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- lll 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 Vlll 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 1 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. 74-2 2 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. 3 74-3 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 74-4 4 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- 5 74-4 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. 74-5 6 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 7 74-5 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. 74-5 8 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. 9 74-6 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). 74-6 10 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 11 74-7 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: 74-7 12 "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. 13 74-8 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 74-8 14 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. 15 74-9 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. 74-10 16 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- 17 74-10 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. 74-11 18 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 19 74-12 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). 74-12 20 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. 21 74-12 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. 74-13 22 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. 23 74-14 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. 74-14 24 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 25 74-14 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. 74-15 26 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 27 74-16 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.] 74-16 28 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 29 74-16 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 74-16 30 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. 31 74-17 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 74-18 32 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. 33 74-19 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; 74-19 34 (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 35 74-20 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. 74-21 36 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.) 37 74-21 "(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 74-21 38 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. 39 74-22 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. 74-22 40 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 41 74-22 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 74-22 42 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. 43 74-23 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 74-23 44 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). 45 74-24 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- 74-24 46 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, 47 74-25 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. 74-26 48 727 (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- 49 74-26 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. 74-27 50 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. 51 74-28 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 74-29 52 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). 53 74-30 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; 74-30 54 "(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 55 74-31 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)). 74-32 56 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- 57 74-33 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; 74-33 58 (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. 59 74-33 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). 74-33 60 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: 61 74-33 "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 74-33 62 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. 63 74-33 "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." 74-34 64 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 65 74-34 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 74-34 66 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- 67 74-35 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 74-35 68 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. 69 74-37 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 74-38 70 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 71 74-38 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 74-39 72 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 73 74-39 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 74-39 74 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 75 74-40 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. 74-41 76 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)? 77 74-41 (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 ...." 74-42 78 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. 79 74-43 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 74-43 80 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 81 74-43 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: 74-44 82 "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 83 74-44 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). 74-44 84 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. 85 74-45 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, 74-45 86 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- 87 74-46 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). 74-46 88 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 89 74-46 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 74-46 90 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. 91 74-46 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. 74-46 92 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. 93 74-47 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 74-48 94 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. 95 74-48 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 74-48 96 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 97 74-48 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.) 74-48 98 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. 99 74-48 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 74-49 100 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. 101 74-50 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. 74-51 102 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 103 74-51 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 74-51 104 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. 105 74-51 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 74-52 106 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- 107 74-52 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- 74-53 108 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 109 74-53 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. 74-54 110 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 111 74-54 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, 74-55 112 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. 113 74-55 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 74-56 114 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 115 74-57 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. 74-57 116 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. 117 74-58 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." 74-58 118 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. 119 74-58 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 74-59 120 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 121 74-59 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 74-60 122 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"). 123 74-61 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 74-61 124 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 125 74-62 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 74-62 126 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 127 74-63 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." 74-64 128 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. 129 74-65 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 74-66 130 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. 131 74-66 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." 74-67 132 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.) 133 74-68 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: 74-68 134 "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 135 74-69 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. 137 74-71 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. 74-71 138 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. 139 74-71 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 74-72 140 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. 141 74-74 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 74-74 142 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 143 74-74 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. 74-74 144 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. 145 74-75 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. 74-75 146 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. 147 74-75 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. 74-75 148 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 149 74-75 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)). 74-75 150 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. 151 74-75 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. 74-75 152 "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 153 74-75 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. 74-75 154 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. 155 74-76 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 74-76 156 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 157 74-76 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 74-77 158 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. 159 74-77 (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. 74-77 160 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 161 74-77 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. 74-78 162 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: 163 74-78 "[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- 74-79 164 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 165 74-79 102-102 (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. 74-80 166 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.) 167 74-81 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 74-81 168 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 169 74-82 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. 74-83 170 "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). 171 74-83 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 74-84 172 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. 173 74-85 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 74-85 174 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: 175 74-85 " '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." 74-86 176 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 177 74-86 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. 74-87 178 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 179 74-87 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. 74-88 180 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 181 74-89 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 74-89 182 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- 183 74-89 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 74-90 184 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 185 74-91 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 74-92 186 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. 187 74-92 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). 74-92 188 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 189 74-93 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 74-94 190 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." 191 74-94 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 74-94 192 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 193 74-94 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 74-95 194 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 195 74-95 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 74-96 196 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 197 74-96 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 74-97 198 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. 199 74-98 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. 74-99 200 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. 201 74-99 "(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 74-100 202 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). 203 74-101 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). 74-101 204 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 205 74-101 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. 74-102 206 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 207 74-103 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- 74-104 208 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). 209 74-104 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. 74-104 210 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 211 74-105 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. 74-105 212 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. 213 74-106 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. 74-106 214 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 215 74-106 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 74-106 216 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. 217 74-107 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. 74-107 218 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 219 74-107 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. 74-107 220 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 221 74-108 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- 74-108 222 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...." 223 74-109 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 74-109 224 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). 225 74-109 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, 74-109 226 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. 227 74-110 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). 74-110 228 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. 229 74-110 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. 74-110 230 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 tion 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- U74-104 500 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: 501 U74-105 " ... (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, U74-106 502 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- 503 U74-107 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: U74-107 504 " ... 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. 505 U74-108 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,. U74-109 506 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 507 U74-109 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.) U74-110 508 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. 511 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- U74-114 512 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 513 U74-114 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. U74-114 514 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 AcT PAGE 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