appear to be of any consequence. As the Supreme Court of Georgia put it in Wright v. Absalom, 224 Ga. 6, 8 (1968):
"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."
In light of the foregoing, it is my opinion that in the absence at the very least of some clear legislative authorization, it would not be lawful for a state department, board or agency to deduct dues, contributions, donations or other payments from a public employee's pay check for transmittal to a third party with which the state has no contractual relationship. In the seemingly indistinguishable situation of a checkoff of union dues it is worthy of mention that bills which would have authorized the checkoff of union dues of public employees have been introduced into the General Assembly and that such bills have not passed. See H.B. 359 (1951); H.B. 1344 (1972). Nor would

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it seem amiss to point out that as a matter of policy the state has ordinarily declined to assume this sort of a burden for the benefit of a third party (i.e., bookkeeping and administrative services) even where incidental to the judicial process of garnishment. Cf. Ga. Laws 1945, pp. 438, 440 (Ga. Code Ann. 46-805); Troup County Board of Com'rs v. Public Finance Corp., 109 Ga. App. 547 (1964).
In reaching this conclusion I am aware of the fact that it is in conflict with at least some of what has been said in a prior opinion of this office in a somewhat distinguishable factual situation. See Op. Att'y Gen. 71-141. This prior opinion did not consider the applicability of the gratuities provision of the State Constitution and it is my present view that to the extent that it conflicts with the views now presented it should no longer be considered valid.

UNOFFICIAL OPINION U74-63

To: Representative, District 127

July 22, 1974

Re: Use of an unlicensed pharmacy employee in distributing prescription drugs while a registered and licensed pharmacist is on the premises.

In your letter of June 26, 1974, you requested an interpretation of Ga. Code Ann. 79A-410 (a-d) (Ga. Laws 1967, pp. 296, 313), and the regulations issued pursuant thereto. It is my understanding that your request arises from a factual situation in which an unlicensed pharmacy employee was assisting in the sale of prescription drugs while there was a registered and licensed pharmacist on the premises.
Relative to the described factual situation, Ga. Code Ann. 79A-410 (d) allows a person to assist:
" ... any duly licensed pharmacist in the measuring of quantities of medication and the typing of labels therefor, but not the dispensing, compounding or mixing of drugs, provided that such duly licensed pharmacist shall be physically present in the prescription room and actually observing the actions of such person in doing such measuring and typing. . . ."
The section goes on to limit such employee assistance to one employee per pharmacist at any one time. In addition, Rule 480-16-.01 (1) of the Rules and Regulations of the State Board of Pharmacy provides:
"No licensed pharmacist of this state shall knowingly allow any unlicensed person to fill prescriptions (except he be under the direct and personal supervision of a Georgia licensed and registered pharmacist). . . ."

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430

Under the provisions of Ga. Code Ann. 79A-410 (d), an employee, other than a licensed pharmacy intern, could assist a pharmacist in filling of prescriptions, but would be strictly limited to the measuring of quantities of medication and the typing of labels. He would be prohibited from compounding, mixing or dispensing any drugs, medicines or pmsons.
In answer to your inquiry, it is my unofficial opinion that an individual working in a pharmacy who is neither a licensed pharmacist nor a licensed pharmacy intern may assist a pharmacist only to the extent of measuring the quantities of medication and/or the typing of labels. An individual providing these services would undoubtedly provide some limited assistance to a pharmacist in filling prescriptions. This as!'dstance could only be provided when the pharmacist is not only on the premises, but is also physically in the prescribing room and actually observing the actions of the employee.
My unofficial opinion is that Rule 480-16-.01 (1) merely seeks to carry out the provisoins of the above-cited Code sections and adds nothing substantive to the provisions.

UNOFFICIAL OPINION U74-64

To: Attorney at Law

July 22, 1974

Re: The tax commissioner of Stephens County is not entitled to a commission after January 1, 1973 on either the collection of delinquent taxes paid in 1973 or on taxes collected for the Stephens County Board of Education in 1973 or subsequent years.

This is in response to your letter of July 11, 1974, in which you requested an opinion on the following questions:
(1) Is the tax commissioner of Stephens County entitled to commissions on delinquent taxes which he collects, that is, on taxes which were due in the years prior to 1973 but which were unpaid until 1973?
(2) After January 1, 1973, is the tax commissioner of Stephens County entitled to charge a commission on taxes for 1973 and subsequent years collected for the Stephens County Board of Education?
The tax commissioner of Stephens County was placed strictly on a salary basis by Ga. Laws 1970, p. 2417, which became effective January 1, 1973. Being strictly on a salary would prohibit the tax commissioner from being entitled to commissions on the collection of back taxes paid after January 1, 1973. Therefore, your first question must be answered in the negative. See Ops. Att'y Gen. 1962, p. 569; 67-50; U70-71.
As to your second question, Ga. Code Ann. 32-1106 (Ga. Laws

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1919, pp. 288, 337; 1946, pp. 206, 211) provides that where the tax commissioner is on a salary basis the commission for county school tax collections shall be collected and paid over to the proper fiscal authorities. Thus, since the tax commissioner of Stephens County was placed strictly on a salary basis beginning January 1, 1973, he would collect the commission and remit it to the proper fiscal authorities, but the tax commissioner himself would not be entitled to the commission. See Op. Att'y Gen. 69-391.
Therefore, it is my unofficial opinion that after January 1, 1973, the tax commissioner of Stephens County is not entitled to a commission on either the collection of delinquent taxes paid in 1973 or on taxes collected for the Stephens County Board of Education in 1973 or subsequent years.

UNOFFICIAL OPINION U74-65

To: Minority Caucus Secretary, House of Representatives

July 22, 1974

Re: The power to manage and control county school systems in Georgia rests in the county board of education; the county school superintendent is obliged to comply with and carry out all rules, regulations and instructions of the county board of education.

This is in answer to your letter of July 15 in which you ask whether under Georgia's general school laws it would be possible for a county school superintendent to appoint, transfer and promote school personnel without approval of the county school board.
The starting point (and quite possibly the ending point) of the answer to this question is Article VIII, Section V, Paragraph I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-6801), the pertinent clause of which provides that each county school system:
" ... shall be confined to the control and management of a County Board of Education." (Emphasis added.)
This is supplemented by legislation giving the county boards of education broad powers to make "all arrangements necessary to the efficient operation of the schools" (Ga. Code Ann. 32-909; Code of 1933, as amended, particularly by Ga. Laws 1961, p. 35), and to reorganize the schools within their jurisdiction, determining the number of grades to be taught at each school in their system. Ga. Code Ann. 32-954 (Ga. Laws 1953, Nov. Sess., p. 282). See also Ga. Code (1933) 32-901. Upon review of these provisions the Supreme Court of Georgia concluded (not surprisingly) that:

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"These laws are exhaustive as to who shall and must control and manage the schools of a county. The boards alone can receive and expend all school funds. The schools are entrusted to them and to them alone." Stewart v. Davidson, 218 Ga. 760, 763 (1963).
Were this not enough, it might be pointed out that it is the county school board which employs teachers, principals and "all other school personnel." Ga. Laws 1964, pp. 3, 9 (Ga. Code Ann. 32-607).
The role of the county school superintendent is far more circumscribed. With respect to his relationship to the board it is essentially that of a master-servant nature. He acts as secretary of the board, keeps minutes of the board meetings and performs such other clerical work as the board directs him to do. Ga. Code Ann. 32-912. He also acts as the county school board's agent, procuring such school furniture and educational requisites as the board directs, and in general obligated to comply with and enforce all regulations, rules and instructions of the county board of education. See Ga. Code (1933) 32-1009. If the county superintendent of schools neglects to perform these duties he may be removed from office by majority vote of the county school board. See Ga. Code Ann. 32-912, 32-1008 (Code of 1933, as amended).
In light of the foregoing, it goes without saying that a county school superintendent, under general school law (and in the absence of any contrary constitutional amendment of local application), is not empowered to appoint, transfer or promote school personnel contrary to the wishes of the county board of education.

UNOFFICIAL OPINION U74-66

To: Financial Officer, Central Savannah River Area Planning and Development Commission

July 24, 1974

Re: Generally, a county will not be subject to liability for damages resulting from a motorist's collision with a garbage container placed by the county beside its road.

This is in reply to your query as to the possible liability of a county in the event a motorist collides with a garbage container placed by the county beside one of its roads.
Under Georgia law, "[A] county is not liable to suit for any cause of action unless made so by statute." Ga. Code (1933) 23-1502. Two points should be noted concerning the relation of this immunity to the proposed action which forms the subject matter of this query. First, the immunity of a county from suit applies to actions based on negligence as well as those based on the creation and maintenance of

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a nuisance. Felton v. Macon County, 43 Ga. App. 651, 159 S.E. 730 (1931) (nuisance); Bibb County v. Green, 42 Ga. App. 552, 156 S.E. 745 (1931) (nuisance); Purser v. Dodge County, 188 Ga. 250, 3 S.E.2d 574 (1939) (negligence). Second, while the immunity with respect to county and municipal levels of government granted by Georgia law extends only to governmental, as opposed to proprietary, functions (Aven v. Steinen Cancer Hospital, Inc., 189 Ga. 126, 5 S.E.2d 356 (1939) ), the proposed action would seem to be covered under the definition of a governmental function:
"The governmental functions of a (countyl are those conferred or
imposed upon it as a local agency, to be exercised not only in the interest of its inhabitants, but in promotion of the public good or welfare, as affecting the public generally. It includes the public peace, health, safety, and morals of the general public, and other similar public interests." 189 Ga. at 141, 5 S.E.2d at 365.
My research having revealed no statute imposing liabiHty,1 it is my unofficial opinion that a county will not be subject to liability for damages resulting from a motorist's collision with a garbage container placed by the county beside one of its roads.
Since this analysis is based on the doctrine of sovereign immunity, however, a word of caution is appropriate. The doctrine has come under increasing attack in recent years. See Crowder v. Department of State Parks, 228 Ga. 436, 441-47, 185 S.E.2d 908, 912-15 (1971) (dissenting opinions). To assure complete protection from suit, therefore, I would advise you to exercise reasonable care in the placement and maintenance of these garbage receptacles. It goes without saying that the institution of a haphazard plan jeopardizing the safety of motorists and pedestrians could, in view of recent court decisions, very well afford a basis for liability accruing to a county government.

UNOFFICIAL OPINION U74-67

To: Attorney at Law

July 26, 1974

Re: (A) A plea of nolo contendere to a felony is not deemed a plea of guilty to the same, so as to prevent the individual from qualifying for a license to carry a pistol under 26-2904 of the Criminal Code of Georgia. (B) A mayor's court in a county in which there is no city or county court has jurisdiction to try persons charged with driving under the influence of intoxicants in violation of Ga. Laws 1953, Nov. Sess., pp. 556, 775, as amended (Ga. Code Ann. 68-1625).
1 A possible exception would be the placing of a container within 50 feet of either end of a bridge or, in case of a bridge which measures 100 feet or more, within 100 feet of either end. Ga. Code Ann. 95A-826, 95A-827 (b) (Ga. Laws 1973, p. 947).

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This is in reply to your letter of July 8, 1974, requesting my opinion on two issues:
(A) Whether a plea of nolo contendere to a felony is deemed a plea of guilty to the same, so as to prevent the individual from qualifying for a pistol license under 26-2904 of the Criminal Code of Georgia (Ga. Laws 1968, pp. 1249, 1324); and
(B) Whether a mayor's court in a county in which there is no city or county court has jurisdiction to try persons charged with driving under the influence of intoxicants in violation of Ga. Laws 1953, Nov. Sess., pp. 556, 575, as amended.
Your first question involves the interpretation of two statutes: 26-2904 of the Criminal Code of Georgia (Ga. Laws 1968, pp. 1249, 1324); and Section 3 of the nolo contendere statute (Ga. Laws 1946, p. 142; Ga. Code Ann. 27-1410). The relevant statute provides that a plea of nolo contendere is not to be deemed a plea of guilty so as to affect "any ... civil disqualification now imposed upon a person convicted of any offense under the laws of the state." (Ga. Laws 1946, p. 142). Section 26-2904 of the Criminal Code provides that the ordinary of each county "may" grant an individual a license to carry a pistol conditioned upon the applicant's compliance with the statutory requirements. Subsection (c) requires that the applicant "has not within the 10 years immediately preceding the application been convicted of a felony."
The second paragraph of 26-2904 provides that the applicant's compliance with the statutory requirements, including subsection (c), is a necessary prerequisite for the issuance of a license. However, the wording of the first paragraph of the statute appears to give the ordinary a discretionary power over the issuance of individual licenses, upon the applicant's compliance with the statutory requirements. Although a plea of nolo contendere to a felony would not constitute a statutory disqualification for a pistol license under subsection (c), it is my unofficial opinion that the language in the first paragraph of 26-2904, which grants the ordinary discretionary power in such matters, may permit such a denial.
As I understand the facts, your second question refers to the mayor's court in Shiloh, Georgia, authorized by the city's 1961 charter (Ga. Laws 1961, pp. 2045, 2050-51). Therefore, I will direct my answer to the situation obtaining in Shiloh.
Ga. Canst., 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, 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

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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 Supreme Court of Georgia, in Gibson v. Gober, 204 Ga. 714 (1949), held that the above constitutional provision limits the jurisdiction of a municipal court to the situation in which there is no city or county court existing in the locality. See also, Clarke v. Johnson, 199 Ga. 163 (1945); Hannah v. State, 97 Ga. App. 188 (1958); as well as Op. Att'y Gen. 73-29, 73-49.
As you know, jurisdiction of driving under the influence charges further depends upon whether the offense occurs within or without the corporate limits of the municipality involved. Other jurisdictional prerequisites being satisfied, the mayor's court of Shiloh has jurisdiction of those driving under the influence offenses which occur within the corporate limits of Shiloh. All such offenses occurring outside of the corporate limits would come within the jurisdiction of the court of ordinary. See Op. Att'y Gen. U73-117.
As there is no county or city court in Harris County, or Shiloh, Georgia, it is my unofficial opinion that the above-quoted constitutional provision is governing; and the mayor's court of Shiloh has jurisdiction to try persons charged with driving within its corporate limits under the influence of intoxicants, in violation of Ga. Laws 1953, Nov. Sess., pp. 556, 775, as amended (unofficially codified as Ga. Code Ann. 68-1625).

UNOFFICIAL OPINION U74-68

To: Judge, Clarke County Juvenile Court

July 29, 1974

Re: Since the salary of the juvenile court judge of Clarke County has been fixed by an Act of the General Assembly, it may not now be changed by the judge of the superior court.

This is in response to your request for an opinion concerning the method by which the salary of the juvenile court judge of Clarke County is fixed. For the following reasons it is my unofficial opinion that the salary of the juvenile court judge of Clarke County is fixed by legislative Act and may not, therefore, be changed by the judge of superior court.
The Juvenile Court Code, Ga. Code 24A-201 (e), provides in part that:

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"the judge or a majority of the judges of the superior court circuit presiding over the county wherein a juvenile court is established by this Code shall appoint the judge or judges of the juvenile court for a term of six years and shall fix the compensation except in those counties wherein the salary of the judge is fixed by legislative Act." (Emphasis added.)
The salary of the Juvenile Court Judge of Clarke County has been fixed by the legislative Act since 1961. See Ga. Laws 1961, p. 3108; 1968, p. 3624; 1970, p. 2978. The Juvenile Court Code was enacted in 1971 and at that time Georgia Laws 1970, p. 2978, was in effect. Thus, at the effective date of Title 24A, the judge of the superior court of Clarke County was not authorized to fix the salary of the juvenile judge since his salary had previously been set by an Act of the General Assembly. Ga. Laws 1970, p. 2978, has not been repealed, is thus in effect and therefore the salary of the juvenile court judge of Clarke County is still fixed by legislative Act. Accordingly, the superior court judge is presently without authority to change the juvenile court judge's salary.l
For these reasons, it is my unofficial opinion that the judge of the superior court of Clarke County may not fix the salary of the juvenile court judge until such time as the salary of the juvenile court judge is no longer fixed by legislative Act.

UNOFFICIAL OPINION U74-69

To: Attorneys at Law

July 29, 1974

Re: An employee of the Decatur County School Board is not eligible to serve as a member of the same board.

This is in response to your inquiry as to the eligibility of an employee of the Decatur County School Board to serve as a member of said board. I understand that the party involved works as a district supervisor and is expressly carried on the payroll as a Decatur County School Board employee.
Insofar as the office of district supervisor usually connotes a position within the State Department of Education, I hesitate to designate the individual you describe as a state or county employee. However, as will be discussed subsequently, such a designation does not alter the conclusion to be reached in either circumstance. It is my opinion that neither an employee of the State Department of Education nor of the
1 Even if the judge has the authority to "fix" the salary, he does not have the authority to change the salary during the six-year term of office. See Culberson v. Watkins, 156 Ga. 185 (1923).

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Decatur County Board of Education is eligible for membership on the Decatur County Board of Education.
Georgia Laws 1972, p. 236 (Ga. Code Ann. 32-903.1), expressly denies such membership to persons " ... employed by the State Department of Education or serving as a member of the State Board of Education...." A similar result is dictated in the instance of an employee of a county board seeking membership on that board. The obvious conflict and common law prohibition of an individual holding employment under a public board or body of which he is a member has traditionally been considered by Georgia courts as quite sufficient reason for precluding such a possibDity. See Ops. Att'y Gen. 68-30, 68-231, 68-493. I might add that no person employed by or serving as a member of the board of any other public school system may serve as a member of a county board of education. Ga. Laws 1972, p. 236 (Ga. Code Ann. 32-903.1).

UNOFFICIAL OPINION U74-70

To: Solicitor, State Court of Muscogee County

July 30, 1974

Re: (1) A state court solicitor should not prepare and file an accusation charging one with a violation of a penal statute of the state unless the solicitor concludes that there is probable cause to support the accusation; and (2) control over the dead docket reposes in the court, as opposed to the prosecuting attorney of the court.

You state that an unnamed individual has been arrested and, after a preliminary hearing, has been bound over to the State Court of Muscogee County on a charge of distributing obscene materials. See Criminal Code of Georgia 26-2101 (Ga. Laws 1968, pp. 1249, 1302; 1971, p. 344). You further state that you have viewed the allegedly obscene material, a magazine, and have concluded that the magazine "in no way under the law could be considered obscene...."
You ask what procedures are available to you to terminate the pendency of this action in the State Court of Muscogee County. Specifically, you ask if you must prepare an accusation charging the individual with distributing obscene material as well as whether, assuming the accusation is drawn, the accusation may be placed on a dead docket, with or without the permission of the judge. 1
As I noted earlier, you have concluded that the magazine, alleged to be obscene, "in no way under the law could be considered obscene...."

1 As noted in your letter, you recognize that a nolle prosequi may be entered by a prosecuting attorney, after an examination of the case in open court, only with the consent of the court. See Ga. Code 27-1801 (1933).

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I construe your conclusion to be tantamount to a recognition of a lack of probable cause.
Rule 3-107 (Canon 7) of the Code of Professional Responsibility adopted by the State Bar of Georgia provides that an attorney should represent a client zealously within the bounds of the law. The unique posture and special responsibility of prosecuting attorneys in our criminal justice process, however, has been recognized by the directory rules promulgated under the above canon. Specifically, Directory Rule 7-103 provides as follows:
"(A) A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause."
Based on the foregoing, it is my unofficial opinion that a state court solicitor should not prepare and file an accusation charging one with a violation of a penal statute of the state unless the solicitor concludes that there is probable cause to support the accusation.
As to whether you, after having filed an accusation, may place the accusation on a dead docket with, or without, the permission of the judge of the State Court of Muscogee County, I call your attention to Ga. Code 24-2714 (1933 Code, as amended), which provides, in part, as follows:
"It is the duty of the clerks of the superior court ... to keep in their offices, in vacation, and in court during term time, the following dockets and books, to-wit: ... (7) a docket of criminal cases, to be known as the dead docket, to which cases shall be transferred at the discretion of the presiding judge, and which shall be called only at his pleasure." (Emphasis added.)
Assumedly, the clerk of the State Court of Muscogee County is required to maintain a similar docket. See Ga. Laws 1970, pp. 679, 681 (Ga. Code Ann. 24-2108a). Control over the dead docket, however, reposes in the court as opposed to the prosecuting attorney of the court. See Courtenay v. Randolph, 125 Ga. App. 581, 583 (1972); Newman v. State, 121 Ga. App. 692 (1970).

UNOFFICIAL OPINION U74-71

To: Attorney for Fayette County Board of Education

August 2, 1974

Re: The Fayette County Board of Education is not authorized to invest bond proceeds in certificates of deposit pending expenditure of the funds for purposes of the bonds.

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This is in response to your letter requesting an opinion on the following question:
"Is the Fayette County Board of Education authorized to invest bond proceeds in interest bearing certificates of deposit issued by duly licensed banks and secured by obligations of the Federal Government, pending expenditure of these funds for the purposes intended?"
Georgia Laws 1947, p. 1173; 1969, p. 961 (Ga. Code Ann. 87-701a), provides direct guidance with respect to investment of proceeds of bonds issued by political subdivisions. That section specifically lists what such funds may be invested or reinvested in as follows:
" ... in the bonds of such county, municipality, school district, political subdivision, Authority or body or in the bonds or obligations of the State of Georgia, or of other counties, municipalities and political subdivisions of Georgia, or in the bonds or other obligations of the United States or of subsidiary corporations of the United States Government fully guaranteed by such Government, or obligations of agencies of the United States Government issued by the Federal Land Bank, Federal Home Loan Bank, Federal Intermediate Credit Bank, and Central Bank for Cooperatives, and no other."
Since certificates of deposit are excluded from the list given in Ga. Code Ann. 87-701a, investment in such certificates, in my opinion, would be without authorization.
while Ga. Laws 1964, p. 741; 1973, pp. 1192, 1193 (Ga. Code Ann. 23-3001), may appear to provide for the investment of any funds under the jurisdiction and control of a board of education, including bond proceeds, in certificates of deposit, after reviewing the background of this section and Ga. Code (1933) 87-701, I conclude that it was not the intent of the legislature to include bond proceeds.
The legislature in enacting 87-701a in 1947 specifically listed the types of investments bond proceeds could be invested in, and expressly excluded all other types of investments. Subsequent to the enactment of 23-3001, the legislature again indicated that the list provided in 87-701a represented the only authorized investments, when after amending the section by enlarging the list, it provided no other investments were proper. By the enactment of 87-701a and its amendment subsequent to the enactment of 23-3001, the legislature demonstrated that the funds dealt with in 23-3001 do not include bond proceeds but refer to other funds under the board's control and jurisdiction. Thus, the 1973 amendment to 23-3001 enabling the investment of funds in certificates of deposit would not allow investment of bond proceeds in certificates of deposit.
I have also reviewed Ops. Att'y Gen. 1954-56, p. 246; 1963-65, p. 613;

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68-296; 69-306, which relate to this general area and have found them not to deal specifically with the question you raise or to affect my opinion herein expressed.
Therefore, it is my unofficial opinion that Fayette County Board of Education is not authorized to invest bond proceeds in certificates of deposit pending expenditure of the funds for purposes of the bonds.

UNOFFICIAL OPINION U74-72

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

August 8, 1974

Re: The Georgia Firemen's Pension Fund is not a state agency or board within the purview of the Georgia Administrative Procedure Act.

This responds to your request for my opinion on whether the Georgia Firemen's Pension Fund (hereinafter referred to as "FPF") falls within the purview of the Georgia Administrative Procedure Act, Ga. Laws 1964, p. 338 et seq., as amended (Ga. Code Ann. Title 3A). The answer to your question necessarily turns on whether the FPF is definitionally included within those entities subject to the Administrative Procedure Act (hereinafter referred to as "APA").
The FPF was established in 1955 by Georgia Laws 1955, p. 339 et seq., as amended (Ga. Code Ann. Ch. 78-10). That statute created a board to be known as the Board of Trustees of the FPF and consisting of five trustees, two of whom are ex-officio members by reason of being elected to the offices of Governor and State Insurance Commissioner. The three remaining trustees are selected by the Georgia State Firemen's Association.
The board of trustees was created to govern and administer the FPF. It determines all applications for pensions, provides for the payment of pensions under the governing statutes, provides for the collection of revenue required by law to be paid to the FPF, and generally administers the retirement program for member firemen and volunteer firemen. Ga. Code Ann. 78-1004, as amended.
The board of trustees has the full power to invest all funds of the FPF, with the concomitant power to hold, purchase, sell, assign, transfer and dispose of all securities and investments of the fund. Ga. Code Ann. 78-1004, as amended. The statutory framework within which the FPF operates and the authorized powers and duties of the board of trustees incline me to believe that the board of trustees acts solely as a trustee of the funds and is not intended to be considered as the appointing authority in charge of a state agency or board.

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The definition of "agency" under the APA includes each " ... state board, bureau, commission, department, activity or officer authorized by law expressly to make rules and regulations or to determine contested cases...." Ga. Laws 1964, p. 338 et seq., as amended (Ga. Code Ann. 3A-102 (a)). The definition of "rule" under the APA includes " ... each agency regulation, standard or statement of general appHcability that implements, interprets or prescribes law or policy, or describes the organization, procedure or practice requirements of any agency...." Ga. Code Ann. 3A-102 (f).
Analyzing the definition of "agency" specified in the APA, the FPF is not statutorily authorized to determine contested cases and, although the governing FPF statutes allow for the promulgation of rules and regulations, those rules and regulations are either for the administration of internal affairs of the fund or are excepted from the APA under Ga. Code Ann. 3A-102 (f) (9) as being " . . . Rules relating to loans, grants and benefits. ..." (Emphasis added.) See, e.g., Irvin v. Woodliff, 125 Ga. App. 214 (1971). However, this statutory construction, without more, would pretermit the threshold question of whether the FPF is a state agency, for if it is not, then the fact that it makes rules and regulations or determines contested cases would not operate to place it within the ambit of the APA. Hood v. Rice, 120 Ga. App. 691 (1969).
The FPF is not a budgeted unit of Georgia's state government, and receives no appropriation from the General Assembly. The monies in the fund are generated solely from a tax on insurance companies which write fire insurance coverage, combined with certain dues paid by the members of the fund. Ga. Laws 1955, p. 339 (Ga. Code Ann. 78-1006). It was not created within the framework of any of the branches of Georgia's government, and is represented by this office only by special statutory designation. Ga. Laws 1955, p. 339 (Ga. Code Ann. 78-1009).
Upon i'nquiry, I have determined that the FPF is not within the province of the State Merit System of Personnel Administration (Ga. Laws 1971, p. 45 et seq.; Ga. Code Ann. Ch. 40-22, both as amended), nor is it eligible for inclusion in the State Employees Health Insurance Plan for agencies and departments of state government (Ga. Laws 1961, p. 147 et seq.; Ga. Code Ann. Ch. 89-12, both as amended).
My reading of the FPF statutes and the statutory powers given to the board of trustees appears to place it in the same category as the Peace Officers Annuity and Benefit Fund. Ga. Laws 1950, p. 50 et seq.; Ga. Code Ann. Ch. 78-9, both as amended. I see no material distinction in the establishment and operation of these two funds except, of course, one controls pension benefits for firemen and volunteer firemen while the other governs pension benefits for peace officers. By official opinion in 1950, the Attorney General concluded that the Peace Officers Fund and its board of trustees is a trustee of public (not state)

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funds for the benefit of its members and is not a state agency. Ops. Att'y Gen. 1950, p. 133. Reading the FPF statutes in their entirety and considering the powers and responsibilities of the board of trustees, I am compelled to the conclusion that, for the purposes of your inquiry, there is no material difference in the character or nature of the two funds.
Accordingly, based on the foregoing rationale and authorities, it is my opinion that the Georgia Firemen's Pension Fund is not a state agency or board within the purview of the Georgia Administrative Procedure Act. I realize that the FPF has been advised to the contrary by a letter from this office under date of January 25, 1965. The legal conclusions and observations in that letter are hereby expressly withdrawn.

UNOFFICIAL OPINION U74-73

To: State Senator, lOth District

August 8, 1974

Re: (1) If the governing authority of a county has not set a tax levy for 1974 prior to July 1, 1974, then that tax levy which was set in 1973 is the levy in effect for purposes of Section 4 of Ga. Laws 1974, p. 183. (2) Where a county board of education has recommended and requested a certain levy prior to July 1, 1974, but such recommendation and request has not been officially adopted by the county governing authority prior to said date, the levy recommended and requested by the board is not in effect for purposes of Section 4 of Ga. Laws 1974, p. 183.

This is in response to your recent letter wherein you raise two questions concerning the proper construction of a recent Act providing for a $10,000 homestead exemption from school taxes for certain low income, elderly persons (Ga. Laws 1974, p. 183, hereinafter referred to as "the Act"). The Act became effective on July 1, 1974. (See Ga. Code Ann. 102-111, based on Ga. Laws 1968, p. 1364.)
Section 4 of the Act provides, inter alia, that
"The State Board of Education shall ... provide to each school district in this state, which, on the effective date of this Act, had in effect a tax levy of 20 mills or more for educational purposes, or was levying the maximum permissible tax authorized by law for educational purposes, grants ...." (Emphasis added.) Ga. Code Ann. 92-238.4.
I will restate your questions and then answer them seriatim. (1) In the event a given governing authority has not officially set

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a tax levy for the year 1974, is the 1973 tax levy the one "in effect" for the purposes of this section or is it applicable only through 1973?
(2) In the event a board of education has made its recommendation and request for a tax levy to the appropriate governing authority but that governing authority has not yet officially set the rate for 1974, is that rate requested by the board of education the rate "in effect" for purposes of this Act?
The words "in effect" mean to be in operation. Standard Clothing Co. v. Wolf, 219 Minn. 728, 17 N.W.2d 329, 332 (1944). Although the ad valorem tax on tangible property in this state might be considered an "annual" tax for some purposes,1 I am unable to find any authority to the effect that the levy set by the county 2 each year automatically expires or becomes inoperative at the end of said year. Thus it is my unofficial opinion that if a county governing authority has not set a tax levy for 1974 prior to July 1, 1974, then that levy which was set in 1973 is the tax levy "in effect" for purposes of Section 4 of the Act.
As to your second question, while it is true that the county governing authority has no discretion as to the amount of the levy recommended and requested by the county board of education (see Board of Education of Wilcox County v. Board of Com'rs, 201 Ga. 815 (1947)), it is the county governing authority which actually makes the levy (e.g., Ga. Code Ann. 2-7501; Ga. Canst., Art. VIII, Sec. XII, Par. I). Thus it is my unofficial opinion that where a county board of education has recommended and requested a certain levy prior to July 1, 1974, but such recommendation and request has not been officially set by the county governing authority prior to said date, then the levy recommended and requested by the county board of education is not "in effect" for purposes of Section 4 of the Act.

UNOFFICIAL OPINION U74-74

To: Judge, Superior Court

August 12, 1974

Re: Ga. Laws 1974, p. 352, enacted March 20, 1974, which authorizes the jury to determine guilt or innocence and the judge to pass sentence, applies only to those defendants who allegedly committed criminal offenses on July 1, 1974, or thereafter.
1 E.g., the property which is taxed is that property held and subject to taxation on the first day of January (Ga. Code (1933) 92-6201) and taxes become delinquent on December 20 of each year (Ga. Code (1933) 92-5102). 2 While this opinion deals only with county school systems, the reasoning herein would also apply generally to independent school systems. However, since there are variations between independent school systems, I would caution you to examine the city charter dealing with any one particular independent school system as it might relate to the questions you have raised.

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Your letter of July 11, 1974, requested an opinion as to whether Ga. Laws 1974, p. 352, which was approved March 20, 1974, to be effective on July 1, 1974, would apply to defendants who allegedly committed criminal offenses prior to July 1, 1974, and who are tried subsequent to that date.
The statute in question (Ga. Code Ann. 27-2301) provides that in a criminal case the jury shall render a general verdict of "guilty" or "not guilty," and upon a verdict of "guilty" the sentence shall be determined by the judge. Although the statute was approved on March 20, 1974, the General Assembly provided no specific effective date. Therefore, by operation of Ga. Laws 1968, pp. 1364, 1365, as amended by Ga. Laws 1969, p. 7 (Ga. Code Ann. 102-111), the statute became effective on July 1, 1974. The issue is whether the application of the statute to defendants who allegedly committed criminal offenses prior to July 1, and who are tried subsequent to that date, renders the statute an ex post facto law, in violation of the United States Constitution (Art. I, Sec. IX, Par. III, Ga. Code Ann. 1-128; Art. I, Sec. X, Par. I, Ga. Code Ann. 1-134), as well as the Georgia Constitution, Art. I, Sec. III, Par. II (Ga. Code Ann. 2-302), and Georgia law (Ga. Code (1933) 102-104).
The courts have formulated various expressions and definitions of the concept of an ex post facto law. See Calder v. Bull, 3 U.S. 386 (1798); Burgess v. Salmon, 97 U.S. 381 (1878); Gibson v. Mississippi, 162 U.S. 589 (1896). Although the exact formulation has varied, several elements critical to the issue at hand are invariably distinguished as essential components. The courts agree that for a law to be so tainted it must "materially [impair] the right of the accused to have the question of his guilt determined according to the law as it was when the offense was committed." Thompson v. Utah, 170 U.S. 343, 351 (1898) (Harlan J.). (Emphasis added.)
Once before, from 1937 to 1938, Georgia had a judicial sentencing statute (Ga. Laws 1937-38, Extra. Sess., p. 326, repealed by Ga. Laws 1939, p. 285). Similarly, this statute took from the jury its former power to pass sentence, and gave this authority to the judge. The three cases which examined the ex post facto nature of various applications of this law serve as a useful guide in the interpretation of the 1974 Act. See Winston v. State, 186 Ga. 573, 198 S.E. 667 (1938); Hurt v. State, 187 Ga. 73, 199 S.E. 801 (1938); Camp v. State, 187 Ga. 76, 200 S.E. 126 (1938).
These three cases, Winston, Hurt, and Camp, can be cited for the proposition that the application of the newly enacted judicial sentencing statute to a defendant, who allegedly committed an offense prior to its enactment, withdraws a substantial protection from the defendant which surrounded him at the time of commission of the offense. In Winston, the defendant committed robbery before the effec-

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tive date of the 1937 Act. Winston was convicted after the new law became effective, and the judge imposed the death penalty. The Georgia Supreme Court reversed the conviction, holding that judicial sentencing of the defendant materially altered a substantial right which he possessed at the time of commission of the offense. The court declared that, "a statute is void and ineffective ... if it takes away from the accused a substantial right given to him by law in force at the time to which his guilt relates." 186 Ga. at 574, 198 S.E. at 669. (Emphasis added.) Further, the court stated that "any law is ex post facto which is enacted after the offense was committed, and which, in relation to it or its consequences, alters the situation of the accused to his disadvantage." 186 Ga. at 575, 198 S.E. at 669. (Emphasis added.)
Similarly, the court in Hurt, citing Winston, reversed the conviction of the defendant who committed an assault before the effective date of the new law, yet was sentenced after his conviction by the judge. Winston was also cited as authority in Camp v. State, supra, in which the court reversed the conviction of a defendant who committed the crime of larceny before the effective date of the statute, but yet was sentenced by the judge.
There is federal as well as Georgia authority soundly supporting the notion that the critical time in terms of the validity of a statute's application is the date of the commission of the criminal offense. In the definitive case of Kring v. Missouri, 107 U.S. 221 (1882), the Supreme Court laid to rest all doubt on this issue:
""Whether it is ex post facto or not relates, in criminal cases, to which alone the phrase applies, to the time at which the offense charged was committed. If the law complained of was passed before the commission of the act with which the prisoner is charged, it cannot, as to that offense, be an ex post facto law. If passed after the commission of the offense, it is as to that ex post facto .... But so far as this depends on the time of its enactment, it has reference solely to the date at which the offense was committed to which the new law is sought to be applied. No other time or transaction but this has been in any adjudged case held to govern its ex post facto character." 107 U.S. at 225-226.
Georgia law is consistent with federal pronouncements in this area. In Winston the court declared a statute to be ex post facto "if it takes from the accused a substantial right given to him by law in force at the time to which his guilt relates." 186 Ga. at 574, 198 S.E. at 669. (Emphasis added.)
Once the issue of the substantive nature of the right involved is determined, and it is decided that the critical time in reference to the statute is the date on which the offense was committed, the question of the operative date of this particular statute vis-a-vis criminal

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defendants must be resolved. The General Assembly approved the Act which transferred the sentencing function from the jury to the judiciary on March 20, 1974. As no special effective date was provided in the statute, it became effective on July 1, 1974, by operation of Ga. Laws 1968, pp. 1364, 1365, as amended by Ga. Laws 1969, p. 7 (Ga. Code Ann. 102-111). The issue is whether judicial or jury sentencing is appropriate for those defendants committing offenses between March 20, 1974 and July 1, 1974.
Two Georgia cases resolve the question of the applicability of the statute to crimes committed during the period from enactment to effective date. In Lott v. State, 123 Ga. App. 781, 182 S.E.2d 546 (1971), the defendant was convicted of a crime which was committed during the period between the approval and the effective date of an amendment to the Act reducing the severity of his punishment. Even though the crime was committed after the approval of the amendment, the court held that the benefit of the change in law would not enure to the defendant, because commission of the crime occurred before the effective date of the amendment. Two years later, the court followed this ruling in Geiger v. State, 129 Ga. App. 488, 199 S.E.2d 861 (1973), to declare a statute inapplicable, even though approved, until its effective date.
On the basis of the foregoing, it is my opinion that Ga. Laws 1974, p. 352, the statute which transfers the sentencing function from the jury to the judge, is applicable only to those criminal defendants who committed an offense on July 1, 1974, or thereafter.

UNOFFICIAL OPINION U74-75

To: State Senator, District 46

August 12, 1974

Re: The City of Jefferson should obtain the written application of a railroad owning property within the area to be annexed prior to proceeding under Ga. Code Ann. 69-902 (Ga. Laws 1962, p. 119; 1969, p. 504).

This is in response to your letter dated July 23, 1974, in which you requested advice concerning the proposed annexation of the City of Jefferson. You stated that the city plans on utilizing the procedures set out in Ga. Code Ann. 69-902. You also stated that the Seaboard Railroad owns the fee simple interest in property within the area of proposed annexation. It is my understanding that this property is used as a road bed for the railroad company.
In answer to your first question, there is nothing that prevents a municipality from annexing railroad property as such.

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You next questioned whether the municipality need obtain the approval of the railroad in order to satisfy the requirements of Code 69-902. That section states that a municipality may annex to its corporate limits:
" ... unincorporated areas contiguous to the existing corporate limits at the time of such annexation upon the written and signed applications of all of the owners of all the land, except the owners of any public street, road, highway, or right of way, proposed to be annexed...."
This presents the question whether the railroad property located within the area sought to be annexed by the City of Jefferson is a right of way within the meaning of Code 69-902.
Georgia Laws 1969, p. 504, amended Code 69-902 by creating the exception for public streets, roads, highways or right of ways. This amendment followed a Georgia Supreme Court ruling that a state highway was not annexed under Code 69-902 without the prior written approval of the State Highway Department. City of Adel v. Georgia Power Co., 224 Ga. 232 (1968). The use of the adjective "public" preceding "streets" necessarily applies to the other ways mentioned. It would not be reasonable to construe the Act to apply to public streets, and both public and private roads and highways. If "public" describes the first three types of property, then it should, in all probability, be construed as covering the fourth also. The exception, therefore, seems to be directed towards rights of way owned by the public.
The property owned by the Seaboard Railroad within the land proposed to be annexed is not a public right of way and I thus feel it would be advisable to obtain the written approval of the railroad prior to annexation of their property pursuant to Code 69-902. This would avoid the highly undesirable consequences of a judicial decision declaring all or part of the annexation invalid, should the courts construe Ga. Laws 1969, p. 504, in the above manner.

UNOFFICIAL OPINION U74-76

To: Attorney, Georgia Ports Authority

August 12, 1974

Re: An authority may pay its employees a monetary supplement to workmen's compensation payments received by such employees under the state self-insurance program.

Your letter of July 26, 1974, requested an opinion on the question of whether the authority could make supplemental payments to au-

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.thority employees who are receiving workmen's compensation payments under the state's self-insurance program. Specifically, you expressed concern as to whether such a practice would be in violation of the policies set forth in Op. Att'y Gen. 69-124, an opinion regarding payment of regular wages to an employee covered by the Merit System of Personnel Administration while such an employee had a disability compensable under the Workmen's Compensation Act.
According to your letter, the pertinent facts are as follows. The authority has maintained a policy of supplementing payments received by its employees under the Workmen's Compensation Act. In each instance these supplements from the authority amount to the difference between the employee's regular wages and the amount of workmen's compensation received by the employee. This practice is followed up until the 13th week of disability, at which time the supplemental payments cease. The authority desires to continue this practice as it in essence assures its employees of no net earnings loss during a period of disability up to 13 weeks.
While the provisions of Ga. Code Ann. 89-926 (Ga. Laws 1969, p. 234), provide for a program of self-insurance for workmen's compensation benefits for all employees of the state "including employees of authorities," authority employees are in unclassified service and are not covered under the State Merit System of Personnel Administration and are not subject to the Rules and Regulations of the State Personnel Board. Ga. Code Ann. 40-2201 (c) (Ga. Laws 1971, p. 45); Par. 1.11, Rules and Regulations of the State Personnel Board. Therefore, the seemingly controlling provisions of such board's rules and regulations on which Op. Att'y Gen. 69-124 was based have no application to employment relationships established by the authority. Furthermore, after a thorough search of Georgia law, I can find no other authority which would prohibit the authority from making such supplemental payments.
On the basis of the foregoing, it is my unofficial opinion that the authority may, as it sees fit, continue to make supplemental payments to its employees who are also receiving workmen's compensation payments through the state program.

UNOFFICIAL OPINION U74-77

To: Toombs County Attorney

August 15, 1974

Re: Authority of counties to provide specific fringe benefits for elected officers of the county.

You have requested my unofficial opinion as to the legality of an authorization by county commissioners of retirement and insurance

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benefits for elected officials without specific authorization of the General Assembly. I am sure that there is no need to advise you that this unofficial opinion merely expresses an estimation of how the courts of this state would probably resolve a specific issue. With this caution, it is my unofficial opinion that the action which is proposed by the county would probably not be upheld.
The Home Rule for Counties Amendment to the Georgia Constitution, proposed by Ga. Laws 1965, p. 752, and ratified November 8, 1966, is contained in Art. XV, Sec. II-A, of the Constitution. Ga. Code Ann. 2-8402 et seq. Under its authorization, the county governing authority may fix the salary, compensation and expenses of those employed by the governing authority and may establish and maintain retirement or pension systems, insurance, workmen's compensation, and hospitalization benefits for said employees. Ga. Const., Art. XV, Sec. II-A, Par. II (Ga. Code Ann. 2-8403). However, the legislative power delegated to the governing authority of each county by the amendment may not be construed to extend to:

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

For several reasons, it is apparent that the initiation of retirement and similar insurance benefits, at least to the extent the county undertakes the burden of any part of the premiums therefor, would constitute "action affecting any elective county office [and] the salaries thereof ..." within the meaning of the above provision.
In prior opinions, the office of the Attorney General has taken the position that a state agency empowered to fix the compensation of its officers or employees may provide liability, hospitalization or life insurance as part of the total compensation of those officers and employees. See, e.g., Op. Att'y Gen. 73-167. Life insurance under a "split dollar" arrangement, under which the employer and employee both contribute towards the payment of premiums on a policy of insurance on the life of the employee, has been held to be "compensation." Op. Att'y Gen. 73-65. These opinions are consistent with the observation by the Court of Appeals, speaking of annuity benefits as a form of noncash compensation, that:
"This is the day 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." Griffin v. Bass, 96 Ga. App. 892, 896 (1958).
It is my opinion, therefore, that the benefits you propose are classi-

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fiable as a form of noncash compensation, and thus salary, which might be void in the absence of statutory authority.
Since it is apparent that counties are prohibited from exercising powers which are not expressly given to them or are necessarily implied from an express grant of other powers (Beazley v. DeKalb County, 210 Ga. 41, 43 (1953) )., it is thus necessary to predicate the retirement and insurance benefits proposed upon some express or implied grant sufficient to overcome the lilnitation of the Home Rule Amendment. Art. XV, Sec. II-A, Par. I (c).
In a prior opinion, Op. Att'y Gen. 69-474, this office expressed the view that both the Constitution and general statutes of this state contain independent authorization for a pension and insurance program for employees of the county.
That opinion was premised upon a delegation of legislative authority under Ga. Const., Art. XV, Sec. II-A, Par. II (Ga. Code Ann. 2-8403), to establish such a program for employees of the governing authority, and of the power under Ga. Const., Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702 (10)), and Ga. Code 92-3701 (15) (Ga. Laws 1946, p. 87, as amended) to tax for such purposes.
While it might be argued that the latter provisions confer authority both to establish and to tax for such plans for elective offices within the county, Bibb County v. Garrett, 204 Ga. 817 (1948), suggests that such an interpretation is not available. Since that case has not been overruled nor has its scope been modified by any statute of which I am aware, I am unable to conclude that the legislative power necessary to establish such a program has been delegated to the county.

UNOFFICIAL OPINION U74-78

To: Solicitor, State Court of Macon County

Al.\gUSt 20, 1974

Re: Upon a DUI conviction, a judge may properly suspend or cancel a driver's license, and may also impose a sentence which may be either probated or suspended upon payment of a fine.

This is in reply to your letter of July 11, 1974, requesting an opinion on the following questions:
(1) Is a judge empowered by either Ga. Code Ann. 68A-902 (Ga. Laws 1974, p. 633) or by Ga. Code 27-2506 (as amended by Ga. Laws 1974, p. 631) to suspend or revoke drivers licenses? If not, does he have inherent power to do so?
(2) In imposing punishment as provided in Ga. Code 68A-902 (c), is it permissible for a court to place a defendant on probation for a period of time in addition to a lesser suspended sentence?

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With reference to that portion of question (1) above regarding inherent judicial power, let me point out that Georgia has long recognized the legal maxim that an express grant of power, to the judiciary or whomever, excludes by implication other powers not so expressed. Atlanta Street Ry. Co. v. City of Atlanta, 66 Ga. 104, 108 (1880); City of Macon v. Walker, 204 Ga. 810, 51 S.E.2d 633 (1949). Therefore, a judge would not have inherent power to revoke or suspend drivers licenses absent statutory authority to do so.
As to that statutory authority, the law prior to 1974 was clear: former 68-9927 gave a judge authority to suspend a defendant's drivers license upon a DUI conviction, with possible prison sentences upon second and third convictions also allowable. Under 92A-9908 (Ga. Laws 1937, pp. 322, 348; 1951, pp. 598, 604), a judge had authority not only to suspend, but also to cancel the licenses of those convicted of (1) DUI, (2) driving a vehicle engaged in a felony, or (3) violating any state or municipal traffic law.
In 1974, the General Assembly amended the Georgia Code by adopting Title 68A, known as the "Uniform Rules of the Road Act" (Ga. Laws 1974, p. 633). Article IX of that Act, governing serious traffic offenses, includes Ga. Code Ann. 68A-902, pertaining to drivers with ability impaired by alcohol or drugs, which is silent as to license suspension or revocation, but which does provide the following penalties upon DUI convictions:
" (c) Every person convicted of violating this section shall be punished by imprisonment for not less than 10 days nor more than one year, or by fine of not less than $100 nor more than $1,000, or by both such fine and imprisonment. On a second or subsequent conviction within three years, he shall be punished by imprisonment for not less than 90 days nor more than one year, and, in the discretion of the court, a fine of not more than $1,000. The foregoing limitations on punishment also shall apply when a defendant has been convicted of violating by a single transaction more than one of the four provisions of subsection (a). Provided that no provision of this section shall be construed so as to deprive the court imposing the sentence of the power given by law to the court to stay or suspend the execution of such sentence or to place the defendant on probation."
Also in 1974, Ga. Code 27-2506, relating to how misdemeanors shall be punished, was amended (Ga. Laws 1974, p. 631) to give a judge the additional power to sentence a traffic offender to reexamination by the Department of Public Safety when the judge has good cause to believe the convicted licensed driver is incompetent or otherwise not qualified to be licensed. However, this statute, too, is silent as to suspension, revocation or cancellation of licenses.

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Therefore, to answer part of your questjon, a judge is authorized neither by Ga. Code Ann. 68A-902, 27-2506, nor by a concept of inherent power, to suspend or revoke drivers licenses upon a DUI conviction.
A more difficult question is posed as to the continued efficacy of Ga. Code Ann. 92A-9908. The Uniform Rules of the Road Act specifically repealed Ga. Code Ann. 68-9927 and concluded with the customary general repealer section ("All laws and parts of laws in conflict with this Act are hereby repealed"). (Ga. Laws 1974, pp. 633, 697 and 699). This presents a problem as to whether 68A-902 (c) may be considered to have repealed by implication 92A-9908. Georgia recognizes the widely-accepted principle of law that repeals by implication are not favored (Georgia v. Pennsylvania R.R., 324 U.S. 439 (1945) ), and that in order to bring about such a repeal, the "legislative intent must be clear, manifest, and irreconcilable with intent not to repeal." Connor v. O'Brien, 198 Ga. 221, 31 S.E.2d 399 (1944). More particularly, there are only two instances in which a statute will be deemed to have repealed a prior statute by implication. One is when the provisions of the latter are clearly inconsistent with or repugnant to the provisions of the former Act. The other is when the later Act deals with and embraces the whole subject-matter of the legislation of the former Act. Collier v. Mitchell, 207 Ga. 528, 63 S.E.2d 338 (1951).
Applying the first of these criteria to the statutes in question, there would not seem to be a clear statutory repugnancy if the license suspension and cancellation authorized in 92A-9908 were to supplement the fine and imprisonment authorized in 68A-902 (c). Although the Georgia Supreme Court recently voiced the opinion that drivers license suspensions are administrative sanctions (Strong v. State, 231 Ga. 514, 516 (1973) ), it is not possible to infer from the statutes themselves the requisite clear, manifest legislative intent to express a similar viewpoint.
Secondly, whereas Article IX of the Uniform Rules of the Road Act does govern several serious traffic offenses (reckless driving, DUI, homicide by vehicle and fleeing police), it does not purport to deal with driving a vehicle engaged in any felony, or violation of every municipal or state traffic law, as encompassed in 92A-9908. Therefore, it would not seem that the General Assembly has embraced the whole subject-matter of the former Act in an attempt to express a new pre-emptive body of law.
With regard to question (2) above, Ga. Code 68A-902 (c) provides that upon a second or subsequent DUI conviction within three years, a person shall be punished by imprisonment for not less than 90 days nor more than one year, but the sentencing court may suspend the execution of such sentence or place the defendant on probation. Ga. Code Ann. 27-2709 (amended by Ga. Laws 1972, p. 604)

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provides that in certain cases where the defendant is not likely to engage in further criminal conduct the court in its discretion shall impose sentence upon him but may stay and suspend the execution of such sentence or any portion thereof; and may place him on probation under the supervision and control of the circuit probation supervisor for the duration of such probation. However, Ga. Code Ann. 27-2714 (Ga. Laws 1956, p. 27, as amended) clearly provides that a suspended sentence shall not have the effect of placing a defendant on probation.
There has in the past been some confusion in the statutory and case law as to the differences between the authority for, and effect of, probated and suspended sentences. Cross v. State, 128 Ga. App. 774, 854, 197 S.E.2d 853 (1973). However, the Georgia Court of Appeals has recently declared that the "only real distinction between a probated sentence and a suspended sentence is that a probated sentence is served under the supervision of the probation officers pursuant to the 'Statewide Probation Act,' Ga. Code 27-2702 through 27-2726.1 ... , whereas a suspended sentence is served without such supervision, but on such legal terms and conditions as are required by the sentencing judge." Collett v. State, 131 Ga. App. 411, 415 (1974).
Thus, the Code sections mentioned above, 68A-902, 27-2709 and 27-2714, when construed in pari materia, indicate that a court may sentence a defendant to either a suspended or a probated sentence, but not both for the same offense. If, as in your hypothetical situation, a judge thought it advisable for a defendant to serve his sentence outside of prison, he could properly condition either a suspension or probation of such sentence upon payment of a fine, as there are no distinctions between conditions which may be imposed in either case. Falkenhainer v. State, 122 Ga. App. 478, 480, 177 S.E.2d 380 (1970).
Consequently, in light of the foregoing discussion, it is my unofficial opinion that, although not authorized under Ga. Code Ann. 68A-902 or 27-2506 to suspend or cancel licenses of those convicted of driving under the influence of drugs or intoxicants, a judge may still do so by virtue of authority granted in 92A-9908. Furthermore, it is my opinion that a judge may sentence a defendant to either, but not both, a suspended or probated sentence which may be properly conditioned upon payment of a fine.

UNOFFICIAL OPINION U74-79

To: District Attorney, Macon Judicial Circuit

August 22, 1974

Re: As of July 1, 1974, Ga. Code Ann. 79A-812 of the Georgia Controlled Substances Act (Ga. Laws 1974, pp. 221, 244) creates its own specific conspiracy and attempt punishment. Further, Ga. Code Ann.

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79A-9917 contained in the same Act now makes all subsequent possessions of less than one ounce of marijuana punishable as a misdemeanor.

This is in reply to your recent letter requesting my opinion as to whether Ga. Laws 1974, p. 221, Ga. Code Ann. 79A-812 of the Georgia Controlled Substances Act (S.B. 495), effective July 1, 1974, creates a separate punishment for one conspiring or attempting to violate this Act, or whether the existing Ga. Code sections for conspiracy and attempt, 26-1006 and 26-3201 (based on Ga. Laws 1968, pp. 1249, 1275, 1335), are still applicable to this Act.
In my opinion, Ga. Code Ann. 79A-812 of the above-cited Act now provides for a separate and distinct conspiracy and attempt punishment for those individuals convicted of either conspiring or attempting to violate the provisions of the above-mentioned Act. To construe this new provision as otherwise merely makes this new bill as it relates to the existing statutes regarding the punishment for conspiracy and attempt redundant.
The highest court of this state has long taken the position that when the legislature enacts a new statute it is done so with knowledge of existing statutes, and that the new statute will be interpreted in view of existing statute(s).
"[A]nd it is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing conditions of the laws and with reference to it; that they are to be construed in connection and in harmony with the existing laws; and that their meaning and effect will be determined in connection, not only with the common law and the Constitution, but also with reference to the other statutes and decisions of the courts." Spence v. Rowell, 213 Ga. 145, 97 S.E.2d 350, 354 (1957); see Botts v. Southeastern Pipeline Co., 190 Ga. 689 (1940); see also, Jacobs v. State, 200 Ga. 440, 37 S.E.2d 187 (1946).
Based upon the foregoing Georgia cases it can be assumed that the legislature of this state at the time it passed S.B. 495 had knowledge of Ga. Code Ann. 26-1006 and 26-3201, and as such it is only reasonable to assume that the legislature did not intend to pass a statute that would be redundant and meaningless. Therefore, in my opinion, the proper interpretation of this new Code section is that this new statute creates specific conspiracy and attempt offenses punishable as though the crime had been committed.
You have also requested my opinion as to whether or not this Senate Bill, as it affects Ga. Code Ann. 79A-9917, requires that all subsequent offenses for the possession of one ounce or less of marijuana be

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punished as a misdemeanor per se, or as a felony, punishable as a misdemeanor. This Senate Bill changed the last sentence of this statute from reading "subsequent offenses shall be punished as provided by law" to "subsequent offenses of possession of one ounce or less of marijuana shall be punishable as a misdemeanor."
The amending language now contained in Ga. Code Ann. 79A-9917, effective July 1, 1974, seems at first glance to indicate that all offenses for possession of one ounce or less of marijuana are now misdemeanors. If this be true, then jurisdiction for this type of offense could properly lie in the state courts. This apparent first impression, however, must
be tempered i.n view of two fairly recent decisions handed down by
the appellate courts of this state. Fowler et al. v. State, 229 Ga. 884, 194 S.E.2d 923 (1972), concerns itself with whether or not one who has been convicted of possessing one ounce or less of marijuana, and has been given misdemeanor punishment, had in fact been convicted of a misdemeanor which would then entitle that person to an appeal bond as a matter of law pursuant to Code 27-901 (1933 Code, as amended). Fowler held that even though the punishment received was misdemeanor punishment, the offense itself was not reduced to a misdemeanor under Ga. Code (1933) 27-2501. The appellants in Fowler had been prosecuted under Ga. Laws 1971, p. 271 ( 79A-9917), which then provided, and still provides, that for possession of one ounce or less of marijuana, the maximum punishment permissible is confinement for one year and a $1,000 fine.
In a later case, Kent v. State, 129 Ga. App. 71 (1973), the appellant had been tried in the State Court of Clarke County, also for possessing one ounce or less of marijuana. In Kent, the Court of Appeals ruled that under Fowler, possession of marijuana is still a felony, and as such is subject in certain instances to misdemeanor punishment, and receipt of such punishment does not reduce the ofiense to a misdemeanor. In Kent, the Court of Appeals indicated that a district attorney had a choice in trying an accused for possession of one ounce or less of marijuana in either a state court or superior court. However, in order for a district attorney to prosecute an accused in a state court for possessing marijuana in the quantity of one ounce or less, the district attorney must "affirmatively show" on the indictment or accusation that the charge is for possessing one ounce or Jess of marijuana, and that the accused was a first offender. Kent, at 79.
Since Kent, this statute (Code 79A-9917) has been amended in part to provide that "subsequent offenses of possession of one ounce or less of marijuana shall (emphasis added) be punished as a misdemeanor." The question to be answered at this juncture is whether or not this amending language makes such possession a misdemeanor per se, or whether under the Kent rationale the district attorney is entitled to select the court in which he wishes to prosecute one for such a

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charge. The traditional statutory approach on interpreti;ng criminal statutes is to construe them strictly against the state. Wood v. State, 68 Ga. App. 43, 21 S.E.2d 915 (1942); Floyd v. State, 95 Ga. App. 536, 98 S.E.2d 161 (1957); Waldroup v. State, 198 Ga. 144, 30 S.E.2d 896 (1944); Matthews v. Everett, 201 Ga. 730 (1947).
In view of the Fowler and Kent decisions by the appellate courts in this state, the above approach does not seem to be the one our courts would adopt. Therefore, it is my unofficial position that the Kent rationale would be the approach adopted by the courts in this state; namely, that the district attorney would be given the choice of the court in which he desires to prosecute one charged with possessing one ounce or less of marijuana. If the district attorney elects to prosecute in a state court, then under Kent he must clearly and affirmatively show that the prosecution is for the offense of possessing one ounce or less of marijuana, the punishment being misdemeanor punishment per se inasmuch as a state court does not have jurisdiction over felony offenses. On the other hand, if the district attorney selects the felony alternative, then jurisdiction in felony offenses is vested in the superior court, and the punishment would be as a misdemeanor, but the offense would be a felony. Therefore, prosecuting one for possessing one ounce or less of marijuana in a superior court makes the crime a felony punishable as a misdemeanor, and would not invoke Ga. Code Ann. 27-901.
Based upon the foregoing, it is my unofficial opinion that effective July 1, 1974, S.B. 495, as it pertains to 79A-812, now creates a separate punishment for the offenses of conspiracy and attempt by those individuals who violate the provisions of the Georgia Controlled Sub-
stances Act. Further, it is also my unofficial opinion that this same
bill, as it affects 79A-9917, may, as it applies to offenses for possession of one ounce or less of marijuana, constitute either a misdemeanor per se or a felony punishable as a misdemeanor depending upon the above-cited options which the district attorney may select in view of our appellate decisions.

UNOFFICIAL OPINION U74-80

To: Judge, State Court of Jackson County

August 22, 1974

Re: The Judge of the State Court of Jackson County may appoint a solicitor pro tern. when the duly elected solicitor is unable to perform his duties for that court and the judge may direct the governing body of the county to compensate the person so appointed. In the absence of the resignation or death of the incumbent or a judicial determination as to the incumbent's incapacity to perform his duties

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or his abandonment of his office, the incumbent remains entitled to the salary of the office of solicitor, notwithstanding the fact that he is not capable of performing the duties of the office.

This is in response to your recent letter in which you posed eight questions as to which you requested my unofficial opinion. The basic issue involved in your request is whether you may appoint a solicitor pro tern. to act in your court while the duly elected solicitor is indisposed and, if so, whether the solicitor pro tern. or the duly elected solicitor, or both, would be entitled to compensation from the county, either for their services or because of the office which they hold.
By way of background you stated in your request that the regularly elected solicitor was incapacitated due to a physical ailment, and would be unable to perform his duties as solicitor of your court for an extended period of time. Since there is no assistant solicitor for your court, you are presently without any person who is qualified and authorized to perform the functions of solicitor so as to enable your court to proceed with its business. This then leads to the question of whether some person may be appointed to fill that position while the regularly elected solicitor is incapacitated and, if such a person may be appointed, who has the authority to appoint him.
Section 4 of Ga. Laws 1903, p. 138, as amended, relating to the office of solicitor in your county, provides in part that:
"In the absence or disqualification of said solicitor, the city court judge shall appoint a solicitor pro tern., who shall receive the same fees as the regularly appointed solicitor of said court."
Arguably, the term "absence" in Section 4 of Ga. Laws 1903, p. 138, only refers to absence from the county. While it would appear that this interpretation is permissible, it is my unofficial opinion that the term is more properly interpreted as simply referring to any absence which gives rise to the necessity for such an appointment. Obviously if the solicitor were within the jurisdictional reach of the court and capable of complying with an order of the court to appear, and did so, there would be no "absence" within the meaning of that provision. Since you do not seem to question the fact that your duly elected solicitor has a valid medical reason for his absence from court and could not physically comply with an order directing him to do so, it would appear that this absence would create a situation contemplated by the provision of Section 4 of Ga. Laws 1903, p. 138, as amended, and which would authorize you to appoint a solicitor pro tern.
Nevertheless, even in the absence of such an interpretation, the state court has inherent power to deal with the situation presented by your request. The Court of Appeals of this state has ruled, in Horton v. State, 11 Ga. App. 33, 74 S.E. 559 (1912), that:

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" ... (T)he power to appoint a solicitor pro tern. in the absence of the solicitor would be inherent in the court, where required by the exigencies of the business pending before the court."
This same provision was expanded in Mach v. State, 109 Ga. App. 154, 135 S.E.2d 467 (1964), when the court said:
"Independent of statute, however, courts have long exercised discretionary power to appoint attorneys to assist the prosecuting attorney in criminal cases . . . ."
Therefore, even if the term "absence," as it is used in the section cited above, means absence from the county, the inherent power recognized by the Court of Appeals in the two cases cited would clearly authorize the appointment of an assistant solicitor or a solicitor pro tern. until the regular solicitor is capable of continuing with the duties of his office.
As to the compensation for the assistant solicitor or solicitor pro tern., the above-cited section of Ga. Laws 1903, p. 138, clearly provides that the solicitor pro tern. appointed under that section shall receive the same fees as the solicitor of that court. Under this provision, the county authorities would be obligated to pay the solicitor pro tern. in the same manner that they pay the regular solicitor.
As to the question of compensation if the solicitor pro tern. is otherwise appointed, the Court of Appeals has, in Dekrasner v. Boykin, 54 Ga. App. 29, 186 S.E. 701 (1936), stated that:
"Every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction."
This statement of power has been interpreted in other jurisdictions to clearly authorize the court to order the governing authority responsible for financing the operations of the court to pay any expenses reasonably incident to the administration of justice in the court. See e.g., Judges for Third Judicial Circuit v. County of Wayne, 383 Mich. 10, 172 N.W.2d 436 (1969).
One question still remains, and that concerns the status of the duly elected solicitor during the period when he is unable to perform his duties. Under the provisions of Section 4 of Ga. Laws 1903, p. 138, it is clear that when the fee system provided the compensation of the solicitor, entitlement to the compensation was contingent upon performing the services. However, with the change from the fee system to a salary, which occurred in the case of the solicitor of your court in 1905 (see Ga. Laws 1905, p. 246), the same result does not necessarily obtain. The Supreme Court of Georgia, in Johnson v. Brooks, 139 Ga. 787, 78 S.E. 37 (1912), has stated that:

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"It has often been held that an officer's right to ills compensation does not grow out of a contract between him and the state or the municipality by which it is payable. The compensation belongs to the office, and is an incident of his office, and he is entitled to it, not by force of any contract, but because the law attaches it to the office."

From this principle, the court concluded that:
"It follows that the rules of law relative to contracts do not apply to the official relation; and therefore the fact that an officer has not performed the duties of his office does not deprive him of the right to the salary attached thereto, provided his conduct does not amount to an abandonment of the office."
Georgia Code (1933) 89-501, pertaining to vacancies, specifically provides that a vacancy caused by incapacity does not occur until the time the fact is ascertained and declared by the proper tribunal and the Supreme Court has held that such a determination of abandonment must also be judicially ascertained. See Patten v. Miller, 190 Ga. 123, 8 S.E.2d 757 (1940).
Therefore, in the absence of any showing that the duly elected solicitor has resigned, or a judicia] determination that he is incapacitated or has abandoned the office, it would appear that the duly elected solicitor still properly holds the office, and, pursuant to the authorities cited above, is entitled to receive the salary of the office.
While reaching the conclusion that, in certain circumstances, it might be proper to pay both a duly elected solicitor and a solicitor protem., I wish to advise you that the failure of the persons responsible for the disbursement of county funds to seek a judicial determination as to whether the county soHcitor has vacated ills office may result in a later determination, in a proper suit, that such persons are treating the duly elected solicitor's salary as a gratuity. This would constitute a violation of Art. VII, Sec. I, Par. II of the Constitution of the State of Georgia (Ga. Code Ann. 2-5402) made applicable to county and municipal governments by the Supreme Court in Grand Lodge of Georgia, Independent Order of Odd-fellows v. City of Thomasville, 226 Ga. 4, 172 S.E.2d 612 (1970), which could result in personal liability for those persons.

UNOFFICIAL OPINION U74-81

To: City Recorder

August 23, 1974

Re: A recorder's court does not have jurisdiction to try a state criminal offense absent statutory authority, nor does a city have jurisdiction to duplicate a state penal statute in its own ordinances absent similar authority.

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This is in reply to your letter of August 13, 1974, in which you asked the following questions:
(1) May the Recorder's Court of the City of Wadley try the offense of carrying a concealed weapon as defined by Ga. Code Ann. 26-2901 '?
(2) Can carrying a concealed weapon be made a violation of the City Code of Wadley?
(3) How should weapons confiscated under Ga. Code Ann. 26-2901 as evidence be disposed of?
Under the charter of the City of Wadley and the general laws of the State of Georgia, it is my unofficial opinion that the jurisdiction of the recorder's court does not extend to the trial of state criminal offenses. Under Article VI, Section III of the new city charter (Ga. Laws 1974, pp. 3576, 3601), the recorder's court may try violations of city laws and ordinances and shares the same powers respecting the state criminal statutes as a justice of the peace or any other mayor's, recorder's, or police court. The Wadley Recorder's Court may, therefore, issue warrants for the apprehension of any person charged with on oath or known by the recorder to have violated a penal law of this state. Ga. Code 24-1501 (2) (Ga. Code of 1933). Further, the recorder's court may examine the party as a court of inquiry and determine whether to discharge, bind over, or commit the suspect pending trial in a court of competent jurisdiction. Ga. Code Ann. 24-1501 (3) (Ga. Code of 1933); Ga. Code Ann. 27-407 (Ga. Code of 1933). The recorder's court apparently does not have jurisdiction, however, to conduct the ultimate trial of the state offense.
It is also my unofficial opinion that the crime of carrying a concealed weapon as defined in Ga. Laws 1968, pp. 1249, 1323 (Ga. Code Ann. 26-2901), may not be adopted into the Code of the City of Wadley. It is clear that where a state statute and a city ordinance operate upon identical subject matter, the state statute pre-empts the ordinance. Thompson v. City of Sandersville, 110 Ga. App. 300 (1964). As reiterated in Thompson:
"Where a municipal penal ordinance and a public criminal statute operate upon the same set of physical acts, the municipal ordinance is invalid unless the offense created by it contains some characterizing ingredient not contained in the offense under the state law."
In my unofficial opinion, there are two types of situations in which the recorder's court would have to determine the disposition of weapons seized under Ga. Code Ann. 26-2901. First, if the individual is discharged by the court relative to all offenses, the weapons seized as

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e\ridence must be returned. Ga. Const., Art. I, Sec. I, Par. III (Ga. Code Ann. 2-103). Second, if the individual is bound over for trial, the e\ridence should be retained by the prosecuting authority or forwarded to the proper official of the court competent to try the charges.

UNOFFICIAL OPINION U74-82

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

August 26, 1974

Re: The Board of Trustees of the Georgia Firemen's Pension Fund does not have the authority to accept an application for membership into the fund under the 1973 open enrollment statute after October 31, 1973.

This responds to your letter requesting my opinion on the construction of Ga. Laws 1973, pp. 186, 189; Ga. Code Ann. 78-1020. The provision in question, commonly known as an open enrollment statute, authorizes firemen or volunteer firemen, who have previously failed to take advantage of the opportunity to apply for membership into the Georgia Firemen's Pension Fund, to submit their application for membership into the fund within the time prescribed therein.
As I understand it, the pertinent facts which gave rise to your inquiry are as follows: A fireman, pursuant to and in accordance with the provisions of the above-cited 1973 open enrollment statute, applied for membership into the Georgia Firemen's Pension Fund. Thereafter, prior to the board of trustees' taking any definitive or final action with regard to his application, the fireman demanded that the requisite money he had submitted, as well as the application, be returned to him. You advise that you strongly urged the applicant to refrain from such an action, warning him that serious consequences could result. Even though you explained that the board of trustees had made no final ruling on his application, he nevertheless insisted that you comply with his demand. Accordingly, his application and money were thereafter returned to him.
You further state that approximately one month later, the fireman in question resubmitted his application for membership into the fund. This final submittal came seven and one-half months after the deadline provided for in the open enrollment statute. Therefore, your question is whether, under the above described circumstances, the fund is authorized to accept the application at this late date.
The answer to your inquiry is governed by that portion of Ga. Laws 1973, pp. 186, 189, which delineates the period of time which a fireman has to take advantage of the provisions of the open enrollment statute, and which pro\rides as follows:

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"Application for membership in the fund from those persons qual-
ifying hereunder wll be accepted from September 1 through Oc-
tober 31, 1973, after which date no delinquent application will be accepted."
In construing any statute, as you have asked me to do here, I must be guided by the prevailing rules of statutory construction. The ordinary signification must be applied to all words. Ga. Code 102-102 (1). Where the language of a statute appears clear and plain, it must be held to mean what has been expressed. Barnes v. Carter, 120 Ga. 895 (1904). In construing the above provision, I am persuaded to the view that the board of trustees would not be authorized to accept an application for membership into the fund after October 31, 1973. To hold otherwise or to imply exceptions to this clear statutory language would lead to potential abuses.
I am cognizant of the fact that in the situation presented, the fireman did originally comply with the terms of the statute. However, after a thorough warning and with full knowledge of the facts, the individual chose to withdraw his application and the accompanying money. It follows that the resubmittal of his application at a later date should be considered as a separate and unrelated action.
Therefore, it is my unofficial opinion that the Board of Trustees of the Georgia Firemen's Pension Fund does not have the authority to accept an application for membership into the fund under the 1973 open enrollment statute after October 31, 1973.

UNOFFICIAL OPINION U74-83

To: State Senator, District 46

August 28, 1974

Re: (1) Social security benefits are included in income for the purposes of determining a taxpayer's entitlement to the homestead exemption granted in Ga. Laws 1974, p. 183. (2) A taxpayer who meets the qualifications of both Ga. Laws 1964, p. 939, as amended, and Ga. Laws 1974, p. 183, is entitled to a homestead exemption not to exceed $4,000 from state ad valorem taxes, $4,000 from county ad valorem taxes excluding those taxes levied for educational purposes, and $10,000 from ad valorem taxes levied for educational purposes.

This is in response to your recent letter wherein you raise two questions concerning the proper construction and application of the homestead exemption authorized by two 1972 amendments to the Constitution (Ga. Laws 1972, p. 1460, and Ga. Laws 1972, p. 1463; Ga. Code Ann. 2-5404) as implemented by a 1974 Act of the General Assembly (Ga. Laws 1974, p. 183; Ga. Code Ann. 92-238.1 to 92-238.5, hereinafter referred to as the "1974 exemption").

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The 1974 exemption contains an income test for entitlement to the exemption reading as follows: " ... a gross income from a11 sources ... not exceeding $6,000 per annum ...."As to this language you ask:
" ... is social security included as part of that income in calculating the gross income of the people when they are determining whether or not they are entitled to the exemption based on a gross income of $6,000 or less?"
The income test contained in the 1974 exemption is in all material respects identical to the income test contained in the original language of another homestead exemption, Ga. Laws 1964, p. 939, as amended by Ga. Laws 1968, pp. 1690, 1691, and Ga. Laws 1971, p. 947 (hereinafter referred to as the "1964 exemption"). (Ga. Const., Art. VII, Sec. I, Par. IV; Ga. Code Ann. 2-5404.) In answering a question similar to the one you have posed, as it related to the 1964 exemption, the Attorney General opined that social security benefits were included in determining eligibility for the exemption. See Ops. Att'y Gen. 1963-65, p. 749 (copy enclosed). The rationale of that opinion is equally applicable to your question and it is, therefore, my unofficial opinion that social security benefits are includable in income for the purposes of determining a taxpayer's entitlement to the 1974 exemption. This conclusion is further supported by the legislative and administrative history of the 1964 exemption subsequent to the 1965 opinion referred to above. See Ga. Laws 1968, pp. 1690, 1691; Ga. Laws 1971, p. 947; and Ops. Att'y Gen. 69-112.
You have also asked:
" ... how does this new law dovetail with the old law of the $4,000 homestead exemption for those over 65 who have an income of $4,000 or less?"
I construe this question to be an inquiry into the total amount of exemptions to which a taxpayer who qualifies under the provisions of both the 1964 and 1974 exemptions would be entitled.
In addition to the 1964 and 1974 exemptions which grant homestead exemptions to ad valorem taxpayers meeting certain age and income requirements, Paragraph IV of Article VII of the Georgia Constitution (Ga. Code Ann. 2-5404) contains two other homestead exemption provisions. The first such provision was contained in the Constitution as originally ratified, and as subsequently implemented by the General Assembly (Ga. Laws 1946, p. 12, hereinafter referred to as the "general exemption") grants an exemption to the homestead of all residents. Later, a provision was enacted (Ga. Laws 1957, p. 72, as amended, hereinafter referred to as the "disabled veteran exemption") which grants a homestead exemption to certain disabled veterans.
In effect, each of the homestead exemption provisions contains one or more separate, or at least separable, exemptions from the various

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types of ad valorem taxes. The general exemption provides an exemption of $2,000 from state taxes, $2,000 from county taxes, and $2,000 from county school taxes. The disabled veteran exemption provides an exemption of $12,500 from state taxes, $12,500 from county taxes, $12,500 from municipal taxes, and $12,500 from all school taxes. The 1964 exemption provides an exemption of $4,000 from state taxes, $4,000 from county taxes, and $4,000 from county school taxes. See Ops. Att'y Gen. 1963-65, p. 733. The 1974 exemption provides an exemption of $10,000 from all school taxes.
Obviously there are situations where a particular taxpayer may meet the qualifications of two or more of the exemptions, thereby having possible multiple claims to exemptions from the various ad valorem taxes involved. The question thus arises, are these exemptions cumulative? Prior to answering your specific question as to whether the 1964 and 1974 exemptions are cumulative, I will first deal with the broader question of the interrelationship of all these exemptions.
Each of the exemptions has language which limits the amount of the exemption granted or authorized. The general exemption provides that "the value of all property in excess of the foregoing exemption shall remain subject to taxation." The 1964 exemption and the disabled veteran exemption contain similar language. The 1974 exemption states that the exempted amount "shall not exceed $10,000." Interpreted in light of the cardinal rule of construction in this area that exemptions from taxation must be strictly construed against the grant of the exemption (see, e.g., Presbyterian Center v. Henson, 221 Ga. 750 (1966) ), the import of these limitation clauses is clear. If a taxpayer is qualified for and chooses to invoke the benefits of any one of the exemptions from any one of the types of ad valorem taxes, he necessarily triggers the limitation clause of that exemption. Thus, any attempt to take two or more similar exemptions would violate the limitation clause of each of the exemptions and cannot be done.
As to your specific inquiry with respect to the 1964 and 1974 exemptions, the foregoing interpretation leads to the following conclusions. The taxpayer who qualifies for both exemptions could take a $4,000 exemption from state and county, excluding school, ad valorem taxes without a violation of any limitation clauses. The same taxpayer, however, could not take the $4,000 exemption from county school taxes provided by the 1964 exemption and the $10,000 exemption from county school taxes provided by the 1974 exemption without violating the limitation clauses of both exemptions. Thus, it is my unofficial opinion that a taxpayer who meets the qualifications of both the 1964 and 1974 exemptions would be entitled to an exemption of no more than $4,000 from state ad valorem taxes, $4,000 from county ad valorem taxes excluding those taxes levied for educational purposes, and $10,000 from ad valorem taxes levied for educational purposes.

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U74-84

UNOFFICIAL OPINION U74-84

To: Judge, Superior Court

August 28, 1974

Re: The judges serving on the judicial panel created by Ga. Laws 1974, pp. 352, 358 (Ga. Code Ann. 27-2511.1), to review sentences are entitled to be reimbursed for expenses incurred in the performance of their duties while serving on such panel from funds appropriated for the operation of superior courts.

This is in response to your recent request for my opm10n as to whether judges sitting on the judicial panel created by Ga. Laws 1974, pp. 352, 358 (Ga. Code Ann. 27-2511.1), are entitled to be reimbursed for expenses incurred by them in the performance of their duties while on such panel.
Section 4 of the General Appropriations Act for Fiscal Year 1975, Ga. Laws 1974, pp. 1508, 1511, appropriates in excess of $6,000,000 which is to be used to defray the,
" ... cost of operating the superior courts of the State of Georgia, including payment of judges' salaries, contingent expense allowances authorized by law, the payment of mileage authorized by law, the payment of travel, tuition and expenses of judges authorized to attend the National College of State Trial Judges, and such other salaries and expenses as may be authorized by law." (Emphasis added.)
Georgia Laws 1974, pp. 352, 358 (Ga. Code Ann. 27-2511.1), creates a panel of three superior court judges whose function is to review sentences imposed by other judges for the purposes of seeking uniformity in the application of the law to aU defendants, regardless of the particular court or judge before which they appear, and to alleviate undue harshness in sentencing. The Act specifically provides that judges so appointed shall receive their actual expenses incurred in the performance of their duties while on the panel and that such expenses shall be paid for out of funds appropriated to the Judicial Branch of State Government.
Since the purpose of the panel is to insure uniformity in the system it is clear that the cost of operating the three-judge panel is fairly said to be a cost of operating the superior courts of the state. Therefore, the expenses authorized by Ga. Laws 1974, pp. 352, 358 (Ga. Code Ann. 27-2511.1), are properly paid from the funds appropriated for the operation of the superior courts of the state by Section 4 of the General Appropriations Act for Fiscal Year 1975, Ga. Laws 1974, pp. 1508, 1511.
Therefore, it is my opinion that the judges who serve on the three-

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judge panel to review sentences may obtain reimbursement for their expenses incurred in the performance of their duties while serving on the panel, and that the funds to reimburse these expenses should be charged against the funds appropriated for the operation of the superior courts of this state.

UNOFFICIAL OPINION U74-85

To: Superior Court Judge

August 29, 1974

Re: Drug addicts and alcoholics may be treated at local facilities or hospitals whenever their condition warrants, but in order to have such a person committed for pretrial confinement in a state operated facility, the provisions of Ga. Code Ch. 88-4 (Ga. Laws 1971, p. 273) must be followed.

This is in response to your recent request for my unofficial opinion concerning the pretrial confinement of drug addicts in your county jail. The particular issue raised concerns the fact that such addicts often require medical assistance because of their condition and, since the county jail does not have the medical facilities necessary for the treatment of these persons during their pretrial confinement, it is a matter of some concern to you as to how and where these persons are to be treated.
Two sources of authority bear on this problem. First, all jailers owe to prisoners in their care the duty to exercise ordinary diligence in keeping the prisoner safe and free from harm, including the duty to provide him with medical aid when necessary. This position was adopted by the Court of Appeals in Irwin v. Arrendale, 117 Ga. App. 1, 159 S.E.2d 719 (1967). Therefore, if any prisoner in the county jail needs medical attention, the sheriff has a duty to provide such attention for that prisoner, whether it be at the confinement facility or at a hospital. Under this line of authority, however, a drug addict would have to be taken to a local medical facility and could not be admitted to the state facility at Milledgeville simply by the transportation of the prisoner by the jailer or sheriff to that facility.
Notwithstanding this limitation, Ga. Code Ann. 88-404.7 does provide a method by which the court, or the sheriff, might insure that a person detained in pretrial confinement receives treatment for drug addiction at a state-operated facility. Since the sheriff is under an obligation to see that any prisoner who needs medical attention receives it, the sheriff would be authorized to take any person suffering from any such medical disability to a doctor who in turn could certify that the person is an alcoholic or a drug addict. Pursuant to Code 88-404.7, the physician's certificate would authorize any peace officer

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to deliver the alcoholic or drug adruct to the nearest available emergency receiving facility where he could be examined and where i't could be ascertained whether in fact he was an alcoholic or a drug addict. The remaining provisions of Ga. Code Ch. 88-4 then provide for the processing and treatment of a person once he has been so committed and further provides, when the person no longer needs hospitalization or further detention for evaluation, that he will be discharged or, if he is under a criminal charge, remanded to the custody of a peace officer who will return the patient to the proper county.

UNOFFICIAL OPINION U74-86

To: Superintendent, Georgia Regional Hospital at Augusta

August 29, 1974

Re: Records of patients admitted to state medical facilities pursuant to the provisions of Ga. Code Ann. Ch. 88-5 are confidential, and the confidentiality of these records does not terminate with the death of the patient. Therefore, a clinical record of a patient may be released after the patient's death only in accordance with the provisions of Ga. Code Ann. 88-502.10 which do not include the release of records to a patient's relatives solely upon their request.

This is in response to a recent letter from a member of your staff requesting our opinion as to whether the clinical records of a deceased patient must be released to the patient's husband.
Georgia Code Ann. 88-502.10 (Ga. Laws 1969, p. 505), relating to the confidentiality of medical records, provides in part that:
"Unless waived by the patient or guardian and his attorney, the privileged and confidential status of all information given such status by section 38-418 (5) shall not be lost by either authorized or unauthorized disclosure of such information to any person, organization or agency. The clinical record shall not be a public record and no part of it shall be released except: "(1) Where the superintendent of the facility where the record is kept deems it essential for continued treatment, the record may be released to physicians; "(2) The record may be released to physicians, attorneys, and government agencies as designated by the patient; "(3) The record, except for matter privileged under section 38-418 (5), may be produced in response to a duly issued subpoena; the record, or any part thereof, may be released to persons duly authorized by an order of a court of record;

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" (4) When the patient is transferred to another facility, the record may be released to that facility; "(5) The record or any part thereof may be disclosed to any employee or staff member of the facility when the attending physician deems it necessary for the proper treatment of the patient."
Therefore, it is clear that the clinical records of all patients are confidential and the law is quite specific that such records are not public records and that they cannot be released except in the instances cited above.
Further, the Court of Appeals has, in Boggess v. Aetna Life Insurance Co., 128 Ga. App. 190 (1973), ruled that the privilege which exists between a patient and a psychiatrist does not cease with the death of the patient. Therefore, the confidentiality which is attached to the records by the provisions of Code 88-502.10 continues to exist, even though the patient is deceased.
Considering the limitations imposed by Code 88-502.10, it is evident that the hospital is not authorized to release the clinical records of any patient, whether alive or deceased, unless the request for such release falls within the enumerated exceptions cited above. Since a request by a relative does not fall within any of the enumerated exceptions, it is my opinion that the law will not permit the hospital to release clinical records to such a person.
This is not to say that the records are forever sealed with the death of a patient. As cited above, the records may be produced in response to a duly issued subpoena and may be released by an order of a court of record. Therefore, it would be incumbent on the hospital to produce the clinical records in response to such a subpoena or order. Please note, however, that a court order or subpoena does not abrogate the privilege created by Ga. Code Ann. 38-418 (5) (Ga. Laws 1959, p. 190), relating to the confidentiality of the patient/psychiatrist relationship, and any response to a subpoena or court order must take these provisions into consideration.

UNOFFICIAL OPINION U74-87

To: County Attorney

August 30, 1974

Re: The Tax Commissioner of Taliaferro County is entitled to a commission on public utility taxes and has been so entitled for the past 10 years.

This is in response to your letter in which you requested an opinion on the following questions:

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U74-87

(1) Is the Tax Comnilssioner of Taliaferro County entitled to a

comnilssion on public utility taxes and has he been so entitled

for the past 10 years'?



(2) If the Tax Commissioner of Taliaferro County has been entitled to a commission on public utility taxes, how far back may he collect such commissions?

Local legislation passed by the General Assembly and approved February 25, 1939 (Ga. Laws 1939, p. 736) established the office of Tax Commissioner of Taliaferro County. The Act authorized the tax commissioner to be paid on a commission basis but prohibited the payment of a commission on public utility taxes. Subsequent to the passage of this local Act, the General Assembly enacted general legislation that would entitle the tax comnilssioner to a commission on public utility taxes.
Georgia Laws 1951, pp. 815, 816, as amended, and Ga. Laws 1965, pp. 626, 627 (Ga. Code Ann. 92-5304), which entirely superseded the 1951 Act, both provide:

''As far as the tax collectors and tax commissioners are concerned, the rates and schedules prescribed by section 92-5301 shall apply upon the first 90 per cent of the ad valorem net digests collected by the tax collector. On all taxes collected in excess of 90 per cent of the total of taxes due, according to the tax net digest, the tax collector's or tax commissioner's commission shall be for such taxes 10 per cent of all such collections, irrespective of the above and foregoing schedule and rates: ..."

The terms "ad valorem net digest" and "tax net digest" as used in both Acts include by definition public utility taxes, thereby requiring a commission on such taxes be paid the tax commissioner. See Rice v. Board of Commissioners, 107 Ga. App. 207 (1962).
Being the latest expression of the General Assembly, Ga. Laws 1951, pp. 815, 816, as amended, and Ga. Laws 1965, pp. 626, 627, control and govern the period in question from 1964 to the present. Laurens County v. Keen, 214 Ga. 32 (1958); Clark v. Kaylor, 219 Ga. 256 (1963).
Therefore, it is my unofficial opinion that the Tax Commissioner of Taliaferro County is entitled and has been entitled for the past 10 years to receive a commission on public utility taxes.
With regard to your second question of how far back the tax commissioner may recover the commissions, I refer you to two opinions issued by this office (Ops. Att'y Gen. 1954-56, p. 882; Ops. Att'y Gen., November 14, 1968 [unpublished]), copies of which are herewith enclosed, which discuss this question. The enclosed opinions are, of course, unofficial opinions and are not binding on anyone. My research on this question has failed to reveal any case in which the court has de-

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cided this question. It should be noted that Coleman v. Clayton County, 123 Ga. App. 757 (1971), did mention the situation discussed in the enclosed opinions but the court found it unnecessary to decide the question. I would also like to point out the following Code sections and cases: Ga. Code (1933) 23-1602 and 3-706; Norris v. Nixon, 78 Ga. App. 769 (1949); Ga. Code Ann. 3-704 (amended by Ga. Laws 1943, p. 333); Best v. Maddox, 185 Ga. 78 (1937); and Crow v. McCallum, 215 Ga. 692 (1960).

UNOFFICIAL OPINION U74-88

To: Attorneys for Habersham County

August 30, 1974

Re: Georgia Laws 1964, p. 876, authorizes Habersham County to levy an ad valorem tax for the support of the Habersham County Industrial Development Authority which was created by the same constitutional amendment, but not for the support of an authority created under Ga. Laws 1969, p. 137.

This is in response to your letter of August 1, 1974 in which you posed the question of whether the county may levy an ad valorem tax authorized by a local constitutional amendment to support an industrial authority which was subsequently created under a later general law.
Georgia Laws 1964, p. 876, a local constitutional amendment, authorized the creation of the Habersham County Industrial Development Authority and provided that the Board of Commissioners of Roads and Revenue was authorized to levy a tax to provide financial support to that authority. Georgia Laws 1969, p. 137, a general law (Ga. Code Ann. Ch. 69-15), authorized the creation of Industrial Development Authorities, and at no place did the 1969 law provide for the levy of a tax to provide financial support.
The 1964 and 1969 laws created separate and distinct development authorities with only the 1964 law authorizing the levy of a tax. Authorities created pursuant to the 1969 law are not authorized to levy a county ad valorem tax for their support, nor are they authorized to expend tax receipts. The power to tax falls within the sole prerogative of the General Assembly, and cannot be exercised except with legislative authority. (Ga. Const., Art. VII, Sec. I, Par. I (Ga. Code 2-5401) ). Where the General Assembly exercises that prerogative, the tax revenue shall only be expended for those purposes which are authorized. (Ga. Const., Art. VII, Sec. IV, Par. II (Ga. Code 2-5702) ).
Therefore, it is my unofficial opinion that the county is without authority to levy the tax authorized by Ga. Laws 1964, p. 876 to support an authority created under Ga. Laws 1969, p. 137.

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U74-89

I concur in the conclusions which you reached in regard to your other questions, to-wit: within the facts presented the county has no constitutional or statutory authority to levy a tax to support an Industrial Development Authority created pursuant to the 1969 law; and, federal revenue sharing funds cannot be used for any purpose for which a tax cannot be levied. For your information I am enclosing a copy of a recent opinion which relates to expenditures of revenue sharing funds (Op. Att'y Gen. U74-21).

UNOFFICIAL OPINION U74-89

To: Judge, Superior Court

September 5, 1974

Re: Discussion of eligibility for appointment to the office of superior court judge emeritus.

This responds to your recent letter requesting my opinion as to when you will be eligible for appointment to the office of judge of the superior courts emeritus. For the reasons discussed hereinafter, I am of the opinion that you are eligible now for appointment to that office.
The Act creating the office of superior court judge emeritus establishes the following relevant requirements for appointment:
1. A judge of the superior courts must be in at least his 19th year of creditable service.
2. A judge of the superior courts can include prior service as a solicitor of a city court in computing his creditable years of service.
3. A judge of the superior courts must have served at least four years on the superior court bench.
These requirements are established by Ga. Laws 1945, p. 362 et seq.; Ga. Code Ann. 24-2602a, both as amended. The statute is clear and precise that service as a solicitor of a city court may be counted toward the total years required for appointment to the office of superior court judge emeritus.
Your record of service on file with the Georgia Secretary of State indicates that you served as solicitor of the City Court of Gwinnett County from January 1, 1943 until you resigned that position effective December 31, 1960. You resigned as city' court solicitor in order to assume the office of judge of the superior courts, Gwinnett Judicial Circuit, on January 1, 1961, in which office you have served until the present date. As of today, this would give you a total of 31 years, 8 months and 5 days of creditable service toward appointment as an emeritus judge.
Additionally, you have provided me with the following information about your individual situation. You have selected widows' benefits

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472

under the superior court judges emeritus retirement program, you are 66 years of age at present, and you have, since the date you took office as a judge, made the statutorily required salary percentage contributions under the retirement program to the state treasury.
Previous opinions of this office have stated that a superior court judge who has been both a city court solicitor and a superior court judge, and has made the requisite contributions of his salary since becoming a judge, is eligible for retirement and appointment to the office of superior court judge emeritus. Ops. Att'y Gen. 1962, p. 93; 72-8. I have reviewed your service record and the applicable statutes dealing with the appointment of superior court judges emeritus and am of the opinion that you are eligible at this time to be appointed by the Governor to the office of superior court judge emeritus.

UNOFFICIAL OPINION U74-90

To: Deputy Clerk, Superior Court

September 13, 1974

Re: Proper disposition of money received in the superior court clerk's office from an officer of the court.

Your letter requested an opinion on the question of the disposition that should be made of money paid into the clerk's office on three separate occasions by an officer of the court.
At the time of the payments, an active investigation was being made into the affairs and practices of the officer. It is understood from your letter that the person being investigated paid $8985 in one instance and $1675 in another instance, prior to any formal charges being preferred by those conducting and pursuing the investigation. The records accompanying the two payments included accusations drawn by the officer against various individuals. The accusations did not on any portion bear the signature of the accused or a judge. For the most part, the accusations charged the offense of driving a motor vehicle while under the influence of alcohol. Receipts accompanying the records reflected the amount of money that each accused had paid to the officer in each case. The money paid by each accused purportedly "settled" the offense as between the payor and the State of Georgia.
After these two payments were made, the grand jury returned bills of indictment charging the officer with theft-related offenses. The amount alleged in the indictments to have been wrongfully taken totalled $8920. The officer-accused then paid this amount of money to the clerk's office. Each of the various offenses charged in the indictments revealed that the money had been received by the officer after an accusation had been preferred by him. Again, money had been paid by those accused in the accusation to "settle the case." The persons paying over the money to the officer never appeared in court; conse-

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quently, sentences by a court of competent jurisdiction were never imposed in the various nilsdemeanor cases. Records in the clerk's office reveal that each of the cases had been on motion of the officer nol. prossed.
Decisions of the two appellate courts of this state and statutes relating to the collection of money by public officers provide a clear answer as to the disposition to be made of the money now under the control of the clerk. The answer can be found by examining the situation and points in time in which money may be collected by county officials from individual citizens accused of misdemeanor offenses.
At the time of payment by the individual to the officer in question, certain fees due public officers for their services should have already accrued. Sheriffs, clerks, and district attorneys are entitled to charge for certain services performed by them. In cases where these officers are on a salary, the money collected for these fees must be paid to and is owned by the county. See Ga. Laws 1972, pp. 664, 665 (Ga. Code Ann. 24-2727) (clerks); Ga. Laws 1955, pp. 383, 384 (Ga. Code Ann. 24-2823) (sheriffs); and Ga. Laws 1968, pp. 992, 993 (Ga. Code Ann. 24-2924) (district attorneys).
Concerning the cases mentioned above, which were never signed by the defendant or a judge, which were not nol. prossed, and which were transmitted to the clerk's office prior to the return of the indictment against the officer, the county does not have a claim for any portion of the money based on chargeable fees of its officers. Fees cannot be collected until conviction. Ga. Const., Art. I, Sec. I, Par. X (Ga. Code Ann. 2-110); Ga. Code (1933) 27-2801; see Wells v. Potter, 120 Ga. 889 (1904). The funds paid to the clerk which were collected on the cases providing the subject matter and basis of the indictment returned against the officer, and which were nol. prossed, cannot be charged by the county for collectible fees of its officers. Costs cannot be collected from an accused on a criminal case which has been nol. prossed. See Hunter v. State, 104 Ga. App. 576 (1961).
The county might have a claim to the funds if the individual payments had been collected by the officer as cash bail. Compare Ga. Laws 1953, p. 331 (Ga. Code Ann. 27-508) (authorizing certain persons to accept cash bonds under certain described circumstances), Ga. Laws 1953, pp. 331, 332 (Ga. Code Ann. 27-511) (providing for the forfeiture of cash bonds), and Ga. Laws 1969, p. 41 (Ga. Code Ann. 81-1017) (cash bonds in civil and criminal cases), with Ga. Code (1933) 27-2902 (providing for the payment into the county treasury of fines and forfeitures). The difficulty in considering or treating any of the money received in the clerk's office as bond money is that the requirements of the two Acts, Ga. Laws 1953, p. 331 (Ga. Code Ann. 27-508) and Ga. Laws 1969, p. 41 (Ga. Code Ann. 81-1017) were

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not met at the time of collection by the officer. Certainly the money collected in the cases described above which were nol. prossed could not be considered as cash bond money; and the remaining cases have never reached the point in the criminal process which would justify a forfeiture of the bond. In these latter cases the money would be held by the clerk in trust for the one who originally deposited it. Washburn v. Foster, 87 Ga. App. 132 (1952).
It is my unofficial opinion that the money held in the clerk's office under the circumstances described is owned and should be distributed to the individuals who originally paid it to the officer. Scarboro v. State, 207 Ga. 449 (1950). Even if the money collected on the cases that were not ultimately nol. prossed were to be considered as cash bail, it is still conclusively presumed to belong to the accused, Land v. State, 103 Ga. App. 496 (1961), until after appearance and trial. Nothing in this unofficial opinion is intended to suggest that the present district attorney cannot proceed with respect to the cases not nol. prossed to dispose of them as with any other pending criminal action.

UNOFFICIAL OPINION U74-91

To: Regional Counsel, Department of the

September 16, 1974

Treasury, Bureau of Alcohol, Tobacco and Firearms

Re: (1) Georgia law permits the possession of a machine gun which is duly registered under the National Firearms Act if the machine gun is not capable of discharging more than eight bullets by a single function of the firing device. (2) Georgia law permits the transporting and transferring of a machine gun which is duly registered under the National Firearms Act if the machine gun is broken down into a nonfunctioning state, is not immediately accessible, and is not capable of discharging more than eight bullets by a single function of the firing device.
This opinion is in reply to your letter asking whether, under Georgia law, registration of a machine gun with the Federal Bureau of Alcohol, Tobacco and Firearms constitutes an exception to or exemption from the Georgia law prohibiting the possession of a machine gun. You also asked whether the transportation of a federally registered machine gun into Georgia, or the transfer of a registered machine gun to a Georgia resident, is consistent with the law of Georgia.
As you observe in your letter, there is an apparent conflict in Georgia law. Ga. Code Ann. 26-9911a prohibits the possession of a machine gun and Ga. Code Ann. 26-9914a provides exceptions to 26-9911a including subsection (d) which is possession "by a person who is authorized to possess the same because he has registered the ... machine

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gun ... in accordance with the dictates of the National Firearms Act, approved August 16, 1964, 68A Stat. 725 (26 U.S.C. 5841-5862)." 1 Ga. Laws 1968, pp. 983, 985.
The conflict arises in comparing these two sections with Ga. Code Ann. 26-2906, prohibiting among other things the possession of a machine gun, and Ga. Code Ann. 26-2907, providing exemptions to 26-2906 which exemptions do not include registration of the machine gun under the National Firearms Act of 1954.
The Georgia Firearms and Weapons Act, which includes 26-9911a and 26-9914.a, was approved on April 8, 1968. Ga. Laws 1968, pp. 983, 986. Two days later, on April 10, 1968, the revised Criminal Code of Georgia, including 26-2906 and 26-2907, was approved. Ga. Laws 1968, p. 1249 et seq., p. 1351. The new Criminal Code contained the customary provision repealing "all laws and parts of laws in conflict." Ga. Laws 1968, p. 1351. Since 26-2907, providing exceptions to the prohibition of possessing machine guns not including the federal registration exemption, was approved subsequent to the Georgia Firearms and Weapons Act, including 26-9911a and 26-9914a, its effect was to repeal the provisions of the Firearms and Weapons Act to the extent of any conflict.
Ga. Code Ann. 26-2906 defines a machine gun as "any weapon from which more than eight shots or bullets may be discharged by a single function of the firing device." Therefore, the Firearms and Weapons Act, including the federal registration exception provisio:o., cannot apply to weapons fitting that description except to the extent that it overlaps Ga. Code Ann. 26-2907. As noted above, there is no exception under 26-2907 for weapons registered under the National Firearms Act of 1954. I conclude, therefore, that it is unlawful under Georgia law for a person who does not meet one or more of the other four enumerated exemptions in 26-2907 to possess a weapon capable of firing "more than eight shots or bullets ... by a single function of the firing device," whether or not that weapon is registered in accordance with the federal statute.
A machine gun is apparently defined much more broadly under federal law than under Georgia law. I note, for example, that Part 179.11, Title 26, Code of Federal Regulations, defines a machine gun as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." See also 26 U.S.C.A. 5845 (b).
To further complicate the matter, there is a substantial difference under Georgia law between a machine gun as defined under the Criminal Code in 26-2906 and a machine gun defined under the Firearms
1 Section 5 of Ga. Laws 1968, pp. 983, 986, incorrectly refers to the National Firearms Act of 1964. The reference should be to the National Firearms Act of 1954.

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and Weapons Act. Section 4(c) of that Act, Ga. Code Ann. 26-9913a (c), defines a machine gun, "as used in this law," to mean "any weapon which shoots, or is designed to shoot, automatically, more than six shots, without manual reloading, by a single function of the trigger." Ga. Laws 1968, pp. 983, 984. Thus, even aside from the definitional distinction between a "trigger" under the Weapons and Firearms Act and a "firing device" under the Georgia Criminal Code, there is a distinction between the "six shot" description in the Act and the "eight shot" description in the Criminal Code.
As I have suggested above, to the extent that the Georgia Firearms and Weapons Act does not conflict with the subsequently enacted Criminal Code, the Firearms and Weapons Act has not been repealed and remains in force.
Comparing, then, Georgia's definitions of a machine gun with what appears to be the federal definition, I am reluctantly compelled to the following conclusions: (1) A machine gun as defined under the federal law which fires six or less shots is not a machine gun under Georgia law and it is not a violation of Ga. Code Ann. 26-2906 and 26-9911a to possess such a weapon. (2) It is unlawful under 26-9911a to possess a machine gun which fires seven or eight shots and no more by a single function of the trigger, under the Georgia Firearms and Weapons Act but not under the Criminal Code, unless one of the exceptions in 26-9914a is met. One of these exceptions is that the machine gun is registered in accordance with the dictates of the National Firearms Act of 1954. (3) It is unlawful under Criminal Code 26-2906 to possess a machine gun which fires more than eight shots by a single function of the "firing device," under the Georgia Criminal Code, unless one of the exemptions enumerated in 26-2907 is met, regardless of whether the machine gun is registered under the federal Act.
I understand that the National Firearms Act of 1954 was amended in 1968. See Pub. L. 90-168, Title II, 201, 82 Stat. 1232. While you have not specifically inquired as to this point, I might add, with reference to the federal registration exception for the seven or eight shot machine gun, that the Georgia Firearms and Weapons Act specifically refers albeit incorrectly to the National Firearms Act of 1954. It is my opinion that that section incorporates the provisions of the 1954 Act and that Act alone. The reference is too specific to admit any expansive interpretation to include later amending legislation to the National Firearms Act of 1954.
Ga. Code Ann. 26-2906 prohibits the sale, manufacture, purchase, possession or carrying of a machine gun, unless otherwise exempted. Ga. Code Ann. 26-9911a prohibits only the possession of a machine gun, except as provided in Ga. Code Ann. 26-9914a. The only pertinent provision concerning transportation of a machine gun is found in Ga. Code Ann. 26-2906, which provides, in part:

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"This section shaH not apply to or affect the manufacture, for, or the transportation, or sale of machine guns to persons exempted under section 26-2907, provided said machine guns are broken down in a nonfunctioning state or are not immediately accessible." Ga. Laws 1968, pp. 1249, 1324.
It appears, then, that under both prohibiting Code sections the only specific requirement or prohibition as to transportation of a machine gun is that a machine gun, as defined by 26-2906, may only be lawfully transported by those four classes of exempted persons defined in 26-2907; when the machine gun is being transported, it must be in a broken-down nonfunctioning state or in such a manner that the machine gun is not immediately accessible. My conclusion is that a federally registered machine gun may be legally transported or transferred in Georgia if the machine gun is broken down in a nonfunctioning state, is not immediately accessible, and is not capable of discharging more than eight bullets by a single function of the firing device.
In summary, it is my opinion that registration of a machine gun in accordance with the National Firearms Act of 1954 does provide an exception to the Georgia law prohibiting possession of such a weapon, where the weapon can fire not more than eight bullets by a single function of the trigger. Federal registration does not provide an exemption under Georgia law for possession of a machine gun capable of firing more than eight bullets by a single function of the firing device. Since a machine gun that fires less than six bullets by a single function of the trigger is not, under Georgia law, a machine gun, federal registration of such a weapon has no significance under Georgia law. A federally registered machine gun may be legally transported or transferred under Georgia law, if the machine gun is broken down in a nonfunctioning state, is not immediately accessible, and is not capable of discharging more than eight bullets by a single function of the firing device.

UNOFFICIAL OPINION U74-92

To: Attorney at Law

September 23, 1974

Re: An individual may serve both as a notary public ex officio justice of the peace and as a member of the Georgia House of Representatives at the same time.

This is in response to your recent letter requesting my opinion as to whether you could serve both as a member of the Georgi,a House of Representatives and as a notary public ex officio justice of the peace at the same time.

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Article I, Sec. I, Par. XXIII of the Constitution of the State of Georgia (Ga. Code Ann. 2-123), provides that:
"The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duty of one, shall, at the same time, exercise the functions of either of the others, except as herein provided." (Emphasis added.)
Article III, Sec. IV, Par. VI of the Constitution of the State of Georgia (Ga. Code Ann. 2-1606), provides one of these exceptions, stating:
"No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this state, or the United States, or either of them except justices of the peace and officers of the militia, nor any defaulter for public money, or for any legal taxes required of him shall have a seat in either house; nor shall any Senator, or Representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected, unless he shall first resign his seat, provided, however, that during the term for which he was elected no Senator or Representative shall be appointed to any civil office which has been created during such term." (Emphasis added.)
It is clear that this latter provision of the Constitution clearly creates one of the exceptions referred to in the former.
This construction has been tacitly approved by the Supreme Court, in the case of McWilliams v. Neal, 130 Ga. 733, 61 S.E. 721 (1908), in which the court said, in its first headnote:
"Persons who hold a state office, except justices of the peace and officers of the militia, are ineligible to membership in the General Assembly of this state."
My unofficial opinion, then, is that those persons who are justices of the peace are also eligible to membership in the General Assembly and that this does not violate the separation of powers doctrine contained in the Constitution for the reasons noted above.

UNOFFICIAL OPINION U74-93

To: City Attorney

September 23, 1974

Re: (1) The General Assembly may grant the City of Villa Rica a new charter. (2) The City of Villa Rica may not terminate public utilities without notice.

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I am in receipt of your letter dated September 6, 1974 in which you requested advice concerning the power of the General Assembly to grant the City of Villa Rica a new charter. Not only does the General Assembly have the power to amend or grant a new charter to the City of Villa Rica; this is the only method, short of home rule, in which a new charter may be obtained. See Pierce v. Powell, 188 Ga. 481 (1930); Howard v. City of Atlanta, 190 Ga. 730, 739 (1940); Jamison v. City of Atlanta, 225 Ga. 51 (1969); Jackson v. Inman, 232 Ga. 566 (1974).
Your second question deals with the right of the City of Villa Rica to terminate utility services for nonpayment of bills without notice to the customer.
In Dodd v. City of Atlanta, 154 Ga. 33, 36 (1922), the Supreme Court stated that,
"The general rule is that those furnishing the public with its water supply either in private or municipal capacity may adopt, as a reasonable regulation for conducting said business, a rule providing that the water so furnished may be cut off for nonpayment therefor; and in pursuance of such regulation the water supply may be discontinued on the failure of the consumer to pay the water rates."
This general rule was elaborated upon in Liner v. City of Rossville, 213 Ga. 756 (1958), where the court stated:
" ... in Georgia it is entirely constitutional to provide for cutting off water for failure to pay at stated times the rates therefor, provided only that a consumer cannot be deprived of an opportunity to, in good faith, present any reason why he ought not to be required to pay and have his claim adjudicated, providing he insures the city or other party furnishing water against loss." Id. at 759.
In issue in that case was a contractual provision that allowed the water company to discontinue water service for users whose accounts remained unpaid for 60 days after the due date. In upholding the provision, the court stated:
" ... the cut-off complained about will not be abrupt; wiU not surprise the consumer, endanger his property or inconvenience him for a period of sixty days after his failure to perform his duty by paying his debts. If during the sixty day period he is unable to reach an amicable adjustment of any complaint, and his position is correct, he can resort to the courts to protect himself." Id. at 759.
The gist of these two decisions seems to require some type of notice

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to the consumer regarding the procedures for the cut-off of service in the event of nonpayment, and further that the procedures be reasonable. Therefore, it is my unofficial opinion that the City of Villa Rica does not have the right to terminate public utility services without any notice whatsoever; however, the notice given to the consumer need only be reasonable.

UNOFFICIAL OPINION U74-94

To: City Attorney

September 25, 1974

Re: Generally, a municipality may not regulate or control the use of roads which are a part of the State Highway System, even when those roads lie withi;n the municipality's corporate limits.

This is in response to your recent inquiry regarding the following: (1) whether a municipality may regulate all streets within its corporate limits; and (2) if a municipality may not regulate those streets which are a part of the State Highway System, can the Department of Transportation approve a uniform municipal traffic code regulating both city streets and streets which are a part of the State Highway System?
Georgia Laws 1973, pp. 947, 965 (Ga. Code Ann. 95A-201), provides that for purposes of jurisdiction and administration, the public roads of Georgia are divided into three categories: (a) the State Highway System; (b) county road systems; (c) municipal street systems.
Georgia Laws 1973, pp. 947, 1002 (Ga. Code Ann. 95A-503 (g)), authorizes a municipality to regulate and control the use of public roads on its municipal street system and on portions of the county road systems extending within the corporate limits of the municipality. Conspicuously absent from this authorization, however, is the power to regulate streets which are part of the State Highway System. The rule of statutory construction that the inclusion of one item is the exclusion of another would indicate that this authorization was not intended to extend to streets which are part of the State Highway System.
In 1974, the General Assembly enacted "The Uniform Rules of the Road Act" (hereafter the Uniform Act) in an effort to revise, consolidate, and modernize various traffic laws. Ga. Laws 1974, pp. 633 to 699 (Ga. Code Ann. Title 68A). Article XV of the Uniform Act provides that the Uniform Act shall be applied throughout the state, and that no local authority shall enact or enforce any ordinance on a matter covered by the Uniform Act, with certain enumerated exceptions. Ga. Laws 1974, pp. 633, 687. Those exceptions allow local

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authorities to regulate streets "under their jurisdiction" in the subject areas excepted and enumerated, and allow municipalities to adopt by reference the provisions of the Uniform Act. Ga. Laws 1974, pp. 687-689.
The Uniform Act allows a municipality to adopt by reference the provisions of the Act, but not, by ordinance, vary the general provisions of the Act, since any attempt by the municipality to operate upon the identical subject matter as that addressed by the general statute would be treated as having been preempted by the general statute. Shirley v. City of College Park, 102 Ga. App. 10 (1960). The question thus becomes, as to the subject matters exempted from coverage by the general statute, which streets and highways could be considered "under the jurisdiction" of the municipality so as to allow the municipality to enact ordinances regulating traffic on those streets.
You will note that among the exceptions to the Uniform Act there are references to various other provisions of the Act. For example, exception four would allow a municipality to designate particular highways for use by traffic moving in one direction "as authorized in section 68A-308."
Georgia Laws 1974, pp. 633, 654 (Ga. Code Ann. 68A-308), contains what is referred to as 68A-308. That section provides:
"The Department of Transportation of Georgia and local authorities with respect to highways under their respective jurisdictions may designate any highway ...." (Emphasis added.)
In examining the other exceptions to the Uniform Act, you will find that where there are references to other provisions of the Act, the phrase "under their respective jurisdictions" is included in those provisions. This restriction would indicate that a municipality does not have the authority to regulate streets which are part of the State Highway System, since such streets are not deemed to be under the jurisdiction of the municipality.
The provisions of an Act similar to those contained in the Uniform Act were scrutinized by the Supreme Court of Georgia in Mayor & Council of Woodbury v. State Highway Dept., 225 Ga. 723, 727 (1969). Of particular relevance was the court's observation:
"It is obvious that the General Assembly intended a demarcation insofar as state highways on the one hand, and municipal or county roads and streets on the other hand, are concerned. It is apparent that in enacting the legislation the General Assembly intended that the State Highway Department have jurisdiction over highways which are a part of the state-aid system, whether or not such highways are inside municipalities or counties ...."
The rationale of the court in Woodbury, supra, would be equally

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viable to the newly enacted Uniform Act. It is thus my belief that a municipality may not, by ordinance, seek to regulate streets which are a part of the State Highway System, unless:
(a) the municipality is attempting to place parking meters on or adjacent to a road which is a part of the State Highway System, and has been first authorized by the department to place such parking meters. (Ga. Code Ann. 95A-904 (c); Ga. Laws 1973, pp. 947, 1067). (b) the municipality is attempting to erect or maintain a trafficcontrol device on a road which is a part of the State Highway System, and written approval has first been obtained from the department. Ga. Laws 1974, pp. 633, 687 at 689 (Ga. Code Ann. 68A-1502 (b) ).
In answer to your second question, I am unaware of any authority vested in the Department of Transportation which would allow the department to approve a uniform municipal traffic code regulating both city streets and streets which are a part of the State Highway System. As the court stated in Woodbury, supra, at page 727:
"It is equally apparent that the General Assembly intended that municipalities and counties have jurisdiction over their purely local streets, roads, and highways."
This is not to say, however, that the Department of Transportation could not adopt the same regulations for streets which are a part of the State Highway System as those regulations which the municipality had adopted for streets within its jurisdiction, provided such adoption would not be violative of either the Uniform Act or the Georgia Code of Public Transportation. Ga. Laws 1973, pp. 947 to 1191.

UNOFFICIAL OPINION U74-95

To: Judge of the Superior Courts Emeritus

September 25, 1974

Re: Georgia Laws 1973, pp. 911, 912 (Ga. Code Ann. 24-2605a.2), provides for a single payment of $50 per day as additional compensation for judges emeritus while serving as judges of the superior court, notwithstanding the fact that any particular judge may sit as judge in more than one county on any particular day.

This is in response to your recent letter requesting my opinion as to whether the additional compensation provided for judges emeritus by Ga. Laws 1973, pp. 911, 912, is affected by the number of counties in which the judge might sit during the course of any one day.

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Georgia Laws 1973, pp. 911, 912 (Ga. Code Ann. 24-2605a.2), provides as follows:
"Judges emeritus, while serving as judges of the superior courts as herein provided, shall receive compensation in the amount of $50 per day. In addition to such compensation, such judges emeritus shall receive their actual expenses and shall receive mileage at the same rate as other state employees for such services. Said compensation, expenses and mileage shall be paid from the state funds appropriated or otherwise available for the operation of the superior courts, upon a certificate by the judge emeritus as to the number of days served and the expenses and mileage."
This section makes it clear that the funds which are used to pay the additional compensation to judges emeritus are obtained from state funds appropriated for that purpose by the General Assembly. This section tacitly recognizes the fact that judges may travel from one county to the other in that it provides for the payment of actual expenses and mileage fees incurred in rendering these services. Since the section does recognize that the judges emeritus may travel from one county to another, making provision for payment of expenses incurred in doing so, the failure to make the additional compensation for the services performed contingent on the number of counties serviced clearly indicates that the judges emeritus would be entitled to the additional compensation based on the number of days involved and not the number of counties or courts involved.
Additionally, the rule of statutory construction contained in Ga. Code 102-102 (1) clearly provides that words shall be given their ordinary signification in all but a few instances, and since the section cited above clearly states that the additional compensation shall be given to judges emeritus in the amount of $50 per day, this daily limitation must control.
Therefore, it is my opinion that judges emeritus who are sitting as judges of the superior courts as provided in Ga. Code Ann. Ch. 24-26A may only receive additional compensation in the amount of $50 per day, notwithstanding the number of counties which they serve during that particular day.

UNOFFICIAL OPINION U74-96

To: County Attorney

September 26, 1974

Re: The constitutional amendment set forth at Ga. Code Ann. 2-7901a was intended to supplement and enumerate services which counties and municipalities may provide, and to permit them to combine to provide the services, but the ordinances which counties may

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enact to provide these services are subject to the general terms and restrictions of the County Home Rule Amendment, including the prohibition against the enactment of criminal sanctions by counties.

You have posed the question as to whether Carroll County can pass an ordinance regulating ambulance and emergency rescue services, and as part of that scheme of regulation provide criminal sanctions for noncompliance. You have stated in your letter that you would rely upon the authority of a recent amendment to the Constitution, Art. XI, Sec. III, Par. I (Ga. Code Ann. 2-7901a), as the authority for such criminal sanctions. You have also indicated, however, that you have some reservations as to the county's authority to enact such criminal sanctions in view of the prohibition contained in Art. XV, Sec. II-A, Par. I (Ga. Code Ann. 2-8402 (c) (3) ) (hereinafter cited as the County Home Rule Amendment), against the enactment of criminal sanctions by counties.
Georgia Code Ann. 2-7901a sets forth the recent constitutional amendment referred to hereinabove. That amendment provides:
"In addition and supplementary of any powers now conferred upon and possessed by any county, municipality, or any combination thereof, any county, any municipality and any combination of any such political subdivisions may exercise the following powers and provide the following services: [hereafter certain services are enumerated, including ambulance and emergency rescue services]."
This constitutional provision further provides that
"[e]ach county and municipality, and any combination thereof, shall have the authority to enact ordinances and to contract with each other in pursuance of this Paragraph and for the purpose of carrying out and effectuating the powers herein conferred upon such political subdivisions."
The question presented, therefore, is whether this constitutional amendment has repealed the preexisting provision of the County Home Rule Amendment prohibiting any action, pursuant to county home rule power, defining any criminal offense or providing for criminal punishment. This prohibition has been applied by the appellate courts of this state to invalidate ordinances of certain counties. E.g., Richmond County v. Richmond County Business Ass'n, 225 Ga. 568 (1969).
In order to answer this question, it is therefore necessary to determine whether or not the 1972 constitutional amendment cited hereinabove (Ga. Code Ann. 2-7901a) is sufficiently broad and explicit to repeal the prohibition against counties enacting criminal ordinances contained in the Georgia County Home Rule Amendment. In resolv-

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ing this question it is necessary to resort to rules of statutory and constitutional construction, such rules being generally applicable to both statutes of the General Assembly, and to the Constitution of this state. DeJarnette v. Hospital Authority of Albany, 195 Ga. 189 (1943). It is generally held by the appellate courts of this state that the provisions of the Constitution should be harmonized whenever possible so as to give full force and effect to all portions of such provisions and to prevent and avoid conflicting constructions. Burpee v. Logan, 216 Ga. 434 (1961); McLennan v. Aldredge, 223 Ga. 879 (1968). It is also generally held that repeals by implication are not favored and will obtain only where provisions of law are clearly repugnant and irreconcilable. Thomas v. Board of Chattooga County, 196 Ga. 10, 14 (1943). It has also been held by the Supreme Court of this state that it is dangerous and imprudent to imply an intention to repeal a previous law from a doubtful expression which may admit of different interpretations. Trustees of First Methodist Episcopal Church South v. City of Atlanta, 76 Ga. 181 (1886).

In view of the authorities cited hereinabove, it is my unofficial opinion that the constitutional provision set forth in Ga. Code Ann. 2-7901a, allowing counties, municipalities, or combinations thereof to provide certain services to their citizens, and allowing them to enact ordinances and to contract in order to provide such services, does not sufficiently express an intention to repeal the preexisting constitutional prohibition against the enactment of criminal ordinances by counties, set forth in Ga. Code Ann. 2-8402 (c) (3), so as to accomplish an implied repeal of that prohibition with respect to the services enumerated in Ga. Code Ann. 2-7901a. Rather, the constitutional amendment in question seems intended merely as a supplemental enumeration of the services which counties and municipalities may provide, and, further, to allow them to combine to provide these services. Such an enumeration is manifestly necessary in view of the wellestablished principle that counties may expend no funds except for such purposes as are expressly authorized by, or necessarily implied from, statutory or constitutional provisions. Nelson v. Wainwright, 224 Ga. 693 (1968).

It is therefore my unofficial opinion that the constitutional amendment set forth at Ga. Code Ann. 2-7901a was intended to supplement and enumerate services which counties and municipalities may provide, and to permit them to combine to provide the services, but the ordinances which counties may enact to provide these services are subject to the general terms and restrictions of the County Home Rule Amendment, including the prohibition against the enactment of criminal sanctions by counties.

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UNOFFICIAL OPINION U74-97

To: Judge, Superior Court

September 27, 1974

Re: There is no statutory authority for sentencing of convicted felons to drug or alcohol treatment facilities as an alternative to a prison term or a probated sentence.

This is in response to your recent request for an unofficial opinion on the question of sentencing convicted felons to drug or alcohol treatment facilities as an alternative to a prison term or to a probated sentence.
I am unaware of any authority for a court to sentence one convicted of a felony to a state institution for the treatment of drug or alcohol problems. Ga. Laws 1974, p. 352, which directs the trial court to fix a determinate sentence in all misdemeanor or felony cases, provides that the sentencing court "is hereby granted power and authority to suspend or probate said sentence, under such rules and regulations as he deems proper." Ga. Laws 1974, pp. 352, 354 (Ga. Code Ann. 27-2502). In the absence of specific statutory authorization for a sentence of the type you describe, it is my unofficial opinion that a superior court judge cannot sentence a convicted felon to a term to be served in a drug or alcohol treatment facility. Authority for imposition of such a sentence in misdemeanor cases is contained in Ga. Code Ann. 88-405.4 (Ga. Laws 1971, pp. 273, 295).
Where a court had sentenced a prisoner to "be confined at work in the Georgia Training School for Girls, or elsewhere as the law directs for a period of 12 months," this office issued an opinion that the portion of the sentence designating the place of confinement was of no effect. Op. Att'y Gen. 67-37. That opinion stated that the court could not sentence a prisoner to an institution which did not exist within the Georgia penal system and which did not have as its purpose the incarceration of those convicted of the criminal laws of this state. Courts have generally viewed language in a sentence attempting to designate a place of confinement as surplusage. See Mathis v. Scott, 199 Ga. 743 (3) (1945).
As a matter of information, I would call your attention to Ga. Laws 1956, pp. 161, 173, as amended by Ga. Laws 1960, pp. 234, 235 (Ga. Code Ann. 77-310 (d)). This statute provides that:
" ... [U]pon being presented with a proper certification from the county physician of a county where a person is sentenced to prison, that such person so sentenced is a dope addict or alcoholic to the extent that his health will be impaired or his life endangered without immediate treatment, the Board of Corrections is hereby

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directed to transfer such prisoner to the criminal ward or facility of the State Hospital at Milledgeville. Said prisoner shall remain there until the hospital authorities determine he is able to serve his sentence elsewhere."
In summary, it is my unofficial opinion that there is no provision in Georgia law authorizing a superior court judge to sentence a convicted felon to a specified term of treatment at a drug or alcohol rehabilitation facility.

UNOFFICIAL OPINION U74-98

To: Representative, District 5

September 30, 1974

Re: Governor's veto of state fund appropriations in Section 23 (B) (1) of General Appropriations Act for Fiscal Year 1975, Ga. Laws 1974, p. 1508, was proper under Ga. Const., Art. V, Sec. I, Par. XV, and reduced total appropriations to the Department of Labor.

This is in reply to your request for my unofficial opinion as to whether the Governor's veto of an item contained in Section 23 of the General Appropriations Act for Fiscal Year 1975, Ga. Laws 1974, p. 1508, was proper under Art. V, Sec. I, Par. XV of the Constitution (Ga. Code Ann. 2-3015), and, if so, the effect of the veto on the appropriations otherwise made in Section 23.
In pertinent part, Section 23 of the General Appropriations Act provides as follows:

"Section 23. Department of Labor. A. Budget Unit: Inspection Division .............. $ 429,354

* * *
B. Budget Unit: Basic Employment, Work Incentive, Manpower Services, and Unemployment Compensation Reserve Fund ................ $ 1,781,298
1. Basic Employment Security Budget:
Personal Services ............................. $12,801,467 Regular Operating Expenses ................... $ 1,460,622 Travel. ..................................... $ 218,400

* * *
Publications and Printing ..................... $ Equipment Purchases ........................ $

110,250 119,028

* * *

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488

Total Funds Budgeted ........................ $14,709,767 State Funds Budgeted ........................ $ 75,000" Ga. Laws 1974, pp. 1508, 1575-76.
Across the line entitled "State Funds Budgeted" in Section 23 (B) (1), the Governor wrote "Veto Jimmy Carter."
The essential difficulty we have had in responding to your request is whether the item vetoed constituted an "appropriation." After considerable study, it is my unofficial opinion that it does.
In Op. Att'y Gen. U73-94, we construed that term to mean an authorization in an appropriations Act to a state agency to expend a specified sum for a specified purpose. In other opinions, we have concluded that, within certain limitations, the General Assembly could draw the specification of purpose as broadly or as narrowly as it desired. Ops. Att'y Gen. 73-132, 73-147. I cannot conclude that the item in question does not fall within these criteria.
The language involved designates, of course, a specific sum of money which the Department of Labor is authorized to expend.t While less clearly doing so, the language also designates the purpose for which those funds may be expended. That purpose is stated as expenses of the Department of Labor incurred in the provision by the Department of Labor of "Basic Employment Security...." All elements of an appropriation are thus present in the language vetoed by the Governor.
It is my unofficial opinion, therefore, that the Governor properly and effectively exercised the power conferred by Art. V, Sec. I, Par. XV of the Constitution with respect to the appropriation designated "State Funds Budgeted" in Section 23 (B) (1) of the General Appropriations Act for Fiscal Year 1975. Ga. Laws 1974, pp. 1508, 1576.
Based on my prior opinions, I further conclude that the veto eliminated the authorization for the Department of Labor to expend the specified amounts for those purposes designated as "Basic Employment Security" and necessarily reduced the total appropriation to the Department of Labor by that amount. Ops. Att'y Gen. U73-94, U74-36.

UNOFFICIAL OPINION U74-99

To: County Attorney

October 7, 1974

Re: Ordinaries must require that the race of the applicant be set forth in "Application for Marriage License."
1 The caption to Section 23(B) must be read consistently with Art. VII, Sec. IX, of the Constitution (Ga. Code Ann. 2-6201 to 2-6205). All appropriations are to the Department of Labor since there is no entity existing under general law bearing a name designated in the caption to Section 23(B). (Official Opinion dated August 9, 1974, to Governor Jimmy Carter-Op. Att'y Gen. 74-107.)

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U74-99

This is in response to your letter of August 29, 1974, which requested
an opinion on the following question:
"Is it mandatory upon the ordinary to require applicant's race
in the application for a marriage license?"
My answer entails extensive discussion of both the source and va-
lidity of this requirement, that the race of the applicant be set forth
in the "Application for Marriage License."
The form "Application for Marriage License" which you attached
to your letter has been prescribed and distributed by the Department
of Public Health (now the Department of Human Resources), Vital
Records Unit, pursuant to the authority granted by Chapter 88-17 of
the Code of Georgia (Ga. Laws 1964, pp. 499, 580). The application
requires information concerning the name, address, birthplace, age,
marital status, occupation, and race of each applicant, as well as the
parents' names, birthplaces, and residences and the date and place
of the contemplated marriage. Obviously, Ga. Code Ann. 53-202,1
which prescribes the rudimentary contents of an application for a
marriage license, does not affirmatively require the disclosure of all
the information prescribed by the form distributed by the Vital Records
Unit.
However, totally apart from the provisions of Chapters 53-2 and
53-3 2 of the Code of Georgia which you mentioned in your letter and
1 "53-202. Application for license; information as to impediments; three-day waiting period."A marriage license shall be issued on written application therefor made by the person seeking such license, verified by oath of the applicant, which application shall state that there is no legal impediment to the marriage, and shall give the full name of the proposed husband, with date of birth, present address, and name of his father and mother if known, and if unknown shall so state, with present name of the proposed wife with date of her birth and present address with the name of her father and mother if known, and if unknown shall so state, and shall be supported by affidavits of two reputable citizens of the United States as to the truth of recitals in said application." Ga. Laws 1927, pp. 224, 226, as amended by Ga. Laws 1958, p. 214; 1965,pp. 335,339; 1972,pp. 193,196. 2 Ga. Laws 1927, p. 272 (Ga. Code Ann. 53-301 et seq., especially 53-307). While this Chapter in essence sets forth the antiquated miscegenation laws of Georgia, one of its provisions requires the State Board of Health to prepare an application for a marriage license including information as to the applicants' and parents' races and whether each has been "registered" under the provisions of the Chapter. The application under discussion does not follow the provisions of this Chapter as there is no provision for the parents' races or "registration." As indicated by the Editorial Note in the Annotated Code there has been no appropriation or effort to put the Chapter into operation-it appears to be a dead letter. This conclusion is further buttressed by the possibility that section 53-307 was repealed by implication upon enactment of the complete and comprehensive Vital Records law. See, e.g., Mosley v. Lanier, 213 Ga. 373 (1957). Also, in Loving v. Virginia, 388 U.S. 1, 18 L.Ed.2d 1010, 87 S.Ct. 1817 (1967), the Supreme Court decreed Virginia's miscegenation statutes violative of the Fourteenth Amendment to the Constitution of the United States. Enforcement of similar miscegenation provisions (Ga. Code (1933) 53-106, 53-9902, 53-9903, 53-9905) has been enjoined by the United States District Court for the Northern District of Georgia. United States v. Roberts, Civil Action No. 15145 (N.D. Ga., Feb. 9, 1972).

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490

as indicated above, the Vital Records law sets forth the comprehensive legislative framework in which the Vital Records Unit is to implement and administer a uniform plan for recordation, compilation, and verification of vital statistical data. Ga. Laws 1964, pp. 499, 580, 582, 594, 595 (Ga. Code Ann. 88-1701, 88-1703, 88-1723, 88-1724). Code 88-1719 establishes a system of "compulsory registration of marriages" and requires the ordinary of each county, inter alia, to forward to Vital Records certain information relating to the marriage on a form application prescribed and furnished by Vital Records. Ga. Laws 1964, pp. 499, 592. Several other Code provisions require the department to prescribe the form 3 of all certificates, reports, and other returns authorized by the Chapter. Ga. Laws 1964, pp. 499, 580, 582, 584, 592 (Ga. Code Ann. 88-1703, 88-1708, 88-1719). The Department of Public Health has prescribed such a form application which includes, in addition to the minimum requirements set forth in Ga. Code Ann. 53-202, information relating to other vital statistics including the races of the applicants. If the ordinary refuses to perform his duties in regard to the application, he is subject to prosecution for a misdemeanor. Ga. Laws 1964, pp. 499, 597 (Ga. Code Ann. 88-1727 (g) ).
Even though Georgia law authorizes the department to require information regarding vital statistics, including designation of race, a complete answer to your question should include discusE>ion of the constitutional inhibitions relating to statement of race. In a case closely analogous to the situation under discussion, the Supreme Court of the United States affirmed the unanimous decision of a three-judge district court upholding the Virginia requirement that every divorce decree designate the races of the spouses. Hamm v. Virginia State Board of Elections, 230 F. Supp. 156 (E.D. Va. 1964), aff'd sub nom, Tancil v. Woolls, 376 U.S. 19, 13 L.Ed.2d 91, 85 S.Ct. 157 (1964). While the race designation requirements regarding various voting and tax records were held to violate the equal protection clause of the Fourteenth Amendment, the three-judge district court succinctly stated the rationale behind the upholding of the divorce decree requirement as:
"Of course, the designation of race, just as sex or religious denomination, may in certain records serve a useful purpose, and the procurement and compilation of such information by state authorities cannot be outlawed per se. For example, the securing

a The first comprehensive vital records legislation covered birth and death certificates and specifically required, inter alia, designation of race. Ga. Laws 1914, pp. 157, 161, 167. The Vital Statistics Act of 1945 completely revised prior law and, like the 1964 Act, merely outlined the structure and important procedures to be followed in birth, death, and marriage registration. The form of the marriage application was left to the Board of Health. Ga. Laws 1945, pp. 236, 247.

491

U74-100

and chronicling of racial data for identification or statistical use violates no constitutional privilege. If the purpose is legitimate, the reason justifiable, then no infringement results. The infirmity of the provisions just mentioned lies in their mandate of separation of names by race.
Vital statistics, obviously, are aided by denotation in the divorce decrees of the race of the parties. This provision of section 20-101 of the Virginia Code is not objectionable in law. Of course, the advertence must be made in every case, not just in suits involving Negroes." Id., 158.
It is clear that designation of race on the "Application for Marriage License" pursuant to Chapter 88-17 is within the rationale of H amm. None of the prohibited vices, penalty or stigma based merely on race, or an inducement for or opportunity to discriminate on race, are present. See, e.g., Loving v. Virginia, supra; McLaughlin v. Florida, 379 U.S. 184 (1964). The express legislative intendment for Chapter 88-17 is the acquisition and preservation of complete and uniform vital statistical data for compilation and verification purposes. Ga. Laws 1964, pp. 580, 583, 584, 594, 595 (Ga. Code Ann. 88-1701, 88-1703, 88-1708, 88-1723, 88-1724). The data acquired and preserved may be used for statistical purposes by federal, state, and local governments, as well as public and private corporations, including for instance the National Vital Statistics Division or even the Bureau of the Census pursuant to 13 U.S.C.A. 56.
On the basis of the foregoing, it is my unofficial opinion that pursuant to Chapter 88-17 of the Code of Georgia the ordinary must require designation of race on the "Application for Marriage License" and that such requirement is completely harmonious with the Constitution of the United States.

UNOFFICIAL OPINION U74-100

To: Director, Employees Retirement System

October 28, 1974

Re: An appellate court judge who has served more than nine years but less than 10 years as an appellate court judge may, upon incapacity, be paid retirement benefits at the rate of nine-tenths of the full benefits which would have been allowed had he completed 10 years of service.

This responds to your request for my opinion construing the incapacity benefits portion of the 1971 Act providing optional retirement benefits to appellate court judges. Ga. Laws 1971, pp. 99-103, as amended (Ga. Code Ann. 40-2535).

U74-100

492

You state in your request letter that your concern centers around an appellate court judge who has served for nine years and two months on an appellate court. With this amount of service, the judge is obviously serving in his tenth year on the appellate court. Your question, succinctly stated, is whether, upon becoming disabled, this judge should be paid the full retirement benefits provided by the 1971 Act or, on the other hand, whether he should be paid nine-tenths of these benefits since he has served more than nine years but less than 10 years.
The 1971 Act provides in paragraph five as follows:
" ... An appellate court judge who is incapacitated prior to the completion of 10 years of service as an appellate court judge shall receive during life for each full year of service one-tenth of the benefit he would have rectived had he completed 10 years of service as an appellate court judge.... In the event that an appellate court judge shall become incapacitated from further performance of the duties of his office, and shall resign from office based upon such incapacity, he shall be entitled to receive from the date of incapacity and during life and continuing incapacity benefits payable monthly based upon his completed years of service as an appellate court judge...." (Emphasis added.) Ga. Laws 1971, pp. 99, 101 (Ga. Code Ann. 40-2535 (5) ).
A cardinal rule of statutory construction holds that the purpose of such construction is the ascertainment of the intent of the General Assembly in enacting the statute. Gazan v. Heery, 183 Ga. 30 (1936). Another rule of statutory construction frequently repeated in reported cases is that where the language of a statute is plain, it is not open to construction. Standard Oil Co. of Ky. v. State Revenue Commission, 179 Ga. 371 (1934); Central of Ga. Railway Co. v. Tucker, 99 Ga. App. 52 (1959). I have reviewed the above-quoted language of the 1971 Act in view of these accepted principles of statutory construction.
It is important to note in the quoted portion of the 1971 Act that the General Assembly said an incapacitated appellate court judge shall receive disability benefits under the Act during life " ... for each full year of service one-tenth of the benefit he would have received had he completed 10 years of service as an appellate court judge." Later in that same fifth paragraph of the Act, the General Assembly stated that the judge shall be entitled to receive " ... incapacity benefits payable monthly based upon his completed years of service as an appellate court judge." Incapacity benefits under the Act are clearly tied to "completed years of service as an appellate court judge" with the incapacitated judge eligible to receive one-tenth of the benefit he would have received had he completed 10 years of service for each "full year of service."

493

U74-101

I am aware that prior opinions of this office have construed therequired service time for retirement under certain programs so as to allow a member of a retirement program to be eligible for retirement if he is serving in the last required year. See, e.g., Op. Att'y Gen. 68-349. I am also aware that certain retirement statutes allow for the projection of retirement benefits in disability cases as if the member of the retirement program had reached a later age which he in fact has not reached. See, e.g., Ga. Laws 1949, p. 138 et seq., as amended (Ga. Code Ann. 40-2505 (4) ). However, in each of these situations, the specific statutory language authorizes and directs such a result. That is not the case here. The 1971 Act providing optional retirement benefits for appellate court judges is explicit that, upon incapacity, one-tenth of the full benefits may be paid for each full year of service completed by an appellate court judge.
Therefore, based on the foregoing analysis and authorities, it is my opinion that an appellate court judge who has served more than nine years but less than 10 years as an appellate court judge may, upon incapacity, be paid retirement benefits at the rate of nine-tenths of the full benefits which would have been allowed had he completed 10 years of service.

UNOFFICIAL OPINION U74-101

To: Chief Judge, Court of Appeals of Georgia

October 28, 1974

Re: A Judge on the Georgia Court of Appeals may retire under the 1971 Act providing optional retirement benefits for appellate court judges so long as he meets the written election and contributions conditions of that Act and has rendered 10 years of public employment service on the appellate courts; this service is not required to be rendered and paid for in whole as a member of the Employees Retirement System.

This responds to your recent request for my opmwn construing the 1971 Act providing optional retirement benefits to appellate court judges. To clearly answer your question, its factual setting should be set out in full. The following two paragraphs contain a synopsis of the pertinent facts as I understand them.
A Judge on the Court of Appeals of Georgia has applied for a service retirement under the Employees Retirement System of Georgia (hereinafter referred to as "ERS") effective at the end of October. In 1971, this particular judge elected coverage under the Act providing optional retirement benefits for appellate court judges. Ga. Laws 1971, pp. 99, 103 (Ga. Code Ann. 40-2535), as amended.

U74-101

494

The judge was appointed to the Court of Appeals of Georgia by Executive Order of the Governor on March 16, 1961, and has served continuously until the present. Prior to the time he elected the optional benefits provided by the 1971 Act, he was not a member of the ERS. Several years earlier when Ga. Laws 1964, p. 115 et seq. aboljshed the position of Judge Emeritus of the Court of Appeals for all persons becoming judges after April 1, 1964, the judge elected not to become a member of the ERS. Rather, as that 1964 Act allowed, he retained his eligibility for appointment as a judge emeritus. As a consequence, he has only been a member of the ERS since his election under the 1971 Act.
The focal point of your question is whether retirement benefits may be extended under the 1971 Act to appellate court judges who render 10 years of service as an appellate judge, or whether the 10 years of service can only be creditable toward retirement if the judge is a contributing member of the ERS during the entire 10-year period.
The 1971 Act reads in pertinent part as follows:
"(5) An appellate court judge may retire subject to and upon compliance with all provisions of this Act and receive the following benefits: After 10 years of service as an appellate court judge, he shall be entitled to receive during life a retirement benefit payable monthly equivalent to 75 percent of the salary of an appellate court judge then serving in the office from which he retired...." Ga. Laws 1971, pp. 99, 100 (Ga. Code Ann. 40-2535 (5) ).
The goal of statutory construction is always the ascertainment of the General Assembly's intent in enacting any specific statute. Ga. Code 102-102 (9); Thacker v. Morris, 196 Ga. 167 (1943). The abovequoted language of the 1971 Act entitles an appellate court judge to certain retirement benefits after 10 years of service " ... subject to and upon compliance with all provisions of this Act...." In my judgment, by this language the General Assembly was referring to paragraphs three and four of the 1971 Act which set out the conditions of eligibility for the provided benefits. The first condition of eligibility, set out in paragraph three (Ga. Code Ann. 40-2535 (3) ), states that an appellate court judge shall tender to the ERS' board of trustees before January 1, 1972, or within 60 days after the commencement of his term of office (whichever is later), a written notice electing to accept the benefits provided by the Act in lieu of any retirement allowances otherwise available under the ERS and in lieu of the appointment to and the holding of any emeritus office.
The second condition of eligibility is stated in the fourth paragraph of the Act. Ga. Code Ann. 40-2535 (4). From and after the judge's written notice, there must be deducted from his earnable compensation and remitted to the board of trustees a contribution equivalent

495

U74-101

to 7.5 percent of his earnable compensation for each pay period or part thereof. The conditions of eligibility for retirement under the 1971 Act are, then, the written notice of election and the required contribution from the time of the notice of election, as well as the required 10 years of service. As I understand the facts, the judge about whom you inquire has fulfilled all of these conditions.
A difficult question, and the pivotal one in your inquiry, now becomes whether the word "service" as used in the above-quoted portion of the 1971 Act has an implied or inherent meaning in the Act so as to impose yet another condition of eligibility. The word "service" is defined by the general ERS statutes as meaning " ... service rendered as an employee and paid for by the 'employer' as defined in ..." another subsection of the ERS Act. Ga. Laws 1949, p. 138 et seq.; Ga. Code Ann. 40-2501 (6), as amended. The argument may be advanced that the word "service" as used in the 1971 Act means only such service as is paid for by the employer. I have read this statute very carefully, given it considerable thought and am compelled to the view that such is not the case.
In the first place, the word "service" is not used in the 1971 Act standing alone. It is used in the phrase "service as an appellate court judge." "Appellate court judge" is a defined term and has a clear meaning under the Act. It includes " ... any Judge, Presiding Judge or Chief Judge of the Court of Appeals...." Ga. Code Ann. 40-2535 (2). Furthermore, paragraph eight of the Act (Ga. Code Ann. 40-2535 (8) ), addressed later, uses the term "service credit" and seems to distinguish "service credit" under the 1971 Act from "creditable service" under the general ERS statutes. In my judgment, the phrase "after 10 years of service as an appellate court judge" indicates that the applicant for retirement benefits must have been employed and rendered service on the appellate courts for a period of 10 years. Also, of course, that person must have complied with the two conditions of eligibility in the Act previously mentioned. I do not believe the General Assembly intended to include any inherent or implied condition of eligibility by using the word "service" in the retirement eligibility section of the Act. I think, had such been meant, the language would be clear and specific to that effect. See, e.g., Barnes v. Carter, 120 Ga. 895 (1904).
To buttress my opinion, I refer you to paragraph eight of the Act, which reads in pertinent part as follows:

"An appellate court judge who has accrued creditable service under this retirement system (ERS) may convert such service to service under this Act on the basis of two years of creditable service being equivalent to one year of service credit under this Act; provided, that creditable service based upon the holding of office

U74-101

496

as an appellate court judge shall be convertible to service credit under this Act on an equal time basis...." (Parenthetical matter supplied.) Ga. Laws 1971, pp. 99, 100 (Ga. Code Ann. 40-2535 (8) ).

The term "creditable service" is differentiated in the above language from the term "service credit" under the 1971 Act. I believe the General Assembly intended this language to mean that if an appellate court judge has not rendered 10 years of employed public service on an appellate court so as to entitle him to the provided benefits, he may add on to his service as an appellate court judge any convertible service he may have pursuant to the above-quoted language. Any service so convertible would have to be exchanged in strict adherence to the language of paragraph eight of the Act and would be converted on the basis of two years of "creditable service" being equivalent to one year of "service credit" under the 1971 Act, except that "creditable service" as an appellate court judge under the ERS may be converted to "service credit" under the 1971 Act on a one year for one year equivalent basis. Paragraph eight of the Act, then, does not mean that the General Assembly intended all "service" under the Act to be service paid for by the employer as defined in the general ERS statutes, but it simply means that if a judge does not have 10 years of public employment service on the appellate bench so as to entitle him to retire under paragraph five of the Act, he may then look to paragraph eight of the Act and convert such service as is necessary to bring his total to 10 years.
At this juncture, I feel I must address a collateral question which may be raised by the result of this opinion. When Ga. Laws 1964, p. 115 et seq. abolished the position of Judge Emeritus of the Court of Appeals for all persons becoming judges after April 1, 1964, and required judges becoming such after that date to belong to the ERS, many appellate judges became members of the ERS and began making the statutorily required contribution of salary. The judge about whom you inquire did not. The question may be raised as to whether any contributions made from 1964 until the time an appellate court judge elected the benefits of the 1971 Act should be refunded. In my opinion, these contributions should not and cannot be refunded.
Pursuant to Ga. Laws 1964, p. 115 et seq., appellate court judges serving on the bench as of April 1, 1964 were given the opportunity to elect ERS coverage in lieu of retaining eligibility for appointment to the office of Judge Emeritus of the Court of Appeals. Judges assuming office after April1, 1964 were required to become members of ERS. Those appellate judges who elected ERS coverage under the 1964 Act, and those who took office after April 1, 1964, therefore becoming members of ERS, began making contributions and were covered under

497

U74-102

the general ERS retirement program. They were receiving retirement coverage as the quid pro quo for their contributions. Had any of those judges become disabled or eligible for a service retirement between the time they joined the general ERS program and the time of their election of the 1971 Act benefits, they would have benefitted from participation in the ERS. In short, they were receiving consideration for their contributions.
Moreover, when a judge elects the 1971 Act coverage, he does so by written notice stating that he has elected to accept the benefits provided by the Act in lieu of any retirement allowances otherwise available under the ERS. Ga. Code Ann. 40-2535 (3). Accordingly, any Judge of the Court of Appeals of Georgia who elected or elects the optional benefits provided by the 1971 Act automatically waives in writing any entitlement to other ERS retirement benefits, at the same time divesting himself of any right to any contributions previously made to the ERS. In other words, the appellate court judge electing the 1971 Act benefits gives up any right he may have to retirement under the general ERS retirement program, and elects to retire solely and only under the provisions and benefits of the 1971 Act.
Accordingly, based on the foregoing analysis and authorities, it is my opinion that a Judge on the Georgia Court of Appeals may retire under the 1971 Act providing optional retirement benefits for appellate court judges so long as he meets the written election and contribution conditions of that Act and has rendered 10 years of public employment service on the appellate courts. This service is not required to be rendered and paid for in whole as a member of the ERS. Accordingly, the judge generating your question is eligible to retire under the 1971 Act.

UNOFFICIAL OPINION U74-102

To: District Attorney

October 31, 1974

Re: Ga. Code Ann 68A-902 (c) requires that a minimum 90-day sentence be imposed for second or subsequent convictions under 68A-902, and also authorizes the imposition of a fine. All or either part of the penalty imposed may be probated.

The 1974 session of the Georgia General Assembly enacted the Uniform Rules of the Road Act to revise, classify, consolidate and modernize the laws relating to the rules of the road for traffic, and to establish new laws relating thereto. Those laws are codified as Title 68A of the Code of Georgia of 1933, as amended. Ga. Laws 1974, p. 633.

U74-102

498

Article IX of the Act, which relates to traffic offenses, includes 68A-902 entitled "Drivers with ability impaired by alcohol or drugs." Ga. Laws 1974, pp. 633, 671. Subsection (a) provides that a person whose ability is so impaired shall not drive or be in actual physical control of a moving vehicle. Subsection (b) adds that the legal use of drugs shall not constitute a defense against a violation of 68A-902. The penalties for viola.t.ion of this section are enumerated in subsection (c) as follows:
" (c) Every person convicted of violating this section shall be punished by imprisonment for not less than 10 days nor more than one year, or by fine of not less than $100 nor more than $1,000, or by both such fine and imprisonment. On a second or subsequent conviction within three years, he shall be punished by imprisonment for not less than 90 days nor more than one year, and, in the discretion of the court, a fine of not more than $1,000. The foregoing limitations on punishment also shall apply when a defendant has been convicted of violating by a single transaction more than one of the four provisions of subsection (a). Provided that no provision of this section shall be construed so as to deprive the court imposing the sentence of the power given by law to the court to stay or suspend the execution of such sentence or to place the defendant on probation."
You have asked whether this subsection makes a minimum 90-day sentence mandatory for second or subsequent convictions under the Act, and whether a court which includes a fine as part of the penalty for a subsequent conviction may, in its discretion, probate either the sentence or the fine.
The answer to your first question may be found by referring to the precise language used in subsection (c) (quoted above). That subsection provides that upon a second or subsequent conviction under section 68A-902 within a three-year period, a person convicted shall be punished by imprisonment for not less than 90 days nor more than one year. The word "shall" in a statute is a word of command, and the context in which the word is used must be strongly persuasive before "shall" is softened into a mere permission. Spivey v. Mayson, 124 Ga. App. 775 (1971). The context in which the word "shall" is used in the Act under consideration mitigates against the construction that it connotes permission or discretion. Although the Act specifies that a 90-day sentence of imprisonment shall be imposed, it clearly states that the imposition of a fine is a matter fully within the discretion of the court, thereby separating that part of the sentence to be imposed which is mandatory from that part which is discretionary.
Therefore, it is my opinion that that portion of 68A-902 (c) which uses the word "shall" authorizing the imposition of a 90-day penalty

499

U74-103

is mandatory and cannot be construed to mean that the court is vested with discretion in imposing the minimum 90-day sentence.
Ga. Code Ann. 27-2506, relating to punishment of misdemeanors, was amended in the 1974 session of the General Assembly by an Act entit:ed "Criminal Procedure-Traffic Offenses-Alternative and Additional Punishment Provided" (Ga. Laws 1974, p. 631), which delineates the "power given by law" to the court to place the defendant on probation. Section 1 (d) of the 1974 Act permits a judge to impose in addition to or instead of any other penalty provided for the punishment of a misdemeanor involving a traffic offense, "[p]robation or suspension of all or any part of a penalty upon such terms and conditions as may be prescribed by the judge." Ga. Laws 1974, pp. 631, 632. This section clearly gives the judge the power to probate any part of the sentence imposed. Consequently, in answer to your second question, it is my opinion that a judge imposing sentence pursuant to Code 68A-902 (c) may probate either the fine or the sentence as well as both the fine and the sentence.
Based on the foregoing analysis, it is my opinion that Ga. Code Ann. 68A-902 (c) requires that a minimum 90-day sentence be imposed for second or subsequent convictions. That Code section also authorizes the imposition of a fine on second or subsequent convictions under the Act, and the court, in its discretion, may probate either all or part of the penalty imposed.
I am enclosing a copy of a related unofficial opinion that was issued in August of this year which states, in part, that a judge may also impose a sentence which may be either probated or suspended upon payment of a fine. Op. Atty Gen. U74-78.

UNOFFICIAL OPINION U74-103

To: Notary Public and Ex-Officio Justice of the Peace

October 31, 1974

Re: Georgia Code Ann. 76-201, as amended by Ga. Laws 1974, p. 322, relating to bonds to keep the peace, authorizes the sheriff of the county in which a person is arrested to retain custody of the person for a period not to exceed 24 hours or in the alternative to release the person so arrested on a bond set by the sheriff which does not exceed $1,000. The bond limit of $1,000 is imposed by Code 76-201 on the sheriff and does not affect the justice of the peace. Further, any person posting such a bond may waive the hearing provided by Code 76-201 if he so desires.

This is in response to your recent request for our opinion as to the effects of certain amendments to Ga. Code Ann. 76-201, made dur-

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ing the 1974 session of the General Assembly. You posed three questions: (1) Can a person arrested under this Code section be held in jail up to 24 hours or until a hearing in the matter is had? (2) Is the justice of the peace only authorized to set a bond not exceeding $1,000 at the hearing? (3) Can the person so arrested waive the hearing allowed him and remain free under the bond set by the sheriff?
As to the first question, Ga. Code Ann. 76-201 clearly provides that after a warrant is issued and the sheriff has arrested the person named in the warrant, the sheriff is required to bring the person before the court which issued the warrant or to release the person on bond within 24 hours. Therefore, if the sheriff does not release the person on bond, the sheriff may retain the person in custody up to 24 hours.
As to your second question, the $1,000 bond limit created in Code 76-201 specifically limits the bond which the sheriff may set to an amount not exceeding $1,000. Nothing in this section would otherwise affect the existing law which controls the bond which a justice of the peace may set.
As to your third question, Ga. Code Ann. 76-201 specifically states that:
"Within five days after being released on bond, said person shall be entitled to a hearing."
While the person against whom the warrant was issued is entitled to a hearing, it is evident from the language of the law that the hearing is not mandatory, but may be waived by the person against whom the warrant was issued, if that person so wishes.

UNOFFICIAL OPINION U74-104
To: Justice of the Peace, 81st G. M. District November 5, 1974
Re: The jurisdiction of justices of the peace is established by Ga. Const., Art. VI, Sec. VII, Par. II (Ga. Code Ann. 2-4202), and is not broadened by Ga. Laws 1974, p. 398 (Ga. Code Ann. Ch. 67-7).
This is in response to your recent request for our opinion as to whether a justice of the peace has jurisdiction to hear civil matters in which the amount in controversy exceeds $200 by virtue of the provisions of Ga. Laws 1974, p. 398, which amended Ga. Code Ann. Ch. 67-7, relating to foreclosures of mortgages on personalty.
Article VI, Sec. VII, Par. II, of the Constitution of the State of Georgia (Ga. Code Ann. 2-4202) establishes the jurisdiction of justices of the peace. That section provides that justices of the peace:

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" ... (S)hall have jurisdiction in all civil cases arising ex-contractu and in cases of injury or damage to and conversion of personal property, when the principal sum does not exceed two hundred dollars. . . . "
Since the jurisdiction of your court is set at $200 by the Constitution of the State, this jurisdiction may not be amended in the General Assembly. Therefore, the duties imposed upon your court by Ga. Laws 1974, p. 398, are limited to foreclosures of mortgages on personalty where the amount involved is less than $200.
Therefore, it is my unofficial opinion that you may only honor applications for writs of possession as provided by Ga. Code Ann. Ch. 67-7, when the amount in controversy does not exceed $200.

UNOFFICIAL OPINION U74-105

To: County Attorney, Rabun County

November 5, 1974

Re: A governmental unit, subdivision or agency having physical custody of a prisoner has the duty to maintain such prisoner, furnish food, clothing and any needed medical or hospital attention required by such prisoner, and to pay funeral expenses for any indigent prisoner dying while in the custody of the county.

This is in response to your recent request for our informal opinion as to Rabun County's liability for medical services rendered to inmates of the county jail.
Georgia Laws 1956, pp. 161, 171, as amended (Ga. Code Ann. 77-309), relating in part to financial responsibility for prisoners, provides in part:
"(e) It shall be the responsibility of the governmental unit, subdivision or agency having the physical custody of a prisoner to maintain such prisoner, furnishing food, clothing, and any needed medical and hospital attention therefor...."
Hence, any person incarcerated in the county jail, and who is in need of medical attention, must receive such medical attention at the county's expense. The financial responsibility for these expenses is not controlled by the cause of the condition requiring medical attention, but rather is imposed on the governmental unit having physical custody of the prisoner.
As to your question concerning the burial expenses of a prisoner dying while in the custody of the county, I presume that question is predicated on the fact that the prisoner was an indigent. In such an instance, Ga. Code Ann. 23-2304 (Ga. Laws 1863-4, p. 60; 1967,

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p. 616; 1972, p. 971) provides that the county shall make available sufficient funds to provide a decent interment of the prisoner. That same section provides that the State Board of Corrections is authorized to reimburse the governing authority of the county for such expenditures when they were made for the burial of any prisoner or inmate under the authority, jurisdiction, or control of the State Board of Corrections.

UNOFFICIAL OPINION U74-106

To: City Attorney, City of Atlanta

November 6, 1974

Re: An amendment to the charter of the City of Atlanta which would change duties and responsibilities of a city employee, which duties and responsibilities are enumerated in said charter, would be unconstitutional.

This is in response to your recent request for an unofficial opinion from this office concerning the constitutionality of a proposed amendment to the charter of the City of Atlanta which would prevent assistant solicitors of the municipal court from engaging in the private practice of law.
While we do render unofficial opinions on questions posed to us by city and county attorneys, when such requests are accompanied by the attorney's own opinion, the Attorney General normally does not give opinions as to the constitutionality of proposed actions, inasmuch as this would serve to usurp the functions of the courts.
However, I have reviewed your opinion, and while I recognize that on questions such as this, different conclusions could be reached, I can find no compelling reason to disagree with the result stated, assuming that the proposed amendment to the charter would affect the duties and responsibilities of the assistant solicitors of the municipal court.

UNOFFICIAL OPINION U74-107

To: Chief Judge, Dougherty Judicial Circuit

November 12, 1974

Re: (1) A probated sentence may be revoked even if the act constituting the violation of probation was committed prior to the commencement of service of the probated sentence but after imposition of sentence; (2) a probated sentence preceded by a term of imprisonment begins upon the offender's fulfillment (including parole super-

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vision) of the imprisonment obligation; and (3) upon revocation of a probated sentence, the offender cannot be returned to confinement for a period of time in excess of the original probationary period.

You have posed five questions pertaining to your jurisdiction over offenders having been sentenced by you to a specified term of imprisonment followed by a specified term of probation. Each question will be considered separately; assumed in each instance is the existence of the following sentence as posed by your request: "Ten years imprisonment, to serve three years in prison, the remaining seven years to be served on probation."
(1) Probation violation while under parole supervision.
You ask if you may revoke the probation of an offender, having been paroled by the Board of Pardons and Paroles during the initial three-year period of confinement, who commits a violation of his probation while under parole supervision. You further ask that it be assumed that the Board of Pardons and Paroles does not revoke the offender's parole as a result of the act constituting the probation violation and your specific inquiry is whether you may proceed to revoke the offender's probation after his discharge from parole supervision but while the offender is under probation supervision.
A probated sentence may be revoked if the sentence being revoked is in effect and being served at the time the order of revocation is made even if the act constituting the violation was committed prior to the commencement of service of the probated sentence, provided, of course, that the violation was committed subsequent to the imposition of sentence. Todd v. State, 108 Ga. App. 615 (1963); Jackson v. State, 91 Ga. App. 291 (1954).
Under the circumstances as outlined above and on the basis of the foregoing authority, it must be concluded that you may proceed, in accordance with Ga. Laws 1956, pp. 27, 32, as amended (Ga. Code Ann. 27-2713), to revoke the offender's probation.
(2) Commencement of the probated sentence.
Aware that, while incarcerated, the offender earns statutory and extra good-time allowances (Ga. Laws 1956, pp. 161, 178, as amended (Ga. Code Ann. 77-320) ), you ask whether service of the probated sentence begins upon the offender's discharge from confinement and runs for seven years thereafter or whether the duration of the probated sentence may exceed seven years by the amount of time the offender's three-year confinement was shortened as a result of goodtime allowances.
In a previous opinion, it was stated:

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" ... where one has a probated sentence to serve upon completion of in-prison time, the probated sentence with its accompanying supervision begins upon the discharge of the inmate from his confinement and continues to run through the period of time originally prescribed for the probated sentence." Op. Att'y Gen. 71-48. (Emphasis in original.)
As the period of probation prescribed in the sentence in question is seven years, the probated sentence is operative for seven years after the offender's discharge from confinement.

(3) Revocation after discharge from confinement with good-time allowances.
As indicated above, the probated sentence runs for a term of seven years upon the offender's discharge from confinement. A fortiori, upon revocation of the probated sentence, the offender can be returned to confinement to serve only the balance of the probated seven-year sentence. See Wiley v. State, 131 Ga. App. 511 (1974).
(4, 5) Effect of modification of the terms of the hypothetical sentence.
You ask would the conclusions reached in the above situations be different if the sentence in question were framed in terms of: "Ten years imprisonment, to serve three years in prison with the balance probated, probation to commence upon release from prison." Alternatively, you pose a sentence identical to the foregoing sentence with the exception that the period of probation is designated to begin at the expiration of confinement plus any time served under parole supervision. The above sentences are distinguished from the original sentence posed by you on the basis that the latter sentences do not delineate a specific period of probation.
The more or less open-ended probationary feature of the latter sentences is of little significance.
The most critical features of the so-called split sentence are the total term of the sentence and the specific period of imprisonment. If not specified, the remaining probationary period is easily deduced by subtracting the term of imprisonment from the total sentence. Once an offender completes service of the three-year portion of the sentence, including credit for good-time allowances and time on parole supervision, his obligation under that portion of the 10-year sentence is at an end. Having satisfied the three-year obligation of the 10-year sentence, the offender then embarks on a seven-year probationary period regardless of whether the sentence specifies "seven years probated" or "balance probated."
In short, the modifications in the hypothetical sentence suggested in your fourth and fifth questions do not affect the response to your first three questions.

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UNOFFICIAL OPINION U74-108

To: Judge, Superior Courts, Atlanta Judicial Circuit

November 15, 1974

Re: Service rendered as a cadet midshipman in the United States Merchant Marine Cadet Corps is creditable service under the provisions of the Superior Court Judges Emeritus Retirement Act.

This responds to your question on whether service in the United States Merchant Marine Cadet Corps is creditable toward your appointment as Superior Court Judge Emeritus.
As I understand the facts, you served from March 16, 1945 through July 17, 1946 as a cadet midshipman in the U. S. Merchant Marine Cadet Corps. In such capacity, your service was as a student in the U. S. Merchant Marine Academy, and as a junior officer aboard a Merchant Marine vessel. Your pay and uniform during this time were commensurate with that of midshipmen serving in the United States Naval Academy. You resigned before receiving a commission due to the cessation of \Vorld War II. However, the commission you would have received allowed appointment as an ensign in either the United States Navy or the United States Maritime Service.
The Superior Court Judges Emeritus Act requires that a judge be serving in his 19th year before appointment to the office of Superior Court Judge Emeritus. That Act further permits the crediting of a full year of service for each year or fraction of a year served in the armed forces of the United States. Ga. Laws 1945, p. 362 et seq.;. Ga. Code Ann. 24-2602a, both as amended.
The Merchant Marine Cadet Corps was established pursuant to the Merchant Marine Act of 1936. 49 Stat. 1985 (June 29, 1936); 46 U.S.C.A. 1101 et seq. It was established as a training program to train and provide personnel for the Merchant Marine. The Merchant Marine Act declares as its policy the development and maintenance of a Merchant Marine composed of the best-equipped, safest, and most suitable types of vessels, manned with a trained and efficient citizen personnel, capable of serving as a naval and military auxiliary in time of war or national emergency.
In a previous opinion (Op. Att'y Gen. 72-42), I reached the conclusion that service in the Student's Army Training Corps during: World War I was creditable military service under the Act. My research there indicated that the Student's Army Training Corps was. a World War I program established under the Selective Service Act. Students who volunteered for the Training Corps enlisted in the Army and were then granted furloughs to continue their academic studies,. but were also required to participate in military instruction and drill,.

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plus training at summer camps. In practical reality, I see no difference between that service and the service you rendered as a cadet midshipman both at the U.S. Merchant Marine Academy and as a junior officer upon a J\ierchant Marine vessel.
I am advised by a copy of a letter from the National Personnel Records Center of the General Services Administration, St. Louis, Missouri, that:
"Jack P. Etheridge, service no. 444 701, was enlisted in the U. S. Naval Reserve and appointed in March 1945 (exact day not of record) as Midshipman in the U.S. Merchant Marine Academy, Pass Christian, Mississippi, for cadet training. He resigned July 17, 1946, after several months of sea duty."
Therefore, based on the foregoing, it is my opinion that service rendered as a cadet midshipman in the United States Merchant Marine Cadet Corps is creditable service under the provisions of the Superior Court Judges Emeritus Retirement Act.
Since, as previously mentioned, the Act allows one year of service credit for each year or fraction of a year of military service, you are entitled to two years of military service credit.

UNOFFICIAL OPINION U74-109

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

December 3, 1974

Re: The Board of Trustees of the Georgia Firemen's Pension Fund has no authority to award military service credit to a member of the fund employed by the State of Georgia or a political subdivision
thereof.

This responds to your request for my opinion as to whether the Board of Trustees of the Georgia Firemen's Pension Fund has the authority to grant military service credit to a member of the fund employed as a fireman or volunteer fireman by the State of Georgia or a political subdivision thereof.
The Georgia Firemen's Pension Fund was established in 1955 by Georgia Laws 1955, p. 339 et seq., as amended (Ga. Code Ann. Ch. 78-10). This statute has no specific section pertaining to the creditability of a member's military service. However, Ga. Code Ann. 78-1015 (g) is relevant to the question of military service credit, and provides as follows:
"Any fireman or volunteer fireman who shall be granted a bona fide leave of absence for any reason shall not be entitled to receive

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credit for the time spent on such leave of absence; upon his return to active service as a fireman or volunteer fireman, he shall be allowed to continue making payments to the fund." (Emphasis added.)
There is no question but that service in the armed forces falls within the category of a bona fide leave of absence. However, the above statutory language clearly provides that a fireman or volunteer fireman, who is granted a bona fide leave of absence for any reason, is not entitled to receive credit for the time spent on such leave of absence.
In construing any statute, as you have asked me to do here, I must be guided by the prevailing rules of statutory construction. The ordinary signification of all words must be accorded them. Ga. Code Ann. 102-102 (1). Where the language of a statute appears clear and plain, it must be held to mean what has been expressed. Barnes v. Carter, 120 Ga. 895 (1904). Therefore, absent any additional statutory authority, I am of the opinion that the Board of Trustees of the Georgia Firemen's Pension Fund has no authority to grant military service credit to any of its members.
Since your letter also raised the question of whether there was any federal law which would require the fund to give a member credit for his military service, I would direct your attention to the Selective Service Act of 1967, as amended (50 U.S.C.A. App. 451 et seq.). Section 9 of this Act provides certain reemployment rights to persons inducted into the armed forces. (See 50 U.S.C.A. App. 459 (1968).) These reemployment rights are predicated upon a person obtaining a certificate establishing his satisfactory completion of his period of training, and upon said person making application for reemployment within 90 days after being relieved from service or from hospitalization continuing after discharge for a period not to exceed one year.
If these prerequisites are met, and if the former employment was with the Federal Government or with a private employer, then Section 9 provides that such person shall, if still qualified to perform the duties of the position, be restored to such position or to a position of like seniority or pay. It is further provided that if a person is restored to employment under these circumstances, he shall have such status as he would have enjoyed if he had never interrupted his employment to serve in the military. However, if the former employment was with the state or any political subdivision thereof, Section 9 provides as follows:
" ... it is hereby declared to be the sense of the Congress that such person should" (i) if still qualified to perform the duties of such position, be restored to such position or to a position of like seniority, status, and pay...." (Emphasis added.)

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Clearly, this language, by the use of the word "should" instead of "shall," does not require a state or a political subdivision thereof to reemploy a person who has served in the military. Rather, this language is merely precatory and recommendatory in nature. See Op. Att'y Gen. 70-47. Furthermore, the courts have held that the present Act's predecessor, the Selective Training and Service Act of 1940, from which the present provision was lifted practically verbatim, does not apply to employees of states or municipal corporations. Newman v. McCullough, 212 S. C. 17, 46 S.E.2d 252 (1948). Therefore, since your inquiry as to the creditability of military service relates to members of the Firemen's Pension Fund who are employed by the state or a political subdivision thereof, such a member cannot take advantage of the provisions of this federal law.
It is, therefore, my unofficial opinion that the Board of Trustees of the Georgia Firemen's Pension Fund has no authority to award military service credit to any member of the fund who is employed by the State of Georgia or a political subdivision thereof.

UNOFFICIAL OPINION U74-110

To: Ordinary, Effingham County

December 4, 1974

Re: There may be no more than two constables appointed in each militia district in the State of Georgia.

This is in response to your request dated November 20, 1974, in which you sought an opinion as to whether one justice of the peace could employ three constables within a single militia district. As you pointed out, Ga. Code Ann. 24-801 states:
"There shall be two constables in each militia district of the several counties who shall be appointed by the justice of the peace of each district ...."Amended by Ga. Laws 1969, p. 351.
Where a statute is clear and unambiguous, it will be held to mean what has been clearly expressed. Barnes v. Carter, 120 Ga. 895 (1904). As Ga. Code Ann. 24-801 is clear and unambiguous, it is my unofficial opinion that there may be no more than two constables appointed in each militia district in the State of Georgia.

UNOFFICIAL OPINION U74-lll

To: County Attorneys

December 6, 1974

Re: The Tift County Development Authority is an instrumentality of the State of Georgia for federal tax purposes.

509

U74-112

You have requested an opinion as to whether or not the Tift County Development Authority is an instrumentality or political subdivision of the state for federal tax purposes.
The Tift County Development Authority was created pursuant to a constitutional amendment proposed by resolution of the General Assembly (Ga. Laws 1960, p. 1240), ratified November 8, 1960. Section 1 of the amendment provides, in part, that:
"A. There is hereby created a body corporate and politic in Tift County to be known as the Tift County Development Authority, which shall be an instrumentality of Tift County and public corporation. . . . "
The amendment specifically provides that the authority is an instrumentality of Tift County.
Section 115 of the Internal Revenue Code of 1954 (hereinafter referred to as "I.R.C.") provides that:
"Gross income does not include"(1) Income derived from ... the exercise of any essential governmental function and accruing to a state ... or any political subdivision thereof...."
The regulations issued under I.R.C. 115 do not define "political subdivision." Regulations issued under I.R.C. 103, however, provide that:
"[T]he term 'political subdivision,' ... denotes any division of any state or local governmental unit which is a municipal corporation or which has been delegated the right to exercise part of the sovereign power of the unit." Reg. 1.103-1 (b) b.
Although there is no clear statement under I.R.C. 115 that an authority is deemed to be a political subdivision of the state, it is my unofficial opinion that the similar wording used in I.R.C. 103 permits the Tift County Development Authority to be deemed a political subdivision of the state for federal tax purposes. See Commissioner v. Shamberg's Est., 144 F.2d 998 (2d Cir. 1944); Commissioner v. White's Est., 144 F.2d 1019 (2d Cir. 1944).

UNOFFICIAL OPINION U74~112

To: Attorney at Law

December 6, 1974

Re: A development authority organized pursuant to Ga. Laws 1969, p. 137, can issue a promissory note for an authorized purpose if the note is payable solely from revenues pledged therein for such payment.

U74-113

510

You have asked whether or not a development authority created pursuant to the Development Authorities Law (Ga. Laws 1969, p. 137; Ga. Code Ann. Ch. 69-15) is empowered to execute a promissory note as evidence of debt for certain purposes. Your question arises because of the lack of any reference to promissory notes in the Development Authorities Law.
It is clear that development authorities are granted the power to issue "revenue bonds" and "revenue obligations." Ga. Code Ann. 69-1504. In the context of the statute, the term "obligation" means an instrument in writing acknowledging an indebtedness. See H argrove v. Cooke, 15 Ga. 321, 330 (1854). A promissory note, without question, comes within the definition of an obligation. As a "revenue" obligation, however, it is necessary that the note "be payable solely from the revenues therein pledged to such payment." Ga. Code Ann. 69-1509; cf. Art. VII, Sec. VII, Par. V-A of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-6005.1).
It is, therefore, my unofficial opinion that a development authority can issue a promissory note for an authorized purpose if the note is payable solely from revenues pledged therein for such payment.

UNOFFICIAL OPINION U74-113

To: Director, State Energy Office

December 13, 1974

Re: Trade secrets and other confidential business information received by the State Energy Office from the Federal Government and businesses in the private sector are not within the purview of the Open Records Law, and may be treated as confidential by that state agency.

This is in response to your inquiry concerning the right of your office to treat certain information provided to you by both the Federal Government and private industry sources as confidential. It is my understanding that certain business information is furnished to your office on a confidential basis by manufacturers, suppliers, utilities, and other companies which, if available to the general public, could compromise the economic position of the organizations furnishing the information. Further, you have informed me that the Federal Government has advised they will not release certain potentially valuable data to you unless your procedure for treating this information as confidential is at least equally secure as that of the Federal Government. You have stated that it is necessary that you have this information from both the private sector and the Federal Government in order to carry out your function as the Certified State Office of Petroleum Allocation under the Federal Energy Administration Act of 1974 and also more generally as the State Energy Office.

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U74-113

The primary state statute dealing with the right of access to inspect certain records and papers in the possession of state agencies is the "Open Records Act" which provides in relevant part that:
"All state, county and municipal records ... shall be open for a personal inspection to any citizen of Georgia at a reasonable time and place, and those in charge of such records shall not refuse this privilege to any citizen." Ga. Laws 1959, p. 88 (Ga. Code Ann. 40-2701).
The statute also provides certain exceptions which include, inter alia:
"The provisions of this Act shall not be applicable to records that are specifically required by the Federal Government to be kept confidential or to medical records and similar files, the disclosure of which would be an invasion of personal privacy...."Amended by Ga. Laws 1970, p. 163 (Ga. Code Ann. 40-2703).
For purposes of response, your question can be separated into two areas, i.e., the information received in connection with the petroleum allocation program and the information which you seek in order to carry out the more general functions of your office.
I.
Your activities under the petroleum allocation program are carried out pursuant to your certification by the Federal Energy Office under the provisions of the Emergency Petroleum Allocation Act of 1973 (P. L. 93-159) and the Federal Energy Administration Act of 1974 (P. L. 93-275). (See generally 10 C.F.R. 211.15.)
Consequently, if the Federal Government requires records be kept confidential under the provisions of the federal Acts from which you derive your authority, then your office is also required to keep such information and records confidential. Ga. Code Ann. 40-2703.
Section 14 of the Federal Energy Act of 1974 concerns the public disclosure of information. While Section 14 requires the Federal Energy Administration to make certain information public, it also provides that the provisions of Section 552 of Title 5 of the United States Code shall apply to the public disclosure of information. 5 U.S.C. 552 deals generally with the requirement that federal agencies make certain federal records available as public information, but specifically excludes trade secrets and commercial or financial information obtained from a person which is privileged or confidential (5 U.S.C. 552 (b) (4) ).
Acting pursuant to the authority of Section 14 of the Federal Energy Administration Act, the administrator adopted this same exemption in his regulations (10 C.F.R. 202.9).
Consequently, all information you obtain as a result of your activi-

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ties under the referenced federal Acts should be treated with the same degree of confidentiality as that granted by the F.E.A.
II.
As to that business information furnished to you on a confidential basis by either the private sector or the Federal Government so that you may carry out your other general responsibilities as the State Energy Office, it is my opinion that such data may be kept confidential.
As stated above, the Georgia "Open Records Act" specifically exempts records required by the Federal Government to be kept confidential. Therefore, if such information is furnished to you by a federal agency with the requirement that confidentiality be maintained, you certainly can do so.
Concerning proprietary business information furnished you by the private sector, this office has had occasion to render several opinions concerning the applicability of the Open Records Act. The opinion which is perhaps most relevant and helpful in this matter is Op. Att'y Gen. U71-9 (copy attached). That opinion followed the view of this office that a public record is one which a public officer is required to keep by law or is a record intended as a memorial of something done by the officer. The mere fact that a writing is in the possession of a public officer or agency does not make it a public record.
In the 1971 opinion, this office concluded that the S.R.-13 Form which a motor vehicle operator must complete after being involved in an accident is not an open record within the purview of the statute. Rather, the information on that form is intended for the use of the Public Safety Department in applying the Safety Responsibility Law, and need not be made available for public inspection.
The situation referenced in the 1971 opinion is analogous here where certain business records are provided to your office solely for the use of the State Energy Office in carrying out its functions.
Therefore, it is my opinion that business records given you by private industry sources, or data furnished to you on a confidential basis by the Federal Government, are not subject to the open records law and, in the discretion of your office, need not be made public.

UNOFFICIAL OPINION U74-114

To: City Attorney, City of Macon

December 19, 1974

Re: The Georgia Motor Vehicle Accident Reparations Act does not apply to municipal corporations.

The 1974 session of the Georgia General Assembly enacted the Georgia Motor Vehicle Accident Reparations Act commonly referred

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to as the "no fault law." Ga. Laws 1974, p. 113 (Ga. Code Ann. Ch. 56-34B). You have sought an opinion from this office as to whether or not this law applies to municipalities. It is my unofficial opinion that it does not.
Section 3 of the no fault law contains the essential requirements of the Act and provides in pertinent part as follows:
"No owner of a motor vehicle required to be registered in this state, or any other person, other than a self-insurer as defined in this Act, shall operate or authorize any other person to operate such motor vehicle unless the owner has insurance [as required by the Act]."
Since the Act applies to all owners of motor vehicles except those who are self-insurers, it is necessary to determine if municipal corporations are considered owners by the Act. 1 The definition of "owner" set forth in Section 2 (e) of the Act provides as follows:
" 'Owner' means the natural person, corporation, firm, partnership, cooperative, association, group, trust, estate, organization, or other entity in whose name the motor vehicle has been registered."
There is no mention in the definition of the word "owner" of a political subdivision, municipal corporation, or any other governmental entity.
It is well settled that the state is not bound by the passage of a law unless it is named in that law or unless the words of the law are so plain, clear and unmistakable as to leave no doubt as to the intention of the legislature. Lingo v. Harris, 73 Ga. 28 (1884); Anderson v. Department of Family and Children Services, 118 Ga. App. 318 (1969); Ga. Code 102-109. This maxim is likewise applicable to municipal corporations. Mayor of Brunswick v. King, 91 Ga. 522 (1893). Therefore, since municipal corporations are not specifically included in the definition of "owner" and there is no other indication in the Act whatsoever that municipal corporations are subject to it, it must be surmised that the legislature did not intend for the Act to apply to municipalities.
This opinion is supported upon consideration of the effect on the doctrine of governmental immunity the Act would have if it were declared applicable to municipalities. Municipal corporations presently enjoy governmental immunity as provided by statute (Ga. Code (1933) 69-301), as well as by common law principles. See, e.g., Rivers v. City

1 Section 2 (f) of the Act defines "self-insurer" as an owner. Therefore, the inquiry concerning applicability to municipalities revolves about the definition of "owner" even if a municipality is a self-insurer.

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514

Council of Augusta, 65 Ga. 376 (1880). This immunity is waived if a municipality purchases motor vehicle liability insurance to the extent of the insurance so purchased. Ga. Code Ann. 56-2437 (Ga. Laws 1960, pp. 289, 673). However, the latter Code section is permissive and leaves to the discretion of the municipality whether to purchase insurance and waive immunity or whether to maintain immunity by not purchasing insurance.
If the no-fault law were applicable to municipalities, they would have no choice but to purchase the insurance required by that law. This would have the effect of repealing governmental immunity in certain situations which, of course, is contrary to Ga. Code 69-301 and inconsistent with Ga. Code 56-2437. Such a repeal must necessarily be by implication since there is no specific repealer nor even any mention of governmental immunity or either of the above Code sections in the law.
There should be no necessity to refer to the rule of statutory construction that repeals by implication are not favored (Morris v. City Council of Augusta, 201 Ga. 666 (1946) ), inasmuch as common sense dictates that if the General Assembly were about to effect a change in the controversial doctrine of governmental immunity, it would do so explicitly with full and careful consideration. No such consideration is reflected in any way in the no-fault law.
Therefore, it is my unofficial opinion that the Georgia Motor Vehicle Accident Reparations Act is not applicable to municipal corporations.

515
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

517
TABLE 1
UNITED STATES CONSTITUTIONAL PROVISIONS CITED
OP. No.
Art. I, Sec. II, Par. I. ............................... 74-128 Art. I, Sec. IX, Par. III. ............................ U74-74 Art. I, Sec. X, Par. I. ............................... U74-74 Amend. 1 ............................................ 74-3 Amend. 4 ........................................... 74-15 Amend. 14 ............ 74-4, 74-10, 74-15, 74-33, 74-108, 74-128 Amend. XVII ...................................... 74-128
TABLE 2
GEORGIA CONSTITUTIONAL PROVISIONS CITED
OP. No.
Art. I, Sec. I, Par. I. ................................. 74-46 Art. I, Sec. I, Par. III. .............................. U74-81 Art. I, Sec. I, Par. X ................................ U74-90 Art. I, Sec. I, Par. XVI. .............................. 74-15 Art. I, Sec. I, Par. XXIII. ...... 74-109, 74-115, 74-127, 74-147,
U74-92 Art. I, Sec. III, Par. II ...................... U74-51, U74-74 Art. I, Sec. IV, Par. I ................. 74-120, U74-9, U74-47 Art. II, Sec. II, Par. I .................. 74-26, 74-128, 74-137 Art. III, Sec. IV, Par. VI. .................... 74-109, U74-92 Art. III, Sec. VII, Par. VIII .......................... 74-53 Art. III, Sec. VII, Par. IX ...................... 74-14, 74-53 Art. III, Sec. VII, Par. XI ..................... 74-14, 74-115 Art. III, Sec. VII, Par. XVI. ........................ U74-54 Art. III, Sec. VII, Par. XXIII ........................ U74-9 Art. IV, Sec. IV, Par. I. ............................. 74-115 Art. V, Sec. I, Par. XI ............................... 74-147 Art. V, Sec. I, Par. XV . . . . . . . . . . . . . . . . . . . . . . U74-36, U74-98 Art. V, Sec. V, Par. I. . . . . . . . . . . . . . . . . . . . . . . . . . . 74-6, 74-139 Art. VI, Sec. IV, Par. I. .............................. 74-88 Art. VI, Sec. VI, Par. II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-67 Art. VI, Sec. VII, Par. II ........................... U74-104 Art. VI, Sec. XI. ................................... U74-15 Art. VII, Sec. I, Par. I. ............................. U74-88 Art. VII, Sec. I, Par. II ........... 74-14, 74-37, 74-79, U74-40,
U74-41, U74-59, U74-62, U74-80 Art. VII, Sec. I, Par. III ............................ U74-27

518
GEORGIA CONSTITUTIONAL PROVISIONS-Continued
OP. No.
Art. VII, Sec. I, Par. IV .............. 74-110, U74-27, U74-83 Art. VII, Sec. II, Par. I. ................ 74-61, 74-122, 74-155 Art. VII, Sec. II, Par. III . . . . . . . . . . . . . . . . . . . . . . 74-62, 74-140 Art. VII, Sec. III, Par. I. ............................. 74-78 Art. VII, Sec. III, Par. IV ........................... 74-115 Art. VII, Sec. IV, Par. II ....... 74-61, 74-122, 74-155, U74-10,
U74-15, U74-47, U74-77, U74-88 Art. VII, Sec. V, Par. I. .............................. 74-41 Art. VII, Sec. VI, Par. I .......... 74-78, 74-98, 74-107, 74-115 Art. VII, Sec. VII, Par. V-A ................. U74-5, U74-112 Art. VII, Sec. IX ................................... U74-98 Art. VII, Sec. IX, Par. I. ........ 74-53, 74-107, 74-115, 74-140,
U74-36 Art. VII, Sec. IX, Par. I to V ......................... 74-14 Art. VII, Sec. IX, Par. II ..................... 74-115, 74-140 Art. VII, Sec. IX, Par. III. ........................... 74-53 Art. VII, Sec. IX, Par. IV ..................... 74-62, 74-115 Art. VII, Sec. IX, Par. V ............................. 74-53 Art. VII, Sec. IX, Par. IX ........................... 74-107 Art. VIII, Sec. I, Par. I. ....................... 74-70, 74-155 Art. VIII, Sec. IV, Par. I. ..................... 74-94, 74-115 Art. VIII, Sec. V ..................................... 74-70 Art. VIII, Sec. V, Par. I ......... 74-52, 74-67, U74-55, U74-65 Art. VIII, Sec. VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-70 Art. VIII, Sec. IX, Par. II ............................ 74-98 Art. VIII, Sec. XII, Par. I .......................... U74-73 Art. XI, Sec. III, Par. I . . . . . . . . . . . . . . . . . . . . . U74-47, U74-96 Art. XIII, Sec. I, Par. I ............................. 74-127 Art. XV, Sec. II-A ................................. U74-77 Art. XV, Sec. II-A, Par. I ...... 74-25, U74-47, U74-77, U74-96 Art. XV, Sec. II-A, Pars. I and II . . . . . . . . . . . . . . . . . . . . U74-47 Art. XV, Sec. II-A, Par. II . . . . . . . . . . . . . . . . . . . . . . . . . . U74-77 Art. XV, Sec. II-A, Par. III . . . . . . . . . . . . . . . . . . . . . . . . . . U74-9

AcT PAGE

TABLE 3 GEORGIA LAWS CITED

519
OP. No.

60. . . . . .

Ga. Laws 1863-64

414...... 0 . ...... 'G~: L~,;,~ 'i897 .............. U74-105

'i898 .... .. L,;,;,~

0 0

0



0



0



0

93.... . . . .

Ga.

U74-31

93. . . . . . . . . .......... G~. t;.,;,~ i900 ........ U74-22, U74-37

.....





0



Ga.

0.

0

i~~~ i9oi

.... u74-6

176

0











0

0



G~~ :t~~~ 19o3....... u14-44

'i905 ...... L,;,;,~ 138 .......











0



0.

0



246........

Ga:

U74-80

371

et

0



seq.......

0



.

..G~:

L,;,;,~

'i9i0

U74-80

157, 161 1 ...... G~.t;.;.;. i9i4 .. .. 74-14

135..

.

' ..

.

67

.

.

........

....
Ga.

.L.a_.;,~

i9t9

......





..



..

U74-99

i~;.;~ 1920' 288 . . . . . ................................ . ..........7...1.2764-1 74-12 74 46

250, 252. . .

Ga.'

4- 74-155, iJ74:64

324.

..

..

..


.

0

0.

0



0



G~. t;.;.;. i92:i ..

..

.... 14-no

165

0



0

0



0 G~: L~,;,~ i9:i5 ............... U74-22

~24 G~. t;.,;,~ i927 .....

0



0



0

0

0.

. .....

74-41

7123............. ... ............... . . .... ... U74-99

7

.

.

.

.

.

.

.

.





















.... Ga.

.L.~~~

. 1.9.2. 9 .

.......

















.

...

U74-99 U74-22

1933 . 734 Ga. L~~~ 0









0





0





0

0

0



0

U7 4-22

i935 .. .. .. . 76899. . . . . .0 .. 0. ....................... .. .. .. .. .. .. .. .................. 74-41 ' 74-118

85........

Ga. Laws

U74-22

112

.

.

.

.

.

.

.

.

. .. .. .

.

.

.

............ . Ga.

L. .a.w. s...i9. 3.7..................U.7. 47-41-74

148 .......

. . . . . . . . . . . . . . . . . . . 74-106



0

0



0



0

0. 0



520

GEORGIA LAWS-Continued

AcT PAGE

OP. No.

Ga. Laws 1937-Continued 322 ............. 74-71, 74-135, 74-140, U74-3, U74-49, U74-78 355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-19, 74-40 503 et seq........................................... 74-16 528 ................................................. 74-22 806, 837 ............................................ 74-22 864 ........................... 74-94, 74-123, 74-141, U74-61
Ga. Laws 1937-38, Extra. Sess. 297 ........................................ U74-24, U74-42 322 ................................................ 74-145 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-74
Ga. Laws 1939 285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-74 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-4 370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-42 571 et seq........................................... 74-14 736 ............................................... U74-87
Ga. Laws 1941 384 ............................................... 74-127
Ga. Laws 1943 185 .......................................... 74-22, 74-131 333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-87 468 ................................................ U74-3 640 et seq....................... 74-14, 74-21, 74-104, U74-18
Ga. Laws 1945 236, 247 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-99 294 ........................................... 74-76, 74-77 362 ............................... 1174-51,1174-89, U74-108 438 ............................................... U74-62
Ga. Laws 1946 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-83 87 ......................................... 1174-47, 1174-77 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-33 142 ............................................... U74-67 191 ................................................ 1174-9 206 . . . . . . . . . . . . . . . . . . . . . . ........... 74-126, 1174-55, U74-64
Ga. Laws 1947 173 ........................................ 1174-22, U74-37 1173 .............................................. U74-71
Ga. Laws 1949 70 ................................................. 74-71

521

GEORGIA LAWS-Continued

AcT PAGE

OP. No.

Ga. Laws 1949-Continued 138 et seq.............. 74-47, 74-55, 74-92, U74-100, U74-101 249 et seq................................ 74-11, 74-39, 74-44 780 ............................................... U74-48 1177 ................................................ 74-71
Ga. Laws 1950 50 et seq.......................................... U74-72 261 ............................................... U74-18
Ga. Laws 1951 360 ................................... 74-29, 74-136, 74-157 457 ............................................... U74-18 565 ................................................ U74-3 565, 576 ............................................ 74-86 598 ............................................... U74-78 815 ........................................ U74-42, U74-87
Ga. Laws 1952 290 ................................................ U74-3
Ga. Laws 1953, Jan.-Feb. Sess. 331 ............................................... U74-90 423 .......................................... 74-75, 74-110
Ga. Laws 1953, Nov.-Dec. Sess. 43 .................................................. 74-13 210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-147 282 ............................................... U74-65 294 ............................................... U74-18 392 ........................................... 74-80, 74-82 401 ............................................... U74-61 412 ................................................. 74-18 556 ............................. 74-31, 74-74, 74-100, U74-67 2570 .............................................. U74-22
Ga. Laws 1955 176 ............................................... U74-42 339 .................. U74-8, U74-12, U74-28, U74-45, U74-50,
U74-53, U74-72, U74-109 383 ............................................... U74-90 483 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-45
Ga. Laws 1956 27 ................................................ U74-78 27, 32 ............................................ U74-107 60 ........................................... 74-56, 74-156
161 ...................... 74-6, 74-116, 74-125, 74-129, 74-139, 74-142, 74-157, U74-97

522

GEORGIA LAWS-Continued

AcT PAGE

OP. No.

Ga. Laws 1956-Continued 161, 171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-105 161, 178 .......................................... U74-107 368 ............................................... U74-28 580 ................................................ 74-131
Ga. Laws 1957 72 ................................................ U74-83 134 ................................................. 74-75 206 ........................................ U74-48, U74-51
Ga. Laws 1958 206 ................................................. 74-98 214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-99 296 ................................................. 74-85 400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-2 686 ............................................... U74-37 3068 .............................................. U74-37
Ga. Laws 1959 19 ................................................ U74-15 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-131 88 ............................................... U74-113 89 .................................................. 74-75 190 ............................................... U74-86 246, 249 ............................................ 74-18 460 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-27
Ga. Laws 1960 67 .......... 74-12, 74-35, 74-46, 74-120, 74-121, 74-145, 74-151 132 .......................................... 74-85, 74-114 161 ................................... ,__,~........... U74-51 172 ....................................' ............ 74-157 234 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-97 289 et seq............ 74-48, 74-51, 74-81, 74-83, 74-110, 74-113 289, 673 .......................................... U74-114 880 ................................................ 74-157 957 ................................................. 74-75 991 ............................................... U74-50 1240 ............................................. U74-111
Ga. Laws 1961 35 ................................................ U74-65 47 ................................................. 74-158 147 ......................................... 74-81, U74-72 201 ................................................. 74-70 202 ................................................ 74-112

523

GEORGIA LAWS-Continued

AcT PAGE

OP. No.

Ga. Laws 1961-Continued 417 ................................................ U74-8 2045 .............................................. U74-67 3108 .............................................. U74-68
Ga. Laws 1962 17 ....................... 74-11, 74-80, 74-107, 74-115, 74-158 119 ............................................... U74-75 156 ................................................ 74-105 552 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . ................ 74-98 602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-48, U74-51 752 ................................................. 74-53
Ga. Laws 1963 81 ..................................... 74-40, 74-88, 74-139 218 ................................................. 74-40 431 ............................................... U74-61 521 et seq........................................... 74-92 557 ................................................. 74-75 602 ................................................ 74-121 608 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-66 2369 .............................................. U74-58
Ga. Laws 1964 3 ................... 74-13, 74-52, 74-67, 74-98, 74-126, 74-154,
74-155, U74-65
115 et seq......................................... U74-101 269 ............................................... U74-35 310 ............................................... U74-47 337 ............................................... U74-47 338 ................................... 74-34, 74-77, U74-72 416,420 ............................................ 74-28 489 ................................................ 74-125 499 et seq.............. 74-15, 74-17, 74-19, 74-33, 74-40, 74-89 499, 580 to 597 ..................................... U74-99 683 ............................................... U74-51 741 ............................................... U74-71 876 ............................................... U74-88 939 ............................................... U74-83 3066 .............................................. U74-24
Ga. Laws 1964, Extra. Sess. 26 . . . . . . . . . . . . . . . . . 74-25, 74-33, 74-96, 74-128, 74-130, 74-133,
74-137, 74-143
26, 41 ............................................. U74-55 26, 97 ............................................. U74-57

524

GEORGIA LAWS-Continued

AcT PAGE

OP. No.

Ga. Laws 1964, Extra. Sess.-Continued 26, 198 ............................................ U74-47 2213 .............................................. U74-52
Ga. Laws 1965 18 ................................................ U74-57 44 .................................................. 74-53 167 ................................................. 74-38 335 ............................................... U74-99 438 ................................................ 74-104 438, 442-4 ............................................ 74-8 626 ................................ U74-24, U74-42, U74-87 752 ............................................... U74-77 2294 .............................................. U74-47
Ga. Laws 1966 228 ................................................. 74-17 370 ................................................. 74-65 590 ................................................ 74-121 609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-31 692 et seq.......................................... 74-149
Ga. Laws 1967 252 ................................................. 74-73 296 ......................................... 74-17, U74-32 296, 313 ........................................... U74-63 385, 394 ............................................. 74-66 616 .............................................. U74-105 722, 724 ............................................. 74-9 725 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-52 751 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-92 788 ............................................... U74-56 840 ................................................. 74-84
Ga. Laws 1968 126 ................................................ 74-127 324 ................................................. 74-26 330 ................................................. 74-84 358 ............................................... U74-38 425 ................................................. 74-74 430 ................................................ U74-3 436 ................................................ 74-101 447 ............................................... U74-47 565 ................ 74-49, 74-51, 74-94, 74-110, 74-123, 74-141 847 ................................................ 74-143 871 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-137

525

GEORGIA LAWS-Continued

AcT PAGE

OP. No.

Ga. Laws 1968-Continued 983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-91 992 ................................ U74-10, U74-15, U74-90 992, 994 ............................................. 74-95 999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-60 1011 ............................................... 74-157 1044 ............................................... 74-121 1162 ............................................... 74-121 1163 .............................................. U74-20 1193 ................................................ 74-22 1203 .............................................. U74-52 1249 .............. : ............. 74-36, 74-88, 74-115, 74-135 1249, 1263 ......................................... 74-148 1249, 1270 ........................................... 74-58 1249, 1275, 1335 ................................... U74-79 1249, 1302 ......................................... U74-70 1249, 1309 ......................................... 74-156 1249, 1323 ......................................... U74-81 1249, 1324 ................................. U74-67, U74-91 1249, 1351 ......................................... U74-91 1364 ....................................... U74-73, U74-74 1399 ........................................ 74-116, 74-125 1422 ................................................ 74-74 1690 .............................................. U74-83 2667 .............................................. U74-42 2983 .............................................. U74-54 3624 .............................................. U74-68
Ga. Laws 1969 7 ................................................. U74-74 41 ................................................ U74-90 137 ................................ U74-5, U74-88, U74-112 152 ................................................ 74-141 234 ............................................... U74-76 242 ................................................. 74-51 351 .............................................. U74-110 504 ............................................... U74-75 505 ........................... 74-50,74-131, U74-25, U74-86 546 ................................................. 74-91 570 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-13 602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-116, 74-125 616 ................................................ 74-111 721 ................................... 74-61, 74-122, 74-155

526

GEORGIA LAWS-Continued

AcT PAGE

OP. No.

Ga. Laws 1969-Continued
880 ................................................. 74-53 961 ............................................... U74-71 996 .......................................... 74-88, 74-139 2286 .............................................. U74-22 2634 .............................................. U74-47 2641 .............................................. U74-47 3402 .............................................. U74-41
Ga. Laws 1970
32 .................................................. 74-85 117 ................................................. 74-85 163 .............................................. U74-113 208 ................................................ 74-148 249 et seq........................................... 74-23 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ 74-50' 74-59 321 ..................................... 74-24, 74-39, 74-73 347 ........................... 74-96, 74-130, U74-39, U74-55 435 ................................................. 74-74 441 ................................................. 74-48 459 ................................................. 74-52 472 ................................................. 74-51 523 ............................................... U74-35 640 ................................................ 74-127 672 ................................................. 74-78 679 ................................ U74-33, U74-44, U74-70 716 ................................................. 74-95 954 ................................... 74-35, 74-121, 74-151 1153 et seq.......................................... 74-14 2417 .............................................. U74-64 2978 .............................................. U74-68
Ga. Laws 1971 4 ................................................. U74-61 17 ........................................... 74-39, 74-132 45 ................ 74-19, 74-27, 74-34, 74-139, U74-72, U74-76 99 to 103 ................................. U74-100, U74-101 111 ................................................. 74-53 220, 221 ........................................... 74-146 266 ............................................... U74-56 271 ............................................... U74-79 273 ........................................ U74-85, U74-97 309 ................................................. 74-71 332 ............................................... U74-50

527

GEORGIA LAWS-Continued

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OP. No.

Ga. Laws 1971-Continued 344 ............................................... U74-70 380 ........................................ U74-19, U74-47 385 ................................................. 74-66 433 ............................................... U74-35 435 ................................................ 74-125 583 ..................................... 74-7, 74-64, 74-152 602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-90, 74-130 709 .................................... 74-58,74-88,74-139 856 ......................................... 74-49, U74-17 947 ............................................... U74-83 2082, 2086 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-144
Ga. Laws 1971, Extra. Sess. 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-96 61 ................................................. 74-143
Ga. Laws 1972 193 ................................. 74-139, U74-34, U74-99 222 .......................................... 74-76, 74-77 236 ............................................... U74-69 245 .......................................... 74-78, 74-109 250 ......................................... 74-96, U74-43 342 ................................................. 74-99 387 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-117 555 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-84 592 ................................................ 74-100 604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-78 617 ................................................ U74-1 638 ......................................... 74-60, U74-17 664 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-90 722 ................................................. 74-61 762 .................................... 74-30, 74-68, 74-108 838 ................................................ 74-157 868 ................................................ 74-117 909 ............................................... U74-18 971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-105 1011 ............................................... 74-131 1015 et seq........ 74-45, 74-46, 74-109, 74-111, 74-140, U74-61 1015, 1025 ........................................... 74-6
1015, 1048 .......................................... 74-32 1015, 1064 .......................................... 74-39 1015, 1068 ..................................... 74-32, 74-93 1069 ................................................. 74-6

528

GEORGIA LAWS-Continued

AcT PAGE

OP. No.

Ga. Laws 1972-Continued 1078 ....................................... 74-101, U74-49 1086 ............................................... U74-3 1092 ............................................... 74-112 1102 .............................................. U74-38 1103 .............................................. U74-38 1125 ................................................ 74-67 1158 ............................................... 74-131 1198 ................................................ 74-46 1251 ................................................ 74-88 1267 ............................................... U74-3 1460 .............................................. U74-83 1463 .............................................. U74-83 1550 ........................................... 74-9, 74-53 2084 .............................................. U74-40 4125 .............................................. U74-13
Ga. Laws 1973 40 ................................................. 74-148 148 ................................................ U74-4 149 ................................................ 74-118 174 ...... .......................................... 74-130 186 ........................................ U74-50, U74-82 192 ................................................. 74-38 281 ................................................ 74-120 449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-85 504 ................................................. 74-33 526 ................................................ 74-118 563 ................................................. 74-88 590 ................................................ 74-139 673 ................................................ 74-107 701 ................................................. 74-57 857 ................................................. 74-78 882 .......................................... 74-88, 74-139 890 ................................................ 74-139 911 ............................................... U74-95 924 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-136 947 et seq............. 74-134, 74-144, U74-54, U74-56, U74-66 947, 965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-5, U74-94 947, 981 ............................................ 74-39 947, 1002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-94 947, 1132 and 1139 ................................... 74-66 947, 1154 ............................................ 74-5

529

GEORGIA LAWS-Continued

AcT PAGE

OP. No.

Ga. Laws 1973-Continued 947, 1157 ............................................ 74-5 947, 1162 ............................................ 74-5 947, 1163 ............................................ 74-5 947 to 1191 ........................................ U74-94 1192 .............................................. U74-71 1202 ........................... 74-75, 74-110, 74-150, 74-153 1261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-111 1294 ............................................... 74-131 1297 ............................................... 74-125 1299 ............................................... 74-125 1300 ............................................... 74-157 1316 ........................................ 74-84, U74-36 1353 et seq................. 74-14, 74-53, 74-63, 74-78, U74-36 1483 ................................................ 74-45 1527 ............................................... U74-9 2337 .............................................. U74-14 2603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-4
Ga. Laws 1974 4 .................................................. 74-103 16 ................................................ U74-43 71 .................................................. 74-54 95 ................................................. 74-143 109 ..................................... 74-71, 74-80, 74-82 113 ........................................ 74-86, U74-114 134 ................................................ 74-107
155 .................................. 74-102, 74-103, 74-124 174 .......................................... 74-78, 74-109 183 ........................................ U74-73, U74-83 186 ................................................ 74-106 221 ............................................... U74-79 284 .......................................... 74-75, 74-153 322 .............................................. U74-103 352 ................................ 1174-74,1174-84, U74-97 377 ............................................... U74-53 398 .............................................. 1174-104 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-40 481 ................................................ 74-135 521 ................................................ 74-112 567 ............................................... U74-30 609 ............................................... U74-46 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-65, 74-97

530

GEORGIA LAWS-Continued

AcT PAGE

OP. No.

Ga. Laws 1974-Continued 617 ............................................... U74-26 631 ....................................... U74-78, U74-102 633 .......................... 74-99, 74-112, U74-78, U74-102 633 to 699 ......................................... U74-94 705 .......................................... 74-46, 74-136 1003 ................................................ 74-87 1007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-85, 74-114 1042 ............................................... 74-105 1045 to 1097 ........................................ 74-154 1122 ......................................... 74-85, 74-114 1126 ............................................... 74-139 1143, 1155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-62 1156 .......................................... 74-50, 74-59 1177 ................................................ 74-47 1198 ............................................... 74-104 1206 .............................................. U74-38 1422 ............................................... 74-134 1451 ................................................ 74-79 1453 ................................................ 74-45 1455 ......................................... 74-88, 74-139 1459 ................................. 74-53, 74-107, U74-36 1508 ............. 74-53, 74-63, 74-107, 74-136, U74-84, U74-98 3556 ................................................ 74-90 3576 .............................................. U74-81 3639 ............................................... 74-117

531

TABLE4

GEORGIA CODE ANNOTATED SECTIONS CITED

CoDE SEcTIONS

OP. No.

1-102 .............................................. 74-128 1-128 ............................................. U74-74 1-134 ............................................. U74-74 1-801 ................................................ 74-3 1-804 ............................................... 74-15 1-815 ................ 74-4, 74-10, 74-15, 74-33, 74-108, 74-128 1-823 .............................................. 74-128 2-101 ............................................... 74-46 2-103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-81 2-110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-90 2-116 ............................................... 74-15 2-123 .................. 74-109, 74-115, 74-127, 74-147, U74-92 2-302 ...................................... U74-51, U74-74 2-401 ................................ 74-120, U74-9, U74-47 2-801 ................................. 74-26, 74-128, 74-137 2-1606 ..................................... 74-109, U74-92 2-1908 .............................................. 74-53 2-1909 ........................................ 74-14, 74-53 2-1911 ....................................... 74-14, 74-115 2-1916 ............................................ U74-54 2-1923 ............................................. U74-9 2-2701 ............................................. 74-115 2-3011 ............................................. 74-147 2-3015 ..................................... U74-36, U74-98 2-3401 ........................................ 74-6, 74-139 2-3901 .............................................. 74-88 2-4102 ............................................ U74-67 2-4202 ........................................... U74-104 Ch. 2-46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-15 2-5401 ............................................. U74-88 2-5402 ................... 74-14, 74-37, 74-79, U74-40, U74-41,
U74-59, U74-62, U74-80 2-5403 ............................................ U74-27 2-5404 .............................. 74-110, U74-27, U74-83 2-5501. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-61, 74-122, 74-155 2-5503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 74-62' 74-140 2-5601 .............................................. 74-78 2-5604 ............................................. 74-115 2-5702 ................. 74-61, 74-122, 74-155, U74-10, U74-15,
U74-47, U74-77, U74-88 2-5801 .............................................. 74-41

532

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SECTIONS

OP. No.

2-5901. ......................... 74-78, 74-98, 74-107, 74-115 2-6005.1 .................................... U74-5, U74-112 2-6201 .................. 74-53, 74-107, 74-115, 74-140, U74-36 2-6201 to 2-6205 .............................. 74-14,. U74-98 2-6202 ...................................... 74.,.140, 74-115 2-6203 .............................................. 74-53 2-6204 ....................................... 74-62, 74-115 2-6205 .............................................. 74-53 2-6401 ....................................... 74.,.70, 74-155 2-6701 ....................................... 74-94, 74-115 2-6801 ................... 74-52, 74-67, 74-70, U74-55, U74-65 2-7001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-70 2-7202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 74-98 2-7501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-73 2-7901a .................................... U74-47, U74-96 2-8101 ............................................. 74-127 2-8402 ............................... 74-25, U74-47, U74-96 2-8402 et seq....................................... U74-77 2-8403 ..................................... U74-47, U74-77 2-8404 .............................................. U74-9 3-704 ............................................. U74-87 3-706 ............................................. U74-87 3-1002 ............................................. U74-3 3-1004 .............................................. U74-3 Title 3A ..................................... 74-77, U74-72 3A-101 et seq........................................ 74-34 3A-102 ...................................... 74-34, U74-72 6-1002 ............................................ U74-57 9-102 ............................................... 74..:22 9-402 ................................................. 74-48 Ch. 12-7 ............................................ 74-108 Ch. 13-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-46, 74-121, U74-2 13-201 ......................... 74-46, 74-121, 74-145, 74-151 13-201.1 ............................... 74-35, 74-121, 74-151 13-201.1 et seq....................................... 74-12 13-202.1 et seq....................................... 74-12 13-203 ........................................ 74-12, 74-35 13-203.1 ............................................ 74-35 13-204.1 ........................................... 74-121 13-207 ................................ 74-46, 74-120, 74-151 13-304 .............................................. 74-46 13-409 ............................................... 74-1

533

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

OP. No.

13-18010 00000000. 0................................. 74-121 13-1802 ... 0..................................... 0.. 74-121 13-20220 ......................................... 0. 74-121 13-2023 ...................................... 74-12, 74-121 13-2068 0........................ 0. 0................ 74-118 Ch. 13-23 .......................................... 74-149 13-2307 (b) ................................... 0. 0... 74-149 13-2314 ............................................ 74-149 13-23280 ..................................... 0... 0. 74-149 13-23320 ........................................... 74-149 13-2335 ............................................ 74-149 13-2336 ............................................ 74-149 16-437 ............................................. 74-145 17-505 (10). 0........................................ 74-28 20-504 0.. 0.......................................... 74-48 22-202 ............................................. 74-141 22-802 00............................................ 74-51 22-1314. 0........................................... 74-94 22-14010 ................................... 0. 0... 0. 074-49 22-21020 ......................................... 0. 74-110 22-2202 ............................................ 74-123 22-2613 ............................................ 74-110 22-4109 ............................................. 74-94 22-55120 ........................................... 74-123 23-7010 ............... 0........................... U74-47 23-8010 .................................... U74-22, U74-37 23-1029 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-47 23-1502 ........................................... U74-66 23-1602 ... 0....................................... U74-87 23-2304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-105 23-3001 ......................................... 0.U74-71 23-3003 . 0. 0... 0................................... U74-47 24-801 ........... 0............................... U74-110 24-1501 ... 0....... 0............................. 0.U74-81 Ch. 24-21A .. 0. 0................................ 0.. U74-33 24-2108a .... 0..... 0. 000..................... 0..... U74-70 Ch. 24-26Ao. 0. 00..... 00..... 00............. U74-51, U74-95 24-2602ao ...................... 0.......... U74-89, U74-108 24-2605a.1 ................ 0..................... 00. U74-51 24-2605a.2 0........ 0... 0........................... U74-95 24-2610a.1 (d) .... 0............. 0........... 0... 0.. 0074-23 24-27040 0. 0...... 0.... 0.................. 00. 074-42, U74-29

534

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SEcTIONS

OP. No.

24-2707 ...................................... 74-42, U74-29 24-2708 ............................................. 74-42 24-2709 ........................................... U74-29 24-2710 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-42 24-2711 ............................................. 74-42 24-2714 ........................................... U74-70 24-2727 .................................... U74-46, U74-90 24-2803 ........................................... U74-29 24-2811 ........................................... U74-47 24-2813 ........................................... U74-47 24-2823 ............................................ U74-90 24-2826 ........................................... U74-47 24-2831 ........................................... U74-47 24-2832 .................................... U74-19, U74-47 24-2810a .......................................... U74-52 24-2908 ............................................ U74-6 24-2924 ........................................... U74-90 24-2928 .............................. 74-95, U74-10, U74-15 24-2931 ............................................ U74-1 24-2904a .......................................... U74-48 24-3101 ............................................ U74-1 24-3406 ........................................... U74-46 Title 24A .......................................... 74-139 24A-101. . . . . . . . . . . . . . . . . . . . . . . . . .................... 74-58 24A-201 ........................................... U74-68 24A-301. ...................................... 74-58, 74-88 24A-401 ...................................... 74-58, 74-139 24A-1403 ........................................... 74-139 24A-2501. ..................................... 74-58, 74-88 24A-2701 ........................................... 74-139 24A-3502 ........................................... 74-58 24A-3503 ........................................... 74-58 Ch. 25-1 ............................................ 74-41 25-101 (c) ........................................... 74-41 25-108 .............................................. 74-41 25-123 ............................................. 74-136 26-401 (k) .......................................... 74-148 26-701 ........................................ 74-58, 74-88 26-1006 ........................................... U74-79 26-2101 ........................................... U74-70 26-2304 ........................................... U74-47 26-2305 ........................................... U74-47

535

GEORGIA CODE ANNOTATED SECTIONs-Continued

CoDE SECTIONS

OP. No.

26-2308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-115 26-2309 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-156 Ch. 26-29 .......................................... 74-135 26-2901 ........................................... U74-81 26-2904 ........................................... U74-67 26-2906 ........................................... U74-91 26-2907 ..................................... 74-135, U74-91 Ch. 26-30 ........................................... 74-36 26-3201 ........................................... U74-79 26-9908 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-106 26-9911a .......................................... U74-91 26-9913a .......................................... U74-91 26-9914a .......................................... U74-91 Title 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-139 27-407 ............................................ U74-81 27-421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-7 27-508 ............................................ U74-90 27-511 ............................................ U74-90 27-901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-79 27-1410 ........................................... U74-67 27-1801 ........................................... U74-70 27-2301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-74 27-2501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-79 27-2502 ........................................... U74-97 27-2506 ................................... U74-78, U74-102 27-2511.1 .......................................... U74-84 27-2702 to 27-2726.1. ............................... U74-78 27-2709 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-78 27-2713 .......................................... U74-107 27-2714 ............................................ U74-78 27-2727 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-26 27-2728 ............................................. 74-26 27-2801 ........................................... U74-90 27-2902 ..................................... U74-6, U74-90 27-2903 ............................................ U74-6 27-3206 ........................................... U74-60 29-105 ............................................ U74-17 29-301 ............................................ U74-17 29-303 ............................................ U74-17 29-304 ............................................ U74-17 29-401 ............................................. U74-17 30-116 .............................................. 74-33

536

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SECTIONS

OP. No.

30-121 .............................................. 74-33 32-115 .............................................. 74-44 32-116 .............................................. 74-44 32-121 .............................................. 74-44 32-168 ........................................ 74-65, 74-97 32-413 ............................................ U74-61 32-413.1 ........................................... U74-61 32-415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-94, 74-123, 74-141 Ch. 32-6 ........................................... 74-154 32-602 ............................................. 74-155 32-603 .............................................. 74-52 32-606 .............................................. 74-52 32-607 ....................................... 74-52, U74-65 32-609 .............................................. 74-52 32-611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-154 32-613 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-13 32-619 .............................................. 74-67 32-624 ............................................. 74-126 32-648 ............................................. 74.:.154 32-650 .............................................. 74-98 Ch. 32-6A .......................................... 74-154 32-610a ............................................ 74-154 32-637a ............................................ 74-154 32-642a ............................................ 74-154 32-812 to 32-819 ..................................... 74-98 32-839 to 32-841 ..................................... 74-84 32-901 ....................................... 74-52, U74-65 32-903.1 ........................................... U74-69 32-909 ...................................... 74-126, U74-65 32-912 ...................................... 74-155, U74-65 32-937 .............................................. 74-70 32-942 ................................ 74-61, 74-122, 74-155 32-954 ............................................. U74-65 32-1008 ........................................... U74-65 32-1009 ........................................... U74-65 32-1106 ........................................... U74-64 32-1304 ............................................. 74-13 32-1304.1 ........................................... 74-52 32-1401 to 32-1403 .................................. 74-126 32-1403 ........................................... U74-55 32-2104b ............................................ 74-61 Ch. 32-23A ........................................ U74-61

537

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SEcTIONs

OP. No.

32-2307a .......................................... U74-61 Ch. 32-29 .......................................... U74-18 32-2901 ...................................... 74-21, U74-18 32-2904 ................................. 74-8, 74-21, 74-104 32-2905 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-21 32-2922 ....................................... 74-14, 74-21 34-202 .............................................. 74-96 34-203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-96 34-301 .............................................. 74-96 34-402 ............................................ U74-55 34-405 . . . . . . . . . . . . . . . . . . . . . . ........................ 74-90 34-501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-39 Ch. 34-6 ............................................ 74-25 34-602 ............................................. 74-143 34-609 .............................................. 74-33 34-610 ....................................... 74-25, 74-137 34-611 ...................................... 74-130, 74-143 34-617 ............................................. 74-128 34-620 ............................................. 74-133 34-621 ............................................. 74-128 34-622 ............................................. 74-128 34-625 ............................................. 74-143 34-626 ............................................. 74-130 34-627 ............................................. 74-128 34-807 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 74-130 34-1002 ............................................ 74-130 34-1005 ............................................. 74-96 34-1006 ............................................. 74-96 34-1013 ............................................ 74-103 34-1102 ........................................... U74-57 Ch. 34-14 .................................... 74-54, 74-133 34-1402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 74-54 34-1404 ...................................... 74-54, 74-133 34-1406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74-54 34-1407 ...................................... 74-54, 74-133 34-1902 ............................................. 74-33 37-102 .............................................. 74-94 38-418 ............................................ U74-86 39-1105 ............................................ 74-127 Ch. 40-4 ........................................... 74-115 40-402.8 ........................................... 74-107 40-405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 74-107

538

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SECTIONS

OP. No.

40-408 0000... 00. 0. 0. 0...... 0. 0. 0. 0. 0. 074-11, 74-107, 74-158 40-409 0000. 00. 000000. 0.... 00.. 000.. 000..... 0. 0. 000. 74-107 40-421 0000... 00. 000.... 0.... 0. 000. 0.. 00... 0.... 000. 74-80 40-809 0000000000000000o0. 0. 000. 00000000. 00000000000U74-3 40-810 000000000000. 00000000000000000o00000000000000U74-3 Ch. 40-8C 0000000. 0000000000000000000000000000000000U74-3 40-803c 0000000. 000. 00 000000. 0000000000000000000000U74-3 40-805c 00000000. 0000. 00. 000. 00.. 0..... 00000. 0000000U74-3 40-806c 000000. 00. 0. 0000.... 000. 00000. 0....... 000000U74-3 Cho 40-16 00000. 00000000. 0. 00000. 00000. 00000.. 000. 00U74-15 40-1902 (A). 00000000000000000000000000000000000000. 74-16 40-1909 00000000000000000000000000000000000000000000074-16 40-19100 000. 0000000. 0. 000000000000000.. 0..... 0. 0000074-16 40-1913 00000000000. 0. 000000000000. 000000000000. 0000074-16 40-1917 00000000000000000000. 000000. 000000. 0. 0000000074-16 40-19240 000000000000000. 0000. 0000000. 00000000000000074-16 40-2002 00000000000.. 0000. 0. 000. 0000000. 00... 0000000074-67 Ch. 40-21. 000000000. 0000000000000000000000000. 74-11, 74-39 40-2107 0. 00000.. 000000. 0000000000000000074-11, 74-39, 74-44 40-2108. 00000000000. 00000000000000. 0. 00. 00000074-11, 74-44 Ch. 40-220 0000000000000000. 0. 00000000074-27, 74-139, U74-72 40-2201. 0000000000. 0000000000. 00. 74-19, 74-27, 74-34, U74-76 40-2203 (b) 00000000. 00000000. 000.. 0. 0. 0000. 0000. 000.. 74-34 Ch. 40-25 0000000000000000. 0000000000000000 00000. 00074-55 40-25010 00000.. 0000. 0. 000000000000000000000000000U74-101 40-2503 000000. 00000000. 0000000000000. 00. 00000000000074-55 40-2504 (1) 00000000000000000000000000000000. 00000000074-79 40-25050 00. 00000000.... 0. 000000074-47, 74-55, 74-92, U74-100 40-25110 000.. 00000.. 00. 0000000000000000. 000000. 0. 0074-55 40-2516 00000000.... 0. 0. 0000000000000000. 00000. 0. 000074-55 40-2523 0000. 0... 0. 0000000... 0. 00000000000000000. 00074-92 40-2534 0000000000000. 0000.. 0. 0000000000000000000000074-92 40-25350 00000000.... 0000... 000. 000000000. U74-100, U74-101 40-27010 . 0.. 0. 00. 0...... 000. 00. 0. 0. 0. 0. 0.. U74-113 40-2703 0. 00. 000. 00. 000 000000. 000. 00.. 0. 0000. 0. 00U74-113 Ch. 40-29 0000000000.. 000000 00000000000. 00. 0074-24, 74-39 40-2907 00. 00... 000000. 0. 0000000. 00. 00. 00. 000. 000000074-73 40-2917 et seq.. 000000. 000... 0.. 00000000000000. 074-39, 74-73 40-29200 0000. 00000. 0000000. 00000.. 0. 000. 00000000000074-39 40-2921 .. 0. 0. 00.. 0.... 000. 0. 0. 0. 000000000000000000074-39 40-3501 et seq.. 000. 0.. 0... 000000. 00. 0000. 000. 0000. 0074-111 40-3502 0. 0000.. 000. 0. 0. 0.... 0. 0.......... 74-109

539

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SECTIONS

OP. No.

40-3505 ........................................... U74-61 40-3512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-6 40-3514 ........................................... U74-61 40-3526 ........................................... U74-61 40-3551 ............................................ 74-111 40-3597 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 74-46 40-35112 ............................................ 74-32 40-35162.2 ........................................... 74-6 40-35165 ........................................... 74-140 40-35192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-39 40-35212 ...................................... 74-32, 74-93 40-35212 to 40-35220 ..................... 74-71, 74-80, 74-82 40-35221 ........................................... 74-111 Ch. 40-36 .................................... 74-78, 74-109 Ch. 40-37 .......................................... 74-111 Ch. 40-38 ............................ 74-102, 74-103, 74-124 40-3802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... 74-103 40-3803 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... 74-103 40-3806 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-103 41A-3113 .......................................... 74-136 42-610.1. .......................................... 74-105 Ch. 43-22 ........................................... 74-45 45-111 .............................................. 74-45 46-805 ............................................ U74-62 47-101 .............................................. 74-96 47-516 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-9 47-1302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-13 47-1302.1 .......................................... U74-13 53-106 ............................................ U74-99 Ch. 53-2 ........................................... U74-99 53-202 ............................................. U74-99 53-204 ............................................ U74-34 Ch. 53-3 ........................................... U74-99 53-301 et seq....................................... U74-99 53-501 .............................................. 74-33 53-9902 ........................................... U74-99 53-9903 ........................................... U74-99 53-9905 ........................................... U74-99 54-652 .............................................. 74-22 Title 56 ............................................ 74-113 56-102 .............................................. 74-48 56-306 .............................................. 74-51

540

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SECTIONS

OP. No.

Ch. 56-4 ............................................ 74-48 56-401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 74-48 56-405 .............................................. 74-48 56-407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ 74-48 56-408 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .................. 74-48 56-704 .................................. '" ........... 74-81 Ch. 56-8B ........................................... 74-83 56-840b ............................................. 74-83 56-1005 ............................................. 74-51 56-1718 ............................................ 74-110 Ch. 56-18 .......................................... 74-110 56-1802 ............................................ 74-110 56-1806 ............................................ 74-110 56-1813 ............................................ 74-110 56-1815 ............................................ 74-110 56-J819 ............................................ 74-110 56-1823 ............................................ 74-110 56-1824 ............................................ 74-110 56-1828 ............................................ 74-110 56-1830 ............................................ 74-110 56-2410 ............................................. 74-48 56-2431 ............................................. 74-81 56-2432 ............................................. 74-81 56-2437 .......................................... U74-114 56-2701 ............................................. 74-81 56-3305 .............................................. 74-113 56-3307 ............................................ 74-113 56:-3308 ............................................ 74-113 Ch. 56-34B ................................. 74-86, U74-114 56-3402b ............................................ 74-86 58-738 ............................................. 74-106 59-112 .............................................. 74-52 59-319 ............................................ U74-37 Ch. 62-1 ............................................. 74-87 62-102 .............................................. 74-87 Ch. 67-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-104 Ch. 67-24 .......................................... 74-108 68-101 ............................................. U74-16 68-416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-112 68-416.1 ........................................... 74-112 68-1502 ............................................. 74-31 68-1603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-31

541

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

OP. No.

68-1625 ........................................... U74-67 68-1628 ............................................. 74-74 68-1701 (a) .......................................... 74-31 68-1722 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-31 68-1723 ............................................. 74-31 68-1724 ...................................... 74-99, 74-100 68-1725 (c) .......................................... 74-31 68-1729 ............................................ 74-112 Ch. 68-21 ........................................... 74-74 68-2101 ............................................. 74-74 68-2102 ............................................. 74-74 68-2104 ............................................. 74-74
68-2108 to 68-2110 ................................... 74-74
68-2111 ............................................. 74-74 68-2112 ............................................. 74-74 68-2303 ............................................. 74-99 68-9927 ........................................... U74-78 Title 68A ................................. U74-94, U74-102 68A-101 ........................................... 74-112 68A-107 ........................................... 74-112 68A-308 ........................................... U74-94 68A-902 ................................... U74-78, U74-102 68A-1001 ........................................... 74-99 68A-1002 ........................................... 74-99 68A-1003 ........................................... 74-99 68A-1004 ........................................... 74-99 68A-1502 .......................................... U74-94 69-201 .............................................. 74-90 69-301 ........................................... U74-114 Ch. 69-8 ............................................ U74-9 69-902 ............................................ U74-75 Ch. 69-15 ................................. U74-88, U74-112 69-1504 .......................................... U74-112 69-1509 .......................................... U74-112 69-1510 ............................................ U74-5 74-104 ..................................... 74-139, U74-34 Ch. 74-3 ............................................ 74-38 74-9902 ............................................. 74-38 76-101 ............................................. U74-7 76-103 ............................................. U74-7 76-201 ............ ~ .............................. U74-103 Ch. 77-3 ...................................... 74-6, 74-157

542

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SEcTIONS

OP. No.

77-305 ............................................... 74-6 77-306 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... 74-6 77-307 ............................................... 74-6 77-309 ......... 74-116, 74-125, 74-129, 74-139, 74-142, U74-105 77-310 ............................................ U74-97 77-312.1 ........................................... 74-157 77-318 ............................................. 74-157 77-320 ........................................... U74-107 77-326 ............................................. 74-146 77-345 to 77-360 .................................... 74-100 77-509 ............................................. 74-131 77-511 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-22, 74-131 77-512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-131 77-513 .............................................. 74-22 77-516 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-131 77-521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-131 77-525 ............................................... 74-22 77-533 ............................................. 74-147 77-534 ............................................. 74-147 77-535 ............................................. 74-131 77-539 ............................................. 74-131 77-541 .............................................. 74-22 Ch. 77-5A ............................................ 74-6 Ch. 77-8 ........................................... 74-139 Ch. 77-9 ........................................... 74-157 77-904 ............................................. 74-157 77-9914 ............................................. 74-22 Ch. 78-9 ........................................... U74-72 78-901 .............................................. 74-45 Ch. 78-10 .................. U74-28, U74-53, U74-72, U74-109 78-1001 ............................. U74-8, U74-28, U74-53 78-1004 .................................... U74-12, U74-72 78-1006 ........................................... U74-72 78-1007 ..................................... U74-8, U74-50 78-1009 ........................................... U74-72 78-1011 ........................................... U74-45 78-1015 (g) ....................................... U74-109 78-1018 ........................................... U74-50 78-1020 ........................................... U74-82 78-1021 ............................................ U74-8 Ch. 78-12 .................................. U74-48, U74-51 78-1201 ........................................... U74-51

543

GEORGIA CODE ANNOTATED SECTIONS-Continued

ConE SEcTIONS

OP. No.

78-1206 .................................... U74-48, U74-51 79-205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-117 79-206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-117 Ch. 79-5 ............................................ 74-33 Title 79A ........................................... 74-17 79A-102 (k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-17 Ch. 79A-4 ........................................... 74-17 79A-402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-4 79A-410 ........................................... U74-63 Ch. 79A-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-17 79A-502 .............................................. 74-4 79A-510 ........................................... U74-32 79A-511 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-32 79A-812 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-79 79A-9917 .......................................... U74-79 81-1017 ........................................... U74-90 Title 81A .......................................... U74-31 84-207 (a) ............................................ 74-4 84-303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 74-4 84-709 ............................................... 74-4 84-809 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74-4 Ch. 84-9 ...................................... 74-50, 74-59 84-901 .............................................. 74-50 84-902 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .................. 74-59 84-906 ........................................ 74-50, 74-59 84-907 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 74-50 84-907.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74-50' 74-59 84-910 .............................................. 74-59 84-914 .............................................. 74-59 84-925 ............................................... 74-4 84-927 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 74-4 84-1022 .............................................. 74-4 Ch. 84-12 ........................................... 74-59 84-1207 ............................................. 74-59 84-1208 ............................................. 74-59 84-1411 .............................................. 74-4 84-1506 .............................................. 74-4 84-2103 ............................................. 74-77 84-2111 ............................................. 74-77 84-2122 ............................................. 74-76 84-2140 ............................................. 74-77 84-3107 .............................................. 74-4

544

GEORGIA CODEANNOTATED SECTIONS-Continued

ConE SEcTIONS

OP. No.

Ch. 84-40 ................................... 0.. 00.. 0.74-2 84-4001 ........................ 0..... 0. 0...... 0.. 0... 74-2 84-5007 .............. 0. 0...... 00. 0........ 000. 0...... 74-4 84-5103 ............ 0......... 0..... 0. 0. 000.. 0. 0.. 0.. 74-51 84-51040 0.. 0...... 0........ 0..... 0. 00. 0........... 0. 74-51 84-51050 0............... 000... 0. 0. 0...... 0......... 0074-51 Ch. 84-57 ........ 0.... 0.................. 0. 0.. 74-7, 74-152 84-5716 ................. 0....... 00.. ' ... 0... 0.. 74-7, 74-64 Ch. 84-58 0..................... 00........... 074-49, U74-17 Ch. 84-61.. 00. 0..... 0.............. 0000000. 0074-60, U74-17 84-6111 ... 0..... 0................................. U74-17 84-6117 ................... 0........................ 074-60 Ch. 84-65 . 0...................................... 0.74-148 84-65150 0..................... 0.......... 0...... 0.. 74-148 Ch. 84-66 ............................. 0. 00. 0. 0... 0074-107 84-6604 ............................................ 74-107 Ch. 85-8 .................................. 0. 0... 0... 74-40 Ch. 85-20 ......... 0........ 0. 0......... 74-30, 74-68, 74-108 85-2002 (c) 0......................................... 74-30 85-20110 ............... 0..................... 0... 0.. 74-68 85-2013 (i) .. 0. 0........ 0.......... 0. 0. 0. 0.... 0. 0.. 0.74-30 Ch. 87-2 .. 0... 00............ 0.... 0. 0. 000.. 0.. 000... U74-55 87-202 .. 0... 0.................... 0. 0. 0. 0. 0000.... 0U74-55 87-701. 0. 0........ 0..... 00........ 0.... 00....... 0.U74-71 87-701a .... 0............ 00..... 0000...... 0....... 0U74-71 Title 88 0000.................... 000....... 0000..... 0074-40 88-1080 0...... 0.... 0. 0..... 0000..... 0.. 00.. 00. 000. 74-89 88-1150. 0..... 0. 000... 0000... 0. 00. 00. 00.. 000. 074-15, 74-17 Ch. 88-2 ... 0. 0. 0.. 0. 000. 00. 00000. 0. 000000.. 000000.. 074-19 88-2010. 0. 000. 0.... 0. 0. 00... 00... 0.. 00.. 0000... 0.... 74-89 88-203 ... 00. 000... 00..... 0. 0..... 0. 00. 0. 0... 0.74-19, 74-89 88-211 .. 000....... 0........ 000... 0. 0...... 0... 74-19, 74-89 88-2150 0... 00000000. 0... 00. 00.. 00000. 0000. 000074-19, 74-89 Ch. 88-4 .... 0........... 0.. 000.. 0..... 00. 0000. 0. 0.U74-85 88-404.7 00........... 0. 00.. 0.. 00... 0. 00. 000. 000... 0U74-85 88-405.4 000... 0.... 0.. 00.. 0...... 0. 0. 0.. 0000. 00.. 0.U74-97 Ch. 88-5 0000..... 0.... 0.......... 0... 000. 0. 0... 000.U74-86 88-501. 0. 00. 00....... 0.... 00.. 0. 00. 0.... 0000074-50, 74-131 88-502.10 0000........... 0000.. 0.... 0.. 0.. 0. 0.. 0. 0.. U74-86 88-507.1 to 88-507.3 ...... 0.. 0.... 0. 0. 0...... 0. 0.... U74-25 88-507.2 0... 0.. 00........ 0. 0.. 000. 0000.. 0. 0. 000. 0. 074-131 88-507.3 .... 00. 0.... 0.. 0... 00.......... 0. 0000. 0.. 0.74-131

545

GEORGIA CODE ANNOTATED SECTIONS-Continued

CobE SECTIONS

OP. No.

Ch. 88-17 .... ........................................ U74-99

88-1701 .............................................. U74-99

88-1703.............................................. U74-99

88-1708 ........................................... U74-99

88-1708 to 88-1714 .................................... 74-33

88-1709 (d) .......................................... 74-33

88-1719 U74-99 o o o o o o o o o o o o o' o o

88-1721 to 88-1724 ................................... 74-33

88-1723 ............................................ U74-99

88-1724 ............................................ U74-99

88-1727 ............................................... U74-99

88-2603 ............................................. U74-4

88-2603.1. U74-4 o 'o 'o o o o o o o ' o ' o o o

88-2603.2 U 74-4 o o o o o o o 'o o ' ' o ' o o o o o 89-101 ......................... 74-117, 74-128, 74-142, U74-1

89-103 .................................. 74-42, 74-90, U74-1

89-202 .............................................. U74-29

89-501 .............................. U74-29, U74-57, U74-80

89-504 ............................................. U74-29

89-723 et seq......................................... 74-57

Ch. 89-8 74-41 o o o o o o o o o 'o o o o , o o o o o

89-804 .............................................. 74-41

89-810 ....................................... 74-41, 74-145

89-811 ....................................... 74-41, 74-145

89-812 ..................................... ; ....... 74-118

89-813 .................. ' ... ' ...................... 74-118

89-903 ........................... 74-11, 74-61, 74-98, 74-126

89-913 ............................................. 74-156

89-913 to 89-918 ..................................... 74-56

89-914 .............................................. 74-56

89-917 .............................................. 74-56

89-920 ............................................. U74-15

89-926 ..............................-.............. U74-76

89-934 ............................... ' ............. 74-117

Ch. 89-12 .................................... 74-81, U74-72

89-1203 ............................................. 74-81

89-1408 .................. ' . . . . . . . . . . . . . . . . . . . . . . . . .. 74-92

89-9909 ............................................. U74-7

89-9910.............................................. U74-7

91-117 o' o o o o' o' o 91-102a . . . 0'. o' o'

74-158 o o o o 74-78 '

91-112a ............................................. 74-78

546

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SECTIONS

OP. No.

91-403a ............................................. 74-78 92-145.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-136 92-201 ............................................ U74-27 92-238.1 to 92-238.5 ................................ U74-83 92-238.4 ........................................... U74-73 Ch. 92-8 ........................................... U74-56 92-801 ............................................ U74-56 92-802 ............................................ U74-56 92-805 ............................................ U74-56 Ch. 92-34A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-136, 74-157 92-3402a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-29, 74-157 92-3403a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-29, 74-157 92-3415a ........................................... 74-157 92-3701 .................................... U74-47, U74-77 92-4004 ........................................... U74-38 92-4101 ........................................... U74-38 92-5102 ........................................... U74-73 92-5304 ............................ U74-24, U74-42, U74-87 92-5703 ........................................... U74-38 92-6201 ........................................... U74-73 92-6912 ........................................... U74-46 92A-128 ............................................ U74-3 92A-129 ....................................... 74-80, 74-82 92A-201 ............................................ 74-135 92A-208 . . . . . . . . . . . . . . . . . . . . . . . . 74-71, 74-85, 74-114, 74-135 92A-216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-71 92A-226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-135 92A-234 ........................................... 74-140 92A-305 ............................................ 74-71 92A-306 ............................................ 74-71 92A-401 .................................... 74-101, U74-49 92A-429 ............................................ U74-3 92A-431. ........................................... U74-3 92A-445 ............................................ U74-3 92A-456 ............................................ U74-3 92A-603 ............................................ U74-3 92A-604 ............................................ U74-3 92A-608 ............................................ U74-3 92A-612 ............................................ U74-3 92A-616 ............................................. 74-86 Ch. 92A-11 ......................................... 74-101 92A-1101 ........................................... 74-101

547

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SECTIONS

OP. No.

92A-1102 ........................................... 74-101 92A-1109 ........................................... 74-101 92A-1401 ........................................... 74-91 92A-2102 (d) ....................................... 74-148 92A-9908 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-78 92A-9928 ............................................ 74-91 93-307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-69 Title 95A .......................................... 74-144 95A-104 ............................................ 74-144 95A-201 ...................................... 74-5, U74-94 Ch. 95A-3 ........................................... 74-39 95A-302 ........................................... 74-144 95A-503 ........................................... U74-94 Ch. 95A-6 ......................................... U74-56 95A-602 ........................................... U74-56 95A-826 ........................................... U74-66 95A-827 ........................................... U74-66 Ch. 95A-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-134 95A-904 ........................................... U74-94 95A-916 ............................................ 74-134 95A-923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-134 95A-936 ............................................ 74-144 95A-955 ........................................... U74-54 95A-1201 ........................................... 74-66 95A-1208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-66 95A-1238 (c) ......................................... 74-5 95A-1241 ............................................ 74-5 95A-1244 ............................................ 74-5 95A-1245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-5 Ch. 96-12 .......................................... 74-106 Title 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-75, 74-150, 74-153 Ch. 97-1 ........................................... 74-110 97-102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-75 97-103 .............................................. 74-75 97-105 ....................................... 74-75, 74-110 97-108 ............................................. 74-110 97-109 .............................................. 74-75 97-301 ............................................. 74-110 Ch. 99-1 ...................................... 74-19, 74-40 Ch. 99-2 ............................................ 74-40 99-209 ....................................... 74-88, 74-139 99-211 ............................................. 74-139

548

GEORGIA CODE ANNOTATED SECTIONS-Continued

ConE SEcTIONS

OP. No.

99-214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-139 99-222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-139 Ch. 99-5 ............................................ 74-19 99-805 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-157 Ch. 99-9B ...... ,...... ,............................... 74-38 99-902b . . . . . . . . . . . . . . . . . . . . . . . . . . . .................. 74-38 99-903b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .............. 74-38 99-904b ............................................. 74-38 99-916b ............................................. 74-38 Ch. 99-21 ......................................... U74-18 Ch. 99-31 ........................................... 74-17 Ch. 100-1 .......................................... 74-140 100-105 ............................................ 74-118 100-108 ............................................ 74-118 102-102 . . . . . . . . . . . . . 74-75, 74-79, 74-81, 74-93, 74-106, 74-113,
74-127, U74-82 102-102 (1) ............ 74-2, 74-5, 74-8, 74-22, 74-154, U74-37,
U74-95, U74-109 102-102 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-13 102-102 (9) .............. 74-22, 74-51, 74-148, 74-154, U74-101 102-103 ....................................... 74-51, 74-66 102-104 .................................... 74-141, U74-74 102-109 ............................. 74-17,, 74-152, U74-114 102-111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-73, U74-74 108-408 ............................................. 74-51 109A-2-106 ........................................ 74-105 109A-2-319 ....................................... 74-105 109A-2-401 ....................................... 74-105 Ch. 111-5 ........................................... 74-18 111-502 (d) .......................................... 74-18 111-505 .................................... ,......... 74-18 111-532 ...................................... ,....... 74-18 113-1101 .......................................... U74-35 113-2307 .......................................... U74-35 113-2308 .......................................... U74-35 113-2310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-35 113-2311 .......................................... U74-35 Title 114 ............................................ 74-19 114-101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-20 114-714 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,o 74-22 114-717 ............................................. 74-62 114-9903 ............................................ 74-22

549
INDEX
OP. No.
ACCIDENT REPARATIONS ACT. See Motor Vehicle "No Fault" Act.
AD VALOREM TAXES. Assessments, time when made, and how long effective .... U74-73 Municipal corporations, by, see Municipal Corporations.
ADEQUATE PROGRAM FOR EDUCATION IN GEORGIA. Teacher allotment ................................... 74-154
ADMINISTRATIVE PROCEDURE. Firemen's Pension Fund not governed by
Ga. Code Ann. Title 3A ......................... U74-72 Regulations, see Rules and regulations, infra. Rules and regulations, administrative agency
bound by its own ................................ 74-34
ADMINISTRATIVE SERVICES, STATE DEPARTMENT OF. Communications, Division of, see Communications, Division of. Contracts beyond fiscal year .......................... 74-115 Purchasing and Supplies Division, see Purchasing and
Supplies Division.
ADMINISTRATORS AND EXECUTORS. Discharge, application for prior to six months after
qualification ................................... U74-35
ADVERTISING. Outdoor devises, compensation to owners where taken
or destroyed .................................... 74-134
ADVISORY COUNCIL ON VOCATIONAL EDUCATION. Transfer to Office of Planning and Budget
not authorized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-61
AGE OF PERSONS. See Employees Retirement System. Correctional officers ................................. 74-138 Criminal responsibility ................................ 74-58 Marriage, for ...................................... U74-34
AGING, OFFICE OF. Director, how placed in classified service of
merit system .................................... 74-32
AGRICULTURE. Warehouses, licenses for persons not storing
agricultural products ............................. 74-18

550

INDEX

OP. Ko.

AGRICULTURE, COMMISSIONER OF. Livestock marks, brands and tattooes, purging lists
and canceling .................................... 74-87

AIRPORTS. State Airport System Plan, duties of Department of
Transportation, as to ............................. 74-39 Transportation Department, State, duties as to
Airport System Plan .............................. 74-39

ALBANY, CITY COURT OF. Record, is court of. . . . . . . . . . . . . . . . . . . . . . . . .......... U74-31

ALCOHOLICS. Commitment to facilities for treatment ................ U74-85 Sentences to treatment facilities not authorized ......... U74-97

ALIENS. See Citizenship.

ANIMALS. See Livestock.

APPOINTMENT OF COUNSEL. Parole revocations, in ................................ 74-119

APPROPRIATIONS. Amendment, General Appropriations Act for fiscal year
not amended by General Appropriations Act for subsequent year ............................ 74-53, 74-63 Contracts by state and agencies beyond fiscal year, see Contracts. Governor's emergency fund, when used in lieu of. ....... 74-107 Transfer, see Planning and Budget, Office of. Veto by Governor ........................... U74-36, U74-98

ARCHITECTS. Landscape, see Landscape Architects.

ARCHIVES AND HISTORY, DEPARTMENT OF. Records Management Officer, State, records,
disposition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-3

AREA PLANNING AND DEVELOPMENT COMMISSIONS. Boundaries not to be violated by Community
Action Agencies .................................. 74-24 Funds from Department of Community Development,
responsibility for ................................. 74-73

ARMED FORCES. See Military Service.

INDEX

551

OP. No.

ATLANTA, CITY OF. Solicitors of municipal court, duties not affected by
charter amendment ............................ U74-106
ATTORNEY AND CLIENT. Appointment, see Appointment of Counsel. Legal services insurance, legality of ..................... 74-48 Pardons and Paroles Board, practice before ............. 74-22 Public defender, criminal practice prohibited ........... U74-60
AUTHORITIES. Development, see Development Authorities. Notes, promissory, issuance, by ..................... U74-112 Taxation by Federal Government ................... U74-111 Workmen's compensation for employees,
supplementing ................................. U74-76 World Congress, see World Congress Center.

BACON COUNTY. Small claims court, arrest warrants issued by judge ..... U74-14
BAKER COUNTY. Social security for teacher aides and paraprofessional
personnel ...................................... U74-18
BANKING AND FINANCE, DEPARTMENT OF. See Banks and Banking.

BANKS AND BANKING. Branch banks-
Office of bank located in same county as principal office is "bank office," not "branch bank" ......... 74-35
Commissioner, Banking and FinanceLoans, personal, from national banks .................. 74-46 Reports of examinations, furnishing to FDIC ........... 74-1
Corporations, owning stock, in ........................ 74-121 Data processing equipment, powers as to . . . . . . . . . . . . . . . 74-121 Depositories, public, as .............................. 74-118 Examinations, reports furnished to FDIC ................ 74-1 Holding company, trustees of employee profit-sharing
plan, as ........................................ 74-151 Intangible tax ...................................... 74-136 Leasing powers ..................................... 74-121 Loan production offices, maintenance by banks .......... 74-12 Powers of banks, incidental, to be exercised
according to statute ............................. 74-121 Reorganization, Trust Company of Georgia, legality
of proposal ..................................... 74-120

552

INDEX

Or. No.

BANKS AND BANKING-Continued. Savings and loan associations, see Federal Savings and
Loan Associations. Stock, authorized but unissued, regulated certificated
bank may not set up ............................ 74-149 Unclaimed property, see Unclaimed Property Act.
BASTARDS. Support of, how administered ......................... 74-38
BIDS. Services, health and medical to State Department
of Education .................................... 74-56
BIDS, COMPETITIVE. Necessity and requirements, for ........................ 74-16
BLIND, FACTORIES FOR. Correctional Industries Administration selling
prisoner-made products, to ....................... 74-157
BONDS. Peace, see Peace Bonds. Proceeds, of, investment ............................ U74-71 School bond elections, how financed ................... U74-55
BUDGET BUREAU, STATE. After 1973, see Planning and Budget, Office of.

BUDGETS. See Planning and Budget, Office of.
BUREAU OF INVESTIGATION. See Georgia Bureau of Investigation.
BURKE COUNTY DEVELOPMENT AUTHORITY. Purposes for projects ................................ U74-58
CAMPAIGN FINANCING DISCLOSURE ACT. See Elections.
CEMETERIES. Perpetual care, investment of trust funds ................ 74-51

CENSUS. Advance report properly relied upon in making
highway allocations .............................. 74-66

CENTRAL STATE HOSPITAL. Search of vehicles on grounds . . . . . . . . . . . . . . . . . . . . . . . . . . 74-15

CERTIFICATES OF DEPOSIT. Bond proceeds not invested, in . . . . . . . . . . . . . . . . . . . . . . . U74-71

INDEX

553

OP. No.

CERTIFIED PUBLIC ACCOUNTANTS. Citizenship requirements for licensure ................... 74-4

CHARITABLE ORGANIZATIONS. Medical services nonprofit corporations, as ............. 74-110 Securities Act, when not subject to .................... 74-110

CHILD SUPPORT. Bastards, of ......................................... 74-38 Probation, funds paid as condition ..................... 74-38

CHILDREN AND YOUTH, STATE DIVISION FOR. Juvenile offenders, see Juvenile Offenders.

CITIZENSHIP. Employees, public, validity of requirements as to ........ 74-10 Professional license requirements based upon ............. 74-4

CITY COURTS. Record, when court of .............................. U74-31

CIVIL RIGHTS. Loss of by conviction of crime, see Elections.

CLARKE COUNTY. Juvenile court judge, salary fixed by statute, not
changed by superior court judge .................. U74-68 Ordinary, compensation, of. ......................... U74-40

CLERKS OF COURTS. Superior court, see Superior Court Clerks.
COLLEGES AND UNIVERSITIES, PRIVATE. Certification by State Board of Education . . . . . . . . . . . . . . 74-141 Degrees-
Issuance ................................... 74-94) 74-141 Statutory requirements for issuance ................. 74-123 Diplomas, issuance ............................ 74-94, 74-141 Statutory requirement for issuance .................. 74-123 Education, State Board of, authority respecting .......... 74-94
COMMISSIONERS, COUNTY. See County Commissioners.
COMMON DAY OF REST ACT. General consideration ................................ 74-106
COMMUNICATIONS, DIVISION OF. Director in unclassified service of merit system ......... 74-111
COMMUNITY ACTION AGENCIES. Boundaries of Area Planning and Development
Commissions not to be violated .................... 74-24

554

INDEX

OP. No.
COMMUNITY CENTERS. See Prisons and Prisoners.
COMMUNITY DEVELOPMENT, STATE DEPARTMENT OF. Funds to Area Planning and Development Commissions,
responsibility for ................................. 74-73
COMPENSATION. See Officers and Employees, Public ; Salaries.
CONFLICTS OF INTEREST. See Officers and Employees, Public. Employment, see Officers and Employees, Public. Separation of powers, see Constitutional Law.
CONSTABLES. Number limited to two per militia district ............ U74-110
CONSTITUTIONAL AMENDMENTS PUBLICATION BOARD. Powers and duties ....... , ........................... 74-127
CONSTITUTIONAL LAW. Amendments-
Constitutional Amendments Publication Board, functions ..................................... 74-127
Procedure, for, generally ........................... 74-127 Citizenship requirements for professional licenses,
validity .......................................... 74-4 Contracts, state and agencies, beyond fiscal year, for,
see Contracts. Funds of state, see State of Georgia. Funds, public, donations from, prohibited ............. U74-59 Retroactive pay raises for officials prohibited ........... U74-41 Separation of powers, World Congress Center improperly
constituted in that it has members from Executive and Legislative Departments ..................... 74-109 Supremacy Clause, see Statutes. Tax exemptions, see Taxation.
CONTRACTS. Municipal corporations, see Municipal Corporations. State-
Additional compensation ............................ 74-37 Beyond fiscal year, for ............................. 74-115
CONTROLLED SUBSTANCES ACT. See Drugs.
CORPORATIONS. Banks, see Banks and Banking. Banks owning stock, in .............................. 74-121

INDEX

555

OP. No.

CORPORATIONS-Continued. Colleges, see Colleges and Universities, Private. Foreign-
Out-of-State Land Sales Act, see Out-of-State Land Sales Act.
Medical services, see Medical Services Nonprofit Corporations.
Municipal corporations not to be members or stockholders ..................................... 74-41
Transfers of property between divisions not sales, as ..... 74-105 Universities, see Colleges and Universities, Private.

CORRECTIONAL INDUSTRIES ADMINISTRATION. Blind, factories for, sales to ........................... 74-157

CORRECTIONAL INSTITUTIONS. See Prisons and Prisoners.

CORRECTIONS, STATE BOARD OF. Director of Corrections-
Annual leave not accrued ............................ 74-6 Offender Rehabilitation, Commissioner, of, ex officio ..... 74-6 Salary not fixed by board ............................ 74-6

CORRECTIONS, STATE DEPARTMENT OF. See Prisons and Prisoners.
Appropriations for ................................... 74-53 Community centers, medical expenses of persons
assigned to ..................................... 74-129 Juvenile offenders, custody of. ........................ 74-139 Officers hired at age 18 .............................. 74-138

COUNTIES.
Commissioners, see County Commissioners. Criminal sanctions not permitted ..................... U74-96 District attorneys-
Defense in civil actions ............................ U74-15 Payment of office expenses . . . . . . . . . . . . . . . . . . . . . . . . . U74-10 Elections, see Elections. Funds not deposited in savings and loan associations .... 74-145 Health agencies, workmen's compensation for
employees ....................................... 74-19 Home rule, see Home Rule. Insurance for elected officers ......................... U74-77 Liability in civil matters, motorist striking county
garbage container beside road .................... U74-66 Licenses-
State having issued, local unit cannot require ........... 74-7

556

INDEX

OP. No,

'COUNTIES- Continued. Officers, fringe benefits as extra compensation . . . . . . . . . . U74-77 Planning Agency, State, see Planning Agency, State. Retirement of elected officers ......................... U74-77 Retroactive pay raises prohibited ..................... U74-41
RoadsGarbage containers placed beside, liability when motorist collides with ......................... U74-66
School bond elections, how financed ................... U74-55 Sheriff, see Sheriffs. Water, control and rates under city-county authority .... U74-4 Workmen's compensation, extending coverage to
elected officials ................................. U74-20
Zoning authority .................................... U74-9

COUNTY COMMISSIONERS. ''Incumbent,'' when listed as, on ballot ................ U74-57
Vacancy in office ................................... U74-22

COURT OF APPEALS. Judges-
Disability retirement, eligibility ................... U74-100 Retirement, optional. ............................ U74-101

COURT REPORTERS. Secretary to superior court judge acting as ............. U74-1 State courts, in ..................................... U74-33

COURTS. See City Courts; Court of Appeals; Justices of the
Peace; State Courts; Superior Courts; Supreme Court. See also specific lower courts.
Record, of, what constitutes . . . . . . . . . . . . . . . . . . . . . . . . . U74-31

CREDIT UNIONS. Depositories for public funds, are not ................... 74-41 Municipal corporations not members or shareholders ..... 74-41 Sales and use taxes .................................. 74-136
Exempt from, when ............................... 74-136

CRIME LABORATORY, STATE. Educational incentive pay not authorized for
employees ...................................... 74-71 Reorganization, effect of .............................. 74-71

CRIMINAL LAW.
Age of criminal responsibility .......................... 74-58 Drugs, violations of law, see Drugs.

INDEX

557

OP. No.

CRIMINAL LAW-Continued. First Offenders Law, persons on probation under, not
deprived of right to vote or other civil rights ........ 74-26 Juvenile offenders, see Juvenile Courts; Juvenile Offenders. Municipal ordinance upon same subject-matter as state
law, effect ..................................... U74-81 Practice by public defender prohibited ................ U74-60 Probable cause, accusation drawn only upon ........... U74-70 Voting rights on conviction, see Elections.

CRIMINAL PROCEDURE. Accusation, plea not accepted prior to ................. U74-6 Accusation to be drawn only upon probable cause ...... U74-70 Dead docket, procedure as to ........................ U74-70 Guilty plea, nolo contendere distinguished ............. U74-67 Juvenile offenders, see Juvenile Courts; Juvenile Offenders. Nolo contendere, guilty plea distinguished ............. U74-67 Sentence, change of law transferring function from
jury to judge, crimes committed before effective date .................................. U74-74

DAY OF REST. See Common Day of Rest Act.

DEBTS. Credit insurance, "add-on" transaction as refinancing .... 74-113

DECATUR COUNTY. Education, county board employee not eligible to
become member of board ........................ U74-69

DEEDS. Delivery, what constitutes under Land Sales Act ....... U74-17

DEFENDERS, PUBLIC. Practice of law, by, civil permitted, criminal
prohibited ..................................... U74-60

DEPOSITORIES, PUBLIC. Credit unions not qualified ............................ 74-41 Savings and loan associations, as not, for
county funds ................................... 74-145 Securities required .................................. 74-118 State-chartered bank, as ............................. 74-118

DETECTIVES, PRIVATE. Peace officers exempt from law . . . . . . . . . . . . . . . . . . . . . . . . 74-148

DEVELOPMENT AUTHORITIES. Notes, promissory, issuance ......................... U74-112

558

INDEX

OP. No.

DEVELOPMENT AUTHORITIES-Continued. Purposes for projects ............................... U74-58 State funds not used for county ........................ 74-11 Tax exemption, of, does not extend to private
corporations with leasehold interests, under .......... U74-5

DISPOSITION OF UNCLAIMED PROPERTY ACT. See Unclaimed Property Act.

DISTRICT ATTORNEYS. Assistants, compensation .............................. 74-95 Defense in civil actions, how furnished ................ U74-15 Emeritus, running for office of superior judge as
incumbent D.A. does not forfeit status ............ U74-48 Expenses of office, payment by counties ............... U74-10

DRAINAGE. Landscape architects, authority to prepare plans, for ...... 74-2

DRIVERS LICENSES. Examiners, see Safety, State Department of Public. Records, disposition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-3 Small trucks, drivers of, for .......................... U74-49 Suspension or revocation-
Judge, by, on finding one guilty of drunken driving ... U74-78 Training of drivers, see Drivers Training Schools.

DRIVERS TRAINING SCHOOLS. Exemption from law of certain schools . . . . . . . . . . . . . . . . . 74-101 Regulation of schools training applicants for class 3,
4 and 5 licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-101

DRUG ABUSE SERVICES SECTION. Deputy director, merit system status and compensation . . .74-34

DRUG ADDICTS. Commitment to facilities for treatment ................ U74-85 Sentences to treatment facilities not authorized ......... U74-97

DRUGS. Addicts, see Drug Addicts. Controlled Substances Act-
Attempt to violate ................................ U74-79 Conspiracy to violate ............................. U74-79 Driving under influencePenalty ........................................ U74-102 Probation ...................................... U74-102 State and political subdivisions, regulatory statutes
not applicable to ................................. 74-17

INDEX

559

OP. No.

DRUNKEN DRIVING. Drivers license revocation, judge, by .................. U74-78 Penalty, for ....................................... U74-102 Probation ........................................ U74-102

EARLY CHILDHOOD DEVELOPMENT PROGRAM. Appendectomy for child funds not used, for ............. 74-61

EDUCATION. Adequate Program for Education in Georgia, see
Adequate Program for Education in Georgia. Colleges, see Colleges and Universities, Private. Drivers training, see Drivers Training Schools. .Minimum Foundation Program, see Minimum
Foundation Program. Professional Practices Commission-
Contracts of, not signed by State Board of Education or Superintendent of Schools .................... 74-84
Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74-84 Universities, see Colleges and Universities, Private.

EDUCATION, COUNTY AND LOCAL BOARDS OF. Bonds-
Cost of school bond election, furnishing ............. U74-55 Employees not to serve as members of ................ U74-69 Foreign school systems, no contracts with to educate
Georgia children . . . .............................. 74-98 Funds-
Appendectomy for child not paid from Early Childhood Development funds ................... 74-61
Dues to professional organizations .................... 74-72 Travel expenses .................................... 74-67 Out-of-state, see Foreign school systems, supra. Powers, of ......................................... U74-65 Property, acquisition for general construction and
resale not permitted ............................. 74-126 Sick leave for teachers, expanding...................... 74-13 Superintendents of schools, county, relation to ......... U74-65 Travel expenses ...................................... 74-67

EDUCATION, LOCAL BOARDS OF. See Education, County and Local Boards of.

EDUCATION, STATE BOARD OF. Colleges and universities, private, regulation of .......... 74-94 Professional Practices Commission contracts not
signed, by ....................................... 74-84

560

INDEX

OP. No.
EDUCATION, STATE BOARD OF-Continued. University System of Georgia, authority does not
extend, to ....................................... 74-94
EDUCATION, STATE DEPARTMENT OF. Advisory Council on Vocational Education not to be
transferred by Governor . . . . . . . . . . . . . . . . . . . . . . . . . U74-61 Regent of University System employed for health
and medical services . . . . . . . . . . . . . . . . . . . . . . . . . . .... 74-56
ELECTIONS. Absentee ballots counted as voted for registration
purposes only where properly returned and cast ..... 74-133 Absentee ballots, procedure as to ....................... 74-54 Campaign Financing Disclosure Act-
Contributions, what constitute ...................... 74-102 Qualification fees not expenses subject to ............. 74-103 Services, voluntary, to candidate, not covered ........ 74-124 Sureties or co-signers of notes of candidate as subject .... 74-102 CandidatesIncumbents, when listed as ........................ U74-57 Primary ballots, names not removed from by State
Election Board or Secretary of State . . . . . . . ....... 74-96 County boards of-
Main office not to be moved outside county site ....... 74-25 Member as member of city council ................... 74-90 Crime, see Voters, infra. District managers, appointment, of ................... U74-39 First Offenders Law, persons on probation under, not
deprived of right to vote or other civil rights ........ 74-26 Managers, see District managers, supra. Primaries-
Names of candidates not removed from ballots by State Election Board or Secretary of State ........ 74-96
QualificationFees not expenditure under Campaign Financing Disclosure Act. . . . . . . . . . . . . . . . . . . . ............ 74-103
Registrars, county board of elections assuming duties cannot have main office outside county site .......... 74-25
Registration of electors, moving by voter from one county to another, effect ......................... 74-143
Registration to voteName, legal, of voter, use ........................... 74-33
Secretary of State, see Candidates, supra. Special elections, time, held on same day as
general election, when ........................... 74-130

INDEX

561

OP. No.

ELECTIONS-Continued. State Election Board, see Candidates, supra. Time, general election and special election on
same day, when ................................. 74-130 Voters-
CrimeJail inmates not convicted, rights of. .............. 74-137 Loss of voting rights upon conviction of crime involving moral turpitude in federal court ...... 74-128
Legal names, of. ................................... 74-33 Moving from one county to another, effect upon
eligibility .................................... 74-143

ELECTRICAL CONTRACTORS.

Licensed by state-

.

Not required to have county or municipal license ........ 74-7

Not required to pay registration fees to political

subdivisions ................................... 74-64

State employees not licensed, as ....................... 74-152

ELECTRONIC SURVEILLANCE. Federal Government-
Exemption of Federal Government from regulation not extended to contractors with the government ....... 74-69
Telephone use not regulated by state ................. 74-36

EMERGENCY FUND. See Governor.
EMPLOYEES RETIREMENT SYSTEM. Age of retirement as related to effective date of Act
changing ......................................... 74-47 Beneficiary not changed by will ........................ 74-92 Death of employee, see Beneficiary, supra. Employer's contributions not refunded when employee
leaves position ................................... 74-55 Judges, Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-101 Leave, annual, forfeited, credit for ..................... 74-79 Refunds, see Employer's contributions, supra. Sick leave, forfeited, credit for ......................... 74-79
EMPLOYMENT AGENCIES. Personnel consultants charging no fees to applicants,
as not ......................................... U74-30
ENERGY OFFICE, STATE. Confidential business records not subject to Open
Records Law.................................. U74-113

562

INDEX

OP. No.

ENGINEERS, PROFESSIONAL. Code of Ethics, for ................................... 74-77 Educational requirement .............................. 74-76

ENVIRONMENTAL PROTECTION DIVISION. Water use classifications, adoption ..................... 74-28

EX OFFICIO JUSTICES OF THE PEACE. See Justices of the Peace.

EXAMINING BOARDS, STATE. Citizenship requirements for licensure, validity ............ 74-4

EXECUTORS. See Administrators and Executors.

EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS. Legislative intent, applied to .......................... 74-51

FAMILY AND CHILDREN SERVICES, COUNTY DEPARTMENTS OF.
Workmen's compensation for employees . . . . . . . . . . . . . . . . . 74-19

FANNIN COUNTY. Deputy sheriffs, employment and compensation ........ U74-47

FAYETTE COUNTY. Bond proceeds not invested in certificates of deposit .... U74-71

FEDERAL DEPOSIT INSURANCE CORPORATION. Reports of bank examinations, furnished, to .............. 74-1 Rules supersede Georgia statutes ...................... 74-108

FEDERAL GOVERNMENT. Postal Service vehicles, license plates .................. U74-16
Statutes, see Statutes. University of Georgia, inspection of personnel records
by agencies ...................................... 74-43

FEDERAL HOME LOAN BANK BOARD. Regulations, when superior to state law ................. 74-30 Savings and loan associations, jurisdiction over .......... U74-2

FEDERAL SAVINGS AND LOAN ASSOCIATIONS. Branch offices not prohibited by state .................. U74-2 Governed, how ...................................... U74-2
Inactive accounts governed by federal rather than state law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-30

FINES. Collecting authority, who is .......................... U74-52 Collection of ........................................ U74-6 Sheriff's Retirement Fund, payments into ............. U74-52 Sumter County, collections in ......................... U74-6

INDEX

563

OP. No.

FIREMEN'S PENSION FUND, GEORGIA. Administrative Procedure Act, not governed by ........ U74-72 Age of retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-50 Attendance at drills-
Absences excused ................................. U74-53 Prerequisite to pension, as .......................... U74-8 Enrollment of applicant after expiration of open
enrollment statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. U74-82 Military service, no authority in board to grant
credit, for ..................................... U74-109 Reports and proofs of service from fire departments ..... U74-12 Return of contributions to persons unable to
attend meetings ................................ U74-28 \Vithdrawal of fireman, retention of percentage
of contributions by fund ......................... U74-45

FIRST OFFENDERS LAW. Civil rights, persons on probation under law not
deprived of right to vote or other civil rights ........ 74-26

FISCAL AFFAIRS SUBCOMMITTEES. Macon Farmers Market transfer of funds for ............. 74-9

FISCAL ASSISTANCE TO STATE AND LOCAL GOVERNMENTS ACT.
Funds, restrictions on use ........................... U74-21

FLUORIDATION. See Water.

FORFEITURES. See Fines.

FUNDS, PUBLIC. Bond proceeds not invested in certificates of deposit .... U74-71 Savings and loan associations, county deposits not
made, in ....................................... 74-145

GENERAL ASSEMBLY. Fiscal Affairs Subcommittees, see Fiscal Affairs
Subcommittees. Notary public, ex officio justice of the peace, member
serving as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U74-92 Pension bills, fiscal notes to be attached to ............ U74-13 Residence requirements for candidates ................ U74-43

GEORGE L. SMITH II GEORGIA WORLD CONGRESS CENTER.
See World Congress Center.

564

INDEX

OP. No.

GEORGIA BUREAU OF INVESTIGATION. Educational incentive pay not extended to Crime
Laboratory employees ............................ 74-71 Medical expenses of members .......................... 74-80 Reorganization, effect ................................. 74-80

GEORGIA, STATE OF. See State of Georgia.

GORDON COUNTY. Tax commissioner, commissions to .................... U74-24

GOVERNOR. Emergency funds-
Appropriations, when used in lieu of . . . . . . . . . . . . . . . . . 74-107 Improvements to state property authorized;
not to county property ........................ 74-158 Motor Vehicle Commission, Georgia, for ............. 74-107 Transfer of departments, limits on power . . . . . . . . . . . . . . U74-61 Veto of appropriations provisions ............. U74-36, U74-98

GRANDFATHER CLAUSES. Professional engineers, for, expired ..................... 74-76

HABERSHAM COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY.
Ad valorem tax, for ................................. U74-88

HEALTH DISTRICTS. Employees employed by Department of Human
Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 74-89

HEALTH, LOCAL AGENCIES. Workmen's compensation for employees ................ 74-19

HIGHWAY AUTHORITY, GEORGIA. Census, U.S., advance report properly relied upon
in making highway allocations ..................... 74-66

HIGHWAY BOARD, STATE. Census, U.S., advance report properly relied upon
in making allocations for road projects . . . . . . . . . . . . . . 74-66

HIGHWAYS. See Transportation, State Department of. Municipal corporations, restrictions on power to
regulate streets, part of State Highway System ..... U74-94 Tollways, see Tollway Authority, State. Vehicles, removal of, by police officers .................. 74-99

INDEX

565

OP. No.

HOME RULE. Counties, for-
Criminal sanctions not permitted ................... U74-96 Powers, conferred ................................ U74-96

HOMESTEAD EXEMPTIONS. Social security payments considered income ............ U74-83

HONESTY IN GOVERNMENT. See Officers and Employees, Public.

HOUSES. Transporting, municipal regulations ................... U74-23

HUMAN RESOURCES, STATE DEPARTMENT OF.
Central State Hospital, permitting search on grounds of .................................... 74-15
Drug Abuse Services Section, see Drug Abuse Services Section.
Health district employees appointed by commissioner ..... 74-89 Juvenile offenders, custody of, see Juvenile Offenders. Osteopaths as physicians .............................. 74-50 Physicians, employment of osteopaths, as ............... 74-50 Property, lease (estate for years) not granted to
private person, by ............................... 74-40 Workmen's compensation for employees . . . . . . . . . . . . . . . . . 74-19

HUSBAND AND WIFE. See Married Women.

HYDROPNEUMATIC TANKS. Requirements, for ................................... 74-91

INCOME TAXES. Federal, authorities as instrumentalities of state,
as to ......................................... U74-111

INDUSTRIAL PARKS. County, state funds not used for ....................... 74-11

INSURANCE. Agents, see Salesmen, infra. Brokers, see Salesmen, infra. Casualty, legal services insurance, whether
classified, as ..................................... 74-48 Credit, "add-on" transaction as refinancing ............ 74-113 Definition ........................................... 74-48 Group .............................................. 74-81 Legal services insurance, legality and classification . . . . . .. 74-48

566

INDEX

OP. No.

INSURANCE-Continued. Medical services, see Medical Services Nonprofit
Corporations. Motor vehicles, see Motor Vehicle "No Fault" Act;
Motor Vehicle Safety Responsibility. No fault, see Motor Vehicle "No Fault" Act. Property, legal services insurance, whether classified, as .... 74-48 Salesmen must maintain offices with agent or broker ...... 74-83 State employees, wage deductions for group policies ...... 74-81

INTANGIBLE TAXES. Intangible Tax Equalization Fund, when available ...... 74-136

INVESTIGATION, DIVISION OF. See Georgia Bureau of Investigation.

JACKSON COUNTY. State court solicitor pro tern., appointment and
compensation .................................. U74-80

JEFFERSON, CITY OF. Annexation, written application of property
owner needed .................................. U74-75

JURY. Sentencing in criminal cases, effect of transfer
to judge ....................................... U74-74 Teachers, public school, service and compensation ........ 74-52

JUSTICES OF THE PEACE. Constables-
Number which may be appointed .................. U74-110 Ex officio and notary public, General Assembly
member as ....................................... U74-92 Jurisdiction, amount ............................... U74-104 Mortgage foreclosures limited as to amount ........... U74-104

JUVENILE COURTS. Judges, salary fixed by statute, not changed by
superior court judge ............................ U74-68 Superior court, trial of juveniles, in ..................... 74-58

JUVENILE OFFENDERS. Capital felonies, charged with ......................... 74-58 Confinement, duration of ............................ 74-139 Custody of ................................... 74-88, 74-139 Fingerprint records ................................... 74-58 Youthful offenders, not juvenile, see Youthful
Offender Act.

INDEX

567

OP. No.

LAND SALES. Land Sales Act-
Delivery, constructive, under .... 0 0 0 0 0 0 0 0 0 0 0 0 U74-17 Fees for filing and renewal; no charge for amendment 0 74-60

LAND SURVEYORS. See Engineers, Professional.

LANDSCAPE ARCHITECTS. Drainage plans, authority to prepare 0 0 0 0 0. 0 0 0 0 74-2

LEASES.

State, estate for years not granted to private

person by agency ..... 74-40 0



0

0

0



0



0



0



0

0

0

0

0

0

0

0



0



0

Taxes, ad valorem, leasehold estate under

development authority U74-5 0

0

0

0

0

0



0

0

0

0

0

0

0

0

0



0



LICENSES.

Business licenses (taxes) distinguished 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 74-64

Citizenship requirements for professional, validity 0 0 0 0 74-4

Electrical contractors 74-64 0

0

0

0

0



0

0

0



0

0

0

0

0



0

0



0

0

0

0

0

Marriage, see Marriage.

State, licensed by, political subdivisions cannot

require 74-7, 74-64 0

0

0

0



0

0

0



0



0



0



0

0



0

0

0

0

0

0



0

0

0

0

0

0



0



Warehouse, for persons not under Act 0 0 0 0 0 0 0 0. 0 0 0 0 0 0 74-18

LIVESTOCK. Brands, see Marks, infra. Marks, brands and tattooes, purging lists and canceling 0 74-87 Tattooes, see Marks, supra.

LOAN PRODUCTION OFFICES.

Restrictions on maintenance by banks. 0 0. 0. 0 0 0 0 0. 0 74-12

LOWNDES COUNTY, STATE COURT OF.

Judge, vacancy in office ... U74-44 0



0

0.

0.

0

0

0.

0

0

0

0



0

0



0.

MACHINE GUNS.

See Weapons.

MACON-BIBB COUNTY WATER AND

SEWERAGE AUTHORITY.

Water, fluoridation and rates. U74-4 0

0

0

0



0

0



MACON FARMERS MARKET.

Funds, transfer by Fiscal Affairs Subcommittees. 0 0 0 0 0 0 74-9

MARRIAGE.

Age of applicants. U74-34 0



0



0



0



0



0



0



0

0

0

0

0

0



0



0

0

Licenses-

Contents U74-99 0

0



0

0



0



0



0



0

0

0



0



0

0

0



0

0



0

0

0

0



Race of applicant to be shown U74-99 0

0

0

0

0

0

0



0



0



0

0



0



0

0



N arne of wife, effect upon 74-33 0



0



0



0



0



0

0



0



568

INDEX

OP. No.
MARRIED WOMEN. Names, legal, what constitute .......................... 74-33
MARTA. Transportation, Department of, rights-of-way,
encroachment upon ............................. 74-144
MEDICAL EXAMINERS. Osteopaths, duties as to ............................... 74-59
MEDICAL SERVICES NONPROFIT CORPORATIONS. Securities, guarantees of indebtedness, as not ........... 74-110
MENTAL ILLNESS. Examination of patients, procedure for ................ U74-25 Records of medical facilities, confidentiality ............ U74-86
MERCHANT MARINE. Military service, as included within .................. U74-108
MERIT SYSTEM, STATE. Aging, Director of Office of, how placed in
classified service . . ............................... 74-32 Authority employees not covered . . . . . . . . . . . . . . . . . . . . . U74-76 Citizenship requirements for state employees, validity .... 74-10 Communications, Division of, Director in
unclassified service . . . . . . . . . . . . . . . ............... 74-111 Directors of agencies in unclassified service .............. 74-93 Drug Abuse Services Section, coverage of deputy
director. . . . . . . . . . . . . . . . . . . . . . . . . ................ 74-34 Independent contractors .............................. 74-27 Insurance for state employees, consolidated plan
not authorized ................................... 74-81 :Municipal officer as employee, under .................. 74-117 Persons not covered .................................. 74-27 Promoted employee unsuccessful in new job, status ..... U74-11 Religious therapy program directors for prisons,
employment ...................................... 74-3 Unclassified service-
Communications Division, Director in . . . . . . . . . . . . . . . 74-111 Directors of agencies, in ............................ 74-93
METROPOLITAN ATLANTA/RAPID TRANSIT AUTHORITY.
See MARTA.
MILITARY SERVICE. Firemen's Pension Fund, no credit to members, for ..... U74-109 Merchant Marine Cadet Corps as included within ..... U74-108 Teachers Retirement System, credit for ........... 74-8, 74-104

INDEX

56\J

OP. No.
MDX~
SalLes <Of, what romtitute ............................. 74-105
1\U.N!IMUM .FOUNDATION PROGRAM. Teacher allotment formula used by Adequate
Pir'.qgram for Education in Georgia . . . . . . . . . . . . . . . . . 74-154

.MINORS. &e Juvenile 011'enders.

MORTGAGES. Rer.sonalty" ,on, justice court jurisdiction limited
.as to mrnnmnt on foreclosure . . . . . . . . . . . . . . . . . . . . . U74-104 Sales of as securities ................................. 74-153

.MOTORVEIDCLE ACCIDENT REPARATIONS ACT. See Motor Vehicle "No Fault" Act.

MOTOR VEHICLE COMMISSION, GEORGIA. Appropriation for, Governor's emergency fund
used in lieu of .................................. 74-107

MOTOR VEHICLE "NO FAULT" ACT. Motor Vehicle Safety Responsibility Act not
superseded by ................................... 74-86, Municipal corporations not subject to ................ U74-114
MOTOR VEID\CLE SAFETY RESPONSIBILITY. See Motor Vehicle "No Fault" Act. No Fault Act does not supersede statute ................ 74-86
MOTOR VEIDCLES. Accident Reparations Act, see Motor Vehicle "No Fault" Act. Commission, see Motor Vehicle Commission, Georgia. Drivers, training of, see Drivers Training Schools. Emergency, amber light permit does not establish, as .... 74-112: Flashing lights, amber, issuance of permits . . . . . . . . . . . . . 74-112, Inspections, unsafe vehicles, action to be taken
by officers ....................................... 74-99, License plates-
United States Postal Service, no state plates needed for vehicles leased to ................... U74-16
Lights, see Flashing lights, supra. Loads, sand, gravel, etc., regulated ................... U74-54 No fault, see Motor Vehicle "No Fault" Act. Removal from highway by police officers ................ 74-99 School busses, see School Busses. Size and weight, drivers license regulations as to,
see Drivers Licenses. Unsafe, see Inspections, supra.

570

INDEX

OP. No.

MUNICIPAL CORPORATIONS. Annexation-
Property owners, see Written application, infra. Written application of railroad, as property
owner, needed for ............................. U74-75 Charter, new, grant by General Assembly ............. U74-93 Contracts-
Long term ....................................... U74-26 Tax assessment limitations as illegal ................ U74-27 Contributions to private entities not authorized ........ U74-59 Corporations, private, not to become members
or stockholders .................................. 74-41 Councilman as member of county election board . . . . . . . . . 74-90 Credit unions, see Funds, infra. Depositories, see Funds, infra. Federal funds, use of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-21 Funds-
Credit unions not proper depositories ................. 74-41 Gratuities from, not authorized .................... U74-59 Highways, regulation where part of State
Highway System ............................... U74-94 Houses, transporting, regulation by ordinance .......... U74-23 Licenses-
State having issued, local unit cannot require ........... 74-7 Officers-
Duties and responsibilities not affected by charter amendment, when .................... U74-106
Municipality of less than 1,000 persons, state employee elected to office in .................... 74-117
Ordinances upon same subject-matter as state law ...... U74-81 Pensions, fiscal notes required to be attached to
legislation ..................................... U74-13 Planning Agency, State, grants to metropolitan
area planning commissions, rather than to local governments ............................... 74-132 Recorders, state offenses, jurisdiction as to ............. U74-81 Speed detection devices, see Traffic Control. TaxationContract to limit assessment as illegal ............... U74-27 "Value" as applied to ad valorem assessments ........ U74-38 University campus police, authority to arrest for violations of ordinances ........................... 74-97 University System extension of police jurisdiction requires no consent ............................... 74-65

INDEX

571

OP. No.

MUNICIPAL CORPORATIONS-Continued. Utilities, notice to users necessary before
termination of service ........................... U74-93 Water-
Fluoridation referendum ............................ U74-4 Rates ............................................ U74-4 Zoning authority .................................... U74-9

MUSCOGEE COUNTY. Legislative representative, residence requirements ....... U74-43

NAMES OF PERSONS. Legal, what constitute ................................ 74-33

NATURAL RESOURCES, STATE DEPARTMENT OF. Environmental Protection Division, see
Environmental Protection Division. Peace officers, commissioner and deputy
commissioner as not . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-45

NO FAULT ACT. See Motor Vehicle "No Fault" Act.

NOLO CONTENDERE. Guilty plea, differs from as to purchase of
weapons by accused ............................. U74-67

NONPROFIT MEDICAL SERVICE CORPORATIONS. See Medical Services Nonprofit Corporations.

NOTARIES PUBLIC. Ex officio justices of the peace, General Assembly
member serving as .............................. U74-92

NOTES. Authorities, issuance, by ............................ U74-112

OCMULGEE JUDICIAL CIRCUIT. Assistant district attorneys, compensation ............... 74-95

OFFENDER REHABILITATION, STATE DEPARTMENT OF. See Prisons and Prisoners. Commissioner of Offender Rehabilitation, Director
of Corrections, as ................................. 74-6 Juvenile offenders, custody of, see Juvenile Offenders.

OFFICERS AND EMPLOYEES, PUBLIC. Citizenship requirements as to, validity ................. 74-10 Compensation, see Salaries, infra.
Retroactive pay raises prohibited ................... U74-41 Conflicts of interest, see Simultaneous employment, infra.

572

INDEX

OP. No.

OFFICERS AND EMPLOYEES, PUBLIC-Continued. Counties, of, see Counties. Deductions from pay checks for contributions, etc...... U74-62 Electrical contractors, not required to be licensed, as .... 74-152 Honesty in government, see Simultaneous employment,
infra. Insurance, group, wage deductions for .................. 74-81 Leave, annual and sick, retirement credit for ............ 74-79 Payroll deductions .................................. U74-62 Prisoners in work-release status, employment ........... 74-142 Retirement, see Employees Retirement System. Salaries-
Full, to be paid on expiration of Wage Stabilization Act ............................... 74-57
Officers, of, how fixed ................................ 74-6 Simultaneous employment-
Court reporter also secretary to superior court judge ................................... U74-1
Education, county or local board memberEmployee of board sitting as member ............. U74-69
Elections board, county, member as city councilman .... 74-90 General Assembly member as notary public,
ex officio j.p.................................. U74-92 Meat inspector, state also state senator . . . . . . . . . . . . . . 74-156 Municipality of less than 1,000 persons, state
employee elected to office in . . . . . . . . . . . . . . . . . . . . 74-117 Regent of university providing health and medical
services to State Department of Education ........ 74-56 Regents, board member as city attorney, county
attorney, private attorney or officer of political party ................................. 74-20 Secretary to superior court judge also court reporter ...................................... U74-1 Senator, state, veterinarian, as state meat inspector ..................................... 74-156.

OPEN RECORDS LAW. See Records.

ORDINARIES. Compensation, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-40 Marriage licenses, see Marriage. Mentally ill persons, powers as to ..................... U74-25. Superior court clerks, duties on vacancy in office, of ....... 74-42,

INDEX

573

OP. No.

OSTEOPATHS. Physicians, as ....................................... 74-50 Physicians, when entitled to license, as ................. 74-59 Reciprocal licenses, when granted ...................... 74-59
OUT-OF-STATE LAND SALES ACT. Corporation qualifying under, need not proceed as
foreign corporation under Corporation Code ......... 74-49
OUTDOOR ADVERTISING. See Advertising.
PARDONS AND PAROLES, STATE BOARD OF. Practice before, limited to attorneys at law .............. 74-22 Psychiatrists, evaluations by, use of. .................. 74-131 Psychologists, evaluations by, use of. .................. 74-131
PAROLE. Foreign state, effect upon Georgia suspended sentence .... 74-147 Probation, correlation where same prisoner on
both parole and probation ...................... U74-107 Revocation, notice of right to appointed counsel. ....... 74-119
PATROL, STATE. See State Patrol.
PEACE BONDS. Amount .......................................... U74-103 Custody of arrested person ......................... U74-103 Waiver of hearing ................................. U74-103
PEACE OFFICERS. Natural Resources Department commissioner and
deputy commissioner, as not ....................... 74-45 Private detective law, exemption from ................. 74-148 Vehicles, removal from highways ....................... 74-99
PEACE WARRANTS. Costs, payment, of. .................................. U74-7 Procedure .......................................... U74-7
PEACH COUNTY. Commissions on tax funds collected, disposal of ........ U74-42
PENSIONS. Fiscal notes attached to legislation .................... U74-13
PERSONNEL BOARD, STATE. Drug Abuse Services Section, merit system status
of deputy director ................................ 74-34
PERSONS. Names, legal, what constitute ......................... 74-33

574

INDEX

OP. No.

PHARMACIES. General merchandising establishments, location, in ...... U74-32
PHARMACISTS. Drugs, see Drugs. Unlicensed employees, permitted functions ............. U74-63

PHYSICIANS. Osteopaths, as ....................................... 74-50 Osteopaths, when entitled to license, as ................. 74-59
PISTOLS. License to carry, nolo contendere plea to felony
does not prevent issuance ........................ U74-67

PLANNING AGENCY, STATE. Grants to metropolitan area planning commissions,
rather than to local government .................. 74-132

PLANNING AND BUDGET, OFFICE OF. Before 1973, see Budget Bureau, State. Transfer of funds, duties as to ......................... 74-80

PLANNING AND DEVELOPMENT COMMISSIONS. See Area Planning and Development Commissions.

POLITICAL CONTRIBUTIONS. See Elections, catchwords Campaign Financing
Disclosure Act.

POSTAL SERVICE. Vehicles, state license plates ......................... U74-16

PRISONS AND PRISONERS. See Parole; Probation; Sentence and Punishment. Community centers, see Medical expenses, infra. Correctional Industries Administration, see Correctional
Industries Administration. Funeral expenses, liability for ....................... U74-105 Labor, compliance with federal requirements ........... 74-125 Medical expenses-
Assigned to community centers, where ............... 74-129 Liability for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-105 Release, work release, see Work-release program, infra. Religious therapy program directors, employment for ...... 74-3 Sales taxes charged by inmate stores ................... 74-29 Search of visitors entering or leaving correctional
institution ..................................... 74-146 Support and maintenance, duty as to ................ U74-105

INDEX

575

OP. No.

PRISONS AND PRISONERS-Continued. Work-release program-
Employment by state agencies of prisoners in ......... 74-142 Federal requirements .............................. 74-125 Prisoners not to reside at home . . . . . ................ 74-116

PRIVATE DETECTIVES. See Detectives, Private.

PROBATION. Child support as condition, of, administration ........... 74-38 Driving under influence of alcohol or drugs, cases of ... U74-102 First Offenders Law, persons on probation under, not
deprived of right to vote or other civil rights ........ 74-26 Parole, where prisoner on both parole and probation ... U74-107 Revocation-
Acts of prisoner prior to commencement of probated sentence ........................... U74-107
Time for which returned to confinement ............ U74-107
PROFESSIONAL ENGINEERS. See Engineers, Professional.
PROFESSIONAL ENGINEERS AND LAND SURVEYORS, STATE BOARD OF REGISTRATION.
Code of ethics, enforcement ........................... 74-77
PROFESSIONAL PRACTICES COMMISSION. See Education.
PROFESSIONS. See specific professions: Osteopaths; Physicians; etc.
PROPERTIES CENTER, STATE. \Vorld Congress Center, title to land ................... 74-78
PROPERTY. State-
Emergency fund used for improvements ............. 74-158 Estate for years not granted to private person ......... 74-40 Improvements, to, from emergency fund ............. 74-158 World Congress Center, title to ...................... 74-78 Unclaimed, see Unclaimed Property Act.
PSYCHIATRISTS. Pardons and Parole Board, use of evaluations, by . . . . . . . 74-131
PSYCHOLOGISTS. Pardons and Parole Board, use of evaluations, by ....... 74-131
PUBLIC DEFENDERS. See Defenders, Public.

576

INDEX

OP. No.

PUBLIC SERVICE COMMISSION. Telephone listening devices, regulation ............ 74-36, 74-69
PURCHASING AND SUPPLIES DIVISION. Bids, necessity for and requirements .................... 74-16
REAL ESTATE SYNDICATIONS. Securities, as ........................................ 74-75
REAL ESTATE TRANSFER TAX. Transportation Department transactions, not
applicable to ................................... U74-56
RECORDS. Disposition of, final. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-3 Federal inspection of university personnel records ........ 74-43 Inspection of public-
Energy Office, State, confidential records on file, not subject to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-113
Mentally ill persons, of, confidential. . . . . . . . . . . . . . . . . . U74-86 Open Records Law, see Inspection of public, supra.
RECORDS MANAGEMENT OFFICER, STATE. See Archives and History, Department of.
REGENTS. See University System of Georgia.

RELIGIOUS THERAPY PROGRAM DIRECTORS. Prisons, employment, for ............................... 74-3

REORGANIZATION. Crime Laboratory, State, effect upon ................... 74-71 Transfer of departments, etc., by Governor, power
limited ........................................ U74-61

RESIGNATIONS. Sheriffs ............................................ U74-29

REWARDS. Criminal cases, school funds not used for ............... 74-122

SAFETY, PUBLIC. Hydropneumatic tanks, requirements for ................ 74-91

SAFETY, STATE DEPARTMENT OF PUBLIC. Cadets, trooper (trainees), weapons not issued to ........ 74-135 Clerk-dispatchers, compensation of ....... , . . . . . . . . . . . . . 74-85 Donations from private sources, acceptance of . . . . . . . . . . 74-140 Driver's license examiners, longevity compensation
increases. . . . . . . . . . . . . . . . . . . . . . . . . .............. 74-114

INDEX

577

OP. No.

SAFETY, STATE DEPARTMENT OF PUBLIC-Continued. Flashing lights on vehicles, regulation of, see Motor Vehicles. School busses, unsafe, duties respecting ................. 74-31 Uniform Division, see State Patrol.

ST. MARYS, CITY OF. Tax assessment limitation contract with private
corporation .................................... U74-27

SALARIES. Wage Stabilization Act, full payment on expiration ....... 74-57

SALES. Milk, of, what constitutes ............................ 74-105 Transfers between divisions of same corporation,
as not ......................................... 74-105

SALES AND USE TAXES: Credit unions, exemption ............................. 74-136 Prisons, inmate stores to collect ........................ 74-29

SAVINGS AND LOAN ASSOCIATIONS. See Federal Savings and Loan Associations.

SCHOOL BUSSES. Unsafe, citation to driver and person ordering operation .... 74-31

SCHOOL SUPERINTENDENTS, COUNTY. Education, county boards of, relation to ............... U74-65

SCHOOLS. Drivers training, see Drivers Training Schoqls. Lunches for nonpublic school students, reimbursement
to system required .............................. 74-155

SCHOOLS, PUBLIC. Funds-
Lunches for nonpublic school students not authorized unless reimbursement made ........... 74-155
Rewards in criminal cases, not used for .............. 74-122 Out-of-state, no contracts with to educate Georgia
children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74-98 Residence, child attending school in system other
than that of. .................................... 74-70

SEARCHES AND SEIZURES. Central State Hospital, motor vehicles on grounds ........ 74-15 Correctional institutions, visitors entering or leaving ..... 74-146

578

INDEX

OP. No.

SECURITIES. Exemptions from registration, withdrawal of federal
registration, no return of fee ...................... 74-150 Federal registration, see Exemptions, supra. :Medical service nonprofit corporations, guarantees
of indebtedness, as not ........................... 74-110 Mortgages, sale of or interests in, as ................... 74-153 Real estate syndications, as ........................... 74-75

SENTENCE AND PUNISHMENT. Alcoholic treatment facilities, prisoners not
sentenced to ................................... U74-97 Driving under influence of alcohol or drugs ........... U74-102 Drug addict facilities, prisoners not sentenced to ....... U74-97 Jury to judge, change of function, crimes committed
prior to effective date ........................... U74-74 Parole in foreign state, effect, see Suspended sentence, infra. Suspended sentence contingent upon parole in
foreign state, effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-147 Youthful offenders, see Youthful Offender Act.

SEPARATION OF POWERS. See Constitutional Law.

SHERIFFS. Compensation, increases on completion of terms
of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... U74-19 Deputies, extra, employment and compensation ........ U74-47 Resignation ........................................ U74-29 Vacancy in office ................................... U74-29

SHERIFF'S RETIREMENT FUND. Collecting authority to pay into ...................... U74-52

SMITH WORLD CONGRESS CENTER. See World Congress Center.

SOCIAL SECURITY. Baker County public school employees ................ U74-18
Homestead exemption, benefits considered in making determination as to ...................... U74-83

SOCIAL SERVICES DIVISION. Juvenile offenders, see Juvenile Offenders.

SOLICITORS. See State Courts.

SPEED DETECTION DEVICES. See Traffic Control.

INDEX

579

OP. No.

STATE COURTS. See specific courts: Lowndes County, State Court of;
Tattnall County, State Court of; etc. Accusation, plea not accepted prior to ................. U74-6 Record, courts of, when . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-31 Reporters, for ...................................... U74-33 Solicitors-
Accusations to be drawn only upon probable cause .... U74-70 Pro tern., appointment and compensation ............ U74-80

STATE OF GEORGIA. Funds-
County development authorities, not used for .......... 74-11 Emergency, see Governor. Teacher retirement under local systems . . . . . . . . . . . . . . . 74-14 Property, see Property. Purchases, see Purchasing and Supplies Division. Statutes, regulatory, generally not applicable to .......... 74-17

STATE PATROL. Cadets, weapons not issued to ........................ 74-135 Clerk-dispatchers, compensation ....................... 74-85 Compensation, calculation ............................ 74-85 Medical expenses in addition to workmen's
compensation .................................... 74-82 Vehicles, taking custody of ............................ 74-99

STATUTES. Appropriations, see Appropriations. Construction, inconsistency between formal enactment
and "to read" portion ............................ 74-65 Effective date-
Simultaneously, application of Act to events taking place, with Act .......................... 74-47
Ex post facto, jury sentencing changed to judge sentencing, construed so as not to be . . . . . . . . . . . .. U74-74
FederalAgencies of U. S. not regulated as to telephone surveillance by state law . . . . . . . . . . . . . . . . . . 74-36, 74-69 Precedence over state ............................... 74-30 Rules and regulations of agencies taking priority over ......................................... 74-108
Repeals by implication, not favored ................... U74-54 State and political subdivisions, generally not
applicable to .................................... 74-17 Supremacy Clause, see Federal, supra.

580

INDEX

OP. No.

STEPHENS COUNTY. Tax commissioner, commissions ...................... U74-64
SUMTER COUNTY. Fines, responsibility for collection ...................... U74-6

SUNDAY. See Common Day of Rest Act.
SUPERINTENDENT OF SCHOOLS, STATE. Professional Practices Commission contracts not
signed, by ....................................... 74-84
SUPERIOR COURT CLERKS. Funds illegally paid to, disposal ...................... U74-90 Ordinary acting as . . . . . . . . . . . . . . . . . . . ................ 74-42 Vacancies, filling ..................................... 74-42
SUPERIOR COURTS. Judges-
Expenses, reimbursement, judicial panel, service upon ................................. U74-84
Secretary also appointed as court reporter ............ U74-1 Judges emeritus-
Additional compensation limited to service in one county per day ........................... U74-95
Military service time with reference to eligibility .... U74-108 Qualifying for another office ....................... U74-51 Solicitor, city court, as creditable service ............ U74-89 Time of appointment, necessity of holding office at ..... 74-23 Vested rights ..................................... U74-51 Widow's benefits, election, effect upon time of
appointment .................................. 74-23 Minors, criminal jurisdiction of, see Juvenile Offenders.

SUPPORT OF DEPENDENTS LAW. Child support, see Child Support.

SUPREME COURT. Justices-
Disability retirement, eligibility ................... U74-100

SURVEYORS. See Engineers, Professional.

TALIAFERRO COUNTY. Tax commissioner, commissions of .................... U74-87

TANKS. Pressure, requirements for ............................ 74-91

INDEX

581

OP. No.
TATTNALL COUNTY, STATE COURT OF. Reporters, for ...................................... U74-33
TAX COMMISSIONERS. Commissions-
County, right to funds after placing commissioner on salary .................................... U74-42
Gordon County, in ............................... U74-24 Public utility taxes, upon .......................... U74-87 Salary basis, where on ..................... U74-24, U74-64
TAXATION. Ad valorem, see Ad Valorem Taxes. Appeals from equalization board to superior court,
deposit of costs ................................. U74-46 Contracts to limit assessment as illegal ................ U74-27 Exemptions, see Homestead Exemptions.
Authorities, leasehold estates, under ................. U74-5 Restrictions on making ............................ U74-27 Income taxes, see Income Taxes. Intangible tax, see Intangible Taxes. Municipal, see Municipal Corporations. Sales and use taxes, see Sales and Use Taxes. Sales taxes, see Sales and Use Taxes. Transfer tax, see Real Estate Transfer Tax. Use taxes, see Sales and Use Taxes.
TEACHERS. Compensation for days spent on jury duty .............. 74-52 Jury duty, for ....................................... 74-52 Retirement, see Teachers Retirement System.
Local systemsCoordination with Teachers Retirement System as to pension payments and credits ............. 74-21 State funds for, only on constitutional amendment .... 74-14
Sick leave, expanding by local boards of education ....... 74-13
TEACHERS RETIREMENT SYSTEM. Local systems, coordination with as to pension
payments and credits ............................. 74-21 Military service, credit, for ...................... 74-8, 74-104 Nonmembers, retirement of teachers other than under
system, see Teachers. See also Local systems, supra.
TELEPHONE. Directory, requirement that observing equipment be
shown in, may apply to federal agencies ............. 74-69 Federal Government use not regulated by state laws
on electronic surveillance . . . . . . . . . . . . . . . . . . . . . . .... 74-36

582

INDEX

OP. No.

TIFT COUNTY DEVELOPMENT AUTHORITY. Taxation, authority as instrumentality of state as
to federal taxes ................................ U74-111

TOLLWAY AUTHORITY, STATE. Existing highways, improvement with Tollway
Authority bond funds ............................. 74-5

TRAFFIC CONTROL. Speed detection devices; permits, issuance, reissuance,
revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 74-74

TRANSFER TAX. See Real Estate Transfer Tax.

TRANSPORTATION AUTHORITY, STATE. Highway System, State, projects of, included in tollways .... 74:5 Tollways, see Tollway Authority, State.

TRANSPORTATION CODE, PUBLIC. See Motor Vehicles.

TRANSPORTATION, STATE DEPARTMENT OF. Airport System Plan, State, duties respecting ............ 74-39 Contracts for additional compensation on increased
costs not permitted ............................... 74-37 MARTA, no authority to permit encroachment upon
rights-of-way ................................... 74-144 Real estate transfer tax not applicable to .............. U74-56

TROUP COUNTY. Commissioners, vacancy on board, filling .............. U74-37

TRUST COMPANY OF GEORGIA. Reorganization, proposed, legality ..................... 74-120

TWIGGS COUNTY. Commissioners, filling vacancy on board ............... U74-22
UNCLAIMED PROPERTY. See Unclaimed Property Act.

UNCLAIMED PROPERTY ACT. Alabama, see Foreign state, infra. Federal statutes and regulations take precedence over ..... 74-30 Foreign state, Georgia bank having unclaimed
property, in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 74-68 Interest, not paid contrary to Federal Deposit
Insurance Corporation rules ...................... 74-108

INDEX

583

OP. No. UNITED STATES. See Federal Government; Statutes. Census, see Census. Statutes, precedence over state ........................ 74-30
UNIVERSITIES. See Colleges and Universities, Private; University
System of Georgia.

UNIVERSITY SYSTEM OF GEORGIA. Education, State Board of, no authority over . . . . . . . . . . . . 74-94 Funds, see Regents, infra. Police, campus, authority to arrest for violations of
municipal ordinances ............................. 74-97 Police jurisdiction extension requires no
municipal consent ................................ 74-65 Private colleges, see Colleges and Universities, Private. Records, personnel, inspection by federal agencies ........ 74-43 Regents-
Activities authorized ............................... 74-44 Contracts beyond fiscal year ........................ 74-115 Employment of member by State Department of
Education for health and medical services ......... 74-56 Employment of regent as city attorney, county
attorney, private attorney or officer of political party ......................................... 74-20 Funds, matching federal, for research projects ......... 74-44

VILLA RICA. Charter, new, grant by General Assembly ............. U74-93 Utilities, notice to users necessary before
termination of service . . . . . . . . . . . . . . . . . . . . . . . . . . . U74-93
WAGE STABILIZATION ACT. Expiration, state salaries to be paid in full, on ........... 74-57

WAREHOUSES. Election by persons storing other than agricultural
products to be licensed under State Warehouse Act .... 74-18
WATER. Fluoridation-
Referendum by city not sufficient to determination of fluoridation of city-county supply ............. U74-4
Use classifications, adoption ........................... 74-28
WEAPONS. Concealed, carrying, is state, not municipal, offense ..... U74-81 Machine guns, statutes governing ..................... U74-91 Public Safety Department Cadets, not issued to ........ 74-135

584

INDEX

OP. No.

WILLS. Employees Retirement System death beneficiary,
not changed by .................................. 74-92

WORDS AND PHRASES. Contributions (under Campaign Financing
Disclosure Act) ................................. 74-102 County site .......................................... 74-25 Courts of record. . . . . . . . . . . . . . . . . . . . . . . . . . .......... U74-31 Doctors of medicine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 74-50 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 74-48 Machine gun ....................................... U74-91 Offenses ............................................ 74-97 Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... 74-83 Peace officer .................................. 74-45. 74-148 Physicians ........................................... 74-50 Value as applied to tax assessments . . . . . . . . . . . . . . . . . . . U74-38

WORK-RELEASE PROGRAM. See Prisons and Prisoners.
WORKMEN'S COMPENSATION. Assessments, see Funds, infra. Authorities, supplementing benefits to employees ....... U74-76 Counties, elected officials, for ........................ U74-20 Family and children services, county departments,
employees under Act ............................. 74-19 Funds from assessments to be paid into state
treasury; board funded by appropriations ........... 74-62 Health agencies, county and district, workmen's
compensation for employees ....................... 74-19 State patrol members, medical expenses in addition
to award ........................................ 74-82

WORLD CONGRESS CENTER. Authority illegally constituted insofar as it violates
separation of powers doctrine ..................... 74-109 Land, for, title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , .... 74-78

YOUTHFUL OFFENDER ACT. Sentences under, effect ............................... 74-100

ZONING. Legislative authority as to ............................ U74-9 Power to zone in certain bodies ........................ U74-9