OPINIONS of THE ATTORNEY GENERAL 1975 ARTHUR K. BOLTON ATTORNEY GENERAL CURTISS PRINTING CO., INC. 62 ELLIS STREET, N. E. ATLANTA, GEORGIA TABLE OF CONTENTS PAGE OFFICIAL OPINIONS, 1975............................... 1 UNOFFICIAL OPINIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 POSITION PAPER RELATING TO THE GEORGIA COASTAL MARSHES ........................ 451 POSITION PAPER RELATING TO PUBLIC EMPLOYEE LABOR ORGANIZATIONS IN GEORGIA .......................................... 457 TABLE 1. UNITED STATES CONSTITUTIONAL PROVISIONS CITED.. . . .. . . . . . . . . . .. . . .. . .. . . . . .. . . . . . 475 TABLE 2. GEORGIA CONSTITUTIONAL PROVISIONS CITED. . . . . . . . . . . . .. . . . . .. . . . . . . . . .. . . . . . 475 TABLE 3. GEORGIA LAWS CITED ....................... 477 TABLE 4. GEORGIA CODE ANNOTATED SECTIONS CITED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491 INDEX .................................................. 511 II ATTORNEYS GENERAL OF GEORGIA HENRY P. FARRER ............................... 1868-1872 N. J. HAMMOND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1872-1877 ROBERT N. ELY .................................. 1877-1880 CLIFFORD L. ANDERSON. . . . . . . . . . . . . . . . . . . . . . . . . 1880-1890 GEORGE N. LESTER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1890-1891 W. A. LITTLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1891-1892 J. M. TERRELL .................................... 1892-1902 BOYKIN WRIGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1902-1902 JOHN C. HART. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1902-1910 HEWLETT A. HALL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1910-1911 THOMAS S. FELDER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1911-1914 WARREN GRICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1914-1915 CLIFFORD WALKER .............................. 1915-1920 R. A. DENNY................................... . . . 1920-1921 GEORGE M. NAPIER.............................. 1921-1932 LAWRENCE S. CAMP.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1932-1932 M. J. YEOMANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1933-1939 ELLIS G. ARNALL ................................. 1939-1943 GRADY HEAD... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1943-1945 EUGENE COOK ................................... 1945-1965 ARTHUR K. BOLTON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1965- lll ARTHUR K. BOLTON The Attorney General v LEGAL STAFF OF DEPARTMENT OF LAW DURING CALENDAR YEAR 1975 ATTORNEY GENERAL Arthur K. Bolton CHIEF DEPUTY ATTORNEY GENERAL Robert S. Stubbs, II DEPUTY ATTORNEYS GENERAL Richard L. Chambers Don A. Langham SENIOR ASSISTANT ATTORNEYS GENERAL Bomar, Robert S. Bowers, Michael J. Coleman, J. Robert Davis, G. Thomas Gordon, Marion 0. Michael, H. Perry Owen, H. Andrew, Jr. Sweeney, Timothy J. ASSISTANT ATTORNEYS GENERAL Andrews, Gary B. Bailey, David J. Ballard, John B., Jr. Barmeyer, Patricia T. Biggins, Franklin N. Bowling, Gerald W. Buckland, Lauren 0. Dunsmore, John W., Jr. Duvall, Thomas 0., Jr. Dyer, Michael W. Dyson, J. David Edenfield, Bruce M. Evans, Alfred L., Jr. Greene, Thomas W. Grindle, B. Dean, Jr. Hall, Robert E. Harris, W. Hensell, Jr. Jones, Carl C., III Joy, William C. King, David L. G., Jr. Kirkley, Dorothy Y. Lackey, R. Douglas Vll LEGAL STAFF-Continued ASSISTANT ATTORNEYS GENERAL-Continued Macintyre, Daniel I., IV Matson, Roland F. Odom, Donn L. Parker, G. Stephen Runnion, David A. Shell, Robert H. Spivey, Verley J. Tripp, David A. Yancey, Wayne P. STAFF ASSISTANT ATTORNEYS GENERAL Adams, Sarah H. Atkinson, Kirby G. Christian, Janice J. Corlew, Harold D. Cotter, Stephen L. Daugherty, Julius C., Jr. Ekonomou, Andrew J. Goldstein, Melvin M. Hart, John E. Hobbs, Michael E. Lawler, J. Timothy McKellar, Clinton, Jr. Oakley, Lois F. Ridley, Eleanor H. ATTORNEYS Anderson, Curtis E. Byrd, Isaac Cosgrove, Carol Atha Kohler, Harrison Mackay, James L. Walls, J. Michael 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 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 OFFICIAL OPINIONS of THE ATTORNEY GENERAL 1975 Xl 1 75-1 OPINION 75-1 To: Executive Secretary-Treasurer, Teachers Retirement System January 2, 1975 Re: The Teachers Retirement System Board of Trustees generally should not authorize the retroactive payment of retirement benefits to members for months prior to the time service retirement applications were filed. This responds to your recent letter. You requested my opinion on whether the Board of Trustees of the Teachers Retirement System of Georgia (hereinafter TRS) should authorize the retroactive payment of retirement benefits for certain months to several particular members. As I understand the facts, you received applications for service retirement from two members in August 1974. Both applications requested a retirement date of July 1, 1974, and both of these members informed you they had given their applications to the Assistant Superintendent of Schools in a Georgia county sometime prior to July 1, 1974. You informed both members that since their applications were not filed with your office until August 1974, their benefits would be effective August 1, 1974. In a slightly different factual setting, another member requested from you in February 1974 an estimate of her retirement benefits on July 1, 1974. In February, you sent this member a letter explaining the procedure for service retirement, together with information showing her approximate monthly benefit. \::Vhen she had not received a retirement check from TRS by September 1974, she telephoned your office and inquired as to the reason. At that point, you informed her you had no application for retirement filed with your office. She then filed her service retirement application with you in September 1974, and was informed her benefits would be effective as of September 1, 1974. The first-referenced members are requesting retirement benefits for the month of July 1974, and the last member is requesting benefits for the months of July and August 1974. The TRS statute relevant to your inquiry is found at Ga. Laws 1943, p. 640 et seq., as amended (Ga. Code Ann. 32-2905 (1) (a), as amended): "Any member in service may retire upon written application to the board of trustees provided that the said member at the time of retirement shall have attained the age of 60 years and shall have 10 years or more of creditable service ... The effective date of retirement will be the first of the month in which the application is received by the board of trustees; however, no retirement application will be effective earlier than the first of the month following the final month of the applicant's employment...." 75-2 2 This statutory language means that a service retirement application must be made in writing and filed with the Board of Trustees before retirement benefits can be paid. Also, the effective date of retirement is to be the first day of the month in which the application is received by the Board of Trustees. You have informed me that, as Executive Secretary-Treasurer of the Teachers Retirement System of Georgia, you are the custodian of all documents required to be filed with, or retained by, the Board of Trustees. Consequently, in my judgment, a document or other paper delivered for filing to you should be considered as filed with the board. See, e.g., Palcar Real Estate Co. v. Commissioner of Internal Revenue, 131 F.2d 210 (8th Cir. 1942). In a somewhat similar situation, this office opined in November 1973 that the Employees Retirement System had, by practice, delegated to the personnel offices of its member agencies the authority to accept retirement forms and documents on behalf of the Board of Trustees. Op. Att'y Gen. 73-179. The situation you present, however, is distinguishable as I am informed of no prevailing practice by TRS of allowing local school systems, local boards of education or superintendents' offices to routinely disseminate or accept and keep on file your TRS forms and applications. Therefore, based on the aforequoted statute and the foregoing authorities and rationale, it is my opinion that, under the circumstances outlined in your letter, the TRS Board of Trustees should not authorize the retroactive payment of retirement benefits to members for months prior to the time service retirement applications were filed. Accordingly, you have correctly advised the members generating this inquiry of their effective service retirement dates. OPINION 75-2 To: Commissioner, Department of Banking and Financing January 2, 1975 Re: Ga. Code Ann. 41A-1313 will not permit banks to charge rates of interest authorized to other organizations by virtue of a special charter, including the authority under Ga. Code Ann. 41A-3109. This is in reply to your request for an opinion as to whether Ga. Code Ann. 41A-1313 of the Financial Institutions Code (Ga. Laws 1974, pp. 705, 802), effective April 1, 1975, will permit banks to charge the rates of interest permitted to credit unions under Ga. Code Ann. 41A-3109 (Ga. Laws 1974, pp. 705, 900). Georgia Code Ann. 41A-1313 provides in pertinent part as follows: ".Whenever [the laws of this state] authorize a person or a corporation other than a bank to charge a special interest or fee rate with 3 75-2 respect to a designated type of loan, then a bank may charge such rate or fee on loans made by it which would qualify as the designated type of loan if made by the person or corporation so authorized without any requirement for the bank to obtain any license, qualification or permit." Georgia Code Ann. 41A-3109 establishes the interest rate which credit unions are authorized to exact. That section, along with other provisions of Ga. Code Ch. 41A-31, also establishes that credit unions may make loans to and exact the interest rate permitted by Code 41A-3109 from their members only. The issue thus presented is whether Code 41A-3109 is within the meaning of 41A-1313 an authorization to "a person or a corporation other than a bank to charge a special interest or fee rate with respect to a designated type of loan" and, if so, whether there are comparable circumstances under which a bank could make a loan "which would qualify as the designated type of loan" but for the requirement of a "license, qualification or permit." There are two reasons which preclude the conclusion that a bank under any circumstances would be authorized to exact the rate of interest permitted by Code 41A-3109. First, the authority contained in 41A-3109 is limited to a designated type of loan, a loan by a credit union to its members, or shareholders. If a bank possesses any authority under Code 41A-1313 similar to that of credit unions under Code 41A-3109, the authority extends only to loans to shareholders of the bank. Second, Code 41A-1313 contemplates that the loan made by the bank "would qualify as the designated type of loan" but for the requirement of a "license, qualification or permit." Since the authority of a credit union under Code 41A-3109 does not flow from a "license, qualification, or permit" but instead from the nature of the organization under Ga. Code Ch. 41A-30 or Ga. Code (1933) Ch. 25-1, it is apparent that there are no circumstances under which a bank may make a loan "which would qualify as the designated type of loan" within the meaning of Ga. Code 41A-1313. The reference under the pertinent provision of Ga. Code 41A-1313 is apparently to the authorization contained in the Georgia Industrial Loan Act, Ga. Laws 1955, p. 431, as amended (Ga. Code Ann. Ch. 25-3), and similar laws, which require a "license, qualification or permit," and clearly not to authority which flows from a special charter. It is, therefore, my official opinion that a bank will not be authorized to charge the rates permitted by Ga. Code Ann. 41A-3109. 75-3 4 OPINION 75-3 To: Commissioner, Department of Offender Rehabilitation January 9, 1975 Re: Under Ga. Laws 1972, pp. 742, 743 (Ga. Code Ann. 27-2530), a prisoner is not entitled to credit on his sentence for time spent in confinement awaiting trial on separate and unrelated charges. This is in response to your request for an opinion as to the computation of credit for time spent in confinement awaiting trial, under Ga. Laws 1972, pp. 742, 743 (Ga. Code Ann. 27-2530), when concurrent sentences of identical lengths are imposed in different courts at different times. In your letter you described the following fact situation. An individual was tried, convicted and sentenced in County A on February 1, 1974, after spending one month in jail in that county awaiting trial. While serving his County A sentence, the individual was taken to County B for trial on other charges on May 10, 1974, where he was convicted and received a sentence of the same length as the County A sentence. The County B court imposed the sentence to run concurrently with the other sentence. Your question is whether this individual is entitled to credit on his County B sentence for the month of pretrial incarceration in County A, or, alternatively, whether his County B sentence should be computed from January 1, 1974, the date of his original confinement in County A. If the second sentence were computed from January 1, this prisoner would be receiving credit on his second sentence for the time spent awaiting trial in County A, as well as the time spent serving the County A sentence prior to being tried in County B. The County B sentence would, in effect, commence on the same date as the previously imposed County A sentence. Such a result would be contrary to Ga. Code 27-2505 (Ga. Laws 1931, p. 165, as amended by Ga. Laws 1965, p. 230), which provides that a sentence shall run from the date of imposition, with certain exceptions. While Code 27-2505 provides that a sentence may not commence prior to the date of imposition, it does not affect computation of credit for time spent in jail awaiting trial. Ops. Att'y Gen. 70-127, 70-176. Even in the absence of this express statutory provision, imposition of the concurrent County B sentence of the same length as the previous sentence would not mean that the second sentence was to commence on the same date as the first sentence. When a sentence is imposed to run concurrently with one already being served, the subsequent sentence runs concurrently with the unexecuted portion of the previous sentence. Wilson v. Henderson, 5 75-4 468 F.2d 582, 584 (5th Cir. 1972). Accordingly, the sentence in question should not be computed from either the date of incarceration or the date of sentence in County A. The other part of your question is whether, under Ga. Laws 1972, pp. 742, 743 (Ga. Code Ann. 27-2530), this individual is entitled to credit on his County B sentence for the one month of incarceration awaiting trial in County A. In my opinion this statute was not intended to allow credit on a sentence for time spent awaiting trial on a separate and unrelated charge. An analogous question was presented in the construction of Ga. Code 27-2505, as originally enacted in Ga. Laws 1931, p. 165, which provided for credit for time spent in jail after imposition of sentence when no appeal was pending. The Georgia Supreme Court held that the statute "was not intended to apply to sentences at different terms of court." Goble v. Reese, 214 Ga. 697, 700 (1959). Similarly, it is my opinion that the statutory provision for credit for time spent in confinement awaiting trial was intended to apply only to confinement resulting from the charges for which the sentence in question was ultimately imposed. 18 U.S.C.A. 3568, the federal statute providing for credit for time spent in confinement awaiting trial, contains language limiting the amount of credit to "days spent in custody in connection with the offense or acts for which sentence was imposed." (Emphasis added.) While Ga. Laws 1972, pp. 742, 743 (Ga. Code Ann. 27-2530), contains a similar limitation on credit for institutional confinement for physical or mental disability while awaiting trials, the statute as originally enacted did not contain this specific limitation. Ga. Laws 1970, p. 692. Based on the foregoing discussion, however, I conclude that the statute was intended to be of such limited application. It is therefore my opinion that, in the situation described in your letter, the prisoner in question does not receive credit on his County B sentence for the month of confinement awaiting trial in County A. OPINION 75-4 To: Director, Office of Planning and Budget, Executive Department January 9, 1975 Re: Commissioner of Human Resources has statutory authority to establish the structural organization of the Department of Human Resources, including authority to establish regional offices, and to expend available funds for those purposes. This is in reply to your request for an opinion as to whether the 75-4 6 Office of Planning and Budget may approve an amendment to the Fiscal Year 1975 operating budget of the Department of Human Resources. Ga. Laws 1974, pp. 1508, 1559 (Section 22), 1632 (Section 45). The requested amendment proposes a transfer of state funds from a number of budget activities within the same object class and an addition of federal funds in order to provide operating funds for a series of sub-state, or regional, offices which are to perform various administrative functions in the operation of the department. You request an opinion as to whether the organizational structure which is proposed to be so funded is authorized by law and whether funds may be expended in its operation, and, thus, whether the Office of Planning and Budget may approve this amendment. For purposes of this opinion, in order to reach the questions presented, I have assumed that the proposed transfer is otherwise within your authority. Section 1201 of the Executive Reorganization Act of 1972 provides in pertinent part as follows: "There is created the position of Commissioner of Human Resources ... Subject to the general policy established by the Board [of Human Resources], the Commissioner shall supervise, direct, account for, organize, plan, administer, and execute the functions vested in the Department by this Act." Ga. Laws 1972, pp. 1015, 1046 (Ga. Code Ann. 40-35101). This power to "organize" and to "administer" the Department of Human Resources patently includes both the power to establish the internal structure of the department, including the power to establish such sub-state, or regional, offices as may be necessary or convenient to the proper organization and administration of the department as well as the power to expend available public funds therefor. See Op. Att'y Gen. 74-154. The exercise of that power to establish the internal structure of the department and to expend available funds for those purposes is not inhibited by any other provision of the Executive Reorganization Act, or by Ga. Laws 1972, p. 1069, or by the statutory foundation for the functions transferred to the department. The substantive statutory limitations on the authority of the commissioner with respect to the internal organization of the department do not relate to structure but instead to the allocation of authority within that structure (see, e.g., Op. Att'y Gen. 73-67), and to any necessary involvement of the State Personnel Board under Ga. Laws 1971, p. 45 (Ga. Code Ann. Ch. 40-22),1 which in my understanding was obtained prior to the establishment of the positions involved in the sub-state organization. It is, therefore, my official opinion that the Commissioner of Human Resources has the power under general law to establish the 1 Ga. Laws 1971, p. 45, superseded by Ga. Laws 1975, p. 79, now the basis for Ga. Code Ann. Ch. 40-22. 7 75-5 internal structure of the Department of Human Resources, including such regional offices and related positions as he deems necessary or convenient, to carry out his lawful responsibilities and those of the Department of Human Resources and to expend otherwise available funds in order to do so. In order to achieve any such objective, however, it is necessary that there be available to the department the funds necessary to meet the expenses generated by such an organization. It is with respect to this practical necessity that the appropriations process and its legal ramifications become involved. Consistently, and repeatedly, I have concluded that an appropriations Act constitutionally may not alter the responsibilities or powers of a state agency which are derived from general law. Ops. Att'y Gen. 73-174, 73-162, 73-132, 73-80, 67-189. However, nothing in the General Appropriations Act for Fiscal Year 1975, Ga. Laws 1974, p. 1508, even purports to alter the substantive powers of the Department of Human Resources derived from Section 1201 of the Executive Reorganization Act of 1972, or to prohibit the expenditure of appropriated funds for the purposes outlined above. Necessarily, if a General Appropriations Act cannot and does not purport to do so, the political processes which produced it cannot alter the substantive powers and duties which flow from general law or the availability of funds under the appropriations Act. See, e.g., McLarty v. Board of Regents, 231 Ga. 22 (1973). It is, therefore, my official opinion that the Commissioner of Human Resources has the power under general law to establish the structural organization of the Department of Human Resources and that this power includes the authority to establish regional offices and to expend available funds for those purposes. It is further my official opinion that nothing in the General Appropriations Act for Fiscal Year 1975 purports to alter those substantive powers. OPINION 75-5 To: Joint Secretary, State Examining Boards January 15, 1975 Re: Licensed hearing aid dispensers are prohibited from holding themselves out as "audiologists" or as "certified hearing aid audiologists.'' You have requested my opinion on whether a hearing aid dealer or dispenser licensed under Ga. Laws 1970, p. 653 (Ga. Code Ann. Ch. 84-56), may use the term "audiologist" in his advertising. You spe- 75-5 8 cifically noted that some hearing aid dispensers presently represent themselves as "certified hearing aid audiologists." For the reasons stated hereinafter, it is my official opinion that such a practice is prohibited by both the Hearing Aid Dealers and Dispensers Act and the Speech Pathology and Audiology Licensing Act. The Speech Pathology and Audiology Licensing Act (Ga. Laws 1974, p. 1009) provides in Section 7 (a) that: a . .. no person shall practice or hold himself out as being able to practice either speech pathology or audiology in this State unless he is licensed...." Ga. Code Ann. 84-6707 (a). Section 3 (e) of that same Act defines the practice of audiology in pertinent part as follows: ". . . the application of principles, methods and procedures of measurement, testing, appraisal [and] prediction ... related to hearing and disorders of hearing for the purpose of modifying communicative disorders involving ... auditory behavior or other aberrant behavior related to hearing loss; and the ... participating in programs of identification, hearing conservation, habilitation, and rehabilitation, including hearing aid recommendation and evaluation procedures such as, but not limited to, specifying amplification requirements and evaluation of the results thereof. ..." (Emphasis added.) Ga. Code Ann. 84-6703 (e). By themselves, these two sections would require that a hearing aid dispenser performing those services which he is licensed to provide under the Hearing Aid Dealers and Dispensers Act also be a licensed audiologist under the Speech Pathology and Audiology Licensing Act in order to practice his trade. As in the case of optometrists and opticians, and other related professions and trades, the types of practice permitted under each Act involved here overlap. The General Assembly recognized the overlap between the hearing aid dealers and audiologists and thus provided in Section 7 of the Speech Pathology and Audiology Licensing Act that: "... nothing in this Act shall be construed to prevent a person licensed or certified under any other law of the State of Georgia, such as ... persons dispensing hearing aids, from engaging in the activities for which he is licensed or certified." Ga. Code Ann. 84-6707. Again in subsection F of Section 7 the existing and prospective rights of licensed hearing aid dispensers are preserved: " ... nothing in this Act shall be construed to limit in any way the rights of hearing aid dispensers licensed under Georgia law, as set 9 75-5 forth in the Act creating the Board of Hearing Aid Dealers and Dispensers, approved March 24, 1970 (Ga. Laws 1970, p. 653 et seq.) as the same now exists or as it may hereafter be amended." Ga. Code Ann. 84-6707. The aforementioned exceptions to the Speech Pathology and Audiology Licensing Act lead the inquiry to an examination of the scope of the rights granted licensees under the Hearing Aid Dealers and Dispensers Act (Ga. Code Ann. Ch. 84-56). The issue, specifically, is whether that Act authorizes hearing aid dealers and dispensers to hold themselves out as "audiologists." Section 2 (B) of The Hearing Aid Dealers and Dispensers Act states that a license: " ... shall entitle the holder to select, dispense and sell hearing aid devices or instruments...."Ga. Code Ann. 84-5602 (B). The practice of dispensing and selling is defined by Section 3 (F) to mean: " ... the selling, renting or leasing of hearing aid devices or instruments and shall entitle the holder of a license granted under this Chapter to make such measurements of the dimensions of human hearing, by means of an audiometer or other instruments or by other means approved by the board, as are consistent with the practices, procedures and instrumentation currently employed by the hearing aid industry, for the sole purpose of making selections and/or adaptations of hearing aids for the sale of such hearing aids." (Emphasis added.) Ga. Code Ann. 84-5603 (F). Therefore, a licensed hearing aid dispenser may, when fitting a hearing aid, conduct some of the tests that a licensed audiologist also conducts. By granting limited authority to conduct these tests, it does not appear that the General Assembly intended to allow a hearing aid dispenser to represent himself as an audiologist. Sections 13 (B) and 16 (H) (5) of the Act specifically recognize that a hearing aid dealer or dispenser is not an audiologist. Section 16 (H) (5) expressly prohibits a licensed hearing aid dealer or dispenser from representing: " ... that the services or advice of ... an audiologist will be used and made available in the selection, adjustment, maintenance or repair of hearing aids when that is not true...." Moreover, that same section states that using the words: " ... clinical audiologist ... or any other term, abbreviation, or symbol when it would falsely give the impression that one is being treated medically or professionally ..." constitutes unethical practice constituting grounds for the suspension or revocation of a hearing aid dispenser's license. Ga. Code Ann. 84-5616 (H) (5). 75-6 10 These provisions specifically recognize that a licensee under the Act is not an "audiologist" of any character or description and cannot represent his services as including those of an "audiologist." The use of the term "certified hearing aid audiologist" represents that the services of an audiologist are provided. Since this violates the Hearing Aid Dealers and Dispensers Act, it is not excepted from the coverage of the Speech Pathology and Audiology Licensing Act by Section 7 thereof and is therefore prohibited also by the latter Act. The use of the term "audiologist" by a hearing aid dispenser, particularly in light of the Speech Pathology and Audiology Licensing Act that created state licensed audiologists1 can only serve to confuse and mislead the public as to what services they may expect and receive from a person practicing a particular profession. This is clearly contrary to the intent of the General Assembly which divided the general profession of treating hearing disorders into two distinct categories with different educational requirements. Dispensing hearing aids and making limited hearing tests for the same purpose has been deemed by the legislature to require less training than audiology that covers the full gamut of testing and diagnosis of speech and hearing disorders. It is, therefore, for the foregoing reasons my official opinion that, consistent with the Hearing Aid Dealers and Dispensers Act and the Speech Pathology and Audiology Licensing Act, a licensed hearing aid dispenser may not represent himself to be a "certified hearing aid audiologist." OPINION 75-6 To: Director, Fiscal Division, Department of Administrative Services January 17, 1975 Re: The guarantee of the Federal Savings and Loan Insurance Corporation will not be a sufficient substitute for the bond required of all state depositories by Ga. Code Ann. 100-108. This is in response to your recent request for my opm10n as to whether the guarantee of the Federal Savings and Loan Insurance Corporation would be a sufficient substitute for the bond required of all state depositories by Ga. Code Ann. 100-108 (amended by Ga. Laws 1973, pp. 149, 153). I understand your request is prompted by the fact that Ga. Laws 1973, p. 924, became effective January 1, 1975 1 Section 2 of this Act states the legislative purpose to be " ... that in order to safeguard the public health, safety and welfare, and to protect the public from being misled by incompetent, unscrupulous and unauthorized persons, it is necessary to provide regulatory authority over persons offering speech pathology and audiology services to the public." Ga. Code Ann. 84-6702. (Emphasis added.) 11 75-6 and thus triggered the provision, added by Ga. Laws 1973, p. 149, to Ga. Code Ann. 100-101, which, in pertinent part, provides that: "At such time as an Act providing that banks and savings and loan associations shall be taxed in the same manner as other corporations are taxed becomes effective, the board may also name and appoint as state depositories of state funds any building and loan association or federal savings and loan association which has its deposits insured by the Federal Savings and Loan Insurance Corporation." Georgia Code Ann. 100-108, in pertinent part, provides that: "The director cannot have on deposit at any one time in any of the depositories for a time longer than 10 days, a sum of money belonging to the state under a contract with the depository providing for the payment of interest by a depository which has not given a bond to the state in the amount as determined by the board." In lieu of providing this bond, Code 100-108 provides five alternative forms of security which may be tendered to the director. Four of these classes are completely inapplicable to the situation at hand in that they relate to direct obligations of the United States, of the state and its political subdivisions, and obligations of certain public authorities. The remaining alternative provides at subsection (5) that: "A state depository may deposit with the director bonds, bills, certificates of indebtedness, notes or other obligations of a subsidiary corporation of the United States Government, which are fully guaranteed by the United States Government both as to principal and interest, and the guarantee of the Federal Deposit Insurance Corporation shall be accepted as collateral by the director to cover state funds on deposit in state depositories to the extent authorized by the federal law governing the Federal Deposit Insurance Corporation." In your letter requesting my opinion you noted that the omission in the amendment by Ga. Laws 1973, p. 149, to Code 100-101, of an amendment to Code 100-108 so as to add the guarantee of the Federal Savings and Loan Insurance Corporation as sufficient security for state deposits was undoubtedly an oversight on the part of the drafters of the law. It is my opinion that the omission, for whatever reason, will preclude your acceptance of such a guarantee, for while the Federal Savings and Loan Insurance Corporation is a wholly owned corporation of the United States Government pursuant to 31 U.S.C. 846, its obligations are not guaranteed as to principal and interest by the United States Government. 75-6.1 12 A review of 12 U.S.C. 1725 et seq., which establishes the Federal Savings and Loan Insurance Corporation and regulates its activities, clearly indicates that the United States Government does not guarantee the obligations of the Federal Savings and Loan Insurance Corporation. The law contains detailed provisions for the recoupment of any losses incurred by the Federal Savings and Loan Insurance Corporation and the principal source of this recovery is from insured federal savings and loan associations. The only recourse which the Federal Savings and Loan Insurance Corporation has to the United States Government is found in 12 U.S.C. 1725 (i) which authorizes the Federal Savings and Loan Insurance Corporation to borrow, at terms set by the Secretary of the Treasury, sums of money from the United States Government. However, this section clearly indicates that the United States Government is not guaranteeing the obligations of the Federal Savings and Loan Insurance Corporation, but rather is merely a source of loans for the Federal Savings and Loan Insurance Corporation if the need arises. On the other hand, and to illustrate the difference, the National Railroad Passenger Corporation, created by 45 U.S.C. 541 et seq. and classified as a "mixed-ownership" government corporation by 31 U.S.C. 856, is authorized by 45 U.S.C. 602, to issue obligations which are specifically guaranteed as to principal and interest by the United States Government. Therefore, since there exist government corporations whose obligations are specifically guaranteed as to principal and interest, which is the language used in Code 100-108, the statutory rule of construction that words are to be given their ordinary signification would require the conclusion that it was to the obligations of these corporations that the General Assembly was referring in Code 100-108. Since the Federal Savings and Loan Insurance Corporation is not a corporation whose obligations are guaranteed as to principal and interest and since its guarantee is not otherwise included as a sufficient substitute for the bond required of state depositories by Ga. Code Ann. 100-108, it is my opinion that you may not accept the guarantee of the Federal Savings and Loan Insurance Corporation in lieu of such bond. OPINION 75-6.1 To: General Manager, Stone Mountain Memorial Association January 17, 1975 Re: Employees of the Stone Mountain Memorial Association are not eligible to participate in the State Employees Health Insurance Plan. 13 75-7 This IS m response to your recent request for my opinion as to whether employees of the Stone Mountain Memorial Association are eligible to participate in the State Employees Health Insurance Plan. The law creating the Insurance Plan reads, in pertinent part, as follows: "The contract or contracts shall provide for health insurance for retiring state employees and their spouses and dependent children ... , and the board [State Personnel Board] may authorize the inclusion in the plan of the employees ... of f']tate authorities covered by the Employees Retirement System of Georgia and their spouses and dependent children...." (Bracketed matter and emphasis added.) Ga. Laws 1961, pp. 147, 150 (Ga. Code Ann. 89-1207). Although not denominated as such, the Stone Mountain Memorial Association is an authority of the State of Georgia. 3 E.G.L. Authority Financing, 45. See, e.g., Ga. Laws 1973, pp. 750, 752 (Ga. Code Ann. 87-102a). See also, e.g., Op. Att'y Gen. 71-121; and Op. Att'y Gen. 69-253 (Unofficial). You have informed me that association employees are covered by private retirement plans rather than the Employees Retirement System of Georgia. Thus, association employees, being employees of a state authority not covered by the Employees Retirement System of Georgia, do not meet the eligibility requirements set forth in the above quoted portion of Ga. Laws 1961, pp. 147, 150. Based on the foregoing, it is my opinion that employees of the Stone Mountain Memorial Association are not eligible for participation in the State Employees Health Insurance Plan. In view of the opinion expressed herein, Ops. Att'y Gen. 1962, p. 472, is hereby expressly rescinded. OPINION 75-7 To: State Revenue Commissioner January 22, 1975 Re: Where title to real estate is vested in two or more owners (or in an administrator, executor or trustee) and one of the joint owners (or an heir or cestui que use) who resides on the property meets the criteria for one of the applicable homestead exemptions and applies for the homestead exemption, the applicant is only entitled to claim a proportionate exemption of the amount allowed by law in proportion to which his interest bears to the total interest of the property. This is in reply to the request of your predecessor, John A. Blackmon, for my opinion on two questions concerning Article VII, Section I, 75-7 14 Paragraph IV of the Georgia Constitution of 1945 (Ga. Code Ann. 2-5404). The questions are: 1. Where two or more individuals are vested with legal title to real estate which otherwise meets the various criteria for homestead exemption and one of the joint owners who actually occupies the property as a residence applies for the homestead exemption, is the applicant entitled to the full amount of the homestead exemption under certain quoted language in that Paragraph of the Constitution? 2. Where an executor, administrator, or trustee is vested with legal title to real estate which otherwise meets the various criteria for homestead exemption and one or more of the heirs to the estate who actually occupies the property as a residence applies for the homestead exemption, is the applicant entitled to the full amount of the homestead exemption under the provisions of the same Paragraph of the Constitution? The language of Article VII, Section I, Paragraph IV of the Constitution to which you refer reads as follows from the enrolled Actt (i.e., enrolled Resolution proposing the amendment): "The exemptions granted to the homestead within this Paragraph shall extend to and shall apply to those properties, the legal title to which is vested in one or more title holders, if actually occupied by one or more such owners as a residence. In such instances, such exemptions shall be granted to such properties, if claimed in the manner herein provided by one or more of the owners actually residing on such property. Such exemptions shall also extend to those homesteads, the title to which is vested in an administrator, executor or trustee, if one or more of the heirs or cestui que uses residing on such property shall claim the exemptions granted by this Paragraph in the manner herein provided." I. QUESTION ONE. The language about which you inquire is found in a self-contained paragraph in Paragraph IV of the referred to provision of the Constitution. Similar language is found in two other paragraphs in Paragraph IV. In the homestead exemption for residents of independent school districts who are 62 years of age or over, and again in the homestead exemption for residents of county school districts who are 62 years of age or over, the following language is found: "The exemption granted to the homestead within this Paragraph shall extend to and shall apply to those properties, the legal title 1 The printed Act, Ga. Laws 1970, p. 1049, is somewhat garbled. 15 75-7 to which is vested in one or more title holders, if actually occupied by one or more such owners as a residence, and one or more such title holders possesses the qualifications provided for in this Paragraph.2 In such instances, such exemptions shall be granted to such properties, if claimed in the manner herein provided by one or more of the owners actually residing on such property. Such exemptions shall also extend to those homesteads, the title to which is vested in an administrator, executor or trustee, if one or more of the heirs or cestui que uses residing on such property shall possess the qualifications provided for herein and shall claim the exemptions granted by this paragraph in the manner herein provided." This quoted language will be referred to as the "School District Exemption Amendments," while the first quoted paragraph above will be referred to as the "1970 amendment." Both the 1970 amendment and the School District Exemption Amendments are clarifying and implementing provisions, since these provisions do not themselves grant any exemption, but clarify and aid in the implementation of the other exemptions contained in Paragraph IV. The General Assembly has enacted statutes which also clarify and implement the homestead exemptions. Two of these statutes are relevant to the instant inquiry. The first is Ga. Laws 1945, pp. 435, 437 (Ga. Code Ann. 92-219.1) (hereinafter referred to as " 92-219.1"), which provides: "Where the property on which a homestead exemption is claimed is jointly owned by the occupant and others, the occupant or occupants shall be entitled to claim a proportionate exemption of the amount allowed by law in proportion to which the interest of the occupant bears to the total interest of the property." The other statute is Ga. Laws 1937-38, Extra. Sess., pp. 145, 147, as amended by Ga. Laws 1939, pp. 99, 100 (Ga. Code Ann. 92-233 (j)) (hereinafter referred to as " 92-233 (j) "), which provides: "[The word 'homestead' whenever used in this law shall mean and is defined to be the following:] "Where the property is owned and occupied jointly by two or more persons all of whom occupy the property as a home and if otherwise entitled to a homestead such homestead may be claimed in the names of such joint owners residing in said home." The existence of 92-219.1 complicates the question which you have asked about the 1970 amendment to the Constitution. A review of the 2 The italicized language is not present in the provision about which you inquired. See footnote 4, infra. 75-7 16 legislative history of the provisions applicable to homestead exemptions is helpful in determining the proper relationship between the 1970 amendment and 92-219.1. A. Legislative history. The first provision for a homestead exemption from ad valorem taxation was passed in 1937 as an amendment to the Georgia Constitution of 1877. See Ga. Laws 1937, p. 1122. This exemption, which was later incorporated into the Constitution of 1945,3 is the general homestead exemption, which provides that the homestead of each resident actually occupied by the owner as a residence and homestead is exempted from ad valorem taxation up to $2,000 of its value. The general exemption was implemented by Ga. Laws 1937-38, Extra. Sess., p. 145, as amended, particularly by Ga. Laws 1939, p. 99. The implementing legislation defined homestead in terms of real property owned and resided upon, and the 1939 Act added 92-233 (j) quoted above. In 1946 additional implementing language was enacted (see Ga. Laws 1946, pp. 12, 14; Ga. Code Ann. 92-219) which provided that the homestead of each resident of Georgia was exempt from ad valorem taxation up to $2,000 where actually occupied by the owner as a residence and homestead, and only so long as actually occupied by the owner primarily as such. Thus, up to that point in time the implementation of the homestead exemption (which was only the general exemption) had proceeded as follows. The Constitution itself exempted "[t]he Homestead of each resident of Georgia actually occupied by the owner as a residence and homestead, and only so long as actually occupied by the owner primarily as such" (emphasis added), but not to exceed $2,000 of its value. The first implementing legislation (1937-38) provided that the homestead exempted had to be actually occupied as the permanent residence and place of abode by the person awarded the exemption. See Ga. Laws 1937-38, Extra. Sess., pp. 145, 148 (Ga. Code Ann. 92-233 (h)). Then (in 1938) the implementing legislation was amended to require that where the property was owned and occupied jointly by two or more persons the homestead could be claimed in the names of the joint owners residing there. Ga. Laws 1939, pp. 99, 100 (Ga. Code Ann. 92-233 (j)). In 1945 92-219.1 was enacted, providing that where the homestead was jointly owned and occupied, the occupant-owner could 3 The Constitution of 1945 changed the sequence of the provisions somewhat, added a provision extending the exemption to farm owners participating in the program of rural housing, modified the language to make it clear that the value of all property in excess of the exemption was to remain subject to taxation, excepted city taxes from the exemption, and gave the General Assembly authority to prescribe the manner for claiming the exemption. Compare Ga. Laws 1937, pp. 1122, 1123, with Ga. Laws 1945, pp. 8, 60. None of these changes affect the question under consideration in the instant opinion. 17 75-7 claim the exemption only in proportion to his interest in the property. (Ga. Laws 1945, p. 435.) Whereas 92-233 (j) was limited to situations where all the joint owners occupied the property, 92-219.1, in addition to prorating the exemption, appeared to authorize the owner of an undivided interest who occupied the property alone to claim an exemption. See Ops. Att'y Gen. 1954-56, p. 735 (unofficial), wherein it is pointed out that: "The homestead Act as originally written ... failed to provide for any homestead to be granted to an owner of an undivided interest occupying the property. However, the Act was amended ... [by] 92-219.1 and [thus a joint owner of property which he alone occupies is entitled to a homestead exemption proportionate to his share in the property]." After 92-219.1 was enacted, the homestead exemption for disabled veterans was passed (see Ga. Laws 1957, p. 72 (ratified in 1958)), and the homestead exemption for persons 65 years of age or over was passed (see Ga. Laws 1968, p. 1690 (ratified in 1968)). Then the 1970 amendment was passed. Subsequently, the two School District Exemption Amendments for persons 62 years of age or over were passed with language similar to that found in the 1970 amendment. See Ga. Laws 1972, pp. 1460, 1463 (ratified in 1972); the language of these amendments is similar to that of the 1970 amendment but also contains additional language which is not found in the 1970 amendment. 4 B. Construction of the 1970 amendment. Due to its ambiguous language, a reading of the 1970 amendment produces at least three possible constructions. One construction equates the effect of the amendment with the purpose of clarifying the general exemption so as to authorize some exemption in cases where an owneroccupier holds an undivided interest. This construction is compatible with 92-219.1, and would assure those individuals otherwise entitled to the general exemption and the two exemptions passed after the general exemption, i.e., the disabled veterans' exemption and the 65 years of age or older exemption, of being able to claim a pro rata exemption (under 92-219.1) where they were an owner occupying the 4 The additional language of the School District Exemption Amendments, which comes after the phrase "if actually occupied by one or more such owners as a resi- dence," and provides: "and one or more such title holders possesses the qualifications provided for in this Paragraph," could be interpreted to mean that in the case of these two exemptions if only one of the owners occupying the property meets the qualifications for the exemption, then the other owners would also be entitled to claim the exemption (whether prorated or not). This result was, however, not intended by the legislature, as is shown by Ga. Laws 1974, pp. 183, 185 (Ga. Code Ann. 92-238.3); thus it is clear that the 1970 amendment, which lacks this language, was not intended to authorize an exemption (of any amount) to an individual who does not personally qualify for the particular exemption. 75-7 18 property alone and holding an undivided interest in the property.5 The other two constructions, to which your question directly alludes, are that in cases of multiple owner-occupiers the 1970 amendment would extend the full amount of each homestead exemption to one,6 or to each/ of the qualifying applicants. For the sake of convenience these three constructions will be referred to as constructions one, two and three, respectively. It is necessary to look to the rules of statutory construction to determine which is the proper construction. The courts have held that in determining the nature and extent of tax exemptions both constitutional and statutory language will be construed strictly against exemption. See, e.g., Campbell v. Red Bud Consol. School Dist., 186 Ga. 541, 546 (1938). Also, a cardinal rule of construction is that the intention of the framers is to be diligently looked for and given effect. Forrester v. North Ga. Elec. Mem. Corp., 66 Ga. App. 779, 787-88 (1942). In regard to potential conflict between statute and Constitution, it is clear that statutes must be construed, if fairly possible, so as to avoid a conclusion of unconstitutionality. Carpenter v. Forshee, 103 Ga. App. 758, 768 (1961) (and so as to avoid grave doubts upon the constitutionality). It has even been said that the courts have a duty to uphold the constitutionality of a statute if possible. Jones v. City of College Park, 223 Ga. 778, 782 (1967). Where there is more than one possible interpretation, a court will choose the constitutional one (see Carpenter v. Forshee, supra, at 768), and statutes will be construed in harmony with other statutes and with case decisions. Spence v. Rowell, 213 Ga. 145, 150 (1957). Thus, if a possible interpretation exists which is compatible with the apparent legislative purpose of the constitutional amendment, that construction is to be preferred. Construction one noted above results in a harmonious application of both the 1970 amendment and 92-219.1, while constructions two and three result in the conclusion that the 1970 amendment and 92-219.1 are incompatible. The rule of strict construction clearly indicates that construction three is not the proper one and that the full amount of the exemptions is not to be granted to each of multiple 6 An example of this construction would be that where A, B, C and D own a homestead equally and A and B occupy it, A and B, if otherwise qualified for the particular exemption sought, would each be entitled to one-fourth of the amount of the exemp- tion ($500 apiece, or $1000 to the property, for the general exemption). a An example of this construction would be that where A, B, C and D own a home- stead equally, and A and B occupy it and both qualify for the particular exemption sought, the full exemption ($2000 for the general exemption) would be granted to either A orB (or divided between A and B, see footnotes 8 and 9 and accompanying text, infra). 7 An example of this construction would be that where A, B, C and D own a home- stead equally and A and B occupy it, both A and B, if otherwise qualified for the particular exemption sought, would be entitled to the full amount of the exemption ($2000 apiece, or $4000 to the property, for the general exemption). 19 75-7 owners, since there is no specific authorization for such a result. While the same conclusion is not so clear in regard to construction two, nevertheless the strict construction rule does also tend to indicate that the full amount of the exemptions is not to be granted to a partial owner who is the sole applicant. However, in order to determine which, as between one and two, is the proper construction, further analysis is necessary. In looking for the legislative intent, there are no factors on the face of the 1970 amendment which indicate a definite intent to grant the full amount of the exemptions to a holder of a partial interest in the property. The only language which authorizes construction two is: "The exemptions ... shall extend to and shall apply to those properties ..."and "In such instances, such exemptions shall be granted to such properties." However, this language does not include terminology equivalent to "full," "whole," "entire," or the like. It would have been a simple matter to have provided in the 1970 amendment, or in the two later School District Exemption Amendments, that the full amount of each exemption was to be allowed to partial owners. Also, if the legislature had intended to do away with the pro rata requirement it would have been simpler to have repealed 92-219.1 and enacted a new statute than it was to pass the constitutional amendment. Neither of these was done, and even after passage of the 1970 amendment no change was made in 92-219.1. Since the legislature is deemed to know of existing statutes when passing new laws or resolutions (see generally, Spence v. Rowell, supra, at 150), it seems that 92-219.1 was not intended to be changed by the 1970 amendment. It is more likely that the 1970 amendment was intended to clarify 92-219.1 by making it clear that in instances of multiple, undivided interests, qualified applicants could properly seek a proportionate exemption. In earlier opinions this office has taken the position that a constitutional amendment should be read in pari materia with the original homestead provision in the Constitution and with the statutes passed to carry the original provision into effect. Thus it was ruled that the disabled veterans' exemption, which was passed subsequent to 92-219.1, must be read in pari materia with 92-219.1 and must be prorated, so that a joint owner-occupier is entitled only to a proportionate exemption of the amount allowed by law in proportion to which his interest bears to the total interest in the property. See Ops. Att'y Gen. 1960-61, p. 492. See also Op. Att'y Gen. 69-60 (Unofficial), reaching a similar result for the homestead exemption for persons 65 years of age or over, ruling that where there is joint ownership of the homestead property, each owner may only assert his claim as an applicant for an exemption based upon the interest he holds in the property. The rationale of these opinions applies to the 1970 amendment. 75-7 20 A common law rule on homestead exemptions further supports a conclusion that construction one is the correct one and that only proportionate exemptions may be granted to partial owners. That rule is that a person1S homestead right in property can never rise any higher than the right, title or interest that he owns in the property. See Sayers v. Pyland1 161 S.W.2d 7691 773 (Tex. 1942). Since 92-219.1 is1 in effect, a codification of this rule, it is difficult to conclude that the ambiguous language of the 1970 amendment was intended to negate 92-219.1, as the adoption of construction two would do. In addition, if construction two is adopted some difficult questions are raised1 such as which partial owner gets the exemption where two or more owners qualify and apply,8 and to what amount would a parcel of property be limited when owners qualify for more than one type of homestead exemption.9 These problems are not raised by construction one. Therefore, while the language of the 1970 amendment is ambiguous and it is difficult to ascertain with complete certitude the precise legislative intent, nevertheless, it appears that neither the purpose nor the legal effect of the 1970 amendment was to grant a "fulF' exemption to partial owners occupying a homestead and that 92-219.1 is not in irreconcilable conflict with the 1970 amendment. The amendment seems to extend, as 92-219.1 and 92-233 (j) did in part, the homestead exemption to owner-occupants holding an undivided interest in property. The 1970 amendment also seems to further clarify the legislative intent behind the granting of the original homestead exemption by making it clear1 which 92-219.1 and 92-233 (j) did not do, that an individual could apply for the exemption if he was the only owner actually occupying the property.10 The 1970 amendment also, quite obviously1 accomplishes another purpose, and that is the extending of the homestead exemption to property in which the title is vested in an administrator1 executor or trustee, where an heir or cestui que use resides on the property and claims the exemption. No other provision of 8 Every individual is responsible for returning and paying taxes on his ownership interest in property (see Ga. Code (1933) 92-104, 92-110, 92-5712), and the right of an individual to claim a homestead exemption is a personal right. See In re Trammell, 5 F.2d 326 (N.D. Ga. 1925). Under construction two there is no criteria for determining whether the first applicant or the first to acquire his interest would get the exemption where more than one owner qualified and applied. 9 For example, if in the illustration used in footnote 6, supra, "A" qualified for the disabled veterans' exemption and "B" qualified for the school district exemption, there is no basis under construction two for determining the total allowable exemption for the property. 10 This is indicated by the fact that the amendment uses the language "one or more" in relation to owners no less than four times. 21 75-7 the Constitution or of any statute had previously authorized the extending of the exemptions to this situation as fully as this.U II. QUESTION TWO. As stated above, the latter part of the 1970 amendment extends the homestead exemptions to heirs and cestui que uses. In so doing, it uses substantially the same language as used in the first part of the 1970 amendment.12 Thus, the same three constructions discussed in regard to the first part of the 1970 amendment are possible in interpreting the language of the 1970 amendment regarding heirs and cestui que uses. It is not clear, however, whether or not 92-219.1, with its pro rata requirement, applies to the case of heirs and beneficiaries of trusts. Section 92-219.1 may not apply to the case of heirs and beneficiaries of trusts because it makes no specific mention of heirs or cestui que uses. However, 92-219.1 may apply and aid in the resolution of your second question, because the phrase "jointly owned" in 92-219.1 does seem broad enough to encompass cases of ownership involving executors and heirs or administrators and beneficiaries of trusts. If 92-219.1 does apply to the latter part of the 1970 amendment, then the reasoning set forth in part I of this opinion regarding construing 92-219.1 in harmony with the 1970 amendment, and the rule that the legislature is deemed to know of the existing law when passing new laws, would apply and construction one would again seem to be the proper construction. If, on the other hand, 92-219.1 does not apply to homestead exemptions claimed by heirs and cestui que uses, the other rules of construction must be considered anew. The language of the latter part of the 1970 amendment does not specifically authorize the granting of a "full" exemption to an heir or cestui que use or to each heir or cestui que use residing on the property. Thus, the rule of strict construction requires the conclusion that a "full" exemption is not to be granted to such heirs or cestui que uses, or to the property. See Davis v. City of Atlanta, 206 Ga. 652, 655 (1950) (every doubt is to be resolved in favor of taxation and against exemption). If the full exemption is not to be granted, then following the rule that one's homestead right in property can never rise higher than his right, title or interest in the property u Ga. Laws 1937-38, Extra. Sess., pp. 145, 148, as amended (Ga. Code Ann. 92-233 (d)), does include within the meaning of "homestead" the situation where children of deceased parents occupy the property, whether the estate is distributed or not. However, this provision does not extend the exemptions as far as the 1970 amendment, which goes to all heirs and cestui que uses. 1 2 The language of the latter part of the 1970 amendment is: "Such exemptions shall also extend to those homesteads, the title to which is vested in an administrator, executor or trustee, if one or more of the heirs or cestui que uses residing on such property shall claim the exemption granted by this Paragraph in the manner herein provided." 75-8 22 (Sayers v. Pyland, supra), heirs and cestui que uses would be limited to claiming an exemption in an amount equal to the value of their interest in the property in relation to the total value of the property. Therefore, whether 92-219.1 applies or does not apply, it would seem that heirs and cestui que uses are not entitled to claim a "full" homestead exemption in cases of multiple heirs and cestui que uses. III. CONCLUSION. In light of the foregoing it is my official opinion that where two or more individuals are vested with title to real estate and one of the joint owners who actually occupies the property as a residence meets the criteria for one of the applicable homestead exemptions and applies for the homestead exemption, the applicant is not entitled to the full amount of the exemption but is only entitled to claim a proportionate exemption of the amount allowed by law in proportion to which his interest bears to the total interest of the property. Similarly, where an executor, administrator or trustee is vested with legal title to real estate and an heir or cestui que use who otherwise meets the criteria for one of the applicable homestead exemptions resides on the property and applies for the homestead exemption, the applicant is not entitled to the full amount of the exemption but is only entitled to claim a proportionate exemption of the amount allowed by law in proportion to which his interest bears to the total interest of the property. OPINION 75-8 To: Executive Secretary-Treasurer, Teachers Retirement System January 29, 1975 Re: The proper effective date for service retirement applications under TRS is the first of the month following the month in which the member's employment is terminated. This replies to your recent letter. You ask my opinion on the proper interpretation of the Teachers Retirement System (TRS) statute governing the effective date of service retirement applications. As I understand it, your question concerns members who terminate their employment after working into a certain month, but before the middle of that month. You advise that members who work less than one-half of any given month do not make any contributions to TRS for that month, nor are they given service retirement credit for that month. Your question can be illustrated as follows: Ms. Smith, a hypothetical member, is employed as a teacher by Central City High School and is a member of TRS. She gives notice and plans to terminate her em- 23 75-8 ployment relationship with Central City effective June 10, 1975. Having the requisite service and age for retirement, on June 5, 1975 she files an application. She has worked into, but less than half of, June 1975. Therefore, she makes no contributions to TRS for June 1975, nor does she receive any credit for that month. Your question is whether her effective retirement date should be June 1 or July 1, 1975. The TRS statute relevant to your inquiry reads in part as follows: " ... The effective date of retirement will be the first of the month in which the application is received by the board of trustees; however, no retirement application will be effective earlier than the first of the month following the final month of the applicant's employment. Applications for retirement will not be accepted more than 90 days in advance of the effective date of retirement." Ga. Laws 1943, p. 640 et seq., as amended; Ga. Code Ann. 32-2905 (1). This statute is not linked to contributions or creditable service. It keys on the termination of the member's employment relationship. It appears designed to insure that retirement benefits do not begin until after the teacher is no longer employed and is, in fact, retired. For example, assume in the given hypothetical case that Ms. Smith had filed her retirement application in May 1975. Under the statutory language, it would become effective May 1, 1975, except that she is still employed by Central City. Accordingly, she must wait until her employment termination date keys her retirement effective date. Doubtless, she will be considered employed by Central City until June 10, 1975. If the fact that Ms. Smith makes no contributions to TRS and receives no service credit for her employment during June allowed that month to be disregarded, then her effective retirement date would be June 1, 1975. This would mean that during June 1-10, Ms. Smith would be in both an employed and retired status. By defination, these mutually exclusive capacities cannot coalesce in one member of TRS at the same time. The apparent purpose of the statute, then, is to insure that service retirement benefits commence in the month following the month in which an eligible member's employment is terminated. Therefore, based on the foregoing statute and rationale, it is my official opinion that the proper effective date for service retirement applications under TRS is the first of the month following the month in which the member's employment is terminated. 75-9 24 OPINION 75-9 To: Executive Secretary-Treasurer, Teachers Retirement System January 30, 1975 Re: The term "public schoolteachers" as used in Ga. Laws 1974, pp. 1139-41 (Ga. Code Ann. 32-2905 (2) (f)) should be interpreted to mean and include the equivalent classes of individuals retiring under local retirement funds as are included within the definition of "teacher" in Section 1 of the Teachers Retirement System Act (Ga. Laws 1943, pp. 640, 641; Ga. Code Ann. 32-2901 (5)). This replies to your recent letter requesting my interpretation of Ga. Laws 1974, pp. 1139-41 (Ga. Code Ann. 32-2905 (2) (f)), which amended the Teachers Retirement System (TRS) Act. Prior to this amendment, only teachers who were members of TRS were entitled to the minimum retirement benefits provided in the Act by Ga. Laws 1973, p. 895 (Ga. Code Ann. 32-2905 (2) (e)). The 1974 amendment extends these minimum benefits to certain retirees of local retirement funds who were not members of TRS. It reads in relevant part as follows: "Any provisions of this Act or any other law to the contrary notwithstanding, the minimum retirement allowance provided by paragraph (e) of this subsection shall be applicable to retired public schoolteachers who retired pursuant to a county, municipal or local board of education retirement or pension system. Effective January 1, 1975, such retired public schoolteachers shall be deemed to be members of this retirement system for the purposes of said paragraph (e) of this subsection...." (Emphasis added.) By way of aside, it is important to note that this statutory amendment was accompanied by and conditioned upon the ratification of an amendment to the Georgia Constitution authorizing the General Assembly to provide by law for TRS retirement benefits to teachers retiring with a local retirement fund. Ga. Laws 1974, pp. 1652-3. This constitutional amendment was ratified by the people at the November 1974 general election. Ga. Code Ann. 2-5402 (Ga. Const., Art. VII, Sec. I, Par. II). Your question about the 1974 statutory amendment focuses on the use of the term "public schoolteachers." You ask whether it should be interpreted to include the classes of individuals defined as "teachers" by the TRS Act, or limited to classroom or "blackboard" teachers. The word "teacher" wherever used in the TRS Act has a defined meaning given it by the Act. Ga. Laws 1943, p. 640 et seq., Ga. Code Ann. 32-2901 (5), both as amended. It includes classroom teachers, 25 75-9 but also more broadly includes others, inter alia, clerical employees of public schools, librarians, public school nurses, etc. The term "public schoolteacher" is not defined in the TRS Act. Had the scriveners of the 1974 amendment used the term "teachers," there would be no doubt as to its application. It would be presumed to mean "teacher," as defined, and as wherever used in the Act. cf. Epping v. City of Columbus, 117 Ga. 263 (1903). However, in my judgment, the converse of this proposition is not necessarily true. The use of the term "public schoolteachers" in the amendment does not establish a presumption that it cannot be construed to mean "teacher" as defined in the Act. "Public schoolteacher" is not a term of art within the TRS Act and, as stated, is not defined by the Act. It appears nowhere but in this 1974 amendment. All statutory interpretation should have as its goal the ascertainment of legislative intent. Gazan v. Heery, 183 Ga. 30 (1936). The 1974 statutory amendment, and the corollary constitutional amendment, were patently designed to include theretofore excluded local fund retirees under the minimum TRS benefits statute. This becomes evident upon reading the 1974 statute within the context of the entire TRS Act, and upon considering precipitant events leading to the passage of the statute. Prior to 1974, the TRS Act allowed benefits only to member teachers under TRS. Retirees under local retirement funds could not participate in these benefits. However, TRS was directed by law to pay to these local funds certain reimbursing pension amounts for all "teachers" retiring under the local funds. Ga. Laws 1943, p. 640 et seq., Ga. Code Ann. 32-2922. You inform that many requests were received from these local retirees, and others on their behalf, for payment to them of the minimum benefits allowed teachers under TRS by Ga. Laws 1973, p. 895 (Ga. Code Ann. 32-2905 (2) (e)). These requests finally culminated with the issuance of Op. Att'y Gen. U73-78, opining that local fund retirees were not entitled to the minimum benefits specified in the TRS Act. Having determined that local retirees could not be allowed these benefits, the question became how they could be accorded such. I then issued Op. Att'y Gen. 74-14 describing the procedure and suggesting that both a statute and a constitutional amendment would be necessary. These were both enacted, and, as stated, the constitutional amendment was ratified by the people in November 1974, making the statute's commencement date January 1, 1975. See Ga. Laws 1974, pp. 1139-41 and pp. 1652-3. The discussions contained in both Ops. Att'y Gen. 74-14 and U73-78 deal with in what manner and under what circumstances teachers in local funds could be entitled to TRS minimum benefits. Nowhere was there any reference to benefits for "public schoolteachers" as opposed to "teachers." My opinion on your question is buttressed by two further thoughts. 75-10 26 First, the term "classroom teacher" is used within the definition of "teacher" in the Act (Ga. Code Ann. 32-2901 (5), as amended). It is a recognized term already employed by the Act. Had the General Assembly meant to limit the application of Ga. Laws 1974, pp. 1139-41, to classroom or ((blackboard" teachers, surely the term "classroom teachers" would have been utilized. Secondly, it would seem manifestly difficult to articulate the scope and definition of the term ((public schoolteachers." If the General Assembly intended to limit the application of the 1974 amendment to a sub-class of ((teachers," I think more of a definition than "public schoolteachers" would have been provided. Therefore, based on the foregoing authorities and rationale, it is my official opinion that the term ((public schoolteachers" as used in Ga. Laws 1974, pp. 1139-41 (Ga. Code Ann. 32-2905 (2) (f)) should be interpreted to mean and include the equivalent classes of individuals retiring under local retirement funds as are included within the definition of ((teacher" in Section 1 of the Teachers Retirement System Act. OPINION 75-10 To: Commissioner, Department of Public Safety February 5, 1975 Re: Ga. Laws 1968, p. 425 (Ga. Code Ann. Ch. 68-21), places no restrictions on the use of Vascar and radar by the Department of Public Safety. By your recent letter you have requested an official opinion construing Ga. Laws 1968, p. 425 (Ga. Code Ann. Ch. 68-21). Specifically you have inquired as to what if any limitations the visability requirements of the referenced statute (Ga. Code Ann. 68-2107) place on the use of Vascar and radar by the Department of Public Safety. The thrust of your inquiry is whether the referenced statute prohibits the employment of any speed detection device by the Department of Public Safety unless such device is visible to approaching motorists for a distance of 500 feet. It is a basic tenet of statutory construction that statutes are to be analyzed in their entirety so as to harmonize the various sections thereof. Torrance v. McDougald, 12 Ga. 526 (1853). The statute in question is one which specifies the manner in which law enforcement 27 75-10 officers of counties and municipalities may employ timing devices in enforcing traffic laws. The caption of Ga. Laws 1968, p. 425 (Ga. Code Ann. Ch. 68-21) clearly states that it is intended to apply to the law enforcement officers of counties and municipalities, and the majority of the statute's sections are directly aimed at such law enforcement officers. Nowhere does the statute purport to govern activities by law enforcement officers of the Department of Public Safety. When the statute is construed in its entirety it does not appear to cover any operation of timing devices by the Department of Public Safety, but rather is limited to governing the manner in which county and municipal law enforcement officers may employ radar and Vascar. This conclusion is strengthened by analysis pursuant to the rule of statutory construction which admonishes that construction must be undertaken in light of the old law, the evil and the remedy. Ga. Code 102-102 (9). The predecessor of Ga. Laws 1968, p. 425 (Ga. Code Ann. Ch. 68-21) was Ga. Laws 1961, p. 161, as amended by Ga. Laws 1962, p. 8 (Ga. Code Ann. 68-1682), which prohibited the use of radar or any other timing device in the enforcement of traffic laws by all law enforcement officers except the law enforcement officers of the Department of Public Safety. Without a doubt, the "evil" was the possible abuse of the use of such devices by law enforcement officers who were compensated on a percentage fee basis. This fact is spotlighted by that section of Ga. Laws 1968, p. 425, which prohibits counties compensating law enforcement officers or traffic court officials on a fee basis from using timing devices. (Ga. Code Ann. 68-2101.) The "remedy" undertaken by the legislature was the statutory regulation of the use of Vascar and radar by counties and municipalities, the Department of Public Safety being designated as the regulating agency. The Department of Public Safety, never having been susceptible to the "evil," was then specifically excluded from the old law and is the designated regulating agency under the new remedial statute. It is my opmwn that Ga. Laws 1968, p. 425 (Ga. Code Ann. 68-2107), is not a restriction on the use of Vascar and radar by the Department of Public Safety. In light of this conclusion, I have not answered your inquiries concerning whether the actual timing device must be visible as opposed to the vehicle containing the device and whether a vehicle using timing devices at night must operate with its lights on so as to increase visibility. My reason for not addressing these questions is, as stated above, that the visibility restrictions of Ga. Laws 1968, p. 425 (Ga. Code Ann. 68-2107), do not apply to the Department of Public Safety. 75-11 OPINION 75-11 To: Chairman, Board of Corrections 28 February 7, 197.5 Re: Officer's performance of a subcontract in connection with work for state agency which the officer supervises creates conflict of interest. This is in reply to your request for an opinion as to whether a successful bid by a corporation, in which you are an officer and stockholder, on the award of a subcontract by another person under contract with the state for the construction of a correctional facility for the Board of Corrections is contrary to any conflict of interest principle. The construction is to be funded by an appropriation to the Department of Offender Rehabilitation. See Ga. Laws 1974, pp. 1508, 1630, Section 41. However, the construction division of the Georgia State Financing and Investment Commission has been employed to handle the construction of the facility. Your question is prompted by the fact that you hold membership on the State Board of Corrections, are also chairman of that agency, and are ex officio a member of the Board of Offender Rehabilitation. A prior opinion of this office, Op. Att'y Gen. 73-155, contains a general discussion of the applicable statutory and common law prohibitions. For the reasons stated therein, it is my opinion that the proposed transaction will not breach any of the statutory provisions discussed therein. However, it is my opinion that the proposed transaction will create a conflict of interest contrary to the constitutional and related common law principles discussed in that opinion for the reason that the execution of this proposed transaction will place you in a position in which your official duties will require you, although indirectly, to evaluate performance of the subcontract, in which you are pecuniarily interested. Although it is the performance of the general contractor that will directly be evaluated by the state, it is altogether apparent that the general contractor's performance, and the evaluation thereof, will depend upon the performance of the subcontract. Given this situation, your concurrently holding a position on the State Board of Corrections, for whom the facility is to be constructed and which retains a residual responsibility for that evaluation, gives rise to a situation described in Op. Att'y Gen. 73-155 as falling within the prohibitions established by the Constitution and common law of this state. 29 75-12 OPINION 75-12 To: Representative, District 95, House of Representatives February 7, 1975 Re: The official opinion of December 9, 1974 (Op. Att'y Gen. 74-151) to the Commissioner of Banking and Finance did not determine that the trustees of the Citizens and Southern National Bank profit-sharing plan were independent of that bank or its holding company. In your letter of February 4, 1975, you asked that I clarify my official opinion of December 9, 1974, to the Commissioner of Banking and Finance. In that opinion, I concluded that the trustees of the profitsharing plan for the employees of the Citizens and Southern National Bank would be a bank holding company within the meaning of Ga. Laws 1960, pp. 67 to 77, as amended (Ga. Code Ann. 13-201.1 (e) and 13-207), if it acquired five percent or more of the voting shares of two or more banks. The first inquiry of your letter is whether or not I determined in that opinion that the trustees of the profit-sharing plan are independent of the Citizens and Southern National Bank and its holding company. The answer to your inquiry is that I made no such determination. My opinion of December 9 was in response to a question posed by the Commissioner of Banking and Finance which specifically asked whether a bank holding company would result under the applicable facts involving "independent trustees" of the profit-sharing plan. Hence, my task was a relatively narrow one, not requiring that I determine if the trustees are in fact independent of the bank and its holding company. The opinion that I rendered on December 9 held that, even assuming the trustees to be independent, the trust would nevertheless be an unlawful bank holding company if it did in fact acquire the requisite quantity of voting stock in two or more banks. It was not necessary that I resolve the issue of the independence of the trustees in order to render that opinion. The reference in the opinion to "independent trustees" was not a determination that the trustees are independent; rather, those words were drawn from the request for an opinion. You next asked in your letter of February 4 that I render an opinion " ... as to whether or not a divesture to the trustees of the pension trust of the Citizens and Southern National Bank would comply with the decision of the Supreme Court of Georgia in Independent Bankers Ass'n v. Dunn, 230 Ga. 345 (1973)." Clearly, this is a matter of considerable import and will require time to resolve inasmuch as both factual and legal research must be pursued. However, I will have a response to your inquiry in the very near future.1 1 See Op. Att'y Gen. U75-14, dated March 7, 1974, for response to this inquiry. ':D 55582 75-13 30 OPINION 75-13 To: Commissioner, Department of Revenue February 13, 1975 Re: The Georgia Motor Vehicle Accident Reparations Act does not apply to counties or municipal corporations. This is in answer to your letter of January 20, 1975, concerning the "Georgia Motor Vehicle Accident Reparations Act," commonly referred to as the "no fault law." Ga. Laws 1974, p. 113 (Ga. Code Ann. Ch. 56-34B). You ask for our opinion as to whether counties and municipal corporations are subject to the requirements of the Act.1 As you are probably aware, an "unofficial opinion" rendered by this office on December 19, 1974 concluded that the "no fault law" did not apply to municipalities. See Op. Att'y Gen. U74-114. This unofficial opinion noted that the answer to the question turned upon the word "owner" as defined by Section 2 (e) of the Act (Ga. Code Ann. 56-3402b (e)), the critical portion of which states that: " '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." Our conclusion that this definition did not include "municipalities" (which we now reiterate in this "official" opinion) was based upon the settled rule that the state is not bound by a law unless it is specifically named in the same, or unless the words of the law are so plain, clear, and unmistakable as to l~ave no doubt as to the intention of the legislature. See Lingo v. Harris, 73 Ga. 28 (1884); Anderson v. Dept. of Family and Children Services, 118 Ga. App. 318 (1969); Ga. Code 102-109. The Supreme Court of Georgia has several times pointed out that this rule of the general inappHcability of general legislation to the state applies with equal force to all of the state's political subdivisions (including counties as well as cities). See Lingo v. Harris, 73 Ga. 28, 31 (1884); Mayor, etc., of Brunswick v. King, 91 Ga. 522 (1893); Anderson v. Dept. of Family and Children Services, 118 Ga. App. 318, 320 (1969). We think it is also of more than a little importance to note that the existence of any doubt in the matter (i.e., whether the 1 Section 3 of the Act (Ga. Code Ann. 56-3403b) generally provides that no "owner'' of a motor vehicle required to be registered in this state shall operate or authorize any other person to operate a motor vehicle of the owner unless the owner has insurance in accordance with the Act's requirements. Section 12 of the Act (Ga. Code Ann. 56-3412b) states that after January 1, 1975, no motor vehicle shall be licensed by the State of Georgia until the "owner" has furnished satisfactory proof to the licensing authorities of his compliance with the provisions of the "no fault law." 31 75-14 General Assembly intended for the law to apply to the state and its departments, political subdivisions, agencies, etc.) must be resolved in favor of the state. See Lingo v. Harris, supra, at p. 30; Anderson v. Dept. of Family and Children Services, supra, at p. 320. I am, therefore, of the opinion that the Georgia Motor Vehicle Accident Reparations Act does not apply to either counties or municipal corporations. OPINION 75-14 To: Director, Fiscal Division, Department of Administrative Services February 14, 1975 Re: Service as an assistant district attorney rendered prior to the enactment and approval of Ga. Laws 1957, pp. 486-8 (Ga. Code Ann. 24-2602a), is not creditable toward appointment to the office of judge of the superior courts emeritus. This responds to your request for my opinion on whether service rendered as an assistant district attorney may properly be allowed as creditable service toward the appointment of a judge to the office of judge of the superior courts emeritus. You advise that the judge generating this question served as an assistant district attorney in the Rome Judicial Circuit during the years 1945-1947. The applicable portion of the Superior Court Judges Emeritus Act reads as follows: "It is further enacted that from and after the passage of this bill that any service as an [assistant district attorney] of a judicial circuit of this state, which office is provided for by law, ... shall be allowable in computing such nineteen (19) years service as a judge of the superior court (sic) of this state, provided that such judge shall have paid into the superior court judges retirement fund of Georgia such sum or sums as now required by law, had such judge served as a judge of the superior court (sic) of this state during the allowable service herein provided." Ga. Laws 1957, pp. 486-8; Ga. Code Ann. 24-2602a. (Material in brackets added. "Solicitor general" was changed to "district attorney" by Ga. Laws 1969, p. 929; Ga. Code Ann. 24-2930.) In your letter and in subsequent telephone conversations with your office, concern has been expressed as to how the "sum or sums as now required by law" should be computed, and as to the meaning of the "which office is provided for by law" requirement. These are important considerations, but I see a threshold question embodied in the first two 7.5-14 32 lines of the quoted statute. For the reasons hereinafter given, my opinion of this threshold issue is dispositive of your inquiry. The statute begins with the language "It is further enacted that from and after the passage of this bill" and then continues to authorize credit for service as an assistant district attorney in an office established by law. The pivotal question is whether the statute authorizes credit for service performed as an assistant district attorney after the passage of the statute, or whether it means that beginning with the effective date of the statute, any service whenever performed as an assistant district attorney is creditable. Article I, Sec. III, Par. II of the Georgia Constitution strictly limits the passage of any retroactive law. (Ga. Code Ann. 2-302.) The tenet of statutory construction that laws 1ook to the future and should not generally be retrospective in application is also embodied in statutory law. Ga. Code 102-104. The Georgia Supreme Court has interpreted this constitutional provision and statute to mean that only those laws which the General Assembly clearly intends to be retroactive will be so construed. Walker County Fertilizer Co. v. Napier, 184 Ga. 861 (1937). If the statute in question clearly showed by its language that the General Assembly intended it to be retroactive, it could be so construed. However, the language of the statute does not clearly indicate retroactive intent. To the contrary, its opening phraseology indicates a beginning point in time after which service as an assistant district attorney shall be allowed as credit toward the appointment to the office of judge of the superior courts emeritus. Additionally, the Supreme Court of Georgia has on several occasions considered the meaning of the phrase "from and after the passage of this Act (bill)." The court has held that this phraseology clearly indicates that a statute in which it appears was not intended to have retrospective operation. Walker County Fertilizer Co. v. Napier, 184 Ga. 861 (1937); Lockhart v. Tinley, 15 Ga. 496 (1854). Every statute becomes effective law following its passage by the General Assembly, unless the Governor of Georgia exercises his veto power (and assuming there are no special restrictions or conditions placed in the effective date section of the statute). Because of this, the words "from and after the passage of this bill" would have no meaning in this statute unless they were placed there to show clear prospective intent. All language in any statute should be considered as having been included by the General Assembly purposefully and with meaning, and no language should be considered surplusage unless that conclusion is inescapable. Falligant v. Barrow, 133 Ga. 87 (1909). Using the Supreme Court's reasoning in Walker County Fertilizer Co., supra, I think this statute was intended to be interpreted to allow credit for "any service as an assistant district attorney, from and after the passage of this bill." 33 75-15 Therefore, based on the foregoing authorities and rationale, it is my official opinion that service as an assistant district attorney rendered prior to the enactment and approval of Ga. Laws 1957, pp. 486-8 (Ga. Code Ann. 24-2602a), is not creditable toward appointment to the office of judge of the superior courts emeritus. Georgia Laws 1957, pp. 486-8, was approved and became effective on March 13, 1957. Accordingly, service as an assistant district attorney during 1945-1947 is not creditable service toward the appointment of a superior court judge emeritus. Following your letter, you have advised that two other judges have inquired about the credit of time as an assistant district attorney. You inform me that those two judges served as assistant district attorneys during, respectively, 1948-1956 and 1955-1956. Since this service was prior to March 13, 1957, this opinion would appertain to their requests also. You have also advised that one of these two judges has already paid a certain sum of money to you in order to establish credit for time served as an assistant district attorney prior to March 13, 1957. This sum should be repaid to the judge. \Vhere there has been a miscalculation of years of creditable service and a resultant overpayment into the Suprerior Court .Judges Emeritus Retirement Fund, an administrative error has occurred which can and should be corrected and the overpayment be refunded. Op. Att'y Gen. U72-59; see also, Board of Commissioners v. Clay, 214 Ga. 70 (1958). OPINION 75-15 To: State Superintendent of Schools February 19, 1975 Re: Members-elect of a local board of education shall not enter upon the duties of office until qualified, commissioned and administered the appropriate oaths. An incumbent board member who has been reelected or reappointed may continue to serve as an official member of the board prior to receiving the commission and being administered the appropriate oaths for the new term. This is in response to your request for an opinion as to the propriety of members-elect of a local board of education participating in board actions prior to being administered the oath of office. Specifically, you have asked two questions : (1) May members-elect of a local board of education participate in board actions prior to being sworn in? (2) May an incumbent member of a local board who has been reelected or reappointed continue to serve as an official member of 75-16 34 the board prior to being sworn in and receiving a commission for the new term? Members of a local board of education are elected for terms of a specific number of years and are to hold their offices until successors are elected and qualified. Ga. Laws 1919, pp. 288, 320 (Ga. Code 32-902). As local board members are public officers (Clarke v. Long, 152 Ga. 619 (1922)), their terms shall also continue until their successors are commissioned. Ga. Code (1933) 89-105. It is not insignificant to note at the outset that the commissioning requirements of a local board of education member entail a certification by the clerk of superior court to the State Superintendent of Schools of the board member's election prior to the issuance of the actual commission. Ga. Laws 1919, pp. 288, 322 (Ga. Code 32-905). In addition, a local board member is required to take an oath affirming that he is not the holder of public money due this state, that he is not the holder of an office of the United States or of any one of the several states, that he is otherwise qualified to hold office, that he meets the residency requirements for his office, and that he will support the Constitution of the United States and of this State. Ga. Code (1933) 89-302. Until he takes that oath, a local board member is not to enter upon the duties of his office. Ga. Code (1933) 89-309. The foregoing postulates necessarily indicate that a member-elect of a local board of education shall be qualified, commissioned, and administered the appropriate oaths before he assumes his position of office and performs the duties incumbent thereupon. Accordingly, it would appear that until those prerequisites are satisfied, the predecessor in office shall continue in office. Upon this authority, it is my opinion that a member-elect may not properly assume the duties of a board member until and unless he meets the aforementioned requirements. Consistent with this view, it is also my opinion that incumbent board members who have been reelected or reappointed may continue to serve in office prior to receiving a new commission and taking the oaths of office for the new term, in that the incumbent is to hold over in office until his successor has been commissioned and qualified, notwithstanding the fact that the successor will be the incumbent. See Stephenson v. Powell, 169 Ga. 406 (1929); Rowe v. Tuck, 149 Ga. 88 (1919). OPINION 75-16 To: Comptroller General, Insurance Commissioner February 19, 1975 Re: In determining whether or not to exempt an insurer from the mandatory rate reductions provided in the Georgia Motor Vehicle 35 75-16 Accident Reparations Act, the Insurance Commissioner should consider the insurer's loss experience only in Georgia. The Georgia Motor Vehicle Accident Reparations Act (no fault law) (Ga. Code Ann. Ch. 56-34B) requires all insurers providing coverage under that Act to reduce the rates on that coverage within 60 days of the effective date of the Act. Ga. Laws 1974, pp. 113, 121 (Ga. Code Ann. 56-341lb). The Act further provides, though, that insurers may be exempt from those mandatory reduction provisions provided the Insurance Commissioner, after a hearing, determines that such a reduction in rates would result in rates for the insurer that are inadequate. Section 11 (a) of the no fault law (Ga. Code Ann. 56-3411b) imposes certain limitations on the Insurance Commissioner when considering requests for exemptions which provide inter alia: "No insurer shall be relieved of using the required rates if its most recently available experience on such lines of business shows a net underwriting gain ..." You have sought an opinion as to whether the experience to which reference is made in that section includes nationwide experience or only experience of the insurer in Georgia. It is my opinion that it refers only to the insurer's experience in Georgia. It hardly warrants repetition that the primary aim of statutory construction is to carry into effect the legislative intent behind the statute as best it can be determined. See Lewis v. C1:ty of Smyrna, 214 Ga. 323, 326 (1958); Ga. Code 102-102 (9). The intent of the legislature relative to a portion of a statute may be determined by looking at the statute as a whole (Cairo Banking Co. v. Ponder, 131 Ga. 708 (1908)), and construing that section so that it is reasonable in light of the remainder of the statute. Cf. Georgia Railroad & Banking Co. v. Wright, 124 Ga. 596, 626 (1905). The no fault law provides that an insurer may be exempt from the mandatory rate reduction provision if a reduction would result in rates that are inadequate to the extent that such rates: "(1) do not properly reflect the insurer's loss experience in Georgia to the extent that its earned premiums would not equal its incurred losses and expenses; or "(2) jeopardize the solvency of the insurer required to use such rates." Code 56-3411b. Thus, one of the statutory criteria for exemption is that the reduced rates would be inadequate because they do not reflect the loss experience in Georgia. Since that prerequisite alone warrants the granting of an exemption, there would be no need for the commissioner to in- 75-17 36 quire into nationwide experience to determine the propriety of an exemption. Consequently, to interpret the statute as requiring consideration of nationwide experience would be an unreasonable and burdensome requirement which in my opinion does not properly reflect the intention of the General Assembly. f It is, therefore, my opinion that the experience to be considered by the Insurance Commissioner in determining whether or not to exempt an insurer from the rate reduction requirements of the no fault law is the experience of that insurer in Georgia. OPINION 75-17 To: Chairman, State Board of Pardons and Paroles February 21, 1975 He: A person convicted of a crime before reaching the age of 17 loses his right to vote if convicted of a crime involving moral turpitude even though he is committed to the State Department of Human Resources rather than sentenced to the Board of Corrections; the right to vote and other civil and political rights, however, may be restored by the State Board of Pardons and Paroles. This is in response to your request for an opinion concerning the civil and political rights of a minor convicted of three counts of burglary in a superior court but committed to the Department of Human Hesources pursuant to Ga. Laws 1969, p. 996, as amended (Ga. Code Ann. 99-209 (a) (5)). For the following reasons it is my opinion that a youth convicted of a felony loses his right to vote and other civil and political rights even though he is committed to the custody of the Department of Human Resources. However, the right to vote, as well as other civil and political rights, may, of course, be restored by the State Board of Pardons and Paroles. Article II, Sec. II, Par. I, of the Georgia Constitution (Ga. Code Ann. 2-801) provides: "The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold any office, or appointment of honor, or trust in this State, to-wit: 1st. Those who shall have been convicted in any court of competent jurisdiction of treason against the State, or embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned." 37 75-18 This constitutional provision is not concerned with the punishment imposed for conviction of crime but rather with the conviction itself since the crimes must be "punishable by the laws of this State with imprisonment in the penitentiary." Burglary is ordinarily punishable with imprisonment in the penitentiary. See Ga. Code Ann. 26-1601 (Ga. Laws 1968, pp. 1249, 1287). However, this particular youth has not been imprisoned in a penitentiary but has been committed to the Department of Human Resources pursuant to the provisions of Ga. Laws 1969, p. 996, as amended (Ga. Code Ann. 99-209 (a) (5)). Nevertheless, since the crime committed is punishable by imprisonment, the constitutional disqualification attaches. While the Georgia Supreme Court has not decided precisely the issue which you now raise, several decisions are pertinent to the resolution of the question posed. In Summerour v. Cartrett, 220 Ga. 31 (1964), the court held that in a quo warranto action to remove an official on the basis of the constitutional provision cited above, it was necessary to allege only that he had been convicted and that no pardon had been granted. It was not a necessary element of the cause of action to allege what punishment, if any, had been imposed. Moreover, the court has held that the constitutional disqualification extends to persons who were convicted in other jurisdictions of crimes involving moral turpitude. See Hulgan v. Thornton, 205 Ga. 753 (1949), and Huff v. Anderson, 212 Ga. 32 (1955). Thus, as viewed by the Supreme Court in these cases, the actual punishment imposed on a particular individual is irrelevant to the inquiry of whether he meets the constitutional qualifications for registering to vote, voting or holding office. The constitutional disqualification for voting or holding office is thus imposed as a result of a conviction for the crimes enumerated and not as a result of the sentencing to the Board of Corrections. For these reasons, it is my official opinion that a youth convicted of a crime involving moral turpitude is thereby disqualified from registering to vote, voting or holding office in this state even though he is committed to the custody of the Department of Human Resources. Of course, pursuant to Art. V, Sec. I, Par. XI, of the Georgia Constitution (Ga. Code Ann. 2-3011), the State Board of Pardons and Paroles may restore the civil and political rights of a youth convicted of a crime and committed to the Department of Human Resources. OPINION 75-18 To: Secretary of State February 21, 1975 Re: A councilman of a municipality may run for the office of mayor or other municipal office but must resign his council seat prior to taking the second office. 75-18 38 This is in response to your request for an opinion concerning the question of whether a councilman of a municipality must resign his office before qualifying to run for the office of mayor or other municipal office or before taking office. For the following reasons, it is my official opinion that a councilman is eligible to run for another municipal office and must only resign his seat on the council prior to entering the office to which he is elected. Your request for an opinion was prompted by several inquiries concerning Ga. Code Ann. 69-201 (amended by Ga. Laws 1957, p. 97) which states: "A councilman or an alderman of a municipality shall be ineligible to hold any other municipal office during the term of office for which such councilman or alderman was chosen, unless first resigning as councilman or alderman before entering such other office; this section shall apply to all elected officials of a municipality. Any such councilman or alderman may, if otherwise qualified, resign such present position and run for any other city office for which he or she is qualified." There appears to be a conflict between the first and second sentences of this Code section since the first relates to the simultaneous holding of municipal offices while the second seems to indicate that a councilman must resign before running for a second office. However, in my opinion, a close examination of the Code section resolves the apparent conflict. The first sentence clearly states that a councilman is ineligible to hold two offices at the same time. This is consistent with similar provisions prohibiting persons from holding more than one county or state office. See Ga. Code (1933) 89-103 and Ga. Code Ann. 34-1014 (Ga. Laws 1970, p. 347). On the other hand, the second sentence does not state an additional ground of ineligibility but makes it clear that a councilman may resign before running for the second office. The right to hold office unless disqualified by the Constitution and laws is one of the rights of Georgia citizens. Ga. Code (1933) 79-205. Further, "a citizen may not be deprived of this right without proof of some disqualification specially declared by law." Patten v. Miller, 190 Ga. 123, 139 (1940). Thus, any purported disqualification for holding office must be strictly construed and any ambiguity resolved in favor of the citizen's right to run for and hold office. When the second sentence of Ga. Code Ann. 69-201 is examined in this perspective, it is apparent that no further disqualification was intended by the General Assembly since the language is permissive only. Therefore, it is my official opinion that Ga. Code Ann. 69-201 renders a councilman ineligible to hold another municipal office unless he has resigned his seat on the council at some time prior to entering the second office but also that he is not required to resign prior to qualifying to run for the second office. 39 75-20 OPINION 75-19 To: State Superintendent of Schools February 24, 1975 Re: An Area Vocational-Technical School Board may not borrow money to be repaid to the lender over a period of time extending beyond the fiscal year in which the loan was made. This is in response to your request for my opinion as to whether an area vocational-technical school board may borrow money to be repaid to the lender over a period of more than one year. I understand that the loan is to be subject to review by the board of commissioners of roads and revenue of the county in which the school is located. This office has consistently opined on numerous occasions that the incurrence of an obligation by a political subdivision of the state not to be satisfied in the fiscal year in which made is constitutionally proscribed. See Ops. Att'y Gen. 74-115, 72-132, 69-169, 68-18 and 1963-65, p. 79. The constitutional limits on state debt (Art. VII, Sec. III, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5601)) and county debts (Art. VII, Sec. VII, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-6001)) form the basis of this restriction upon public debt. Debt, as used in those provisions, has been construed to mean the incurring of a fiscal liability not to be discharged by taxes levied within the year in which the liability is undertaken. City Council of Dawson v. Dawson Waterworks, 106 Ga. 696 (1899). As a general rule, a contract creating a debt that fiscally obligates for a period extending beyond the fiscal year in which the obligation is made and that is not incurred pursuant to the provision of the aforementioned constitutional requirements (i.e., a bond election or referendum of the qualified voters in the political entity) is invalid. Barwick v Roberts, 192 Ga. 783 (1941). As the applicability of such debt limitations is inescapably applicable to the situation you have described, it is my opinion that the area vocational-technical school board may not borrow money to be repaid to the lender over a period of time extending beyond the fiscal year in which the loan was made. OPINION 75-20 To: Director of Corrections February 28, 1975 Re: The Department of Corrections properly has custody of an individual under the provisions of a criminal sentence which was im- 75-20 40 posed subsequent to an unexpired order of commitment; at the expiration of the criminal sentence alternative arrangements for custody should be made for the remainder of the term of commitment. By letter you requested my opinion concerning the proper custody of an individual who was initially committed pursuant to Ga. Code Ann. 24A-2304 (Ga. Laws 1971, pp. 709, 735). This individual was subsequently sentenced by a superior court to a term of confinement which is of lesser duration than the period remaining before the natural expiration of the order of disposition. As you relate the facts, this individual's commitment was the result of an adjudication for an act which would have been a felony had he been tried in a superior court. A superior court later sentenced this individual to the custody of the Department of Corrections for his commission of a separate, subsequently committed felony. Initially, it must be noted that this individual's commitment and sentence run concurrently as there was no specification to the contrary in the criminal sentence. See Ga. Code Ann. 27-2510 (Ga. Laws 1956, p. 161; 1964, p. 494). By previous opinion, I determined that the service of a sentence imposed by one superior court cannot be breached by the subsequent order of a different superior court. Op. Att'y Gen. 70-72. My earlier opinion was based upon the determination that the same court is powerless to modify or alter a sentence which it imposed in an earlier term. Parks v. State, 206 Ga. 675, 58 S.E.2d 142 (1950); Fowler v. Grimes, 198 Ga. 84, 93-94, 31 S.E.2d 174 (1944). However, in this situation the criminal sentence does not have the effect of interrupting the running of an inferior court's order of commitment. For that period of time during which both the sentence and the commitment are operative, the terms of the subsequent criminal sentence govern. The canons of construction dictate that a sentence should be interpreted to effectuate the intention of the sentencing authority if at all possible. Shepard v. Bozeman, 222 Ga. 585, 151 S.E.2d 147 (1966); Long v. Stanley, 200 Ga. 239, 242, 36 S.E.2d 785 (1946). As reflected in the terms of its sentence, the intention of the superior court was to place this individual in the custody of the Department of Corrections. There is nothing to prevent a superior court from imposing a sentence for a separate, subsequently committed offense to run concurrently with a previous order of commitment, although the effect of the sentence is to change the nature of the juvenile's custody for the duration of that sentence. See Gobles v. Hayes, 194 Ga. 297, 21 S.E.2d 624 (1942); Stockton v. State, 70 Ga. App. 17, 27 S.E.2d 240 (1943). Therefore, the department properly has custody of this juvenile pursuant to the provisions of Ga. Code Ann. 99-209 (a) (5) (amended by Ga. Laws 1974, p. 1455). At the expiration of the juvenile's criminal sentence, he is still prop- 41 75-21 erly in custody as his order of disposition under Ga. Code Ann. 24A-2304 will not have been in force for two years. Ga. Code Ann. 24A-2701 (b) (Ga. Laws 1971, p. 709); Ford v. Ellis, 182 Ga. 344, 185 S.E. 337 (1936). However, the terms of Ga. Code Ann. 24A-2304, when construed together with those of Ga. Code Ann. 24A-2401 (Ga. Laws 1971, p. 709), preclude the placement of this individual in a facility used primarily for the incarceration of persons convicted of crimes. A.B.W. v. State, 231 Ga. 699, 203 S.E.2d 512 (1974); Op. Att'y Gen. 71-159. Therefore, unless the Department of Corrections has appropriate facilities in which to place this individual, the department should make other arrangements for his custody at the expiration of his criminal sentence. See Long v. Powell, Case No. C74-872A (N.D. Ga. Feb. 7, 1975). OPINION 75-21 To: Commissioner, Department of Banking and Finance March 7, 1975 Re: Certain money transfer companies are subject to the provisions of the Georgia Sale of Checks Act. This is in response to a request of your office for an official opinion concerning whether certain so-called "money transfer companies" are subject to the Georgia Sale of Checks Act (Ga. Laws 1965, p. 81 (Ga. Code Ann. Ch. 13-22)). As I understand from the request, the money transfer companies, about which you inquired, issue to truck drivers written instruments which after endorsement by the drivers are exchanged for cash. More specifically, when a truck driver is in need of funds and he is at a distance from any office of the trucking company by which he is employed or with which he acts as an independent contractor, the driver by telephone so notifies the trucking company. The company then calls a money transfer company by telephone and requests the money transfer company to provide a sum of money to the aforementioned driver to be received by said driver from a specified agent (usually a truck stop operator) of the money transfer company. Previously, the money transfer company will have made available to said agent its blank instruments. Upon receiving the aforesaid request of the trucking company, the money transfer company by telephone calls its agent and tells him to issue its instrument to the driver. Once completed as to amount and other particulars, such as the agent's signature, possession of the instrument is delivered to the driver. The driver endorses the instrument 75-21 42 and then exchanges the endorsed instrument with the agent in return for the amount of cash reflected in the instrument. Afterwards the agent deposits the endorsed instrument with his bank for credit to his account and processing as with a check. Finally, the trucking company remits to the money transfer company the face amount of the instrument and a fee for the service rendered. The Georgia Sale of Checks Act provides, in pertinent part, as follows: "No person, other than a bank, or an incorporated telegraph company which receives money at any of its offices or agencies for immediate transmission by telegraph, shall engage in the business of selling or issuing checks without having first obtained a license under this Act. . . ." Ga. Laws 1965, pp. 81, 83 (Ga. Code Ann. 13-2203). Given the above licensing requirement, the answer to your inquiry depends upon whether the above described money transfer companies are in the business of "selling or issuing checks." As either the "selling" or the "issuing" of checks is covered by the licensing requirement, the performance of either is sufficient to fall within the purview of the above quotation from the Georgia Sale of Checks Act. "Issue" as used in said Act has the meaning as provided in the Uniform Commercial Code-Commercial Paper [Ga. Code Ann. 109A-3-102 (1) (a), Ga. Laws 1962, pp. 156, 237; Ga. Laws 1965, pp. 81, 82, Ga. Code Ann. 13-2202 (b) (2)]; i.e., "the first delivery of an instrument to a holder or a remitter." The word "instrument" as used in the cited portion of the Uniform Commercial Code-Commercial Paper is further defined in said Code to mean a "negotiable instrument." Ga. Code Ann. 109A-3-102 (1) (e). Therefore, it would at first appear that "issue" means "the first delivery of a negotiable instrument to a holder or a remitter." However, "issue" as used in the Georgia Sale of Checks Act has a broader meaning. For example, in reference to the civil liability of a licensee under said Act, the word "issue" is expressly applied to instruments which are not necessarily negotiable under the Uniform Commercial Code-Commercial Paper. Ga. Laws 1965, pp. 81, 89 (Ga. Code Ann. 13-2216). Therefore, as used in the Georgia Sale of Checks Act, the word "issue" should properly be interpreted as meaning "the first delivery of an instrument to a holder or remitter, regardless of whether said instrument is negotiable under the Uniform Commercial Code-Commercial Paper." The issuance of the completed instrument by the money transfer company agent to the truck driver is ~he first time that possession of the completed instrument is voluntarily transferred, thus constituting a "delivery." Ga. Code Ann. 109A-1-201 (14); Ga. Laws 1962, p.156. 43 75-22 Further, the truck driver, whether an independent contractor or an employee acting as an agent of his employer trucking company, is a "remitter" even though the remitting does not occur until later when the trucking company remits the face amount of the completed instrument to the money transfer company. Thus, the money transfer company agent in providing the truck driver the completed instrument can be said to be "issuing" such instrument in the sense that the word "issue" is defined in the Georgia Sale of Checks Act. Finally, the instrument used by the money transfer companies for the purpose of transmitting money in turn from a trucking company through the money transfer company and its agent to a truck driver clearly qualifies as a "check," as "check" is defined in the Georgia Sale of Checks Act. Ga. Laws 1965, pp. 81, 82 (Ga. Code Ann. 13-2202 (a) (2)). Based on the above, it is my official opinion that the money transfer companies described in the enclosures to your February 18, 1975 letter are in the business of "issuing ... checks" and are therefore subject to the provisions of the Georgia Sale of Checks Act. Because of the virtual identity of said Act as it is now effective and as it will be effective July 1, 1975, this opinion is intended to apply as well to Ga. Code Ann. Ch. 41A-32, based on Ga. Laws 1974, pp. 705, 911 et seq. OPINION 75-22 To: Acting Commissioner, Department of Human Resources March 10, 1975 Re: The Department of Human Resources and county boards of health may contract with each other and the consideration given by the Department of Human Resources in such contracts may be the services of an employee of the department. This is in response to your recent request for our opmwn as to whether the Department of Human Resources may enter into contracts with various county boards of health pursuant to which the Department of Human Resources would assign state personnel to assist these counties in the performance of county activities authorized by Ga. Code Ann. 88-203, based on Ga. Laws 1964, pp. 499, 513. It is evident that both the Department of Human Resources and the county boards of health have the authority to contract with each other. Georgia Code Ann. 88-204 (g) provides that a county board of health is empowered to: "Contract with the Department of Human Resources or other agencies for assistance in the performance of its functions and the 75-22 44 exercise of its powers, and for supplying services which are within its purview to perform, provided such contracts and amendments thereto shall have first been approved by the Department of Human Resources." Based on Ga. Laws 1964, pp. 499, 513. The authority of the Department of Human Resources to contract with the county boards of health is found in Ga. Code Ann. 88-602, which provides in pertinent part that: "The Department of Human Resources, or its duly authorized agent or agents, shall have authority to negotiate with and contract for services in the field of mental health with public or private hospitals, medical schools, training institutions, appropriate departments or agencies of the state, county, or municipal governments, or any person, partnership, corporation, public or private, for services in the field of mental health, personnel training in the field of mental health, and other purposes set forth under this Chapter provided that the other contracting party be and remain a nonprofit institution." Based on Ga. Laws 1964, pp. 499, 547. The only limitation on this power to contract would be that the purpose of any particular contract would have to come within the parameters of the grant of contracting power contained in the abovecited sections. As to a county board of health, the purposes for which it may contract are broadly stated as being " ... for assistance in the performance of its functions and the exercise of its powers, and for supplying services which are within its purview to perform." As to the department, the bounds of its authority to contract are that the contracts must be for " ... services in the field of mental health...." Therefore, any contract between the two parties falling within the scope of these contracting powers would be authorized. Having determined that the department is authorized to enter into contracts with the various county boards of health, the question of the consideration which may be offered by either party still remains. Since both the counties and the department have the authority to contract, it is self-evident that they have the authority to give consideration for the contract since, pursuant to Ga. Code (1933) 20-301, consideration is essential to a contract and a contract without consideration is unenforceable. As to the form that the consideration may take, the general law of contracts must apply. The Georgia Court of Appeals in Newton v. Roberts, 36 Ga. App. 157, 136 S.E. 98 (1926), has stated that services may be the consideration for a contract, and, therefore, if the department wishes to furnish services as its portion of the consideration for 45 75-22 a contract, it may. Likewise, if a county board of health furnishes services which would otherwise be the responsibility of the state to render or services which the county board of health is not otherwise legally obligated to perform, such services may form the consideration on the county's part. Note, however, that if the county board of health is already obligated to perform the functions which it intends to use as consideration for the contract, such services would not be a valid consideration and some other form of consideration would have to be substituted. This could merely be payments of money to the state. Therefore, it is my opinion that the department can enter into a contract with a county board of health and, on the department's part, the consideration given for the contract may be the services of a state employee. As to the consideration on the part of the county, it may be the rendering of services to the state which the county would not otherwise be obligated to perform, or, if the county is already obligated to perform such services, some other consideration such as money may be substituted. Your inquiry contained a second question concerning the collection and retention of fees by a county board of health for services performed for the county by the personnel supplied by the department pursuant to a contract such as that discussed above. Specifically, you inquired as to whether the county could financially benefit from the services rendered by the department's employee furnished under the contract. It is clear from Ga. Code Ann. 88-204 (f) that the county board of health has the general authority to establish and accept fees for the purpose of providing health care services for the ill. It seems evident that the county can therefore set, collect and retain fees for these services. The question of whether the county can retain the fees generated by the services of the employee of the department loaned to the county, pursuant to the contracts referred to above, becomes merely a matter of contract. If the department contracts to receive such funds as a part of the consideration on the part of the county, then of course the county would be obligated to turn the funds over to the department. On the other hand, if the contract was complete, with the consideration for the contract consisting of the assignment of the department's employee to the county board of health in return for the county board of health agreeing to perform certain services for the state, any financial arrangements which the county might make with any other person for payment for such services would be solely within the authority of the county and the department would have no interest therein, absent a specific contractual provision to the contrary. Therefore, it is my opinion that a county can enter into a valid binding contract with the state and receive a state employee's assistance in return for the county's agreement to provide certain services which the state would otherwise be obligated to perform, and further, 75-23 46 it is my opinion that any fees collected by the county for the services rendered by the employee of the Department of Human Resources would be the property of the county, subject to the limitations discussed above. OPINION 75-23 To: Commissioner of Agriculture, Department of Agriculture March 12, 1975 Re: The Department of Agriculture is not authorized to impound live rabies vaccine in order to preclude the distribution of the vaccine to individuals other than licensed veterinarians. You have requested my opinion as to whether officials of the Georgia Department of Agriculture are clothed with the authority to impound live rabies vaccine in order to preclude the distribution of such vaccine to individuals other than licensed veterinarians. I understand the reason for contemplating such action is to prevent mishandling of the vaccine by those not familiar with the dangers involved and the proper manner of administering the substance. Besides the specific authority of the Agriculture Department to control particular diseases peculiar to livestock and poultry, the regulatory powers of the department in the area of disease prevention and control are limited. There is very little statutory authority that would suggest the extension of such regulatory power to the problem you have described, and the general nature of the legislative language that might be considered as enabling is couched in the same limiting context of livestock and poultry diseases. Moreover, there are no express provisions directly authorizing the supervision of any aspect of the problem of rabies control by the Department of Agriculture. Examination of the few possibilities of authority upon whiqh this type of regulation could be effected leads me to the inevitable conclusion that the Department of Agriculture is not the proper state governmental entity to pursue the type of action you propose. The present authority of the Commissioner of Agriculture to issue permits for the manufacture and distribution of certain live viruses and disease vectors (Ga. Laws 1953, pp. 480, 486 (Ga. Code Ann. 62-1716)) and of biologicals (Ga. Laws 1966, p. 334 (Ga. Code Ann. Ch. 5-30)) does not empower the commissioner to prohibit distribution of certain vaccines to certain individuals. The Georgia Biologicals Permit Act of 1966 (Ga. Laws 1966, p. 334) is directed at the mislabeling, adulteration or contamination of biologicals manufactured, sold, delivered, held or offered for sale in this state. There is no restriction on distribution, or the 47 75-24 provision for regulations restricting distribution, of biologicals not mislabeled, contaminated, or adulterated. Similarly, the regulation of live viruses established in Ga. Laws 1953, pp. 480, 486 (Ga. Code Ann. 62-1716), entails a general prohibition on the distribution and manufacture of such viruses except under permit issued by the Commissioner of Agriculture, in accordance with any conditions he might direct. There is no language absent the general provision to indicate the nature of restriction the commissioner might impose upon the viruses and disease vectors permitted for manufacture and distribution. Again, this piece of legislation is directed at monitoring the spread of disease in livestock. Ga. Laws 1953, pp. 480, 481. In view of such sparse accompanying legislative expression, I would hesitate to enlarge the section by construction to include the authority to completely restrict the distribution of rabies vaccine, regardless of the type of subject or use for which it was intended. I might point out that the control of rabies generally is delegated to county boards of health (Ga. Code Ann. Ch. 88-15 (Ga. Laws 1964, p. 499 et seq., as amended)) and that the control of dangerous drugs is vested with the State Board of Pharmacy and the State Drug Inspector. See Ga. Code Ann. Chs. 79A-2, 79A-3, and 79A-7 (Ga. Laws 1967, p. 296 et seq., as amended). Accordingly, it is my opinion that the Department of Agriculture is without authority toprohibit the distribution of live rabies vaccine to persons other than licensed veterinarians. OPINION 75-24 To: Commissioner, Department of Transportation March 14, 1975 Re: The Department of Transportation may issue permits for outdoor advertising devices, and renew such permits, within "ForestAgricultural" Districts of Glynn County if the department commonly and generally recognizes the activities permitted therein as commercial or industrial. By letter of February 25, 1975, you requested an official opinion as to whether the Department of Transportation may issue outdoor advertising permits in those districts of Glynn County zoned "ForestAgricultural." You further inquire as to whether permits issued in such districts prior to adoption of existing zoning may be renewed. When issuing permits for outdoor advertising devices, the Department of Transportation must be guided by the Outdoor Advertising Control Act, notwithstanding the local zoning ordinances. Ga. Laws 75-24 48 1973, pp. 947, 1071 et seq. (Ga. Code Ann. 95A-913 to 95A-934). Outdoor advertising devices located in areas zoned by local governments and which are subject to regulation by the department can be lawfully erected and maintained only in areas zoned, without further action of the local governing body, for commercial or industrial activities. Ga. Laws 1973, p. 947 (Ga. Code Ann. 95A-914 (h), 95A-915 (d)). Georgia Laws 1973, pp. 947, 1072 (Ga. Code Ann. 95A-914 (h)) defines "zoned commercial or industrial areas" as " ... those areas which are zoned for industrial or commercial activities pursuant to state or local zoning laws or ordinances as part of a comprehensive zoning plan." This does not require that the area be zoned exclusively for commercial or industrial activity, but merely that such activity be allowed without further action of the zoning authority. Op. Att'y Gen. 72-19. Industrial or commercial activities are those "commonly and generally recognized as commercial or industrial." Ga. Laws 1973, p. 947 (Ga. Code Ann. 95A-914 (j)). However, such activities as agriculture and related activities, outdoor advertising structures, railroad tracks and minor sidings, and activities conducted in a building used principally as a residence are expressly excepted from being classified as an industrial or commercial activity. Ga. Laws 1973, p. 947 (Ga. Code Ann. 95A-914 (j)). The information supplied with your request indicates that animal hospitals, golf courses, dredging, land fill or the excavation of natural materials, boat marinas, bait houses, swimming beaches, and radio and television stations are all uses permitted in a Forest-Agricultural District of Glynn County without further action of the zoning authority. If in the department's uniform application of the Outdoor Advertising Control Act one or more of these activities are "commonly or generally recognized" as commercial, the department may issue permits for outdoor advertising devices in the Forest-Agricultural District. Your second question deals with whether renewal of permits issued prior to zoning approval can be denied based upon the zoning. The answer to this is tied closely to whether there are activities permitted in the district which are commonly and generally recognized as commercial. If so, the permits may be renewed provided criteria for renewal established elsewhere in the Outdoor Advertising Control Act are met. It is, therefore, my official opinion that the Department of Transportation may issue permits for outdoor advertising devices, and renew such permits, within districts zoned "Forest-Agricultural" in Glynn County if the activities permitted in the district without further 49 75-25 action of the zoning authority are commonly and generally recognized as commercial by the department in its uniform application of the Outdoor Advertising Control Act. OPINION 75-25 To: Executive Secretary-Treasurer, Teachers Retirement System March 17, 1975 Re: A teacher who becomes a member of the Teachers Retirement System prior to April 1, 1966, and who is otherwise entitled to credit for out-of-state teaching service, may establish such credit by paying to the system eight percent of the out-of-state compensation received, plus accumulated interest. The result is the same even though such a teacher retires, begins receiving benefits, and again becomes a member of the Teachers Retirement System after April 1, 1966. This responds to your letter requesting my official opinion on the proper construction of that portion of the Teachers Retirement System statute pertaining to credit for teaching service rendered in other states. Ga. Laws 1971, pp. 627, 628, as amended by Ga. Laws 1972, pp. 909, 910; Ga. Code Ann. 32-2904 (5-A). You have advised that a teacher, who became a member of your system prior to 1966, initially retired from active service and began to receive retirement benefits in 1970. However, in 1972, this teacher returned to the teaching profession and again became a member of the Teachers Retirement System, whereupon her retirement allowance ceased and she once more began to make contributions to the system, in accordance with the provisions of the ~tatute. This member has now requested that she be allowed to establish credit for several years of service rendered as a teacher in another state prior to January 1, 1945. Your question relates to how much money the member must pay into the system in order to receive credit for such out-of-state service, assuming she is otherwise entitled to this credit. The statute authorizing a teacher to receive credit for out-of-state service provides that a teacher must, prior to her date of retirement, pay employee and employer contributions which would have been remitted to the system on a salary comparable to the teacher's out-ofstate compensation, plus certain interest. The rate of employee and employer contributions is set at 5 and 6.83 percent of such salary, respectively, for any out-of-state service rendered prior to January 1, 1945. Consequently, this requires the member to pay 11.83 percent of such salary to the system. Ga. Laws 1971, pp. 627, 628. However, 75-25 50 Ga. Laws 1972, pp. 909, 910, amended this subsection by adding the following language: " ... Any provisions of this subsection to the contrary notwithstanding, teachers who became members of the Teachers Retirement System prior to April1, 1966, shall be permitted to establish credit for a maximum of 10 years of service in other state school systems ... by paying eight per centum of such out-of-state compensation that they received, plus applicable accumulated interest...." (Emphasis added.) Therefore, specifically, your question is whether the, Teachers Retirement System should allow this member to establish credit for several years of teaching service in another state at a rate of 11.83 percent of such out-of-state salary, or is the member entitled to receive such credit at a rate of eight percent of that salary. I am of the opinion that, since the teacher was actually a member of the system prior to April1, 1966, she is only required to pay to your system eight percent of her out-of-state compensation, plus applicable interest, in order to receive such credit, if she is otherwise eligible. The fact that the teacher retired, began receiving retirement benefits, and then again became a member of the Teachers Retirement System in 1972, in my opinion, does not change the result. Another portion of the statute establishing your system specifically allows a teacher to become a member of the system after having retired, whereupon her retirement benefits are discontinued. See Ga. Code Ann. 32-2905 (6) (a), based on Ga. Laws 1943, pp. 640, 647, as amended. Moreover, there is nothing in the above quoted statutory language which would preclude such a teacher from receiving the benefits of the eight percent rate. Rather, all that is required by this statute is that the teacher, at some time, became a member of the system prior to April 1, 1966. In construing any statute, as you have asked me to do here, I must be guided by the prevailing rules of statutory construction. It is the general rule that 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). Additionally, laws pertaining to pensions must be liberally construed in favor of the pensioner. City of Macon v. Herrington, 198 Ga. 576, 589 (1944); Burks v. Board of Trustees, 214 Ga. 251 (1958). In summary, you have advised that the teacher in question was in fact a member of the Teachers Retirement System prior to April 1, 1966. Therefore, based on the foregoing rationale and assuming that the member is otherwise eligible to receive credit for teaching service rendered in another state, I am of the opinion that the teacher must 51 75-26 only pay to the system eight percent of her out-of-state compensation, plus applicable interest, in order to receive such credit. OPINION 75-26 To: Executive Secretary-Treasurer, Teachers Retirement System March 25, 1975 Re: A member of the Teachers Retirement System who is entitled to retirement benefits for out-of-state service pursuant to annuity contracts with TIAA/CREF, but who is not receiving or eligible to receive a pension or annuity from any other state, county or municipality, can establish his out-of-state service with the Teachers Retirement System subject to the provisions otherwise specified in Ga. Laws 1971, pp. 627-9 (Ga. Code Ann. 32-2904 (5-A)). This responds to your request for my interpretation of that portion of the Teachers Retirement System (hereinafter TRS) Act which allows members to establish creditable service for teaching service rendered in other states. That Act reads in pertinent part as follows: "Any teacher who is an active member of the Teachers Retirement System shall be entitled to receive credit for teaching service in other state school systems, state supported independent school systems, or American dependents' schools, up to a maximum of ten years.... Provided, that no member who receives or who is entitled to receive a pension or annuity from any other state, county, or municipality shall receive out-of-state prior service credit or membership service credit as set forth above...." Ga. Laws 1971, pp. 627-9; Ga. Code Ann. 32-2904 (5-A). As I understand the facts, a college professor who taught several years with the University of Virginia is now a member of TRS and is seeking to establish credit for his Virginia service. 'While a professor at the University of Virginia, his retirement coverage was established with the Teachers Insurance and Annuity Association and College Retirement Equities Fund (TIAA/CREF). TIAA/CREF is a national private retirement system limited to colleges, universities, independent schools, and certain other institutions that are nonprofit and, in addition, are engaged primarily in education or research. Professors and teachers in state colleges and universities who are not covered by state retirement systems may obtain retirement coverage under TIAA/CREF. Additionally, this fund covers private college teachers and other personnel. Under the TIAA/ 75-26 52 CREF system, a participating teacher or professor purchases certain annuity contracts which specify, inter alia, the payment of annuity and pre-retirement death benefits. Both the participating teacher and his employer contribute toward the purchase of these annuity contracts, based on an amount established by resolution of the educational institution's governing board. The contributions for each participant are paid into the individual annuity contracts, which are immediately and fully vested in the participant. The Virginia professor was given an option under Virginia law to join the Virginia State Teachers Retirement System or TIAA/CREF. He opted for inclusion in the latter program. Accordingly, although the university contributed to TIAA/CREF on behalf of this professor, he is not entitled to any pension or annuity from the State of Virginia, his retirement coverage being solely controlled by his annuity contracts with TIAA/CREF. Because of this, I don't think the professor is prohibited from establishing his Virginia service with TRS. An arguable contrary position would hold that because the University of Virginia paid certain employer's contributions on behalf of the professor to TIAA/CREF, the professor is, in actuality, entitled to a partially state-funded retirement benefit from TIAA/CREF, and therefore not entitled to establish out-of-state service credit with TRS. However, it is settled law in Georgia that Acts of the General Assembly providing retirement rights and benefits for public employees must be liberally construed in favor of the retirement system pensioner or member. See, e.g., Burks v. Board of Trustees, 214 Ga. 251 (1958); City of Macon v. Herrington, 198 Ga. 576 (1944). Upon his employment as a professor in Georgia, this individual should not have to presume that the TRS statutes would be construed strictly to prevent his establishment of his Virginia service with TRS. In fact, he had the right to presume just the contrary. It is important to note that the out-of-state service which this professor seeks to establish with TRS is not free service. The professor must pay TRS for this creditable service, subject to the provisions of Ga. Laws 1971, pp. 627-9 (Ga. Code Ann. 32-2904 (5-A)), on the same basis as if this service had been rendered in Georgia at a comparable salary. In summary, you have advised that the Virginia professor has a vested right to certain TIAA/CREF benefits, but is not entitled to receive a pension or annuity from the State of Virginia or any county or municipality. Therefore, based on the facts presented to me, and my review of the applicable statutes and case authorities, I am of the official opinion that a member of the Teachers Retirement System who is entitled to retirement benefits for out-of-state service pursuant to annuity contracts with TIAA/CREF, but who is not receiving or eligible to receive a pension or annuity from any other state, county or 53 75-27 municipality, can establish his out-of-state service with the Teachers Retirement System subject to the provisions otherwise specified in Ga. Laws 1971, pp. 627-9. OPINION 75-27 To: Secretary-Treasurer, Teachers Retirement System March 26, 1975 Re: A retired member of the Teachers Retirement System is entitled to receive the $9 minimum retirement benefits provided by the Act, whether he is retired as a member of the Teachers Retirement System or is receiving minimum retirement benefits by virtue of his teaching service under a local retirement fund. This responds to your request for my opinion on whether a retired member of the Teachers Retirement System of Georgia (hereinafter TRS) who is receiving certain retirement benefits from TRS based on his teaching service under a local retirement fund is entitled to the $9 minimum retirement benefits provided by the TRS Act. The portion of the TRS Act applicable to members reads as follows: "In the case of the retirement of any member, the allowance to be received by such members shall not be less than $9.00 per month for each year of service not to exceed forty (40) years of service." Ga. Laws 1973, p. 895; Ga. Code Ann. 32-2905 (2) (e). You advise that the member about whom you inquire is retired under TRS even though his teaching service was rendered in a school system operated under a local retirement fund. You advise further that this member was on the staff of the State Department of Education from September 1937 until June 1948. At that time, he accepted a teaching position with the Atlanta City School System and remained there until he retired with TRS in 1955. He has been receiving retirement benefits from TRS now for more than 20 years. Although the circumstances under which this member retained his membership in TRS are somewhat obfuscated, it would seem to make very little difference in view of Ga. Laws 1974, pp. 1139-40 (Ga. Code Ann. 32-2905 (2) (f)), which reads as follows: "Any provisions of this Act or any other law to the contrary notwithstanding, the minimum retirement allowance provided by paragraph (e) of this subsection shall be applicable to retired public school teachers who retired pursuant to a county, municipal or a local board of education retirement or pension system...." 75-28 54 This statutory amendment was accompanied by and conditioned upon the ratification of an amendment to the Georgia Constitution authorizing the General Assembly to provide by law for TRS retirement benefits to teachers with teaching service under local retirement funds. Ga. Const., Art. VII, Sec. I, Par. II (Ga. Laws 1974, pp. 1652-3; Ga. Code Ann. 2-5402). This constitutional amendment was ratified by the people on November 5, 1974. The 1974 statutory amendment, and the corollary constitutional amendment, were patently designed to include theretofore excluded local-fund retirees under the minimum TRS benefits structure. See Op. Att'y Gen. 75-9 (Jan. 30, 1975). Accordingly, whether this member is considered as a retired member of TRS or as a retired member of a local retirement fund receiving some benefits from TRS, he is still entitled to the $9 minimum retirement benefits provided by the Act, as amended. In summary, you have advised that the retired member is retired under TRS and is receiving a monthly benefit from the system. In view of this, and based on the cited statutory provisions, I am of the opinion this member should be accorded the $9 minimum retirement benefits provided under the terms of the TRS Act, as amended. OPINION 75-28 To: Secretary of State March 26, 1975 Re: State, county and city officials, employees and their representatives who intend, in their official capacities, to aid or oppose the enactment of any bill by either House of the General Assembly are not required to register with the Secretary of State pursuant to Ga. Code Ann. Ch. 47-10. This is in response to your request for my official opinion as to whether state, county and city officials, employees or their representatives must register with your office pursuant to the provisions of Ga. Code Ann. Ch. 47-10, which relates to lobbying. The pertinent provision of the above cited Chapter which defines those persons who must register with your office is found in Ga. Code Ann. 47-1002 (a), which reads as follows: "Every person representing, with or without compensation, any person, firm, corporation, association or organization for the purpose of aiding or opposing, directly or indirectly, the enactments of a Bill or Bills, Resolution or Resolutions, by either House of the General Assembly shall file in the office of the Secretary of State a writing, subscribed by such person, stating the name or 55 75-29 names of the person or persons ... he represents." Superseded by Ga. Laws 1970, p. 695. Nothing in this section or in the Chapter itself specifically makes the statute applicable to the state or its political subdivisions. The statutory rule of construction defining the applicability of statutes to the state and its subdivisions is found in Ga. Code 102-109, which reads as follows: "The State is not bound by the passage of a law unless named therein, or unless the words of the Act should be so plain, clear and unmistakable as to leave no doubt as to the intention of the legislature." The same has been made applicable to the political subdivisions of the state. See Lingo v. Harris, 73 Ga. 28 (1884). Therefore, it is clear that officials and employees of the state, counties and municipalities are not required to register pursuant to Ga. Code Ann. Ch. 47-10. However, your inquiry goes one step further in requesting my opinion as to whether organizations which represent other exempt persons or parties must register in accordance with Ga. Code Ann. Ch. 47-10. To the extent that any such organization is comprised solely of political subdivisions and the elected representatives thereof, and is funded solely from public funds paid by the political subdivisions represented by the organization, it would be my opinion that the exemption given officials and employees of political subdivisions would extend to such organizations. I know of no reason why officials and employees of political subdivisions who would otherwise be exempt from registration should lose this exemption merely because they act in concert in order to achieve their purpose. OPINION 75-29 To: Chairman, Georgia State Soil and Water Conservation Committee March 31, 1975 Re: A county is authorized to utilize county equipment and to expend county funds in the maintenance of watershed improvement structures built pursuant to federal law. You have asked my official opinion as to the authority of a county to use county equipment and to expend county funds in the maintenance of watershed improvement structures built within the county pursuant to federal law. The watershed improvement structures are one product of a coopera- 75-29 56 tive program in which the United States, the State of Georgia, the local soil and water conservation districts and other local public agencies participate. This program was initiated by the Federal Government pursuant to the Watershed Protection and Flood Prevention Act (16 U.S.C. 1001 et seq.), in which Congress has set forth the following declaration of policy: "Erosion, floodwater and sediment damages in the watersheds of the rivers and streams of the United States, causing loss of life and damage to property, constitute a menace to the national welfare; and it is the sense of Congress that the Federal Government should cooperate with States and their political subdivisions, soil or water conservation districts, flood prevention or control districts, and other local public agencies for the purpose of preventing such damages, of furthering the conservation, development, utilization, and disposal of water, and the conservation and utilization of land and thereby of preserving, protecting, and improving the Nation's land and water resources and the quality of the environment." 16 U.S.C. 1001. The State Soil and Water Conservation Committee, first established in 1937 (Ga. Laws 1937, pp. 377, 381; Ga. Code Ann. 5-1807), is the state agency which coordinates and supervises such watershed and flood prevention programs in the State of Georgia. The local soil and water conservation districts, established pursuant to Ga. Laws 1937, pp. 377, 383 (Ga. Code Ann. 5-1901), carry out the construction of the watershed projects. Such projects often cover watersheds many thousands of acres in size and consist of dams, impoundments, channels and other structures. Prior to construction, the necessary easements or other interests in real property are acquired. All such watershed projects are financed in whole or in part by federal funds. Each project must serve a flood prevention function; however, many of these projects also afford benefits in the areas of recreation, wildlife habitat, drinking water supplies and other public needs. You have stated that often such watershed structures are built on property to which the local soil and water conservation district, or the local district in conjunction with the county in which the project lies, has obtained a 50-year easement, rather than fee simple title. You have attached to your letter sample easements indicating that such easements are for the purposes of "construction, operation, maintenance and inspection" of the structure, for the "flowage of waters," and for the storage or detention of waters by such structures. I understand from your letter that a question has been raised as to whether or not a county is authorized to use county equipment and to expend county funds in the maintenance of these watershed structures. In connection with that question, the concern has apparently focused 57 75-29 on the fact that certain watershed structures are located on property to which the local soil and water conservation district has an easement but not fee simple title. You have stated that in many, but not all, instances the counties have joined with the local district in obtaining the easement and in agreeing to maintain the structures. Counties are strictly limited in the purposes for which they may expend county funds raised by the taxing power. Nelson v. Wainwright, 224 Ga. 693 (1968). The Georgia Constitution sets forth the purposes for which county revenues may be raised and spent. Ga. Const., Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702). The purposes enumerated in the Constitution clearly encompass the spending of county funds to maintain watershed structures. Counties are authorized to "conserve natural resources" and to "establish and maintain a recreation system." Ga. Const., Art. VII, Sec. IV, Par. II (9) and (11); Ga. Code Ann. 2-5702 (9) and (11). In addition, counties may expend tax revenues to: "Acquire, construct, maintain, improve, or aid in the acquisition, construction, maintenance, or improvement of public buildings, bridges, parks, recreation areas and facilities ... and other properties for public use; and to acquire any real property or any interest therein in connection with the foregoing." Ga. Code Ann. 2-5702 (2). A recent amendment to the Georgia Constitution supplemented the powers of counties and cities by providing that political subdivisions may exercise the powers and provide the services enumerated within that provision. Ga. Const., Art. XI, Sec. III, Par. I; Ga. Code Ann. 2-7901a. The enumeration of public services includes "Storm water and sewage collection and disposal systems" and "Development, storage, treatment and purification and distribution of water." Ga. Const., Art. XI, Sec. III, Par. I (6) and (7); Ga. Code Ann. 2-790la (6) and (7). The exposition of the above constitutional provisions provides a clear answer to your inquiry. The watershed improvement structures are a cooperative public project of the United States, the State of Georgia and other local agencies and governments. Such structures serve a flood prevention need and often provide additional public benefits as well. County participation in such projects is in furtherance of the county's authorization to conserve natural resources and, depending on the nature of the particular project, to serve other public needs as well. It is thus my official opinion that a county is fully authorized to use county equipment and to expend county funds in the maintenance of such watershed improvement structures. 75-30 58 OPINION 75-30 To: Commissioner, Department of Offender Rehabilitation March 31, 1975 Re: The execution of a probated sentence, involving payment of fines and restitution as conditions of probation, is suspended during the pendency of an appeal. If the defendant-appellant is neither incarcerated nor placed under supervision pending the appeal, the time spent awaiting completion of the appeal is not credited toward service of the sentence. As I understand the facts contained in a memorandum of March 11, 1975, referred to in your March 14th inquiry, I am asked to respond to the following questions: (1) Whether a probated sentence, involving restitution for damage and payment of a fine as attendant conditions, is suspended in its execution by the pendence of an appeal from the judgment of conviction. (2) From what date is the term of service of a probated sentence computed, where, between the date of imposition of the sentence and the remittitur affirming the judgment appealed from, the defendant is at liberty on bond? Georgia Laws 1965, pp. 18, 22 (Ga. Code Ann. 6-1001), provides in part: "In all criminal cases, the notice of appeal filed as heretofore provided shall [emphasis added] serve as supersedeas ...."A practical construction of the term can be found in Black's Law Dictionary. Supersedeas is defined as "A suspension of the power of a trial court to issue an execution on judgment appealed from ...." Thus, Ga. Code Ann. 6-1001 mandates that the execution of a sentence imposed in a criminal case is suspended when a notice of appeal is filed. Georgia Laws 1965, p. 230 (Ga. Code Ann. 27-2505), governs the time from which sentences are to run. The foregoing law provides in part: "[I]t shall be the duty of the several judges, in the imposition of sentence ... to specify that the term of service under such sentence shall be computed as from the date of sentence ... except [emphasis supplied] in such cases as may be appealed to the State Court of Appeals or the Supreme Court for reversal of the conviction, in which event the sentences shall be computed from the date the remittitur of the appellant court is made the judgment of the court . . . ." 59 75-31 Thus, a sentence is normally computed from the date of imposition of the sentence by the trial court. If the judgment of conviction and sentence were appealed by the defendant, execution of the term of sentence would be suspended until an appellate court affirms the sentence and the trial court adopts the appellate decision as its own. However, time spent in incarceration pending the outcome of an appeal is credited toward the term of sentence. Georgia Laws 1965, p. 230 (Ga. Code Ann. 27-2505 (proviso)). Similarly, a probated sentence with attendant conditions of probation, such as payment of restitution for damage and fines, is suspended in its execution pending appeal. Ga. Laws 1965, pp. 18, 22 (Ga. Code Ann. 6-1001); Ga. Laws 1964, pp. 483, 484, and 1974, pp. 352, 354 (Ga. Code Ann. 27-2502); Ga. Laws 1965, p. 230 (Ga. Code Ann. 27-2505). Again, if the defendant is held in confinement or custody during the pendency of the appeal, such time as is spent in confinement would be counted toward service of the sentence. However, where a defendant is at liberty on bond pending the outcome of the appellate court decision, appeal time is not credited. That is to say, time spent at liberty on bond pending an appeal from the trial court clearly does not fall within the proviso of Ga. Code Ann. 27-2505 relating to defendants incarcerated pending remittitur of an appeal. Smith v. Ault, 230 Ga. 433 (4) (1973). Therefore, my official opinion in answer to the two questions posed is: (1) Upon appeal from a conviction and probated sentence, which sentence involves attendant conditions such as payment of restitution and fines, the commencement of the term of probation and satisfaction of the attendant conditions is suspended during the pendency of the appeal. (2) Where during pendency of an appeal from a conviction and probated sentence, the defendant-appellant is at liberty on bond and not subject to probationary supervision or incarceration, the intervening time, between the date the sentence is imposed and the entry of a final judgment pursuant to the remittitur from the appellate court, is not credited toward service of the term of probation or sentence. OPINION 75-31 To: President, Board of Veterinary Medicine April 7, 1975 Re: Public officers may not by agreement alter statutorily prescribed compensation but voluntary acceptance of less than statutory rate under certain circumstances precludes subsequent claim for unpaid balance. 75-31 60 This is in reply to your request for my official opinion as to whether you and other members of the State Board of Veterinary Medicine are entitled to receive per diem compensation for services in that capacity in accordance with the amendment by Ga. Laws 1974, p. 1441, to Ga. Code 84-1504. For the reason stated hereinafter, it is my official opinion that you are entitled to compensation for such services at the statutory rate for services rendered in February 1975, and thereafter. This issue arises because prior to the Governor approving Ga. Laws 1974, p. 1441, a representation, purporting to be on behalf of the members of the State Board, was made to the Governor that the members of the State Board would voluntarily reduce their per diem to the average paid to members of other state examining boards. A further representation was made that at the 1975 Session of the General Assembly, legislation would be sponsored which would reduce the compensation payable to the members of the State Board to that average. During the remainder of calendar year 1974, the board submitted written reimbursement claims for their services at the per diem rate established prior to Ga. Laws 1974, p. 1441, and were paid on that basis. Subsequent to the board's February 1975 meeting, each member of the board submitted claims for per diem compensation at the rate established by Ga. Laws 1974, p. 1441. The issue involved is whether the representations described above effectively bind the members of the Board of Veterinary Medicine to compensation less than that prescribed by Ga. Laws 1974, p. 1441. The issue has been squarely decided by the Supreme Court. In MacNeill v. Steele, 186 Ga. 792 (1938), the court followed the traditional rule previously established in Georgia, and universally accepted in other jurisdictions, that a public officer cannot by agreement alter the compensation statutorily provided for the performance of the duties of his office, either by increasing it or by diminishing it. See 63 Am.Jur.2d Public Officers, 360 et seq. (1972). The rationale for that result is founded in public policy. While the public policy underlying the rule has many facets, one such facet was expressed in the Supreme Court's opinion in MacNeill as follows: " ... ' "[A]n officer's right to his compensation does not grow out of contract between him and the State.... The compensation belongs to the office... ," [Citation omitted.] It is a matter in which the public has a vital interest. The functions of government must be carried on through public officers. To permit changes in the compensation of the officer except as provided by law, either by agreement or by [other action], would tend to destroy the efficiency of officials in large measure, and this is contrary to public policy.' " Id. at 795-96. 61 75-32 While this rationale voids any effect the representations may otherwise have on services rendered in February 1975, and thereafter, the fact that the members of the State Board submitted claims for and received compensation during 1974 at a rate less than that prescribed by Ga. Laws 1974, p. 1441, effectively precludes them from now asserting any claim to the difference between the amount received and the amount which would have been received had the statute been followed. Dunn v. Meyer, 193 Ga. 91 (1941). It is, therefore, my official opinion that for services rendered in February 1975, and thereafter, the members of the State Board of Veterinary Medicine are entitled to compensation as provided in Ga. Code 84-1504, as amended by Ga. Laws 1974, p. 1441, but that for services rendered prior to that date for which they have claimed and received lesser compensation, the members are now barred from making any claim for the difference between the amount received and the statutory rate. OPINION 75-32 To: Commissioner, Department of Offender Rehabilitation April 10, 1975 Re: A municipality's potential liability for acts of a probationer working on a community service project will have to be determined from the facts in each case. A county's potential liability should not be increased by its participation in the same program. This is written in response to your request for my opinion as to the liability of a county or city utilizing probationers to perform community service projects under the Alternative Fine Program. You describe the Alternative Fine Program as a trial program to assist probationers who have had a fine imposed, as a prior condition to probation, work off the fine. The probationer voluntarily does community service work for either a county or a city and is credited a certain sum per hour for the work done. From what you have stated in your letter, I must assume that the potential liability about which you are concerned is potential liability of the city or county to third parties caused by acts of the probationers. Tort liability turns upon the facts in each case. Therefore, it is impossible to deal with every conceivable set of circumstances which might indicate the liability of the city or county caused by some act of the probationer. However, certain general propositions may be noted. The Georgia Code of 1933 at 69-301 provides that: 75-32 62 "Municipal corporations shall not be liable for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskillful performance of their ministerial duties, they shall be liable." The appellate courts of this state have held that the phrases "performing their legislative or judicial powers" and "performing a governmental function" are synonomous. Gray v. Griffin, 111 Ga. 361 (1900). In a later case, the Supreme Court declared that "A municipal corporation cannot under the guise of performing a governmental function create a nuisance dangerous to life or health." Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834, 838 (1968). Ga. Code (1933) 72-101 defines "nuisance" as "anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance." An action may be brought against a municipality for the creation or maintenance of a nuisance where the municipality is negligent in carrying out a lawful act which it was authorized to do. Town of Ft. Oglethorpe v. Phillips, supra, at 838. Whether or not a given injury to a third person is the result of a nuisance can only be answered in the context of a particular case. For this reason, the only opinion I could venture as to a municipality's potential liability for acts of probationers is that in some instances the municipality would be shielded by sovereign immunity. In other instances, however, its liability could be the same as that of a private citizen. Generally, counties have a broader immunity from suits than do municipalities. Ga. Code (1933) 23-1502 provides that: "A county is not liable to suit for any cause of action unless made so by statute." For example, in Ayers v. Franklin County, 73 Ga. App. 207 (1945), the Court of Appeals held that there was no statutory or constitutional provision authorizing the maintenance against a county of a tort action for damages for personal injuries sustained by an employee of the county while repairing a public road of that county. I am not aware of any statute which would authorize a suit against the county for acts of a probationer while working on a county project under the Alternative Fine Program. In summary, it is my opinion that the question of a municipality's liability will have to be determined from the facts present in a particular case. However, a county's potential liability should not be increased by its participation in the Alternative Fine Program. 63 75-33 OPINION 75-33 To: State Superintendent of Schools April 14, 1975 Re: Local boards of education may use general school funds for the construction of public library facilities. You have requested my opinion as to the legality of the utilization of general school funds by local boards of education for the construction of public library facilities. I understand that the funds involved are to be distinguished from those monies appropriated specifically to the State Board of Education by the General Assembly to aid and supplement the establishment and development of public library services, as provided in Ga. Laws 1943, pp. 385, 386 (Ga. Code Ann. 32-2607). For reasons I shall discuss subsequently, it is my opinion that general school funds may lawfully be expended for public library construction efforts. Expenditure of general school funds are subject to a restriction to "educational purposes and none other." See Ga. Const., Art. VII, Sec. II, Par. I (Ga. Code Ann. 2-5501); Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702); Ga. Laws 1969, p. 721 (Ga. Code Ann. 32-942). While the Supreme Court of Georgia has specifically stated that the expression "for educational purpose" is to be given the broadest significance (Worth v. Board of Education, 177 Ga. 166, 175 (1933)), and has indicated that the expression is " .... broad enough to cover all things necessary or incidental to the furtherance of education...." (Board of Commissioners of Roads and Revenues of Twiggs County v. Bond, 203 Ga. 558 (1948)), the scope of the expression does not extend to any measure that might incidentally prove to be of assistance to a program of education. That limitation must be noted at the outset of this discussion for the Supreme Court of Georgia has so ruled in Wright v. Absalom, 224 Ga. 6 (1968), wherein the use of general school funds in support of a school lunch program, while commendable and possibly beneficial to the students, was deemed not to be for educational purposes. Obviously, the Wright v. Absalom decision generates a conservative approach to any determination of an expenditure as being for educational purposes. However, I feel that use of such funds for public library construction is an expenditure in support of public education programs in this state and would be considered necessary and incidental to the furtherance of education in Georgia. The proposition that the establishment and development of public libraries is of an educational nature has statutory foundation. As provided in Ga. Laws 1943, pp. 385, 386 (Ga. Code Ann. 32-2606): 75-34 64 "It is hereby declared to be the policy of the State as a part of the provisions for public. education to promote the establishment and development of public library service throughout the State." This language serves to underscore the integral nature public library facilities necessarily play in the fostering and nurturing of formal educational and learning programs on all levels. The fundamental and necessary interrelationship between public library programs and public educational programs is further emphasized by the designation of the State Board of Education as the state supervisory and advisory agency responsible for the monitoring and counseling of the public library system in Georgia. Ga. Laws 1943, p. 385 (Ga. Code Ann. Ch. 32-26). Additionally, the relationship between board of education authorities and public libraries is present at the county level where local boards of education are authorized to serve as the library board for public libraries established by political subdivisions in accordance with Ga. Laws 1935, p. 409, as amended (Ga. Code Ann. 32-2706 and 32-2707). The inherent nature of library facilities as a learning tool and the pervasive relationship between educational authorities and library systems on both state and local governmental levels, together with the stated legislative policy that establishment of a public library service is to be part of the provisions for public education in this state, persuade me that the use of common school funds for construction of public library facilities is an expenditure for educational purposes. Obviously, the educational impact of the availability of library services to a county school system is self-evident and plainly reinforces the propriety of such an expenditure. OPINION 75-34 To: Commissioner, Department of Public Safety April16, 1975 Re: The Department of Public Safety has the right, duty and authority to patrol in and around the federally-owned Allatoona Dam Reservoir area and to apprehend and arrest reckless drivers and those driving under the influence of intoxicants either at the specific request of the Corps of Engineers or during intermittent patrolling periods. Your letter of March 17, 1975, requested an opinion from this office relative to the authority of the Department of Public Safety to apprehend reckless drivers and those driving under the influence of intoxicants in the federally-owned Allatoona Dam Reservoir area and to patrol that territory, either at the specific request of the Corps of 65 75-34 Engineers or at intermittent patrolling periods, in order to apprehend such violators. The Allatoona Dam Reservoir area came into existence as a result of Pub. L. No. 77-228, 55 Stat. 638, which authorized a plan for the construction by the Corps of Engineers of the Allatoona Reservoir on the Etowah River in the Coosa River Basin, Georgia. The project was designed to provide flood control, hydroelectric power, and for other purposes. See U.S. Code Cong. Service, 77th Cong., 1st Session (1941), p. 638. All of the property upon which the project is situated was purchased by the Federal Government from private owners. The federally-owned Allatoona area is correctly known as a federal water resource development project area and is under the administration of the Corps of Engineers. 36 C.F.R. Ch. III. Unlike the case with "federal reservations" or "federal enclaves," the United States does not possess exclusive jurisdiction over the Allatoona region as it does over federal military installations, etc. It has been the position of this office that the Federal Government has exclusive law enforeement jurisdiction on federal enclaves unless specifie authority is provided by the Federal Government to designated state and loeal law enforcement units. Ops. Att'y Gen. 1952-53, p. 8. However, where the Federal Government is merely a proprietor of public lands, the police power of the state extends over the federal public domain at least where there is no legislation by Congress on the subject and provided any state laws are not arbitrary or unreasonable. Omaechevarria v. Idaho, 246 U.S. 34~~, ;~8 S.Ct. 323, 62 L.Ed. 763 (1918); McKelvey v. U.S., 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301 (1922). An examination of the federal statutes has revealed no congressional enactments reserving exclusive federal police power jurisdiction over water resource development project areas and certainly Georgia's motor vehicle laws prohibiting drunken and reckless driving are neither unreasonable nor arbitrary. Therefore, the state's police power to enforce its motor vehicle safety laws clearly extends to and applies within the Allatoona Dam Reservoir area. Acting pursuant to its constitutional powers and by congressional authority, the Federal Government has promulgated various rules and regulations applicable to all water resource development project areas. See Sec. 4, Act of Dec. 22, 1944, 54 Stat. 899, as amended, 16 U.S.C. 460d, Pub. L. No. 90-483, 82 Stat. 746; and Pub. L. No. 92-347, 86 Stat. 459. Under 36 C.F.R. Ch. III, Sec. 327.0, in addition to the right of the Federal Government to promulgate rules and regulations relative to water resource development areas, it is specifically stated that: "All other federal, state, and local laws and regulations remain in 75-35 66 full force and effect where applicable to those water resource development projects." vVith particular reference to motor vehicles, 36 C.F.R. Ch. III, Sec. 327.2 (c), provides that "No person shall operate any motor vehicle including off-road vehicles in a careless, negligent, or reckless manner so as to endanger any person or property." Violations of this and any other regulations subject the violator to a fine of not more than $500 or imprisonment for not more than six months, or both. The Chief of Engineers has the right to designate federal rangers and employees to issue citations for violation of these regulations requiring the appearance of any person charged with violation before the U.S. Magistrate within whose jurisdiction the water resource development project is located for trial. 36 C.F.R. Ch. III, Sec. 327.27. Significantly, the federal regulations do not give these rangers or federal officials arrest authority over violation of the motor vehicle regulations but provide only for the issuance of citations. These regulations support my opinion that the Federal Government clearly intends all state and local laws not inconsistent with federal legislation to apply to and be enforced within water resource development areas such as Lake Allatoona and this certainly includes the authority of the State Department of Public Safety to arrest and apprehend drunken and reckless drivers within those areas. I must caution, however, that the concurrent criminal jurisdiction which the State of Georgia may exercise does not extend to any matter that is not consistent with the power of the United States to protect its land, control its use, and prescribe in what manner others may acquire rights in them. Op. Att'y Gen. 67-230. In view of the foregoing, it is my opinion that the Department of Public Safety clearly has the right, duty, and authority to patrol in and around the federally owned Allatoona Dam Reservoir area and to apprehend and arrest reckless drivers and those driving under the influence of intoxicating liquors either at the specific request of the Corps of Engineers or during intermittent patrolling periods. OPINION 75-35 To: Commissioner, Department of Offender Rehabilitation April17, 1975 Re: Since the State Board of Pardons and Paroles has statutory authority to hire its own personnel to assist it in carrying out its quasi-judicial functions, the Department of Offender Rehabilitation is not authorized to assign staff to the State Board of Pardons and Paroles as pre-parole investigators. 67 75-35 This is written in response to your recent request for my opinion as to whether the Department of Offender Rehabilitation can legally assign staff to the State Board of Pardons and Paroles for the purpose of preparing Pre-Parole Investigation Reports. You do not explain what you mean by the word "assign." However, I will assume that you refer to personnel who are hired by your department and are paid by your department, but who will actually work for and be supervised by the State Board of Pardons and Paroles. As a part of the Executive Reorganization Act of 1972, Ga. Laws 1972, pp. 1069, 1073 (Ga. Code Ann. 77-505a), provided that the State Board of Pardons and Paroles is continued and that the board is assigned to the Department of Offender Rehabilitation for administrative purposes only as prescribed in Section 105 of the Executive Reorganization Plan of 1972 (Ga. Code Ann. 40-3505). Section 8 of Ga. Laws 1972, p. 1015 (Ga. Code Ann. 40-3510), which was approved by the Governor immediately prior to Ga. Laws 1972, p. 1069, provides that Section 3 of Ga. Laws 1972, p. 1015, shall be deemed to be Section 105 of the Executive Reorganization Plan of 1972. Therefore, the definition of assignment for "administrative purposes only" as stated in Section 3 of Ga. Laws 1972, p. 1015 (Ga. Code Ann. 40-3505), is applicable as the definition to be used in Ga. Laws 1972, p. 1069 (Ga. Code Ann. 77-505a). Section 3 of Ga. Laws 1972, p. 1015 (Ga. Code Ann. 40-3505), provides in pertinent part that: "(a) An agency assigned to a department for administrative purposes only in this Act shall: "(1) Exercise its quasi-judicial rule-making, licensing, or policymaking functions independent of the department and without approval or control of the department. * * * "(3) Hire its own personnel, if authorized by this Act, by the Constitution or by statute, or if the General Assembly provides or authorizes the expenditure of funds therefor. "(b) The department to which an agency is assigned for administrative purposes only in this Act shall: "(1) Provide record keeping, reporting, and related administrative and clerical functions for the agency. * * * "(3) Provide staff for the agency subject to the provision of (a) (3)." (Emphasis added.) 75-36 68 Therefore, if the State Board of Pardons and Paroles is authorized to hire personnel for its quasi-judicial functions by virtue of either (1) Ga. Laws 1972, p. 1015, or (2) the Constitution, or (3) a statute, or (4) appropriation of funds by the General Assembly for hiring its own personnel, then the board may continue to appoint and discharge employees engaged in that function. The State Board of Pardons and Paroles has been given the authority to appoint and discharge employees by Ga. Laws 1943, pp. 185, 186 (Ga. Code Ann. 77-509), which provides that: "The board may appoint such clerical, stenographic, supervisory, and expert assistance, and establish qualifications for employees as they may deem necessary, and in its discretion may discharge such employees." There are no provisions in either Ga. Laws 1972, p. 1015 (Ga. Code Ann. 40-3505), or Ga. Laws 1972, p. 1069 (Ga. Code Ann. 77-505a), which specifically repeal or are in direct conflict with the statutory authority as to the board's quasi-judicial functions and its authority to hire, supervise, and discharge its own personnel. Therefore, it is still my opinion that the State Board of Pardons and Paroles may hire and discharge employees required in the performance of its quasi-judicial functions. See Ops. Att'y Gen. 72-49. Subsection (b) (3) of Ga. Code Ann. 40-3505, as quoted above, would authorize the Department of Offender Rehabilitation to furnish staff to the board if the board did not have authority to furnbh its own staff. The "subject to" language in subsection (b) (3) indicates that subsection (b) (3) is subservient to subsection (a) (3), also quoted above. See Atlanta Trust Co. v. Federal Land Bank of Columbia, 195 Ga. 142 (1942). Therefore, it is my opinion that since the State Board of Pardons and Paroles has statutory authority to hire its own personnel to assist it in carrying out its quasi-judicial functions, the Department of Offender Rehabilitation is not authorized to assign or provide staff to the State Board of Pardons and Paroles as pre-parole investigators. OPINION 75-36 To: Commissioner, Department of Public Safety April 18, 1975 Re: The Georgia First Offender Law may not be used so as to bar the Commissioner of the Department of Public Safety from proceeding mandatorily to revoke the driver's license of a person who has pleaded guilty to driving under the influence of intoxicants; the Commissioner of the Department of Public Safety is not precluded from proceeding 69 75-36 under the mandatory driver's license revocation law in the case of a person between the ages of 16 and 18 who has been convicted of a misdemeanor for the first time. Your letter of March 11, 1975 requested an opinion concerning the position of the Department of Public Safety relative to the First Offender Law in three instances: (1) as regards the offense of driving under the influence of intoxicants; (2) as regards the provisions of the mandatory driver's license revocation law; (3) as regards persons between the ages of 16 and 18 who have been convicted of a misdemeanor for the first time. It is my understanding that a licensed motorist entered a plea of guilty to the offense of driving under the influence of intoxicating liquors in the State Court of Ware County. The court, in its discretion, withheld adjudication of guilt and chose to proceed as provided in the First Offender Law. A record of defendant's guilty plea was sent to the Department of Public Safety whereupon the commissioner revoked the motorist's driver's license pursuant to Ga. Code Ann. 92A-608. Under the facts as I have them before me, it would be appropriate and responsive to your letter that I consolidate points (1) and (2) and discuss them under a single heading while responding to point (3) separately. Specifically, the first issue resolves itself into the question of whether the First Offender Law, Ga. Laws 1968, p. 324 (Ga. Code Ann. 27-2727), can be used so as to bar the Commissioner of the Department of Public Safety from revoking a person's driver's license under the mandatory revocation law, Ga. Laws 1951, p. 565, as amended (Ga. Code Ann. 92A-608). The First Offender Law affords persons accused of crime, who have not been previously convicted of a felony, the opportunity to be pfaced on probation, with their consent, after a finding but before an adjudication of guilt. Thus, if there is a verdict or a plea of guilty or of nolo contendere, the court, prior to an adjudication of guilt, may suspend the entry of a judgment of guilt or, if the defendant consents, may defer further proceedings and place the defendant on probation as provided in the Statewide Probation Act (Ga. Laws 1956, p. 27; Ga. Code Ann. 27-2702 et seq.). Under Ga. Code Ann. 92A-608, if a person is convicted or pleads guilty to the offense of driving a motor vehicle under the influence of intoxicating liquors or drugs, inter alia, it shall be mandatory upon 75-36 70 the Director of the Department of Public Safety to revoke that person's operator's license for a period of one year, effective as of the date of such disposition. After 30 days has expired, the. director is given the discretion of reinstating the driver's license only if the operator qualifies as a self-insurer, or produces evidence that he has obtained a liability insurance policy, or that he has obtained a surety bond. I am of the opinion that pursuant to'Ga. Code Ann. 92A-608 the Commissioner of the Department of Public Safety can and must revoke the driver's license of a person who pleads guilty to the offense of driving under the influence of intoxicants notwithstanding the fact that the defendant may otherwise in all respects qualify under the First Offender Law. See Ops. Att'y Gen. 68-257 and 69-62. The mandatory license revocation law is primarily concerned with and directed toward the giving of security by owners and operators of motor vehicles who have either pleaded guilty, been convicted, or forfeited a bond relative to certain specified offenses, among them, driving while under the influence of intoxicating liquors or drugs. This point was clearly made by the General Assembly when it amended the title of the Motor Vehicle Safety Responsibility Act to read "An Act to eliminate the reckless and irresponsible driver of motor vehicles from the highways of the State of Georgia." Ga. Laws 1956, p. 543. The same point was emphasized in a case decided under the law as originally approved where the court stated that "This section [Ga. Code Ann. 92A-608] in substance, then, makes revocation of a driver's license [by the Director of the Department of Public Safety] mandatory on the conviction of driving a motor vehicle while under the influence of intoxicating liquors and provides that the revocation may be revoked and the license reinstated only on certain required arrangements under which the licensee will be financially responsible through insurance, surety bond, self-insurance, employer responsibility, or car owner's responsibility." Grinstead v. Purvis, 101 Ga. App. 625 (1960). Thus, the mandatory revocation provisions of Ga. Code Ann. 92A-608 are aimed at assuring the protection of the public from any loss or damage inflicted by one who commits the offenses therein specified. It should be noted that while the Act as originally approved directed revocation only upon conviction of the offenses specified, as it now stands, the law has been expanded to cover pleas of guilty and bond forfeitures hence reinforcing the inference that the legislature was principally concerned to invest the Department of Public Safety with authority to revoke driver's licenses on less cause than a conviction so as to assure the licensee's financial responsibility and to protect the public. Under the mandatory revocation law, then, it is the plea of guilty which in itself automatically triggers the Department of Public Safety's duty to revoke mandatorily the driver's license until compliance with what the law dictates. 71 75-36 In Conner v. Durden, 220 Ga. 586 (1965), the Director of the Department of Public Safety sought a writ of prohibition against a city court judge to prevent him from interfering with the Department of Public Safety in mandatorily revoking the driver's license of a person who had been convicted of DUI pursuant to Ga. Code Ann. 92A-608. Although the writ was denied because the court perceived only a "mere apprehension" that the judge would interfere with the Department of Public Safety, it was made abundantly clear that the judge had no right to impede or interfere with the Director of the Department of Public Safety in the discharge of his duties under Ga. Code Ann. 92A-608. The actions of the Department of Public Safety in this regard "are purely administrative in nature and not judicial." Id., p. 587. Moreover, there appears to me to be no conflict between Ga. Code Ann. 92A-608 and the First Offender Act inasmuch as the two laws have different purposes. The latter is primarily concerned with giving first offenders without previous felony records a chance to be put on probation in the court's discretion and, at the end of the period of probation or upon the court's release prior thereto, to be discharged completely exonerated of any criminal purpose, without impairment of any civil rights or liberties and without the stigma of a criminal conviction. The mandatory revocation law speaks in terms of assuring financial security and responsibility and contains detailed provisions relative to insuring that only financially secure drivers operate motor vehicles once they have pleaded guilty or been convicted or have forfeited bond on certain offenses. In order to insure this, it is mandatory that the Department of Public Safety revoke the license of such a person and not reinstate it until the provisions of Ga. Code Ann. 92A-608 are satisfied. The second issue resolves itself into the question of whether a person between the ages of 16 and 18 who is adjudicated guilty of a misdemeanor for the first time can be punished exclusively as provided in Ga. Laws 1964, p. 485, as amended (Ga. Code Ann. 27-2506), or whether, if the misdemeanor is among those specified in Ga. Code Ann. 92A-608 (specifically DUI), he is also subject to the mandatory revocation of his driver's license as provided therein. It is my opinion that a person between 16 and 18 years of age who is convicted of a misdemeanor among those specified in Ga. Code Ann. 92A-608 (specifically in this instance DUI) is subject to the mandatory revocation of his driver's license. Ga. Code Ann. 27-2506 speaks in terms of the "punishment" to be imposed upon a juvenile misdemeanant and limits it to a fine not in excess of $1,000 or confinement exclusively under the jurisdiction of the Board of Corrections for a period not to exceed 12 months. Ga. Code Ann. 92A-608 is not a punitive statute, but is, as indicated above, a law designed and directed toward assuring a financially secure and responsible motor vehicle operator. As such, 75-37 72 Ga. Code Ann. 92A-608 does not conflict with the punitive provisions specifically enumerated in Ga. Code Ann. 27-2506 because it is directed at an entirely different purpose. OPINION 75-37 To: Director, Fiscal Division, Department of Administrative Services April 21, 1975 Re: The State Depository Board may appoint as a state depository any building and loan association or savings and loan association, the deposits of which are insured by the Federal Savings and Loan Insurance Corporation. This is in response to your recent request for my opinion concerning the use of savings and loan associations and building and loan associations (hereinafter collectively referred to as "savings and loan associations") as depositories for state funds. For the reasons stated below, I have concluded, and it is my official opinion, that the State Depository Board (board) may name and appoint savings and loan associations as state depositories. Section 1, Ga. Laws 1973, p. 149, amended Code Ann. 100-101 to provide, in pertinent part, as follows: " ... At such time as an Act providing that banks and savings and loan associations should be taxed in the same manner as other corporations are taxed becomes effective, the Board may also name and appoint as State depositories of State funds any building and loan association or Federal savings and loan association which has its deposits insured by the Federal Savings and Loan Insurance Corporation." The "Act" referred to above is Ga. Laws 1973, p. 924, which sought to tax banks and other financial institutions in the same manner as commercial corporations. A part of that Act [Section 3 (j) ; Ga. Code Ann. 92-145.1] created an Intangible Tax Equalization Fund which is to be funded by the General Assembly. That Act further provided that it would become effective on January 1 "of the calendar year following any year in which the General Assembly shall have appropriated the monies as provided in Section 3 (j) hereof to the Intangible Tax Equalization Fund." Section 4, Ga. Laws 1973, p. 924. Hence, the General Assembly provided that the Act providing for tax equalization (Ga. Laws 1973, p. 924) would be triggered only when, and if, the Intangible Tax Equalization Fund was funded by the General Assembly, and the statute allowing the use of savings and 73 75-37 loan associations as state depositories (Section 1, Ga. Laws 1973, p. 149) would be triggered only when, and if, the former Act became effective. In other words, the funding of the Intangible Tax Equalization Fund was a condition precedent to either Act becoming law. In an opinion rendered to the Commissioner of Banking and Finance, I determined that a particular appropriation for Fiscal Year 1975 was sufficient to trigger the operation of Ga. Laws 1973, p. 924, and that that statute would become effective on January 1, 1975. Op. Att'y Gen. 74-136. It necessarily follows, therefore, that the pertinent part of Section 1, Ga. Laws 1973, p. 149, also became effective on January 1, 1975. Hence, it would appear at first sight that the board may designate appropriate savings and loan associations as depositories for state funds. However, as you pointed out in your opinion request, certain legislation enacted during the recent session of the General Assembly has raised questions concerning the continued vitality of Section 1, Ga. Laws 1973, p. 149. In particular, you referred to Acts 91 and 93, Ga. Laws 1975, at p. 147 and p. 154, which repeal or otherwise affect certain portions of Ga. Laws 1973, p. 924 (the Tax Equalization Act). In addition, you called my attention to the fact that the funds for the Intangible Tax Equalization Fund have been deleted by the Appropriations Act (Ga. Laws 1975, p. 1333, Section 36). It is elementary that, absent judicial intervention, once a statute becomes effective, it remains effective until such time as it expires by its own terms or is repealed by the legislature. Moreover, repeal of a statute by implication is not favored. Thomas v. Board of Commissioners of Clwttooga County, 196 Ga. 10 (1943); and such a repeal will be found only when the two Acts are in irreconcilable conflict. Morris v. City Council of Augusta, 201 Ga. 666 (1946). Consequently, unless one of the 1975 Acts stated above either expressly repeals the pertinent portion of Section 1, Ga. Laws 1973, p. 149, or is in irreconcilable conflict therewith, the board may continue to appoint savings and loan associations as state depositories. Act 91, Ga. Laws 1975, p. 147, amends Code Chapter 92-24 to provide generally for the taxation of the shares of banks and the net worth of savings and loan associations. It does not repeal, either expressly or impliedly, any portion of Ga. Laws 1973, p. 149. Act 93, Ga. Laws 1975, p. 154, amends Ga. Laws 1973, p. 924, by deleting certain sections thereof and conferring certain powers upon the State Revenue Commissioner. Like Act 91, it neither expressly nor impliedly repeals any portion of Ga. Laws 1973, p. 149. Similarly, the authority conferred upon the board by Section 1, Ga. Laws 1973, p. 149, is not affected by the fact the General Assembly deleted the appropriation for the Intangible Tax Equalization Fund from the 1975 Appropriation Bill. The first rule of statutory con- 75-38 74 struction is that the ordinary significance shall be given to the meaning of all words. Ga. Code Ann. 102-102 (1). "When a statute is clear and unambiguous, it will be held to mean what has been clearly expressed." Barnes v. Carter, 120 Ga. 895, 898 (1904). The clear and unambiguous meaning of the language of Section 1, Ga. Laws 1973, p. 149, is that savings and loan associations could be designated as state depositories once that Section became operative, and its continuing operation is not dependent upon the General Assembly's funding of the Intangible Tax Equalization Fund. In conclusion, Section 1, Ga. Laws 1973, p. 149, has not been repealed by Acts 91 or 93, 1975, and its continuing vitality is not affected by the lack of funding for the Intangible Tax Equalization Fund. Therefore, it is my official opinion that the State Depository Board may, to the extent otherwise permitted by Code Chapter 100-1, appoint savings and loan associations as state depositories. OPINION 75-38 To: Secretary of State, Commissioner of Securities April 23, 1975 Re: Registration as a dealer under the Georgia Securities Act of 1973 does not exempt a foreign corporation from needing a certificate of authority under the Georgia Business Corporation Code. You have requested my official opinion whether "a foreign corporation dealing in securities in this state and operating a branch office in this state would be required to register under both the Securities and the Corporation Laws of the State of Georgia." The Georgia Business Corporation Code provides that: "No foreign corporation1 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 statute of this State requires foreign corporations of a particular class to qualify thereunder to transact business in this State the requirements of such other statute shall govern.... Any foreign corporation to which a certificate of authority is granted shall be subject to all the licensing and regulatory statutes of this State relating to businesses of the kind which the foreign corporation proposes to transact in this State...." Ga. Laws 1968, pp. 565, 707; 1969, pp. 152,201 (Ga. Code Ann. 22-1401 (a)). 1 " 'Foreign corporation' means a corporation for profit organized under laws other than the laws of this State for a purpose or purposes for which a corporation may be organized under the laws of this State." Ga. Laws 1968, p. 565 (Ga. Code Ann. 22-102 (b)). 75 75-39 The Georgia Securities Act of 1973 provides as follows: "No dealer2 shall offer for sale or sell any securities within or from this State, except in transactions exempt under subsection (a), (b), (f), (g), (h), (i), (k) or (l) of Section 9, unless he is a registered dealer [or is otherwise excepted]...." Ga. Laws 1973, pp. 1202, 1210; 1974, pp. 284, 287 (Ga. Code Ann. 97-103 (a)). It is clear from Ga. Code Ann. 97-103 (a), just quoted, that the dealer in securities must register under the Georgia Securities Act of 1973 unless he comes within its exceptions. It is also clear from the last sentence quoted in Ga. Code Ann. 22-1401, above, that the existence of such a licensing and regulatory statute does not auto- matically exempt a foreign corporation from registration under the Georgia Business Corporation Code. Instead, the Corporation Code requires a certificate of authority "except that when another statute ... requires foreign corporations of a particular class to qualify there- under to transact business in this State the requirements of such other statute shall govern." Ga. Code Ann. 22-1401 (a). A 1973 opinion construes this language in answering a question similar to the one you ask now. Even though a foreign corporation obtains a license under the Out of State Land Sales Act, Ga. Laws 1971, p. 856 (Ga. Code Ann. Ch. 84-58), the foreign corporation never- theless must also qualify to do business under the Georgia Business Corporation Code. Op. Att'y Gen. 73-140. In this instance, as in that one, the foreign corporation is not a member of a particular class of foreign corporations, required by a specialized statute to qualify under it to do business. Therefore, it must qualify to do business under the Corporation Code. In summary, it is my official opinion that a foreign corporation must register under the Georgia Securities Act of 1973 if it is a dealer in securities, and is not exempt under that Act, and that registration under the Securities Act does not by itself exempt the foreign corpora- tion from the requirement of seeking a certificate of authority under the Georgia Business Corporation Code. OPINION 75-39 To: State Superintendent of Schools April 28, 1975 Re: Section 37 of the Adequate Program for Education in Georgia Act requires that the "teacher allotment" for state funding purposes 2 " 'Dealer' means 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 [with exceptions as described]." Ga. Laws 1973, pp. 1202, 1203; 1974, p. 284 (Ga. Code Ann. 97-102 (5)). 75-39 76 be based upon the "projected" average daily attendance for the first four months of the next school year, and further requires the State Board of Education to calculate this projection "for individual school systems." Although it is entirely proper for the State Board of Education to employ a standard formula for general use in its calculations, it should also take into consideration any extraordinary circumstances it is aware of respecting particular local school systems. This is in reply to your letter of April 18 concerning the projection of average daily attendance by the State Board of Education under Section 37 of the Adequate Program for Education in Georgia Act (APEG).1 As pointed out in our opinion of December 12, 1974 (to which you refer) (Op. Att'y Gen. 74-154) APEG requires this projection to be made for the first four months of the next school year and in turn utilizes this projection to determine a local school system's "teacher allotment" for purposes of state fiscal support. The opinion also pointed out that: "In calculating the anticipated average daily attendance figures for a future time period (i.e., the first four months of the next school year), it goes without saying that the State Board of Education cannot be expected to be infallible. The board does have flexibility in the matter, having been granted the authority to adopt such methods, procedures and rules for the calculation as it may deem appropriate. All that is required is that the means it selects to make the projection must be such as would be anticipated to produce at least some reasonable degree of accuracy." (Emphasis added.) That opinion consequently concluded that the State Board: " ... is legally authorized to select whatever calculation procedure it desires so long as the procedure it does select can reasonably be said to be likely to produce a reasonable degree of accuracy." Given this degree of discretion there wouldn't seem to be any question as to the State Board of Education's authority to select a general calculation formula for overall application; but what when the board is aware of special or extraordinary circumstances as to a given local school system? May it or ought it to take such special circumstances into account, or should it ignore individual system variations 1 Ga. Laws 1974, pp. 1045, 1069 (Ga. Code Ann. 32-637a). While Section 37 has been amended by Ga. Laws 1975, p. 539 (H.B. 791), the 1975 amendments do not effect the resolution of the particular questions considered in this opinion. 77 75-40 and merely apply its general formula? By way of illustration, you point out that: 11 the termination of a contract between two school systems ... would greatly affect the projections for the individual systems. In this instance, would the State Board of Education be legally re- quired to take into consideration the drastic changes resulting from the termination of the contract?" It is my opinion that the answer to this question is contained in Section 37 of the APEG, which, as pointed out in our opinion of December 12, requires the State Board's projections to be made individually for each local school system. In the words of the statute, the State Board's projection must: " ... be based upon projected average daily attendance for the first four months of the school year made under rules adopted by the State Board of Education designed to protect the average daily attendance for individual school systems. . . ." (Emphasis added.) In light of this language (i.e., the requirement that the projection be made for individual school systems) it is my opinion that while it is entirely proper for the State Board of Education to employ a standard formula for general use in projecting average daily attendance for a local school system for the first four months of the next school year, it should also take into consideration any extraordinary circumstances it is aware of in connection with its projection for any particular local school system. OPINION 75-40 To: Director, Office of Planning and Budget, Executive Department May 2, 1975 Re: Allotment of funds to Georgia Residential Finance Authority under General Appropriations Acts for Fiscal Years 1974-75 and 1975-76 is not authorized by Art. VII, Sec. IX of the Constitution; Ga. Code 40-421 authorizes transfer and allotment of the appropriated funds to agencies of the state having comparable authority. This is in reply to your request for my opinion as to whether you may permit an allotment of funds to the Georgia Residential Finance Authority from the appropriation contained in Section 22 of the General Appropriations Act for Fiscal Years 1974-75, Ga. Laws 1974, p. 1508, as amended by Act No. 121, Ga. Laws 1975, p. 216 (H. B. 169), and, 75-40 78 if not, whether you may make any other allotment of the appropriated funds. Act No. 121, Ga. Laws 1975, p. 216, amends the General Appropriation Act for Fiscal Year 1974-75, Ga. Laws 1974, p. 1508, adding, in pertinent part, an appropriation providing as follows: "Section 22. Georgia Residential Finance Agency. * * * ... $69,000." The appropriation is budgeted for operating costs of this entity including salaries, operating expenses, and various other items. The Georgia Residential Finance Agency was created by Ga. Laws 1974, p. 975, as "a body corporate and politic ... which shall be deemed an instrumentality of the State of Georgia." Ga. Code Ann. 99-3604. The corporation is given general corporate powers normally conferred on other public corporations created by the General Assembly. Ga. Code Ann. 99-3606. In addition, the corporation is authorized to issue revenue bonds, the proceeds of which it is authorized to employ for the purpose of making loans to : ". . . qualified housing sponsors or public bodies or agencies for the construction or rehabilitation of . . . housing developments. . . ." Ga. Code Ann. 99-3607. The corporation is also authorized to purchase residential mortgages or participations therein from lending institutions on the condition that the lending institution reinvest the proceeds in new residential mortgage loans. Ga. Code Ann. 99-3608. Georgia Laws 1974, p. 975, was amended by Act No. 756, Ga. Laws 1975, p. 1651. The amendment, among other things, changed the name of the Georgia Residential Finance Agency to the Georgia Residential Finance Authority and specifically designated the entity as a "public authority." Article VII, Sec. IX, Par. I, Ga. Const., requires the submission by the Governor of certain budget documents to the General Assembly: " ... which shall provide for the appropriation of the funds necessary to operate all the various departments and agencies, and to meet the current expenses of the State for the next fiscal year." Ga. Code Ann. 2-6201 (a). The same constitutional provision then provides: "The General Assembly shall annually appropriate the funds necessary to operate all the various departments and agencies, and meet the current expenses of the State for the next fiscal year. . . ." Ga. Code Ann. 2-6201 (b). 79 75-40 It has been firmly established that the General Assembly, in statutorily designating an appropriate agent to implement a legislative scheme, may create, and thus designate, a public corporation as such an agent for the purpose of carrying out governmental functions. See e.g., State of Georgia v. State Toll Bridge Authority, 210 Ga. 690, 695 (1954). In performing the statutory responsbilities vested in it, the public corporation is exercising executive functions within the meaning of Ga. Canst., Art. I, Sec. I, Par. XXIII (Ga. Code Ann. 2-123), and is thus in the broadest sense an "agent" of the state for some purposes. Greer v. State of Georgia, 233 Ga. 667 (1975). Nevertheless, the objective underlying the creation of various authorities, and the benefit sought to be derived, was the creation of a body corporate separate from the state itself, and thus, for example, not bound by constitutional debt limitations applicable to the state and the obligations of which, conversely, did not bind the state. See, e.g., McLucas v. State Bridge Bldg. Authority, 210 Ga. 1, 6 (1953). Constitutionally, no department or agency of the state, for example, could lawfully incur the type of debt which the Residential Finance Authority is authorized to incur, Ga. Canst., Art. VII, Sec. III, Par. I (Ga. Code Ann. 2-5601), nor could any department or agency of the state lawfully make loans of the type which the authority is authorized to make. Ga. Canst., Art. VII, Sec. III, Par. IV (Ga. Code Ann. 2-5604). In my opinion, it is the latter, narrower connotation that is to be attributed to the language in Art. VII, Sec. IX, Par. I which refers to "the various departments and agencies ... of the State...."This conclusion is compelled by several methods of analysis, suggested by Thompson v. Talmadge, 201 Ga. 867 (1947), and other decisions of the Supreme Court, for interpretation of the Constitution. First, the Constitution itself, including Art. VII, Sec. IX, elsewhere makes a clear distinction between the state, and its departments and agencies, and public agencies, corporations, and authorities created by the state. See, e.g., Art. VII, Sec. III, Par. I (Ga. Code Ann. 2-5601); Art. VII, Sec. VI, Par. I (Ga. Code Ann. 2-5901); Art. VII, Sec. IX, Par. II (e) (Ga. Code Ann. 2-6202). In view of the distinction otherwise recognized by the Constitution, it is not at all persuasive that the distinction was ignored in Art. VII, Sec. IX. Second, since the first adoption of the pertinent language of Art. VII, Sec. IX, in 1945, the General Assembly generally has not made direct appropriations to authorities, except for the abortive attempt to do so reflected in State Ports Authority v. Arnall, 201 Ga. 713, 725-27 (1947). Instead, appropriations ultimately flowing to such an authority generally were and are made to a department or agency of the state for payment by it to the authority in exchange for services or property provided by the authority to that department and agency, under 75-40 80 contracts specifically authorized by Art. VII, Sec. VI of the Constitution. This legislative interpretation is persuasive as to the proper construction of Art. VII, Sec. IX, Par. I. Third, treatment of an authority as a "department or agency of the State" for purposes of Art. VII, Sec. IX, would present serious issues as to whether they are also to be treated as "departments or agencies of the State" for purposes of other constitutional provisions, which, if answered in the affirmative, would negate the purpose of creating separate corporate entities. Finally, the language employed in Art. VII, Sec. IX, Par. I, does not itself in any way suggest that it encompasses more than those "departments and agencies of the State" which the phrase normally connotes, and when compared to Art. III, Sec. VII, Par. IX (Ga. Code Ann. 2-1909), governing the same subject matter, clearly imports the narrower connotation. For these reasons, it is my official opinion that the General Assembly may not consistently with Art. VII, Sec. IX, appropriate directly to an entity created as a separate corporate body, including the Georgia Residential Finance Authority, and thus that you may not allot the appropriation contained in Section 22 of the General Appropriation Act for Fiscal Year 1974-75, or for Fiscal Year 1975-76, to that body. This conclusion, however, does not require the further conclusion that the referenced appropriation fails. In Op. Att'y Gen. 67-189, I concluded that the Georgia Art Commission could not expend an appropriation to it, made for the purpose of receiving matching federal funds, for the purpose of purchasing works of art, subsidizing theatrical productions, or otherwise supporting the arts by grants to individuals or groups. I reached this conclusion because the Art Commission's sole statutory function was "to advise the State on art and aesthetic matters." Ga. Laws 1964, p. 678, Section 1 (former Ga. Code Ann. 40-2601) (emphasis added). Thus, the Art Commission could not receive the appropriation, in fact made to it, made for another purpose beyond its statutory authority to expend. Subsequently, in Op. Att'y Gen. 67-212, I concluded that the same appropriation did not fail but could be transferred under Ga. Code Ann. 40-421 to an agency which had general statutory authority to expend it for the purposes for which it was made. Code 40-421 provides in pertinent part as follows : "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 ... to the [transferee agency]...." Ga. Laws 1962, p. 17. Op. Att'y Gen. 67-212 unquestionably compels a similar conclusion 81 75-40 in this case, unless the conclusion that the Georgia Residential Finance Authority was not authorized to receive a direct appropriation also warrants the conclusion that it cannot be treated as a "budget unit" for purposes of Code 40-421. In my opinion, it does not. While an appropriation to the Art Commission was authorized by Art. VII, Sec. IX, and thus the Art Commission was properly treated as a budget unit, it clearly was not authorized to receive the particular appropriation involved in Op. Att'y Gen. 67-212. In my opinion, for purposes of applying Code 40-421, there is no significant difference between these cases since in both the appropriation was improperly made to an entity not authorized to receive or expend it for the purposes for which it was made. Ga. Code 40-421 is designed in part to prevent the failure of an appropriation, the expenditure of which is otherwise lawful, because of an improper designation of the spending agency. In this case, as in the case of the appropriation involved in Op. Att'y Gen. 67-212, various agencies have responsibilities with respect to housing for which the appropriation involved may be lawfully expended. The Department of Human Resources has specific authority under Section 1214 of the Executive Reorganization Act, Ga. Laws 1972, p. 1015 (Ga. Code Ann. 40-35113): " ... to study State housing needs and resources and present ... recommended courses of action by State Government. . . ." Ga. Laws 1970, p. 321, Section 10 (e) (Ga. Code Ann. 40-2916 (e)). The Department of Community Development, under Sections 203 through 205 of the Executive Reorganization Act, Ga. Laws 1972, p. 1015 (Ga. Code Ann. 40-3540 through 40-3542), is authorized: ". . . to establish policy and direction concerning State planning and programming for the development of the State's physical, economic and human resources...." Ga. Laws 1970, p. 321, Section 3 (a) (Ga. Code Ann. 40-2909 (a)). This broad responsibility would encompass housing and would include the power to secure technical assistance necessary to fulfill that responsibility. See also, Ga. Laws 1967, p. 252, Sections 2 (g), 5, as amended (Ga. Code Ann. 40-2902 (g) and 40-2905 (d)). Finally, the Office of Planning and Budget, under the authority granted to it by the referenced provisions of the Executive Reorganization Act, has similar broad authority that encompasses evaluation of housing needs. Ga. Code Ann. 40-2902 (a)-(f), 40-2903. It is thus my opinion that under the authority granted by Ga. Code Ann. 40-421, the Office of Planning and Budget may transfer the referenced appropriation to any of the agencies noted. Those agencies may, in turn, pursuant to Ga. Const., Art. VII, Sec. VI, Par. I, and the 75-41 82 referenced statutory authority, contract with the Georgia Residential Finance Authority for services which are both within the scope of the authority of those agencies as well as within the scope of the powers of the Georgia Residential Finance Authority. See Ga. Laws 1974, p. 975, Sections 6 (a) (21), 6 (a) (23), as amended. OPINION 75-41 To: Commissioner of Public Safety May 5, 1975 Re: As of July 1, 1974, a driver's license may be suspended if the driver has accumulated 15 or more traffic violation points within a 24month period and if at least part of the points were accumulated after July 1, 1974. You have requested my opinion concerning retroactive application of a recent amendment to the law by which a driver's license is suspended upon an accumulation of 15 points for traffic violations. Originally a Georgia license was suspended when 15 points were accumulated within 18 months. Ga. Laws 1968, pp. 430, 431 (Ga. Code Ann. 92A-445). In 1974 the General Assembly amended this law to provide that a license shall be suspended when 15 points have been accumulated within 24 months rather than 18. Ga. Laws 1974, p. 1182 (Ga. Code Ann. 92A-445). The effective date of the amendment was July 1, 1974. Ga. Laws 1968, p. 1364, as amended (Ga. Code Ann. 102-111). You are concerned about the use of points from pre-amendment traffic violations. After July 1, 1974, and more than 18 months after any pre-amendment violations, but within 24 months of the preamendment violations, should a license be suspended if the point total is 15 or more? In other words, do pre-amendment points last 18 or 24 months? This is a two-part problem, which requires first ascertaining the meaning of the new amendment, and then ascertaining whether that meaning is qualified by legal rules about the retroactive application of new laws. Here is what the new 1974 amendment provides: "The Director shall suspend the driver's license for a period of not more than one year of any person who has accumulated a violation point count of 15 or more points in any consecutive 24 month period. . . ." Ga. Laws 1974, p. 1182 (Ga. Code Ann. 92A-445). "The provisions of this Act shall be effective prospectively only. No person whose license has not heretofore been subject to suspension shall have his license suspended until he commits an 83 75-41 offense hereafter which results in additional points being accumulated." Ga. Laws 1974, pp. 1182, 1183 (uncodified) (emphasis added). For convenience I shall call the second paragraph just quoted the "prospectivity clause" of the new amendment. Were it not for this prospectivity clause, the literal terms of the amendment, or new Code Ann. 92A-445, would require the suspension of a license whose holder had 15 points or more within any 24-month period after July 1, 1974, even if all the points were for traffic violations which occurred before July 1, 1974. Since the prospectivity clause prevents suspension pursuant to the new amendment "until (the driver) commits an offense (after the effective date of the Act), which results in additional points being accumulated," you are precluded from relying entirely on preamendment points for a 24-month computation. However, can you rely on some pre-amendment points under the new 24-month rule once there has been a post-amendment violation? I have concluded that the intention of the General Assembly is for you to do so. The first sentence of the prospectivity clause says that the "provisions of this Act shall be effective prospectively only," i.e., after July 1, 1974. Ga. Laws 1974, pp. 1182, 1183 (emphasis added). The 24month rule is the main provision of the Act. As I have just described, the second sentence of the prospectivity clause indicates that you cannot use the new rule, even after July 1, 1974, until the driver "commits an offense." However, then you can, and, since the word "offense" is singular, and since no one offense is worth 15 points [Ga. Laws 1968, pp. 430, 431 (Ga. Code Ann. 92A-444)], the second sentence necessarily contemplates instances in which the new, postamendment offense, together with pre-amendment offenses, brings the total to 15 within 24 months. Read as a whole the prospectivity clause intends for you to use the 24-month rule in such a case. Given this meaning, the next part of the inquiry is to see whether it must be qualified. Both the Federal and Georgia Constitutions prohibit ex post facto and retroactive laws. U. S. Canst., Art. I, Sec. X (Ga. Code Ann. 1-134); Ga. Canst., Art. I, Sec. III, Par. II (Ga. Code Ann. 2-302). In addition the Georgia Code provides that, "Laws ... cannot ... usually, have a retrospective application." Ga. Code 102-104 (1933) (emphasis added). However, the Code also provides that: "Where, in the exercise of the police power, a license is issued, the same is not a contract, but only a permission to enjoy the privilege for the time specified, on the terms stated. It may be abrogated." Ga. Code 20-117 (1933). 75-41 84 The thrust of the Code sections would indicate that having issued a driver's license privilege as an exercise of its police powers, the state may discontinue the privilege even by applying new rules to preexisting facts. However, can this be done under the primary law of the constitutional provisions just cited? In Hawker v. New York, 170 U.S. 189 (1898), New York had made it a crime to practice medicine if one had committed a felony. The physician in that case had committed a felony prior to the effective date of the prohibitive statute. He practiced medicine after the effective date. The Supreme Court held that the police power intent of the legislation prevented it from being an ex post facto punishment. Accord, Hughes v. State Board of Medical Examiners, 162 Ga. 246, 258, 134 S.E. 42 (1926) (semble). The holdings in these two cases seem directly applicable to the problem at hand, and the analysis suggested by them has the approval of more recent United States Supreme Court opinions: "In determining whether legislation which bases a disqualification on the happening of a past event imposes a punishment, the Court has sought to discern the objects on which the enactment . . . was focused. Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected. The contrary is the case where the statute . . . is evidently aimed at the person or class of persons disqualified." Flemming v. Nestor, 363 U.S. 603, 613-614 (1960); accord, De Veau v. Braisted, 363 U.S. 144, 160 (1960); see also, Trop v. Dulles, 356 U.S. 86, 96 (1958); Fortson v. Weeks, 232 Ga. 472, 208 S.E.2d 68 (1974); Bullard v. Holman, 184 Ga. 788, 792, 193 S.E. 586 (1937). Thus, if a statute has as its purpose a regulatory goal under the state police powers, it is not ex post facto punishment or retroactive application forbidden by the laws of the land even if it coincidentally imposes a disability based on pre-existing facts. Moreover, in this instance, a suspension is an act attributable to a new offense, not the old offenses, and the statute is a legislative determination that in the future any time a driver commits an offense on the point list such that he has earned 15 points within 24 months, the driver should then be considered ineligible to drive. This is not a punishment for the prior violations. It is a legislative determination of a driver's present capability. My conclusion that the limited retroactivity contemplated in Ga. Laws 1974, p. 1182, is a valid exercise of the police power of the state is supported by cases in other jurisdictions which indicate that a statute which takes away a driver's license on the basis of cumulative violations may look to violations preceding the effective date of the 85 75-42 statute. See Cooley v. Texas Department of Public Safety, 348 S.W.2d 267 (Tex. Ct. App. 1961); Barbieri v. Morris, 315 S.W.2d 711 (Mo. 1958); Sturgill v. Beard, 303 S.W.2d 908 (Ky. 1957); see also Durfee v. Ress, 163 Neb. 768, 81 N.W.2d 148 (1957). In summary, it is my official opinion that under Ga. Laws 1974, pp. 1182, 1183, you should suspend a license when the driver accumulates a total of 15 or more points within a 24-month period, so long as at least part of those points occurred after July 1, 1974. OPINION 75-42 To: Commissioner, Department of Public Safety May 6, 1975 Re: An applicant for self-insurance under the No-Fault Act cannot be denied certification as such solely on the ground that he fails to meet the requirements for a self-insurer under the Safety Responsibility Act; the Commissioner of the Department of Public Safety does, however, have some measure of latitude and discretion in deciding whether an applicant for self-insurance under the No-Fault Act can offer a selfinsurance plan that complies with the terms and conditions of that Act; the self-insurance provisions of the No-Fault Act do not supersede or repeal by implication the provisions concerning the same subject matter contained in the Safety Responsibility Act since the respective Acts provide two separate and independent self-insurance provisions that are neither connected nor contradictory. Your letter of April18, 1974 requested that this office reconsider its Opinion No. 74-86 rendered on June 21, 1974, wherein it was stated that the Georgia Motor Vehicle Accident Reparations Act, Ga. Laws 1974, p. 113 (hereinafter referred to as the No-Fault Act) (Ga. Code Ann. Ch. 56-34B), though it does not repeal the Georgia Motor Vehicle Safety Responsibility Act, Ga. Laws 1951, p. 565, as amended, Ga. Code Ann. 92A-601 et seq. (hereinafter referred to as the Safety Responsibility Act), does repeal by implication and supersede the provisions of the Safety Responsibility Act with respect to self-insurers. Upon further analysis of the relationship between the two laws in question, Op. Att'y Gen. 74-86 is modified as provided for herein. The No-Fault Act provides in Section 2 (f) that a self-insurer is an owner who has on file with the Department of Public Safety an approved plan of self-insurance which provides for coverages, benefits, and efficient claims handling procedures which are substantially equivalent to those afforded by a policy of automobile liability insurance that complies with the No-Fault Act. Under Section 3 (a) of the No-Fault Act, an automobile insurance 75-42 86 policy must provide inter alia for motor vehicle liability insurance equivalent to that required as evidence of security for bodily injury and property damage liability under the motor vehicle safety responsibility laws of Georgia. Thus, self-insurers under the No-Fault Act must have motor vehicle liability insurance equivalent to that required as evidence of security for personal injury and property damage under the Safety Responsibility Act. The security required under the Safety Responsibility Act is described in Ga. Code Ann. 92A-605 (a) and the form and amount of security provided for therein is defined in greater specificity in Ga. Code Ann. 92A-610. Although Ga. Code Ann. 92A-605 (c) (4) specifically exempts those qualifying as self-insurers under the Safety Responsibility Act from the security posting requirements of Ga. Code Ann. 92A-605 (a), it would be severely straining the interpretation of these statutes to say that the legislature intended to provide that the exemptions enumerated in Ga. Code Ann. 92A-605 (c) (4) were to apply to persons seeking to qualify as self-insurers under the No-Fault Act. Since Section 2 (f) of the No-Fault Act requires only that a self-insurance plan provide for coverages, benefits, and efficient claims handling procedures and does not say that a self-insurer may or does partake of any exemptions that might be afforded under the NaFault Act or any other laws, such an exemption ought not to be inferred absent a clearly evidenced intent on the part of the General Assembly to that effect. It cannot, however, be said that the provisions of the No-Fault Act concerning self-insurers repeal by implication the provisions contained in the Safety Responsibility Act that deal with the same subject matter. The purpose of the Safety Responsibility Act as expressed by the legislature in its title is, inter alia, "to eliminate the reckless and irresponsible driver of motor vehicles from the highways of the State of Georgia." Ga. Laws 1956, pp. 543, 545. The fundamental objective of the No-Fault Act is to provide that persons suffering personal injuries and sustaining property damage as a result of automobile accidents are to be compensated for their losses without regard to fault. Ga. Laws 1974, p. 113. Although these two statutes are not at cross-purposes, it is clear that they have different basic objectives. Accordingly, Horn v. State, 114 Ga. 509 (1901) and Thompson v. Georgia Power Co., 73 Ga. App. 587 (1946), cited in Op. Att'y Gen. 74-86, cannot be relied on here as authority for the proposition that the self-insurance provisions contained in the No-Fault Act repeal by implication and supersede entirely all provisions concerning this subject matter that are contained in the Safety Responsibility Act. Both Horn and Thompson dealt with the situation where the legislature revised or reenacted existing laws and the question arose whether the amendatory Act implicitly repealed all or part of the law it amended. 87 75-42 In Horn, the General Assembly incorporated and chartered a town in 1857. In 1859, the town's charter was amended to allow it to grant liquor licenses. When the charter was reenacted and revised in 1870, no reference was made to the 1859 amendment. The issue before the court was whether the Act of 1870, which simply reenacted the Act of 1857, repealed the 1859 amendment. The court held that it did not. But, in the course of its opinion, the court stated: "The rule as to repeal by implication is, in such cases, so far as we can ascertain from the authorities, that when the Legislature intends to revise a former act or charter or to deal exhaustively with the subject of all or a part of the original act, and a portion of the original act is left out, such omitted portion is repealed by implication." Id., 510. Similarly in Thompson, the Act in question was a complete revision of and substitute for the earlier Acts dealing with fee schedules for licensing and registration of motor vehicles and hence could properly be deemed to have repealed by implication so much of the earlier Act as was not embraced in it. However, the No-Fault Act was not an amendment to the Safety Responsibility Act and neither was it intended to revise, reenact nor exhaustively deal with the subject matter of the Safety Responsibility Act. It was enacted alone and separate from the Safety Responsibility Act and, while certain of its provisions referred and were related to parts of the Safety Responsibility Act, it cannot be said to fall within the rule announced in Horn and Thompson. Therefore, Horn and Thompson do not control the present situation. Thus, it is my opinion that persons who seek to be qualified as selfinsurers under the No-Fault Act must be able to satisfy the Commissioner of the Department of Public Safety that they can provide a plan of self-insurance which provides for coverages, benefits, and efficient claims handling procedures substantially equivalent to those afforded by a policy of automobile liability insurance that complies with the No-Fault Act. Since the self-insurance requirements of the Safety Responsibility Act are not tied into the self-insurance provisions of the No-Fault Act because the security posting exemption for self-insurers under the Safety Responsibility Act cannot fairly be said to extend to the NoFault Act, the Commissioner of the Department of Public Safety cannot refuse to qualify an applicant for self-insurance under the NoFault Act solely because he is not the registered owner of at least 10 motor vehicles. However, when taken together, Section 2 (f) of the No-Fault Act and Public Safety Rules 570-18-.06(1) et seq. would appear to give the Commissioner of the Department of Public Safety some measure of 75-43 88 latitude and discretion in determining which self-insurance plans provide coverages, benefits, etc., that are substantially equivalent to what automobile liability insurance policies must provide under the NaFault Act. It would be my opinion that the commissioner could withhold certification as a self-insurer of any applicant who in the commissioner's opinion has not submitted or cannot provide a self-insurance plan substantially equivalent in its terms to those otherwise required under the No-Fault Act. OPINION 75-43 To: Joint Secretary, State Examining Boards May 15, 1975 Re: The Joint Secretary, State Examining Boards, exercises those duties delegated to him by the Secretary of State, with regard to the supervision and control of persons assigned to perform services for the Georgia State Building Administrative Board. This is in response to your recent request for my opinion concerning your responsibilities to the Georgia State Building Administrative Board, created by Ga. Laws 1969, p. 546 (Ga. Code Ann. Ch. 84-60). Section 4 of Ga. Laws 1969, pp. 546, 549, as amended (Ga. Code Ann. 84-6004), is the only portion of the statute which specifically refers to your office or to your duties. That section, in pertinent part, provides that: "Within 30 days after its appointment, the board shall meet on call by the Joint Secretary of the State Examining Boards. The Joint Secretary shall serve as secretary to the board in all matters as set forth in Chapter 84-1, Code of Georgia of 1933, as amended." This then is the source of your responsibilities and duties to the Georgia State Building Administrative Board. Of course, Ga. Code Ch. 84-1 relates in main part to the several examining boards, whose activities involve functions not necessarily shared by the Georgia State Building Administrative Board. Therefore, some interpretation is necessary since, for instance, while it is obvious that you do not need to schedule times and places for examinations, it is appropriate for you to bring together and keep all the records relating to the board. In a similar vein, it is apparent that you have no duty to the board to receive all applications for licenses but it is appropriate for you to sign and attest to all orders and processes of the board and to receive the service of any legal process sought to be served on the board. Unfortunately, not all of the duties and responsibilities enumerated 89 75-43 in Ga. Code Ch. 84-1 are as clearly applicable or as inapplicable as the duties which I have just enumerated. In particular, you inquired as to your duty, if any, concerning the supervision of the employees assigned to the Georgia State Building Administrative Board. Naturally, as you are well aware, you nominally have no statutory duty with regard to any state employee employed on behalf of the several examining boards. Georgia Code 84-102 clearly provides that: "The Secretary of State shall employ such clerks and other employees as are deemed necessary to carry out the provisions of this Chapter and for all services required by each of the State Examining Boards." Ga. Laws 1943, p. 370; 1955, p. 323. Therefore, any of your duties regarding such employees are derivative and have been delegated to you by the Secretary of State. The basic inquiry, then, is whether the persons who serve the Georgia State Building Administrative Board are employees of the Secretary of State or whether they are employees of the board. It is my opinion, for the reasons set out hereinbelow, that the persons employed to perform services for the Georgia State Building Administrative Board are not employees of the board, but rather are employees of the Secretary of State and you are therefore required to perform such duties of supervision over those persons as are required of you by the Secretary of State. My opinion is based on several considerations. First, Ga. Laws 1969, p. 546, as amended (Ga. Code Ann. Ch. 84-60), does not specifically authorize the board to employ its own personnel. Second, the Secretary of State is specifically empowered by Ga. Code Ch. 84-1 to employ any and all employees who are deemed necessary to carry out the provisions of Chapter 84-1. Pursuant to Ga. Laws 1969, pp. 546, 549, as amended (Ga. Code Ann. 84-6004), the Joint Secretary is required to perform certain duties for the Georgia State Building Administrative Board and it is evident that the above-cited section authorizes the Secretary of State to employ the personnel who would assist the Joint Secretary in performing these duties. Of course, this then clearly makes such persons the employees of the Secretary of State. Therefore, for the above-stated reasons, it is my opinion that persons who provide the services required by Ga. Code Ch. 84-1 to the Georgia State Building Administrative Board are employees of the Secretary of State and your duties with regard to such persons would be determined by the delegation of authority made to you by the Secretary of State. 75-44 90 OPINION 75-44 To: Acting Commissioner, Department of Human Resources May 19, 1975 Re: Under certain circumstances the administration of medications by unlicensed personnel in health care institutions would not be in violation of state law. This is in response to your request for an official opmwn as to whether unlicensed personnel in health care institutions are permitted by state law to administer medications. The law governing health care institutions in the State of Georgia (Ga. Laws 1964, pp. 499, 611, as amended (Code Ann. Ch. 88-19)) is silent on the question of administration of medications by unlicensed personnel. Therefore, a review of the Medical Practice Act, Nurse Practice Acts and Pharn1acy Acts of the State of Georgia is needed to determine the issue. The Medical Practice Act (Ga. Code Ch. 84-9; 1933 Code, as amended) provides that no person shall practice medicine without a valid license permitting such practice. Ga. Code 84-906 (amended by Ga. Laws 1972, p. 673). Ga. Code 84-901 defines the practice of medicine as: "holding one's self out to the public as being engaged in the diagnosis or treatment of disease, defects or injuries of human beings, or the suggestion, recommendation or prescribing of any form of treatment for the intended palliation, relief or cure of any physical, mental or functional ailment or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift or compensation whatsoever...." Code of 1933, as amended. The courts have broadly interpreted this provision as including every branch of the healing arts. See Georgia Association of Osteopathic Physicians and Surgeons, Inc. v. Allen, 31 F. Supp. 206 (1940); Mabry v. State Board of Examiners in Optometry, 190 Ga. 751, 10 S.E.2d 740 (1940). This definition has been interpreted to include the administration of drugs and intravenous fluids by an emergency medical technician. See Op. Att'y Gen. 73-139. The definition is also broad enough to include the administration of medications in health care institutions. Therefore, unless specifically exempted by Ga. Code 84-9, institutional personnel are prohibited from administering medications without fully complying with the licensing requirements of the Medical Practice Act. The Medical Practice Act, at Ga. Code Ann. 84-906 (b), sets forth 10 exceptions to the general prohibition against medical practice with- 91 75-44 out a physician's license. In the main, these relate to the performance of acts under the authority of a license for another profession under a separate statute. Certain of these exceptions relate to persons who do not possess either a physician's license or a license issued under the authority of another statute. These are set forth as follows: "(b) Nothing in this chapter shall be construed to prohibit: * * * "(5) the practice of medicine, by an individual appointed as an intern or accepted for specialty or residency training in programs approved by the board, for a period of two years or for such additional period as the board, by application, may determine; * * * '' (9) the utilization of a physician's assistant to perfonn tasks approved by the board and the performance of such tasks by the physician's assistant and the delegation by a physician to a qualified person other than a physician's assistant of any acts, duties or functions which are otherwise permitted by law or established by custom and the performance of such acts, duties or functions by such a person other than a physician's assistant; or "(10) the performance of: (i) any medical task, by a student enrolled in a medical college, osteopathic college, or physician's assistant training program approved by the board, or (ii) any dental task by a student enrolled in a dental college approved by the Board of Dental Examiners of Georgia, where either type task is performed under the supervision of an authorized instructor lawfully licensed in this state to perform such tasks." The ninth exception permits a physician to delegate to a qualified person duties which are otherwise permitted by law or established by custom. Illustrative of the tenn "otherwise permitted by law" is the authorization granted by the "Physician's Assistant Act," Ga. Laws 1972, p. 676 (Ga. Code Ann. Ch. 84-62). To the extent the Composite State Board of Medical Examiners has authorized the use of a physician's assistant for the administration of drugs, acts within the scope of the authorization would fall within an exception of the Medical Practice Act. The Medical Practice Act also pennits a qualified person to perfonn delegated duties which are "otherwise established by custom." Custom has been defined as a usage or practice common to many or to a particular place or class or habitual with an individual. Webster's New Collegiate Dictionary (8th Ed. 1973). Thus, to the extent that under a long-standing practice qualified persons have been engaged in administering medications at the direction of a physician in a particular place or setting, such activity would fall within an exception to the 75-45 92 Medical Practice Act. Under those circumstances, unlicensed personnel administering medications in health care institutions would not be in violation of the Medical Practice Act. Finally, it should be noted that the Pharmacy Acts and the Nurse Practice Acts do not expressly prohibit the administration of medications by unlicensed personnel. See Ga. Code Ann. Title 79A (Ga. Laws 1967, p. 296 et seq., as amended); Ga. Code Ann. Ch. 84-10, 1933 Code, as amended; Ga. Laws 1953, p. 333, as amended (Code Ann. 84-1022 et seq.). Therefore, it is my official opinion that under certain circumstances unlicensed personnel administering medications in health care institutions would not be in violation of state law. OPINION 75-45 To: Chairman, Georgia State Soil and 'iVater Conservation Committee May 19, 1975 Re: A State Merit System employee holding public office as an elected Soil and Water Conservation District Supervisor would be in violation of the merit system rules. This is in response to your request for an official opmwn as to whether a State Merit System employee could hold public office as an elected Soil and water Conservation District Supervisor. Georgia Laws 1971, pp. 45, 49 (former Ga. Code Ann. 40-22031), provides that the State Personnel Board may promulgate rules and regulations governing the political activity of merit system employees. Pursuant to its authority, the board adopted Section 3.600 of Rule 3 which prohibits a merit system employee from holding other public office. Soil and Water Conservation District Supervisors are elected officials who serve the public in conserving soil resources and controlling soil erosion. See Ga. Laws 1937, pp. 377, 390 et seq., as amended (Ga. Code Ann. Ch. 5-20). They would, therefore, be holders of public office within the meaning of the merit system rules. See Smith v. Mueller, 222 Ga. 186 (1966). Therefore, it is my official opinion that a State Merit System employee holding public office as an elected Soil and Water Conservation District Supervisor would be in violation of the merit system rules. I See Ga. Code Ann. 40-2204. Ga. Laws 1971, p. 45, repealed by Ga. Laws 1975, p. 79, now the basis for Ga. Code Ann. Ch. 40-22. 93 75-46 OPINION 75-46 To: State Superintendent of Schools May 23, 1975 Re: Regional and county librarians and clerical personnel employed by such libraries are required to be members of the Georgia Teachers Retirement System and may not, in lieu of membership in the Georgia Teachers Retirement System, choose to be members of a local retirement system for such employees. This responds to your letter asking my opinion on whether county and regional library personnel may participate in a local retirement system, with the employer's share of the contributions to the local system being paid from local tax monies. You state in your letter that a question has arisen in the State Department of Education and the State Department of Audits as to whether local tax monies may be used in this manner. Upon inquiry, I have learned from the Department of Audits that the question in your letter is generated by the desire of a county or regional library employee to become a member of a local retirement system in lieu of being a member of the Georgia Teachers Retirement System (hereinafter TRS). For the reasons which follow, in my judgment, this cannot be done. The TRS Act was amended in 1972 to add the following language to the section defining the word "teacher": "The word 'teacher' shall also include regional and county librarians and clerical personnel employed by such libraries. The employer's share on such retirement shall be paid from local funds on all salary amounts which are not paid from State funds." Ga. Laws 1972, pp. 176-7; Ga. Code Ann. 32-2901 (5). The TRS Act further declares that any person who becomes a "teacher," as defined by the Act, after January 1, 1944 shall become a member of TRS as a condition of employment. Ga. Laws 1943, p. 640 et seq., as amended; Ga. Code Ann. 32-2903 (1). The word "teacher" as used in the 1972 amendment, quoted supra, must be given the meaning ascribed to it in the definition of "teacher" for purposes of the entire TRS Act. Ga. Laws 1943, p. 640 et seq., as amended; Ga. Code Ann. 32-2901. Accordingly, all regional and county librarians and clerical personnel employed by such libraries are "teachers" under the Act and are required to be members of TRS. In summary, your question boils down to whether a regional or county librarian may elect membership in a local retirement system in lieu of TRS membership, with the employer's share of his contributions paid from local funds. For the foregoing reasons, it is my official opinion 75-47 94 that regional and county librarians and clerical personnel employed by such libraries are required to be members of the Georgia Teachers Retirement System and may not, in lieu of membership in the Georgia Teachers Retirement System, choose to be members of a local retirement system for such employees. OPINION 75-47 To: Director of Corrections May 27, 1975 Re: A 16-year old originally committed to the Department of Human Resources may be transferred on his 17th birthday to the Department of Corrections by order of the committing court under the provisions of the Youthful Offender Act; the offender's term of custody should be computed from the date of his original conviction. By letter you requested my opinion regarding several questions raised by my recent opinion addressed to Mr. Richard Harden, Commissioner, Department of Human Resources. Op. Att'y Gen. 74-139. 1. Can an individual who is originally committed by order of a superior court to the custody of the Department of Human Resources be transferred by order of the committing court to the Department of Corrections under the provisions of the Youthful Offender Act? As I understand the facts, a 16-year old was originally committed to the custody of the Department of Human Resources pursuant to the provisions of Ga. Code Ann. 99-209 (a) (5) (amended by Ga. Laws 1974, p. 1455). After this individual's 17th birthday, the committing court entered an order transferring him to the custody of the Department of Corrections under the provisions of the Youthful Offender Act (Ga. Laws 1972, p. 592; Ga. Code Ann. 77-345 to 77-360). The original order of the superior court committing this individual to the custody of the Department of Human Resources pursuant to the provisions of Ga. Code Ann. 99-209 (a) (5) is subject to such modification as the court determines will be conducive to the welfare of the child and the best interests of the state. Ga. Code Ann. 99-222 (Ga. Laws 1969, p. 996). The prior commitment of this individual to the Department of Human Resources does not operate to deprive the committing court of jurisdiction to change the form of his commitment or to transfer him to another institution or agency. Ga. Code Ann. 99-222. As you will note, the recently enacted amendments to the Youthful Offender Act, a copy of which is attached, provide that once 95 75-47 a child attains the age of 17, the court has the authority to commit him to the custody of the Youthful Offender Division of the Department of Corrections. Ga. Laws 1975, p. 900, Section 8 (Ga. Code Ann. 77-359). As you relate the facts, the committing court expressed its intention in writing to commit this individual as a youthful offender. Ga. Laws 1975, p. 900, Section 8. Therefore, it is my opinion that this individual has been effectively transferred to the custody of the department under the provisions of theYouthful Offender Act, as amended. 2. Under the terms of the Youthful Offender Act, when does the period of custody commence for an individual who is originally committed to the Department of Human Resources and later ordered transferred to the Department of Corrections? The Youthful Offender Act, as amended, provides that the period of an offender's custody should be computed from the date of conviction. Ga. Laws 1975, p. 900, Sections 5, 6 (Ga. Code Ann. 77-355, 77-356). Section 2 (b) of the Act, as amended, defines conviction as "a judgment, on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere in a felony case." Ga. Laws 1975, p. 900, Section 1 (Ga. Code Ann. 77-346). The order of the court transferring the 17-year old to the custody of the department is merely a modification of the offender's sentence pursuant to a prior judgment of conviction on a verdict of guilty. Therefore, it is my official opinion that the offender's period of custody should be computed from the date of his original conviction. 3. What is the potential period of confinement of an individual who is originally committed to the custody of the Department of Human Resources upon a finding of guilt and imposition of a determinate sentence by jury and subsequently ordered transferred to the custody of the Department of Corrections under the provisions of the Youthful Offender Act'? As I understand the facts, this individual was found guilty and sentenced to two years imprisonment by a jury in April1974. Pursuant to the jury's verdict, the court initially committed this individual to the custody of the Department of Human Resources. However, once. he reached 17, the offender was transferred to the custody of the Department of Corrections under the provisions of the Youthful Offender Act. I have previously addressed the question of whether a specification of a determinate period of confinement operates to limit the discretion of the Youthful Offender Division respecting conditional and unconditional release of an offender. Ops. Att'y Gen. 74-100, 73-36. The reasoning of my previous opinions is applicable to the question you have posed. 75-48 96 Therefore, it is my opinion that the court order which transferred this offender to the custody of the Youthful Offender Division has the effect of an indefinite commitment under the terms of the Act. However, the jury's specification of a determinate period of confinement may be regarded as a persuasive recommendation for the offender's earlier release. OPINION 75-48 To: Acting Commissioner, State Merit System June 2, 1975 Re: The 1975 Merit System Act places the deputy to a department head and the department head's confidential secretary in the unclassified service of the State Merit System. In addition, a department head may, in his discretion, transfer up to five additional classified positions to the unclassified service, providing his department does not already have five full-time managerial positions besides the department head and his deputies in the unclassified service. Act No. 81 of the 1975 Session of the General Assembly (hereinafter the "Act") (Ga. Laws 1975, p. 79; Ga. Code Ann. Ch. 40-22) completely revised the State Merit System. You have requested my official opinion as to the construction of two subsections within the definition of the "unclassified service" (Section 2 (a) (2)). These two subsections read as follows: "(xii) when a deputy or a confidential secretary is required by the head of a department, a deputy and a confidential secretary, provided that the commissioner shall prescribe the conditions under which more than one deputy may be excluded;" and "(xiii) the head of each department, bureau, commission or agency, including those assigned for administrative purposes only, may designate not more than five positions for inclusion in the unclassified service, provided said agency does not presently contain five unclassified full-time permanent managerial positions and provided further that the rights of classified employees shall not be abridged." As to subsection 2 (a) (2) (xii), you want to know if this provision would remove a "deputy or confidential secretary from the classified service if they were classified prior to the Act"? The answer is yes. The language in this subsection is clear. As long as a department head has a deputy and a confidential secretary, those positions are in the unclassified service. As to subsection 2 (a) (2) (xiii), you have asked a list of questions. 97 75-48 However, your questions are comprehensive and can be best answered by a general discussion of that subsection. If the department does not already have five full-time managerial positions in the unclassified service, the department head may transfer up to five positions to the unclassified service under the provisions of subsection 2 (a) (2) (xiii). The decision as to which, if any, positions are to be transferred is totally in the department head's discretion. This provision for unclassifying positions may only be used by a department head whose department has less than five full-time managerial positions in the unclassified service. Managerial positions are those "of, relating to, or characteristic of a manager." (\Vebster's Third New International Dictionary). A "manager" is "a person that conducts, directs or supervises something." (Webster's Third New International Dictionary). Accordingly, a managerial position is one that has as its primary duty the supervision of a unit within the department, for example, a division director. Cf. She.ffield Division Armco Steel Corp. v. Jones, 369 S.W.2d 71, 75 (1963). This raises yet another question. Should department heads and their deputies be counted among the five managerial personnel for purposes of subsection 2 (a) (2) (xiii)? The cardinal rule in construing any statute is to determine the intentions of the General Assembly in enacting that statute. See Barton v. Atkinson, 228 Ga. 733 (1972); Boyles v. Steine, 224 Ga. 392 (1968); Ga. Code 102-102 (9) (193~3 Code). The legislative intent can be determined by considering the statute as a whole. See Williams v. Bear's Den, Inc., 214 Ga. 240, 242 (1958). Since the legislature, in other subsections of the Act, specifically mandated that department heads and their deputies would be in the unclassified service, it would appear that it did not intend for these two positions to be included in discretionary provisions of subsection 2 (a) (2) (xiii) where the department head is given discretion in removing five positions from the classified service. Therefore, subsection 2 (a) (2) (xiii) gives the department head authority to remove up to five positions other than himself and his deputy from the classified service, provided that his department does not have five full-time managerial positions other than the department head and his deputy in the unclassified service. This brings us to your last question. \Vhat happens to the classified employees whose positions become unclassified? First, subsections 2 (a) (2) (xii) and (xiii) place positions, and not employees, in the unclassified service. If the department head desires to retain the same employee in the position after it becomes unclassified, that employee may, with consent of his department head and the Commissioner of Personnel Administration, be placed on a leave of absence from the classified service for up to five years, in accordance with subsection 6 (d) of the Act. 75-49 98 On the other hand, the department head may not wish to retain the employee in his old position when it is transferred to the unclassified service. In that event, the situation becomes identical to one where a classified position is abolished. The department would instigate a reduction in force action. Therefore, it is my official opinion that subsection 2 (a) (2) (xii) places the department head's deputy and department head's confidential secretary in the unclassified service. It is also my official opinion that under subsection 2 (a) (2) (xiii), a department head may, in his discretion, transfer up to five classified positions to the unclassified service, so long as his department does not have five full-time managerial positions besides the department head and his deputies in the classified service. OPINION 75-49 To: Commissioner, Department of Public Safety June 3, 1975 Re: A driver's license must be issued to a married women in her legal name which is her maiden name when she has reassumed it by judicial decree or usage. This is in response to your request for an official opinion on whether a driver's license may be issued to a married women in a surname other than her husband's surname and more particularly whether it may be issued to her in her maiden name. For the following reasons, it is my official opinion that a married woman's surname is that of her husband but that she may change her name for all legal purposes, including issuance of a driver's license, by judicial decree or by consistent usage of another name without resort to judicial proceedings. In a previous opinion to the Secretary of State, Op. Att'y Gen. 74-33, I concluded that a married woman adopted her husband's surname by operation of law. Thus, any statute of this state which requires a person to supply his "legal name" requires a married woman to state her husband's last name as her own. Ordinarily, then, a driver's license should be issued to a married woman in her husband's surname. In that opinion, however, it was suggested that the only procedure for changing a person's legal name was the statutory method established by Ga. Code Ch. 79-5 (Ga. Laws 1973, p. 504). However, in reviewing the question, it is my opinion that the statutory proceeding is not the exclusive mechanism by which a person's legal name can be changed. At common law a person could change his legal name at will through usage of a new name. The American and English Encyclopedia of Law states: 99 75-49 "At common law a man may lawfully change his name or by general usage or habit acquire another name than that originally borne by him, and this without the intervention of either the sovereign, the courts, or Parliament...." 21 Am. & Eng. Ency. of Law (2nd Ed.), p. 311. A married woman may also change her legal name by usage. In King v. Inhabitant's of St. Faith's, Dow. & Ryl. Rep. 348 (K.B. 1823), the second marriage of a woman was challenged on the ground that the banns had been published in her maiden name rather than her first husband's surname. The statute required publication of a person's "true Christian and surname." The woman had reassumed her maiden name upon the death of her first husband and had been known in the community by that name. The Court of King's Bench rejected the contention that her maiden name was not her "true name," stating: "It has been asserted in argument that a married woman cannot legally bear any other name than that which she has acquired in wedlock; but the fact is not so; a married woman may legally bear a different name from her husband.... Besides, the pauper in this case was in the eye of the law a feme sole; she might adopt any name she thought proper, and seven years use of any adopted name would by law identify that name as her own." Id. at 352. The Court of King's Bench relied upon an earlier inheritance case in reaching this conclusion. In Doe d. Luscombe v. Yates, 5 B. & Ald. 542 (K.B. 1822), a devise was made to an individual conditioned upon his taking the testator's surname "by an act of Parliament or some other effectual way for that purpose...." The devisee adopted the testator's name without obtaining an act of Parliament. The court held that the informal assumption of the testator's name was legally sufficient under the will and further stated: "A name assumed by a voluntary act of a young man at his outset into life, adopted by all who know him and by which he is consistently called becomes, for all purposes that occur to my mind, as much and effectually his as if he had obtained an act of Parliament to confer it upon him." Id. at 556. Georgia now provides a simple statutory procedure in Ga. Code Ch. 79-5 for name changes and the Georgia courts have not yet determined whether this procedure is exclusive or supplementary of common law.l However, the statute itself does not expressly declare that it is the exclusive method of changing names but that a "person desirous of changing his name ... may present a petition to the superior court of the county of his residence...."Ga. Code 79-501. (Emphasis added.) 1 Dicta in Stripling v. State, 77 Ga. 108 (1887), is unpersuasive. 75-49 100 The near unanimous conclusion of other courts in this country is that the existence of similar statutory procedures does not negate informal common law procedures. See, e.g., Linton v. First National Bank, 10 Fed. 894 (W.D.Pa. 1882); In re Ross, 8 Cal. 2d 608, 67 P.2d 94, 110 A.L.R. 217 (1937); Reinken v. Reinken, 351 Ill. 409, 184 N.E. 639 (1933); In re Hauptly, 312 N.E.2d 857 (Ind. 1974); Smith v. United States Casualty Co., 197 N.Y. 420, 90 N.E. 947 (1910); Laflin and Rand Co. v. Steytler, 146 Pa. 434, 23 Atl. 215 (1892); Brayton v. Beall, 73 S.C. 308, 53 S.E. 641 (1906); Appeal of Evetts, 392 S.W.2d 781 (Tex. Civ. App. 1965). However, see Petition of Merolevitz, 320 Mass. 448, 70 N.E.2d 249 (1946). (Statute provided that "no change of the name of a person ... shall be lawful unless made by said court for a reason consistent with public interests." Mass. Gen. Laws Ch. 210 12.) In Laflin and Rand, supra, it was held that the inclusion of an individual's informally adopted name in articles of partnership which were required by statute to "set forth the real names" of the partners was legally sufficient even though Pennsylvania had a statutory name change procedure. The court stated in this regard: "The legislature in 1852 provided a mode of changing the name but that act was in affirmance and aid of the common law and to make a definite point in time at which a change shall take effect. Without the aid of that act, a man may change his name or names, first or last, and, when his neighbors and community had acquiesced and recognized him by his new designation, that becomes his name." Id. at 217. A New York Supreme Court found that a naturalized citizen who had changed his name upon naturalization could lawfully change it by usage after naturalization because included among his rights as a new American citizen was "the common law prerogative of changing his name without resorting to a judicial proceeding." Thus, election officials were required to issue a certificate of candidacy in the informally acquired name. In re Steel, 186 Misc. 98, 60 N.Y.S.2d 323 (1946). Similarly, the Oklahoma Supreme Court required that a certificate of candidacy be issued to a married woman according to her title (Mrs.) and her husband's initials rather than her Christian and his surname even though she had not obtained a judicial decree changing her name. Huff v. State Election Board, 168 Okla. 277, 32 P.2d 920 (1934). As stated above, Georgia courts have not decided whether a name change may still be accomplished informally in light of Ga. Code Ch. 79-5. However, because of the wording of Ga. Code 79-501, I believe that it is most probable that Georgia courts would follow the majority rule and thus that a married woman, as well as other persons, may 101 75-50 acquire a new legal name by usage without resort to the proceedings provided by Ga. Code Ch. 79-5. For these reasons, it is my opinion that a driver's license must be issued to a married woman in her maiden name if she has acquired it again by usage or otherwise after marriage. Georgia Code Ann. 92A-9912 (Ga. Laws 1937, pp. 322, 352) makes it a misdemeanor for a person to use a false or ficticious name in applying for a driver's license. Of course, there are valid administrative reasons for making certain that all persons use their proper names in applying for and receiving drivers' licenses. Thus, you may require documentation to satisfy yourself that a legal name change has occurred. If it has, then a driver's license should be issued in the newly acquired legal name. OPINION 75-50 To : Director of Corrections June 4, 1975 Re: Several questions concerning time computation for youthful offenders. By letter, you requested my opinion on several questions concerning sentence computation for inmates incarcerated under the provisions of the Youthful Offender Act (Ga. Laws 1972, p. 592 (Ga. Code Ann. 77-345 to 77-360)). 1. May an offender who is originally committed to the custody of the Department of Human Resources be transferred to the Department of Corrections under the provisions of the Youthful Offender Act upon reaching the age of 17? By my letter of May 27, 1975, a copy of which is attached (Op. Att'y Gen. 75-47), I expressed my opinion that Section 15 of the Youthful Offender Act, as amended by Ga. Laws 1975, p. 900 (Ga. Code Ann. 77-359), provides for the transfer you have described. 1975 Act No. 581 (H.B. 695) (attached). 2. Do those offenders transferred to the custody of the Department of Corrections by order of the committal court under Section 15 (b) (ii) of the Youthful Offender Act have a determinate sentence? By letter of May 27, 1975, I addressed the question you have posed, and expressed my opinion that a court order providing for the transfer of an offender to the custody of the department under the provisions of the Youthful Offender Act is a commitment to an indefinite period of custody, as provided by the Act. 75-51 102 3. May good time credit be given to those offenders transferred to the department from the Department of Human Resources under the provisions of the Youthful Offender Act? Section 12 (b) of the Youthful Offender Act, as amended by Ga. Laws 1975, p. 900 (Ga. Code Ann. 77-356), provides for the release of a youthful offender either at the expiration of six years from the date of his conviction, or at the expiration of the maximum term of imprisonment provided for the offense of which he was convicted, whichever occurs first. The Act provides that the latter period should be reduced by statutory and additional good time and by jail time and other credit to which the offender may be entitled. 1975 Act No. 581 (H.B. 695). Therefore, it is my opinion that youthful offenders can earn good time credit towards the reduction of their period of confinement to the extent provided in the Act. 4. Should a parole eligibility date be established for those offenders transferred to the department from the Department of Human Resources? It is my opinion that the answer to your question is controlled by the provisions of Section 16 (c) of the Youthful Offender Act, as amended by Ga. Laws 1975, p. 900 (Ga. Code Ann. 77-360). The Act provides that the parole eligibility date of a youthful offender is to be computed on the basis of a six-year determinate sentence, or the maximum potential term for the offense for which the offender was committed, whichever is less. As those youths transferred from the Department of Human Resources enjoy a youthful offender status, a parole eligibility date should be established for them. OPINION 75-51 To: State Superintendent of Schools June 5, 1975 Re: School buildings and facilities constructed with proceeds of general obligation debt cannot be given to local school systems; there are no constitutional prohibitions against local school systems constructing facilities on property owned by the Georgia Education Authority (Schools). You have requested my opinion on whether or not certain school buildings and facilities financed by the issuance of general obligation bonds of the State of Georgia can be given to local school systems when the bonds are retired. These buildings and facilities are to be con- 103 75-51 structed for the Georgia Education Authority (Schools) and leased to the local school systems. Additionally, you ask whether or not local boards of education can construct school facilities on property owned by the Georgia Education Authority (Schools). Article VII, Section III, Paragraph I of the Constitution of the State of Georgia of 1945, as amended (Ga. Code Ann. 2-5601), permits general obligation debt of the state to be issued to acquire, construct, develop, extend or enlarge property of the state, its agencies, departments and institutions, and property of the Georgia Education Authority (Schools). The provision does not provide for the issuance of general obligation debt for counties, municipalities or political subdivisions of the state. In the absence of constitutional authority, I am of the opinion that the state cannot issue general obligation debt to acquire, construct, develop, extend or enlarge property of the counties or municipalities of the state. See Walker v. Wheeler, 210 Ga. 432, 80 S.E.2d 691 (1954); City of Dawson v. Dawson Waterworks Co., 106 Ga. 696, 732 (1899). However, since the state can issue general obligation debt for its agencies, departments, institutions, and certain state authorities, including the Georgia Education Authority (Schools), and can contract with counties, municipalities, and school districts, Art. VII, Sec. VI, Par. I (a) (Ga. Code Ann. 2-5901), the state can provide facilities that can be used by the counties, municipalities and school districts. Nevertheless, I am of the opinion that the state cannot issue general obligation debt with the contemplation that title to the financed facility will be given to the county, municipality or school district because of the constitutional limitation on the purposes for which general obligation debt can be issued. See Walker v. Wheeler, 210 Ga. 432, 80 S.E.2d 691 (1954). If it is anticipated that title to the facility will be given to the county, municipality, or school district, the requirement that general obligation debt be incurred only for the state, its agencies, departments, institutions, and certain state authorities is rendered meaningless. Additionally, the bond proceeds are in the nature of a trust fund and the Financing and Investment Commission has a responsibility to be certain that they be used only for the purpose permitted by the Constitution. See Section 3a of Ga. Laws 1973, p. 750 (Ga. Code Ann. 87-103a (a)); Walker v. Wheeler, 210 Ga. 432, 80 S.E.2d 691 (1954); Conley v. Rogers, 169 Ga. 85, 149 S.E. 699 (1929). It is, therefore, my official opinion that the Georgia State Financing and Investment Commission cannot provide any assurances that facilities financed by general obligation bonds will be given to the local school systems when the bonds are retired. with respect to your second question, there are numerous factors which could control in any particular situation, e.g., provisions of the election and provisions of the debt instruments. Generally, however, a 75-52 104 county is a body corporate with governmental functions, but without power except as conferred by the Constitution and by statute. See, e.g., Town of Decatur v. DeKalb County, 130 Ga. 483, 487 (1908); Art. XI, Sec. I, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-7801). Article VII, Section VI, Paragraph I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5901) authorizes any county or municipality to convey existing facilities to any public authority. The Supreme Court has held that this provision also permits a county board of education to take similar action. Sheffield v. State School Building Authority, 208 Ga. 575 (1952). Since a board of education can expend money to construct a facility and then convey that facility to a public authority, it is my opinion that a county board of education is constitutionally authorized to expend funds on a facility that will be located on property owned by the Georgia Education Authority (Schools) since the legal and practical effect is no different. The specific authority in any particular situation will, of course, be governed by any local law that might exist. OPINION 75-52 To: State Auditor June 6, 1975 Re: The statutory provision contained in Ga. Laws 1945, p. 1199 (Ga. Code Ann. 24-2606.1 (3)), that superior court judges may be reimbursed for their travel expenses when traveling within their respective circuits does not allow reimbursement for meals based upon estimated cost as opposed to actual cost. This is in response to your inquiry of May 21, 1975, in which you asked for an official opinion as to whether the expenses for meals claimed by superior court judges under Ga. Laws 1945, p. 1199 (Ga. Code Ann. 24-2606.1 (3)), may be based upon an estimate of the cost of meals. Under the provisions of Ga. Laws 1945, p. 1199 (Ga. Code Ann. 24-2606.1 (3)), superior court judges are entitled to reimbursement for the "actual" cost of meals. This language must be construed according to the mandate of Ga. Code 102-102 which requires that words contained in the Georgia Code must be given their ordinary usage. See Thompson v. Eastern Air Lines, 200 Ga. 216 (1946). The following is the definition for "actual" contained in Webster's New World Dictionary of the American Language: "1. existing in reality or in fact; not merely possible, but real; as it really is ... 2. existing at present or at the time." Webster's New World Dictionary of the American Language (1970). 105 75-53 The word "estimate" is defined: (As a verb) "1. to form an opinion or judgment about; 2. to judge or determine generally but carefully ..., calculate approximately." (As a noun) "1. a general calculation of size, value, etc.... ; 2. an opinion or judgment." Webster's New World Dictionary of the American Language (1970). Applying these definitions it does not appear reasonable to construe "actual" costs to allow estimated costs. It is, therefore, my official opinion that use of the word "actual" precludes a reimbursement for meals based upon estimated costs. However, I wish to caution that current submissions for reimbursement for current expenditures need not reflect the full actual cost paid and such submissions meet the requirement of the statute as long as the amount for which reimbursement is sought is not in excess of the actual expenditure. OPINION 75-53 To: Secretary of State June 12, 1975 Re: Political parties are subject to the disclosure requirements of the Campaign Financing Disclosure Act. Act No. 621 of the 1975 Session of the Georgia General Assembly (Ga. Laws 1975, p. 1120) extensively amended the Campaign Financing Disclosure Act.1 Ga. Laws 1974, p. 155 (Ga. Code Ann. Ch. 40-38). Section 7A of the 1975 Act reads as follows: "Any corporate entity or organization which either receives money or spends money, or both, on and for candidates, is subject to the disclosure requirements of this Act the same as a candidate." Ga. Code Ann. 40-3806.1. You have asked whether or not that section subjects political parties to the reporting requirements of the Campaign Financing Disclosure Act. It is my opinion that it does. This opinion is factually based on my understanding that one of the endeavors of a political party is to have its members elected to various public offices. To this end a political party receives and spends money on behalf of its candidates. Necessarily, it is an "organization which either receives money or spends money" for political candidates. Con- 1 Section 1 of the 1975 Act changed the title of the Act to Campaign and Financial Disclosure Act. However, in this opinion, reference will be made to the Act by its original title. 75-54 106 sequently, I know of no other conceivable conclusion but that political parties are included in the above-quoted section. I am aware of the fact that Section 7A of the 1975 Act, unlike the other Sections of the Act, does not contain the necessary language to effect an amendment to the Campaign Financing Disclosure Act. This appears to be an oversight on the part of the General Assembly inasmuch as the title of the Act indicates that it is an amendment to the Campaign Financing Disclosure Act and most of the other Sections of the Act do in fact amend the Campaign Financing Disclosure Act. However, since the entire Act including Section 7A passed both Houses of the General Assembly and was signed by the Governor, its publication is complete and that Section must be observed as any other law. Cf. Epstin v. Levinson & Company, 79 Ga. 718 (1887). The only remaining question is whether or not the reference to "this Act" in Section 7A can be interpreted as the Campaign Financing Disclosure Act. There really should be no doubt that it is the Campaign Financing Disclosure Act to which reference is made in that Section, but if there is any ambiguity, it becomes necessary to determine the intent of the General Assembly as to the meaning of that phrase. Ga. Code 102-102 ~ 9. Since legislative intent must be determined by construing the statute as a whole, Williams v. Bear's Den, Inc., 214 Ga. 240 (1958), it is not only appropriate, but logical, to construe that Section with the remainder of the Act of which it is a part to determine to what Act reference is made. Most of the other Sections of the 1975 Act amend the Campaign Financing Disclosure Act and would be considered part of that Act. It is obvious then that it is the Campaign Financing Disclosure Act to which reference is made in Section 7A, and the disclosure requirements of which must be fulfilled by the designated organizations. Thus, it is my opinion that political parties are subject to the disclosure requirements of the Campaign Financing Disclosure Act. OPINION 75-54 To: Comptroller General June 12, 1975 Re: Insurance companies and surplus line brokers are not exempt from paying premium taxes on the insurance coverage sold to Metropolitan Atlanta Rapid Transit Authority. All insurance companies doing business in Georgia are required to pay a tax on the gross direct premiums received by those companies on persons, property or risks insured in the state. Ga. Code Ann. 56-1303 (Ga. Laws 1960, pp. 289, 505). Likewise, all surplus line 107 75-54 brokers are required to pay a tax on the direct premiums generated by sales they make i:p. this state. Ga. Code Ann. 56-623 (Ga. Laws 1960, pp. 289, 389, as amended). You have inquired as to the propriety of collecting these taxes from those companies and brokers who provide insurance coverage for the Metropolitan Atlanta Rapid Transit Authority (MARTA). It is my opinion that neither insurance companies nor surplus line brokers are exempt from the premium taxes imposed by the above-cited statutes on premiums generated from the sale of insurance coverage to MARTA. This question has arisen because of an interpretation of the following exemption found in the law creating MARTA: "The property of the Authority, both real and personal, its acts, activities and income shall be exempt from any tax or tax obligation." Ga. Laws 1965, pp. 2243, 2274 [not codified]. You indicated that this provision has been interpreted as exempting insurance companies and surplus line brokers from paying premium taxes on the premiums collected from MARTA. However, there is no statutory basis for such an interpretation inasmuch as premium taxes are imposed on the companies and brokers and not on MARTA. There is nothing in the above provision which could remotely be construed as exempting insurance companies or surplus line brokers from paying premium taxes. The situation about which you have inquired is analogous to that considered by the Supreme Court of Georgia in Oxford v. J. D. Jewell, Inc., 215 Ga. 616 (1960). The issue in that case was whether or not the state could charge a sales tax on items sold to the United States Government which is immune from state taxation. In that case, the court determined that the tax was upon the retailer and not upon the sale and retail sales were used solely as a measure of the retailer's liability. It held that since the tax is on the retailer and not the sale, it was not a tax levied against the United States and the immunity of the United States Government from state taxation was not violated by the collection of such a tax. Id. at 620. The taxes that are the subject of your inquiry, like the sales tax, are not upon the incident of the sale, but are imposed upon the retailer, in this case the insurance company or the surplus line broker. Therefore, as in the Oxford case, the collection of the premium tax from the insurer is not contrary to the statutory exemption from taxation of MARTA. Further, the fact that the premium charged MARTA for insurance coverage may be based on rates which include premium tax loading is not contrary to the statutory exemption. This question was also considered in the Oxford case, and the court held that passing on the economic burden of a tax to an instrumentality which was otherwise 75-55 108 immune from taxation was not violative of that immunity. Id. at 623. Therefore, it is my opinion that insurance companies and surplus line brokers who provide insurance coverage for MARTA are not exempt from paying tax on the premiums collected for such coverage. OPINION 75-55 To: Commissioner, Department of Revenue June 17, 1975 Re: Payment of ad valorem property taxes subsequent to July 1, 1975 would not prejudice a taxpayer's appeal brought pursuant to Ga. Code Ann. 92-6912, and if successful in such an appeal the taxpayer would be entitled to a refund under the provisions of Ga. Laws 1975, p. 774 (Ga. Code Ann. Ch. 92-39A). This is in response to your recent inquiry concerning the effect of payment of ad valorem property taxes prior to a final determination of a taxpayer's appeal brought pursuant to Ga. Code Ann. 92-6912 (1933 Code, as amended by Ga. Laws 1958, p. 387; 1972, p. 1094; 1973, p. 709; 1974, p. 609; 1975, p. 1090). Specifically, you have asked: 1. Assuming that the [taxpayer] paid the 1974 taxes based on the valuation as set by the Liberty County Board of Equalization, would such payment prejudice the rights of the taxpayer under its appeal or constitute a voluntary payment not subject to refund? 2. Assuming that the taxpayer is successful on its appeal and it is subsequently judicially determined that the taxpayer owes no taxes for 1974 to Liberty County,. if Liberty County should, for any reason, refuse to refund or be restrained by third parties from refunding the tax payment previously paid, could the taxpayer, by legal process, require Liberty County to refund the taxes so paid? Your question arises, of course, because of the presently existing rule that a voluntary payment of ad valorem taxes cannot be recovered. See, e.g., Blackmon v. Ewing, 231 Ga. 239, 242 (1973). However, since your concern relates to future rather than past action, it is my view that your questions may best be answered by reference to recent legislation by the General Assembly which will become effective July 1, 1975. Act No. 512 (Ga. Laws 1975, p. 774; Ga. Code Ann. Ch. 92-39A), signed by the Governor on April 18, 1975, provides for the refund of county and municipal ". . . taxes and license fees which may be de- 109 75-56 termined to have been erroneously or illegally assessed and collected. . . ."No effective date is specified in Act No. 512; thus its effective date is July 1, 1975. See Ga. Code Ann. 102-111. In light of the provisions of Act No. 512, it is my opinion that payment of ad valorem property taxes subsequent to July 1, 1975 would not prejudice a taxpayer's appeal, and if successful in such an appeal the taxpayer would be entitled to a refund. OPINION 75-56 To: Commissioner, Department of Banking and Finance June 17, 1975 Re: State-chartered credit unions may not act as custodian or trustee for retirement funds under the Employee Retirement Income Security Act of 1974. This is in response to a request from your office for an official opinion as to whether a state-chartered credit union may act as custodian or trustee for retirement funds under the Employee Retirement Security Act of 1974 (federal). Corporations existing under the laws of this state which are authorized to act as fiduciaries are set out in Ga. Laws 1974, pp. 705, 784 (Ga. Code 41A-1103), which states: "No corporation existing under the laws of this State or National bank located in this State may lawfully act as a fiduciary except: "(1) a trust company; "(2) a National bank located in this State authorized to act as a fiduciary under the laws of the United States; or "(3) any corporation acting in a limited fiduciary capacity incidental to the marketing or sale of securities on behalf of a religious, philanthropic or charitable organization, but only upon the approval of the department and to the extent permitted by regulations issued by the department." Credit unions are not included in this list of corporations which are authorized to act as fiduciaries. Since this list is all-inclusive, it is my official opinion that credit unions may not act as custodian or trustee for retirement funds under the Employee Retirement Income Security Act of 1974. 75-57 110 OPINION 75-57 To: Commissioner of Agriculture June 17, 1975 Re: Funds accumulated by the Georgia Seed Development Commission may be utilized for initiating a seed research program at the College of Agriculture of the University of Georgia. You have inquired into the legality of using financial resources accumulated by the Georgia Seed Development Commission to fund a seed research program at the College of Agriculture of the University of Georgia. I direct your attention to the Georgia Seed Development Act, Ga. Laws 1959, p. 83, as amended (Ga. Code Ann. Ch. 5-27), wherein the Georgia Seed Development Commission is authorized: 1. "To promote scientific and educational objectives in connection with the production and distribution of foundation seed stocks;" Ga. Laws 1959, pp. 83, 86; 2. "To cooperate and contract with the University of Georgia College of Agriculture Experiment Stations, the Department of Agriculture of the State of Georgia, the U. S. Department of Agriculture, and any other agency of the State or Federal Government in making foundation seeds of superior varieties and hybrids available in adequate quantities according to the requirements and needs of the farmers of this State;" Ga. Laws 1959, pp. 83, 86; 3. "To make such contracts and agreements as is legitimate and necessary for the purposes of this Act, and to make all other contracts and agreements as may be necessary to the proper performance of any action permitted thereby;" Ga. Laws 1959, pp. 83, 86; 4. "To do and perform all things necessary or convenient to carry out the powers conferred upon the Commission by this Act." Ga. Laws 1959, pp. 83, 86. Additionally, the commission is empowered to use the net proceeds from the sale of breeder's and foundation seeds, the dues and pledges solicited from the industry, and the gifts or grants of real or personal property received by the commission for the purpose of carrying out the provisions of the Act. Ga. Laws 1959, pp. 83, 87. Inasmuch as the monies to be used to finance the research project were accumulated by the commission from the aforementioned sources, and insofar as the program of research is to be directed at the problem of improving (in aspects of seed development) the poor small grain crops experienced this year by the grain industry of this state, it is my opinion that the initiation of a seed research program conducted by the 111 75-59 Department of Agronomy within the College of Agriculture of the University of Georgia is within the statutory ambit of the commission described above and is a laudable and legally permissible use of commission funds. OPINION 75-58 To: Chairman, Georgia State Financing and Investment Commission June 18, 1975 Re: The Georgia State Financing and Investment Commission is not required to obtain bids on construction contracts. This opinion is in response to a request from the Executive Secretary for my opinion on whether or not the Georgia State Financing and Investment Commission is required to take bids on construction contracts. Georgia Laws 1964, pp. 693, 696 (Ga. Code Ann. 40-1921.1), provides that all construction or public works contracts which involve the expenditure of in excess of $500 are to be conducted and supervised by the Supervisor of Purchases "in accordance with the provisions of this Act." The Supervisor of Purchases is required, except in certain enumerated instances which are not applicable, to obtain competitive bids. See Ga. Code 40-1909, 40-1910 (Ga. Laws 1937, p. 503; 1939, p. 160). The Georgia State Financing and Investment Commission, however, is exempt from the provisions governing the Supervisor of Purchases. Ga. Laws 1973, pp. 750, 759, Section 3j (Ga. Code Ann. 87-103a). I know of no other statute that would require the commission to obtain competitive bids for construction contracts. In the absence of a statutory provision requiring competitive bidding, contracts entered into on a negotiated basis are valid. See generally, 64 Am. Jur. 2d Public Works and Contracts, 364. It is, therefore, my official opinion that the Georgia State Financing and Investment Commission is not required to obtain competitive bids for construction contracts. OPINION 75-59 To: Director of Corrections June 18, 1975 Re: Inadequacy of appropriated funds does not excuse the duty of a public official to exercise due diligence to perform his responsibilities. By your letter of May 20, 1975, you requested my interpretation of 75-59 112 your department's responsibilities for the implementation of the provisions of the Mentally Retarded Offender Act of 1975, in consideration of the amount of funds appropriated for this purpose by the General Assembly. 1975 Act No. 455 (S.B. No. 163) (Ga. Laws 1975, p. 567; Ga. Code Ann. Ch. 77-5C). Specifically, you state that the General Assembly appropriated approximately 25 percent of the amount of funds originally requested to effectuate the terms of the Act. 1975 Act No. 706 (H.B. No. 170) (Ga. Laws 1975, p. 1333). You relate that at the present level of funding, the ability of the various bodies charged with instituting pilot projects and performing other functions under the Act is uncertain. Section 3 of the Mentally Retarded Offender Act of 1975 provides that the Department of Offender Rehabilitation shall head the task force created by the Act. 1975 Act No. 455, Section 3. The task force, which is composed of representatives from specified units of the executive and legislative branches of government, is charged with the responsibility of compiling a five-year plan for the education and rehabilitation of mentally retarded offenders. 1975 Act No. 455, Section 3 (b). The Act directs the task force to include certain items in its report, specifically a review of the operation of each of three pilot projects. 1975 Act No. 455, Section 3 (e). Section 4 of the Act places the responsibility for setting up and operating the three pilot projects described therein upon the specified divisions of the Department of Human Resources. 1975 Act No. 455, Sections 4 (a), 4 (b), 4 (c). Further, the Georgia Peace Officer Standards and Training Council is specifically given the responsibility for the development of the materials described in Section 5 of the Act. 1975 Act No. 455, Section 5. As set forth in the Act, the responsibilities of the Department of Offender Rehabilitation are to head the task force, to designate a representative to serve on the task force, and to secure sufficient qualified personnel to assure completion of the written report by the required date. 1975 Act No. 455, Sections 3 (a), 3 (a) (1), 3 (d). In addition, the disbursal of the funds for the implementation of the "Mentally Retarded Offender Program" has been entrusted to your department. 1975 Act No. 706 (H.B. No. 170). Your question appears to be prompted by the lack of more explicit legislative guidelines for the disbursal of the appropriated funds, the amount of which you consider inadequate to accomplish the tasks mandated by the Act. As you are most likely aware, a writ of mandamus may issue to compel the performance of official duties, such as those attributed to your department by the Act. Ga. Code (1933) 64-101. Although absolute impossibility can in certain contexts justify the nonperformance of an official duty, the mere fact that funds were not appropriated to discharge a mandated task is insufficient to justify its nonperformance. Ops. Att'y Gen. 69-184, 69-174; see Crow v. McCallum, 113 75-60 215 Ga. 692, 697 (1960); Savannah & Ogeechee Canal Co. v. Shuman, 91 Ga. 400, 402-03 (1893). Although there is no Georgia case authority directly in point, a close reading of the opinions in the Crow and Savannah Canal Company cases indicate that the Georgia courts would excuse performance on the grounds of factual impossibility only upon a clear showing that every potential means of achieving the objectives of the Act had been exhausted. Based on the foregoing, it is my official opinion that it is your responsibility, that of the other members of the task force, and that of the other specified bodies, to exert due diligence to accomplish the tasks mandated by the Mentally Retarded Offender Act of 1975. OPINION 75-60 To: Joint Secretary, State Examining Boards June 23, 1975 Re: Piercing of earlobes by unlicensed persons is not the practice of medicine within the meaning of the Medical Practice Act. This is in response to your request for an official opinion as to whether the piercing of the earlobes by unlicensed persons is the practice of medicine within the meaning of the Medical Practice Act (Ga. Code Ch. 84-9, based on 1933 Code, as amended). The definition of "practicing medicine" found in Ga. Code 84-901 is controlling: "The terms 'practice of medicine,' 'to practice medicine,' 'practicing medicine,' and 'practice medicine,' as used in this Chapter, are hereby defined to mean holding one's self out to the public as being engaged in the diagnosis or treatment of disease, defects or injuries of human beings, or the suggestion, recommendation or prescribing of any form of treatment for the intended palliation, relief or cure of any physical, mental or functional ailment or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift or compensation whatsoever ..." (Emphasis added.) The piercing of earlobes is not a procedure for "the diagnosis or treatment of disease, defects or injuries of human beings, or the suggestion, recommendation or prescribing of any form of treatment for the intended palliation, relief or cure of any physical, mental or functional ailment or defect of any person." It is, therefore, my official opinion that the piercing of earlobes is not the practice of medicine within the meaning of the Medical Practice Act. 75-61 114 OPINION 75-61 To: Secretary of State June 26, 1975 Re: Professional corporations may issue shares to persons who are trustees of an Employee's Stock Ownership Plan so long as all trustees and all beneficiaries are persons licensed by the state to practice the profession for which the corporation was organized. This is in response to your recent request for my opinion as to whether shares of a professional corporation, duly incorporated under the provisions of Ga. Laws 1970, p. 243 (Ga. Code Ann. Ch. 84-54), could be issued to an Employee's Stock Ownership Plan. For the purpose of this opinion it is my understanding that an Employee's Stock Ownership Plan is defined as a trust created by a corporation for the purpose of providing retirement benefits for the corporation's employees. Further, it is my understanding that your specific inquiry involves an Employee's Stock Ownership Plan for the employees of a professional corporation and that under the proposed plan both the trustee and all of the potential beneficiaries of the plan would be licensed in this state to perform the services for which the corporation was organized. For the reasons stated hereinbelow, it is my opinion that professional corporations may issue shares to the trustees of such plans. Georgia Laws 1970, pp. 243, 246 (Ga. Code Ann. 84-5405), provides that: "Shares in a professional corporation may only be issued to, held by, or transferred to a person who is licensed to practice the profession for which the corporation is organized and who, unless disabled, is actively engaged in such practice, except as otherwise permitted under this section." Your inquiry essentially involves a matter of determining who is holding the shares of stock which have been transferred to the plan. If the shares are being held in the name of the plan, it is quite obvious that the provisions of the above-cited Code section are not met. However, with regard to trusts, the law is quite clear that the title to the trust property, here the shares, is not vested in the trust itself, but rather is vested in the trustee of the plan. This is made clear by case law (see Sanders v. Dunson, 146 Ga. 784, 92 S.E. 531 (1916)), as well as by the provisions of Ga. Code (1933) 108-401 which reads as follows: "Generally, a trustee takes an estate as large and extended as the necessities of the trust require, and no more." 115 75-62 Therefore, it is clear that legal title to the shares is not vested in the plan, but is normally vested in the trustee of the plan with the remainder of the title, the equitable interest, being vested in the beneficiaries. Hence, at any given time, while title to the shares may be split, the holders of the complete title, that is, the trustee who holds legal title and the employees who hold the beneficial title, are all persons, under Ga. Laws 1970, p. 243 (Ga. Code Ann. Ch. 84-54), who are authorized to provide the services for which the corporation was organized and who would routinely be authorized to hold shares in the professional corporation. Naturally, when the employee retires or is terminated, legal and equitable title merge once again in the employee and the shares would then be subject to the provisions of Ga. Laws 1970, p. 243 (Ga. Code Ann. Ch. 84-54), just as would any other shares issued directly to any other shareholder. Therefore, it is my official opinion that shares in a professional corporation may be transferred to the trustee of an Employee's Stock Ownership Plan, so long as the trustee is a person licensed to provide the services in this state for which the corporation was organized and as long as the beneficiaries of the plan are persons also so licensed. OPINION 75-62 To: Commissioner of Banking and Finance June 26, 1975 Re: Department of Banking and Finance Rule 80-1-0.1 is within the scope of the authority delegated to the department by the Financial Institutions Code, was promulgated in accordance with the Georgia Administrative Procedure Act, and has the force and effect of law until such time as it is determined to be contrary to controlling legal principles. This is in response to your request for my opinion with respect to the procedural validity of Rule 80-1-0.1 of the Department of Banking and Finance (Department). For the reasons stated hereinafter, it is my official opinion that the rule in question was promulgated in accordance with applicable statutory guidelines, and that the rule, being within the scope of the authority conferred upon the department by the General Assembly, has the force and effect of law. However, because of the complexity of the issues covered by this rule, and because my office has not had an opportunity to properly explore these issues, I express no opinion as to the legal sufficiency of the rule itself. As you know, the Financial Institutions Code (Ga. Code Ann. Title 75-63 116 41A; Ga. Laws 1974, p. 705) confers broad powers upon the department to promulgate rules and regulations to effectuate the provisions of the Code. In particular, the department is "expressly authorized" to issue regulations that enable state-chartered institutions to "compete fairly with financial institutions existing under the laws of the United States and other states...." Ga. Code Ann. 41A-302. Since Rule 80-1-0.1 is clearly within the scope of the statutory language, the department is authorized to issue the regulation in question. The Code further provides that regulations promulgated by the department must be issued pursuant to the Georgia Administrative Procedure Act (Ga. Code Ann. Title 3A; Ga. Laws 1964, p. 338). Although that Act generally requires that notice be given before a rule may be adopted, that requirement may be waived in certain emergency situations. Ga. Code Ann. 3A-104 (b). In order for a rule to qualify for emergency treatment, the issuing agency must make certain findings and those findings must be filed with the rule. Ga. Code Ann. 3A-106. Inasmuch as the rule states that the requisite findings have been made, it appears that Rule 80-1-0.1 was promulgated in compliance with the Georgia Administrative Procedure Act. The law presumes that the findings are supported by appropriate evidentiary determinations. Irvin v. Woodliff, 125 Ga. App. 214 (1971). It is elementary that a regulation issued in accordance with the statutorily prescribed procedure, and which is within the scope of the authority conferred upon the issuing agency by the legislature, has the force and effect of law. Georgia Public Service Commission v. Jones Transportation, Inc., 213 Ga. 514 (1957); Atkins v. Manning, 206 Ga. 219 (1949). It necessarily follows, therefore, that Rule 80-1-0.1 is operative and lawfully governs transactions of the type covered by the rule until such time as that rule is found to be contrary to controlling legal principles. Lastly, I must emphasize that I express no opinion whatsoever on whether Rule 80-1-0.1 expresses a legally accurate determination. In other words, my opinion is that Rule 80-1-0.1 is authorized by, and was promulgated pursuant to, applicable statutes. I express no opinion on the substance of the rule, and will not do so until my office has had adequate time to properly research the issues involved. OPINION 75-63 To: State Superintendent of Schools June 30, 1975 Re: Although the State Board of Education does not have explicit authority to directly preclude a student in a local school district from progressing from one grade level to another if the child is not capable of reading in the higher grade level, the board may, as a condition of 117 75-63 continued state fiscal assistance, require local boards of education to implement state board established reading requirements to be imposed on public school students for passage to the next grade level. You have requested my opinion as to the authority of the State Board of Education "to stop a child from moving into the next grade when the child is not capable of reading in that grade level." I understand that the state board has adopted a resolution which has as its basic intent the establishment of certain reading requirements (applicable to all public schools in this state) that students must meet in order to progress from one grade level to another. A question has arisen as to whether the state board may appropriately impose such requirements. Traditionally, the control and management of the public schools within local school districts has been confined to the county boards of education. Art. VIII, Sec. V, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-6801); Ga. Laws 1919, pp. 288, 320 (Ga. Code Ann. 32-901). With respect to the county schools of their respective counties, the county superintendents of schools and the county boards of education have been entrusted with the establishment of rules to govern the public schools. Ga. Laws 1919, pp. 288, 325, as amended (Ga. Code Ann. 32-912). Inasmuch as these general canons have been judicially endorsed numerous times (see Patterson v. Boyd, 211 Ga. 679 (1955); Boney v. County Board of Education of Telfair County, 203 Ga. 152 (1947); Keever v. Board of Education of Gwinnett County, 188 Ga. 299 (1939)), and in consideration of the fact that the State Board of Education has no express authority to preempt local boards in decisions concerning promotion of individual students, it would appear that the state board could not directly stop an individual student from passing to the next grade level should the county board feel the child is reading sufficiently. However, the state board is statutorily authorized to provide rules and regulations prescribing a course of study for all common and high schools receiving state-aid and may, in their discretion, provide for curriculum revisions in the public schools. Ga. Laws 1937, pp. 864, 866, as amended (Ga. Code Ann. 32-408). The incentive for this authority is well stated in the legislative expression of purpose for the Adequate Program for Education in Georgia Act, Ga. Laws 1974, pp. 1045, 1046 (Ga. Code Ann. 32-602a), as necessary for: ". . . establishing and maintaining common minimum standards on a statewide basis which insure that each child may attend a standard and certified school. . . ." The APEG Act (Ga. Code Ann. Ch. 32-6A; Ga. Laws 1974, p. 1045), of course, provides the statutory vehicle whereby state funds for edu_ 75-63 118 cation are allotted by the state board to the local school district for such purposes as instructional and supportive services, operation of educational programs, and capital construction. The monitoring function of the state board with regard to minimum standards for eligibility for funds under the Act is an integral feature of the legislation. Section 50 provides that the State Board of Education shall establish performance-based criteria upon which the instructional program of each public school will be evaluated so as to assure, to the greatest extent possible, equal and adequate educational programs, curricula, course offerings and facilities for all students of Georgia public schools. Moreover, Section 51 of the Act directs the state board to adopt such instruments, procedures and policies as deemed necessary to assess the effectiveness of the various educational programs in this state. This concern for equal and consistent program standards and substance is reiterated in Section 53 of the Act, Ga. Laws 1974, pp. 1045, 1084 (Ga. Code Ann. 32-653a): "The State Board of Education shall adopt and prescribe all rules, regulations and policies required by provisions of this Act, and shall adopt and prescribe such other rules, regulations and policies as may be reasonably necessary or advisable for proper implementation, enforcement and carrying out of provisions of this Act, and other public school laws.... The State Board shall establish and enforce minimum standards for operation of all phases of public school education in Georgia and for operation of all public elementary and secondary schools and local units of school administration in Georgia so as to assure, to the greatest extent possible, equal and adequate educational programs, curricula, offerings, opportunities and facilities for all Georgia's children and youth...." The rules, regulations, and policy promulgated by the board pursuant to the aforementioned language are to be complied with, executed and enforced by local superintendents and school boards in order for the local units of administration to become eligible to receive state funds under the APEG Act. Ga. Laws 1974, pp. 1045, 1090 (Ga. Code Ann. 32-661a). The obvious recourse for the state board in redressing a local board's failure or refusal to execute state board policy would be withholding of state funds allocated to the local school district. Such withholding must be in accordance with the procedural mandates of Section 69 of the APEG Act, Ga. Laws 1974, pp. 1045, 1096 (Ga. Code Ann. 32-669a), as to notice to the local board of the action contemplated by the state board, reasons therefor, and opportunity for a hearing. In consideration of the foregoing, I believe that the state board may, 119 75-64 as a condition of continued state fiscal assistance under the APEG Act, require local boards to implement state board established reading requirements to be imposed on public school students for passage to the next grade level. OPINION 75-64 To: .Joint Secretary, State Examining Boards .June 30, 1975 Re: The office of "special deputy sheriff" exists only in counties affected by Ga. Laws 1945, p. 1152, and any person holding himself out as a "special deputy sheriff" in any other county either has no legal standing or is an actual deputy sheriff appointed under the provisions of Ga. Code 24-2811. This is in response to your recent letter in which you requested my official opinion as to the status of persons who claim to be "special deputy sheriffs" by virtue of an appointment to that position by the sheriff of any one of Georgia's 159 counties. I understand that your request stems from a situation which has been presented to the Board of Private Detective and Security Agencies, where it has been alleged that persons holding themselves out as "special deputy sheriffs" have been operating private detective and security agencies without a license from the state. Further, it is my understanding that the badge of authority held by these persons is generally a card which reflects that the person has been appointed a "special deputy sheriff" by a county sheriff. In Op. Att'y Gen. 69-75 (unofficial), a copy of which is attached hereto, I noted, with one exception, that the office of "special deputy sheriff" does not exist. The exception is found in Ga. Laws 1945, p. 1152 (which, incidentally, is a population Act presently applicable only to Dodge County, Georgia), which authorized the sheriff of certain counties to appoint special deputy sheriffs to investigate the collection of taxes. It is noteworthy that this office has held that the persons who were appointed as special deputy sheriffs were not authorized, by virtue of their office, to carry firearms. See Op. Att'y Gen. U70-204, a copy of which is attached hereto. Therefore, the term "special deputy sheriff" is totally without legal meaning other than in the context of the law cited above and a person who holds himself out as a "special deputy sheriff" has no legal status unless he has been appointed under the provisions of Ga. Laws 1945, p. 1152, which at best could only occur in one county. It is possible, however, that persons who hold themselves out as 75-64 120 "special deputy sheriffs" are in actuality deputy sheriffs appointed under Ga. Code (1933) 24-2811, relating to sheriffs, which provides that: "Sheriffs are authorized in their discretion to appoint one or more deputies, from whom they must take a bond with sureties." This seems to certainly indicate that a sheriff may appoint any number of regular deputies that he desires. Thus, the question then devolves to whether a person who is holding himself out as a "special deputy sheriff" is in fact a true deputy sheriff appointed under the provisions of Ga. Code 24-2811. This determination is, of course, a factual one and can only be made on an ad hoc basis. However, certain criteria should be examined in each case to determine whether in fact the person is an actual deputy sheriff, and I shall endeavor to state them for you. Initially, there is a requirement that the deputy sheriff be bonded with sureties. If a person holding himself out as a special deputy sheriff is not so bonded, this would indicate that he is in fact not a deputy sheriff. Second, Ga. Code Ann. 24-2825 (Ga. Laws 1957, p. 224) requires that the sheriff of every county register with the clerk of the superior court of his county the appointment of all deputy sheriffs who are bonded and who have taken the oath of office. Thus, it appears that the name of any person who is in fact a deputy sheriff should appear on a list of deputies maintained by the clerk of the superior court of the county in question. The absence of the person purporting to be a "special deputy sheriff" from this list would be indicative of the fact that he is not a deputy sheriff. Additionally, every deputy sheriff, appointed pursuant to Ga. Code 24-2811, is the general agent of the sheriff who appoints him, and is authorized to perform all acts which by law pertain to the sheriff's office. See American Surety Comm. v. Smith, 55 Ga. 633 (1937). If any limitations have been imposed on the duties of the person purporting to be a "special deputy sheriff," this would be indicative that the sheriff does not in fact consider him to be a true deputy. Therefore, in each situation, all of the above mentioned factors would have to be considered to determine whether in fact the person purporting to be a "special deputy sheriff" is in fact an actual deputy sheriff, appointed under Ga. Code Ann. 24-2811. I might add that if a person who holds himself out as a "special deputy sheriff" is a true deputy sheriff, the sheriff appointing him is responsible for his activities undertaken pursuant to that grant of authority and may be liable on an agency principle for his appointee's activities. It is my official opinion that, with the exception noted above, there is no such office as "special deputy sheriff" and persons holding them- 121 75-65 selves out as such are either without legal standing or are actual deputy sheriffs for whom the sheriff who appointed such persons is legally responsible. The question of determining which is the true situation is a matter which must be analyzed on a case by case basis, utilizing the criteria set out above. OPINION 75-65 To: Director, Fiscal Division, Department of Administrative Services July 2, 1975 Re: Appropriated grant monies allocated to Hancock County under the authority of Ga. Laws 1967, p. 888, may be withheld by the Department of Administrative Services and released to the Employees Retirement System to protect the system from delinquent social security reports and remittances for which Hancock County is liable. The Employees Retirement System (ERS) has certified to you, as Director of the Fiscal Division of the Department of Administrative Services (DOAS), that Hancock County, Georgia is delinquent with respect to social security reports and contributions due and payable to ERS. The ERS is designated as the state agency responsible for the collection and remittance of social security contributions from the State of Georgia and covered political subdivisions under the Old Age and Survivors Insurance System embodied in the Social Security Act (49 Stat. 620 et seq., as amended). Ga. Laws 1953, Nov. Sess., p. 294 et seq., as amended (Ga. Code Ann. Ch. 99-21). In point of fact, the actual delinquency has occurred on the part of the Hancock County Hospital Authority (Authority), an entity covered for social security purposes by agreement between the authority and ERS. (See the agreement between the authority and ERS under date of October 1, 1968, approved by ERS on April 3, 1969.) However, Hancock County, through its board of commissioners, by resolution and agreement under date of November 4, 1968, approved byERS on April 3, 1969, has undertaken to guarantee the remission of all social security contributions due and payable to ERS by the authority. Accordingly, ERS is appropriately looking to Hancock County to satisfy the delinquency of the authority with respect to social security reports and remittances. The certification to you from ERS requests that you withhold from Hancock County and pay over to ERS all appropriated grant monies allocated to Hancock County. ERS has made its request pursuant to the authority found at Ga. Laws 1953, Nov. Sess., pp. 294, 297, as amended (Ga. Code Ann. 99-2104 (f)), which reads, in pertinent part, as follows: 75-65 122 "Should the governing authority of any county which has entered into a plan of (Social Security) coverage ... with the State agency ... fail to make collection from its employees and to make reports and payments agreed to in such plan of coverage, it shall be the duty of the State agency to notify the State Highway Board (State Transportation Board) and the State Treasurer (DOAS) of such failure and, thereupon, it shall be the duty of the ... State Treasurer (DOAS) to withhold from such county governing authority all appropriations for highway and road purposes allotted to such county until such county governing authority has fully complied with the provisions agreed to in its plan of coverage by making reports and remittances of the payment provided for in its plan of coverage entered into with the State agency, and ... the State Treasurer (DOAS) is hereby authorized and directed, upon certified request of the State agency, to remit to the State agency from such withheld funds the amount necessary to cover the remittances which said county governing authority has failed to pay to the State agency. . . ." (Parenthetical matter added.) The functions of the State Treasurer were transferred to the Fiscal Division of the Department of Administrative Services by the Executive Reorganization Act of 1972. Ga. Laws 1972, pp. 1015, 1038 (Ga. Code Ann. 40-3557). Also, the State Highway Board was changed to the State Transportation Board by Ga. Laws 1972, pp. 1537-44, ratified on November 7, 1972 (Ga. Const., Art. V, Sec. XI, Par. I; Ga. Code Ann. 2-3506). . Pursuant to the certified request from ERS, you advise you have withheld and released to ERS certain funds payable to Hancock County for highway and road purposes under Ga. Laws 1945, pp. 316319 (Ga. Code Ann. 92-1404), and Ga. Laws 1951, p. 428. Additionally, you are currently holding certain funds allocated to Hancock County under Ga. Laws 1967, p. 888, which you have not yet released to ERS. That Act authorizes state grants to counties for expenditure for any public purposes. However, Section 2 of that Act, on its face, appears to limit these grants to funds other than funds appropriated for grants to counties for aid in county road construction. Your specific question is whether appropriated grant monies allocated to Hancock County under Ga. Laws 1967, p. 888, may be withheld and released to ERS to cover the authority's delinquency, as guaranteed by Hancock County. A literal reading of Section 2 of the 1967 Act (Ga. Code Ann. 23-2906) and the afore-quoted language of the 1953 Act appertaining to delinquent social security remissions would indicate that, since the grant money under the 1967 Act is separated from grant money designated for county road construction, it cannot be withheld from Han- 123 75-65 cock County by DOAS and released to ERS to satisfy this delinquency. However, in my judgment, withholding funds designated for road construction purposes is not the sole method under Ga. Code Ann. Ch. 99-21 by which ERS may protect itself against political subdivisions which are delinquent in Social Security reports and remissions. Another subsection of the 1953 Act reads, in relevant part, as follows: "Delinquent payments due (to the state agency from the political subdivision) may, with interest at the rate of six per centum per annum, be recovered by action in court of competent jurisdiction against the political subdivision liable therefor or may, at the request of the State agency, be deducted from any other moneys payable to such subdivision by any department or agency of the State." (Parenthetical matter added.) Ga. Laws 1953, Nov. Sess., pp. 294, 297; Ga. Code Ann. 99-2104 (d). The above section of the 1953 Act, in my judgment, should be read as co-equal with the earlier-quoted section authorizing the withholding of road construction and maintenance monies to the political subdivision (Ga. Code Ann. 99-2104 (f)). While the provisions of Ga. Code Ann. 99-2104 (f) mandate that upon request and certification from ERS, DOAS must withhold county road grant money from a delinquent county, this latter subsection of the Act (Ga. Code Ann. 99-2104 (d)) authorizes the deduction or withholding of "all moneys payable to the subdivision (county) by any department of the state" in order to protect ERS from a social security delinquency. Its language is in the nature of a statutory setoff and I feel confident that a court of law, in construing the 1953 Act, would hold that any monies owed or payable to Hancock County could be retained by DOAS and released, upon request, to ERS to cover the authority's delinquency. A statute must be examined as a whole and its different provisions read consistently together, if possible. The general scheme and purpose of any statute is a proper criterion for its construction. Carroll v. Ragsdale, 192 Ga. 118 (1941). Therefore, based on the foregoing rationale and authorities, it is my official opinion that any appropriated grant monies allocated to Hancock County under the authority of Ga. Laws 1967, p. 888, may be withheld by the Department of Administrative Services and released to the Employees Retirement System to protect the system from delinquent social security reports and remittances for which Hancock County is liable. 75-66 124 OPINION 75-66 To: Executive Secretary-Treasurer, Teachers Retirement System of Georgia July 3, 1975 Re: The Executive Secretary-Treasurer of TRS is a proper and qualified member of the Investment Committee of the Teachers Retirement System and may be delegated the authority, following a proper investment decision, to perform mechanical or ministerial duties effectuating the investment decision or transaction. This responds to your recent letter wherein you inquire whether the Executive Secretary-Treasurer (Secretary) of the Teachers Retirement System of Georgia (TRS) is properly a member of the Investment Committee of TRS. You also ask whether the secretary "has the power to sign for the Retirement System in security transactions." To your letter you attached various extracts from the minutes of certain meetings of the TRS' Board of Trustees (board) from 1943 to present. These extracts show that the board has delegated certain authority concerning the effectuation of investment transactions to the secretary. You point out in your letter that the board has always considered the secretary as a bona fide member of the investment committee, qualified in every way. The investment committee was created by the board to, inter alia, study possible investments and advise and assist the board in its investments of TRS assets and other transactions. It is apparent that the investment committee should be composed of a diverse and balanced group of individuals qualified in the fields of investment analysis and transactions and TRS administration. This composition is necessary to assure the most prudent and judicious use of the assets of TRS. It is also apparent that others than trustees of the board may serve on the investment committee. Ga. Laws 1943, p. 640 et seq., as amended (Ga. Code Ann. 32-2906, 32-2912, 32-2917). Consequently, the inclusion of the secretary on the investment committee is, in all respects, proper. With respect to your second question, there must be a careful demarcation of responsibility between the functions of the secretary and those of the board. Georgia Code Ann. 32-2918 authorizes the appointment of the secretary and states that he shall be the treasurer of the assets of TRS. This Code section authorizes the secretary to make all payments of the funds of TRS upon vouchers signed by the secretary and countersigned by another person designated by the board. The Code section applies, in my judgment, to the administration of TRS payments (e.g., retirement benefits, lump sum refunds of contributions, etc.) and must be distinguished from the authority vested in the 125 75-67 board under Ga. Code Ann. 32-2917 to manage and invest the funds of TRS. This latter Code section (Ga. Code Ann. 32-2917) authorizes the board to make decisions concerning investments. At no place in the TRS Act can I find authority for the secretary to make such decisions. I might add that, by statute, the secretary cannot be one of the board's trustees. Ga. Code Ann. 32-2912. Having reached this juncture, the question arises as to what extent the board may delegate to the secretary the "power to sign for the Retirement System in security transactions." The prevailing rule of law in Georgia is that duties and powers which require judgment and discretion on the part of a public officer are not delegable to another, while acts which are purely mechanical or ministerial in nature may be properly delegated to an agent. Horton v. State, 112 Ga. 27 (1900); Mobley v. Marlin, 166 Ga. 820 (1928); Ops. Att'y Gen. 66-159, 72-80. The Supreme Court of Georgia has stated that: " ... an agent in whom is reposed trust and confidence or who is required to exercise discretion or judgment, may not intrust the performance of his duties to another without the consent of his principal (General Assembly); but, having exercised his discretion and determined the propriety of an act, he may delegate to a subagent the execution of merely mechanical, clerical, or ministerial acts not involving judgment or discretion." (Parenthetical matter added.) Mobley v. Marlin, 166 Ga. 820, 830 (1928). See also, In re Giles, 21 F.2d 536 (5th Cir. 1927). It is my understanding that, following a proper TRS investment decision, the secretary is often requested to execute certain papers effectuating the investment decision or security transaction. I have no problem with this practice. The secretary may be delegated the authority, following a proper investment decision, to perform mechanical or ministerial duties effectuating the investment decision or transaction. See In re Giles, supra, at p. 537; Mobley v. Marlin, supra. In summary, based on the foregoing rationale and authorities, it is my official opinion that the Executive Secretary-Treasurer of TRS is a proper and qualified member of the Investment Committee of the Teachers Retirement System and may be delegated the authority, following a proper investment decision, to perform mechanical or ministerial duties effectuating the investment decision or transaction. OPINION 75-67 To: Commissioner, Department of Banking and Finance July 3, 1975 Re: All amounts loaned by credit unions in excess of the unsecured debt limits established by Ga. Laws 1974, pp. 705, 900 (Ga. Code Ann. 75-67 126 41A-3109 (d)), must be secured by adequate collateral and in no event may the secured debt limit be exceeded. This is in reply to your request for an opinion as to the loan limits of credit unions set out in Ga. Laws 1974, pp. 705, 900 (Ga. Code Ann. 41A-3109 (d) and (e)). You asked, first, if a credit union, which has shares and deposits aggregating $100,000, could lend to one individual member the maximum unsecured limit of $1000 while granting another loan to finance an automobile where the value of the collateral would only protect the second loan and the total of both loans does not exceed the credit union's maximum secured limit. Second, you wanted to know if it would be incumbent upon credit union officials to see that the entire balance was adequately secured once the total debt to an individual exceeds the credit union's unsecured limit. Your third question concerned whether a credit union could lend to any individual borrower an amount to exceed the credit union's maximum limit. There appear to be no cases on point in any jurisdiction construing a statute such as Ga. Laws 1974, pp. 705, 900 (Ga. Code Ann. 41A-3109 (d) and (e)). All cases construing limitations on loans which can be made by lending institutions concern prohibitions which set total aggregate amount limits. See, e.g., 9 C. J. S. Banks and Banking, 388. Generally, the total allowable aggregate amount which can be loaned is stated in the statute, even though this amount includes both secured and unsecured loans. See, e.g., Ga. Laws 1974, pp. 705, 793 (Ga. Code Ann. 41A-1306). The foremost rule in the construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law. Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656 (1931). The purpose of the enactment of lending limitation legislation is to protect the interests of depositors and stockholders. Murry Nelson and Co. v. Teites, 190 Ill. 414, 60 N.E. 851 (1901). Therefore, it would seem appropriate to construe such legislation in the manner which would most effectively achieve this goal. 1. In answering your first question it is important to consider sub- section (e) (1) which states that, "[f]or purposes of subsection (d): (1) all loans to any one borrower shall be treated as one loan...."Thus, the two hypothetical loans in question (1) would be considered as one loan for an amount which exceeds the maximum unsecured limit which can be loaned by a credit union with shares and deposits aggregating $100,000. Therefore, in giving this the construction which would most effectively protect depositors and stockholders, it is my official opinion that the proper construction would allow such an arrangement, but would require, once the unsecured limit has been exceeded, that the entire amount be secured. 2. As stated it is my opinion that where a credit union with aggregate 127 75-68 shares and deposits equalling $100,000 loans more than $1,000 to any single individual, the entire amount should be secured by adequate collateral. 3. As to your third question it is my official opinion that in no event may the maximum secured debt limit be exceeded. With similar legislation involving limitations of loans by banks, this office has recognized the bank's power to lend more than the maximum secured loan limit only where there is specific statutory authority to do so. See Ops. Att'y Qen. 1954-56, 31, and 1945-47, 37. Under Ga. Laws 1974, pp. 705, 900 (Ga. Code Ann. 41A-3109 (d) and (e)), there are no exceptions which allow loans in excess of the limits established in subsection (d). Maximum limits are set on secured amounts which may be loaned to one individual. By setting these limits, the General Assembly indicated that this was the maximum which could be loaned on even a secured basis and still protect the interests of depositors and stockholders. Thus, it would seem unlikely that it was felt that this amount could be exceeded by making unsecured loans. OPINION 75-68 To: Commissioner, Department of Transportation .July 3, 1975 Re: The measurement of roads in Muscogee County for the purpose of determining the proportional share of the annual distribution of a state grant under the General Appropriations Act should include only those roads which are outside of Urban Services District Number One. [This opinion superseded by Op. Att'y Gen. 75-108.] You have recently requested my official opinion as to whether the entire road network, except roads on the State Highway System, contained within the boundaries of consolidated Columbus, Georgia, should be aggregated under the classification "County Road System" in determining the county grant allotment to Columbus provided for annually in the General Appropriations Act. while your inquiry lends itself to no simple solution, it is my official opinion that only those roads outside of consolidated Columbus, Georgia's Urban Services District Number One, and their extensions into that district, should be included as part of the "County Road System." In order to place the problem in perspective, a chronological resume of certain legislative actions is in order. Annually, since 1951, the General Assembly has appropriated $4.5 million to the Department of Transportation for grants to counties for aid in county road construction. E.g., Ga. Laws 1951, pp. 417, 428; Ga. Laws 1961, pp. 356, 368; Ga. Laws 1971, pp. 111, 133-34; Ga. Laws 75-68 128 1974, pp. 1508, 1625; Ga. Laws 1975, pp. 216, 348. These funds are distributed to the counties based upon the proportion of each county's public road mileage to the total public road mileage in the state. In 1965, the General Assembly enacted legislation distributing funds, to the extent appropriated, to the state's municipalities to assist them in constructing and maintaining a system of public roads, streets, sidewalks, bridges and appurtenances. Ga. Laws 1965, p. 458 (Ga. Code Ann. Ch. 69-13). These funds are distributed in accordance with a formula based upon the population of each municipality as reflected in the decennial census. Through these pieces of legislation, the General Assembly has assured cities and counties of state assistance in constructing and maintaining roads under their respective jurisdictions. Although additional statutes, such as Ga. Laws 1975, p. 1079 (Ga. Code Ann. 23-2908 to 23-2913), provide further assistance in this area, they are neither pertinent to nor dealt with in this opinion, although they have been considered. In 1970, the citizens of the City of Columbus and Muscogee County voted to consolidate the two governments and adopted the Charter of the Consolidated Government of Columbus, Georgia, hereinafter referred to as "the charter." Ga. Laws 1971, Extra. Sess., p. 2007. It is stated therein that both the term "county" and "municipality" shall be construed to include Columbus, Georgia, when construing the applicability of provisions of the Georgia Constitution and general laws which apply to either counties or municipalities or both. Charter, Sec. 8-200 (2) (Ga. Laws 1971, Extra. Sess., pp. 2007, 2101). The charter further provides that the consolidated government is to be deemed a county and also to be deemed an incorporated city or municipality for the purpose of receiving state assistance or state grants-inaid. Charter, Sec. 8-206 (1) (Ga. Laws 1971, Extra. Sess., pp. 2007, 2105). A literal reading of these sections would provide Columbus, Georgia with a disproportionate share of the state assistance for road systems. Columbus would be entitled to funds from both assistance programs for all roads on the single "system" now maintained by the consolidated government. Because the consolidated government did not exist when these two programs were established, it is difficult to conceive that this result would have been intended by the General Assembly. In interpreting statutes, the search is for the intent of the General Assembly. Ga. Code 102-102 (9). In the search, all portions of the statute are to be given due weight and meaning. Boyles v. Steine, 224 Ga. 392, 395 (1968). In construing a statute, the spirit of the enactment should be considered and the courts are not controlled by the literal meaning of the language. The spirit or the intention of the law may prevail over the letter. See Drake v. Thyer Mfg. Corp., 105 Ga. App. 20, 22 (1961). With this in mind, an interpretation that the consolidated govern- 129 75-68 ment could receive funds only under one of the grants would also be inconsistent with the legislative intent. The charter provides that the consolidated government would be entitled to receive all state grants which either the city or the county would be authorized to receive "without diminution or loss by reason of consolidation of the County of Muscogee and City of Columbus." Charter, Sec. 8-206 (Ga. Laws 1971, Extra. Sess., pp. 2007, 2105). This Section specifically mentions the two grants for road purposes noted above. The problem becomes one of lending meaning to all portions of the charter without thwarting the intent of the General Assembly or prejudicing the other cities and counties of the state. The vehicle for doing this is contained in Section 8-203 of the charter, which provides that although the consolidated government constitutes both a city and county, where a conflict would arise in considering it as both: " ... the Urban Services District shall be considered a municipality, and the General Services District shall be considered a county." Charter, Sec. 8-203 (Ga. Laws 1971, Extra. Sess., pp. 2007, 2103-04). The authority to establish such districts is vested in the Council of the Consolidated Government. Charter, Sec. 1-103 (Ga. Laws 1971, Extra. Sess., pp. 2007, 2012). On April 10, 1973, the council adopted Ordinance Number 73-48. This ordinance established three Urban Services Districts and one General Services District. Urban Services District Number One consists "of that territory which was included in the city limits of Columbus, Georgia, immediately prior to the 1969 annexation...." In order to lend meaning to the entire charter, make it consistent with the grant statutes and not reduce the consolidated government't' share of either the municipal grants or the county grants, it is my official opinion that the County Road System should not include any street, except extensions of county roads, within the boundaries of Urban Services District Number One. The basis for this is that Urban Services District Number One closely approximates the boundaries of the municipality of Columbus at the time of consolidation and its consideration as a municipality now fulfills the intent of the General Assembly that grants be made to assist county road systems under one program and to assist urban road systems under a separate program. Thus, the Consolidated Government of Columbus, Georgia would be entitled to grants under Georgia Laws 1965, page 458, for roads within that district and for grants under the annual General Appropriations Act for roads outside that district. 75-69 130 OPINION 75-69 To: Joint Secretary, State Examining Boards July 4, 1975 Re: Application fees by the Joint Secretary, State Examining Boards, which are paid into the state treasury are nonrefundable unless there is express statutory authority to do so. This is in reply to your request for an official opinion as to whether you are authorized to refund fees imposed for applications, examinations, licenses and other matters when the person paying the fee either withdraws his application, is rejected, fails to attend or fails to pass an examination, or surrenders a license. In some instances there exists specific statutory authority to make refunds. (See attached Appendix 1.) In these cases refunds, of course, are permitted. In some instances refunds are expressly prohibited (see attached Appendix 2) and therefore cannot be made. In all the other instances the controlling statutes are silent as to whether refunds are allowable. (See attached Appendices 3, 4, and 5.) In most of these cases the fee must accompany the application. The fact that there is no provision for refund in these situations indicates that the fee is charged solely for the privilege of having the appropriate board accept and examine the application. This being the case, there is no obligation owed the applicant after accepting his fee other than to examine the application to determine the eligibility of the applicant. Under the Georgia Constitution (Ga. Const., Art. VII, Sec. II, Par. III (Ga. Code 2-5503)), fees received are required to be deposited into the state treasury. These fees cannot be withdrawn from the treasury without being appropriated by the General Assembly. (Ga. Const., Art. III, Sec. VII, Par. XI (Ga. Code 2-1911)). An appropriation cannot authorize the expenditure of money unless there is authority under the general law to expend public money for that purpose and there is no general statutory authority to refund such application fees. The only possible appropriation is contained in Ga. Laws 1974, pp. 1508, 1631, Section 43, which provides for refunds "authorized by law." This appropriation is not sufficient to give the joint secretary authority to refund fees where there is no expressed statutory authority to do so, because of the requirement that these refunds be "authorized by law." In certain instances the particular board is authorized to set fees commensurate with the cost of administering the examination or issuing the licenses. (See attached Appendix 5.) In these cases it could be argued that since the board is authorized to set the fee it is authorized to provide for refunds. However, there is no mention as to mode 131 75-69 of collection in any of these sections; thus, it can be presumed that the General Assembly intended for these fees to be paid together with the application since this is the requirement in the vast majority of situations. If this is the case, these fees only entitle the applicant to have his application examined, and, applying the rationale discussed above, would not be refundable. As to fees collected for the purpose of annual license renewals or business licenses, it has been held that the right to refund a license fee is a matter of legislative grace which may be restricted or limited. Lee v. Cunningham, 234 Ala. 639, 176 So. 477 (1937). It is well established in this state that license fees of this sort are not refundable. First National Bank of Americus v. City of Americus, 68 Ga. 119 (1880); Williams v. City Council of West Point, 68 Ga. 816 (1882); Ham v. State, 59 Ga. App. 872 (1939). Furthermore, these fees are deposited with the state treasury and the same rules which prevent the refund of examination application fees are applicable. APPENDIX 1. The following sections pertaining to professional applications expressly or implicitly provide for full or partial refunds: Ga. Laws 1965, p. 92 (Ga. Code 84-1506)-Veterinary medicine Ga. Laws 1945, p. 294 (Ga. Code 84-2128)-Professional engi- neers (refund limited to $10) Ga. Laws 1966, p. 195 (Ga. Code 84-4410)-Cosmetologists (the section uses the term "examination fee") 2. The following sections pertaining to professional applications expressly state that there will be no allowable refunds: Ga. Laws 1937, p. 280 (Ga. Code 84-2318)-Photographers Ga. Laws 1968, p. 1217 (Ga. Code 84-5006)-Polygraph opera- tors Ga. Laws 1970, p. 531 (Ga. Code 84-5504)-Clinicallaboratories Ga. Laws 1968, pp. 137, 141 (Ga. Code 84-5910)-Recreation leaders 3. The following sections pertaining to professional applications provide that the fees are to accompany the application: Ga. Code (1933) 84-312-Architects Ga. Laws 1973, p. 1450 (Ga. Code 84-409)-Barbers Code of 1933, as amended by Ga. Laws 1939, p. 252; 1958, p. 6 (Ga. Code 84-507)-Chiropractors Ga. Laws 1933, p. 115; 1956, p. 242; 1958, p. 174 (Ga. Code 84-604)-Podiatrists 75-69 132 Ga. Laws 1974, p. 1223 (Ga. Code 84-713)-Dentists Ga. Laws 1950, p. 238; 1960, p. 806 (Ga. Code 84-808)-Em- balmers Ga. Laws 1970, p. 301 (Ga. Code 84-914)-Medical doctors Code of 1933, as amended by Ga. Laws 1953, p. 114; 1960, p. 961; 1971, p. 425 (Ga. Code 84-1105)-0ptometrists Ga. Laws 1966, p. 346 (Ga. Code 84-1207)-0steopaths Ga. Laws 1973, pp. 100, 111 (Ga. Code Ann. 84-1413)-Real estate brokers Ga. Laws 1937, p. 245 (Ga. Code 84-2208)-Librarians Ga. Laws 1972, p. 388 (Ga. Code 84-3004)-Physical therapists Ga. Laws 1970, p. 511 (Ga. Code 84-3115)-Applied psycholo- gists Ga. Laws 1956, p. 148 (Ga. Code 84-3504)-Dispensing opticians Ga. Laws 1957, p. 219 (Ga. Code 84-3706)-Registered profes- sional sanitarians Ga. Laws 1949, p. 1622 (Ga. Code Ann. 84-3809)-Warm air heating contractors Ga. Laws 1971, p. 559 (Ga. Code 84-4018)-Landscape architects Ga. Laws 1968, p. 308 (Ga. Code 84-4704)-Plumbing con- tractors Ga. Laws 1970, p. 653 (Ga. Code 84-5609)-Hearing aid dealers and dispensers Ga. Laws 1968, pp. 137, 141 (Ga. Code Ann. 84-5910)-Recrea- tion administrators Ga. Laws 1951, pp. 581, 586 (Ga. Code Ann. 43-213a)-Profes- sional foresters 4. The following sections provide for annual renewal fees or fees for business licenses: Ga. Laws 1970, pp. 301, 310 (Ga. Code Ann. 84-914)-Medical doctors Code of 1933, as amended by Ga. Laws 1953, p. 114; 1960, p. 961; 1971, p. 425 (Ga. Code 84-1105)-0ptometrists Ga. Laws 1939, p. 337 (Ga. Code 84-2502)-Junk dealers Ga. Laws 1974, pp. 567, 570 (Ga. Code Ann. 84-4104)-Private employment agencies Ga. Laws 1966, p. 398 (Ga. Code 84-4505)-Preneed funeral services contractors Ga. Laws 1966, p. 471; 1974, pp. 392, 393 (Ga. Code Ann. 84-4609)-Motor vehicle parts dealers Ga. Laws 1973, pp. 4, 6 (Ga. Code Ann. 84-4805)-Dealer or manufacturer of mobile homes Ga. Laws 1968, p. 1143; 1970, pp. 573, 576 (Ga. Code Ann. 84-4904)-Nursing homes 133 75-70 Ga. Laws 1969, p. 242 (Ga. Code 84-5111)-Cemeteries Ga. Laws 1969, p. 561 (Ga. Code 84-5304)-Insurance premium finance companies Ga. Laws 1973, p. 100; 1974, pp. 379, 380 (Ga. Code Ann. 84-1412)-Real estate brokers Ga. Laws 1973, pp. 260, 262 (Ga. Code Ann. 84-1508)-Veteri- nary medicine Ga. Laws 1972, pp. 222, 229 (Ga. Code Ann. 84-2133, 84-2134) -Land surveyors 5. The following sections provide that the issuing board can set the fees but do not specify the mode of collection of such fees: Ga. Laws 1974, pp. 496, 497 (Ga. Code Ann. 84-1007)-Nurses Ga. Laws 1974, p. 494 (Ga. Code Ann. 84-1023)-Practical nurses Ga. Laws 1972, pp. 388,395 (Ga. Code Ann. 84-3019)-Physical therapists Ga. Laws 1971, pp. 583, 588 (Ga. Code Ann. 84-5714)-Electrical contractors OPINION 75-70 To: Director, Fiscal Division, Department of Administrative Services July 7, 1975 Re: Secretaries employed by superior court judges and district attorneys pursuant to Section 3 of Ga. Laws 1975, p. 1506, who are designated as county employees and paid by the county on a reimbursement basis from the Department of Administrative Services, do not become members of the Employees Retirement System; social security reports and remittances on behalf of these secretaries should be made by the counties within which they are employed, not by the Department of Administrative Services. This responds to your request for an opinion on the interpretation of Ga. Laws 1975, Act 710, p. 1506, providing for the employment and compensation of secretaries for superior court judges and district attorneys and providing that certain of these secretaries must become members of the Employees Retirement System (ERS). You have asked two questions with regard to Act 710 which will be answered in the order posed. 1. Does the Act require those secretaries hired as provided by Section 3 to be members of the Employees Retirement System? 75-70 134 Act 710 is composed of seven Sections, some irrelevant to/ your questions. The first three of these amend Ga. Laws 1957, p. 273 et seq., as amended, particularly by Ga. Laws 1972, p. 617 et seq., so as to authorize the employment and compensation of secretaries for superior court judges and district attorneys. Section 1 (Ga. Code Ann. 24-2631) specifically authorizes superior court judges to employ a secretary who shall be an employee of the judicial branch of State Government and shall be directly paid by the Department of Administrative Services (DOAS) from state funds. Section 2 (Ga. Code Ann. 24-2931), by identical language, authorizes the employment by district attorneys of a state-paid secretary. Under both Sections, DOAS also pays, on behalf of these secretaries, the employer's contributions required by the fedeml Social Security Act, 49 Stat. 620 et seq., as amended. Section 3 of the Act, however, reads in relevant part as follows: "In lieu of hiring a secretary under the provisions of (Sections 1 or 2) of this Act, each superior court judge and district attorney, with the written consent of the governing authority of any county or counties within his judicial circuit, may employ a secretary, who shall be an employee of the county which pays the compensation of such secretary and in which the governing authority has given its consent to compensate such secretary. ... The Director of the Fiscal Division of the Department of Administrative Services shall reimburse the county or counties paying such compensation, from funds appropriated or otherwise available for the operation of the superior courts, for the compensation paid to such secretary plus any employer contribution paid for such secretary under the (federal Social Security Act, 49 Stat. 620 et seq., as amended) . . . ." (Parenthetical matter and emphasis added.) Ga. Code Ann. 24-2632. Previously, I have opined that certain secretaries of superior court judges and district attorneys, employed pursuant to Ga. Laws 1972, p. 617 et seq., may be paid by the counties within which they are employed, with DOAS reimbursing the counties for the salaries paid to the secretaries. Op. Att'y Gen. 72-104. You advise that, in actual fact and for accounting purposes, these secretaries are considered as county employees and are distinguished from state-paid secretaries as have been previously authorized by law and as are authorized by Act 710. You advise further that certain county secretaries for superior court judges and district attorneys, the salaries of whom are reimbursed the counties by DOAS, are currently eligible for their particular county's employee's retirement program, and if these county secretaries are required to become members of ERS, they can no longer participate in the various county retirement programs. 135 75-70 Section 5 of Act 710 amends the ERS Act, Ga. Laws 1949, p. 138 et seq., as amended. This section reads in pertinent part as follows: "Each secretary employed by a judge of the superior court or a district attorney under the provisions of an Act fixing the salaries of the judges of the superior courts, approved March 7, 1957 (Ga. Laws 1957, p. 273), as the same may now or hereafter be amended, . . . shall be a member of the Employees Retirement System of Georgia, as established by this Act, with a commencement date of July 1, 1975...." Ga. Code Ann. 40-2503 (16). The interpretation of any statute has, as its goal, the determination of the intent of the General Assembly. Ga. Code Ann. 102-102 (9); Gazan v. Heery, 183 Ga. 30 (1936). Any statute should be interpreted in view of all of its language to find this intent and effectuate the true legislative purpose of the Act. Lucas v. Smith, 201 Ga. 834 (1947); Freeman v. Woodmen of the World Life Ins. Society, 200 Ga. 1 (1945). In attempting to determine the real legislative purpose of Act 710, it is persuasive to me that, originally introduced as House Bill 268, this Act did not contain the language of Section 3, quoted earlier, which allows judges and district attorneys to employ secretaries who shall be county employees. House Bill268 contained the Section 1 and 2language pertaining to state-paid secretaries, and then followed those Sections with the language quoted from Section 5 of Act 710 which placed those secretaries under ERS. Section 3 of the Act (authorizing county secretaries in lieu of directly state-paid secretaries) was added by later Senate amendment. However, no change was made in the language of Section 5, which seemingly had been placed in House Bill268 (Ga. Laws 1975, p. 1506) to apply to directly state-paid secretaries as the bill was originally introduced. The legislative history of an Act is always a valid concern in statutory interpretation. See Acree v. State, 122 Ga. 144 (1904). The intent of the General Assembly in Act 710, in my judgment, was to provide superior court judges and district attorneys with adequate secretarial assistance so their official duties could be accomplished efficiently without undue clerical problems. Certainly, it is reasonable that the General Assembly did not intend for this Act to penalize certain secretaries by forcing their removal from county retirement programs. See Op. Att'y Gen. 72-104. In view of what I perceive as the real purpose of Act 710, and considering its legislative history, I am impelled to the opinion that secretaries employed by superior court judges and district attorneys pursuant to Section 3 of Ga. Laws 1975, Act 710, who are designated as county employees and paid by the county on a reimbursement basis from DOAS, do not become members of the ERS. 75-71 136 2. Does the Act require the Director of the Fiscal Division of the Department of Administrative Services to report those secretaries hired as provided by Section 3 for social security purposes even though the county is handling the employee contribution and the Act specifies that they shall be employees of the county? As you point out in your question, Section 3 of Act 710 designates secretaries of superior court judges and district attorneys employed pursuant to Section 3 as county employees. Their salaries plus the employer's social security contributions are paid by the counties on a reimbursement basis from DOAS. Apparently, the counties will collect the employee's social security deductions. You advise that numerous accounting and bookkeeping problems will result if the counties make the social security deductions and keep the social security records on these "Section 3" secretaries, yet DOAS is required to "report" them and remit to ERS their social security contributions. Aside from these accounting problems, however, it is clear to me that since these secretaries are county employees and will actually be paid by the counties on a reimbursement basis from DOAS, the counties should be responsible for making the appropriate withholdings, reports and remittances of social security contributions to ERS. Accordingly, based upon the foregoing, it is my opinion that Act 710 does not require DOAS to report these county secretaries to ERS for social security purposes. That responsibility more appropriately lies with the various counties which have authorized the employment of the "Section 3" secretaries and have the custody and control of the social security records for these secretaries. OPINION 75-71 To: State Superintendent of Schools July 8, 1975 Re: Section 16 of the 1975 Appropriations Act (Ga. Laws 1975, pp. 1333, 1361) does not direct the State Board of Education to transmit an amount of up to $150,000 to the Charlton County Board of Education for capital outlay improvements at the St. George School without local fund contribution by Charlton County. You have requested an opinion as to the authority of the State Board of Education to transmit an amount of up to $150,000 to the Charlton County Board of Education for capital outlay improvements at the St. George School, notwithstanding the absence of local fiscal support by Charlton County. It is my understanding that certain amounts of money are appropriated each year to the State Board for dissemination 137 75-71 to local boards for capital improvement expenditures. I also understand that eligibility for these funds is predicated upon the ability and willingness of the local school boards to make local funds available for capital outlay purposes, this requirement being set forth in the Adequate Program for Education in Georgia Act, Ga. Laws 1974, pp. 1045, 1080 (Ga. Code Ann. 32-648a), and by regulations promulgated thereunder by the State Board. Appropriation for state-furnished capital outlay funds has been made in Section 16 of the 1975 Appropriations Act (Ga. Laws 1975, pp. 1333, 1361) for the 1975-76 fiscal year; however, in a concluding portion of Section 16 (at p. 1379), an additional caveat has been legislatively expressed with regard to the appropriation for these funds: "Provided, that of the above appropriation relative to Grants to School Systems for Capital Outlay purposes, an amount up to $150,000 is designated and committed to the Charlton County Board of Education for Capital Outlay improvements at the St. George School, and further provided that this amount shall be deducted from the Charlton County Capital Outlay entitlement under the Capital Outlay policies of the State Board of Education." The question has now arisen concerning Charlton County's eligibility to receive the specific $150,000 without contributing the necessary local funding support. Inasmuch as the APEG Act and regulations promulgated thereunder authorize the State Board of Education to regulate the dissemination of state funds appropriated for capital outlay, the initial problem to be addressed is whether a specific grant of up to $150,000 to Charlton County may be provided by the caveat in the 1975 Appropriations Act notwithstanding general requirements of local effort respecting local outlay funds established in the APEG Act. Obviously this issue is essentially a question of whether the general law concerning dissemination of state capital outlay funds to county boards of education may be altered by an appropriations Act. The dichotomy of appropriations Acts merely setting the maximum amounts to be utilized each year for purposes and uses previously established by general statutory law has been treated by opinions of this office on a number of occasions. See Ops. Att'y Gen. 73-152, 73-147, 73-80, and 67-189. Where general law has delineated the purposes for which expenditures may be made and granted discretion to a state agency in the nature of those expenditures, an appropriations Act may not alter or restrict those purposes or discretion, absent other general law so authorizing. Art. VII, Sec. IX, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-6201); Ga. Laws 1962, pp. 17, 19 (Ga. Code Ann. 40-402 (1) and (2)). Such alteration or 75-72 138 restriction must necessarily be effected by amending the general law. The purposes for which monies appropriated for capital outlay uses in the local school systems of this state are designated, as aforementioned, by the APEG Act, and the regulation of the distribution and expenditure of those funds is statutorily granted by the Act to the State Board of Education. There is no general law of which I am aware that delegates specific authority to the General Assembly to earmark certain amounts of such capital outlay appropriations to a certain county board for a certain capital project in derogation of the regulatory and statutory authority of the State Board of Education. Similarly, there is no general authority for the State Board to restrict the use of capital outlay funds available to a qualifying local board to a specific capital project within that county. Accordingly, it is my opinion that the caveat in Section 16 of the 1975 Appropriations Act directing that a certain amount of capital outlay funds be distributed to Charlton County by the State Board of Education attempts to substantively alter the provisions of general law governing the allocation of that appropriation, is therefore invalid, and may not restrict the discretion of the State Board in the dissemination (according to the APEG Act and State Board regulations) of any portion of the total amount appropriated for capital outlay purposes to the State Board of Education for fiscal year 1975-76. OPINION 75-72 To: Chairman, State Board of Pardons and Paroles July 9, 1975 Re: Except for the supervision of parolees and the assignment to the Department of Offender Rehabilitation for administrative purposes only, the State Board of Pardons and Paroles retains its quasi-judicial functions and powers as a result of the Executive Reorganization Act of 1972. This is written in response to your request for my opinion on the question of whether the Executive Reorganization Act of 1972, Ga. Laws 1972, p. 1015 (Ga. Code Ann. 40-3501 et seq.), except for the supervision of parolees, transferred to the Department of Offender Rehabilitation any of the Pardons and Parole Board's quasi-judicial functions and personnel who provide services integrally related to the quasi-judicial functions of the board. You list five areas of work and inquire as to whether those work areas were transferred from the 139 75-72 State Board of Pardons and Paroles to the Department of Offender Rehabilitation. As a background to your request, please refer to two earlier opinions of this office, Ops. Att'y Gen. 75-35, 72-49. Copies of those opinions are attached for your easy reference. Among other things, those opinions stated that a part of the Executive Reorganization Act of 1972, Ga. Laws 1972, pp. 1069, 1073 (Ga. Code Ann. 77-505a), continued the State Board of Pardons and Paroles with all of its quasi-judicial functions. However, that Act assigned the board to the Department of Offender Rehabilitation for administrative purposes only as defined in Section 105 of the Executive Reorganization Act of 1972 (Ga. Code Ann. 40-3505), but provided that the board still had authority to hire, supervise, and discharge its own employees which are integrally related to its quasi-judicial function. In your current request for an opinion, it appears that you are asking whether certain specified work areas or job descriptions are positions integrally related to your quasi-judicial functions. The areas of work about which you inquire are: (1) the gathering and submission of information from the field upon which the board bases its clemency decisions (Ga. Code Ann. 77-512); (2) the review of each criminal case record to be presented to the board for a clemency decision; (3) interviewing of inmates approaching parole eligibility date and the gathering of other information needed by the board at penal institu-' tions where the inmate population is large enough to want a full-time pre-parole investigator; (4) the initiation and compilation of individual criminal case records as distinguished from house-keeping records, such as personnel, accounting, pay-roll (Ga. Code Ann. 77-512, 77-522, 77-533; based on Ga. Laws 1943, p. 185, and 1953, Nov. Sess., p. 210); (5) the supervision of those work areas as set out above. While the determination of which work areas or job descriptions are integrally related to the quasi-judicial functions of the board is basically a question of fact and not of law, it readily appears that the specific work areas as set out above are integrally related to the quasi-judicial functions of the board. It is my opinion that except for the supervision of parolees (Ga. Code Ann. 77-507a; Ga. Laws 1972, pp. 1069, 1074), and the assignment of the State Board of Pardons and Paroles to the Department of Offender Rehabilitation for administrative purposes only, as proscribed by the Executive Reorganization Act of 1972, the quasi-judicial functions and powers of the State Board of Pardons and Paroles remain intact. 75-73 140 OPINION 75-73 To: Commissioner, Department of Offender Rehabilitation July 9, 1975 Re: The Department of Offender Rehabilitation may accept into the youthful offender program offenders found guilty of kidnapping where no violence or ransom was involved. This is written in response to your recent request for my opinion on the application of Code 26-1311 (kidnapping) to the Youthful Offender Act of 1972, Ga. Laws 1972, p. 592, and the Children and Youth Act, Ga. Laws 1974, p. 1455. The General Assembly in 1968 enacted Ga. Code Ann. 26-1311, Ga. Laws 1968, pp. 1249, 1282, which provides in part that: "[a] person convicted of kidnapping shall be punished by imprisonment for not less than one nor more than 20 years," and also, that a person convicted of kidnapping for ransom or of kidnapping in which the victim received bodily injury shall be punished by life imprisonment or death. In 1972, the General Assembly passed the Georgia Youthful Offender Act, Ga. Laws 1972, p. 592 (Ga. Code Ann. 77-345 to 77-360). In part, that Act provides that a person convicted of a criminal offense to which the maximum punishment provided by law is death or life imprisonment shall not be eligible for participation in the youthful offender program. The Supreme Court of Georgia considers kidnapping, kidnapping for ransom, and kidnapping in which the victim receives bodily harm to be three separate offenses. Allen v. State, 233 Ga. 200 (1974); Krist v. Caldwell, 230 Ga. 536 (1973). Because "simple" kidnapping is not punishable by death or life imprisonment, a person convicted of such kidnapping should not be excluded from the youthful offender program if he is otherwise eligible. However, because kidnapping for ransom and kidnapping where the victim kidnapped receives bodily injury are punishable by death or life imprisonment, and the Georgia Youthful Offender Act of 1972 expressly excludes persons convicted of crimes carrying that punishment, persons convicted of those crimes may not participate in the youthful offender program. The Children and Youth Act provides in part, Ga. Code Ann. 99-209 (amended by Ga. Laws 1974, p. 1455), that the Division for Children and Youth is the exclusive state agency for the acceptance and incarceration of any child under the age of 17 years except in certain specific situations; one exception provides "that any child convicted of a felony punishable by death or by confinement for life shall only be sentenced into the custody of the State Department of Offender Rehabilitation." Ga. Code Ann. 99-209 (a) (5). Thus, for the exception noted above to apply, an actual conviction of a felony 141 75-74 punishable by death or life imprisonment is necessary. Kidnapping, not being punishable by death or imprisonment for life, is not an offense which requires the child to be placed in the sole custody of the State Department of Offender Rehabilitation. Where the child is convicted of kidnapping for ransom or kidnapping in which the victim receives bodily injury, he shall only be sentenced into the custody of the Department of Offender Rehabilitation. In summary, it is my opinion that you may accept into the youthful offender program those offenders found guilty of kidnapping where no violence or ransom was involved; and those offenders under 17 years of age found guilty of kidnapping where no violence or ransom was involved need not be sentenced to the Department of Offender Rehabilitation. OPINION 75-74 To: Commissioner, Department of Transportation July 10, 1975 Re: Certain language contained in Georgia Laws 1975, pages 216, 348-49, protects the Department of Transportation's appropriations in an amount equal to the motor fuel tax revenues. By letter dated June 9, 1975 you have requested my official opinion upon certain language contained in the 1975 amendment (Ga. Laws 1975, p. 216) to the General Appropriations Act for Fiscal Year 1975 (Ga. Laws 1974, p. 1508). The language reads as follows: "Appropriations for the foregoing activities [planning and construction, motor vehicle equipment purchases, maintenance and betterments, authorities, facilities and equipment, assistance to counties, tollway facilities, and administration] include an appropriation that shall be utilized for the specific purpose and amounts as shown below: Maintenance and Betterments Resurfacing Program ..................... $11,091,345.88 This appropriation shall be accounted for separately from all other appropriations to the Department of Transportation, and shall be in addition to appropriations of an amount equivalent to motor fuel tax revenue required under Article VII, Section IX, Paragraph IV of the State Constitution." Ga. Laws 1975, pp. 216, 348-49 (House Bill 169, page 139, lines 2-12) [Matter in brackets added]. 75-74 142 You inquire specifically whether this language protects the $11,091,345.88 from lapsing if the Department of Transportation's financial records indicate that this amount has been obligated by contracts executed prior to July 1, 1975, notwithstanding the fact that some amounts appropriated pursuant to Article VII, Section IX, Paragraph IV of the Georgia Constitution (Ga. Code Ann. 2-6204) may remain unobligated in a like appropriation category. Of a more general nature, you inquire as to whether amounts appropriated using similar language in future general appropriations bills would be protected from reduction should the motor fuel tax revenues be in excess of the amount estimated in the appropriations bill. It is my official opinion that the answer to both questions is in the affirmative. A discussion of the reasoning behind this decision is set out below in the order of the questions presented. Generally, unexpended appropriations will lapse at the end of the fiscal year unless the appropriation is constitutionally mandated or the expenditure of the appropriation has been contractually obligated. Ga. Const., Art. VII, Sec. IX, Par. II (c) (Ga. Code Ann. 2-6202 (c)). One of the mandatory appropriations concerns motor fuel tax revenues. An amount equal to the motor fuel tax revenues collected in one fiscal year, less certain deductions, is constitutionally appropriated for all activities incident to providing and maintaining an adequate system of public roads and bridges in the following fiscal year. Ga. Const., Art. VII, Sec. IX, Par. IV (b) (Ga. Code Ann. 2-6204 (b)). Although this mandatory appropriation is thus the minimum to be appropriated for those activities, the General Assembly's appropriating a greater sum is not precluded. Id. In the instant situation the General Assembly made its intent very clear that the appropriation involved was one in excess of the constitutional mandate. The appropriation of the amount of $11,091,345.88 for the purpose of "Maintenance and Betterments, Resurfacing Program" is specifically described to be "in addition to appropriations of an amount equivalent to motor fuel tax revenue...."Ga. Laws 1975, pp. 216, 348-49 (H.B. 169, p. 139, lines 9 and 10). The item of "Maintenance and Betterments, Resurfacing Program" not being a constitutionally mandated appropriation, any portion of the $11,091,345.88 not shown by the department's financial records to have been expended or contractually obligated prior to July 1, 1975 would lapse. However, it is my official opinion that any portion of the constitutional appropriation remaining unobligated for a like appropriation category would not lapse. Regarding your second question, certain language is included in each appropriations bill providing that at the end of the fiscal year the fiscal officers of the state are to meet and determine the amount of motor fuel taxes collected during the just closed fiscal year. The full amount 143 75-75 thereof is to be entered on the records as being appropriated to the Department of Transportation. See, e.g., Ga. Laws 1973, pp. 1353, 1390; Ga. Laws 1974, pp. 1508, 1622-23; Ga. Laws 1975, pp. 216, 345. Thus, each appropriations bill appropriates the full amount of the motor fuel tax revenue to the department, but recognizes that the estimates shown as specific amounts in the bill may be low. If the amount actually collected is in excess of these estimates, budgets for activities financed by the motor fuel tax, including maintenance and betterments, may be adjusted for any additional appropriations. Ga. Laws 1975, pp. 216, 345 (H.B. 169, p. 136, line 10). The amount appropriated using the language quoted at the outset is clearly "in addition to appropriations of an amount equivalent to motor fuel tax revenues...." Ga. Laws 1975, pp. 216, 348-49 (H.B. 169, p. 139, lines 9 and 10). Thus, it is my official opinion that the department would be entitled to the full amount of these specifically appropriated funds in addition to its appropriation of an amount equal to the motor fuel tax revenues. OPINION 75-75 To: Commissioner, Georgia Department of Human Resources July 10, 1975 Re: Permanent, classified employees holding positions of a class which is one of a series of related classes in the competitive area of a reduction in force may, under certain conditions, have greater employment retention rights in a reduction in force than such employees holding positions of a class which is not one of a series of related classes. This is in response to your recent request for my official opinion as to the employment retention rights of certain types of classified employees in a reduction in force. Specifically your question, as I understand it, is: What is the difference in a reduction in force between the retention rights of a permanent, classified employee filling a position of a class which is one of a series of related classes and the retention rights of such an employee filling a position of a class which is not one of a series of related classes? The procedure to be followed in the implementation of a reduction in force is set forth in Regulation D of the Rules and Regulations of the State Merit System of Personnel Administration (hereinafter "rules"). Rules Sections 10.300 and 12.800. Section D.300 of Regulation D provides as follows: 75-76 144 "Within a competitive area competition shall be among all employees holding positions of a particular class. If the reduction in force is to apply to more than one class, each class shall be treated separately, except that where reductions are to be made in a class of positions which is one of a series of related classes (e.g., Clerk, Clerk I, Clerk II, and Clerk III), permanent employees who are to be laid off from a higher class in the series if they are available for positions of a lower class shall be considered as competing with employees of the lower class; and, if they possess sufficient retention credits to entitle them to positions in that class, shall then be involuntarily demoted to such positions." In that the foregoing section provides that " ... each class shall be treated separately ..." except for classes which are in a series of related classes, it follows that a permanent, classified employee holding a position of a particular class (not in a related series) in the competitive area is separated from state employment except as he is successful in competition for any positions of such class remaining in the co:mpetitive area after the reduction in force. The above quoted section of Regulation D provides additional rights, as regards retention, to a permanent, classified employee holding a position of a class which is one of a series of related classes. Upon being unsuccessful in competition for any positions of his original class remaining in the competitive area after the reduction in force, if such e:mployee is available for a position in a lower class within the series of related classes, he shall then compete with the incumbents of the lower class positions in the competitive area. If the employee in question has sufficient retention credits to entitle him to a lower class position in the competitive area, he shall then be involuntarily demoted to such lower class. For the reasons stated above, it is my official opinion that a permanent, classified employee holding a position of a particular class in the competitive area of a reduction in force is separated from state employment except as he is successful in competition for any positions of such class remaining in the competitive area after the reduction in force. However, if such class is one of a series of related classes within the competitive area, the employee, under certain conditions, is involuntarily demoted to a lower class in such series. OPINION 75-76 To: Chairman, Georgia Public Service Commission July 11, 1975 Re: Public Service Commission; creation of Consumers' Utility Counsel; procedure for satisfying notice requirements. 145 75-76 This is in response to your letter of June 4, 1975, in which you requested my opinion on several questions regarding the interpretation of Ga. Laws 1975, p. 372 (Ga. Code Ch. 93-3A), Consumers' Utility Counsel. I have repeated your questions below, together with my opinion on each question. All the questions involved an interpretation or application of Ga. Code Ann. 93-303a (a). That section states: "In addition to other requirements of service and notice now imposed by law, a copy of any application, complaint, or notice to or issued by the Georgia Public Service Commission shall also be served on the Consumers' Utility Counsel. The commission shall not proceed to hear or determine any such petition, complaint, or proceeding in which the Public Counsel is entitled to appear unless it shall affirmatively appear that the Public Counsel was given at least ten days' written notice thereof, unless such notice is affirmatively waived in writing or the Public Counsel appears and specifically waives such notice." (Emphasis added.) In construing this section, the language of Ga. Code 93-303a (a) provides guidelines to answer the instant question. Georgia Code 102-102 (1) states as follows in a pertinent part: "The ordinary signification shall be applied to all words...." Furthermore, Ga. Code 93-501 governs the procedure to be followed in matters before the Public Service Commission and provides as follows: "The Public Service Commission shall prescribe the rules of procedure ... in all matters that may come before it...."Amended by Ga. Laws 1945, p. 356. Thus, in the absence of statutory specificity establishing procedures, it is clear that the Public Service Commission may establish rules of procedure and pleadings for all matters coming before it. Question 1: By whom is the notice to the Consumers' Utility Counsel to be given-by the applicant, complainant, or the commission? Applying the above-mentioned principles to the first sentence of Ga. Code 93-303a (a), it is my opinion that the applicant or complainant is required to serve on the Public Counsel a copy of any application, complaint, or notice filed by the applicant or complainant with the Public Service Commission and that the Public Service Commission is likewise required to serve a copy on the Public Counsel whenever the commission issues a notice. The commission is not otherwise required to serve notice on the Public Counsel unless the commis- 75-76 146 sion desires to act on an application or complaint which has not been served upon the Public Counsel by the applicant or complainant. In that event, but only in that event, the commission would be required to give the Public Counsel notice of the application or complaint. Question 2: If notice is to be given by the applicant or the complainant, would a commission rule requiring affidavit (or certificate of service) as to such service to accompany all applications or complaint filings suffice, or must the commission affirmatively determine that such notice was received by the Consumers' Utility Counsel? It is my opinion that the Public Service Commission need not affirmatively determine whether such notice was received by the Public Counsel. The commission must determine only that from its records it affirmatively appears that the required service has been made. Therefore, proof of service by certificate of an applicant or complainant, or by written admission, or by affidavit, or by other proof satisfactory to the Public Service Commission, will satisfy the notice requirement of Ga. Code 93-303a (a), and the commission may adopt a rule to that effect. Question 3: If notice is to be given by the applicant, would its filing with the Consumers' Utility Counsel of a tariff containing revised rate or service suffice as adequate notice or must such tariff filing be accompanied by explanation of the proposed revision? It is my opinion that an applicant's service of a copy of its proposed tariff containing revised rates or service on the Public Counsel will serve as adequate notice, and, thus, satisfy the notice requirements of Ga. Code 93-303a (a). That statute requires service of "a copy of any application, complaint or notice." It does not require service of an explanation of an application. Question 4: If notice is to be given by the commission, in what form must the notice be given? The Public Service Commission is required to serve the Public Counsel only when it issues a notice or when it desires to act upon a complaint or application which, contrary to the statute, has not been served upon the Public Counsel by the complainant or applicant. In either case, the commission is not required to do any more than serve a copy of the notice issued by the commission, or of the complainant or applicant in which it desires to act, on the Public Counsel. It is not required to serve any more than that. Proof of such service may be made by a certificate of the commission or by written admission or by affidavit. 147 75-77 Question 5: If notice is to be given by the commission, must notice be given of complaints received over the telephone or through personal visits? No. It is my opinion that the commission is required to serve notice on the Public Counsel only when the commission issues its own notice or when it desires to act upon an application or complaint as to which the applicant or complainant must satisfy the notice requirement of Ga. Code 93-303a (a) but has failed to do so. Since the statutory requirements cannot be intelligibly applied to complaints made orally to the commission, the complainant is not required to make service and the commission may act without notice to the Public Counsel. Question 6: Must the commission obtain the "waiver" of the Consumers' Utility Counsel as to the 10 days' notice provision before it can act on complaints of an emergency nature? Yes. The commission should obtain the "waiver" of the Public Counsel as to the 10 days' notice provision before acting on complaints of an emergency nature. Question 7: Must the commission give the Consumers' Utility Counsel 10 days' notice of its executive sessions (at which formal decisions are made)? No. Georgia Code 93-303a (a) states as follows in a pertinent part: "The commission shall not proceed to hear or determine any such petition, complaint, or proceeding in which the Public Counsel is entitled to appear...." Under this section all that is required is that before the commission proceeds to hear or determine any such petition, complaint or proceeding in which the Public Counsel is entitled to appear, the commission or petitioner give the Public Counsel 10 days' notice of the pendency of the petition or complaint. Moreover, the commission's executive sessions are not proceedings in which the Public Counsel, or any other party, is entitled to appear. OPINION 75-77 To: Secretary of State July 16, 1975 Re: A married woman whose husband has his legal residence in Georgia may register to vote in this state even though she is not physically domiciled within the state. This is in response to your request for an opinion on whether a married woman may register to vote in Georgia if her husband is a legal 75-78 148 resident of this state even though she does not physically reside here. For the following reasons it is my opinion that a married woman may register to vote in Georgia if her husband is a legal resident even if she has not physically resided here because her legal residence is the same as her husband's by operation of law. Georgia Code 34-602 (Ga. Laws 1964, Extra. Sess., p. 26, as amended) requires that a person be a citizen of Georgia in order to be eligible to vote. Georgia Code (1933) 79-201 provides that all United States citizens who reside in Georgia are citizens of Georgia. "Residence" means "domicile" (Ga. Code 34-103 (aa) (Ga. Laws 1964, Extra. Sess., pp. 26, 28)) but the domicile of a married woman, by operation of law, is oridinarily that of her husband. Ga. Code (1933) 79-403. It is thus unnecessary for a married woman to establish a domicile in the state independently of her husband. If he is a legal resident, then she is also a legal resident and eligible to register in Georgia. The foregoing is not altered by the Judgment of the United States District Court for the Northern District of Georgia in Kane v. Fortson, C.A. No. 19093 (N.D. Ga. 1973), with which you are familiar. That decision permits women to establish a separate domicile for voting purposes, if they choose to do so. The Georgia boards of registrars were enjoined in that case from " ... enforcing Georgia Code 79-403, 79-407 and 34-632 so as to deny a married woman who is domiciled in Georgia independent of the operation of 79-403 the right to register and vote in Georgia." The decision thus simply permits women, physically domiciled in Georgia, to establish a residence here for voting purposes but does not otherwise abrogate Ga. Code 79-403. Therefore, unless a woman chooses to establish a voting residence separate from that of her husband's, her residence is legally the same as his even though she has never been physically present within the state. For these reasons, it is my official opinion that a married woman is eligible to register and to vote in Georgia if this is her husband's state of legal residence. OPINION 75-78 To: Commissioner, Department of Offender Rehabilitation July 16, 1975 Re: Questions concerning commencement of a sentence for a felon under 17 years of age. 149 75-78 This is written in response to your request dated June 20, 1975 for my opinion concerning the computation of a sentence where custody of a felon is transferred by court order from the Department of Human Resources to the Department of Offender Rehabilitation. In your request you raise three questions, which are: (1) When did this sentence begin? (2) Is good time credit available in this case? (3) May a parole eligibility date be established, and, if so, when? In the specific case with which you are concerned a youth 16 years of age was found guilty in superior court of attempted rape. The judge sentenced him to be confined by the Department of Human Resources for an indefinite term. Shortly before the youth became 17 years of age, the judge issued an order which transferred the youth to the Department of Offender Rehabilitation to be confined from June 11, 1975, to June 11, 1979. On June 11, 1975, the prisoner became 17 years of age. Ga. Code Ann. 27-2505 (Ga. Laws 1931, p. 165; 1965, p. 230) provides that: "(I)t shall be the duty of the several judges, in the imposition of sentence for violation of the penal laws, to specify that the term of service under such sentence shall be computed as from the date of sentence, provided the defendant is confined in jail or otherwise incarcerated...." Ga. Code Ann. 99-209 (a) (5) (amended by Ga. Laws 1974, p. 1455) is applicable where a person under 17 years of age is convicted in a superior court of a noncapital felony. If such a person is sentenced to confinement, not under the Youthful Offender Act, he must be incarcerated under the custody of the Department of Human Resources until he reaches 17 years of age. It should be noted that Ga. Code Ann. 99-209 uses the term incarceration to describe a person placed under the custody of the Department of Human Resources pursuant to the provisions of that section. 'Vhen a person under the age of 17 years is convicted of a noncapital felony and is sentenced to confinement under the provisions of Ga. Code Ann. 99-209, Ga. Code Ann. 99-222 (Ga. Laws 1969, p. 996) becomes operative and grants the court continuing "jurisdiction to change the form of the commitment or transfer the custody of said child to some other institution." However, this should not be construed to mean that the judge is allowed to subject the prisoner to more than one sentence; rather, he is granted authority to modify the sentence. Therefore, it is my opinion that the sentence in this case began to run when the youth was placed under the custody of the Department of Human Resources. Because such confinement belongs in the "otherwise incarcerated" category of Ga. Code Ann. 27-2505 and the sentence has been pronounced (although subject 75-78 150 to modification), it should be computed from the date incarceration first began. Your second question asks whether the youth is to receive credit for good time on the portion of his sentence spent in the custody of the Department of Human Resources. Ga. Code Ann. 77-320 (Ga. Laws 1956, p. 161, as amended) provides that the State Board of Corrections shall compute good-time allowances for prisoners when it receives them into institutions under its jurisdiction and also that wardens of institutions under its authority shall present to the State Board of Corrections the behavior records of prisoners so that the board may deduct or reinstate good-time allowances in appropriate situations. There are no similar statutory provisions for good-time allowances for those incarcerated under the custody of the Department of Human Resources. Ga. Code Ann. 77-320 is not applicable to the Department of Human Resources for two reasons. First, that statute places authority only in the State Board of Corrections to compute good-time allowances. This is to be computed at the time a person is received into the custody of the State Board of Corrections. Second, that statute makes provision for determinations to be made concerning deductions or reinstatements of good time only by the State Board of Corrections; thus, if Ga. Code Ann. 77-320 were held to allow good-time credits for the time a person is under the custody of the Department of Human Resources, there would be no corresponding method by which to determine whether good-time credits could be deducted for any type of misbehavior. The complete absence of any expression from the General Assembly on any of those issues just mentioned indicates that the General Assembly did not intend good-time credits to extend to the time a person serves under the Department of Human Resources. Therefore, it is my opinion that the time spent by a felon incarcerated under the Department of Human Resources is not to be considered by the State Board of Corrections when computing goodtime allowances; rather, good time should be computed from the date the felon is received by an institution under the State Board of Corrections' jurisdiction. Your third question is whether or not a parole eligibility date could be established, and if so, when. Ga. Code Ann. 77-525 (Ga. Laws 1943, p. 185, as amended) gives the State Board of Pardons and Paroles authority to adopt rules and regulations that are not inconsistent with other provisions of Ga. Code Ann. Chapter 77-5. The question of determining the parole eligibility date for a felon who is first incarcerated by the Department of Human Resources and then transferred to the Department of Offender Rehabilitation does not appear to be specifically dealt with, and, therefore, in my opinion should be handled under the general provisions of Ga. Code Ann. 77-525. One provision of Ga. Code Ann. 77-525 states that: "an inmate 151 75-79 serving a felony sentence or felony sentences shall only be eligible for consideration for parole after the expiration of nine months of his sentence, or one-third of the time of such sentences, whichever is greater...." Because the sentence begins running from the time of incarceration under the Department of Human Resources, as explained above, the prisoner must serve one-third of the time to which he has been sentenced, including the time he has spent in the custody of the Department of Human Resources. OPINION 75-79 To: Secretary of State, Commissioner of Securities July 18, 1975 Re: The Georgia Securities Act of 1973, as amended, does not vest the Commissioner of Securities with authority to refund the registration fees required as part of the application for registration as a dealer, limited dealer, salesman, or limited salesman by Section 3 should an applicant withdraw his application. Your letter of July 14, 1975 requests an opinion from this office as to whether the Georgia Securities Act of 1973, as amended/ gives you the authority to refund the registration fees paid by an investment corporation that filed applications for registration as a general dealer of securities and for the registration of three salesmen and that subsequently withdrew these applications. Section 3 of the Act describes the procedure that must be followed by any dealer, limited dealer, salesman or limited salesman who desires to be registered to sell securities in Georgia. It provides in Section 3 (b) that such parties must make an application for registration with the Commissioner of Securities and that, as to dealers and limited dealers, "[T]here shall be filed with such application ... payment of the prescribed registration fee." It is further provided in Section 3 (c) that, with regard to applications for registration by salesmen and limited salesmen, "[T]here shall be filed with such application payment of the prescribed registration fee." Registration fees are statutorily set in Section 3 (f) of the Act. No provision is anywhere made in Section 3, dealing with the registration of dealers and salesmen, for the refund of registration fees should the applications subsequently be withdrawn for any reason. It is rather to be inferred that the General Assembly intended the fees to be part of the application process without which the application for registration could not be considered complete and hence could not be acted upon. 1 Acts 1973, p. 1202, as amended (Ga. Code Ann. Title 97). 75-80 152 Where the legislature intended a refund of fees to be made it specifically provided for it. For example, the General Assembly provided in Section 6 (a) of the Act for a refund of part of the fee, consisting of the maximum aggregate offering price at which securities are to be offered for sale in Georgia, for registration of securities, where such securities are registered under Section 5 (a), (c), and (d) of the Act. This office has expressed the opinion that the $250 filing fee required by Section 9 (e) for applications seeking a transactional exemption from the requirements of Section 5 of the Act is nonrefundable. Op. Att'y Gen. 74-150. The rationale is that since the legislature did provide for a refund with respect to Section 6 (a) registrations and did not provide for a refund for Section 9 (e) applications, it did not intend a refund to be implied or else it would have explicitly provided for one. Following the reasoning of Op. Att'y Gen. 74-150 then, since no refund provision exists with respect to Section 3 applications for registration by dealers, limited dealers, salesmen, and limited salesmen, it follows that none was intended by the General Assembly and hence that no refund provision should be implied. Moreover, it is manifest from Section 3 that the registration fee is an indispensable part of the application itself without which the application is incomplete. As such, the registration fee should not be considered severable and refundable should an applicant later change his mind and withdraw his application. Therefore, it is my official opinion that the Act does not vest the Commissioner of Securities with authority to refund the registration fees required as part of the application for registration as a dealer, limited dealer, salesman, or limited salesman by Section 3 should an applicant withdraw his application. OPINION 75-80 To: Director, Fiscal Division, Department of Administrative Services July 23, 1975 Re: All superior court judges and district attorneys, who became such for the first time after .June 30, 1968 and are currently serving in such capacities, are required to belong and contribute to the Trial Judges and Solicitors Retirement Fund. This is in response to your recent letter requesting my opinion on the interpretation of a portion of the Act creating the Trial Judges and Solicitors Retirement Fund (Trial Judges). Ga. Laws 1968, p. 259 et seq., as amended (Ga. Code Ann. Ch. 78-13). As I understand it, you have received an inquiry from a member of 153 75-80 Trial Judges which prompted your opmwn request. Your specific question is whether it is possible for a superior court judge or district attorney, while continuing to serve in such capacity, to cease contributing to Trial Judges and receive a refund of prior contributions to the fund. The Act creating Trial Judges states explicitly in Section 8 (a) that: "Any person (with one exception not relevant here) becoming a superior court judge or solicitor general (district attorney) for the first time, ... after June 30, 1968, shall be a member of the Trial Judges and Solicitors Retirement Fund, and shall begin making employee contributions into said fund as provided for hereinafter." (Parenthetical matter and emphasis added.) Ga. Laws 1968, pp. 259, 263; Ga. Code Ann. 78-1308. (The title "solicitor general" was changed to "district attorney" by Ga. Laws 1969, p. 929; Ga. Code Ann. 24-2930.) The authority and direction for the deduction of monthly employee contributions to the fund is found in Section 11 of the Act, as amended, and reads in pertinent part as follows : "The basis for employer and employee contributions to said fund with respect to judges of the superior courts and district attorneys shall be the salaries from state funds provided by law for such judges and district attorneys, and the State Treasurer (Fiscal Division of the Department of Administrative Services) is hereby authorized and directed to deduct monthly from such salaries ten percent of such amount to cover employee contributions to the fund...." (Parenthetical matter and emphasis added.) Ga. Laws 1972, pp. 541-2; Ga. Code Ann. 78-1311 (a). (The functions of the State Treasurer were transferred to the Fiscal Division of the Department of Administrative Services by the Executive Reorganization Act of 1972. Ga. Laws 1972, pp. 1015, 1038; Ga. Code Ann. 40-3557.) The referenced sections of the Act are couched in obligatory and mandatory language. Superior court judges and district attorneys who become such for the first time after June 30, 1968 shall become members of the fund and shall make employee contributions to the fund. The Fiscal Division of the Department of Administrative Services is directed to make the 10 percent employee contribution deduction from the state salary of such judges and district attorneys. A basic rule of statutory interpretation holds that where the language of a statute is clear and positive, and does not lead to an unreasonable result, courts should be governed by the obvious meaning and import of the statute's terms. Hopkins v. Fla. Central and Peninsular R.R. Co., 97 Ga. 107 (1895); Ezekiel v. Dixon, 3 Ga. 146 (1847). An 75-81 154 examination of the language of the Act shows its reasonable interpretation, as applicable to eligible superior court judges and district attorneys, to be that the General Assembly intended mandatory inclusion and contributions. See, generally, Barton v. Atkinson, 228 Ga. 733 (1972). The word shall, except in unusual situations involving the general public interest or good, denotes a command or mandate. Ga. Code 102-103; Georgia, Florida & Alabama Ry. Co. v. Sasser, 130 Ga. 394 (1908). Additionally, my office has previously stated in an unofficial opinion that judges of inferior courts as defined by the Act are mandatorily included within its provisions. Op. Att'y Gen. U75-21. Therefore, based on the foregoing authorities, it is my official opinion that all superior court judges and district attorneys, who became such for the first time after June 30, 1968, and are currently serving in such capacities, are required to belong and contribute to the Trial Judges and Solicitors Retirement Fund. OPINION 75-81 To: Adjutant General, Department of Defense July 24, 1975 Re: The positions of Assistant Adjutant General for Army, Assistant Adjutant General for Air and Deputy Director for Civil Defense, being specifically excluded by law from the classified service, are not counted against the five discretionary positions which the Adjutant General may designate for inclusion in the unclassified service. I write in response to your letter of July 3, 1975, requesting my opinion as to the application of certain provisions of Ga. Laws 1975, p. 79 (Ga. Code Ann. Ch. 40-22) (hereinafter: the Act), to the Department of Defense. As you pointed out, by statute, the Department of Defense is divided into the Military Division (Ga. Laws 1955, pp. 10, 23; Ga. Code Ann. 86-202) and a Civil Defense Division (Ga. Laws 1951, pp. 224, 226, as amended; Ga. Code Ann. 86-1804). Furthermore, you indicated that the Military Division by statute is to have an Assistant Adjutant General for Army and an Assistant Adjutant General for Air (Ga. Code Ann. 86-206) and that the Civil Defense Division is to have a Deputy Director of Civil Defense (Ga. Code Ann. 86-1804). As I understand your request, the following questions are raised as to the provisions of Ga. Laws 1975, p. 79: (1) Are the Assistant Adjutants General for Army and Air and the Deputy Director of Civil Defense statutorily declared to be in the unclassified service? 155 75-81 (2) How many discretionary positions are available for your inclusion in the unclassified service pursuant to the provisions of Section 2 (a) (2) (xiii) of the Act? Before analyzing the provisions of the Act, a study of the three positions in question would be in order. The pertinent statutory provisions concerning the Assistant Adjutants General are as follows: "The Governor shall appoint an Assistant Adjutant General for Army and an Assistant Adjutant General for Air, to assist the Adjutant General in the discharge and performance of his duties. . . . Each of said officers shall receive the pay and allowances of a Brigadier General as now or hereafter provided by law for an officer of equivalent rank in the regular armed forces of the United States. In the event of a vacancy in the office of the Adjutant General, and until his successor is appointed and qualified as provided by law, the Assistant Adjutant General, senior in rank, shall perform the duties required of the Adjutant General in connection with the Military Division, but he shall perform no duties in connection with the Civil Defense Division as provided by law. Assistant Adjutants General shall hold no other state office, and they shall serve at the pleasure of the Governor." Ga. Code Ann. 86-206. As to the Deputy Director of Civil Defense, it is provided that: "(b) The Governor shall appoint a Deputy Director of Civil Defense to assist the Director (Adjutant General) in the discharge and performance of his duties and in the event of a temporary vacancy in the office of the Director of Civil Defense, or in his absence or disability for any reason, the Deputy shall perform all the duties required of the Director. He shall hold office during the pleasure of the Governor who shall fix his compensation." Ga. Code Ann. 86-1804. (Parenthetical matter added.) Accordingly, all three: (1) are appointed by the Governor; (2) receive compensation in a manner prescribed by statute; and (3) serve at the pleasure of the Governor. Georgia Laws 1975, pp. 79, 81 (Ga. Code Ann. 40-2202), provides in part: "'Unclassified service' means the following officers and employees excluded from the classified service by this Act: ... (xxii) positions specifically excluded by law...." A state merit system of personnel administration, as established by Ga. Laws 1975, p. 79, is designed to, among other things, provide for the establishment of an administrative means for (1) the selection 75-82 156 of employees, (2) establishing the rates of compensation, and (3) the method of separation for such employees. When positions are created by statutes which specifically prescribe each of the three aforementioned elements, it would seem incongruous to argue that such positions were meant to be within the coverage of a state system of personnel administration. Accordingly, I am of the opinion that the positions of Assistant Adjutant General for Army, Assistant Adjutant General for Air and Deputy Director of Civil Defense are positions specifically excluded by law from the elassified service. Your second question concerns the number of discretionary positions which you may designate to be in the unclassified service, pursuant to subsection 2 (a) (2) (xiii) of the Act, which provides in part: "the head of each department, bureau, commission or agency ... may designate not more than five positions for inclusion in the unclassified service, provided said agency does not presently contain five unclassified full-time permanent managerial positions and provided further that the rights of classified employees shall not be abridged." Ga. Code Ann. 40-2202 (a) (2) (xiii). In your letter, you ask whether this provision would apply separately to each of the two statutorily created divisions within the Department of Defense. I cannot escape the clear language above quoted in which only a department head may make such a designation. Accordingly, I am of the opinion that a department head has but five discretionary positions for inclusion in the unclassified service pursuant to subsection 2 (a) (2) (xiii) of the Act, regardless of how his department might be statutorily organized. Finally, as to the effect of the three positions previously discussed on your discretionary delegation to the unclassified service, since those positions are by statute exempt from the classified service, for the reasons pointed out in an earlier opinion (Op. Att'y Gen. 75-48), they would not be counted against the five discretionary positions which you may designate for inclusion in the unclassified service. OPINION 75-82 To: Director, Employees Retirement System July 25, 1975 Re: Secretaries becoming members of the Employees Retirement System pursuant to Ga. Laws 1975, pp. 1506-1511, who have been employed by superior court judges or district attorneys prior to July 1, 1975, receiving compensation for their services in a direct payment from state funds, may be credited under the Employees Retirement System for such service so long as they pay to the Retirement System 157 75-82 the employee contributions that would have been paid if they had been members during the period of their employment prior to July 1, 1975. This replies to your recent request for my opinion on the interpretation of a portion of the Act establishing the Employees Retirement System of Georgia (hereinafter ERS). Ga. Laws 1949, p. 138 et seq., as amended; Ga. Code Ann. Ch. 40-25. Specifically, your question focuses on Sections 1, 2 and 5 of recently enacted 1975 Act 710 (Ga. Laws 1975, pp. 1506-1511), which, in part, amended the ERS Act. Sections 1 and 2 of Ga. Laws 1975, pp. 1506-1511 (amending Ga. Code Ann. 24-2631, 24-2931), authorize the employment by superior court judges and district attorneys of certain state-paid secretaries. Section 5 of this Act (Ga. Code Ann. 40-2503 (16)) requires these state-paid secretaries to become members of the ERS with a commencement date of July 1, 1975. According to your letter, you have received an inquiry from a superior court judge's secretary who has been employed by that judge since 1973 and paid directly from state funds appropriated for the operation of the superior courts. This secretary has requested that she be allowed to purchase her employment service with this judge from her employment date in 1973 to July 1, 1975, and have this additional time added to her retirement account as creditable service. She has also inquired as to who should pay the employee's retirement contributions for this period of service if it can be purchased and credited to her account. You have asked my official opinion on this secretary's inqmry. Section 5 of Ga. Laws 1975, pp. 1506-1511, mandates that state-paid secretaries employed by superior court judges and district attorneys pursuant to Sections 1 and 2 of that Act become members of the ERS, beginning on July 1, 1975. In a previous official opinion to Honorable G. W. Hogan, Director, Fiscal Division, Department of Administrative Services, under date of July 7, 1975, I opined that secretaries who are county employees and are employed under the provisions of Section 3 of this 1975 Act (Ga. Code Ann. 24-2632) do not become members of ERS. Op. Att'y Gen. 75-70. Along with provisions concerning ERS membership, Section 5 of the Act also contains a provision dealing with contributions required by the ERS Act, as amended. That provision need not be examined here as it is, in my opinion, inapplicable to secretaries becoming members of ERS pursuant to the 1975 Act who desire to be credited with statepaid service rendered prior to the Act. As a general rule, laws operate prospectively and not retrospectively unless the General Assembly clearly intends the law to be retroactive and indicates such intent by clear and precise language. Ga. Const., Art. I, Sec. III, Par. II (Ga. 75-83 158 Code Ann. 2-302); Ga. Code 102-104. It appears clear to me from the language of Ga. Laws 1975, pp. 1506-1511, that this Act is intended to apply prospectively with a commencement date of July 1, 1975. However, there is another section of the ERS Act, as amended, applicable to your question, which reads as follows: "Any other provisions of this law to the contrary notwithstanding, any member of this Retirement System (ERS) who received compensation from the State of Georgia for services rendered by him after December 31, 1953, but who did not become a member of this Retirement System (ERS) until a later date, may receive credit for such service rendered at any time after December 31, 1953, until the date he became a member of this Retirement System (ERS) by paying the employee contributions that would have been paid by him if he had been a member during such service. . . .'' (Parenthetical matter and emphasis added.) Ga. Laws 1971, p. 93 (Ga. Code Ann. 40-2503 (14)). You have advised that the superior court judge's secretary generating your inquiry has been employed by this superior court judge since 1973 and has been compensated directly from state funds. In my judgment, she fits squarely within the terms of the above-quoted portion of the ERS Act. That portion is clear and positive and must be read to mean what it dearly expresses. See Barnes v. Carter, 120 Ga. 895 (1904). Therefore, based on the foregoing authorities and rationale, it is my official opinion that secretaries becoming members of the Employees Retirement System pursuant to Ga. Laws 1975, pp. 1506-1511, who have been employed by superior court judges or district attorneys prior to July 1, 1975, receiving compensation for their servicef! in a direct payment from state funds, may be credited under the Employees Retirement System for such service so long as they pay to the Retirement System the employee contributions that would have been paid if they had been members during the period of their employment prior to July 1, 1975. OPINION 75-83 To: Insurance Commissioner July 29, 1975 He: The proper method of disposing of accumulated and undisbursed receivership funds held by the Insurance Commissioner in cases where creditors or claimants of defunct domestic stock and mutual insurance companies cannot be located or where checks issued to them for their pro rata portion have been for any reason returned unpaid is to turn such funds over to the Fiscal Division of the Department of Adminis- 159 75-83 trative Services, which shall ultimately remit the funds to the Board of Regents of the University System of Georgia; in cases involving all other types of defunct insurance companies, the Insurance Commissioner should petition the superior court that supervised the particular insurance company's dissolution proceedings for leave to deposit the accumulated and undisbursed receivership funds in its registry to be subsequently dealt with by order of the court as it deems advisable. Your letter of April 24, 1975 requested an official opinion from this office with respect to your responsibility as a receiver or ancillary receiver for insurance companies that have become insolvent and are undergoing or have completed the process of liquidation. Specifically, you have requested that we advise you of your duty with regard to undisbursed receivership funds where the claimants or creditors cannot be located or where checks issued to them have been returned unpaid for any reason. It appears that you have accumulated several relatively small amounts of money from the receivership proceedings of various insurance companies which you now have on deposit in bank accounts and are administering at the cost of considerable time and expense to the state. It is clear that your responsibility with respect to unclaimed assets distributable pro rata to a creditor or Ehareholder of a domestic stock and mutual insurance company that has been dissolved is governed by the Georgia Business Corporation Code, Ga. Laws 1968, p. 565 (Ga. Code Ann. 22-101 et seq.). The general corporation statutes are expressly made applicable to domestic stock and mutual insurers by Ga. Code Ann. 56-1503 (Ga. Laws 1960, pp. 289, 535). Pursuant to Ga. Code Ann. 22-1324 (Ga. Laws 1968, pp. 565, 706; 1975, p ..583), unless otherwise provided in the plan of liquidation, such unclaimed funds are to be paid to the Fiscal Division of the Department of Administrative Services, which shall hold the funds for six months and, if still unclaimed at the end of that period of time, shall pay such funds to the Board of Regents of the University System of Georgia. There is, however, no definitive statement in the law as to the disposition to be made of undisbursed receivership funds of other types of insurance companies. No provision is made therefor in the Georgia Insurance Code of 1960, Ga. Laws 1960, p. 289, as amended (Ga. Code 56-101 et seq.). Neither does the Disposition of Unclaimed Property Act, Ga. Laws 1972, p. 762 (Ga. Code Ann. 85-2001 et seq.), provide an answer since the presumption of abandonment provided for therein applies only to the property of business associations and banking or financial organizations held in t.he course of dissolution and no provision is made for insurance companies undergoing dissolution. See Ga. Code Ann. 85-2007. The provision relating to the presumption of abandonment with respect to unclaimed funds held by insurance 75-83 160 companies refers to solvent, on-going concerns and not to insurance companies that have gone into receivership. See Ga. Code Ann. 85-2004. Neither does the presumption of abandonment raised in Ga. Code Ann. 85-2009 provide a solution for that provision deals only with intangible personal property held by courts or public officers. Accordingly, we must resort to the more general provisions of the Georgia Insurance Code of 1960, as amended (Ga. Laws 1960, p. 289 et seq.; Ga. Code Ann. Title 56), and the basic concepts of receivership law in order to arrive at an answer. Generally speaking, the purpose of receivership is to preserve the property contested pendente lite until the final disposal of all questions, legal or equitable, involved in the action. Liddell v. Johnson, 213 Ga. 752, 754 (1958); see also Ga. Code (1933) 55-301. The person appointed receiver is charged with taking control, custody, or management of the property to preserve and protect it. Commissioner v. Owens, 78 F.2d 768, 773 (C.C.A. lOth 1935). As Mr. Justice wayne, speaking for the United States Supreme Court, noted: "[A receiver) is an officer of the court.... He is appointed for the benefit of all parties who may establish rights in the cause. The money in his hands is in custodia legis for whoever can make out a title to it. It is the court itself which has the care of the property in dispute. The receiver is but the creature of the court. . . ." Booth v. Clark, 58 U.S. (17 How.) 322 (1855). Since a receiver is obviously in a position of trust, he is a fiduciary with respect to the affairs of the insurance company and he must conduct himself as a fiduciary in dealing with funds coming into his possession as receiver. Commissioner v. Owens, supra, at 774. The General Assembly has recognized the broad scope of a receiver's fiduciary responsibilities by providing that where the Insurance Commissioner has taken possession of the property and business of an insurance company as liquidator or conservator: ". . . the duties, powers and authority of the Commissioner in proceedings under this Chapter shall not be construed as a limitation upon the Commissioner, nor shall it exclude in any manner his right to perform and to do such other acts not herein specifically enumerated, or otherwise provided for, which he may deem necessary or expedient for the accomplishment or in aid of the purpose of such proceedings." Ga. Code Ann. 56-1424 (Ga. Laws 1960, pp. 289, 523). Under analogous federal law, unclaimed funds distributable to creditors of a bankrupt are to be deposited by the trustee in bankruptcy with the federal bankruptcy court along with the names and last known post office addresses of those entitled to the funds. There- 161 75-84 after, such funds may be withdrawn from the court's registry only by order of the court and pursuant to other provisions of federal law. See 11 U.S.C.A. 106. In view of the fact that Georgia law provides no clear statutory directive with regard to the question you have posed and considering the legislature's recognition of a receiver's broad fiduciary duties, coupled with analogous federal practice, it is my opinion that the wisest course for you to take would be to petition the superior court that supervised the particular insurance company's dissolution proceedings for leave to deposit those accumulated and undistributed receivership funds in the court's registry to be dealt with as the court deems advisable upon further order at a later time. In this way, you would be acting in consonance with your fiduciary responsibilities as a receiver and your obligations as an officer of the court. OPINION 75-84 To: Commissioner, Department of Public Safety July 30, 1975 Re: Under the Georgia Records Act an agency head has direct supervisory control over his agency records management officer, and, subject to the approval of the State Records Commission, direct control over his records management program. The Georgia Records Act, Ga. Laws 1972, p. 1267, as amended (Ga. Code Ann. Ch. 40-SC), is a scheme which has been devised by the Georgia General Assembly to establish a statewide records management system. This Act, as amended, establishes the position of a state records management officer and requires state agencies to designate an agency records management officer. You have inquired concerning the relationship between these two positions and that of the head of a particular agency. You have further inquired concerning the effect this Act has on an agency head's control over the records in his agency. It is my opinion that, with certain limitations, an agency head has complete supervisory control over the records management program and officer of his agency, and the role of the state records management officer is basically of an advisory capacity. In order to define the authoritative interrelationship between these three positions, the roles of each must be fully understood. Under this statutorily mandated records management system, the Department of Archives and History develops and issues rules and regulations for the efficient and economical management and disposition of state records. Ga. Code Ann. 40-804c (b). It is the primary responsibility 75-84 162 of the state records management officer to see that the records management programs are established pursuant to these rules and regulations. Ga. Code Ann. 40-804c (a). The agency records management officer is an essential component in this scheme, for it is his responsibility to "establish and operate a records management program" (Ga. Code Ann. 40-805c (g)), in accordance with the rules and regulations of the Archives and History Department, for the particular agency by which he is employed. It is, therefore, incumbent upon the state records management officer to see that the various agency records management officers properly perform their tasks of creating and maintaining a records management program for their respective agencies. However, this supervisory task is limited to: distributing the rules and regulations of the Department of Archives and History to the agency records management officers, educating the agency records management officers of these rules, providing consultative services to the agency records management officers, conducting surveys in order to recommend more efficient records management techniques, and actually training the agency records management personnel. Ga. Code Ann. 40-804c (c). Thus, under the Georgia Records Act, the state records management officer has no direct control over an agency records management officer, but his role is to provide the agency officer with the information and training with which to properly set up agency records management programs. In order to understand the relationship between the agency head and the agency records management officer, the method prescribed in the statute for implementing and carrying out an agency records management program must first be explained. Under the statute state records must be disposed of according to a "retention schedule." Ga. Code Ann. 40-802c (g), 40-807c (b). A retention schedule shall have the force and effect of law only when it has been approved by the State Records Committee. Ga. Code Ann. 40-803c. Such retention schedules can be presented to the committee for approval only by the agency head. Ga. Code Ann. 40-803c. In reality this is accomplished by the agency records management officer drawing up such a retention schedule and the agency head approving it. Such retention schedule must also be consistent with the commensurate "disposition standard" for such "record series," as drafted by the agency head and the agency records management officer in accordance with the Department of Archives and History's rules and regulations. Ga. Code Ann. 40-805c (e). Thus, the agency head has control of the disposition of his agency records and thereby his departmental records management program in that none of his agency records can be disposed of or moved without his approval. The agency head thus has complete and direct supervisory control 163 75-86 over all actions of the agency records management officer within the scope of the employment relationship, including the agency records management officer's statutory responsibility to create and operate an agency records management program. The agency head can, in effect, dictate all "retention schedules" and "disposition standards" proposed by his agency records management officer to be approved by the State Records Committee. The only restraint put upon an agency head's authority over his agency records management program is the requirement of approval by the State Records Committee. In summary, the agency head has direct supervisory control over his agency records management officer, and, subject to the approval of the State Records Committee, direct control over his records management program. OPINION 75-85 To: Commissioner, Department of Banking and Finance August 1, 1975 Re: Several questions concerning intangible tax on long term notes secured by Georgia real estate held by banking associations. [Withdrawn by Op. Att'y Gen. 75-125.] OPINION 75-86 To: Executive Secretary-Treasurer, Teachers Retirement System August 1, 1975 Re: When a disabled member of the Teachers Retirement System qualifies for either a service retirement or a disability retirement under Ga. Code Ann. 32-2905 (3) (b), the maximum allowance under Ga. Code Ann. 32-2905 (2) should be used in calculating whether the service retirement benefit is greater than the disability retirement benefit and, then, whichever retirement the member is entitled to, he may subsequently elect any of the optional plans specified in Ga. Code Ann. 32-2905 (8). This is in response to your request for an official opinion concerning Section 5 of the Act establishing the Teachers Retirement System (hereinafter TRS); Ga. Laws 1943, p. 640 et seq., as amended; Ga. Code Ann. 32-2905. For your reference, the subsections of Section 5 of the TRS Act which are applicable to your question are referred to by their Annotated Code section numbers. 75-86 164 The subsection about which you inquire, Ga. Code Ann. 32-2905 (3) (b), states, in relevant part, as follows: "If a disabled member [of the Teachers Retirement System] qualifies for either service retirement or disability retirement and a service retirement calculation exceeds the amount that he would receive if he retired on disability, he shall receive a service retirement allowance as provided in subsection (2) of this section. Otherwise, he shall receive a disability retirement allowance...." You have asked about the calculation to be used when comparing the service and disability retirement figures. Specifically, whether the subsection 32-2905 (3) (b) determination should be based on the maximum benefit payable for either service or disability retirement under Ga. Code Ann. 32-2905 (2), or, in the alternative, on an employee's selected option for either retirement under Ga. Code Ann. 32-2905 (8). Under this latter section, any member may elect to convert the retirement allowance otherwise payable to him (maximum plan) to a modified retirement allowance whereby he would receive a reduced allowance during his lifetime, with certain benefits continuing to a named beneficiary after the retiree's death. You advise that, generally, the maximum disability retirement benefit would be greater than or exactly equal to the maximum service retirement benefit. However, you inform that in all cases a service retirement under an optional election would be greater than a comparable optional election under disability retirement provisions. Accordingly, whether the maximum benefit or an elected optional benefit is to be used in the subsection 32-2905 (3) (b) calculation could make a difference in certain instances. A basic rule of statutory construction in Georgia holds that where the language of a statute is direct and positive, and does not lead to an unreasonable result, courts should be governed by the obvious meaning and import of the statute's terms. Hopkins v. Fla. Central and Peninsular R.R. Co., 97 Ga. 107 (1895); Ezekiel v. Dixon, 3 Ga. 146 (1847). Also, courts must construe Acts of the General Assembly with a view toward finding the true legislative intent from a reading of the Act as a whole, and then endeavor to carry that intent into effect. Erwin v. Moore, 15 Ga. 361 (1854). Subsection 32-2905 (3) (b) provides that if a disabled member qualifies for either a service retirement or a disability retirement, and the service retirement calculation is greater, the retiree is to be given the retirement allowance provided in Ga. Code Ann. 32-2905 (2), the maximum plan. Therefore, in my judgment, the calculations used in the comparison should be based on the maximum allowance available for either retirement under Ga. Code Ann. 32-2905 (2). It is also my judgment that once the determination is made as to which benefit is 165 75-87 greater, service or disability, a prospective retiree may subsequently elect an optional plan under Ga. Code Ann. 32-2905 (8). This conclusion is based on the language in Ga. Code Ann. 32-2905 (2) (b) which clearly states that the maximum benefit allowed by that subsection shall not apply when an optional allowance has been selected by the retiree. Therefore, based on the language of Section 5 of the Act and the general rules of statutory construction, I am of the official opinion that, when a disabled member of the Teachers Retirement System qualifies for either a service retirement or a disability retirement under Ga. Code Ann. 32-2905 (3) (b), the maximum allowance under Ga. Code Ann. 32-2905 (2) should be used in calculating whether the service retirement benefit is greater than the disability retirement benefit and, then, whichever retirement the member is entitled to, he may subsequently elect any of the optional plans specified in Ga. Code Ann. 32-2905 (8). OPINION 75-87 To: Executive Director, State Scholarship Commission August 4, 1975 Re: Under the terms of the Act providing for grants to students attending private colleges or universities in Georgia, such grants must be reduced in a proportionately equal amount to all students if decreases in appropriations by the General Assembly prevent full funding of the basic grants specified by the Act. This is in reply to your letter of July 24, 1975, in which you refer to a possible conflict between the general law pertaining to grants for students in private schools and colleges, i.e., Ga. Laws 1971, pp. 906-910 (Ga. Code Ann. Ch. 32-39), as amended by H.B. 1109 (Ga. Laws 1975, pp. 1320-1321), and Section 37 of the amended General Appropriations Act passed during the recent extraordinary session of the General Assembly (H.B. 1; Ga. Laws 1975, Extra. Sess., p. 1734). You wish to know the amount of the grant to be paid to eligible "freshmen" students enrolled in independent colleges and universities in Georgia during the 1975-76 fiscal (and school) year in light of the apparent conflict. While your letter does not expressly so state, I assume that the conflict to which you refer stems from the fact that in reducing its appropriation to fund the grants which the general law provides for eligible students, the General Assembly, in its amended appropriations Act, has provided for separate line item amounts to fund grants for freshmen 75-87 166 ($2,376,611) and to fund grants for sophomores, juniors and seniors ($3,340,000). This poses the question of what action is to be taken if the line item appropriations turn out to be adequate to fund the full $400 grants specified by the general law insofar as sophomores, juniors and seniors are concerned-but not the full $500 grants specified for freshmen (or for that matter vice versa). Looking to the general law, we find Section 2 of Ga. Laws 1971, pp. 906, 907, as amended by H.B. 1109 (Ga. Laws 1975, pp. 1320-1321), stating that: "There is hereby granted to each eligible student attending an approved institution of higher learning the sum of $400 per academic year which shall be distributed to the student as hereinafter provided. Beginning with the 1975-76 academic year and for each year thereafter, the above amount of $400 shall be increased to $500 for freshman students. In the event the General Assembly appropriates sufficient funds, the above amount of $400 shall be increased to $600 for all undergraduate students, beginning with the academic year 1976-77 and for each academic year thereafter. No grants shall be made to graduate or professional students for any academic year, unless a specific appropriation for that purpose is provided in the General Appropriations Act." Section 7 of the 1971 Act (Ga. Code Ann. 32-3907) tells us that: "In the event there are not enough funds to provide each eligible student with a full grant for the terms requested, each eligible student shall receive a reduced but equal share of funds then available for the remainder of the academic year within the fiscal period covered by the current appropriation." (Emphasis added.) It is axiomatic, of course, that differing provisions of a general law are to be construed in pari materia with all seeming inconsistencies harmonized when possible. See, e.g., Ryan v. Commissioners of Chatham County, 203 Ga. 730, 731-732 (1948); Gillis v. Gillis, 96 Ga. 1, 11 (1895); Mitchell v. Union Bag & Paper Corp., 75 Ga. App. 15, 17-18 (1947); see generally, 82 C.J.S. Statutes, 346, 347, 366. At the time Section 7 was drafted (and until H.B. 1109 was adopted by the General Assembly this year), the amount of the grant specified by Section 2 was the same for all eligible students. Of the legislative intent behind Section 7, there can be no doubt. It was designed to similarly provide for equality of treatment of all eligible students in the event that funding of the overall grant program proved to be inadequate to provide them with the full grant sum specified by Section 2. Each would receive an equally reduced amount, or in the words of Section 7 "a reduced but equal grant." Can this language of Section 7, drafted when Section 2 provided for a uniform grant for all eligible students, be harmonized with the 167 75-88 new Section 2 which provides for a $500 grant for "freshmen" but only a $400 grant for sophomores, juniors and seniors? It is my opinion that it can. Certainly one reasonable way1 of preserving the basic legislative intendment of treating all students equally in the event lowered appropriations require reduced grants would be a pro rata reduction giving each eligible student a proportionately equal share of grant he would have had had adequate funding been available. Assuming the validity of this construction of the general law, the previously mentioned problems which might conceivably flow from the separate line item appropriations for freshmen grants and grants for sophomores, juniors and seniors under H.B. 1, Ga. Laws 1975, Extra. Sess., p. 1734, are easily resolved. As this office has so frequently opined, the Constitution of the State of Georgia prohibits an appropriations Act from doing anything more and anything less than authorizing a state agency to spend up to a maximum amount for a purpose or function which the agency is permitted or required by general law to perform. An appropriations Act cannot restrict or alter the powers or duties conferred upon an agency by general law, and this is no less true simply because the powers or duties under general law relate to fiscal administration or the procedures by which such funds as are available for a given function or purpose are to be allocated and spent. See, e.g., Constitution of the State of Georgia of 1945, Art. III, Sec. VII, Par. IX (Ga. Code Ann. 2-1909); Art. VII, Sec. IX, Par. I (Ga. Code Ann. 2-6201 (c)); Ops. Att'y Gen. 73-132, 73-147, 73-152, 73-174. It is consequently my official opinion that under the terms of the Act providing for grants to students attending private colleges or universities in Georgia, if the total appropriation for such grants (regardless of the separate line items involved in the total appropriation for the grant program) is not sufficient to fully fund the grant specified for each eligible pupil, all such grants must be reduced in a proportionately equal amount for all eligible students. The precise dollar amount of the thus reduced grants which "freshmen" will receive and which sophomores, juniors and seniors will receive under the amended General Appropriations Act is, of course, an accounting and not a legal problem. OPINION 75-88 To: Commissioner, Department of Human Resources August 4, 1975 Re: Medicaid provider agreements, or any arrangement through which the Department of Human Resources reimburses Medicaid 1 There may be others. 75-88 168 providers, must limit the potential financial liabilities of the state so as to insure that such liabilities cannot exceed the unobligated funds appropriated for the fiscal year in which the agreements are executed. This is in response to your recent inquiry concerning the adequacy of certain Medicaid provider agreements. As I understand it, these agreements are entered into by the Department of Human Resources, on behalf of the State of Georgia, with participating providers of medical and related services covered by the Georgia Medical Assistance ["Medicaid"] Program. The provider agreements thus establish the mechanism through which your department reimburses participating providers, who are private parties, for authorized services rendered to eligible Medicaid recipients. Your question is whether the provider agreements, or any arrangement through which the Department of Human Resources reimburses Medicaid providers, must limit the potential liabilities of the state thereunder so as to insure that such liabilities cannot exceed the funds appropriated for the fiscal year in which such agreements are entered into. To answer your question it is necessary to consider that provision of the State Constitution which forecloses the state from incurring "debt" except in certain instances, not pertinent here. Specifically, Ga. Const., Art. VII, Sec. III, Par. IV (Ga. Code Ann. 2-5604), provides, in part, as follows: " ... the credit of the state shall not be pledged or loaned to any individual, company, corporation or association...." As applied here, the above provision requires that your department have available, at the time of entering into a provider agreement, sufficient appropriated funds, not otherwise obligated, to satisfy all potential liabilities to be incurred by the state pursuant to such agreement. Op. Att'y Gen. 74-115. This means that for provider agreements entered into during this fiscal year, the total of the potential liabilities to be incurred by the state under all such agreements must not exceed the total appropriation for the Medicaid program for this fiscal year, otherwise unobligated at the time of entering into such agreements. Insofar as the provider agreements purportedly obligate the state for reimbursements in excess of the appropriation for the Medicaid program, such agreements would be void. Id. In view of the foregoing, it is my official opinion that the provider agreements must limit the potential liabilities of the state thereunder so as to insure that such liabilities cannot exceed the unobligated funds appropriated for the fiscal year in which the agreements are entered into. From my review of the provider agreements about which you have inquired and the Policy and Procedure Manuals incorporated by 169 75-88 reference in such agreements, I have been unable to discern the manner in which your department expressly limits the potential liabilities of the state as required by the above quoted provision of the State Constitution. In fact, the agreements purportedly obligate the state to an unlimited degree in that the state is to reimburse for all authorized services rendered by providers. Insofar as the agreements fail through their content or are not administered so as to limit the liabilities of the state as is required by the Constitution, your department is without authority to enter into such agreements on behalf of the state. To correct this infirmity I recommend the inclusion in each provider agreement of the following clause which will insure that the obligation of the state to reimburse providers cannot exceed the funds appropriated for this fiscal year, not otherwise obligated at the time the provider agreements are entered into by your department: 11N otwithstanding any other provision of this Provider Agreement or of the Manual [i.e., applicable Medicaid Policy and Procedures Manual], in the event that either of the sources of reimbursement for medical assistance, appropriations from the General Assembly of the State of Georgia or the Congress of the United States of America, no longer exist or in the event the sum of all obligations of the State Agency [i.e., Department of Human Resources] incurred under this and all other Provider Agreements entered into pursuant to the Georgia State Plan for Medical Assistance equals or exceeds the balance, as of the effective date hereof, of such sources less one hundred dollars ($100.00), then this Provider Agreement shall immediately terminate without further obligation of the State Agency as of that moment. The certification by the Commissioner of the State Agency of the occurrence of either of the events stated above shall be conclusive." Under such a clause, properly administered, your department can insure that the state is not obligated in a manner prohibited by the Constitution. The importance of compliance by state officials with the debt limitations of the Constitution is well illustrated by the language of the Supreme Court of Georgia in Barwick v. Roberts, 188 Ga. 655, 661 (1939), in which the court rejected a lessor's claim for rentals from the state pursuant to a lease assignment purportedly obligating the state to pay $100 per month for a period of several years: 11With the language of the constitution clear and unambiguous, it is the duty of every one to obey it. It must not be forgotten that the people are the sovereigns, and the State officers are but their agents elected to represent them. The former are the masters; the latter the servants. The sovereign people have seen fit to pro- 75-89 170 hibit the State and its officers from incurring debts, except those defined in the constitution. To allow State officers directly or indirectly to circumvent this constitutional restriction made by the people for their own protection would be to exalt the agent above his principal, the servant above his master; and thus to undermine the foundation upon which free government must rest. This debt limitation was written in the constitution to be obeyed. The courts must uphold it in the spirit in which it was adopted, and no scheme or subterfuge designed to nullify this important constitutional mandate shall receive the approval of the courts." (Emphasis added.) In summary, it is my official opinion that the Medicaid provider agreements, or any other arrangements through which your department reimburses Medicaid providers, must limit the potential liabilities of the state thereunder so as to insure that such liabilities cannot exceed the unobligated funds appropriated for the fical year in which such agreements are executed between your department and the providers. This opinion is intended solely to answer the question raised in your referenced inquiry and is not intended as an attempt to deal with other potential legal problems generated by the new Medicaid program, the Policy and Procedure Manuals for which my staff is currently reviewing. OPINION 75-89 To: Commissioner, Department of Public Safety August 6, 1975 Re: (1) Staff, clerical and technical assistants, and other personnel of the Georgia Peace Officer Standards and Training Council (POSTC) are to be selected and appointed with the concurrence of the Department of Public Safety and POSTC, and are to serve only so long as their appointment is mutually agreeable. (2) Gifts, grants, donations, and funds received by POSTC from any source are to be administered exclusively by POSTC in consonance with the provisions of the POSTC Act, and the responsibility for the proper administration of these funds lies with POSTC. (3) As an activity of the Department of Public Safety, POSTC is subject to budgetary adjustments just as any other activity within the Department of Public Safety budget unit. Your letter of July 14, 1975 requested an official opinion from this office with regard to the relationship between the Department of Public Safety ("department") and the Peace Officer Standards and Training Council ("POSTC"). For purposes of this opinion, I have consolidated your several questions. 171 75-89 The law provides that POSTC is assigned to the department for administrative purposes only. Ga. Laws 1972, pp. 1015, 1060 (Ga. Code Ann. 40-35168). Where an agency is assigned to a department for administrative purposes only, the department must, among other things, provide staff for the agency unless the Constitution or statutes authorize the agency to hire its own personnel. Ga. Laws 1972, pp. 1015, 1020 (Ga. Code Ann. 40-3505 (a) (3) and (b) (3)). Since nothing in the Constitution or laws of Georgia authorizes POSTC to hire its own personnel, its staff must be provided by the department. Hence all staff members, including clerical and technical assistants and other personnel, are to be provided to POSTC and appointed by the department. This includes, of course, the Executive Director of POSTC, who is its chief staff officer. The recent amendment to Ga. Laws 1970, p. 208; Ga. Code Ann. Ch. 92A-21 ("POSTC Act") passed by the 1975 General Assembly provides that POSTC's staff, clerical and technical assistants and other personnel shall be provided by the department "with the advice and consent of the council." Ga. Laws 1975, pp. 1165, 1170; Ga. Code Ann. 92A-2107. As I interpret this provision, although it is the duty of the department to provide and appoint POSTC's Executive Director and other personnel, such appointees must be persons selected and mutually agreed upon both by POSTC and the department. Therefore, although POSTC is not empowered on its own initiative to hire an executive director or staff personnel, persons appointed to serve in these capacities by the department must be agreeable to both parties and would implicitly serve only so long as this mutual agreement continues. The 1975 amendment to the POSTC Act also provides that: "The council is hereby authorized to accept and use gifts, grants and donations for the purpose of carrying out the provisions of this Act. The council is also authorized to accept and use property, both real and personal, and services, for the purpose of carrying out the provisions of this Act. Any funds, property or services received as gifts, grants or donations shall be kept separate and apart from any funds received by the Department of Public Safety and such funds, property, or services so received by gifts, grants or donations shall be the property and funds of the council and as such shall not lapse at the end of each fiscal year but shall remain under the control and subject to the direction of the council to carry out the provisions of this Act." Ga. Laws 1975, pp. 1165, 1170; Ga. Code Ann. 92A-2107. Clearly, the General Assembly intended to vest POSTC with complete authority to receive, disburse, and otherwise administer funds, property, and services; provided, of course, that such funds, gifts, 75-90 172 grants, or donations would be used by POSTC in the course of carrying out its duties and responsibilities under the POSTC Act. See Ga. Laws 1975, pp. 1165, 1168-70. Implicit in this grant of authority is the requirement that POSTC be afforded that independence and degree of judgment needed to administer funds without having to account therefor to the department. Indeed, the anti-lapse provision in the excerpt quoted above reinforces this view as does the requirement that POSTC annually report to the Governor and General Assembly as to its activities. Ga. Laws 1970, pp. 208, 210 (Ga. Code Ann. 92A-2104 (d)). Correspondingly, the department stands relieved of direct responsibility for how funds received as gifts or grants are utilized by POSTC except to the extent that the Commissioner of Public Safety, as one of 16 members of POSTC, has a voice in the implementation of its policies, programs, and rules (Ga. Laws 1970, pp. 208, 209, as amended; Ga. Code Ann. 92A-2103 (a)), and to the extent that the department is jointly responsible along with POSTC for the appointment of competent and capable staff personnel. Ga. Laws 1975, pp. 1165, 1170. It is specifically provided that the funds necessary to carry out the provisions of the POSTC Act shall come from funds appropriated and available to the department and from any other available funds. Ga. Laws 1975, pp. 1165, 1170. This means that POSTC's budgetary allotment falls under the department's appropriation, as provided in Ga. Code Ann. 40-3505, but that POSTC is also permitted to receive funds from external sources and not exclusively by way of the department's appropriation. POSTC is referred to in the 1975 Appropriations Act as the Mandate Training Program and is listed as Item 6 under the Department of Public Safety budget unit. Ga. Laws 1975, pp. 216, 318, as amended. As an activity of the department, therefore, it is, just as any other activity, subject to budgetary adjustments upon approval by the Office of Planning and Budget and/or Fiscal Affairs Subcommittee depending upon the type of transfer. OPINION 75-90 To: Secretary of State August 6, 1975 Re: A county officer may not act as an assistant to the probate judge in the conduct of an election. This is in reply to your request for my opinion as to whether an individual who holds the office of tax commissioner for a county may be employed by the probate judge of the county to act as his assistant in a special election. Georgia Code (1933) 89-103 provides: 173 75-91 "No person shall hold ... more than one county office ... nor shall any commissioned officer be deputy for any other commissioned officer, except by ... special enactment." In my opinion, this provision precludes the appointment of a tax commissioner as an assistant to the probate judge for the purpose of conducting an election. OPINION 75-91 To: Administrator, Office of Consumer Affairs August 6, 1975 Re: Under certain circumstances, it would be proper for the administrator to issue an investigative demand and notice of contemplated civil action simultaneously under the Fair Business Practices Act of 1975 and such may be included in one document. This is in reply to your letter of July 23, 1975 wherein you request an opinion from this office as to the legality and propriety of combining certain actions which you are required to undertake under the Fair Business Practices Act of 1975, Ga. Laws 1975, p. 376 et seq.; Ga. Code Ann. Ch. 106-12 (hereinafter referred to as the "Act"), prior to the institution of civil actions against persons alleged to be in violation of the Act. More specifically, you ask the following questions, to-wit: (1) Whether or not it is legal and proper for you to serve an investigative demand (Section 13) and a notice of contemplated civil action (Section 7) on a person simultaneously; and (2) If the answer to the first question is yes, whether or not the notice of contemplated action and the investigative demand may be combined in one document. The cardinal rule of statutory construction is that in the interpretation of same, the courts must look diligently for the intention of the General Assembly; which intention when ascertained must be carried into effect. Erwin v. Moore, 15 Ga. 361 (1854). Such construction must square with common sense and sound reasoning. Blalock v. State, 166 Ga. 465, 470 (1928). Also, legislative intent must be determined from the construction of a statute as a whole. See Stroud v. Doolittle and Williams v. Doolittle, 213 Ga. 32 (1957). Consequently, in order to answer the above questions, it is necessary to examine Sections 13 and 7 together. Section 13 provides in relevant part as follows: "When it reasonably appears to the administrator that a person 75-91 174 has engaged in, is engaging in, or is about to engage in any act or practice declared to be unlawful by this Act, or when he believes it to be in the public interest that an investigation should be made to ascertain whether a person has in fact engaged in, is engaging in, or is about to engage in, any act or practice declared to be unlawful by this Act, he may, with the consent of the Attorney General, execute in writing and cause to be served upon any person ... an investigative demand...." (Emphasis added.) Section 7 provides in relevant part as follows: "Whenever the administrator has reason to believe that any person is using, has used, or is about to use any method, act or practice declared by Section 3 or by regulations made under Section 4 of this Act to be unlawful ... he may bring an action in the name of the state by filing a civil complaint against such person to restrain or enjoin the use of such method, act, or practice...." From the above, it is clear that the Act authorizes you, as administrator, to serve upon a person an "investigative demand" either when it reasonably appears to you that the person has or is about to violate any provision or regulation of the Act, or when you believe it to be in the public interest to ascertain whether a person has or is about to violate any provision of same. Section 7, on the other hand, authorizes you to bring an equitable action only under circumstances in the first category, i.e., when you have reason to believe that any person has or is about to violate any provision of the Act or regulations promulgated thereunder. Consequently, common sense and sound meaning would dictate that the investigative demand and notice of contemplated action be served simultaneously only under the circumstances of the first category. If investigation is needed before you are able to form a reasonable belief as to the conduct of a person, then the investigative demand should be served and the information obtained therefrom analyzed before you decide whether or not to serve a notice of contemplated action on such person. With regard to your second question, it is my opinion that the Act does not prohibit you from including both the investigative demand and the notice of contemplated action in the same document. However, if such form is adopted, I would advise you to clearly separate the two matters within the one document and caption each in bold type. Inasmuch as there are several steps which must be taken by you prior to the issuance of an investigative demand or a notice of contemplated action, I have taken the liberty to list same below for your information and guidance, to-wit: 175 75-92 1. A determination should be made as to whether or not the action or transaction in question is exempt under Section 6 of the Act; 2. Prior to the initiation of legal process (e.g., investigative demands, notice of contemplated actions, civil actions) resulting from complaints or inquiries, such complaints or inquiries must be referred by you to those agencies, if any, which have specifically approved or prohibited the action complained of, for initial investigation and corrective action other than litigation (Section 5 (c)); 3. If such action or transaction does involve conduct specifically approved or prohibited by another state agency, you should determine whether or not this agency considers legal action in the best interest of the public, inasmuch as Section 5 (g) of the Act gives that agency the authority to remove your jurisdiction over the matter by certifying to you that the exercise of your powers under the Act would not be in the public interest; 4. You must obtain the consent of the Attorney General to issue investigative demands or subpoenas, or to conduct investigatory hearings (Sections 13 (a) and 14 (a)). It should be carefully noted that a notice of contemplated action is required only for Section 7 equitable actions. A written demand for relief is required prior to actions for damages brought by you under Section 9 as representative of individually listed persons. OPINION 75-92 To: Commissioner, Department of Banking and Finance August 8, 1975 Re: (1) The Fidelity Daily Income Trust, an open-end investment fund, is not engaged in the banking business in the State of Georgia. (2) The use of the term "trust" by the Fidelity Daily Income Trust is not in violation of Ga. Code Ann. 41A-1104.j Your office has requested my opinion concerning the operations of the Fidelity Daily Income Trust (Fidelity) insofar as they may violate certain statutes regulating banks and trust companies in the State of Georgia. Fidelity is an investment company organized under the laws of the State of Massachusetts as a business trust, and registered with the Securities Exchange Commission pursuant to 15 U.S.C.A. 80A-8 as an open-end investment company. Federal law defines such a company 75-92 176 as "a management company which is offering for sale or has outstanding any redeemable security of which it is the issuer." 15 U.S.C.A. 80A-5 (a) (1). Fidelity sells shares which may be purchased directly from the trust by mail, telephone or telegraph. The company then uses investor's funds to purchase certain securities. Dividends are determined at the end of the normal trading day and also at such other times during trading hours as Fidelity may determine, and are based on the market value of the securities purchased. All dividends are distributed in the form of additional shares of the trust at the rate of one share for each dollar of dividend income. Finally, Fidelity offers as one method of redemption a check writing plan whereby an investor may draw a draft on the National Shawmut Bank of Boston equal to the cash redemption value of his shares. You asked first, whether the solicitation of sales of shares by Fidelity in the State of Georgia, and their subsequent redemption through the drawing of a draft, constitutes a banking business in violation of Georgia law. The carrying on of a banking business in the State of Georgia is forbidden to all except banks, national banks and to a limited extent credit unions, licensees engaged in selling checks, international banking agencies, building and loan associations, and savings and loan associations. (Ga. Laws 1974, pp. 705, 783 (Ga. Code Ann. 41A-1102)). A bank is defined at Ga. Code Ann. 41A-102 (Ga. Laws 1974, pp. 705, 716) as "a corporation ... authorized to engage in the business of receiving deposits withdrawable on demand or deposits withdrawable after a stated notice or lapse of time; ..." The term bank is also defined at Ga. Laws 1963, pp. 188, 189 (Ga. Code Ann. 109A-1-201 (4)) to mean "any person engaged in the business of banking." If the funds paid to Fidelity constitute deposits as contemplated by Ga. Laws 1974, pp. 705,783 (Ga. Code Ann. 41A-1102), then arguably Fidelity could be considered to be carrying on a banking business in Georgia. However, this is not the case. Bank deposits consist of two types; special and general. where deposits are special it is necessary that the funds be identified or capable of identification either in its real or substituted form, and this type of deposit arises only where the bank acts as a bailee of the funds for the benefit of the depositor-bailor. With special deposits, title to the deposit remains in the depositor. See Pitts v. Peace, 39 F.2d 14 (5th Cir. 1930). This is obviously not the situation in respect to funds invested in Fidelity. The most common form of bank deposit is the general deposit. This type of deposit has been defined as: ''[W]here money is the thing deposited in accordance with a custom peculiar to the banking business, where the depositor, for his own 177 75-92 convenience, parts with the title to the money and loans it to the banker, and the latter, in consideration of the loan of the money and the right to use it for his own profit, agrees to refund the same amount, or any part thereof, on demand." Nashville Produce Co. v. Sewell, 121 Ga. 278, 280 (1904). See also, Wright v. Trust Company of Georgia, 108 Ga. App. 783 (1963); Fulton National Bank of Atlanta v. Didschuneit, 92 Ga. App. 527 (1955). The sale of shares of Fidelity does not create this type of relationship between the investor and the issuer. Fidelity agrees to refund the money, not in the same amount, but contingent upon the market value of the securities in which they invest. The draft method of redemption is accomplished by the investor appointing the National Shawmut Bank of Boston as his agent for the redemption of Fidelity shares. Only upon receipt of the funds from Fidelity will the bank honor a draft written by the investor. As stated above the term bank is also defined as "any person engaged in the business of banking." Ga. Laws 1963, pp. 188, 189 [Ga. Code Ann. 109A-1-201 (4)]. The business of banking is usually thought of as a moneyed institution which facilitates the borrowing of, lending of, and caring for money, Smith v. Kansas City Title and Trust Co., 255 U.S. 180 (1921), and generally contemplates receipt of cash on deposit for withdrawal by the issuance of checks, the discounting of commercial paper, and making of loans, and issuance of promissory notes payable to bearer. United States v. Papworth, 156 F. Supp. 842 (N.D. Tex. 1957), aff'd 256 F.2d 125 (1958), cert. denied, 358 U.S. 854 (1958). See Dunn v. State, 13 Ga. App. 314 (1913). Your next question concerned whether the use of the term "trust" by Fidelity violates Georgia law. The statute applicable to this question is Ga. Laws 1974, pp. 705, 784 (Ga. Code Ann. 41A-1104). This section prohibits the use of the word "trust company or any similar name indicating that the business done is that of a trust company" unless the person or corporation is duly authorized to conduct a trust business in the State of Georgia. As stated above Fidelity Daily Income Trust is a business trust. It is my official opinion that the use of the name Fidelity Daily Income Trust by a duly organized business trust does not indicate that the business being done by Fidelity is that of a "trust company." Therefore, it is my official opinion that Fidelity is not in violation of Ga. Laws 1974, pp. 705, 784 (Ga. Code Ann. 41A-1104). 75-93 178 OPINION 75-93 To: Commissioner, Department of Offender Rehabilitation August 14, 1975 Re: In:mates being released from county jails who were committed to the Director of Corrections and who have had files prepared for them by the Georgia Diagnostic and Classification Center but who have not been picked up by the center are entitled to the gratuities as provided in Ga. Code Ann. 77-317. This is in response to your request for my opinion concerning the application of Ga. Code Ann. 77-317 (Ga. Laws 1973, p. 542), where, due to overcrowded conditions, the State Board of Corrections is not able to take physical custody of the prisoner before his sentence is completed or he is paroled. Generally, when a person is convicted of a misdemeanor or felony and sentenced to serve time in any state penal institution, he is committed to the Director of Corrections, who, with the approval of the State Board of Corrections, designates the place of confinement. Ga. Code Ann. 77-309 (b) (Ga. Laws 1956, pp. 161, 171, as amended). However, "[n]either the director nor the board shall have authority to assign male or female prisoners to serve in any manner in a county jail." Ga. Code Ann. 77-309 (b) (1). From this it appears that a person who is sentenced to a state penal institution but must remain in a county jail because there is no room for him in the state penal facilities is committed to the custody of the Director of Corrections. Legally, he must be considered to be awaiting physical transfer to a state penal institution rather than having been assigned to a county jail since such assignment would violate Ga. Code Ann. 77-309 (b) (1). It is my understanding that the policy of the Director of Corrections is to first assign a prisoner to the Georgia Diagnostic and Classification Center upon his being sentenced to serve time in a state penal institution. Thus, although a prisoner has not yet been picked up and carried to the center, he has been assigned to the center. Ga. Code Ann. 77-317 (a) provides that "whenever a prisoner is discharged upon pardon or completion of his sentence, or is conditionally released or paroled, from any place of detention to which he has been assigned under the authority of the State Board of Corrections," the board shall provide him with certain gratuities. Where a prisoner is assigned to the diagnostic center, but is pardoned or completes his sentence before arriving there, he is, in effect, discharged from the center upon completion of his sentence or pardon. Therefore, it is my opinion that the board must provide the gratuities to such a prisoner pursuant to Ga. Code Ann. 77-317. 179 75-94 OPINION 75-94 To: State Superintendent of Schools August 15, 1975 Re: Bonded indebtedness may not be incurred by a county school board to finance the purchase of school buses for the county school system. You have inquired as to the propriety of the use by local school boards of proceeds generated by the sale of bonds issued by the school board for the purchase of school buses. Specifically, your questions are: (1) In those instances where the language calling for a bond election merely states that a portion of the funds derived from the :;ale of the bonds will be used to purchase equipment necessary for the operation of public schools, is it legal for the local boards to use funds resulting from the sale of those bonds for the purchase of school buses? (2) Whenever the purchase of school buses is specifically mentioned in the call for the bond election, may the funds be used towards the purchase of such buses? Initially, it appears that addressing the general question of whether bonded indebtedness may be incurred by a county to finance the purchase of school buses would naturally precede any response to your two specific queries. Therefore, I will first direct attention to that basic issue. It is quite important to note at the outset that when a political subdivision of this state seeks to incur a bonded indebtedness, a clear and manifest legal right to do so must appear. Nelms v. Stephens County School District, 201 Ga. 274 (1946). The sole general authority that I am aware of which deals with the power of a county board of education to incur bonded debt for educational purposes is that which is contained in Ga. Laws 1946, pp. 206, 216 (Ga. Code Ann. 32-1403): "Hereafter, when any county board of education shall deem it to the best interests of education in the county to incur any bonded debt for building, equipping or purchasing sites for the building and equipping of schoolhouses, pursuant to Article 7, Section 7, Paragraphs 1 and 2 of the Constitution of 1877, as amended in 1945, the election required shall be called and held in the manner prescribed by Chapter 87-2 of the Code of Georgia of 1933, as amended, and the bonds shall be validated in the manner provided by Chapter 87-3 of the Code of Georgia, as amended. The purpose of this amendment is to permit and require the same procedure to be followed in the voting, issuance, levying of taxes for, and re- 75-94 180 tirement of bonds issued by county boards of education for building and equipping schoolhouses, or purchasing sites therefor...." Statutory illumination of what is encompassed by the "building and equipping of schoolhouses, or purchasing sites therefor" is provided by Ga. Laws 1947, pp. 1186, 1187, as amended (Ga. Code Ann. 32-1403.1), wherein such language as used for the purpose of incurring county bonded debts for local schoolhouse districts (county school district subdivisions) is said to include: " ... building and equipping, enlarging and repairing lunchroom, vocational and physical education buildings and facilities, or purchasing sites therefor...." Inasmuch as you designate the funds to be provided by local bond sales as "capital outlay funds," the restrictions of bonded debt to some sort of capital construction or equipment would also seem consistent with the following definition of "capital facilities" specified in the Adequate Program for Education in Georgia Act, Ga. Laws 1974, pp. 1045, 1080, 1081 (Ga. Code Ann. 32-648a (c)): " ... buildings, fixtures and equipment necessary or desirable for the effective and efficient operation of the public schools and all facilities related or incidental thereto, which, without limiting the generality of the foregoing, shall be deemed to include classrooms, libraries, laboratories, restrooms, equipment rooms, offices, teacher lounges, lunchrooms, lunch-assembly rooms, equipment and fixtures therefor, related exterior facilities, equipment and paving, and such other similar items.... Capital outlay funds may be allotted to local units of administration for the purpose of constructing, renovating, altering or enlarging capital facilities." (Emphasis added.) The tenor of this language would appear to me to circumscribe the incurring of bonded indebtedness by counties for educational purposes to those expenditures related to the actual physical plant of the school. Such a delineation seems persuasive to me that the purchase of school buses cannot properly be included in any listing of acceptable purposes for bond indebtedness. Obviously, this opinion would appear to be demanded inter alia by the dearth of a clear and manifest legal right to incur bonded debt for the purchase of school buses. As the purchase of school buses is not an appropriate purpose for the incurrence of bonded debt by counties, the necessity for individual response to your specific enumerated questions is obviated. 181 75-96 OPINION 75-95 To: Commissioner, Department of Human Resources August 15, 1975 Re: The area planning and development commissions are not authorized to conduct child development programs nor to provide technical assistance to political subdivisions in the operation of such programs. This is in response to your request for an opinion concerning the question of whether the area planning and development commissions are classified as public agencies so that the Department of Human Resources may accept a certification of costs rather than requiring the transfer of cash for the purpose of matching federal funds in the operation of child development programs. For the following reasons, I find it unnecessary to answer this question inasmuch as the commissions are not authorized to operate child development programs nor to provide technical assistance in the operation of such programs. Area planning and development commissions were established to coordinate, on a regional basis, local planning and development functions. Ga. Laws 1970, p. 321 (Ga. Code Ann. 40-2920). To this end, they are authorized to provide technical assistance to local governments. However, they are not authorized to actually conduct social service or other governmental programs nor to provide ter;hnical assistance for governmental operations except in planning and development activities. Ops. Att'y Gen. 69-141 and U71-81 which have previously been forwarded to your department clearly explain these limitations on the powers of the commissions. Hence, it is my official opinion that your department should not contract with the area planning and development commissions for the operation of child development programs. OPINION 75-96 To: Commissioner, Department of Transportation August 15, 1975 Re: Department of Transportation may not utilize motor fuel tax funds to construct on bridges walkways for the purpose of fishing. This is in response to Deputy Commissioner Emory C. Parrish's recent request for an official opinion as to whether or not motor fuel tax funds may be utilized for the construction on bridges of walkways for the purpose of fishing. For the reasons discussed below, it is my official opinion that such an expenditure would be unauthorized. 75-97 182 The Department of Transportation may spend that portion of its annual appropriation which equals the amount derived from motor fuel taxes only for "activities incident to providing and maintaining an adequate system of public roads and bridges in this State...."Ga. Const., Art. VII, Sec. IX, Par. IV (Ga. Code Ann. 2-6204 (b)). The Georgia Supreme Court has said that the expenditure must be for items which are a necessary and usual adjunct to the construction of highways. Mulkey v. Quillian, 213 Ga. 507, 510 (1957). Neither a "walkway for the purpose of fishing" nor any similar limited use structure is included within the definition of "bridge" or "public road." Ga. Laws 1973, pp. 947, 960, 963 (Ga. Code Ann. 95A-104); Ga. Code 102-103. The construction of such a structure would be neither "incident to providing and maintaining an adequate system of public roads and bridges" (Ga. Const., Art. VII, Sec. IX, Par. IV (Ga. Code Ann. 2-6204 (b))), nor a necessary and usual adjunct to the construction of highways (Mulkey v. Quillian, Id.). It is, therefore, my official opinion that the Department of Transportation may not spend motor fuel tax funds for the construction on bridges of walkways for the purpose of fishing. OPINION 75-97 To: Director, State Crime Laboratory August 18, 1975 Re: A coroner has no authority to sign the death certificate of a civilian employee of the United States Army who committed suicide on the Ft. Benning Military Reservation within the boundaries of Muscogee County, Georgia. Your letter of August 5, 1975 requested a clarification of the authority of a coroner with regard to deaths occurring on a federal military installation. Specifically, you asked whether a coroner has authority to sign the death certificate of a civilian employee of the United States Army who committed suicide on the Ft. Benning Military Reservation within the boundaries of Muscogee County, Georgia. The General Assembly has given its consent to the acquisition by the United States of lands in Georgia for use as forts. Ga. Code (1933) 15-301. It has vested the United States with exclusive jurisdiction over such lands except for service of civil and criminal process, and it has retained civil and criminal jurisdiction over persons and citizens in such ceded territory, except as to ceded territory used by the Department of Defense and the Department of Justice. Ga. Code (1933) 15-302. It has consistently been the view of this office that the Federal 183 75-97 Government has exclusive law enforcement jurisdiction on "federal enclaves" or "federal reservations" such as United States military installations unless specific authority is provided by the Federal Government to designated state and federal law enforcement units. Ops. Att'y Gen. 1952-53, p. 8; 75-34. Only last year a question arose as to the authority of Georgia law enforcement officers to patrol and enforce the state's traffic laws on that part of Highway 27 that is located within the Ft. Benning Military Installation. It was the view of this office that the highway remains part of the federal enclave and Georgia law enforcement personnel have no jurisdiction to enforce traffic laws thereon. See letter to Hon. Emory C. Parrish, Dpty. Comm'r. of Transp., Dec. 26, 1974. In Shea v. Gehan, 70 Ga. App. 229 (1943), the Court of Appeals examined the authority of an ordinary to commit an insane person to a United States Veteran's Hospital in Richmond County, Georgia. Basing its decision on the general police power of a state to promote and protect the welfare and safety of its citizens and to treat and confine insane persons within its territorial limits, the court held that the ordinary did have jurisdiction to make such a committal despite the fact that the hospital was on land ceded by the State of Georgia to the United States. The Shea case is easily distinguished from the situation you pose. Obviously, the nature of what occurs in a federal veteran's hospital is far different from what transpires on a federal military installation. The latter is clearly a federal enclave or reservation while the veteran's hospital can hardly be said to fall within either of these categories. Moreover, the care and treatment of insane persons is indisputably a concern of the individual states, while occurrences on federal forts and military installations cannot fairly be said to come within the competence of a particular state's police power. This office has expressed the opinion that the law enforcement authority of the state does extend within the boundaries of federal parks, rest areas around federal lakes, and federal water resource development areas such as Lake Allatoona. Ops. Att'y Gen. 67-230; 75-34. Although we have not spoken to the issue of the state's authority on lands occupied by a federal veteran's hospital, the reasoning of our opinions regarding areas that are not federal enclaves or reservations would seem to extend thereto as well. Hence, it may be said that the Shea case involved an area of nonexclusive or concurrent jurisdiction, while the situation you present is clearly one involving an area of exclusive federal jurisdiction. Accordingly, whatever principles may have been announced in Shea do not apply here. Consistent, therefore, with previous opinions issued from this office regarding the authority of officials of the State of Georgia on federal lands located within Georgia, it is my official opinion that a coroner 75-98 184 has no authority to sign the death certificate of a civilian employee of the United States Army who committed suicide on the Ft. Benning Military Reservation within the boundaries of Muscogee County, Georgia. OPINION 75-98 To: Commissioner, Department of Human Resources August 21, 1975 Re: Section 9 (a) (5) of the Children and Youth Act authorizes the Department of Human Resources to file a petition with the committing court when a youthful criminal escapes from one of the department's facilities; the court then, in its discretion, may commit him to a departmental treatment facility or to the Department of Offender Rehabilitation for a definite term of 12 months. This is in response to your request for an opinion concerning the Department of Human Resources' implementation of a portion of Section 9 (a) (5) of the Children and Youth Act, Ga. Laws 1963, p. 81, as amended, particularly by Ga. Laws 1974, p. 1455 (Ga. Code Ann. 99-209 (a) (5)). The portion of that section, about which you have raised several questions, states: "Whenever any child shall escape from any youth detention center, the division shall file a petition in the court having jurisdiction and if found guilty he shall, in the discretion of the court, be punished for such escape by commitment for an additional 12 months in a youth detention center or under the Department of Offender Rehabilitation." For the following reasons, it is my official opinion that this subsection authorizes the department to file a petition with the committing court whenever a youthful criminal escapes from one of the department's facilities to which he has been committed for treatment and rehabilitation and the court may then, in its discretion, sentence him for a definite term of 12 months to either a departmental facility or the Department of Offender Rehabilitation. First, you ask whether the quoted language relates to all children committed to the department or only to those committed following conviction of a crime. Section 9 (a) (5) provides that the department is the exclusive agency for the acceptance and incarceration of any child under the age of 17 (with certain stated exceptions). Other sections of the Children and Youth Act and the Juvenile Court Code (Ga. Code Title 24A; Ga. Laws 1971, p. 709) describe the department's 185 75-98 responsibilities with respect to the treatment of delinquent and unruly juveniles. Section 9 (a) (5), in my opinion, is limited solely to young offenders who have been tried and convicted as adults. A portion of the subsection quoted above refers to a finding of guilty for escape and to subsequent punishment for an additional 12 months in either a youth detention center or the Department of Offender Rehabilitation. The Juvenile Court Code, on the other hand, explicitly states that an adjudication by a juvenile court is not a criminal conviction (Ga. Code Ann. 24A-2401) nor is punishment for a fixed term authorized. See, e.g., Ga. Code Ann. 24A-2303, 24A-2701. Moreover, Section 9 (a) (5) does not purport to change the respective jurisdictions of the juvenile and other trial courts established in Ga. Code Ann. 24A-301, so that transfer of an escapee to an adult court having criminal jurisdiction would only be authorized in certain cases, not universally. Thus, in my opinion, the procedures provided by Section 9 (a) (5) for handling escapees are applicable only to youthful criminals committed to the Department of Human Resources. You have also asked whether the department must file a petition with the appropriate court whenever a youth escapes. Although the language of the Section appears mandatory, it is my opinion that it is merely directory since "the failure of performance will result in no injury or prejudice to the substantial rights of interested persons...." McLendon v. Everett, 205 Ga. 713, 718 (1948). The department may use its discretion in deciding which escape cases should be prosecuted, being guided, of course, by the language used by the General Assembly. Another question posed is which court should be petitioned. Georgia Laws 1969, pp. 996, 997 (Ga. Code Ann. 99-222), provides that any child committed pursuant to Section 9 (a) (5) remains under the jurisdiction of the committing court. Therefore, it is my opinion that the petition should be filed with the committing court. Finally, you ask about the court's dispositional alternatives and the subsequent treatment of escapees. The court is explicitly authorized to commit the youth for an additional 12 months to a youth detention center. 1 Thus, it is my opinion that the department may not release him earlier except with the concurrence of the court as demonstrated by an amended order or upon parole by the Board of Pardons and Paroles. If the court does commit a youth to the Department of Offender Rehabilitation, the youth may be confined in one of that department's facilities because the Juvenile Court Code prohibition against the incarceration of delinquent and unruly juveniles would not 1 The General Assembly uses the term "youth detention center" generically, and, in my opinion, did not intend to limit the provision to centers for temporary detention but intended that phrase to include the department's facilities for the long-term treatment of delinquent juveniles and youthful criminals, as well as facilities for temporary detention. 75-99 186 apply. Ga. Code Ann. 24A-2401. If the youth is 16 years of age or older at the time of the escape, I recommend that you request his commitment to the Department of Offender Rehabilitation since your authority to confine such a child expires on his 17th birthday. Op. Att'y Gen. 74-139. For these reasons, it is my official opinion that pursuant to Section 9 (a) (5) of the Children and Youth Act, the Department of Human Resources is authorized to file a petition with the committing court whenever a youthful criminal has escaped from one of the department's facilities and the committing court may commit a youth found guilty of escape for an additional definite term of 12 months in a departmental treatment facility or in the custody of the Department of Offender Rehabilitation. OPINION 75-99 To: Acting Joint Secretary, State Examining Boards August 22, 1975 Re: Construction and application of Section 13A of Ga. Laws 1957, p. 219, as added by Ga. Laws 1975, p. 801, relating to the licensing of professional sanitarians. This is in response to your recent letter asking my official opinion with respect to certain questions pertaining to the construction and application of Section 13A, added by Ga. Laws 1975, p. 801. Prior to responding to the specific questions you posed, a basic inconsistency in Section 13A must be clarified. Section 13A, added by Ga. Laws 1975, p. 801, reads in pertinent part as follows: "It shall be unlawful to employ any person as a sanitarian trainee or as a sanitarian, who has not met the educational requirements for registration as a registered professional sanitarian under the provisions of this Act [Ga. Laws 1957, p. 219, as amended] or who is exempt from such requirements under the provisions of 11 of this Act. No person shall hold himself out or otherwise represent himself as a sanitarian unless he holds a valid license as a registered professional sanitarian in accordance with the provisions of this Act...." (Emphasis added.) Ga. Code Ann. 84-9963.1. The general rule of construction is that where "the language of a statute is clear, direct, and positive, leading to no absurd results and affording a suitable, if not a sufficient remedy for an existing evil, courts should be governed by the obvious meaning and import of its 187 75-99 terms." Ezekiel v. Dixon, 3 Ga. 146 (2) (1847). However, the Georgia Supreme Court in Barton v. Atkinson, 228 Ga. 733, 738 (1972), pointed out that this general rule "should not be applied so as to obscure the real purpose of judicial construction of statutes as embodied in the Cardinal Canon of Construction which is to ascertain the legislative intent." In construing a statute, the legislative intent must be determined from a consideration of the statute as a whole and apparent conflicts must be reconciled, if possible, so as to make them consistent and harmonious with one another. Undercofler v. Capital Automobile Co., 111 Ga. App. 709, 716 (1956). where the letter of the statute results in absurdity, injustice or would lead to contradiction, the meaning of the general language may be restrained by the spirit or reason of the statute. Barton v. Atkinson, supra. Applying the above stated rules of construction to Section 13A, effect must be given to the spirit and intention of the General Assembly. Since a literal reading of the emphasized language of this Section would lead to an absurd or unjust result for the persons who have already obtained a professional sanitarian license under the provisions of Section 11 of the Act, it is my official opinion that the legislative intent can be best carried out and that the patent absurdity found in Section 13A can be best corrected by reading the word "not" into the phrase "who is [not] exempt from such requirements under the provisions of Section 11 of this Act." Having thus removed the obvious inconsistency in the statute, I can now proceed to respond to your specific questions. 1. "Are not the terms 'sanitarian trainee' and 'sanitarian' as used in [Section 13A] in conflict with Section 10 of the Act?" No. In addition to a college degree, an applicant for licensure as a registered professional sanitarian must have two years of training and experience in environmental sanitation. Ga. Laws 1975, p. 801. Section 10 of the Act (Ga. Code Ann. 84-3710) merely authorizes the employment of educationally eligible individuals as "trainees" so that they might fulfill the experiential requirements for licensure. Section 13A in turn renders unlawful the employment as a sanitarian trainee (or as a sanitarian) any person who fails to satisfy the educational requirements for licensure [or who is not otherwise exempt therefrom by Section 11 of the Act (Ga. Code Ann. 84-3711)]. Since the second sentence of Section 13A prohibits anyone other than a registered professional sanitarian from holding himself out to be a "sanitarian," the effect of Section 13A is that only a person who is licensed as a registered professional sanitarian, or a trainee who meets the educational requirements for licensure, may be employed as a sanitarian. 75-100 188 2. "Are the terms 'sanitarian' and 'registered professional sanitarian' interchangeable in the Act?" No. These terms are separately defined in Section 1 of the Act (Ga. Code Ann. 84-3701), with the term "sanitarian" being more broadly defined. 3. "Must a 'sanitarian' as defined in Section 1 (A) of the Act ... meet the minimum educational requirements?" For the reasons stated above, this question must be answered in the affirmative. However, it should be specifically noted that Section 13A does not prohibit the employment of a registered professional sanitarian who lacks the minimum educational requirements and who was licensed by reason of the exemption found in Section 11 of the Act. Your remaining questions were primarily addressed to the issue of whether the restrictions found in Section 13A are applicable to the state and its agencies. Georgia Code (1933) 102-109 provides: "The State is not bound by the passage of a law unless named therein, or unless the words of the Act should be so plain, clear and unmistakable as to leave no doubt as to the intention of the legislature." Since the Act in question does not specifically provide that it shall be applicable to the state, and since the language employed does not otherwise demand such a conclusion, it is my official opinion that the state and its agencies need not comply with the provisions of Section 13A or any other section of the Act. Thus, absent other limitations such as qualifications established by the State Personnel Board, the state may employ as sanitarians individuals who are not registered professional sanitarians or who do not satisfy the educational requirements specified in the Act. The wisdom of a state agency undertaking to do so is another matter. OPINION 75-100 To: Acting Joint Secretary, State Examining Boards August 25, 1975 Re: While fingerprints of applicants for licensure and registration must be forwarded to certain state and federal agencies, the Georgia State Board of Private Detective and Security Agencies may, in its discretion, issue such licenses and registrations prior to receiving responses from these agencies. This is in response to your request for my official opinion as to whether the Georgia State Board of Private Detective and Private 189 75-100 Security Agencies may issue licenses, registrations and firearm permits to applicants prior to receiving responses from the Georgia Crime Information Center and the Federal Bureau of Investigation, agencies to which the applicant's fingerprints must be submitted pursuant to Ga. Laws 1973, pp. 40, 50 (Ga. Code Ann. 84-6511). Your question evidently arises from the requirements of Ga. Laws 1973, pp. 40, 45, 47 and 49 (Ga. Code Ann. 84-6505, 84-6508 and 84-6510), which all provide that persons seeking licensure or registration with the board must submit two complete sets of fingerprints on forms specified and furnished by the board, and by Ga. Laws 1973, pp. 40, 50 (Ga. Code Ann. 84-6511), which requires that the board forward these fingerprints to the Georgia Crime Information Center and to the Director of the Federal Bureau of Investigation. It is my opinion that the issuance of licenses and registrations and, consequently, firearm permits, is not dependent on the receipt of responses from these agencies for the following reasons. Initially, none of the sections referred to specifically requires that the board obtain responses from the agencies cited as a prerequisite for issuing the licenses, registrations and firearm permits. Georgia Laws 1973, pp. 40, 47 (Ga. Code Ann. 84-6507), relating to the issuance of licenses, provides that: "Upon being satisfied, after investigation, of the good character, competency and integrity of an applicant ... the board may grant a license to conduct such private detective business or private security business stated in such application.'' (Emphasis added.) Georgia Laws 1973, pp. 40, 47 (Ga. Code Ann. 84-6508), relating to registrations, provides that: "Upon being satisfied of the suitability of the applicant for employment the board shall register the employee and so notify the licensee." The same language is found in Ga. Laws 1973, pp. 40, 49 (Ga. Code Ann. 84-6510), relating to persons employed on an employer/employee basis for the purpose of doing private security work on the premises and in connection with the affairs of such employer only. All of these sections clearly provide that the granting of the license or registration turns upon the decision of the board that the person is suitable for licensure or registration and makes no specific reference as to how the investigation or the determination shall be made. As to the question of firearm permits, Ga. Laws 1973, pp. 40, 50 (Ga. Code Ann. 84-6512), simply provides that: "The board may grant to any person licensed or registered in accordance with the provisions of this Chapter, a permit to carry a pistol, revolver or other firearm." 75-101 190 Thus, there is no requirement in this section that the board conduct any investigation which would require responses from the above-named agencies prior to the issuance of the permit. There is one final provision of the law which also leads me to believe that it is not necessary to have the report on the fingerprints prior to issuing a license, registration or firearm permit. Georgia Laws 1973, pp. 40, 52 (Ga. Code Ann. 84-6514 (a) (1)), specifically provides that the board may suspend or revoke a license or registration if it determines that the holder of the license: " ... made any false statement or given [sic] any false information in connection with an application or renewal or reinstatement of a license or registration." Therefore, since your application specifically requests a list of convictions, which in essence is the information which is returned to you from the above-mentioned agencies, it is readily apparent that there is a mechanism for revoking any license, registration or firearm permit if it is shown that the applicant has false information on his application with regard to these convictions. I want to caution you that my conclusions reflect only the minimum which I perceive the law to require. In each case a great deal of discretion is left to the board as to the measures which it wishes to take to insure the suitability of a potential licensee, registrant or person seeking a firearm permit, and it would be perfectly permissible to require, prior to issuing such a license, registration or permit, that the fingerprints be forwarded to the appropriate agencies and that the replies be obtained. All that I have concluded is that it is not absolutely required that the board do so before issuing these licenses. OPINION 75-101 To: Commissioner, Department of Human Resources August 29, 1975 Re: 45 C.F.R. 250.19 (a) (1) (viii) may not be used as authority for requiring 24-hour review of hospital admissions; approval of utilization review programs including such 24-hour review on either an obligatory or optional basis could result in possible legal action; the remaining sections of 45 C.F.R. 250.18-20 should continue to be implemented. This is in response to your recent letter requesting my opinion as to the impact, if any, of the decision in the case of American Medical Ass'n v. Weinberger (N.D. Ill.), Civ. No. 75-C-560, June 5, 1975 [here- 191 75-101 inafter "AMA case"], upon a contract between the Department of Human Resources and the Georgia Medical Care Foundation. Because this matter involves the joint federal-state administration of the Medicaid program under Title XIX of the Social Security Act, 42 U.S.C. 1396 et seq., I think it appropriate to briefly examine the statutory authority for the particular regulatory and contractual provisions in question. F~derallaw requires that State Medicaid plans provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan as may be necessary to safeguard against unnecessary utilization and to assure that payments are not in excess of reasonable charges consistent with efficiency, economy and quality of care. 42 U.S.C. 1396a (a) (30). A state health or medical agency must also establish a plan, consistent with regulations prescribed by the Secretary of Health, Education and 'Velfare [hereinafter "HEW"], for review by professional health personnel of the appropriateness and quality of care and services furnished to Medicaid recipients in order to furnish guidance to the state agency administering the Medicaid program. 42 U.S.C. 1396a (a) (33). On November 29, 1974, HEW promulgated certain regulatory provisions (45 C.F.R. 250.18-20) governing the requirements for utilization control under the Medicaid program. 39 F.R. 41604, 41610. Among these detailed regulations was a requirement (45 C.F.R. 250.18 (a) (iii)) that the state agency's utilization control program must include a provision requiring all participating hospitals to have a written utilization review plan in compliance with 45 C.F.R. 250.19. That regulation, in turn, specifies that the hospital shall provide, inter alia, for the determination of the medical necessity of each individual admission by means of a review held within one working day (hereinafter "24-hour review"). 45 C.F.R. 250.19 (a) (1) (viii). In contemplation of the July 1, 1975 effective date of these federal regulations, it is my understanding that the Department of Human Resources [hereinafter "DHR"] made plans to offer hospitals participating in the Medicaid program the following alternatives in order to comply with 45 C.F.R. 250.19: (1) each hospital could submit its own utilization review plan to DHR; or (2) the hospital could elect to participate in the Certified Hospital Extension of Care (CHEC) program to be operated by the Georgia Medical Care Foundation under contract with DHR. Both of these alternatives provided for the inclusion of 24-hour review of hospital admissions as seemingly mandated by the then impending federal regulations. However, as you know, before those 75-101 192 regulations could be implemented, the United States District Court for the Northern District of Illinois issued a preliminary injunction in the AMA case prohibiting HEW ((from in any way enforcing or implementing" 45 C.F.R. 250.19 (a) (1) (viii) [24-hour review] pending final disposition of the merits. The court noted that under 1902 (a) (19) of the Social Security Act, a state plan must: " ... provide such safeguards as may be necessary to assure that eligibility for care and services under the plan will be determined, and such care and services will be provided in a manner consistent with simplicity of administration and the best interests of the recipients; (emphasis supplied) 42 U.S.C. 1396a (a) (19)." American Medical Association v. Weinberger, supra. It was the court's opinion that: "If the effect of the twenty-four hour admission review, which was promulgated under the Medicaid program, is as the physician plaintiffs testified, to keep patients in need of hospitalization out of the hospital, the plan cannot be 'in the best interests of the recipients,' or, therefore, consistent with 1396a (a) (19)." Id. On July 23, 1975, the United States Court of Appeals for the Seventh Circuit refused to grant HEW's request for a stay of the District Court Order and, consequently, HEW has delayed the effective date of 45 C.F.R. 250.19 (a) (1) (viii) until further notice. 40 F.R. 33033, August 6, 1975. However, all other sections of 45 C.F.R. 250.18-20 became effective July 1, 1975, and the states are expected to continue unabated their activities to implement those portions of the new regulations. Action Transmittal, SRS-AT-75-47 (MSA) July 1, 1975, CCH Medicare and Medicaid Rptr. ~27, 450. I have examined the contract between DHR and the Georgia Medical Care Foundation in which the foundation has agreed to perform various services, including the review of hospital claims for medical necessity and appropriateness of care and concurrent utilization review under the CHEC program in accordance with 45 C.F.R. 250.19 (a) (1). Of course, in view of your present inquiry, the following is the most pertinent clause: "7 (C) (3). It is agreed by the State Agency and the Foundation that in event an injunction is obtained which prevents the implementation of 45 C.F.R. 250.19 (a) (1) (viii) in part or in whole, the application of this subsection (7.C.2.) [the CHEC program] shall be reconsidered by the parties upon advice of Counsel." This clause is not without some ambiguity because it is not clear whether the parties intended the triggering "injunction" be of a preliminary or permanent nature, or whether it be issued against federal 193 75-101 or state officials. However, assuming an interpretation broad enough to encompass the preliminary injunction issued in the AMA case, you are properly concerned with the implementation of the CHEC program under your contract with the foundation. Although the injunction was issued only against HEW and not the states, if a state were to require such a 24-hour review, the issues in any possible legal action could well be the same as in the AMA suit, i.e., alleged irreparable harm to the recipient, constitutional violations, and inconsistency with 42 U.S.C. 1396a (a) (19). Whereas the concept of sovereign immunity and the Eleventh Amendment could protect the state itself from suit without its consent, Edelman v. Jordan, 415 U.S. 651 (1974), public officials, as you know, are not necessarily so immune. Rosado v. Wyman, 397 U.S. 397, 420 (1970). The possibility of legal action against you would not be obviated by the mere fact that 24-hour review could be made an optional provision of the CHEC program, with participation therein to remain a voluntary choice for each private hospital. The question of whether particular conduct is private, on the one hand, or amounts to "state action," on the other hand, frequently admits of no easy answer. Moose Lodge No. 107 v. Davis, 407 U.S. 163, 172 (1972). However, the state may neither authorize nor encourage actions which would deprive persons of rights guaranteed to them by the Constitution or laws of the United States. Reitman v. Mulkey, 387 U.S. 369 (1967). Moreover, the Supreme Court has said that when the state has "so far insinuated itself into a position of interdependence" with a private party, "it must be recognized as a joint participant in the challenged activity which, on that account, cannot be considered to have been so purely private as to fall without the scope of the Fourteenth Amendment." Burton v. Wilmington Parking Authority, 365 U.S. 715, 725 (1961). It is my understanding that your department would be not only authorizing the payment of funds for the CHEC program, but also encouraging participation by waiving your rights to retrospectively review, deny or reduce claims from participating hospitals. Additionally, DHR would derive benefits from the CHEC program from the procedural standardization and technical assistance it would provide. Consequently, a system of 24-hour review, if challenged locally, would probably not be seen as a purely private action of participating hospitals, although they and the foundation might well be joined as defendants. As I am sure you realize, I do not intend these remarks to be interpreted in any manner as an opinion on the merits of the litigation pending in the Northern District of Illinois. HEW may well ultimately prevail in that action, in which case implementation of the challenged regulation could again become a federal funding mandate. However, 75-102 194 in view of the considerable length of time no doubt required for resolution of the AMA case, the large amount of money involved in your contract with the Georgia Medical Care Foundation, and the potentially serious legal ramifications attendant to the administration of the CHEC program, I think you are well advised to proceed cautiously in this matter. Therefore, it is my official opinion that: (1) You may not rely on 45 C.F.R. 250.19 (a) (1) (viii) as authority for requiring 24-hour review of hospital admissions; (2) If you approve utilization review programs which include 24hour review of hospital admissions, on either an obligatory or optional basis, you will be subjecting yourself to possible legal action; (3) The remaining sections of 45 C.F.R. 250.18-20 were not affected by the injunction in the AMA case and should continue to be implemented. In conclusion, it would seem entirely prudent and proper for you to exercise your contractual right to reconsider the CHEC program, although, of course, any decision in that regard remains a matter of your own sound policy discretion. OPINION 75-102 To: Commissioner, Department of Banking and Finance September 5, 1975 Re: Money transfer companies are not subject to the Sale of Checks Act (Ga. Laws 1974, pp. 705, 911) unless there is an issuance of a check or other instrument to the recipient of the funds disbursed. This is in response to your request for my opinion as to whether a certain mode of operation by a "money transfer company" falls within the purview of the Sale of Checks Act (Ga. Laws 1974, pp. 705, 911 et seq. (Ga. Code Ch. 41A-32)). As you know, in an earlier opinion 1 I expressed the view that certain money transfer companies described in that opinion were subject to the Sale of Checks Act (Act). Of course, that opinion was premised on the particular facts and mode of transacting business described in that opinion. I am informed that since the issuance of that opinion certain money transfer companies have altered their mode of operation in an effort to avoid the restrictions of the Act. You have asked whether the 1 Op. Att'y Gen. 75-21. 195 75-102 new mode of operation is sufficient to remove those companies from the Act's coverage. The Act provides in pertinent part as follows: "No person or corporation ... shall engage in the business of selling or issuing checks without having first obtained a license under this Chapter...." Ga. Code Ann. 41A-3202. As used in this opinion and Opinion 75-21, the term "money transfer companies" is meant to include only those companies which transmit money (either by means of a negotiable instrument or by an authorization to disburse funds) and/or documents (i.e., truck permits) required by truck drivers during the course of their interstate trips. The system generally used by such a company is that it will contract with a trucking company to provide the service in question to the trucking company's drivers. The money transfer company also executes contracts with various truck stop operators, making the operators its agents for the handling of the items transmitted. The transmissions are achieved through the use of telecommunication facsimile equipment installed at the money transfer company and in the truck stops. 2 The actual procedure used for effecting a transmission was generally described in Opinion 75-21. Very briefly, the procedure requires that the truck driver notify his company of his need for funds (or permits) and inform the company of the truck stop where he wants to pick up the funds. The trucking company contacts the money transfer company and authorizes the disbursement. The money transfer company then transmits the necessary documents to the indicated truck stop, which in turn disburses to the truck driver. Of course, the money transfer company receives a fee from the trucking company for its service, and the truck stop operator receives a fee from the money transfer company for handling the transaction. In Opinion 75-21, I dealt with a procedure whereby funds were disbursed by the money transfer company's agent (the truck stop operator) delivering to the truck driver an instrument made payable to that driver. The driver would then endorse the instrument and exchange it for cash at the truck stop. I determined in Opinion 75-21 that the delivery of this instrument to the truck driver by the agent was the issuance of a check within the meaning of Ga. Code Ann. 41A-3202. The question presently posed is whether a slightly modified procedure necessitates the same legal conclusion. I am informed that certain of the money transfer companies disburse 2 In some instances the money transfer company will install the equipment in the trucking company and authorize the trucking company to make the actual transmission. In my view, this variation is immaterial to the issue presented since the trucking company in making these transmissions is acting as the agent of the money transfer company. 75-103 196 funds by transmitting an instrument made payable to the agent (the truck stop operator), rather than to the truck driver. The instrument, which is negotiable, is used as authorization for the agent to disburse the amount of the instrument to the truck driver. The instrument itself is not delivered to or endorsed by the truck driver. Hence, no holder of the instrument ever has any recourse against the driver. The instrument is later endorsed by the agent and deposited in his bank account for collection. Once again, the agent receives a fee from the money transfer company for his role in the transaction. Clearly, this procedure is distinguishable from that described in Opinion 75-21. The critical question in any such case is whether there has been an "issue" within the meaning of Ga. Code 41A-3202. In Opinion 75-21, I stated: "Thus, the money transfer company agent in providing the truck driver the completed instrument can be said to be 'issuing' such instrument in the sense that the word 'issue' is defined in the ... Act." (Emphasis added.) It necessarily follows, therefore, that where the transmitted instrument is used merely to authorize the agent's payment of cash to the truck driver and to reimburse the agent for the funds expended, there has not been an "issue" within the meaning of the Act. Moreover, this eonclusion is consonant with the intent of the Act to protect innocent members of the public from financial injury resulting from the default of check-issuing companies. Under the procedure described above, only the agent can be injured if the money transfer company defaults, and he has received a fee for incurring this risk. Furthermore, I am unable to conclude that the mere transmission of an instrument by the money transfer company to its agent is the "issuance of a check" within the meaning of Ga. Code Ann. 41A-3202. Therefore, it is my official opinion that a money transfer company is not subject to the Sale of Checks Act unless the company or its agent actually issues, as defined in Opinion 75-21, an instrument, negotiable or otherwise, to the truck driver, and that the mere transmission of such an instrument by the money transfer company to its agent is not an "issue" within the meaning of the Act. OPINION 75-103 To: Secretary of State September 5, 1975 Re: Members of the State Ethics Commission are not entitled to reimbursement for food and lodging expenses but only for traveling expenses, i.e., the actual cost of transportation depending on the type of carrier utilized, while engaged in the business of the commission. 197 75-103 Your letter of August 7, 1975 requested an official opinion from this office as to the proper construction of a portion of Ga. Laws 1974, p. 155, as amended; Ga. Code Ann. Ch. 40-38 (hereinafter "Campaign and Financial Disclosure Act"). Specifically, you seek clarification of the 1975 amendment to the Campaign and Financial Disclosure Act that provided for the creation of the State Ethics Commission and that stated: "(d) Members of the Commission shall serve without compensation, but shall be reimbursed in an amount of $36.00 per diem for each day or portion thereof spent in serving as members of the Commission. They shall be paid their necessary traveling expenses while engaged in the business of the Commission." Ga. Laws 1975, pp. 1120, 1129; Ga. Code Ann. 40-3809. The statutory language quoted above clearly indicates that while members of the State Ethics Commission are not to be compensated for their services, they are to receive both a per diem and their necessary traveling expenses while engaged in the business of the commission. The term "per diem" is defined as pay for a day's service. Scroggie v. Scarborough, 160 S.E. 596, 599 (S.C. 1931). Therefore, for each day or portion thereof a member of the commission engages in the business of the commission he is entitled to receive the stated per diem. In Georgia the cardinal rule of statutory construction is that the language of the statute is to be interpreted according to the common, ordinary meaning that is usually attached to the words it contains. Foster v. Vickery, 202 Ga. 55 (1947). Hence, the phrase "necessary traveling expenses" means those out-of-pocket costs necessarily incurred in transportation from one locale to another by means of private or commercial common carrier. Although statutes are to be interpreted commensurate with the ordinary and common signification their words import, we must also keep in mind that the legislature does not legislate in vacuo but with full knowledge of existing laws and with reference to them. Botts v. Southeastern Pipeline Co., 190 Ga. 689, 700 (1940); Thornton v. Anderson, 207 Ga. 714, 718 (1951). Hence, it is a rule of long standing in Georgia that statutes relating to the same subject matter, that is, in pari materia, should be construed together in order that legislative intent may be ascertained and effectuated. Harrison v. Walker, 1 Ga. 32 (1846); McDougald v. Dougherty, 14 Ga. 674 (1854); State v. Justices of Inferior Court, 15 Ga. 408 (1854); Daniel v. Citizens & Sou. Nat'l. Bank, 182 Ga. 384 (1936); Huntsinger v. State, 200 Ga. 127 (1946); Ryan v. Chatham County Comm'rs, 203 Ga. 730 (1948). Therefore, without attempting or purporting to have exhaustively examined all statutes relating to the compensation of members of state boards and commissions, we might look to the Act creating the 75-104 198 State Election Board in order to clarify the phrase "necessary traveling expenses" as it applies to the case at hand. The law provides that: "Each member of the State Election Board shall receive a per diem of $25 for each day spent in the work of the board and shall receive his necessary traveling, food and lodging expenses incurred in the performance of his duty, to be paid by the Secretary of State: Provided, however, that the chairman of the board shall receive no per diem." Ga. Laws 1964, Extra. Sess., pp. 26, 38 (Ga. Code Ann. 34-205). (Emphasis added.) The Act quoted above affords members of the Election Board reimbursement for necessary traveling, food and lodging expenses incurred while performing their duties or engaged in the business of the board. Significantly, the statute above unambiguously provides for reimbursement in three separate categories, to-wit, traveling, food, and lodging expenses. The portion of the Campaign and Financial Disclosure Act dealing with the State Ethics Commission and the reimbursement of its members mentions only traveling expenses. Construing these statutes in pari materia, the conclusion is inescapable that had the General Assembly intended for members of the State Ethics Commission to be entitled to reimbursement for items other than traveling expenses, it would have so provided just as it did in the case of the Election Board. Accordingly, we conclude the members of the State Ethics Commission are not entitled to reimbursement for food and lodging expenses but only for traveling expenses, i.e., the actual cost of transportation depending on the type of carrier utilized, while engaged in the business of the commission. Of course, this opinion is written with full knowledge that had the General Assembly intended a different conclusion from what we have reached, it can easily correct the situation by means of more explicit legislation when it convenes in January 1976. OPINION 75-104 To: Director, Employees Retirement System September 7, 1975 Re: A member of the Trial Judges and Solicitors Retirement Fund may, after obtaining a minimum of 10 years' creditable service, retire at any age and be entitled to a retirement benefit, but such retirement benefit is not payable until the member attains age 65 and files a written application for the retirement benefits in accordance with the Act. The Trial Judges and Solicitors Retirement Fund, which is adminis- 199 75-104 tered by the board of trustees of your system, provides retirement benefits to members of that fund who satisfy the statutory requirements of Georgia Laws 1968, p. 259 et seq., as amended (Ga. Code Ch. 78-13, as amended). Specifically, Section 18 of the Trial Judges and Solicitors Retirement Fund Act (Ga. Code Ann. 78-1318) provides in relevant part as follows: "Section 18. After obtaining a minimum of ten years' creditable service, any member may retire on a monthly retirement benefit upon written application to the board of trustees setting forth at what time, not less than thirty days or more than ninety days, subsequent to the execution and filing thereof, he desires to be retired, provided the member at the time so specified for retirement has attained age sixty-five. ..." (Emphasis added.) You have inquired as to whether, under the above-quoted language, a member of the Trial Judges and Solicitors Retirement Fund, after accumulating a minimum of 10 years' creditable service, may retire at any age and be entitled to a retirement benefit, although such retirement benefit is not payable to the member until he attains the age of 65. For reasons which follow, the answer to your question is in the affirmative. In a previous opinion rendered to you construing the statute providing optional retirement benefits to appellate court judges (Ga. Laws 1971, pp. 99, 100; Ga. Code Ann. 40-2535), I advised you that in my opinion, under this statute, an appellate court judge who has at least 10 years of creditable service becomes entitled to retirement benefits, but that such benefits are not payable until the judge reaches age 65. I further opined that it is our interpretation that there is no requirement in the statute that the member must be in active service as an appellate court judge at age 65 when he becomes entitled to receive benefits. Rather, it is only required that the judge must have attained age 65 and have completed a minimum of 10 years' service at some time. See Op. Att'y Gen. 71-203. I continue to adhere to my opinion that this is a proper and correct construction of the statute. The reason I have mentioned Op. Att'y Gen. 71-203 is that I feel the rationale and conclusion therein is directly analogous to the question you have posed concerning the Trial Judges and Solicitors Retirement Fund Act. while the language in the two statutory sections is not identical, the substantive requirements are in my opinion the same. That is, Section 18 of the Trial Judges and Solicitors Retirement Fund Act merely requires that a member of that fund obtain, at some time, 10 years of creditable service in order to be entitled to retirement benefits. However, such benefits cannot be paid to the member until he attains the age of 65. Consequently, there is no requirement that a member of the Trial Judges and Solicitors Retirement Fund, at age 65 75-105 200 when he becomes entitled to receive retirement benefits, be in active service as a superior court judge, district attorney, or judge or solicitor of an inferior court. Any other construction would not be consonant with the principle that retirement statutes must be liberally construed in favor of the beneficiary. See City of Macon v. Herrington, 198 Ga. 576 (1944); Burks v. Board of Trustees, 214 Ga. 251 (1958). Accordingly, it is my official opinion that a member of the Trial Judges and Solicitors Retirement Fund may, after obtaining a minimum of 10 years' creditable service, retire at any age and be entitled to a retirement benefit, but that such retirement benefit is not payable until the member attains age 65 and files a written application for the retirement benefits in accordance with the Act. As an aside, I might add that the same rationale and conclusion which is expressed herein would also appertain to a member retiring under the early retirement provisions of Section 19 of the Act (Ga. Code Ann. 78-1319). OPINION 75-105 To: Chairman, Georgia Public Service Commission September 8, 1975 Re: The Public Service Commission has the authority to promulgate a rule that service upon the Consumers' Utility Counsel pursuant to Ga. Code 93-303a (a) shall be complete upon mailing. This is in response to your recent letter asking for my opinion with respect to the notice requirement of Ga. Code Ann. 93-303a (a) (Ga. Laws 1975, pp. 372, 374). As you stated in your letter, that section provides that the Public Service Commission may not hear or determine any petition or complaint unless the Consumers' Utility Counsel (Public Counsel) has been given 10 days' written notice thereof. In Op. Att'y Gen. 75-76, I expressed my opinion that this section required the moving party, whether an applicant, complainant or the commission, to serve notice upon the Public Counsel. I further stated in Opinion 75-76 that the commission could by rule require that the act of service be shown by a certificate of service, and I understand from your letter that the commission has promulgated such a rule. However, a question has now arisen with respect to when the 10-day period begins to run when the Public Counsel is served by mail. Obviously, this is a question not directly covered by the Act creating the office of Public Counsel. Moreover, Ga. Code Ann. 102-102 (8), which deals with the manner in which time is computed, does not resolve the issue presented by your letter. Consequently, this is a matter 201 75-106 peculiarly adapted to resolution by the issuance of an appropriate rule pursuant to Ga. Code Ann. 93-501 (Ga. Laws 1945, p. 356) specifying precisely when the time period shall begin to run. In promulgating such a regulation, the commission has two primary choices in determining when the 10-day period shall begin: the date of mailing, as shown by the certificate of service, or the date the notice was actually received by the Public Counsel. Clearly, utilization of the latter date as the starting point injects uncertainty and confusion into the commission's proceedings since the commission has no adequate means of determining the precise date notice is received by the Public Counsel. Moreover, such a rule would be burdensome on third parties who have even less means to ascertain the date of receipt. On the other hand, promulgation of a rule that service shall be complete upon mailing and that the 10-day period shall run from the date of service, as shown on the certificate of service, adds certainty and clarity to the commission's proceedings. In addition to this degree of certainty, such a rule would also lighten the administrative burden on the commission and align the commission's procedures with those of the courts of this state since the courts also operate under such a rule. See, e.g., Ga. Code Ann. SIA-105 (b) (Ga. Laws 1966, p. 609; 1967, p. 226). In conclusion, therefore, it is my official opinion, as noted in Op. Att'y Gen. 75-76, that the commission is empowered to resolve this question by a properly promulgated rule, and a rule that service is complete upon mailing would probably best serve the needs of the commission. OPINION 75-106 To: Commissioner, Georgia Department of Community Development September 9, 1975 Re: The two unclassified positions in the Georgia Organized Crime Prevention Council (the executive director and his secretary) need not be counted in computing the number of unclassified full-time permanent managerial positions in the State Crime Commission for purposes of Ga. Laws 1975, pp. 79, 82. This is in reply to your recent request for my opinion in regard to two unclassified positions (the executive director and his secretary) in the Georgia Organized Crime Prevention Council, which is attached to the State Crime Commission for administrative purposes only. Specifically, you want to know if these two positions must be counted as full-time permanent managerial positions of the State Crime Commis- 75-107 202 sion within the meaning of Ga. Laws 1975, p. 79 et seq. (Ga. Code Ann. Ch. 40-22). Subsection 2 (a) (2) (xiii) of that Act gives a department or commission head authority to remove up to five positions from the classified service, provided that his department does not have five full-time permanent managerial positions other than the department head and his deputy in the unclassified service. Op. Att'y Gen. 75-48. The Executive Reorganization Act of 1972 provided that a department to which an agency is assigned for administrative purposes only would perform various clerical functions for the assigned agency, but would not have any right to control the more substantive functions of the agency. Ga. Laws 1972, pp. 1015, 1020 (Ga. Code Ann. 40-350.5). By his Executive Order of June 1, 1975, the Governor authorized the Georgia Organized Crime Prevention Council to appoint a full-time executive director and other personnel, without specifying that such appointments be subject to the approval or control of the State Crime Commission, to which the council was attached for administrative purposes only. Thus, it follows that these positions are not ones which should be considered as being contained within the State Crime Commission. Therefore, it is my official opinion that the two unclassified positions in the Georgia Organized Crime Prevention Council (the executive director and his secretary) need not be counted in computing the number of unclassified full-time permanent managerial positions in the State Crime Commission for purposes of Ga. Laws 1975, pp. 79, 82 (Ga. Code Ann. 40-2202). OPINION 75-107 To: Acting Commissioner, Personnel Administration September 10, 1975 Re: The Georgia Deferred Compensation Plan can be funded by any of several methods so long as the plan operates without cost to the state except for the incidental expense of administering the payroll salary deduction or reduction and the remittance thereof. This is in response to your recent letter requesting my official opinion on the legality of four proposed methods for funding the administrative cost of the Georgia Deferred Compensation Plan (Ga. Laws 1974, p. 198; Ga. Code Ann. Ch. 89-16). Those four considered methods are as follows: 1. The State Personnel Board shall assess a fiscal intermediary, which will be chosen by the State Personnel Board, for expenses incurred by the State Personnel Board. The fiscal intermediary 203 75-107 will deduct an amount from each participant's deferred monies prior to transmitting to the investing entity. 2. The State Personnel Board shall assess each of the investing entities for expenses incurred by the State Personnel Board. The investing entity shall not be permitted to deduct this charge from the participants' deferred monies. 3. The State Personnel Board shall assess each of the investing entities for expenses incurred by the State Personnel Board. The investing entity shall be permitted to deduct this charge from the participants' deferred monies. 4. The State Personnel Board shall deduct a set amount from each participant's deferred monies for administrative expense. To determine if any of these four methods, or all of them, are legally permissible, we must determine the power and authority granted to the State Personnel Board in administering this plan as well as any limitations on that power or authority. First, the state is authorized to purchase or contract with any company qualified to do business in this state to carry out the provisions of its deferred compensation plan as adopted.! Ga. Laws 1974, p. 198 (Section 2). Furthermore, the state is authorized to make payment from the funds derived from the deferral of compensation for the purpose of carrying out the provisions of its plan. Ga. Laws 1974, pp. 198, 199 (Section 5). However, the state's authority is limited to the extent that its deferred compensation plan must operate without cost to the state except for the incidental expense of administering the payroll salary deduction or reduction and the remittance thereof. Ga. Laws 1974, pp. 198, 199 (Section 7). Based upon the foregoing analysis of the Georgia Deferred Compensation Law, it would appear that all four of the proposed methods would be legally acceptable. Therefore, it is my official opinion that the State Personnel Board could use any of the four above-mentioned methods for financing the Georgia Deferred Compensation Plan so long as the State Personnel Board insures that the plan operates without cost to the state other than the incidental expense of administering the payroll salary deductions and reductions and the remittance thereof. 1 For purposes of this opinion, where the terms fiscal intermediary and investing entity are used, they refer to a fiscal intermediary qualified to do business in Georgia and to an investing entity qualified to do business in Georgia, respectively. 75-108 204 OPINION 75-108 To: Commissioner, Department of Transportation September 12, 1975 Re: The measurement of roads in Muscogee County for the purpose of determining proportional share of the annual distribution of a state grant under the General Appropriations Act should include only those roads which are outside the boundaries of Urban Services Districts Numbers One and Two. [This opinion supersedes Op. Att'y Gen. 75-68.] Recently, you requested my official opinion as to whether the entire road network, except roads on the State Highway System, contained within the boundaries of consolidated Columbus, Georgia, should be aggregated under the classification "County Road System" in determining the county grant allotment to Columbus provided for annually in the General Appropriations Act. On July 3, 1975, I issued an opinion in response to your request. Op. Att'y Gen. 75-68. Subsequent to the issuance of the opinion, the Department of Transportation provided this office with additional information regarding the boundaries of Columbus' Urban Services Districts which compels me, by this writing, to supersede the previous official opinion. Based upon that additional information, it is now my official opinion that only those roads outside of consolidated Columbus, Georgia's Urban Services Districts Numbers One and Two, and their extensions into these districts, should be included as part of the "County Road System." In order to place this problem in perspective, a chronological resume of certain legislative actions is in order. Annually, since 1951, the General Assembly has appropriated $4.5 million to the Department of Transportation for grants to counties for aid in county road construction. E.g., Ga. Laws 1951, pp. 417, 428; 1961, pp. 356, 368; 1971, pp. 111, 133-34; 1974, pp. 1508, 1625; 1975, Extra. Sess., pp. 1734, 1875. These funds are distributed to the counties based upon the proportion of each county's public road mileage to the total public road mileage in the state. In 1965, the General Assembly enacted legislation distributing funds, to the extent appropriated, to the state's municipalities to assist them in constructing and maintaining a system of public roads, streets, sidewalks, bridges and appurtenances. Ga. Laws 1965, p. 458 (Ga. Code Ann. Ch. 69-13). These funds are distributed in accordance with a formula based upon the population of each municipality as reflected in the decennial census. Through these pieces of legislation, the General Assembly has 205 75-108 assured cities and counties of state assistance in constructing and maintaining roads under their respective jurisdictions. Although additional statutes, such as Georgia Laws 1975, page 1079, provide further assistance in this area, they are neither pertinent to nor dealt with in this opinion, although they have been considered. In 1970, the citizens of the City of Columbus and Muscogee County voted to consolidate the two governments and adopted the charter of the Consolidated Government of Columbus, Georgia, hereinafter referred to as "the charter." Ga. Laws 1971, Extra. Sess., p. 2007. It is stated therein that both the term "county" and "municipality" shall be construed to include Columbus, Georgia, when construing the applicability of provisions of the Georgia Constitution and general laws which apply to either counties or municipalities or both. Charter, Sec. 8-200 (2) (Ga. Laws 1971, Extra. Sess., pp. 2007, 2101). The charter further provides that the consolidated government is to be deemed a county and also to be deemed an incorporated city or municipality for the purpose of receiving state assistance or state grants-inaid. Charter, Sec. 8-206 (1) (Ga. Laws 1971, Extra. Sess., pp. 2007, 2105). A literal reading of these sections would provide Columbus, Georgia with a disproportionate share of the state assistance for road systems. Columbus would be entitled to funds from both assistance programs for all roads on the single "system" now maintained by the consolidated government. Because the consolidated government did not exist when these two programs were established, it is difficult to conceive that this result would have been intended by the General Assembly. In interpreting statutes, the search is for the intent of the General Assembly. Ga. Code 102-102 (9). In the search, all portions of the statute are to be given due weight and meaning. Boyles v. Steine, 224 Ga. 392, 395 (1968). In construing a statute, the spirit of the enactment should be considered and the courts are not controlled by the literal meaning of the language. The spirit or the intention of the law may prevail over the letter. See Drake v. Thyer Mfg. Corp., 105 Ga. App. 20, 22 (1961). With this in mind, an interpretation that the consolidated government could receive funds only under one of the grants would also be inconsistent with the legislative intent. The charter provides that the consolidated government would be entitled to receive all state grants which either the city or the county would be authorized to receive "without diminution or loss by reason of consolidation of the County of Muscogee and City of Columbus." Charter, Sec. 8-206 (Ga. Laws 1971, Extra. Sess., pp. 2007, 2105). This section specifically mentions the two grants for road purposes noted above. The problem becomes one of lending meaning to all portions of the charter without thwarting the intent of the General Assembly or prejudicing the other cities and counties of the state. The vehicle for doing this is contained in Section 8-203 of the charter, which provides 75-109 206 that although the consolidated government constitutes both a city and county, where a conflict would arise in considering it as both: " ... the Urban Services District shall be considered a municipality, and the General Services District shall be considered a county." Charter, Sec. 8-203 (Ga. Laws 1971, Extra. Sess., pp. 2007, 2103-04). The authority to establish such districts is vested in the Council of the Consolidated Government. Charter, Sec. 1-103 (Ga. Laws 1971, Extra. Sess., pp. 2007, 2012). On April 10, 1973, the council adopted Ordinance Number 73-48. This ordinance established three Urban Services Districts and one General Services District. Urban Services District Number One consists "of that territory which was included in the city limits of Columbus, Georgia, immediately prior to the 1969 annexation...."According to the additional information provided by your department, Urban Services District Number Two closely corresponds to that territory which was annexed to the City of Columbus in 1969. Thus, the combined areas of Urban Services Districts Numbers One and Two closely approximate the territory included within the city limits of Columbus, Georgia at the time of consolidation. In order to lend meaning to the charter, make it consistent with the grant statutes and not reduce the consolidated government's share of either the municipal grants or the county grants, it is my official opinion that the County Road System should not include any street, except extensions of county roads, within the boundaries of Urban Services Districts Numbers One and Two. The basis for this is that Urban Services Districts Numbers One and Two closely coincide with the boundaries of the municipality of Columbus at the time of consolidation and their consideration as a municipality now fulfills the intent of the General Assembly that grants be made to assist county road systems under a separate program. Thus, the Consolidated Government of Columbus, Georgia would be entitled to grants under Georgia Laws 1965, page 458, for roads within these districts, and for grants under the annual General Appropriations Act for roads outside Urban Services Districts Numbers One and Two. OPINION 75-109 To: Secretary of State September 16, 1975 Re: Each House of the General Assembly has exclusive original jurisdiction to determine the qualifications of its members. This is in response to your request for an opinion concerning the question of whether a federal civil service employee is qualified to 207 75-110 serve as a member of the House of Representatives of the General Assembly. For the following reasons, it is my opinion that the House of Representatives has exclusive original jurisdiction to determine this question when the person elected has already taken office. Article III, Sec. IV, Par. VI of the Georgia Constitution (Ga. Code Ann. 2-1606) reads in pertinent part, as follows: "No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State, or the United States, or either of them ... shall have a seat in either house...." (Emphasis added.) With regard to a federal civil service employee, the only possible ground of disqualification would be that he holds an "appointment .. . having compensation annexed thereto under ... the United States...." I am not aware of any Georgia decisions which interpret the word "appointment" as used in this constitutional provision. However, under 5 U.S.C. 2101 (1) and 2105, all civil service jobs are labeled "appointments." Also, a similar provision of the Louisiana Constitution was broadly interpreted in Thomas v. Evangeline Parish School Board, 138 So.2d 658 (1962). Thus, it would appear that a federal civil service employee may be precluded from serving in the General Assembly. However, Art. III, Sec. VII, Par. I of the Georgia Constitution (Ga. Code Ann. 2-1901) provides in part : "Each House shall be the judge of the election, returns and qualifications of its members...." The Supreme Court of Georgia has determined that this provision grants exclusive original jurisdiction of such issues to the appropriate House of the General Assembly. Rainey v. Taylor, 166 Ga. 476 (1928). 1 Therefore, it is my official opinion that the House of Representatives must determine whether a member is qualified if he is simultaneously employed by the United States Government. OPINION 75-110 To: Director, Georgia Crime Information Center September 17, 1975 Re: GCIC should purge its records only when they are inaccurate. You have sent to me a variety of orders from federal, superior, inferior, and municipal courts throughout the state. Each of these orders 1 Judicial relief may be available prior to the time when an allegedly unqualified person takes office. See Blackburn v. Hall, 115 Ga. App. 235 (1966). 75-110 208 might be interpreted to require the purging of certain criminal history record information by GCIC. You have asked me to render an opinion advising you what the legal implications of such orders are for GCIC and what GCIC is legally required or permitted to do in response to such orders. Having reviewed the various orders and the applicable law, it is my opinion that, with the exceptions which I shall hereinafter point out, these orders do not address themselves to GCIC or any person responsible for GCIC and do not require any response. The duties and responsibilities of GCIC with respect to criminal history record information are set out, in the first instance, in the Act which established the Georgia Crime Information Center, Ga. Laws 1973, p. 1301; Ga. Code Ann. Ch. 92A-30 (hereinafter GCIC Act). That Act charges GCIC to: "(a) Obtain and file fingerprints, descriptions, photographs, and any other pertinent identifying data of persons who: "(1) Have been or are hereafter arrested or taken into custody in this State [for certain enumerated offenses]. * * * " (d) Develop, operate and maintain an information system which will support the collection, storage, retrieval, and dissemination of all crime and offender data described in this Act consistent with those principles of scope, security and responsiveness prescribed by this Act." GCIC Act, Section 3. To this mandate to collect, maintain and disseminate arrest records, the GCIC Act provides only two exceptions. First, GCIC is to: "cooperate in the correction of the central GCIC records and those of contributing agencies when their accuracy has been successfully challenged either through the related contributing agencies or by court order issued on behalf of the individual." GCIC Act, Section 3(k) (emphasis added). Secondly, the GCIC Act establishes an administrative procedure, complete with judicial review, by which an individual can challenge the information which GCIC has concerning him on the basis that it is "inaccurate or incomplete." Should a record be found to be "inaccurate, incomplete or misleading," a court can order it to be "appropriately expunged, modified or supplemented by an explanatory notation." GCIC Act, Section 6. In summary, the GCIC Act charges GCIC to maintain arrest records unless they are demonstrated to be inaccurate, incomplete or misleading. The Rules and Regulations of the United States Department of 209 75-110 Justice concerning criminal justice information systems, 23 CFR Ch. 20 (hereinafter Justice Department Rules), also govern the activities of GCIC. In relevant part, these rules require states to submit a plan to the federal Law Enforcement Assistance Administration which, among other things, "insure[s] that criminal history record information is complete and accurate. "(1) ... To be complete, a record maintained at a central State depository [like GCIC] which contains information that an individual has been arrested, and which is available for dissemination, must contain information of any dispositions occurring within the State within 90 days after the disposition has occurred.... "(2) To be accurate means that no criminal history record information shall contain erroneous information." 23 CFR 20.21. The Justice Department Rules also require the state plan to, "[i]nsure the individual's right to access and review of criminal history information for the purposes of accuracy and completeness." 23 CFR 20.21 (g) (emphasis added). Thus there is no conflict between the state and federal requirements. GCIC is charged in both instances to keep all arrest records, keep them complete (by obtaining and including all disposition data) and make appropriate corrections when arrest data is demonstrated to be incorrect or inaccurate. Nowhere in either the GCIC Act or the Justice Department Rules is there any provision which requires or empowers GCIC to purge arrest records which accurately reflect an arrest. Only in the case of inaccurate or incorrect records is GCIC to purge its records. Of the orders which you have sent me, I find three that require GCIC action in accordance with the above: Your exhibit 3 is a court ordered expungement of a guilty plea. This expungement is based on a finding by the court that the purported guilty plea which had been reported to GCIC was void and a nullity. A GCIC record which shows this guilty plea is, therefore, inaccurate, and should be purged under the provisions of the GCIC Act and the Justice Department Rules. Your exhibit 11 is a request from a contributing law enforcement agency for you to purge an arrest record. If a law enforcement agency makes a request that an arrest record be purged because it is incorrect, it is entirely appropriate that you honor the request. I do not think that you are in a position at this time, however, to determine whether GCIC's arrest record is correct or not. The request gives two bases for its purging request. The first basis 75-110 210 is that "the prosecution was not pursued." This is not a legal basis for purging a record. Such should be indicated as a disposition (e.g., dismissed, nolle prosequi, dead docketed or whatever entry would accurately reflect the disposition). Secondly, the letter indicates that the individual "was a minor at the time of the arrest." If this is intended to indicate that the arrested person was a juvenile, the purging request should be honored. Section 8 (b) of the GCIC Act specifically excludes arrest records of juveniles. If the individual was a minor but not a juvenile, however, the request for purging must be refused. The record of arrest in that case would not be incorrect. I suggest that you contact the law enforcement agency to ascertain the individual's true age at the time of the arrest. Your exhibit 15 is a court ordered expungement. This order recites that an individual was arrested and charged with "investigation as to armed robbery." The GCIC Act at Section 3 (a) (1) exhaustively enumerates the types of arrest concerning which GCIC shall keep records. These include only those arrests for "offenses." An arrest for "investigation" is not an arrest for an "offense." Since GCIC is not to collect such arrest records, this should be expunged. The remaining expungement orders which you have sent me do not suggest that there is any error or inaccuracy in GCIC's records. They all seek to purge an arrest record which is, for all that appears to GCIC, an accurate reflection of an actual arrest. Specifically: Your exhibits 1 and 8 give no basis for the expungement ordered therein. There being no basis for believing GCIC's record is incorrect, there is no basis for expungement. Your exhibit 2 orders expungement of an arrest record because the charge on which the arrest was based was "dropped" and a plea of guilty was entered to a different charge. There being nothing in this order to indicate that GCIC's record of the basis for the original arrest is incorrect, there is no legal basis for expungement. Your exhibits 4, 5, 7a through 7e and 12 are expungement requests from probation officers and law enforcement agencies based upon successful completion of probation under the First Offender Act, Ga. Laws 1968, p. 324 (Ga. Code Ann. 27-2727 et seq.). These expungement requests manifest a misunderstanding of the First Offender Act on the part of the submitting probation officers and law enforcement agencies. The First Offender Act contains. the following provisions which are relevant to this opinion: "Section 1. Upon a verdict or plea of guilty or a plea of nolo contendere but before an adjudication of guilt, the court may, in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and place the defendant on probation as provided by the Statewide Probation Act (Ga. 211 75-110 Laws 1956, p. 27). Upon violation of the terms of probation, or upon a conviction for another crime, the court may enter an adjudication of guilt and proceed as otherwise provided. No person may avail himself of the provisions of this Act on more than one occasiOn. "Section 2. Upon fulfillment of the terms of probation, or upon release by the court prior to the termination of the period thereof, the defendant shall be discharged without court adjudication of guilt. Such discharge shall completely exonerate the defendant of any criminal purpose, shall not affect any civil right or liberties, and he shall not be considered to have a criminal conviction. Should a person be placed under probation under this Act, a record of the same shall be forwarded to the office of the State Probation System and to the Identification Division of the Federal Bureau of Investigation. *** "Section 4. If otherwise allowable by law in any subsequent prosecution of the defendant for any other offense, such prior finding of guilt may be pleaded and proven as if an adjudication of guilt had been entered and relief had not been granted pursuant to this Act." It is clear that the First Offender Act does not envision that records of dispositions under it will be purged. To the contrary, it is absolutely essential to the proper administration of the First Offender Act that accurate records be maintained and available to appropriate criminal justice agencies. During the period of probation, information concerning any further criminal activity by the probationer must be available to his probation officer and the sentencing court. After discharge, a record of the first offender disposition must be available to prevent a person from availing himself of the provisions of the First Offender Act on more than one occasion. Attached to the first offender expungement requests which you have sent me are court orders discharging these probationers. In accordance with the First Offender Act, these orders provide for four things: (1) That the defendant is discharged without court adjudication of guilt; (2) That the discharge shall completely exonerate the defendant of any criminal purpose; (3) That the discharge shall not affect any of the defendant's civil rights or liberties; and (4) That the defendant shall not be considered to have a criminal conviction. These orders in no way recommend or order expungement of GCIC 75-110 212 records. The probation officers and law enforcement agencies who requested expungement based on these orders misunderstood both the orders and the First Offender Act. That a person has been placed on or discharged from first offender probation is a disposition to be accurately recorded, maintained and reported by GCIC. In this respect, it is not different than any other disposition. Your exhibit 6 is an order discharging a probationer upon successful service of probation. This order in no way requires or even mentions expungement. This is simply a disposition to be recorded as such. I can only ascribe to error the decision of the FBI to expunge its records based on this discharge order. Your exhibits 9a through 9h are requests from an inferior court that you purge records. The requests appear to be grounded upon the defendant having successfully served probation or the court having accepted a plea of nolo contendere. Either of these occurrences is simply a disposition to be recorded as such. GCIC has no authority to comply with the request of the court. Your exhibits lOa through lOd are orders of a municipal court to certain officials of that municipality. The orders prohibit dissemination of certain arrest information except pursuant to further court order. These orders are not addressed to GCIC and do not, by their terms, apply to GCIC. They give no indication that any GCIC record is in error. Consequently, these orders provide GCIC with no basis for altering its records. I trust the foregoing adequately advises you concerning the legal responsibility of GCIC with respect to the orders you have sent me. I feel I should, however, point out to you that the situation of GCIC would be much different if an order were to be received which specifically ordered GCIC or one of its officers to expunge a record. In such case, you should contact us and request legal representation in the matter. Likewise, GCIC should request legal assistance if it is ever served with process or any order of a court in a case involving expunge- ment. To summarize, the GCIC Act and the Justice Department Rules pursuant to which you administer GCIC provide for purging only of inaccurate and incorrect information. If an inaccuracy in GCIC's files is brought to your attention, through a court order purging a record or otherwise, it is your duty to make the record accurate. GCIC has no authority to purge an accurate record. If you receive a request to purge an accurate record or a copy of an order directing or requesting some other agency to purge an accurate record, it is my opinion that you should decline to purge GCIC records. If you are ordered by a court to purge an accurate GCIC record or if you are served with legal process in a case seeking to have you purge an accurate record, you should request legal representation from this office. 213 75-111 OPINION 75-111 To: Secretary of State September 19, 1975 Re: Qualifications of voter registrars and deputy registrars established by Ga. Code 34-605 are unaffected by Ga. Laws 1975, p. 1576 (Ga. Code Ann. 89-950), prohibiting counties and municipalities from requiring employees to reside within. This is in response to your request for an opinion concerning the question of whether the requirement of Ga. Code Ann. 34-605 that voter registrars and deputy registrars be registered voters of the county by which they are appointed has been affected by the enactment of Ga. Laws 1975, p. 1576 (Act No. 728), which, in essence, prohibits a county or municipality from establishing a local residence requirement for its employees. For the following reasons, it is my official opinion that Ga. Laws 1975, p. 1576, does not amend or repeal the provisions of the Election Code establishing the qualifications of registrars and deputy registrars. The Georgia Election Code, adopted in 1964, requires among other qualifications, that "[r]egistrars and deputy registrars shall be electors of the county in which they are appointed." Ga. Code Ann. 34-605 (Ga. Laws 1964, Extra. Sess., pp. 26, 49). Georgia Laws 1975, p. 1576 (Act No. 728), states, in part: "No municipal or county government in this State shall require as a condition of employment by such government that applicants for employment as officers or employees, or such officers or employees now or hereafter employed must reside within the boundaries of the municipality or county." Ga. Code Ann. 89-950. This provision prohibits only cities and counties from imposing a local residence requirement for employment. The General Assembly did not thereby limit in any manner its own power to establish, by general or local law, qualifications for officers and employees. Therefore, the qualifications stated in the Election Code remain in full force and effect. Moreover, the duties imposed on registrars and deputy registrars are appropriately assigned to local citizens. See, e.g., Ga. Code Ann. 34-613, 34-627, 34-631 (e) (based on Ga. Laws 1964, Extra. Sess., p. 26 et seq.). For these reasons, it is my official opinion that Ga. Laws 1975, p. 1576, does not amend or repeal the Election Code requirement, found in Ga. Code Ann. 34-605, that registrars and deputy registrars be registered electors of the county in which they are appointed. 75-112 214 OPINION 75-112 To: Commissioner, State Department of Revenue September 19, 1975 Re: Those taxpayers who return their property for valuation to the State Revenue Commissioner are subject to the provisions of Ga. Laws 1974, p. 972, which allows local governments to establish installment payments of ad valorem property taxes. This is in reply to your recent request for my opinion as to the applicability of the provisions of Ga. Laws 1974, p. 972, to those taxpayers (railroad and public utility companies) who return their property to you for valuation. Ga. Laws 1974, p. 972, authorizes counties and municipalities to provide for the installment payment of: " ... any ad valorem taxes due the State, county, and county board of education, or the municipality and any municipal board of education which are levied upon tangible property...." Ga. Code Ann. 92-6407. I find no language in the above-cited statute which would exclude from its operation those taxpayers who return their property to you for valuation. Compare Ops. Att'y Gen. 72-159 and 70-204 with Op. Att'y Gen. 65-24. In light of the foregoing, it is my opinion that those taxpayers who return their property for valuation to the State Revenue Commissioner are subject to the provisions of Ga. Laws 1974, p. 972. OPINION 75-113 To: Executive Secretary-Treasurer, Teachers September 23, 1975 Retirement System of Georgia Re: Discussion of the payment by the Teachers Retirement System of minimum retirement benefits to teachers who acquire creditable service under the system and also within a local retirement fund. This responds to your letter requesting the opinion of the Attorney General on the interpretation of the Teachers Retirement System (TRS) law as it applies to two specific factual situations and questions raised by Mr. Emory S. Lunsford. Mr. Lunsford's questions will be quoted and set out hereafter in full and will be answered in the order posed. As you know, the nature of 215 75-113 the TRS Act provisions relating to teachers within local retirement systems is technical and complex, and there exists a myriad of factual situations concerning "local teachers," each of which must be considered individually. Because of this, my answers will be addressed to the specific questions and should in no manner be construed to cover any other cases outside the parameters of the facts as supplied. (1) "If a teacher has 15 years of accrued creditable service under the Teachers Retirement System of Georgia acquired after July 1, 1943, and if that teacher applies ten of those years toward a local retirement fund, is the teacher after retirement at age 65 entitled to a full pension allowance for five years based on a 1973 amendment setting a minimum floor? "For the ten remaining years is the teacher entitled to a reduced allowance based on the annuity portion and also based on the 1973 amendment setting a minimum floor?" At the outset, to be clear, let me resolve what I see as an area of potential minunderstanding on minimum "floor" retirement benefits. The minimum "floor" benefit of $9 per month for each year of service not to exceed 40 years is not a separate and distinct benefit apart from TRS benefits in general. The "floor" is an "add-on" factor which assures that TRS members will receive a minimum of total retirement benefits from TRS or, in the case of local teachers, from TRS and a local retirement syEtem. Ga. Laws 1973, p. 895; 1974, pp. 1139-40 (Ga. Code Ann. 32-2905 (2) (e) and (f)). In the factual situation given above, the retired teacher would be entitled to normal retirement benefits from TRS based on the five years which were not applied to the local system's account for that teacher or, in the alternative, to the minimum "floor" on these five years, whichever is greater. In addition, the teacher would be entitled to a benefit based on the annuity contributions to TRS during the 10-year period of TRS service which was applied to the local account. The pension contributions on that 10 years of service must be paid by TRS to the local fund (Ga. Code Ann. 32-2922 (2); Ga. Laws 1943, p. 640, as amended), but the annuity contributions by the teacher would be used to increase the teacher's benefit from TRS above that given just for the five full years which weren't transferred to the local fund. So, in effect, the retired teacher's TRS benefit would consist of the normal retirement benefit generated by five full years of TRS service (or, alternatively, the minimum "floor" on five years if it is greater), to which would be added an amount corresponding to a TRS benefit paid on 10 years of annuity contributions. See Op. Att'y Gen. 74-21 (February 11, 1974). After the above computations have been made, if the amount paid 75-113 216 by TRS to the retired teacher plus the retirement benefit paid by the local fund exceeds $9 times the teacher's total years of actual service, the teacher is entitled to this greater combined total of the two benefits payments. If, on the other hand, the TRS benefit plus the local fund benefit is less than the minimum "floor" based on all creditable service up to 40 years, the teacher should receive an additional amount from TRS equalling the minimum benefits provided by law. Ga. Laws 1973, p. 895; 1974, pp. 1139-40 (Ga. Code Ann. 32-2905 (2) (e) and (f)). (2) "If a teacher has thirteen years of accrued creditable service under the Teachers Retirement System of Georgia acquired before July 1, 1943, immediately prior to joining a local system, and that teacher applies ten of those years toward a local retirement fund, is that retired teacher currently entitled to a full pension allowance for three years based on the 1973 amendment setting a minimum floor? "To what pension allowance is the teacher entitled for the remaining ten of those thirteen years?" In this second factual situation, the retired teacher is interested in retirement benefits for three years of prior service (before July 1, 1943), as distinguished from membership service (after July 1, 1943). Prior service is free service not paid for by the teacher. See Ga. Code Ann. 32-2901 (8) (Ga. Laws 1943, p. 640, as amended). Additionally, of great importance in this second situation, the teacher has never been a member of TRS as provided in Ga. Code Ann. 32-2903 (3) (Ga. Laws 1943, p. 640, as amended). Accordingly, the retired teacher in no. (2) above would have to serve five years of membership service under TRS at some time to be eligible for any credit whatsoever for the three years not applied to the local system's account. See Ga. Code Ann. 32-2904 (2) (Ga. Laws 1943, p. 640, as amended). Assuming, however, that these five years of membership service under TRS are acquired by the teacher prior to retirement, in my judgment the teacher would be entitled to the normal TRS benefits payable on the three years not applied to the local system, or alternatively again, the minimum "floor" benefit on those three years, whichever is greater. Also, if this teacher acquires the necessary five years of membership service in order to qualify for the creditation of prior service as a "regular member" of TRS, the teacher would be entitled to a benefit based on what would have been the annuity contributions during the 10 transferred years had that teacher actually been paying contributions during that period. 1 (These hypothetical annuity contributions would, 1 This would make the computation of benefits pro-rata equivalent to those paid a teacher who becomes a member of TRS on or after July 1, 1943 (instead of a member of a local system) and adds on prior service, retiring on his prior and membership Sllrvice. 217 75-114 of course, be figured on the basis of the state salary received by the teacher during the prior service years.) This teacher, however, would not be entitled to the pension amounts on these 10 years applied to the local fund because those amounts must be paid to the local fund. Op. Att'y Gen. 74-21 (February 11, 1974). In the final analysis in no. (2) above, assuming the qualifying five years of membership service is attained, the teacher would be entitled to the regular TRS benefits payable on the three nontransferred years (or the minimum "floor" on three years if that's greater) plus an amount based on the hypothetical annuity contributions that teacher would have paid for the 10 transferred prior service years. If this benefit from TRS, when coupled with the local fund benefit, exceeds the minimum floor of $9 times the total years of service not to exceed 40 years, then the teacher would receive this greater amount. If, however, these total benefits from the local fund and TRS do not exceed the "floor," TRS should add to the benefit an amount which would achieve the minimum. Ga. Laws 1974, pp. 1139-40 (Ga. Code Ann. 32-2905 (2) (f)). However, if this retired teacher does not attain the five years of membership service necessary to qualify for the creditation of prior service years (Ga. Code Ann. 32-2904 (2)), he would not be eligible for the minimum "floor" benefits on the three nontransferred years under the language of Ga. Code Ann. 32-2905 (2) (f). Also, the teacher would not be entitled to any benefit based on the hypothetical annuity contributions for the 10 transferred years. This is because this teacher is only a member of TRS for the limited purposes of Ga. Code Ann. 32-2905 (2) (e) (minimum "floor" for regular TRS members). In this case, the prior service years would offer no extra benefit to the teacher except that the years applied to the local fund's account would be included as part of the teacher's local service for the computation of the minimum benefits to local teachers under Ga. Code Ann. 32-2905 (2) (f). I trust this letter satisfactorily answers the questions as posed. The rationale behind the answers contained herein is generated by an attempt to construe these statutes together in a reasonable manner to benefit the retired teachers of Georgia but yet not require the state to pay benefits twice for any one period of service. OPINION 75-114 To: Commissioner, Department of Natural Resources September 24, 1975 Re: The Board of Natural Resources is statutorily permitted to grant a requested one-year waiver of the mandatory retirement age provided 75-114 218 by Ga. Laws 1974, pp. 1210-13, to the Game and Fish Division's Chief of Law Enforcement. Your recent letter requests my opinion on the interpretation of a portion of the Act providing mandatory retirement ages and benefits for conservation rangers within the Department of Natural Resources. Ga. Laws 1974, pp. 1210-13; Ga. Code Ann. 40-2518.1. Your specific question is whether the present Chief of Law Enforcement of the Department's Game and Fish Division may be granted a one-year waiver of his mandatory retirement age. As I understand the facts as supplied in your letter, the Game and Fish Division's present Chief of Law Enforcement is 58 years of age and will become 59 years of age on October 18, 1975. He is classified by the Board of Natural Resources as occupying a supervisory position and his supervisory duties are all in the field of law enforcement. He has requested the Board of Natural Resources to grant him a one-year waiver of his mandatory retirement date. The Act providing mandatory retirement ages and benefits will ultimately, by 1979, require the retirement of conservation rangers at age 55. However, during the period of time from the Act's passage until 1979, a sliding scale has been provided in the Act whereby the mandatory retirement age is decreased from 60 to 55 in one-year increments from 1974 to 1979. Accordingly, this year's mandatory retirement age is 59, and a conservation ranger to whom this Act applies becoming 59 years old in 1975 would be required to retire on January 31, 1976, absent a waiver of his retirement age by the Board of Natural Resources. The answer to your question is found in the Act, quoted in relevant part as follows: " ... The above mandatory retirement ages may also be waived for conservation rangers in a supervisory classification by the Board of Natural Resources, at its discretion, upon application of such conservation rangers or upon the initiation by the board ... provided, however, that such waivers to members in a supervisory classification shall not be extended to such members who have reached 60 years of age. The provisions of this subsection shall not apply to any conservation ranger in a supervisory classification whose supervisory duties are not all or predominantly in the field of law enforcement...." Ga. Laws 1974, pp. 1210, 1212-3; Ga. Code Ann. 40-2518.1 (c). The above-quoted language of the Act, in my judgment, clearly allows the board, at its discretion, to grant a one-year waiver of the mandatory retirement age to any conservation ranger under the age of 60 years who occupies a position of supervisory classification. Consequently, it is my official opinion that the Board of Natural Resources 219 75-115 is statutorily permitted to grant a requested one-year waiver of the mandatory retirement age provided by Ga. Laws 1974, pp. 1210-13, to the Game and Fish Division's Chief of Law Enforcement. OPINION 75-115 To: Commissioner, Department of Administrative Services September 30, 1975 Re: The Georgia Motor Vehicle Accident Reparations Act (Ga. Laws 1974, p. 113) is not applicable to the state and the state may purchase a vehicle liability insurance policy pursuant to Ga. Laws 1972, p. 347, which does not comply with the requirements of the 1974 Act. This is in response to the recent request from your office for my opinion as to whether the state is required by the Georgia Motor Vehicle Accident Reparations Act (Ga. Laws 1974, p. 113; Ga. Code Ann. Ch. 56-34B) ("No Fault Act") to purchase "no fault" insurance when it purchases vehicle liability insurance for state employees pursuant to Ga. Laws 1972, p. 347; Ga. Code Ann. 89-932. For the reasons stated herein, I have concluded and it is my official opinion that the No Fault Act is not applicable to the state, and your department, therefore, is not required or authorized to purchase a "no fault" liability insurance policy when it purchases a blanket vehicle liability insurance policy for state employees. As you know, I have already expressed my opinion that the No Fault Act is not applicable to municipal corporations. Op. Att'y Gen. U74-114. The rationale of that opinion is sound and supports the conclusion reached herein. As I noted in Opinion U74-114, a basic tenet of statutory construction, found codified in Ga. Code 102-109, is that the state is not bound by a particular statute unless it is named in the statute or unless the words of the statute are so "plain, clear and unmistakable as to leave no doubt as to the intention of the legislature." Lingo v. Harris, 73 Ga. 28, 30 (1884); Anderson v. Department of Family and Children Services, 118 Ga. App. 318 (1968). When this principle is applied to the No Fault Act, it is readily seen that there is no such manifestation of the legislature's intent to include the state within the statute's mandate. For the purposes of this opinion, the key provision of the no fault statute is Section 3, which provides: ''No owner of a motor vehicle required to be registered in this state, or any other person . . . shall operate such motor vehicle 75-116 220 unless the owner has insurance [as required by the Act]." Ga. Code Ann. 56-3403b. Section 2 (e) of the Act in turn defines "owner" as, " ... the natural person, corporation, firm, partnership, cooperative, association, group, trust, estate, organization, or other entity in whose name the motor vehicle has been registered." Ga. Code Ann. 56-3402b. The failure of the legislature to include the state or any governmental entity within the definition of "owner," as well as the absence of any indication elsewhere in the Act that the legislature intended to include the state in the Act's coverage, necessarily leads to the conclusion that the state is not bound by the No Fault Act. Since the state is not bound, it follows that the prohibition contained in Section 5 of the Act (Ga. Code Ann. 56-3405b) that "no insurer shall issue a policy of motor vehicle liability insurance in this state that does not contain at least the minimum coverages required under [the] Act," is inapplicable to a blanket policy purchased by the state pursuant to Ga. Laws 1972, p. 347. The conclusion I have reached is reinforced by an examination of the two pertinent statutes. The apparent intent of the No Fault Act is to secure injured individuals from the economic losses attendant upon injury in an auto1nobile accident and to facilitate the reimbursement of those losses. On the other hand, the purpose of Ga. Laws 1972, p. 347, which authorizes the state to purchase vehicle liability insurance, is to provide "state employees ... protection from liability for damages arising out of the operation of any state owned motor vehicle." (Emphasis added.) The intent of the first Act is to provide immediate compensation for personal injuries, while the latter statute seeks to protect state employees from liability for losses incurred by other persons. Thus, the statutes were intended to serve different purposes and my conclusion herein in no manner frustrates the intent of either. OPINION 75-116 To: Comptroller General, Commissioner of Insurance October 1, 1975 Re: The Insurance Commissioner may not make a lump-sum refund of taxes paid but he may grant a credit against future taxes due in the event that a surplus line broker has paid the required tax during a preceding quarter and the underlying policy, for which the taxes are due, is subsequently cancelled "flat" as of the date of its inception by mutual agreement of the parties. 221 75-116 Your letter of August 25, 1975 requested an official opinion from this office as to whether the Insurance Commissioner could refund taxes paid or grant a credit against future taxes due in the event that a surplus line broker has paid the required tax during a preceding quarter and the underlying policy, for which the taxes are due, is subsequently cancelled "flat" as of the date of its inception by mutual agreement of the parties. In the situation you present, a surplus line broker issued a binder of coverage during the first quarter of 1975 and paid a premium upon it. He then remitted the tax due on the premium along with his quarterly affidavit. In a succeeding quarter, the insured and its agent became dissatisfied with the coverages contained in the policy and by mutual agreement of all parties the policy was cancelled "flat" as of the date of its inception. When the surplus line broker submitted his affidavit and tax for the second quarter of 1975, he claimed a credit equal to the amount of the tax paid on the premium of tlie policy which had been cancelled "flat" the previous quarter. Your question is whether the Insurance Commissioner can either grant this tax credit over a period of time or make a lump-sum refund of the tax in a single transaction. We are of the opinion that the situation you pose justifies a tax credit but not a lump-sum tax refund. The Georgia Insurance Code of 1960 provides that: "(1)-The surplus line broker shall remit to the commissioner, on or before the 15th day of April, July, October and January, at the time his quarter affidavit is submitted, as a tax imposed for the privilege of doing business as a surplus line broker in this State, a tax of four per cent on all premiums paid or due and payable during the preceding quarter, less return premiums and exclusive of sums collected to cover State or Federal taxes, on surplus line insurance subject to tax transacted by him during the preceding quarter as shown by his affidavit filed with the commissioner. '' (2)-If a surplus line policy covers risks or exposures only partially in this State, the tax so payable shall be computed on the proportion of the premium which is properly allocable to the risks or exposures located in this State." (Emphasis added.) Ga. Code Ann. 56-623; Ga. Laws 1960, pp. 289, 389, as amended. The statute clearly and unequivocally recites that surplus line brokers are entitled to receive a tax credit in the event a premium is for some reason returned to the insured. In the case you present, the insured paid a premium deposit, which is part of the premium, to the surplus line broker. Upon cancellation of the policy, the premium deposit was returned. Hence, under the statute, the broker would be entitled to a tax credit equivalent to the amount of tax paid on the returned premium deposit. 75-117 222 Notwithstanding the fact, however, that a tax credit would be authorized in this case, there is no provision in the law for a lump-sum tax refund and hence none can be implied. The refund of taxes iE' a matter of governmental or legislative prerogative, and any right to a refund is strictly statutory. Cf. Maynard v. Thrasher, 77 Ga. App. 316 (1948); 84 C.J.S. 631. Thus, in order for there to be a refund, there must be specific statutory authorization and the refund must be made in strict compliance therewith. In this regard, it should be noted that the provision authorizing the commissioner to refund amounts illegally or erroneously collected has no application here since that applies only to the fees and taxes collected under Chapter 56-13 and not those collected under Chapter 56-6, which deals with surplus line brokers. See Ga. Laws 1973, pp. 449, 500 (Ga. Code Ann. 56-1312). OPINION 75-117 To: Commissioner, Department of Public Safety October 1, 1975 Re: The provisions of the Uniform Rules of the Road Act concerning suspension of drivers licenses of persons convicted of racing prevail over the inconsistent provisions of the Drivers Licensing Act. You have brought to my attention two statutes enacted by the General Assembly at its 1975 Session. One statute is an amendment to the Uniform Rules of the Road Act, Ga. Code Title 68A; Ga. Laws 1974, p. 633. The other is the Drivers Licensing Act, Ga, Code Title 68B; Ga. Laws 1975, p. 1008. As you have pointed out, both of these enactments provide that the Department of Public Safety shall suspend the license of a person convicted of the offense of racing. The times and conditions of suspension provided by the two Acts are, however, different. You have asked me to render my opinion concerning the proper action for the Department of Public Safety to take with respect to drivers licenses of persons convicted of racing. It is my opinion that the provisions of the Uniform Rules of the Road Act, being the most recent expression of legislative intent, are and will remain governing law. Prior to 1974, the prohibitions in Georgia law against racing on highways were found in Section 48 of the Uniform Act Regulating Traffic on Highways, Ga. Laws 1953, Nov.-Dec. Sess., pp. 556, 577, as amended; Ga. Code Ann. 68-1626. This Section 48 also contained Georgia's speed limit law. 223 75-117 In 1974 the Uniform Rules of the Road Act was enacted. Ga. Laws 1974, p. 633. Though it was entitled an Act to revise, classify, consolidate and codify all rules of the road, it did not contain any speed restrictions. Rather, it reserved an article for the purpose of inserting speed restrictions at a later date. The Uniform Rules of the Road Act explicitly did not repeal the provisions of the Uniform Act Regulating Traffic on Highways relating to speed limits. Among the provisions relating to speed limits which were specifically preserved were subsections 48(e)-48(h) which prohibited racing on the public highways and provided for court imposed suspension of drivers licenses upon conviction of racing. In 1975, a speed restriction section was enacted as an amendment to the Uniform Rules of the Road Act. Ga. Laws 1975, p. 1582; Ga. Code Ann. 68A-801 et seq. This enactment repealed in its entirety Section 48 of the Uniform Act Regulating Traffic on Highways, thereby repealing the provisions therein relating to speed, including those relating to racing. It also included in the speed restriction article of the Uniform Rules of the Road Act a prohibition against racing, Code 68A-808. Section 68A-808 declares racing on the public highways to be a crime and provides that the Department of Public Safety shall suspend for 12 months the license of any person convicted of racing. This 1975 amendment to the Uniform Rules of the Road Act and repeal of Section 48 of the Uniform Act Regulating Traffic on Highways was effective upon its approval by the Governor April 25, 1975. The Drivers Licensing Act, Ga. Laws 1975, p. 1008, was also enacted in 1975. It is entitled an Act to revise, classify, consolidate and codify the laws relating to drivers licenses. It codifies these laws as Ga. Code Title 68B. Section 68B-312 provides for a schedule of suspensions for first, second and third convictions of certain offenses listed in section 68B-305. One of these offenses is racing on highways and streets, Ga. Code 68B-305 (7). Section 68B-312 also gives the Commissioner of Public Safety discretion to return drivers licenses prior to the end of the full period of suspension in the case of first and second offenders. The Drivers Licensing Act, by its own terms, will be effective on January 1, 1976. At that time, there will be two laws on the books which provide for fundamentally inconsistent consequences as a result of conviction for racing on the highways. Neither of these enactments explicitly repeals the other. It must be determined, therefore, whether these two Acts can coexist and, if not, which one shall be deemed to have repealed the other. Though repeals by implication are not favored, such a repeal does result where the latter of the two Acts is clearly repugnant to the former and so inconsistent with it that the two cannot stand together, or where the latter Act is manifestly intended to cover the same sub- 75-117 224 ject matter as the former and operate as a substitute for it. Thomas v. Board of Commissioners of Chattooga County, 196 Ga. 10 (1943); State Board of Education v. County Board of Education of Richmond County, 190 Ga. 588 (1940). It is my opinion that, under either of these principles, the provisions of the Drivers Licensing Act with respect to drivers license suspensions upon conviction of racing cannot be in effect together with the provisions of the Uniform Rules of the Road Act on the same subject. On the question of repugnancy, it has been held: "When there are two statutes imposing a penalty, for the same offense, and the penalty imposed by the one is not the same imposed by the other, the latter statute repeals the earlier." Gorman v. Hammond, 28 Ga. 85, 87 (1859). The purpose of the drivers license revocation provisions under discussion is not essentially penal, but remedial legislation designed to promote the public safety. Nevertheless, the point made by Gorman v. Hammond, supra, that two statutes which mandate inconsistent consequences for the same Act cannot reasonably coexist, is clearly applicable to the situation under discussion. This, in itself, is sufficient to mandate a finding of repeal by implication, and the finding of repeal by implication because of inconsistency is supported by a second rationale. The Drivers Licensing Act and the amendment to the Uniform Rules of the Road Act are both manifestly intended to deal exhaustively with the drivers license consequences of a conviction for racing. Neither of these rules is particularly helpful, however, in determining which of the two inconsistent provisions will prevail. The principle by which that determination must be reached is: "Where there are two conflicting sections of a code, and both are derived from legislative acts, that section prevails which is derived from the later act, such being considered the last expression of the law making power on the subject." Staten v. State, 141 Ga. 82, 85 (1913). (Emphasis added.) Determining which is the later Act in this case is somewhat difficult, however. The chronology of the two Acts is as follows: April24, 1975-The Drivers Licensing Act approved by the Governor. April25, 1975-The Uniform Rules of the Road amendment approved by the Governor. April25, 1975-The Uniform Rules of the Road amendment effective date. January 1, 1976-The Drivers Licensing Act effective date. 225 75-117 Thus, the question is whether to look to the date an Act is approved or to its effective date to determine which Act is the later. The general rule is that a statute speaks as of the date it takes effect. Longview v. Lynn, 6 Wash. 2d 507, 108 P.2d 365 (1940). See generally, 13 Am. Jur. 2d Statutes, 369, 82 C. J. S. Statutes, 399. Thus, a statute whose effectiveness is postponed until a future day must be construed as if passed on that future day to take effect immediately. State ex rel. Atkinson v. Northern Pacific Ry., 53 Wash. 673, 102 P. 876 (1909), rev'd on other grounds, 222 U.S. 370 (1911). vVhen the time of taking effect is postponed, savings and repealing clauses do not take effect until the postponed effective date. County School Board of Fairfax County v. Town of Herndon, 194 Va. 810, 75 S.E. 2d 474 (1953). There is no logical reason why repeals by implication should follow a different rule. In Georgia, however, the general rule does not appear to prevail. Though I have been unable to find a reported case which deals with exactly the situation with which this opinion is concerned, there arc two recent cases which strongly indicate that the Georgia courts will look to the date on which the Acts were approved by the Governor (or became effective without his approval) to determine which of two inconsistent Acts will prevail. In Fulton County v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints, 133 Ga. App. 847 (1975), cert. den. (March 18, 1975), the court was faced with the following chronology, which is essentially the same as the situation with which this opinion deals: March 16, 1966-Act "A" approved by Governor. April14, 1967-Act "B" approved by Governor. April 14, 1967-Act "B" effective date. September 1, 1967-Act "A" effective date. The majority opinion found no irreconcilable conflict between Act "A" and Act "B." Consequently, it did not have to determine which Act was the later. The majority did go on to say, however, that Act "A," despite its later effective date, could not have been intended as a repeal of Act "B" because Act "B" was not enacted and approved until after the legislature had completed its consideration of Act "A." A concurring opinion in Fulton County v. Corporation, etc., supra, is of particular interest. The concurring judge found the statutes to be in irreconcilable conflict and that the prevailing statute was the one latest approved, stating: "It is clear to me now that such a futuristic concept of an older Act repealing a younger one is entirely erroneous. For this reason 75-118 226 I concur in the ruling of the majority that [Act "A"J did not repeal [Act "B"], even though [Act "B"] became effective in operation after [Act "A"] became effective as a law and in operation." Id. at 854. A recent Supreme Court case to the same effect is Keener v. M acDougall, 232 Ga. 273 (1974). The chronology in that case was: March 27, 1972-Act "C" approved by Governor. March 30, 1972-Act "D" approved by Governor. July 1, 1972-Effective date of both Act "C" and Act "D." Here the court held, without considering the identity of effective dates, that Act "D," as the later approved Act and thus the later expression of legislative intent, would prevail over Act "C." Based on the foregoing, it is my opinion that, under the law of Georgia, the amendment to the Uniform Rules of the Road Act, having been approved by the Governor subsequent to his approval of the Drivers Licensing Act, prevails over the Drivers Licensing Act to the extent that there is a conflict between them. Thus, the department should continue to suspend and retain drivers licenses of persons convicted of racing in accordance with the provisions of Ga. Code 68A-808 and disregard the inconsistent provisions of Ga. Code Ch. 68B which were approved prior to the approval of 68A-808. OPINION 75-118 To: Executive Director, Georgia Peace Officer Standards and Training Council October 2, 1975 Re: The Georgia Peace Officer Standards and Training Council is authorized to take into consideration, for purposes of certification, law enforcement training received by an individual while a civilian upon such person's subsequent employment as a peace officer. Your letter of September 12, 1975 requested an official opinion from this office as to whether the Georgia Peace Officer Standards and Training Council (hereinafter "POSTC") is authorized to take into consideration, for purposes of certification, law enforcement training received by an individual while a civilian upon such person's subsequent employment as a peace officer. The situation you present involves a person currently employed as a firefighter who is attempting to obtain a position in law enforcement. Should this individual attend a regional police academy and satisfactorily complete the basic law enforcement 227 75-118 course while still a firefighter, :may POSTC consider this training in the event he subsequently applies to be certified as a peace officer? We are of the opinion that POSTC is vested with authority to consider such training received while the individual was employed in a nonlaw enforcement capacity should he later apply to be certified as a peace officer. By virtue of the 1975 amendment to the Act creating POSTC (Ga. Laws 1970, p. 208; Ga. Code Ann. 92A-2101 et seq.), the council is vested, among other things, with the authority: "To determine whether a candidate has met the requirements of the Act and is qualified to be employed as a peace officer, and to issue a certificate to those so qualified." Ga. Laws 1975, pp. 1165, 1169, amending Ga. Code Ann. 92A-2106 (e). A "candidate" is defined as a "prospective peace officer" not yet certified by POSTC as having :met the training requirements of the Act. Ga. Laws 1970, p. 208, as amended (Ga. Code Ann. 92A-2102 (a)). Therefore, an individual who has aspirations of becoming a peace officer comes within the definition of "candidate." Also, since POSTC is authorized to determine who, in its judgment and discretion, has fulfilled the training requirements of the Act and ought to be certified, it is fully consonant with POSTC's responsibility and authority to take prior law enforcement training into account when deciding whether or not to certify an individual as a peace officer regardless of his status at the time he received such training. Similarly, it is within the discretion of POSTC to deny or refuse certification to any individual whose pursuit of a basic law enforcement course while he maintained civilian status is so far removed in time from the point at which he applies for certification that POSTC feels he should be required to repeat some or all aspects of training in order to assure that he is fully capable and knowledgeable in law enforcement matters. It should be carefully noted, however, that POSTC's mandatory training and certification authority is expressly limited to that class of persons coming within the definition of "peace officer" appearing in Ga. Laws 1975, pp. 1165, 1168. Therefore, while it would be fully consistent with POSTC's statutorily delegated authority to assume the responsibility for reimbursing state and local government units over whose law enforcement personnel it has mandatory training and certification authority, POSTC would be exceeding its statutory powers if it were to administrate reimbursement procedures or authorize reimbursement for civilians or other private personnel that it is not mandated to train or certify. 75-119 OPINION 75-119 To: Commissioner, Bureau of Community Affairs 228 October 8, 1975 Re: Municipalities and counties to which the Urban Redevelopment Law applies may not, pursuant to Ga. Code Ann. 69-1107 (f), make loans or grants from monies received from the Federal Government under Title I of the Housing and Community Development Act of 1974 to owners of private housing for the purpose of financing the rehabilitation of such housing. This is in response to your recent request for my official opinion concerning whether municipalities and certain counties may make loans or grants from monies received from the Federal Government to owners of private housing for the purpose of financing the rehabilitation of such housing. As I understand it, your specific question is: Whether municipalities and those counties to which the Urban Redevelopment Law (Ga. Laws 1955, p. 354, as amended (Ga. Code Ann. 69-1101 et seq.)) applies may, pursuant to Ga. Code Ann. 69-1107 (f), make loans or grants from monies received from the Federal Government under Title I of the Housing and Community Development Act of 1974 (42 U.S.C.A. 5301 et seq.) (hereinafter referred to as "the Act") to owners of private housing for the purpose of financing the rehabilitation of such housing. Assuming arguendo that there are no federal restrictions on municipalities so as to preclude the making of such loans or grants from federal funds received pursuant to the Act (see 42 U.S.C.A. 5305 (a) (4)), the answer to your question depends on a determination of whether under Ga. Code Ann. 69-1107 (f) the power to make the loans or grants in question is conferred upon municipalities and those counties to which the Urban Redevelopment Law is applicable (such counties and municipalities being hereinafter collectively referred to as "municipalities"). The Urban Redevelopment Law, of which Ga. Code Ann. 69-1107 (f) is a part, was enacted in 1955 by the General Assembly pursuant to the powers conferred in Ga. Const., Art. XVI (Ga. Code Ann. 2-8501), which reads as follows: "The General Assembly may provide by law that any city or town, or any housing authority now or hereafter established, or any county, may undertake and carry out slum clearance and redevelopment work, including the acquisition and clearance of areas which are predominantly slum or blighted areas, the preparation of such areas for reuse, and the sale or other disposition of such 229 75-119 areas to private enterprise for private uses or to public bodies for public uses. Any such work shall constitute a governmental function undertaken for public purposes, and the powers of taxation and eminent domain may be exercised and public funds expended in furtherance thereof." (Emphasis added.) Georgia Code Ann. 69-1107 (f) provides, in pertinent part, as follows: "69-1107. Powers of municipality.-Every municipality shall have all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this Chapter, including the following powers in addition to others herein granted: * * * "(f) Within its area of operation, to make or have made all plans necessary to the carrying out of the purposes of this Chapter and to contract with any person, public or private, in making and carrying out such plans and to adopt or approve, modify and amend such plans. Such plans may include without limitation: ... (3) plans for carrying out a program of voluntary or compulsory repair and rehabilitation of buildings and improvements...." As can be determined from a reading of the pertinent portions of Ga. Code Ann. 69-1107 (f) quoted above, loans or grants of the type in question are not expressly authorized to be made by municipalities. Further, despite the language contained in other provisions of the Urban Redevelopment Law, especially 69-1107 (e), it does not appear that by necessary implication the authorization to make such loans or grants is otherwise conferred upon municipalities. See, e.g., O'Neal v. Georgia Real Estate Commission, 129 Ga. App. 211, 213 (1973). Moreover, in view of the prohibitions upon loans and grants contained in Ga. Canst., Art. VII, Sec. III, Par. IV (Ga. Code Ann. 2-5604), Ga. Canst., Art. VII, Sec. V, Par. I (Ga. Code Ann. 2-5801) and Ga. Canst., Art. VII, Sec. I, Par. II (1) (Ga. Code Ann. 2-5402 (1)), each of which is at least arguably applicable to municipalities, it does not appear appropriate in an opinion of this office to read into 69-1107 (f) the power to make loans and grants of the type in question. See Cook, Revenue Commissioner v. Cobb et al., 72 Ga. App. 150, 156 (1945) (where intent of legislature is not clear, statute is to be construed so as to render it harmonious with constitutional restrictions).1 Given the significant departure which the authorization to make the loans and grants in question would constitute vis-a-vis municipal powers existing 1 This is not to say, however, that such authorization, if attempted, would be constitutional or unconstitutional, as it is not necessary to reach such issue to resolve the question you have posed. 75-119 230 prior to the enactment of the Urban Redevelopment Law, I believe that had the General Assembly intended to authorize such loans and grants it would have done so in more express terms as it did in the case of a similar activity which was the subject of Op. Att'y Gen. U71-134. Further, the two most significant interpretations of the Urban Redevelopment Law by the Supreme Court of Georgia do not lend support to the proposition that the power to make the loans and grants in question is implicitly conferred upon municipalities. In Bailey v. Housing Authority of City of Bainbridge et al., 214 Ga. 790 (1959), the plaintiff, whose property was being condemned by the defendant, as a part of an urban redevelopment project purportedly authorized by the Urban Redevelopment Law, attacked the constitutionality of said law on several grounds. Among the grounds asserted by the plaintiff were: (i) the expenditure of public funds for the purpose of acquiring the urban redevelopment area and carrying out the urban redevelopment project, including the paving of streets and furnishing of other municipal services, to serve the ultimate objective of making said urban redevelopment area available for sale to private persons amounts to the grant of a donation or gratuity in favor of such persons as ultimately purchase property in said area in violation of Ga. Const., Art. VII, Sec. I, Par. II (1), Records of the Supreme Court of Georgia, Case No. 20373, R-12 ;2 and (ii) the sale by the defendant of property within the urban redevelopment area at less than its cost amounts to the grant of a gratuity in favor of such persons as may be the ultimate purchasers of such property in violation of Ga. Const., Art. VII, Sec. I, Par. II (1). Id. at R-21. The court in Bailey held that the Urban Redevelopment Law is expressly authorized by Ga. Const., Art. XVI, and that the law and the acts of the defendant to be taken thereunder, and in conformity therewith, were not unconstitutional for any reason assigned by the plaintiff. Bailey, supra, at 793. Not all of the reasons assigned by the plaintiff, including those set forth above dealing with Ga. Const., Art. VII, Sec. I, Par. II (1), are fully reported in the court's opinion. However, it appears clear that, in view of the emphasized portion of Art. XVI quoted above, the court had ample reason for finding the Urban Redevelopment Law not to be unconstitutional for those reasons assigned by the plaintiff dealing with Ga. Const., Art. VII, Sec. I, Par. II (1). All actions of the defendants in Bailey asserted by the plaintiff to be in violation of Ga. Const., Art. VII, Sec. I, Par. II (1), fall within the scope of the language of Art. XVI authorizing the General Assembly to empower municipalities to sell former slum or blighted areas "to private enterprise for private uses." 2 "R" refers to the specific pages, as designated, of the original record before the court in case number 20373, the Bailey case, supra. 231 75-120 Therefore, as the powers about which you have inquired were not considered by the court in Bailey, the court's opinion does not suggest an expansion by implication of the Urban Redevelopment Law to encompass the powers involved here. In the case of Allen v. City Council of Augusta, 215 Ga. 778 (1960), the second of the two most significant interpretations by the Supreme Court of the Urban Redevelopment Law, the court, although referring to the "sweeping" powers conferred upon the legislature by Ga. Const., Art. XVI, held only that the nature of the matters required by Ga. Code Ann. 69-1105 to be found in the resolution of the governing body of a municipality as a precondition to the exercise of the powers authorized by the Urban Redevelopment Law is such as to make the resolution incapable of being brought under judicial determination. Id. at 782. As with respect to Bailey, I do not believe the actual holding in Allen, despite the broad language used in the court's opinion, to be susceptible of an interpretation lending support to an assertion that municipalities may, pursuant to the Urban Redevelopment Law, make loans or grants to owners of private housing for the purpose of financing the rehabilitation of such housing. Based on the foregoing, it is my official opinion that municipalities and those counties to which the Urban Redevelopment Law applies may not, pursuant to Ga. Code Ann. 69-1107 (f), make loans or grants from monies received from the Federal Government under Title I of the Housing and Community Development Act of 1974 (42 U.S.C.A. 5301 et seq.) to owners of private housing for the purpose of financing the rehabilitation of such housing. OPINION 75-120 To: Commissioner, Department of Public Safety October 8, 1975 Re: Georgia Laws 1972, p. 1125 (Ga. Code Ann. Ch. 40-20), does not authorize the Department of Administrative Services to regulate the maintenance and repair of any "highly specialized motor vehicle equipment" owned by the Department of Public Safety. This is in response to your letter of September 10, 1975, in which you requested an official opinion concerning the authority of the Department of Administrative Services to take over the garage facilities and motor pool services of the Department of Public Safety. Under the provisions of Ga. Laws 1972, p. 1125 (Ga. Code Ann. Ch. 40-20), the Department of Administrative Services was given the 75-120 232 authority to "establish and operate inter-agency motor pools" at locations throughout the state. Ga. Laws 1972, pp. 1125, 1126 (Ga. Code Ann. 40-2001 (a)). This same section provides: "[T]he Department of Administrative Services is authorized to provide for the operation, maintenance, and repair [of] such pa~ senger carrying automobiles from funds appropriated for this purpose by law, including the establishment of maintenance and repair centers." Ga. Laws 1972, pp. 1125, 1126 (Ga. Code Ann. 40-2001 (a)). (Emphasis added.) This section clearly authorizes the Department of Administrative Services to provide for an inter-agency motor pool which would provide automobiles for officials and employees of the various departments, institutions, boards, bureaus or agencies of the state. Further, this section clearly authorizes the Department of Administrative Services to establish centers for the purpose of maintenance and repairs to state owned vehicles. However, it is my official opinion that by the use of the word "such" in describing the vehicles which the Department of Administrative Services is authorized to service and repair, this section provides only for service and maintenance for the motor vehicles which are a part of the inter-agency motor pool. Therefore, any other motor vehicles which are owned by the various departments, institutions, boards, bureaus or agencies of the state are not subject to the provisions of Section 1 (a) of Ga. Laws 1972, pp. 1125, 1126 (Ga. Code Ann. 40-2001 (a)) which provide that maintenance and repair will be conducted by the Department of Administrative Services. Section 1 (e) of Ga. Laws 1972, pp. 1125, 1126 (Ga. Code Ann. 40-2001 (e)) also authorizes the Department of Administrative Services to regulate "inter-agency ... repair ... of motor vehicles." If the Department of Public Safety does not propose to utilize "interagency repair services," however, Ga. Laws 1972, pp. 1125, 1126 (Ga. Code Ann. 40-2001 (e)) does not apply. Finally, Section 1 (f) of Ga. Laws 1972, pp. 1125, 1126 (Ga. Code Ann. 40-2001 (f)) provides that all departments, institutions, boards, bureaus or agencies of this state are subject to the policies and regulations concerning maintenance and repair of motor vehicles which are promulgated by the Department of Administrative Services. However, this subsection specifically provides for an exception in the case of "highly specialized motor vehicle equipment" owned by any department. Consequently, any motor vehicles owned by the Department of Public Safety which can reasonably be classified as "highly specialized motor vehicle equipment" are not subject to policies and regulations governing maintenance and repairs as established by the Department of Administrative Services. Georgia Code Ann. 102-102 (1) requires that words contained in 233 75-121 statutes be given their ordinary usage. The adjective "specialized" has been defined as "designed or fitted for one particular purpose or occupation." Webster's New Collegiate Dictionary, 1975. Therefore, it is also my official opinion that to the extent vehicles such as patrol cars operated by the Georgia State Patrol are specially designed and equipped for law enforcement and traffic control and may be considered "highly specialized motor vehicle equipment," the repair and maintenance of such vehicles would not be subject to regulation under Section 1 (e) of Ga. Laws 1972, p. 1125. Other types of vehicles, however, would be subject to such regulation. Hence, I suggest that you meet with the Commissioner of the Department of Administrative Services in order to reach an accord on this matter. OPINION 75-121 To: Chairman, State Board of Pardons and Paroles October 10, 1975 Re: The State Board of Pardons and Paroles has the power to grant reprieves, pardons and paroles, to commute penalties, to remove disabilities imposed by law, and to remit any part of a sentence for offenses against the state, after conviction. This is written in response to your recent request for my opinion on certain effects of the decision of the Supreme Court of Georgia, Sundberg v. State, 234 Ga. 482 (1975). In that case, the Supreme Court held that subparagraph (b) (4) of former Ga. Code Ann. 79A-903 (b) was unconstitutional because it improperly delegated legislative authority to an executive board. Simply stated, the unconstitutional provision allowed the State Board of Pharmacy to rule that certain drugs are illegal in certain situations. As I understand your inquiry, you wish to know whether there is a duty of determining who has been convicted under the unconstitutional statute placed on any state agency, and if so, which agency. I assume that you are primarily interested in whether or not the State Board of Pardons and Paroles has such a duty. The general rule is that an unconstitutional statute or portion thereof, though having the form, features, and name of law, is in reality no law. It is wholly void. In Dennison Manufacturing Co. v. Wright, 156 Ga. 789, 797 (1923), the court stated: "In legal contemplation it is as inoperative as if it had never been passed. It has been declared that it is a misnomer to call such statute a law. Such a statute confers no authority upon anyone, and affords protection to no one." Because there can be no violation of that which does not exist, a 75-122 234 person who has been convicted of violating a statute which is subsequently declared unconstitutional would have a cause of action in habeas corpus. Proceedings under an unconstitutional statute had before such statute is judicially declared to be unconstitutional are void. .James v. Blakely, 143 Ga. 117 (1915); Worth County v. Crisp County, 139 Ga. 117 (3) (1912); .Jordan v. Franklin, 131 Ga. 487 (1908). From the above, it appears that a person convicted under an unconstitutional statute may seek relief in the courts, perhaps by a petition for habeas corpus, or other appropriate legal action. However, that is not the question presented here. Rather, the question is whether or not there is an affirmative duty placed upon any state agency to determine administratively whether particular individuals should be released from incarceration because they were convicted under a statute which the Supreme Court subsequently declared to be unconstitutional. I am not aware of any state agency which has a duty to review convictions for the purpose of determining whether or not a particular conviction was invalid. Of course, the State Board of Pardons and Paroles does have the power to grant reprieves, pardons and paroles, to commute penalties, to remove disabilities imposed by law, and to remit any part of a sentence for offenses against the state, after conviction. The board also has the duty to personally study the cases of those prisoners whom the board has power to consider, so as to determine their ultimate fitness for such relief as the board has power to grant. Ga. Code Ann. 77-511; Ga. Laws 1943, p. 185, as amended. You have also inquired about the dates that Ga. Code Ann. 79A-903 (b) (4) was thought to be effective as law. Those dates are from July 1, 1967, to July 1, 1974, when that statute was repealed by Ga. Laws 1974, p. 221. OPINION 75-122 To: Commissioner, Department of Public Safety October 15, 1975 Re: Under present law, the Department of Public Safety should provide a copy of any person's driving record to any person who pays the required fee therefor. Under the Drivers Licensing Act which will become effective January 1, 1976, there may not be disclosed a driving record to a private attorney without authorization from the driver to whom it relates. You have asked me for an official opinion concerning the legal responsibility of the department when requested by an attorney for a 235 75-122 civil litigant for a copy of the drivers license record of someone not his client. You have asked me to advise you concerning both present law and what the law will be after January 1, 1976, the effective date of the new Drivers Licensing Act, Ga. Laws 1975, p. 1008, Ga. Code Ann. Title 68B. It is my opinion that, under present law, the department is obligated to provide such copies of licenses upon request but, after January 1, 1976, should do so only if the attorney is designated by the driver to receive his record. The presently effective law which provides the answer to your question is Ga. Laws 1951, pp. 565, 567, as amended (Ga. Code Ann. 92A-603). This law explicitly requires the director (now commissioner) to provide, upon payment of a fee, any person a certified abstract of the operating record of any other person. I know of no reason why this statutory provision does not control in the situation posed by your opinion request. In giving you this opinion, I am not unmindful of its implications under the federal Fair Credit Reporting Act. 15 U.S.C. 1601 et seq. As I understand the interpretation of the Federal Trade Commission, by complying with Ga. Code Ann. 92A-603, the Department of Public Safety becomes a consumer reporting agency subject to the strictures of the Fair Credit Reporting Act. Though I think the correctness of the Federal Trade Commission's interpretation is open to question, you are not relieved from performing your statutory duties under state law in any case. The Fair Credit Reporting Act does not prohibit your compliance with state law; it merely imposes certain additional duties and responsibilities upon the department. Thus, notwithstanding whether you wish to comply with or resist the Federal Trade Commission's interpretation, you must comply with Georgia law and provide any person's driving record to any person who pays the appropriate fee therefor until January 1, 1976. After January 1, 1976, Ga. Code Ann. 92A-603 will be repealed and superseded by the provisions of the new Drivers Licensing Act. Your actions will then be governed by Ga. Code Ann. 68B-215 which makes it a crime to knowingly submit a request for an abstract of a driving record except in certain cases specifically enumerated therein. Since a request from an attorney for a drivers license record for use in civil litigation is not one of the requests which the statute allows, it should not be honored by the department. If a private attorney wishes to obtain another person's driving record, he must comply with one of the exceptions to the Act's prohibition against dissemination. Since a private attorney representing a civil litigant is not a judge, prosecuting official, law enforcement agency or drivers licensing agency, he would be able to obtain a person's driving record only if that person designated him to do so. 75-123 236 OPINION 75-123 To: Secretary of State October 20, 1975 Re: Emergency rules adopted by state agencies may be made effective by the agency on the date of adoption, if the agency so desires. This is in response to your request for my opinion as to whether a state agency may make an emergency rule, adopted pursuant to Ga. Laws 1964, pp. 338, 342, as amended (Ga. Code Ann. 3A-104), effective prior to the filing of that emergency rule with your office. For the following reasons, it is my opinion that an emergency rule, properly adopted by a state agency, may be made effective immediately upon adoption by the state agency, if it so desires, notwithstanding the fact that the rule may not be filed in your office until some later time. Emergency rules can only be adopted by state agencies, pursuant to the provisions of Ga. Laws 1964, pp. 338, 343, as amended (Ga. Code Ann. 3A-104 (b)), in the event that a state agency: " ... finds that an imminent peril to the public health, safety or welfare (including but not limited to summary processes such as quarantines, contrabands, seizures and the like authorized by law without notice) requires adoption of a rule upon fewer than 20 days' notice...." While it is agreed that normally every rule adopted by a state agency may not become effective until 20 days after an original and two copies of such rule have been filed in the office of the Secretary of State, Ga. Laws 1964, pp. 338, 344 (Ga. Code Ann. 3A-106 (c)), provides for an exception to this rule. That exception, in part, provides that: "Emergency rules adopted pursuant to section 3A-104 may become effective immediately or within a period less than 20 days. A copy of the finding required by section 3A-104 shall be filed with the rule." Therefore, the General Assembly, in enacting the Administrative Procedure Act, Ga. Laws 1964, p. 338 et seq. (Ga. Code Ann. Ch. 3A-1), clearly recognized that in some circumstances, the normal rule-making process would not be adequate to handle the problems which face state agencies, and the General Assembly therefore made provision for these occurrences by providing that agencies could adopt emergency rules, and that these rules could become effective in a manner other than that normally required. There then remains the question of the meaning of the word "immediately" as it is used in Ga. Laws 1964, pp. 338, 344 (Ga. Code Ann. 3A-106 (c)), cited above, to determine the effective date of the rules. 237 75-124 You evidently recognize, and in fact state in your letter, that rules may be adopted by a state agency several days prior to the filing of that rule in your office. You also indicate that in the past your office has interpreted the word "immediately" to mean "immediately upon filing of the emergency rules in your office," while the state agencies, and particularly the Georgia Department of Human Resources in the instance mentioned in your letter, has interpreted the word "immediately" to mean "immediately upon adoption by the agency, notwithstanding any necessity for filing such emergency rules in your office." In order to resolve this conflict, the intent of the General Assembly must be ascertained. See Ga. Code 102-102 (9). It is evident from the language used by the General Assembly that the General Assembly recognized that emergency rules might need to be adopted and implemented in situations requiring quick and decisive action, such as the implementing of quarantines. It can therefore hardly be argued that the General Assembly intended to require the agency to wait for whatever period of time might be required in order to file a copy of the rule before action, particularly in view of the potential danger to the public welfare that might be involved. The entire essence of the emergency rule is the speed with which it must and can be implemented. Therefore, it is my opinion that when the General Assembly used the word "immediately" in defining when emergency rules could become effective, the General Assembly meant immediately upon adoption. In your letter, you asked for guidance in the manner in which your office could certify to the courts or other interested parties the effective date of a rule if we advised you that these emergency rules became effective when adopted by the agency. Ga. Laws 1964, pp. 338, 344 (Ga. Code Ann. 3A-106 (d)), provides that your office may prescribe the manner and form in which the regulation shall be prepared for filing with your office. I would suggest that you simply require that all emergency rules be accompanied by a statement from the agency indicating their effective date, and that this statement be filed with the emergency rules. OPINION 75-124 To: Commissioner of Agriculture October 21, 1975 Re: The Commissioner of Agriculture may require retail gasoline sales establishments to include on signs or billboard advertisements a designation that the price for gasoline posted thereon is to apply to "self-service" pumps if there is a differentiation in price for the same gasoline sold from "self-service" pumps and "full-service" pumps. 75-124 238 You have inquired as to whether your office may require retail gasoline sales establishments to designate on signs or billboard advertisements that the price for gasoline posted thereon is to apply to "selfservice" pumps when the same grade of gasoline is sold at a higher price when dispensed from "full-service" pumps manned by service station attendants. I understand that the price for gasoline dispensed by attendants can be as much as two and one-half cents per gallon higher than the price advertised on the billboard and for which the same grade of gasoline is sold when dispensed from the self-service pumps. Legislative authority for the curtailment of such activity appears replete. Ga. Laws 1937, p. 477, as amended (Ga. Code Ann. 73-222 (a) (3)), expressly prohibits the sale or offer for sale of gasoline " ... in any manner whatsoever which may deceive, or have the effect of deceiving the purchaser of such products ... so stored, sold, exposed or offered for sale." Moreover, Ga. Laws 1959, p. 135, as amended (Ga. Code Ann. 73-224), provides that if the price of motor fuel is advertised on any sign, billboard, placard or other advertising medium, it shall be unlawful to " ... place a higher price on any pump dispensing such motor fuel or to charge a higher price for such motor fuel." Inasmuch as the Commissioner and Department of Agriculture have been designated, pursuant to the Executive Reorganization Act of 1972, Ga. Laws 1972, pp. 1015, 1041 (Ga. Code Ann. 40-3574 and 40-3575), to succeed the Commissioner and Department of Revenue as the administrative entities charged with monitoring the sale of motor fuel and related petroleum products within the state, the responsibility and authority for enforcement of the aforesaid statutory expression rests within the administrative jurisdiction of your department. To properly enforce those and other laws pertinent to motor fuels and related petroleum products (Ga. Code Ann. Ch. 73-2; Ga. Laws 1927, p. 279, as amended), the commissioner is empowered to promulgate rules and regulations, consistent with the terms, intent and purposes of the law, that he finds necessary for the administration thereof. Ga. Laws 1960, pp. 1043, 1046 (Ga. Code Ann. 73-216 (a)). Compliance with such rules and regulations may be enforced by the commissioner through civil injunctive measures, Ga. Laws 1960, pp. 1043, 1046 (Ga. Code Ann. 73-216 (b)); by civil penalty, Ga. Laws 1973, pp. 790, 791 (Ga. Code Ann. 73-223.1); and by criminal misdemeanor prosecution, Ga. Laws 1927, pp. 279, 289 (Ga. Code Ann. 73-9902), and Ga. Laws 1937, pp. 477,479 (Ga. Code Ann. 73-9907). As to the situation you have described, it appears entirely consistent with the terms, intent and purpose of the aforementioned Ga. Code Ann. 73-222 (a) (3) and 73-224 for the Commissioner of Agriculture to prescribe regulations, utilizing the procedure of the Georgia Ad- 239 75-125 ministrative Procedure Act (Ga. Laws 1964, p. 338, as amended; Ga. Code Ann. Title 3A), requiring retail gasoline sales establishments to add a designation of "self-service" to signs and billboard advertisements of gasoline prices when the prices so advertised pertain only to gasoline dispensed at "self-service" pumps and when the same grade of gasoline is sold at a higher price at pumps manned by attendants. Accordingly, it is my opinion that such regulations may be promulgated by the Commissioner of Agriculture and that compliance thereto may be enforced by the commissioner through use of the aforesaid civil and criminal sanctions. OPINION 75-125 To: Commissioner, Department of Banking and Finance October 23, 1975 Re: Several questions concerning intangible tax on long term notes secured by Georgia real estate held by banking associations. [This opinion withdraws and supersedes Op. Att'y Gen. 75-85.] This is in reply to a request of your office for our official opinion on certain questions which have arisen in light of the change in Georgia law making banks and savings and loan associations subject to the intangible recording tax on long term notes in the same manner as other corporations as of January 1, 1975. See Ga. Laws 1974, pp. 1508, 1611; Ga. Laws 1974, p. 1459; Ga. Laws 1973, p. 924. In effecting this change in the taxation of banks and banking associations the legislature has provided that: "It is the policy of this State that national banks and banking associations, federal savings and loan associations and building and loan associations shall be taxed in the same manner and to the same extent as banks organized and chartered under the laws of Georgia and that both shall be taxed in the same manner and to the same extent as other private domestic corporations organized for profit." Ga. Laws 1973, p. 924. Therefore, former opinions issued by this office regarding nonexempt holders of long term notes secured by Georgia real estate are now applicable to banks, banking associations, federal savings and loan associations and building and loan associations (hereinafter collectively referred to as "banking associations"), and some of your questions are answered by these opinions, to which you are referred for additional information. The specific questions you asked and the answers to them are as follows: 75-125 240 Question One "If a financial institution includes in its closing cost on a loan the amount of the intangible recording tax which it is required to pay at the time of recordation of a deed, is this amount considered to be part of the interest on the note or is it legitimate to pass this on to the borrower in the same manner as appraisal fees, survey fees, and title fees?" Answer to Question One: The intangible tax is not part of the interest on a note, see Op. Att'y Gen. 1954-56, pp. 786-87; see also, Ga. Laws 1975, p. 154, and since the tax is imposed on the holder of the note, there is no authorization in the Intangible Property Tax Act for the lender to transfer the imposition or burden of the tax to the borrower, nor for the borrower to pay the tax in lieu of the lender-holder. Op. Att'y Gen. 1954-56, pp. 796, 797. Question Two "If an open end mortgage has previously been taken and additional monies are advanced under the same mortgage which is on record, is an additional intangible recording tax required based upon the additional monies advanced?" Answer to Question Two: Yes. Op. Att'y Gen. 1954-56, p. 799. Question Three "If a mortgage is renewed based upon a previously recorded security deed, is this considered a new mortgage subject to an additional tax even though a new security deed is not taken? If a new security deed is taken and recorded, is the tax payable?" Answer to Question Three: Georgia Laws 1953, Nov. Sess., pp. 379, 387, as amended (Ga. Code Ann. 92-175), provides as follows: "No additional tax hereunder shall be required on account of any instrument which is an extension, transfer, assignment, modification or renewal of, or which only adds additional security for, any original indebtedness or part thereof, secured by an instrument subject to the tax imposed by section 92-164 where it is made to affirmatively appear that the tax as provided by this law has been paid on the original security instrument heretofore recorded." Since banking associations are no longer entitled to exemption per se, they are subject to the intangible tax unless they come under the abovequoted exemption. That exemption applies, however, only to "additional" taxes, in cases where it affirmatively appears that the intangible 241 75-125 recording tax 1 was previously paid on the note. Thus, in a situation where no recording tax was previously paid because the holder was a banking association and where a new deed securing a renewed note is executed and presented for recording, the above-quoted exemption would not be applicable and thus the recording tax would be due on the entire amount of the renewed indebtedness and payable prior to the filing of the new security instrument. See Op. Att'y Gen. 1954-56, p. 782. The result is a little less clear where no new security instrument is executed and presented for recording. However, the exemption from taxation for renewals must be strictly construed. Op. Att'y Gen. 1954-56, p. 808. Therefore, I am of the opinion that the tax on the renewed indebtedness would become due upon the renewal of such a note even though based upon a previously recorded security deed, since it could not be made to affirmatively appear that the recording tax had been paid on the original security instrument and since the banking association holder is now required to pay the recording tax. Question Four "Is there any obligation to go back and pay the tax on previously recorded security deeds which were recorded when tax was not required by law but which continue on record?" Answer to Question Four: It is a general rule of construction that tax statutes will not be given a retroactive effect unless clearly required, and this rule has been applied in a former opinion concerning the Intangible Property Tax Act. See Op. Att'y Gen. 1954-56, pp. 776, 778. Therefore, it is my opinion that as a general statement there is no obligation on banking associations currently holding long term notes upon which no recording taxes have been paid, due to the former exception for banking associations, to pay the recording tax on previously recorded deeds. Question Five "If a financial institution submits a security deed for recordation and the county clerk does not charge the recordation fee as is incumbent upon him, is the bank's lien jeopardized?" Answer to Question Five: As of January 1, 1975, all banking associations are required to pay the intangible recording tax as holders of long term notes secured by Georgia real estate in the same manner as are all other holders of similar notes. Thus the banking association 1 While the tax on long term notes secured by Georgia real estate has been held not to be a true recording tax, nevertheless, it will be referred to as such herein to distinguish it from other intangible taxes. 75-126 242 holder must, prior to presenting the security instrument to the clerk of the court for recording, present the security instrument to the tax collector or tax commissioner or his deputy of the county in which the real estate is situated who shall determine the amount of tax due, and the banking association holder must pay the taxes as a prerequisite to recordation of the instrument by the clerk. Ga. Laws 1953, Nov. Sess., pp. 379, 383-84, as amended (Ga. Code Ann. 92-164, 92-165). If the security instrument is filed with the clerk of the court without payment of the intangible tax as prescribed, the filing will not constitute legal notice to anyone, and collection of the indebtedness secured by the instrument is barred. However, such bar may be removed by the payment of the tax, plus interest at six percent per annum from the time the tax was due, plus penalty of 25 percent of the tax. Ga. Laws 1953, Nov. Sess., pp. 379, 386, as amended (Ga. Code Ann. 92-171). Thus the answer to Question Five is that the bank's lien would be jeopardized if the bank fails to pay the taxes prior to recording the security deed. To the extent that any prior opinion or opinions are inconsistent with the conclusions reached herein, they are hereby expressly disapproved. OPINION 75-126 To: Secretary of State October 27, 1975 Re: Under Ga. Code Ann. 41A-2305, the written notice of approval or disapproval by the Department of Banking and Finance of articles of amendment must be unqualified. This is in reply to your request for my opinion as to whether the approval by the Department of Banking and Finance of articles of amendment proposed by a banking institution was in proper form. In sum, that company, a regulated certificated bank organized under former Ga. Code Ann. Ch. 13-23 (Ga. Laws 1966, p. 692), filed with your office, under Ga. Code Ann. 41A-2303 (b) (Ga. Laws 1974, pp. 705, 869, as amended), articles of amendment in which it proposed, inter alia, to become a state chartered bank and to increase the aggregate number of shares of stock it has authority to issue to 1,000 shares with a par value of $100 per share. The proposed amendment was certified to the Department of Banking and Finance which returned an approval of the amendment under Ga. Code Ann. 41A-2305 (b) (Ga. Laws 1974, pp. 705, 871). The approval, however, contained the following recitation which in part did not appear in form or substance in the proposed articles of amendment: "[The proposed articles increase] the amount of [the company's] 243 75-126 authorized capital stock from $25,000 in the Regulated Certificated Bank to $100,000 in the State Chartered Bank, with the ammtnt of capital stock actually issued and outstanding to be increased from $25,000 to $75,000, to be accomplished by the sale of an additional500 shares of a par value of $100 per share, and with $25,000 of the increase to represent authorized but unissued capital stock to be held for issuance in the future under terms and conditions to be determined by the Board of Directors, subject to approval by the Commissioner. . . ." It is the emphasized portion of this recitation with which your request is concerned. For the reasons hereinafter stated, it is my opinion that the recitation is extraneous to the proper function of the Department of Banking and Finance under Ga. Code 41A-2305 and, therefore, void. However, it is my further opinion that the extraneous matter does not in this case affect the approval by the department of the proposed articles and a certificate may be issued by the Secretary of State under Code 41A-2306 (Ga. Laws 1974, pp. 705, 872), although issuance should probably be withheld pending receipt of a corrected form of approval from the Department of Banking and Finance. In the case of proposed amendments to articles of incorporation of banks and trust companies, the only power granted to the Department of Banking and Finance is to approve or disapprove the proposed amendment in accordance with Ga. Code 41A-2305. Subsection (b) of that section states that: " ... [T]he Department shall in its discretion approve or disapprove the articles of amendment.... If the department shall approve the articles of amendment, it shall deliver its written approval to the Secretary of State and notify the bank or trust company of its action. If the department shall disapprove the articles of amendment, it shall give written notice to the bank or trust company and to the Secretary of State, and shall furnish to the bank or trust company a statement generally setting out the unfavorable factors influencing its decision. The decision of the department shall be conclusive except that it shall be subject to judicial review as provided in section 41A-401." This language plainly restricts the Department of Banking and Finance to an unqualified approval or disapproval of the proposed articles of amendment. Nothing in this or any other provision of Code Ch. 41A-23 suggests that the department may in its approval alter or modify the proposed amendment or in any other manner condition its approval on a stated method of operation of the institution under the proposed amendment. While this conclusion appears to be evident from the language of Ga. Code 41A-2305, it is further supported by the 75-126 244 fact that the power to amend articles of incorporation is clearly vested in the financial institution, not the Department of Banking and Finance (Ga. Code 41A-2301; Ga. Laws 1974, pp. 705, 867) subject to the approval by the department of the amendment adopted by the institution. Ga. Code 41A-2301. Moreover, management of the institution, under the institution's charter so amended, is vested in the institution, not the department, subject to the regulatory provisions of the Financial Institutions Code. See, e.g., Ga. Code Ann. 41A-1907, 41A-2201 (Ga. Laws 1974, pp. 705, 832, 856). Nothing in Ga. Code 41A-2305 or any other provision suggests that the department may alter this allocation of power and responsibility by conditioning its approval of articles of amendment. This is not to suggest that the department does not possess a broad discretion under Ga. Code 41A-2305. If articles of amendment as framed by the institution or if the power of management secured thereby is inconsistent with the broad standards of Ga. Code 41A-2305 (a), the department may reject the proposed amendment. In its statement of factors underlying its disapproval, required by Ga. Code 41A-2305 (b), the department may suggest a modification by the institution of the proposed articles which will eliminate the objectionable features. For the reasons stated above, however, it is my opinion that the notice required under Ga. Code 41A-2305 must unqualifiedly state the approval or disapproval by the Department of Banking and Finance of the proposed articles of amendment in the form in which they are submitted and that the department may not in its approval modify the articles or otherwise condition its approval on a particular method of operation under the approved articles. Any attempt to qualify its approval, as in the case of the emphasized language stated above, is beyond the jurisdiction of the Department of Banking and Finance and therefore void. Cf. Mathis v. Scott, 199 Ga. 743, 746-47 (1945). This conclusion raises the question of whether the erroneous inclusion of the extraneous language invalidates the approval by the department in this case. While in other cases the result may be wholly to void the approval by the department, it is my opinion that such is not the case here. The extraneous language here states that while the department approves the amendment, the department conditions its approval on the issuance of a stated amount of shares which is less than the newly authorized capital stock. Even without this extraneous language, however, the institution could not issue any part of the increased number of shares authorized by the articles of amendment without the prior approval by the department. Ga. Code 41A-1907. This requirement of department approval under Ga. Code 41A-1907 establishes a procedure wholly separate from that established by Ga. Code 41A-2305. While it is thus not proper to combine the procedures in 245 75-127 the review required by Ga. Code 41A-2305, the fact that it was done does not detract from the validity of the approval by department under 41A-2305 since the eombination reflected by the extraneous language adds nothing to the existing limitations on the institution imposed by Ga. Code 41A-1907. Cf. Mathis v. Scott, 199 Ga. 743, 746-47 (1945). That extraneous language in this case cannot avoid, however, the requirement in Ga. Code 41A-1907 of separate approval by the department of any proposed issuance of newly authorized shares upon a separate application. However, even if the inclusion of the extraneous language voids the department's approval in its entirety, which in my opinion it does not, the result would be that the department has in effect taken no action at all. In that case, Ga. Code 41A-317 (a) would apply. That section provides: ''Failure of the department to act within any of the time limits established by this Code ... shall not deprive the department of jurisdiction thereafter to act in regard to the matter involved...." Ga. Laws 1974, pp. 705, 740. It is thus my opinion that under either approach, the proper course is for you to return the notice of approval to the department for restatement and reissuance of the notice by it in proper form. Once this is done, you will be authorized to issue the certificate required by Ga. Code 41A-2306. OPINION 75-127 To: Commissioner, Department of Offender Rehabilitation October 27, 1975 Re: When a youthful offender's conditional release is revoked and he is not returned to the Youthful Offender Program, the offender's sentence should be computed on the basis of six years or the maximum term for the offense if less than six years. This is written in response to your request dated October 2, 1975 for my opinion on the question of whether to compute an offender's time on a basis of four or six years when a youthful offender has been released on conditional release, found guilty of a technical violation of that release thus revoking the release, and is returned to the State Board of Corrections but not to the Youthful Offender Program. While I am unable to locate any case law which would aid in answering your question, it appears that Ga. Code Ann. 77-358 is applicable. Generally, that statute provides for the revocation of conditional re- 75-128 246 lease of a youthful offender by the State Board of Pardons and Paroles. Upon revocation for violating the condition of his release the offender is to be returned to the custody of the State Board of Corrections for reassignment either to a youthful offender institution or some other institution of the prison system. The decision of whether to reassign an offender to an institution for the treatment of youthful offenders or to some other institution should be governed by the promulgated rules of the State Board of Corrections. However, in the situation with which you are concerned, you state the offender's status as a youthful offender has been terminated. In that event, it is my opinion that the provisions of Ga. Code Ann. 77-358 (f) are applicable to the extent that the statute requires: "In such cases, the discharge date shall be calculated on the basis of a six year term of imprisonment or on the basis of a term equal to the maximum provided for the offense, if the maximum term is less than six years." Ga. Laws 1972, p. 592; 1975, p. 900. OPINION 75-128 To: Commissioner, Department of Banking and Finance October 30, 1975 Re: Georgia Laws 1974, pp. 705,819 (Ga. Code 41A-1611), repealed by implication the prohibition against the imposition of service charges on dormant bank accounts contained in the Disposition of Unclaimed Property Act (Ga. Laws 1972, p. 762). In a recent letter you asked whether Ga. Laws 1974, pp. 705, 819 (Ga. Code 41A-1611), which authorizes banks to impose service charges on dormant accounts, repealed the prohibition against such service charges contained in Section 13 (i) of the Disposition of Unclaimed Property Act, Ga. Laws 1972, pp. 762, 774 (Ga. Code Ann. 85-2013 (i)). For the reasons stated herein, I have concluded that Ga. Laws 1974, pp. 705, 819, has effectively repealed the earlier prohibition on service charges. Although repeal by implication is not a favored result of statutory construction, Thomas v. Board of Commissioners of Chattooga County, 196 Ga. 10 (1943), a repeal by implication will be deemed to have incurred "where the later act is clearly and indubitably contradictory and contrary to the former act, and the repugnance is such that the two cannot be reconciled." Morris v. City Council of Augusta, 201 Ga. 666, 672 (1946). In the instant case, the 1972 Act prohibited financial institutions from imposing service charges on dormant accounts; the 1974 Act specifically permits banks to impose such charges. Hence, the 247 75-130 two Acts are "clearly and indubitably contradictory" and the conflict cannot be reconciled. Consequently, the 1974 Act, being the last expression of the General Assembly's will on the subject, must control. Atlanta Finance Co. v. Brown, 187 Ga. 729 (1939). In conclusion, therefore, it is my official opinion that Ga. Laws 1974, pp. 705, 819 (Ga. Code Ann. 41A-1611), is the operative statutory provision and banks may impose service charges on dormant accounts in accordance with the provisions of that statute. OPINION 75-129 To: Secretary of State October 30, 1975 Re: Members of a county board of education are county officers and candidates for such offices are subject to the requirements of the Campaign and Financial Disclosure Act (Ga. Code Ann. Ch. 40-38). You have requested an opinion as to whether or not a candidate who seeks election to a county board of education is subject to the reporting requirements of the Campaign and Financial Disclosure Act. Ga. Laws 1974, p. 155, as amended. The Act is applicable to "all county and municipal elected officials." Thus, candidates for such offices must comply with the requirements set forth in the Act. A member of a county board of education is a county officer. Clarke v. Long, 152 Ga. 619, 620 (1921); Stanford v. Lynch, 147 Ga. 518 (1918); Smith v. Bohler, 72 Ga. 546 (1884). See also, Op. Att'y Gen. U71-37 and 68-134 (unofficial). Therefore, candidates who seek election to a county board of education are subject to the requirements of the Campaign and Financial Disclosure Act and must comply with the reporting requirements therein. OPINION 75-130 To: State Superintendent of Schools November 4, 1975 Re: Subsequent to July 1, 1976, teacher, principal and guidance counselor certificates cannot lawfully be issued to individuals who have not completed certain statutory course requirements pertaining to the identification and education of children having special educational needs; this statutory requirement cannot be varied by State Board of Education policy relating to the grant of emergency certificates. This refers to your recent letter in connection with an amendment to the professional certification provisions of Section 55 of the Adequate 75-130 248 Program for Education in Georgia Act (APEG) (Ga. Code Ann. 32-655a). The amendment, Ga. Laws 1975, pp. 181, 182, provides in essence that: "After July 1, 1976, any person certified as a teacher, principal or guidance counselor pursuant to subsection (a) of this section shall have satisfactorily completed a course of five or more quarter hours, approved by the State Board of Education, in the identification and education of children who have special educational needs, or shall have satisfactorily completed an equivalent preparation in a staff development program...." The amendment further provides that teachers, principals and guidance counselors coming from other states, who hold certificates from such other states but lack the statutory course requirements specified by the amendment, shall have a period of one year from the date of their employment in Georgia to meet the prescribed instructional requirements. Finally, the amendment specifies that with respect to teachers in Georgia who are already certificated, such teachers: " ... shall have until their re-certification date or one year, whichever is greater, to comply with this Act." Through consultation with your staff, it is my understanding that the term "re-certification date" refers to the time when the existing certificate expires and the teacher is required to obtain a new certificate to prevent any lapse, and not to that date (which possibly could be some years later) when a teacher whose certificate has lapsed decides to reestablish her certification. You ask: 1. Under existing policies of the State Board of Education, it is a long-standing practice to establish a validity date of July 1 for persons who complete their requirements at the end of the summer quarter, normally the middle of August. In this instance, the validity date is retroactive. \Vould this procedure be in conflict with the enactment described above? 2. Under existing policies of the State Board of Education, a person whose certificate has expired must complete 10 quarter hours of study to reinstate that certificate with the additional provision that a person may have three emergency certificates before he actually must complete the recent study requirements. Would it be in accordance with this law to issue an emergency certificate to a person who had not completed the above prescribed course? 249 75-131 My opinion as to each of the foregoing questions is as follows: (I) It is my opinion that the critical date is the date of "issuance" of the certificate and not whether or not the certificate issued has a retroactive date respecting its validity. Hence, I see no problem as to the fact that a certificate issued in August to an individual who has in fact completed the statutory course requirements has a July 1 validity date. The certificate could not, of course, be lawfully "issued" after July 1 to one not meeting the statutory requirements simply because there is a retroactive validity date which is earlier than the effective date of the amendment. (2) Since the language of the 1975 amendment does not provide for any "exception" in connection with the State Board's policy of granting up to three "emergency certificates" to persons whose certificates have expired and who consequently have other instructional or course requirements to meet, it is my opinion that the amendment, to the extent of the particular instructional or study requirements therein respecting special education, supersedes existing board policy and that emergency certificates cannot lawfully issue to individuals who do not meet the new instructional or course requirements imposed by the 1975 amendment. OPINION 75-131 To: Secretary of State November 6, 1975 Re: The Campaign and Financial Disclosure Act requires that a candidate or the chairman or treasurer of his campaign committee file a campaign financing disclosure report with the Secretary of State which includes the names and addresses of all persons to whom expenditures in excess of $101 or which aggregate $101 in one calendar year have been made for the purpose of influencing the nomination or election of that candidate. The 1975 Session of the Georgia General Assembly significantly amended the Campaign Financing Disclosure Act, Ga. Laws 1974, p. 155 (Ga. Code Ann. Ch. 40-38), in an effort to correct certain deficiencies in the initial statute and to change the name to Campaign and Financial Disclosure Act (hereinafter "Act"). Ga. Laws 1975, p. 1120. Among the sections of the Act amended was subsection 6 (b) pertaining to expenditures by candidates or their campaign committees which were required to be included in a campaign financing disclosure report. Certain questions involving campaign expenditures and the applicability of that section have arisen for which you have sought an official opinion from this office. 75-131 250 Section 6 of the Act provides that the chairman or treasurer of every campaign committee that is organized to bring about the nomination or election of a candidate for any office must file with the Secretary of State a campaign financial disclosure report listing, inter alia: "(b) The name and mailing address of any person to whom an expenditure is made and the amount of such expenditure. Provided, the provisions of this paragraph shall not apply unless subject to disclosure requirements as to expenditures as set forth in subsection (g) of Section 4. (sic)" Ga. Laws 1975, pp. 1120, 1124. Thus, the Act requires a campaign financing disclosure report to be filed by the chairman or treasurer of a candidate's campaign committee which lists the name and address of all persons to whom an expenditure is made and the amount of the expenditure, provided the expenditure is subject to the disclosure requirements set forth earlier in the Act. The reference in subsection 6 (b) is to the disclosure requirements of subsection 4 (g). This reference is obviously incorrect inasmuch as there is no subsection 4 (g) in the Act. It is clear that the General Assembly intended the reference to be made to subsection 3 (g) (Code 40-3803) which defines "campaign financing disclosure report" and sets forth which expenditures are subject to disclosure requirements in the report. It is a well-settled rule of statutory construction that in the case of a mistake in a reference in a statute where the real intent of the legislature is manifest, the mistaken reference will be read so as to give effect to legislative intent. Humthlett v. Reeves, 211 Ga. 210 (2) (1954). In light of the fact that subsection 3 (g) sets forth which expenditures are subject to disclosure requirements in the report, the intent of the General Assembly is obvious. Further, the 1975 amendment to the Act amended subsection 3 (g) in Section 4 of the amendment, thereby explaining how subsection 4 (g) was inserted in the Act instead of subsection 3 (g). Therefore, the expenditures as required by subsection 3 (g) of the Act must be included on a campaign financing disclosure report. An "expenditure" is defined in the Act as 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, but the term specifically shall not include the value of personal services performed by persons who serve without compensation from any source and on a voluntary basis." Ga. Laws 1975, pp. 1120, 1123. Subsection 3 (g) of the Act defines a campaign financing disclosure report as a: 251 75-131 " ... written report filed with the Secretary of State by a candidate or the chairman or treasurer of a campaign committee setting forth all expenditures and all contributions for $101 or more, including contributions and expenditures of lesser amounts when the aggregate amount thereof by or to a person is $101 or more in the aggregate for the calendar year in which the report is filed." Ga. Laws 1975, pp. 1120, 1123. Thus, as it relates to expenditures, the Act provides that a campaign financing disclosure report must include those in excess of $101 and those of a lesser amount when the aggregate amount paid to a person exceeds $101 in a calendar year. This, of course, raises an additional question concerning the circumstances that require aggregation of expenditures for reporting purposes. As set forth above, the Act provides that expenditures of less than $101 must be reported if the total expenditures made to the same person exceed that amount. The Act defines "person" as an: " ... individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons." Ga. Laws 1975, pp. 1120, 1123. Consequently, the question arises as to the reporting requirements vis-a-vis expenditures to entities which are not the ultimate recipient of the funds but are simply a conduit through which the funds are channeled such as banks or credit organizations. Necessarily, the resolution of this matter depends upon the purpose for which the expenditure is made. See Op. Att'y Gen. 74-103. In instances in which a credit organization is merely the conduit for funds, it is my opinion that the General Assembly did not intend for such entities to be reported as the recipient of a campaign expenditure. Reading the Act as a whole, including the express purpose of the legislation found in Section 2 as well as the definition of expenditure in subsection 3 (d) set forth above, it is clear that the General Assembly intended that a candidate disclose only those persons to whom he or his committee made expenditures for the "purpose of influencing the nomination for election or election of [the candidate]." Likewise, I must conclude that the aggregation provisions of the Act apply to such ultimate recipients rather than to credit organizations which do no more than serve as a conduit for the funds. Of course, whenever a bank or credit organization is the recipient of a campaign expenditure for the political purpose of influencing the election of the candidate, it should be included on the report. I am aware that this interpretation injects some degree of subjectivity into the determination of what is to be reported as a campaign expenditure. However, this is not a subjectivity that was not already 75-132 252 present in the Act. Every expenditure a candidate makes during the course of a campaign is not necessarily a campaign expenditure subject to the reporting requirements of the Act. For instance, a candidate may make expenditures during the course of a campaign which are for purely personal or social reasons. The determination of the nature of such expenditures necessarily depends primarily on the intent of the candidate or other persons involved. To require a candidate to report as a campaign expenditure the cost of every social event in which he engages during his campaign would far exceed the requirements of the Act as manifest in the legislative intent. However, if such a social event is for political purposes, i.e., to expose the candidate to voters, to solicit contributions, etc., the occasion loses its social characteristics and becomes a political event the cost of which is subject to the reporting requirements of the Act, whether an expenditure or contribution. Thus, it is necessary to examine the purpose for which money is expended in order to determine whether or not it should be included in the campaign financing disclosure report. To summarize, a candidate or the chairman or treasurer of his campaign committee must file a campaign financing disclosure report which includes the names and addresses of all persons to whom expenditures in excess of $101 or which aggregate $101 in one calendar year have been made for the purpose of influencing the nomination or election of that candidate. OPINION 75-132 To: Secretary of State November 6, 1975 Re: A bond referendum may be held on the date of the Presidential Preference Primary. This is in response to your request for an opinion concerning the question of whether a bond referendum may be held on the date of the Presidential Preference Primary. For the following reasons, it is my official opinion that a bond referendum may be held on this date. A county desiring to hold a bond referendum on the day of the Presidential Preference Primary has asked whether such a procedure is authorized by law. Code Ann. 87-201 and 87-202 (1933 Code, as amended by Ga. Laws 1960, p. 1032), governing bond referenda, do not establish particular dates nor prohibit such referenda from being held at the same time as other elections. Code 34-101la provides that: "A Presidential Preference Primary shall be conducted, insofar as practicable, pursuant to the provisions of Code Title 34 re- 253 75-133 specting general primaries, except as otherwise provided in this Chapter." Ga. Laws 1975, p. 1223. Code Chapter 34-10A contains no prohibition on the holding of special elections or bond referenda simultaneously with the Preference Primary. In Op. Att'y Gen. 68-335, I concluded that a question could be submitted to the voters in a general primary. In light of the foregoing, I am also of the opinion that a bond referendum may be held simultaneously with the Presidential Preference Primary, especially because I recognize that this will save a substantial expenditure of county funds. However, I recommend that the bond referendum be placed on a separate ballot so that voters need not request a party ballot to vote only in the referendum. OPINION 75-133 To: Director, Fiscal Division, Department of Administrative Services November 7, 1975 Re: Georgia Laws 1975, pp. 1632, 1634 (Ga. Code Ann. 24-2909a), authorizes a member of the District Attorneys Retirement Fund of Georgia to make contributions into that fund for only a partial year of military service. This responds to your request for my opinion construing that portion of Georgia Laws 1975, pp. 1632, 1634 (Ga. Code Ann. 24-2909a), which provides, under certain specified conditions, for military service credit to members of the District Attorneys Retirement Fund of Georgia (hereinafter "fund"). Specifically, your question is whether or not the language of this statute authorizes a district attorney to make contributions into the fund for only a partial year of military service. The part of the 1975 Act to which you refer provides in relevant part as follows: "Provided, further, that in computing years of service as a district attorney, credit shall be given for service in the armed forces of the United States occasioned by only one of the national emergencies of either of the following: World War I, World War II, or Korean conflict, upon payment into the retirement fund of the maximum payments provided hereinabove for each year or fraction of year of such service in the armed forces . . . whereupon the district attorney shall receive a credit of one year for each year or fraction of year of such service for which contribution into the fund has been made...." 75-134 254 A fundamental rule of statutory construction is that the purpose of such construction is to discover the true intent of the General Assembly in enacting the statute. Wall v. Youmans, 223 Ga. 191, 192 (1967); Queen v. State, 131 Ga. App. 370, 374 (1974). Additionally, another such rule of construction which is often quoted is that where the language of a statute is plain and unambiguous, it is not open to construction. Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656 (1931); Central of Georgia Railway Co. v. Tucker, 99 Ga. App. 52 (1959). With these rules in mind, it is my opinion that the 1975 Act clearly entitles a district attorney to pay for a partial year of military service. The statute speaks in terms of one year of credit being given for each year or fraction of year of service in the armed forces for which contribution into the fund has been made, thereby explicitly permitting a district attorney to purchase only a partial year of such military service. OPINION 75-134 To: Administrator, Office of Consumer Affairs November 11, 1975 Re: Implementation of the Fair Business Practices Act of 1975. This is in reply to your letter of October 14, 1975, wherein you request an opinion from this office with regard to the implementation of the Fair Business Practices Act of 1975 (hereinafter "Act"), Ga. Laws 1975, p. 376 et seq. (Ga. Code Ann. Ch. 106-12). More specifically you ask the following questions, to-wit: 1. Whether or not it is necessary for the administrator to be present and personally receive documentary materials required of persons pursuant to the Act; and 2. whether or not it is necessary for persons to appear personally at the administrator's office to present documentary materials, or may such documentary materials be sent by registered mail. With regard to your first question, Section 2 (f) of Ga. Laws 1975, pp. 376, 378 (Ga. Code Ann. 106-1202 (f)), provides: " 'Administrator' shall mean the administrator as defined in Section 5 (a) or his delegate." (Emphasis added.) Also, Section 5 (a) of Ga. Laws 1975, pp. 376, 380 (Ga. Code Ann. 106-1205 (a)), reads as follows: "The administrator shall be ~ppointed by the Governor and shall 255 7.5-134 serve at his pleasure. The office of the administrator shall be attached to the office of the Governor for administrative purposes only. All of the functions performed by the Consumer Services Unit of the Division of Special Programs of the Department of Human Resources are hereby transferred to the administrator." From the above, it is clear that the term "administrator" as used in the Act includes the administrator or his delegate. Moreover, the rule in this state is that an act which is of a purely mechanical or ministerial nature, not involving judgment or discretion, may be properly delegated to another unless such delegation is expressly prohibited by law. See Horton v. State, 112 Ga. 27 (1910); Mobley v. Marlin, 166 Ga. 820 (1928). My research reveals no provision of the Act which expressly prohibits the administrator from delegating his authority to receive documentary materials required of persons pursuant to the Act. Hence, based on the foregoing, it is my opinion that the administrator does not have to be present and personally receive documentary materialR required of persons pursuant to the Act. The administrator, on the contrary, may authorize a delegate to perform this function for him. In response to your second question, Section 13 (a) of Ga. Laws 1975, pp. 376,388 (Ga. Code Ann. 106-1213 (a)), in relevant part provides: " ... [The Administrator] may, with the consent of the Attorney General, execute in writing and cause to be served upon any person who is believed to have information, documentary material, or physical evidence relevant to the alleged or suspected violation an investigative demand requiring such person to furnish under oath, or otherwise, a report in writing setting forth the relevant facts and circumstances of which he has knowledge, or to appear and testify or to produce relevant documentary material or physical evidence for examination, at such reasonable time and place as may be stated in the investigative demand...." (Emphasis added.) The above-cited language of the Act seems to suggest that the administrator, pursuant to an investigative demand, may require persons to produce relevant documentary material or physical evidence for exmaination at such reasonable time and place as may be stated in said investigative demand. Therefore, based on this language, it is my opinion that the administrator would not be acting beyond the scope of his authority to permit documentary materials to be forwarded to his office by use of registered mail under the terms of the investigative demand. 75-135 256 OPINION 75-135 To: Commissioner, Department of Administrative Services November 24, 1975 Re: Proceeds of accounts not claimed during the voluntary liquidation of a financial institution pursuant to Ga. Code Ann. 41A-504 pass to the custody of the Department of Banking and Finance for ultimate disbursement pursuant to the Disposition of Unclaimed Property Act (Ga. Laws 1972, p. 762). This is in response to a recent inquiry from your department requesting my opinion as to the proper means of disposing of funds transferred to the Fiscal Division by the Department of Banking and Finance. I understand that the funds in question represent unclaimed deposits from various voluntarily liquidated financial institutions and were forwarded to your department pursuant to Ga. Code Ann. 41A-504 (d) (3), which provides as follows: "After payment of amounts due to all known depositors and creditors, unclaimed amounts due to depositors and creditors should be paid through the department [of Banking and Finance] and held by it subject to the provisions of the Disposition of Unclaimed Property Act." Ga. Laws 1974, p. 705. Section 7 is the operative provision of the Disposition of Unclaimed Property Act, Ga. Laws 1972, p. 762 (Ga. Code Ann. 85-2007), and it provides as follows: "All intangible personal property distributable in the course of a voluntary dissolution of a business association, banking organization, or financial organization organized under the laws of or created in this State that is [not] claimed by the owner within 15 years after the date for final distribution ... is presumed abandoned." Proceeds of accounts deemed abandoned pursuant to the Disposition of Unclaimed Property Act are required to be reported to, and eventually deposited with, the State Revenue Commissioner. Ga. Code Ann. 85-2012 and 85-2015. Of critical importance in applying these statutory provisions to the instant inquiry is the character of the accounts when final distribution of the financial organization's assets takes place. If the accounts are already deemed abandoned at that time, different measures will be required. The Disposition of Unclaimed Property Act provides generally that an account held by a banking or financial organization is presumed 257 75-136 abandoned if there has been no activity with respect to that account for a period of 15 years. Ga. Code Ann. 85-2003. The proceeds of such an account, however, remain in the custody of the bank or financial organization and are not deposited with the State Revenue Commissioner, although a report is filed with the commissioner. Ga. Code Ann. 85-2003 and 85-2013. Thus, it is possible that some of the accounts not claimed by depositors and creditors when the organization is liquidated have already been declared abandoned. All accounts not claimed during the course of the liquidation pass to the Department of Banking and Finance, which becomes the legal custodian of such accounts. Ga. Code Ann. 41A-504. If such accounts have already been declared abandoned pursuant to Ga. Code Ann. 85-2003, then the Department of Banking and Finance, now as legal custodian of those accounts, should report the same to the State Revenue Commissioner pursuant to Ga. Code Ann. 85-2009 and 85-2012. If unclaimed after the Revenue Commissioner has published the notice required by Section 14 of the Act (Ga. Code Ann. 85-2014), the proceeds from the accounts should then be transferred to the Revenue Commissioner for proper disposition. Ga. Code Ann. 85-2015. Custody of accounts not deemed abandoned at the time of the final distribution of the liquidated organization's assets also passes to the Department of Banking and Finance. Ga. Code Ann. 41A-504. They must then be held by, or on the behalf of, the Department of Banking and Finance until such time as they are deemed abandoned. A permissible and appropriate means of accomplishing this is for the proceeds of those accounts to be transmitted to the Fiscal Director, Department of Administrative Services, for retention and administration in appropriate accounts, under an appropriate agreement between the two agencies. If the proceeds are not claimed within 15 years from the date of the final distribution of the assets of the financial organization, a report should then be filed with the State Revenue Commissioner in accordance with the terms of the Disposition of Unclaimed Property Act. Ga. Code Ann. 85-2012. If the proceeds remain unclaimed after the State Revenue Commissioner has published the requisite notice, they should then be deposited with the State Revenue Commissioner. Ga. Code Ann. 85-2015. OPINION 75-136 To: Commissioner, State Department of Agriculture November 26, 1975 Re: Agricultural commodity com:rrnss10ns are subject to taxes imposed under the Georgia Retailers' and Consumers' Sales and Use Tax Act. 75-137 258 This is in response to your request of September 24, 1975, for an official opinion concerning the payment of sales taxes by agricultural commodity commissions. The Georgia Sales and Use Tax Act imposes a tax on the retail purchase, sale, rental, storage, use or consumption of tangible personal property and services. Ga. Laws 1951, pp. 360, 362, as amended (Ga. Code Ann. 92-3402a). "Persons" subject to this tax include, among others, all individuals, associations, corporations, or political subdivisions, whether public or private. Ga. Laws 1951, pp. 360, 363, as amended (Ga. Code Ann. 92-3403a A). Under the Georgia Agricultural Commodities Promotion Act (Ga. Laws 1969, p. 763; Ga. Code Ann. Ch. 5-29), which created the agricultural commodity commissions and defined such commissions as "public corporations" and "instrumentalities of the state," the commissions come within the definition of "persons" under the Sales and Use Tax Act. Therefore, the commissions are subject to sales and use taxes unless an exemption is available. The only exemption found which might apply to such commissions provides that the terms "sale at retail," "use," "storage," and "consumption" do not include: "Sales to the Federal Government, the State of Georgia, any county or municipality of the State of Georgia, or any bona fide department of such government when paid for directly to the seller by warrant on appropriated government funds." Ga. Laws 1951, pp. 360, 363, as amended (Ga. Code Ann. 92-3403a C (2) (d)). While agricultural commodity commissions might otherwise come within this exemption, it does not appear that their purchases are paid for by warrant on appropriated government funds. Therefore, it is my official opinion, based on the foregoing, that agricultural commodity commissions are required to pay sales and use taxes. OPINION 75-137 To: Acting Commissioner of Personnel Administration November 26, 1975 He: If the State Personnel Board enters into a contract for administrative services in establishing a self-insured state employees' health insurance plan, that contract must be with a company licensed to transact accident and health insurance business in this state. This is in response to your recent request for my official opinion as 259 75-138 to whether the State Personnel Board has the power to contract with a company to provide the administrative services for a self-insured state employees' health insurance plan when that company is not licensed to transact accident and health insurance business in Georgia. The powers of public officers are defined by law. Hunter v. City of Atlanta, 212 Ga. 179 (1956); Ga. Code (1933) 89-903. Public officers may not perform acts not legitimately within the scope of the power granted. Board of Commissioners of Peace Officers Annuity and Benefit Fund v. Clay, 214 Ga. 70 (1958). Under Section 6 of the State Employee Health Insurance Plan Act, the board was given the authority to enter into contracts with "corporations licensed to transact accident and health insurance business in this state" to provide health insurance benefits. Ga. Laws 1961, pp. 147, 149 (Ga. Code Ann. 89-1206). In that same section, the board was given the authority, in its discretion, to "establish a self-insured plan in whole or in part." In granting this authority to establish a self-insured plan, the General Assembly did not specifically give the State Personnel Board any broader power to contract than what had already been granted in that section. Therefore, it is my official opinion that if the State Personnel Board enters into a contract for administrative services in establishing a selfinsured state employees' health insurance plan, that contract must be with a company licensed to transact accident and health insurance business in this state. OPINION 75-138 To: Director, Department of Veterans Service December 9, 1975 Re: The veterans priority benefits provided by Ga. Laws 1974, p. 1118, are available only to veterans who have received an honorable discharge in their separation from military duty and who otherwise meet the stated conditions in the Act. I write in response to your recent letter requesting my opinion as to certain provisions of an Act amending the Georgia Higher Education Assistance Authority Act (Ga. Laws 1974, p. 1118; Ga. Code Ann. 32-3706.1). In particular, you ask whether the veterans priority provisions of said Act apply only to veterans, otherwise meeting the statutory conditions provided in the Act which are not herein pertinent, who received an "honorable discharge," or whether the provisions of the Act also apply to veterans receiving a "general discharge under honorable conditions." The Act in question generally provides certain priorities to veterans, 75-138 260 as they are defined in the Act, in receiving guaranteed student loans from the Georgia Higher Education Assistance Authority. Your question concerns the statutory definition of veteran, which provides: " 'Veteran' as used above shall mean any person whose active service with the armed forces was for not less than one year unless such person received an honorable discharge from such service for medical reasons directly connected with such service, who was honorable discharged from the service, and who was a resident of Georgia at the time of entry into the armed forces." Ga. Laws 1974, pp. 1118, 1121. (Emphasis added.) In addition to setting forth the above definition of veteran, the Act further provides : "Upon request of the Authority, the State Department of Veterans Service shall certify to the Authority whether or not an applicant for a student incentive scholarship or guaranteed educational loan from the Authority meets the service, honorable discharge and prior Georgia residency requirements set forth in sections 6A (a) and 6A (b) above." Ga. Laws 1974, pp. 1118, 1121. (Emphasis added.) In determining what the General Assembly intended in using the term "honorable discharge," it is necessary to look to the types of discharges granted by the various military services of the United States. The United States Department of Defense, in its directive entitled "Enlisted Administrative Separations" [ASD (M & RA) No. 1332.14], has distinguished an "honorable discharge" and a "general discharge under honorable conditions" as follows: "Honorable. Predicated upon proper military behavior and proficient performance of duty with due consideration for the member's age, length of service, grade, and general aptitude.... "Under Honorable Conditions. Appropriate when a member's military record is not sufficiently meritorious to warrant an Honorable characterization, as prescribed by the regulations of the Service concerned. A General Discharge Certificate shall be provided upon discharge." By its very definition "a general discharge under honorable conditions" is something other than and is of lesser stature than an honorable discharge. As the term "honorable discharge" is a term which has a specific defined meaning, I cannot escape the clear wording and obvious intention of the General Assembly to make the provisions of the Act applicable only to veterans who receive an honorable discharge from military service. 261 75-139 Had the General Assembly intended for the veterans priority benefits of the Act to apply to veterans receiving a general discharge under honorable conditions, then certainly it would have so provided. Had the General Assembly provided that the provisions of the Act were to apply to veterans discharged "under honorable conditions," then some room for interpretation might exist. However, the General Assembly used the specific phrase "honorable discharge" and neither I nor any other entity, other than the General Assembly, can redefine the term so as to expand its scope and coverage. In summation, it is my official opinion that the veterans priority benefits under the aforestated Act are available only to veterans who meet the stated conditions in the Act and who received an honorable discharge in their separation from the military forces of the United States. OPINION 75-139 To: Chairman, Georgia Public Service Commission December 10, 1975 Re: Proceedings for the approval of loans to electric memberEhip corporations are "contested cases" within the meaning of the Georgia Administrative Procedure Act (Ga. Code Ann. Title 3A). You have asked my opinion as to whether or not proceedings for the approval of loans to electric membership corporations are "contested cases" within the meaning of the Georgia Administrative Procedure Act (Ga. Code Ann. Title 3A), which, effective January 1, 1976, is applicable to the Public Service Commission. Ga. Laws 1975, p. 404. I have concluded, and it is my official opinion, that such proceedings are contested cases. The term "contested case" is defined by the Georgia Administrative Procedure Act as follows: " 'Contested case' means a proceeding, including but not restricted to rate making, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing." Ga. Code Ann. 3A-102 (b); Ga. Laws 1964, pp. 338, 340; 1965, pp. 283, 284-286; 1975, pp. 404, 407. Thus, if any applicable statute or principle of law requires that an electric membership corporation seeking approval of a loan be afforded a hearing, then the proceeding must be deemed a contested case within the meaning of the Administrative Procedure Act. See Department of Human Resources v. Williams, 130 Ga. App. 149 (1973). 75-139 262 With certain exceptions not herein pertinent, the Territorial Electric Service Act (Ga. Laws 1973, p. 200) extended the Public Service Commission's authority and jurisdiction to electric membership corporations " ... in the same manner as electric light and power companies are so subject under other laws of the State of Georgia and regulations of the commission pursuant thereto...." Ga. Laws 1973, pp. 200, 217 (Ga. Code Ann. 34B-311). Ga. Code (1933) 93-414 in turn provides: "Each of the companies or corporations over which the authority of the Public Service Commission is extended by law shall be required to furnish said commission a list of any stocks and bonds, the issuance of which is contemplated, and it shall be unlawful for any of said companies or corporations to issue stocks, bonds, notes, or other evidences of debt, payable more than 12 months after date thereof, except upon the approval of said commission. . . . Before issuing such stocks, bonds, notes, or other evidences of debt, as above mentioned, such corporations or companies shall secure an order from the commission authorizing such issue, the amount thereof, and the purpose and use for which the issue is authorized. For the purpose of enabling the commission to determine whether such order should be issued it shall make such inquiry or investigation, hold such hearings, and examine such witnesses, books, papers, documents, or contracts as it may deem advisable or necessary...." (Emphasis added.) Pursuant to the above-quoted authority, the commission has promulgated certain regulations, entitled General Rules on Stock and Bond Applications, which establish the procedures to be followed in petitioning the commission for approval of loans. Rule 13 of those regulations provides in pertinent part as follows: "On receipt of the petition [for approval of a loan], the Commission shall fix a time and place for a hearing thereon.... At the hearing the applicant shall produce such witnesses and furnish such books, papers, documents, and contracts as the Commission shall at any time before final decision on the application require, and must establish to the satisfaction of the Commission that the proposed issue of stocks, bonds, notes, or other evidence of indebtedness is for the benefit of the public service, and is otherwise lawful." The commission, being bound by its own regulations, is thus required by law to afford a hearing on an application for the approval of a loan. Cooper, State Administrative Law, Vol. I, pp. 270-72; Becker v. Yeary, 278 S.W.2d 632 (Ky. 1955). See Hawes v. Institutional Packers, 117 Ga. App. 243 (1968). 263 75-141 Consequently, such a proceeding is accurately characterized as one in which "the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing," and is, therefore, a contested case within the meaning of the Georgia Administrative Procedure Act. OPINION 75-140 To: Secretary of State December 10, 1975 Re: Municipalities may not under Home Rule Act change date of municipal general election established by municipal charter. This is in reply to your request for my opinion as to whether a municipality may, under the authority of the Municipal Home Rule Act of 1965 (Ga. Laws 1965, p. 298, as amended (Ga. Code Ann. 69-1015 et seq.)), alter the date of the municipal general election if that date is established by the municipal charter. As you have noted, the Municipal Home Rule Act excludes from the home rule powers otherwise granted to municipalities: "Action affecting the ... procedure for election ... for the members of the Municipal Governing Authority, except as authorized in Title 34A...."Ga. Code Ann. 69-1018 (a) 1 (Ga. Laws 1965, pp. 298, 302; 1966, pp. 296, 298; 1970, p. ~346; 1973, pp. 778, 780). It is my official opinion that the date of a municipal general election constitutes an integral aspect of the "procedure for election . . . for members of the Municipal Governing Authority ..." (Davis v. Page, 217 Ga. 751 (1962)), and thus may not be altered by the municipality under the Municipal Home Rule Act of 1965. OPINION 75-141 To: Commissioner, Department of Banking and Finance December 12, 1975 Re: Questions concerning branch banking and military installations. In a recent inquiry you asked my opinion with respect to several questions pertaining to branch banking and military reservations. Your specific questions are answered hereinbelow. Each such answer is grounded on the proposition, which I have determined to be an accurate statement of the law, that banking on military reservations is subject 75-141 264 to the ultimate control of the Federal Government, particularly the Departments of Defense and Treasury, but to the extent Georgia banking law is applicable to banks operating upon military reservations, it should be applied not with respect to the geographic boundaries of the pertinent military reservation, but rather with respect to the boundaries of the applicable state political subdivision. Your inquiry can best be understood by examining the situation that exists with respect to Fort Benning, Georgia. Fort Benning occupies a geographical area that includes parts of two counties, Muscogee and Chattahoochee. Banks A and B are national banks, the parent banks of which are located in Columbus, Muscogee County. Both Bank A and Bank B have a branch bank on that part of the Fort Benning reservation located in Chattahoochee County. Those branch banks were established at a time when state law permitted branch banking and are therefore being legally operated under applicable state law. See Ga. Code Ann. 13-203 (1933 Code, as amended, particularly by Ga. Laws 1970, pp. 954, 957). Bank C is a national bank established on that portion of the military reservation located in Chattahoochee County. It does not have a branch bank or any bank offices in Muscogee County, either on or off the rnilitary reservation. Although not the first, the central question posed by your inquiry is whether your department has any jurisdiction over the establishment of bank offices on military reservations. The answer to this question must be "no," with a certain qualification. It is unquestionably settled that the Federal Government has ultimate control over its military reservations located in the various states. See Cafeteria Workers v. McElroy, 367 U.S. 886 (1961). Its control extends to determining what facilities, including banks, will be allowed on any given military base. See Standard Oil Company of California v. Johnson, 316 U.S. 481 (1942); Falkner v. National Bank of Commerce of San Antonio, 290 F.2d 229 (5th Cir. 1961). Pursuant to this authority, the Arrny has adopted regulations (Army Regulation No. 210-135 (effective February 1, 1973)) governing the establishment of banking facilities on military installations. Specifically, those regulations provide that: "Banks, branch banks and banking facilities will not be established on an Army installation without prior approval of both the Department of the Army and the Federal or State banking authorities." A.R. 210-135, ~ 1-3e(1). The procedures established by A.R. 210-135 for establishing banks, or banking offices, on military bases require the approval of the Office of the Comptroller of the Currency in the case of national banks (~ 1-3e(2)), and the appropriate state official and the Federal Deposit 265 75-141 Insurance Corporation (or, if a member of the Federal Reserve System, the District Reserve Bank) in the case of state banks (~ 1-3e(3)). A banking facility may be established on a military installation only when the Army has first expressed a need for the facility, and the authority for the ultimate approval of a proposed facility resides with the Department of the Army. Otherwise, the regulations envision the federal and state regulatory agencies exercising the same responsibility they exercise in a nonmilitary situation. A.R. 210-135, ~ 1-3e. Thus, in the Fort Benning situation neither Bank A, B nor C could open additional banking facilities on the military reservation without the approval of the Department of the Army and the Comptroller of the Currency (since they are national banks). Of course, if any of these banks were state banks, then your department's approval would be necessary before it could branch. A.R. 210-135, ~r 1-3e(3). Herein lies the exception to the general proposition stated earlier that your department lacks jurisdiction over branching on military reservations. However, this is not to say that state law has no bearing on the establishment of bank branches, or banking facilities, on military bases. Federal law generally provides that the Comptroller of the Currency may approve new branches only if a state bank could establish a similar branch under applicable state law. 12 U.S.C.A. 36 (c). See First National Bank of Logan, Utah v. Walker Bank & Trust Co., 385 U.S. 252 (1966). The federal statute does not allow an exception to this legislative mandate for branches established on military reservations. Therefore, even though your department has no active role in regulating branching by national banks on military bases, state law must be followed in the approval of such branches. However, a caveat must be added to the foregoing statement. It has been held that banking facilities established upon military bases under the direction of the Secretary of the Treasury, and designated as depositories and financial agents of the United States pursuant to 12 U.S.C.A. 90 (or 12 U.S.C.A. 265), were not "branch banks" within the purview of the branching restriction contained in 12 U.S.C.A. 36 (c). Falkner v. National Bank of Commerce of San Antonio, supra; United States v. Papworth, 156 F. Supp. 842 (N.D. Tex. 1957). Rather, they were considered separate, independent banking institutions. Thus, in Falkner, a banking facility operated by the National Commerce Bank of San Antonio at nearby Lackland Air Force Base was not a "branch" within the meaning of the Constitution of the State of Texas which prohibited branch banking and therefore not forbidden by 12 U.S.C.A. 36. In other words, the state branching limitations, given effect by 12 U.S.C.A. 36, could not be used to limit the expansion of banking facilities to military reservations where the Secretary of the Treasury had designated those facilities as depositories and financial agents of the United States. In view of these cases, the 75-141 266 vitality of state law as a restriction on branching by national banks on military reservations is highly questionable. The other specific questions you posed in your inquiry, restated for the sake of clarity and ease of discussion, were the following: (1) May the Muscogee County banks (Banks A and B) open additional bank offices, or "branch," in Chattahoochee County off the military reservation? (2) May Banks A and B branch in Chattahoochee County on the military reservation? (3) May the Chattahoochee County bank (Bank C) branch in Muscogee County off the military base? (4) May Bank C branch in Muscogee County on the military reservation? (5) Is Ga. Laws 1975, pp. 475, 476, which prohibits the bank facility located on Robins Air Force Base in Houston County from establishing automated teller facilities or point-of-sale terminals anywhere in Houston County, enforceable? These questions shall be answered in seratim. (1) Yes. Georgia Code Ann. 13-203.1 (Ga. Laws 1960, pp. 67, 72; 1963,pp.602, 604;1967,p.555;1970,pp.954,958;1973,p. 127;1975, p. 473) allows a branch bank to open additional bank offices or facilities within the county in which the branch bank is located. Since Banks A and B each have a branch bank in Chattahoochee County, even though it is on the Ft. Benning military reservation, they may establish and operate additional offices in that county off the military reservation. There is no statutory basis in the state bank branching statutes for restricting Banks A and B to that portion of Chattahoochee County encompassed by Ft. Benning. The clear and unambiguous language of Ga. Code Ann. 13-203.1 is that a parent bank or a branch bank may expand throughout the "county," a state political subdivision, in which it is located; no exception is made for a parent bank or branch bank located on a military post. when a statute is clear and unambiguous, effect must be given to its express meaning. Barnes v. Carter, 120 Ga. 895 (1940). (2) Yes, subject of course to the approval of the Secretary of the Army and the Comptroller of the Currency. A.R. 210-135. (3) No. The parent office of Bank C is located in Chattahoochee County; it does not have a branch in Muscogee County. It may not, therefore, branch across county lines. See Ga. Code Ann. 13-201.1 (a) and (b) (Ga. Laws 1960, pp. 67, 70; 1963, p. 602; 1970, pp. 954, 955). Moreover, since neither Muscogee County nor Chattahoochee County has a population of 400,000 or more, the provisions of Ga. Code Ann. 267 75-142 13-203 (c) (2) (added by Ga. Laws 1975, pp. 474, 475), are not available to Bank C. Consequently, Bank C may not branch in Muscogee County off the military reservation. Once again, for the purpose of applying state law, the controlling geographical entity is the county, not the military reservation. See Ga. Code Ann. 13-203.1. (4) The answer to this question should be the ~arne as the answer to the preceding question. For purposes of applying state banking law, the geographical limits of the military base are immaterial. Thus, Bank C would not be allowed to branch into an adjoining county. However, because of Falkner, supra, the issue is not that clear. By applying the procedures used in Falkner, the Secretary of the Treasury could conceivably "branch" Bank C into the Muscogee County portion of Ft. Benning in spite of the branching prohibitions of state law. (5) Your last specific question dealt with the enforceability of Ga. Laws 1975, pp. 475, 476 (Ga. Code Ann. 13-203.2 (d), (e)). By this I understand that you are requesting my opinion as to the constitutionality of this particular provision of the 1975 amendments to the state branching statutes. However, the power to declare a statute unconstitutional resides in the courts of this state and, in this context, this is not an issue upon which I believe it is appropriate to express an opinion. Consequently, I decline to express my opinion upon this subject and leave that determination to the courts of our state. OPINION 75-142 To: Governor, State of Georgia December 15, 1975 Re: Application of Ga. Const., Art. I, Sec. I, Par. XXIII to state agencies. See Ga. Code Ann. 2-123. This is in reply to a request for my official opinion as to the propriety, under Art. I, Sec. I, Par. XXIII of the Constitution, of the composition of certain public agencies. Because in certain respects the issues presented by the request were involved in litigation at the time of its receipt and because of the possibility of statutory changes during the regular session of the General Assembly, my response has been delayed until now. Although certain issues presented by your request are still involved in pending litigation, I have determined that issuance of this opinion, except on those issues, is now advisable because of the potential need for corrective legislation. The specific public agencies with which the request deals are described hereinafter. In each case, however, the membership of that body is to be tested under the separation of powers provision of the Constitution, which mandates: "The legislative, judicial, and executive powers shall forever 75-142 268 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 otherwise provided herein." Art. I, Sec. I, Par. XXIII (Ga. Code Ann. 2-123). In addition to the issues presented by the composition of those agencies listed in the request, a related issue has been presented by a provision incorporated into the Section 225 of the General Appropriations Act for Fiscal Year 1976 and will be discussed herein. 1. Georgia Agrirama Development Authority. The Georgia Agrirama Development Authority was created by Ga. Laws 1972, p. 1161, as amended (Ga. Code Ann. Ch. 5-33), as "an instrumentality of the State of Georgia, and a public corporation...." Ga. Code Ann. 5-3301. It is created to perform designated statutory functions with respect to an agricultural museum located in or around the City of Tifton, Georgia. Those statutory functions include the power: " ... to plan, survey, subdivide, improve, administer, construct, erect, acquire, own, repair, remodel, maintain, ... equip, operate, and manage [the museum]...." Ga. Code Ann. 5-3305 (e). In carrying out its responsibilites, the authority has the power to contract, the power to expend funds made available through appropriations by the General Assembly, and to fix charges for admission to its facilities. Ga. Code Ann. 5-3305. More significantly, the authority is empowered: " . . . to exercise such of the police powers of the State as may be necessary to maintain peace and order and to enforce any and all restrictions upon its properties and facilities." Ga. Code Ann. 5-3308. The membership of the authority consists of those persons who hold designated public or private offices, including under subdivisions (d) and (e) of Section 3 of Ga. Laws 1972, p. 1161, the Chairman of the Agriculture Committee of the Senate of the General Assembly and the Chairman of the Agriculture Committee of the House of Representatives of the General Assembly. Ga. Code Ann. 5-3303. In addition, Ga. Laws 1975, p. 523, added to the authority membership the Senator representing the geographic area in which the facility is located and the two Representatives from the district encompassing Tift County. Ga. Laws 1972, p. 1161, as amended, subsections 3(o), 3(p). The latter five officers clearly exercise legislative powers in the discharge of their duties as members of the General Assembly. The question involved is whether consistently with Art. I, Sec. I, Par. 269 75-142 XXIII they may simultaneously discharge the duties and powers shared by them as members of this authority. It is my opinion that they may not do so. In Greer v. State of Georgia, 233 Ga. 667 (1975), the Supreme Court held that the statutory functions of the Geo. L. Smith II Georgia World Congress Center Authority, Ga. Laws 1974, p. 174 (Ga. Code Ann. Ch. 40-36), involved the exercise of executive functions within the meaning of the separation of powers provision of the Constitution. While the application of the principle established by Art. I, Sec. I, Par. XXIII depends on the circumstances of each case, the thrust of Art. I, Sec. I, Par. XXIII is that the General Assembly exercises legislative functions in determining state policy and selecting an agent to implement that policy through the exercise of delegated statutory powers. The function of the agent in implementing that policy, however, is an executive one, and since this is the case, legislative officers cannot participate in those functions by serving on a legislative committee designated as the executive agent, by holding a separate office created to serve that function, or by participating in the government of a public corporation created to serve as the executive agent. There is, in my opinion, no attribute of the functions of the Agrirama Development Authority which removes those functions from the import of the Greer decision. The functions of the Agrirama Development Authority are executive functions and officers who perform legislative or judicial functions cannot simultaneously with their holding legislative or judicial office participate in the exercise of the executive functions of the authority. In sum, it is my opinion that subdivisions (d), (e), (o) and (p) of Section 3 of Ga. Laws 1972, p. 1161, as amended, are unconstitutional and void. Ga. Code Ann. 5-3303. As in the case of the Geo. L. Smith II Georgia World Congress Center Act involved in Greer, however, it is my further opinion that this flaw in the statute does not cause the statute to fail in its entirety. Georgia Laws 1972, p. 1161, as amended, provides that a quorum of the authority consists of six members and that a majority of the quorum may transact business. Ga. Code Ann. 5-3303. It further provides that no vacancy on the authority impairs the power of the quorum to transact any and all business. Id. Thus, while it is clear that the statute contemplated the participation by members of the General Assembly in the government of the authority it is equally clear that the statute does not in any manner insure such participation and that execution of the functions of the authority does not in any manner depend upon such participation. On the contrary, the statute specifically makes provision for the governance of the authority in such a manner that absence of members of the General Assembly would not impair the transaction of business. For this reason, it is my official opinion that while members of the General Assembly consti- 75-142 270 tutionally may not participate in the government of the authority, the balance of the statute is not affected by the failure of those provisions which authorize such participation and the remaining members may carry out the statutory functions of the authority. 2. Georgia Commission for the National Bicentennial Celebration. This commission, created by Ga. Laws 1973, p. 311 (Ga. Code Ch. 40-SD), has as its central purpose the preparation of: " ... an overall program for the commemoration of the Bicentennial of the American Revolution. The commission shall plan, encourage, develop and coordinate observances and activities commemorating the historic events that precede or are associated with the American Revolution." Ga. Code Ann. 40-805d (a). The commission, under the redefinition of its membership by Ga. Laws 1975, p. 492, is composed of 16 ex officio members, including the Speaker of the House of Representatives, and 32 appointed members. Ga. Code Ann. 40-801d. The statute, in pertinent part, specifies that of the latter there shall be: " . . . six members of the Senate to be appointed by the President of the Senate and six members of the House of Representatives to be appointed by the Speaker of the House of Representatives." Ga. Code Ann. 40-801d (a). In carrying out what may fairly be summarized as its essential function set forth above, the commission is directed to publicize and to promote the publicizing of historical events surrounding the American Revolution; is authorized to prepare and disseminate historical material to organizations having similar functions; and is authorized to coordinate its functions with other governmental agencies having similar functions, and to cooperate with, counsel and advise such agencies. Ga. Code Ann. 40-805d. These activities, in my opinion, do not fall within the ambit of any of the powers allocated by Art. I, Sec. I, Par. XXIII of the Constitution. The powers of the commission do not involve the execution of powers necessarily dependent on statutory delegation but instead are merely advisory and informational functions, otherwise unrelated to the functions constitutionally or statutorily vested in any other legislative, executive or judicial agency of State Government. Given this definition of the commission's functions, it is my opinion that Art. I, Sec. I, Par. XXIII does not apply. Although I recognize that contrary arguments might be made, it is my opinion that the powers vested in the commission to accept and expend funds and to execute contracts do not require a different conclusion. These powers are explicitly strictly incidental to the advisory and informational func- 271 75-142 tions of the commission and thus may be exercised only as an incident to carrying out those functions. Both the primary functions and incidental powers of the commission are analogous, for purposes of the present issue, to those of the Constitutional Amendments Publication Board which in a prior opinion I concluded were not subject to the separation of powers mandate. Op. Att'y Gen. 74-127. It is thus my official opinion that the composition of the Georgia Commission for the National Bicentennial Celebration does not offend Art. I, Sec. I, Par. XXIII of the Constitution. 3. The State Crime Commission. The State Crime Commission was originally created by executive order of the Governor on May 19, 1971. Subsequent executive orders on May 17, 1971 assigned the commission for administrative purposes only to the Department of Community Development and, on June 29, 1972, comprehensively redefined its membership, duties, and responsibilities. Further executive orders, on January 14, 1975, continued the existence of the commil3sion, and on April 15, 1975, again substantially redefined the membership of the commission and reorganized the allocation of duties among the commission and its administrative staff. The commission's membership is composed of state officers and representatives of designated organizations, and, insofar as pertinent to this request, includes several state judicial officers and several members of the General Assembly. The State Crime Commission was created as the state's criminal justice planning agency, in large part for the purpose of taking advantage of federal grants authorized by the Omnibus Crime Control and Safe Streets Act of 1968, Pub. Law 90-351, as amended, particularly by the Crime Control Act of 1973, Pub. Law 93-83 (42 U.S.C.A. Ch. 46), and the Juvenile Delinquency Prevention and Control Act of 1968, Pub. Law 92-31, as amended (42 U.S.C.A. Ch. 37), and the Juvenile Justice and Delinquency Prevention Act of 1974, Pub. Law 93-415. The former statute in sum authorizes the Law Enforcement Assistance Administration to make grants to states: " ... to establish and maintain a State planning agency. Such agency shall be created or designated by the client executive of the State and shall be subject to his jurisdiction. The State planning agency ... shall ... be representative of the law enforcement and criminal justice agencies...." 42 U.S.C.A. 3723. The statute further authorizes grants to the state planning agency for specified law enforcement and criminal justice purposes. 42 U.S.C.A. 3724. The latter statutes authorize grants to states for juvenile delinquency 75-142 272 prevention activities and for juvenile justice systems. The grants authorized by the Juvenile Justice and Delinquency Prevention Act of 1974 depend upon the establishment of a state planning agency in accordance with the Omnibus Crime Control and Safe Streets Act of 1968 and the development of a state plan in accordance with the criteria established by that statute. Pub. Law 93-415, 223 (a) (1). Federal law further mandates, as a condition to the receipt of the authorized federal grants, that the state planning agency shall have designated functions and powers, 42 U.S.C.A. 3723 (b), 3733; Pub. Law 93-415 223. The executive order of April 15, 1975 allocates these federally prescribed functions among the commission and its administrative staff. Under that allocation, the commission is essentially responsible for the development of information pertinent to the evaluation of Georgia's criminal justice system and of proposals for the improvement of the system. The commission is also given specific powers with respect to the responsibilities prescribed by federal law, including the powers to: "Establish and adopt policies to guide the development of the State's annual comprehensive plan for criminal justice and juvenile delinquency; "Approve Georgia's annual comprehensive plan ... and any amendments to that plan; "Approve Georgia's annual planning grant application for submission to LEAA, and amendments to that document; "Approve the State Crime Commission's annual budget request to the General Assembly." The administrative responsibilities for the various functions of the State Crime Commission are vested in an administrator, appointed by the Governor, and State Crime Commission staff. Of all the agencies listed in the request for my opinion, the State Crime Commission presents the most difficult issue of reconciling its membership to Art. I, Sec. I, Par. XXIII of the Constitution. Under Georgia law, of course, the Governor has no legislative powers and is thus generally not empowered to create state agencies, except as noted below, or to confer substantive powers of the state on existing state agencies. Federal law cannot, of course, confer this power. Under the Executive Reorganization Act of 1972, Ga. Laws 1972, p. 1015, as amended: ". . . the Governor may create advisory councils. . . . Advisory councils may be created only for the purpose of acting in an advisory capacity." Ga. Code Ann. 40-3528. 273 75-142 The Governor also has the power to employ such agents to aid him in the discharge of his duties as he may deem necessary. See, e.g., Ga. Code Ann. 40-304 (Ga. Laws 1973, p. 665); Ga. Code (1933) 40-305. These powers, together with those possessed under Ga. Laws 1967, p. 252, as amended (Ga. Code Ann. 40-2901 through 40-2907), tend to support the conclusion that the Governor had authority to create the State Crime Commission as an advisory body with no substantive state powers, to secure federal assistance for criminal justice planning functions, and to employ a staff for the commission from appropriations made available for that purpose. For state law purposes, the State Crime Commission, thus viewed, is an advisory body. It has authority to develop plans, but no authority to give those plans the force of state law nor otherwise to implement any such plan. The commission's powers with respect to approval or rejection of applications by state and local agencies for federal grants is undoubtedly substantive. However, that power is given substantive effect only with respect to a matter of federal, not state, law. The commission's approval or rejection of any such application, and any consequent grant to a state or local agency, does not and cannot involve the commission in the execution of powers otherwise vested by state law in the state or local agency. With respect to state executive, legislative, or judicial powers, therefore, the State Crime Commission is devoid of any such power and may act, as Ga. Code Ann. 40-3532 (Ga. Laws 1972, pp. 1015, 1032) makes clear, only in an advisory capacity. Since the commission does not exercise executive, legislative, or judicial powers of the state, Art. I, Sec. I, Par. XXIII does not prohibit the combination of judicial, legislative, or executive officers in its composition. 4. Advisory Council for the Georgia Crime Information Center. The Advisory Council for the Georgia Crime Information Center is created by Ga. Laws 1973, p. 1301, which established the Georgia Crime Information Center (GCIC) under the primary administrative jurisdiction of the Department of Public Safety. Ga. Code Ann. Ch. 92A-30. The Advisory Council for the Georgia Crime Information Center was created to advise and assist the GCIC in the establishment of policies under which the GCIC is to be operated; but it also has the specific powers to ensure that the GCIC is administered so that the accumulation and distribution of information is performed within the authority granted; to establish appropriate disciplinary measures for exceeding the authority granted by the Act; and to establish other policies to provide for the efficient and effective use and operation of the GCIC. Ga. Code Ann. 92A-3005. Section 5 of the Act provides that the Advisory Council consists of 14 members including, insofar as is pertinent to this request, "a mem- 75-142 274 ber of the Georgia Council of Superior Court Judges," "a member of the District Attorney's Association of Georgia," and a "member of the Georgia Association of Municipal Judges," each of whom is appointed by the Governor. Id. In my opinion, the functions of the advisory council include functions which are clearly executive functions within the meaning of Art. I, Sec. I, Par. XXIII. Those functions involve direct supervision of the unequivocably executive, law-enforcement functions of an executive agency of State Government. While it is clear from the terms of the Act that judicial agencies have an interest in the operation of the GCIC, that interest cannot, under Art. I, Sec. I, Par. XXIII, authorize officers whose positions authorize the exercise of judicial powers also to participate in the exercise of executive powers, any more than the courts' or the executives' interests in the legislative process would authorize exercise by judicial or executive officers of legislative powers. It is my official opinion, therefore, that the statutory mandate that the Advisory Council for the Georgia Crime Information Center include a member of the Georgia Council of Superior Court Judges and a member of the Georgia Association of Municipal Judges is in conflict with Art. I, Sec. I, Par. XXIII of the Constitution and therefore void. It is my opinion, however, that membership on the advisory council of a member of the District Attorney's Association of Georgia does not conflict with Art. I, Sec. I, Par. XXIII. See In re Pending Cases, Augusta Judicial Circuit, 234 Ga. 264 (1975). Applying the same analysis applied by the Supreme Court in Greer v. State, 233 Ga. 667 (1975), to Ga. Laws 1973, p. 1301, it is further my official opinion that the balance of the statute, including the remaining provisions of Section 5, are severable from the invalid provisions and that both the GCIC and the advisory council may act in accordance therewith. 5. Criminal Law Study Committee. Created by a joint resolution, Ga. Laws 1961, p. 96, as amended, the functions of the Criminal Law Study Committee are to: " ... conduct a thorough study of the criminal laws of this State and all laws relating directly or indirectly thereto. It shall study problems which have arisen due to ambiguities and inconsistencies in the present law and shall formulate a revision of the laws relative to criminal law and procedure." For reasons similar to those underlying my opinion with respect to the Georgia Commission for the National Bicentennial Celebration, it is my opinion that the functions of the Criminal Law Study Committee are not governed by Art. I, Sec. I, Par. XXIII, in that those functions involve exclusively the gathering of information and the advisory functions of recommending law revision. These limited func- 275 75-142 tions may be performed by any branch of government and by any combination of officers from the separate branches of government. 6. Georgia Development Authority. The Georgia Development Authority was created by the 1960 amendment, Ga. Laws 1960, p. 764, to Ga. Laws 1953, p. 337, and to Ga. Laws 1953, Nov.-Dec. Sess., p. 471. Ga. Code Ann. Ch. 62-15. The authority was created as "a body corporate and politic ... which shall be deemed to be an instrumentality of the State of Georgia and a public corporation...." The purposes of the authority and its general business are statutorily described as: " ... (1) rural rehabilitation ... within the meaning of Public Law 499, 81st Congress, 2nd Sess., (2) the development of agriculture ... generally within the State of Georgia by providing or securing or guaranteeing loans for such purposes, and (3) possession of and operation under any franchise, license or permit granted to it by the United States ... or the State...."Ga. Code Ann. 62-1505. The authority is also designated as the successor to predecessor bodies performing similar functions. The membership of the authority, which constitutes its board of directors, includes eight members appointed by the Governor for eight year terms, "one of whom shall at the time of appointment by the Governor be a member of the General Assembly...."Ga. Code Ann. 62-1502. However, nothing in the statute conditions continued holding of membership acquired by virtue of such an appointment on continued holding of the legislative office, and, in fact, none of the present members of the authority hold legislative office. The functions of the authority involve, in my opinion, the exercise of executive powers within the meaning of Art. I, Sec. I, Par. XXIII. Those functions are primarily related to the execution of contracts and the enforcement of obligations thereunder. As in the case of other authorities, it is immaterial that the Development Authority receives no state appropriations or utilizes funds derived from other sources. while the incidental execution of contracts necessary to achieve purposes not governed by Art. I, Sec. I, Par. XXIII or separately committed to legislative or judicial officers does not involve executive powers, where such activities are the primary function of a statutory agent exercising delegated authority they clearly fall within the responsibilities of the executive, rather than legislature or judiciary. It is the latter category in which the functions of the Georgia Development Authority fall. Thus, it is my official opinion that the qualification for appointment by the Governor of membership in the General Assembly is invalid. However, in my opinion, the position involved and the power of the 75-142 276 Governor to appoint to that position, without regard to the invalid qualification, are not otherwise affected; nor does the invalid qualification impair any other provision of the statutory authority of the Georgia Development Authority. In sum, it is my opinion that upon the expiration of the term of office of the member of the authority who holds the position affected, the Governor's appointment of a successor should be made without reference to the invalid statutory qualification but with regard to Art. I, Sec. I, Par. XXIII. 7. Georgia Post Secondary Education Commission. The commission was created by an executive order of the Governor, dated April 23, 1974, as the state agency required under the Higher Education Act of 1965, Pub. Law 89-329, in order to enable the state to participate in the technical assistance and grant programs, authorized by that Act. 20 U.S.C.A. 1142a (c). The commission's functions are essentially analogous to those of the State Crime Commission and, for reasons previously stated, it is my official opinion that these functions do not involve the exercise of any of the functions governed by Art. I, Sec. I, Par. XXIII of the Constitution. 8. Board of Control for Southern Regional Education. Created by the Southern Regional Education Compact, adopted by Ga. Laws 1949, p. 56, the Board of Control for Southern Regional Education (hereinafter SREB) is a multi-state agency composed of the Governor of each state, ex officio, and four citizens of each state appointed by the Governor thereof, at least one of whom must be a member of the legislature of that state. While the compact indicates a potentially broad authority, the functions of the SREB are now in fact essentially information gathering and advisory performed with a view toward assisting the several states in their separate educational planning and in securing cooperation among states in the provision of educational services. Since only those types of functions are now being exercised by the board, it is my opinion that participation by legislative officers in those functions does not involve Art. I, Sec. I, Par. XXIII. Expansion of those functions to the full reach authorized by the compact, which would in my opinion require prior legislative action by the party states, may require a different conclusion. 9. State Board of Equalization. The validity of the composition of the State Board of Equalization, created by Ga. Code 92-8411.1 (Ga. Laws 1953, pp. 185, 186; 1972, pp. 1120, 1121), and the consequences which may attach in the event it is determined to be invalidly constituted, are issues involved in pending litigation. I must, therefore, withhold comment on those issues until that litigation is concluded. 277 75-143 10. Section 25 of General Appropriations Act for Fiscal Year 1976. Section 25 of the General Appropriations Act for Fiscal Year 1976 contains the following: "Provided, however, that none of the above appropriation for Medicaid Benefits shall be used to fund any increase in rates for providers of service, unless approved in advance by appropriate subcommittees of the House and Senate Appropriations Committee, said subcommittees to be so designated by the respective Chairman of said Appropriations Committees." Ga. Laws 1975, pp. 1333, 1407, as amended by Ga. Laws 1975, Extra. Sess., pp. 1734, 1807. The power to set rates of reimbursement under the Medicaid program is vested in the Department of Human Resources, an executive agency, although it is clear that the department may not set rates which will obligate the expenditure for that purpose of an amount which exceeds an available appropriation. Ga. Code Ann. Ch. 99-29 (Ga. Laws 1965, p. 385, as amended); Op. Att'y Gen. 75-88. For reasons stated in prior opinions of this office, the quoted language is invalid. See, e.g., Op. Att'y Gen. 73-80. However, it is also invalid for the reason that it attempts to confer on subcommittees of the respective houses of the General Assembly the executive power conferred on the Department of Human Resources by Ga. Code Ann. Ch. 99-29. It is true that the General Assembly could have reserved to itself the power to establish rates of reimbursement under the Medicaid program. It chose not to do so but instead designated an agent, the Department of Human Resources, to carry out that program. That power, once conferred on the department, is an executive power and the General Assembly may not confer on or reserve to its individual members or its committees any part of that power. Greer v. State, 223 Ga. 667, 669 (1975). The quoted language purports to do exactly that since it confers the power of ultimate decision on the subcommittees of the House and Senate Appropriations Committees. That conferral of executive power is a clear violation of Art. I, Sec. I, Par. XXIII and is void. OPINION 75-143 To: Chairman, State Ethics Commission December 17, 1975 Re: Contributions made by corporations to political parties are subject to the disclosure requirements of the Campaign and Financial Disclosure Act; nothing in the Campaign and Financial Disclosure Act or in the Georgia Business Corporation Code prohibits a corpora- 75-143 278 tion from making a contribution to the campaign of an incumbent state officer who is a candidate for election to the same or another state office. We are requested by the State Ethics Commission to provide it with an opinion on two questions that have arisen under the Campaign and Financial Disclosure Act (Ga. Laws 1974, p. 155, as amended) (hereinafter "Act") (Ga. Code Ann. Ch. 40-38). In response to an inquiry from the Secretary of State on behalf of the State Ethics Commission, this office, on June 12, 1975, issued an opinion expressing the view that Section 7A of the Act requires political parties to comply with its disclosure requirements. Op. Att'y Gen. 75-53. Section 7A provides that: "Any corporate entity or organization which either receives money or spends money, or both, on or for candidates, is subject to the disclosure requirements of this Act the same as a candidate." Ga. Code Ann. 40-3806.1. Although Section 7A, supra, requires only that corporations disclose contributions made on or for candidates, the interpretation of that section which we offered in Op. Att'y Gen. 75-53 is, we believe, sufficiently broad to embrace the disclosure of contributions made to political parties as well. As we said in Op. Att'y Gen. 75-53: " . . . one of the endeavors of a political party is to have its members elected to various public offices. To this end a political party receives and spends money on behalf of its candidates. Necessarily, it is an 'organization which either receives money or spends money' for political candidates." Thus, an expenditure of funds in the nature of a contribution by a corporation to a political party is tantamount to an expenditure "on or for candidates" and as such is subject to the disclosure requirements of the Act. In 1970, we had occasion to respond to the question whether a corporation organized and existing under the laws of Georgia could make a contribution to the political campaign of a candidate for public office if such candidate at the time was not an officer of the State of Georgia. Based on the language of section 22-5105 of the Georgia Business Corporation Code, we concluded that such a contribution would not be illegal. Op. Att'y Gen. 70-141. The question now is whether section 22-5105 of the Georgia Business Corporation Code or any provision of the Act prohibits a corporation from making a contribution to an incumbent candidate seeking reelection to the state office he holds or election to some other state office. Section 22-5105 (Ga. Laws 1968, pp. 565, 818) prohibits corpo- 279 75-144 rate contributions " ... for the purpose of influencing the vote, judgment, or action of any officer of this state, legislative, executive or judicial." Nothing in that section prohibits corporate contributions to the election campaign of a state officer seeking election or reelection to a state office. The manifest intent of section 22-5105 is to prevent corporations from contributing funds designed to influence the actions, judgments, and decisions of state officers qua officers in the performance and execution of the duties of their respective offices. To deny a candidate a contribution from a corporation if he happens to be an incumbent seeking reelection or election to another state office while allowing one who is a candidate but not an incumbent to receive such a corporate contribution involves serious issues of equal protection. Thus, we are of the opinion that nothing in section 22-5105 of the Georgia Business Corporation Code or any provision of the Act prohibits a corporate contribution to the election or reelection campaign of an incumbent candidate for state office. OPINION 75-144 To: Director, Georgia Bureau of Investigation December 18, 1975 Re: The Georgia Crime Information Center and other criminal just,ice agencies may disseminate certain criminal history record information concerning candidates for public office to district attorneys, state court solicitors, the State Election Board and to any court in which an election contest is being tried. You have requested that I advise you concerning the legal responsibilities and limitations upon the Georgia Crime Information Center (GCIC) and other criminal justice agencies to disseminate criminal history record information concerning candidates for public office. In particular, you have asked the following questions: 1. What persons or agencies may GCIC and other state or local criminal justice agencies respond to regarding requests for dissemination of criminal history records of candidates for or persons holding public office? 2. At what point in the election process, if any, may a request be honored? 3. Assuming such requests and disseminations are permitted, shall fingerprints be required in order to assure positive identification of the candidate? 75-144 280 4. Assuming requests and disseminations are permitted, may arrest charges not supported by dispositions be disseminated? It is my opinion that certain criminal history information concerning candidates or holders of public offices can properly be disseminated to district attorneys, state court solicitors, the State Election Board and to any court in which an election contest is being tried. Part One of this opinion will deal with your first and second questions with respect to each of the officers and agencies to which I find dissemination to be appropriate. Part Two of this opinion will deal with your third question concerning the proper identification to be required. Finally, Part Three of this opinion will deal with your fourth question and discuss what criminal history information should be disseminated. PART ONE A. District Attorneys and State Court Solicitors The Georgia Election Code (Ga. Laws 1964, Extra. Sess., p. 26 et seq., as amended; Ga. Code Ann. 34-101 et seq.) provides that: "No person shall be eligible for party nomination for or election to public office ... who has been convicted and sentenced in any court of competent jurisdiction for fraudulent violation of primary or election laws, malfeasance in office, felony or crime involving moral turpitude, under the laws of this State, or any other State or of the United States, unless on appeal such conviction shall have been set aside or unless such person shall have been pardoned." Ga. Code Ann. 34-107. The Georgia Municipal Election Code (Ga. Laws 1968, p. 885 et seq., as amended; Ga. Code Ann. 34A-101 et seq.) contains an identical provision at Ga. Code Ann. 34A-107. To implement this disqualification, each candidate is required to file a notice of candidacy accompanied by an affidavit which states that he is eligible to hold the office for which he is a candidate. Ga. Code Ann. 34-1002 (b) and (d); 34A-901 (a) and (c). Further it is provided that: "Any person knowingly making any false statement in connection with filing a notice of candidacy under the provisions of section 34-1002 shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as for a misdemeanor." Ga. Code Ann. 34-1901.1 (a); Ga. Laws 1974, p. 522. Ga. Code Ann. 34A-1602 (a) (Ga. Laws 1974, pp. 522, 523) provides identically for filings under the Municipal Election Code. Enforcement of this law is in the hands of the prosecutorial authorities: 281 75-144 "The solicitor of any State court, or the district attorney of the judicial circuit wherein the county lies, if no State court exists, of any county shall furnish all investigative personnel and facilities to the Secretary of State or the ordinary, as the case may be, as needed to determine the accuracy and correctness of all facts set forth in all notices of candidacy filed pursuant to section 34-1002 and shall commence prosecution of any person when it appears that a violation of this section has occurred." Ga. Code Ann. 34-1901.1 (b). The same enforcement system is established for municipal elections by Ga. Code Ann. 34A-1602 (b). The Act Creating the Georgia Crime Information Center, Ga. Laws 1973, p. 1301 (Ga. Code Ann. Ch. 92A-30) (hereinafter GCIC Act), provides that GCIC shall: "Make available upon request, to all local and State law enforcement agencies and courts of proper jurisdiction in this State . . . any information in the files of the GCIC which will aid these agencies in the performance of their official duties." GCIC Act, Section 3 (i) (Ga. Code Ann. 92A-3003 (i)). District attorneys and solicitors, having as their principal function activities relating to the prosecution and adjudication of criminal offenders, are criminal justice agencies. GCIC Act, Section 1 (a). Obviously, criminal history record information concerning candidates for public office will be useful to district attorneys and solicitors in investigating possible violations of the Election Code. This information is particularly essential to an investigation of a candidate or officer who has filed an affidavit that he is qualified to hold office when, in fact, he is disqualified by virtue of a previous criminal conviction. Since the responsibility of district attorneys and solicitors is to prosecute criminally those who have filed false statements in connection with their candidacy, their interest is not affected by the status of the election process. A violation would be equally committed whether a candidate has been defeated, elected to office, or still running for office. The crime was consummated with the filing of the false statement. It is my opinion, therefore, that GCIC and all criminal justice agencies should disseminate to district attorneys and state court solicitors appropriate criminal history record information concerning any past or present candidate for public office. This information may be furnished at any time it is requested. B. The State Election Board The Georgia Election Code creates the State Election Board at Ga. Code Ann. 34-201, and assigns to it the duty: 75-144 282 "To investigate when necessary or advisable the administration of primary and election laws, and frauds and irregularities in primaries and elections, and to report violations of the primary and election laws to the appropriate solicitor general for further investigation and prosecution." Ga. Code Ann. 34-202 (e). In addition: "The State Election Board shall have the right to institute, or to intervene as a party in, any action in any court of this State or of the United States, seeking mandamus, injunctive or other relief to compel compliance with any election or primary law of the State, or of any valid rule or regulation of the board, or to restrain or otherwise prevent or prohibit any fraudulent or other illegal conduct in connection therewith including the right to seek such relief for any anticipatory breach." Ga. Code Ann. 34-203 (a). The State Election Board has the same powers and duties with respect to municipal elections. Ga. Code Ann. 34A-110. Since the State Election Board is not a "law enforcement agency" it is not entitled to be a recipient of information from GCIC pursuant to Section 3 (i) of the GCIC Act. There is, however, another authorization in the Act which does apply to the State Election Board. This is Section 3 (b) which directs GCIC to: "Compare all fingerprint and other identifying data received with those already on file and whether or not a criminal record is found for that person, at once inform the requesting agency or arresting officer of such facts." Ga. Code Ann. 92A-3003 (b); Ga. Laws 1973, p. 1301. This section provides a statutory basis for the GCIC rule (adopted but not yet effective) empowering criminal justice agencies to: "Exchange criminal history record information with noncriminal justice agencies or persons which require criminal justice information to implement a statute or executive order that is expressly based on such conduct." Rules and Regulations of the State of Georgia 140-2-.04 (2) (c) (adopted but not yet effective). This Georgia rule provision is consonant with the dissemination authorization permitted by the Rules and Regulations of the United States Department of Justice, 28 CFR 20.21 (b) (2). As previously discussed, the Election Code contains specific prohibitions based on certain criminal conduct. Since the State Election Board is empowered to investigate and enforce by civil actions this specific statutory provision, it would be entitled to receive criminal history record information in connection with any such investi11;ation or litigation. 283 75-144 C. Courts in Which an Election Contest Is Being Tried In addition to the criminal and civil powers vested in governmental entities to enforce the election laws of this state, the Election Code also provides that elections may be contested by any aggrieved elector or candidate. Ga. Code Ann. 34-1702. One basis for such contest is that a candidate is ineligible for the nomination or office in dispute. Ga. Code Ann. 34-1703. Since conviction of certain crimes is a specific basis for ineligibility, criminal history record information is required to implement the provision of the Georgia Election Code which specifically calls for enforcement by means of private election contests. Dissemination is therefore authorized under state and federal regulations. Rules and Regulations of the State of Georgia 140-2-.04 (2) (c); 28 CFR 20.21 (b). The GCIC Act does not, however, authorize disseminations to private litigants. Subsection 3 (i) of the Act provides only for dissemination to law enforcement agencies, courts of proper jurisdiction and criminal identification agencies. Subsection 3 (b) of the Act authorizes disseminations only to a "requesting agency" or arresting officer. I do not understand this to include private, nongovernmental individuals. I believe, nevertheless, that criminal history record information can be properly made available in a civil election contest. Subsection 3 (i) of the GCIC Act authorizes dissemination of criminal history record information to courts of proper jurisdiction which will aid them in the performance of their official duties. There is nothing in the statute limiting this to criminal justice duties. One of the official duties of the superior courts in this state is to adjudicate civil election contests. In the case of a civil election contest based on disqualification by virtue of past criminal activity, the court would undoubtedly find a criminal history record to be a valuable aid in the performance of its duties. I am of the opinion, therefore, that GCIC and other criminal justice agencies can, in connection with civil election contests between private parties, provide criminal history record information to the court. The most logical method of doing this, and the one :most consonant with the command of Section 6 of the GCIC Act that invasions of privacy be held to a mini:mu:m, would be to deliver the criminal history record information directly to the court. It would then be the province of the judge to determine the extent to which dissemination is required in order for hi:m to perform his duties in adjudicating the case. As to timing, dissemination in connection with a civil election contest between private parties would be appropriate only during the ti:me that such contest is pending in court. The grounds upon which :municipal elections may be civilly contested 75-144 284 must be set forth in municipal charters or ordinances. Ga. Code Ann. 34A-1501. Since municipal charters are state statutes, everything I have said concerning contests under the Election Code would be equally applicable to municipal election contests under a charter provision allowing contests based on disqualification. If only an ordinance authorizes the contest, dissemination would not be permitted under the provisions of state or federal rules. PART TWO Since I have concluded that dissemination of criminal history record information concerning candidates is sometimes appropriate, I now turn to your question as to whether fingerprints should be required in order to assure positive identification of the candidate. I am aware that fingerprints are the most positive and desirable method of insuring that the criminal history record disseminated is the proper one. I do not, however, understand the GCIC Act or any state or federal rules to require such identification. I conclude, therefore, that it is a matter of your administrative discretion to determine when sufficient identification has been received to enable you to be confident that you have disseminated the proper record. In determining your confidence level, I think you should consider that the criminal history record which you disseminate will not, itself, be admissible into evidence. Rather, it will only provide the prosecuting or litigating parties with information as to the existence of a criminal record. The actual record which will be admissible into evidence will have to be certified by its custodian, such as the clerk of the convicting court. PART THREE Finally, you have asked me whether arrest charges concerning candidates for election should be disseminated when they are not accompanied by dispositions. In this connection I would call your attention to the provisions of both the Election Code and the Municipal Election Code which provide for disqualification. In both cases, the disqualification is limited to persons who have been convicted and sentenced for fraudulent violation of primary or election laws, malfeasance in office, felony or crime involving moral turpitude. There is no need to know, in connection with enforcement of the election laws, that a person has been arrested but not convicted and sentenced. Additionally, there is no need to know of convictions unless they are of one of the enumerated categories of crimes. It is my opinion, therefore, that the command of the GCIC Act to minimize invasions of privacy requires you to limit disseminations in connection with the 285 75-145 election law situations which this opinion concerns, to records of conviction of one of the enumerated classes of offenses. It should also be noted that the Election Code and the Municipal Election Code provide that there is no disqualification for convictions if the person shall have successfully appealed his conviction or been pardoned. Thus, it would also be unnecessary and inappropriate to disseminate criminal history record information concerning a candidate who has successfully appealed or been pardoned. CONCLUSION In summary, it is my opinion that criminal history record information concerning candidates for public office can be disseminated to district attorneys, solicitors and the State Election Board when they are investigating election law violations and to the State Election Board and courts in connection with civil election contests. The only records which should be disseminated, however, are those of crimes which would work a disqualification. OPINION 75-145 To: Acting Commissioner of Personnel Administration December 18, 1975 Re: That portion of paragraph 3.501 of the Rules and Regulations of the State Personnel Board which prohibits certain political activities is not vague nor does it on its face violate the doctrines of freedom of speech and right to assembly. This is in response to your recent request for my opinion as to whether or not that portion of paragraph 3.501 of the Rules and Regulations of the State Personnel Board (hereinafter Rule 3.501) which prohibits employees in the classified service from participating in certain political activities violates the guarantees of freedom of speech and assembly or is unconstitutionally vague.1 Freedom of speech and right to assembly are not absolute guarantees under either the United States Constitution or the Constitution of the State of Georgia. See United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S. Ct. 556 (1947); Griffin v. Trustees of Atlanta University, 225 Ga. 859, 862 (1969); Atlanta Newspapers, Inc. v. Grimes, 1 The pertinent portion of Rule 3.501 reads as follows: " ... no employee under the Merit System shall be a member of any national, state, or local committee of a political party,or an officer of a partisan political club,or a candidate for nomination or election to any public office, or shall take any part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote." 75-146 286 216 Ga. 74, 79 (1960). Reasonable rules which insure that governmental employees can perform their public missions effectively and efficiently and which also incidentally limit the actions or speech of those employees would not violate their freedom of speech or their right to assembly. United Public Workers of America v. Mitchell, supra; Aycock v. Police Committee of the Board of Alderman of the City of Atlanta, 133 Ga. App. 883 (1975). The State Personnel Board is constitutionally charged with creating a personnel system where hiring and promotion are based on merit, fitness and efficiency. Art. XIV, Sec. I, Par. I of the Constitution of Georgia (Ga. Code Ann. 2-8201). If the State Personnel Board decides that this public goal is promoted by limiting the governmental employees' involvement in political activity, it can promulgate reasonable rules in this regard without offending the affected employees' guarantees of freedom of speech and right to assembly. 2 United Public Workers of America v. Mitchell, supra; Aycock v. Police Committee of the Board of Aldermen of the City of Atlanta, supra. Therefore, it is my opinion that Rule 3.501 on its face does not violate the guarantees of freedom of speech and right of assembly of the employees in the classified service of the State Merit System. The other question you asked was whether Rule 3.501 was unconstitutionally vague. The United States Supreme Court recently reviewed an Oklahoma state statute that is almost identical in wording to Rule 3.501. See Broadrick v. Oklahoma, 413 U.S. 601, 606, 93 S. Ct. 2908, 2912 (1973). There the court held that the Oklahoma statute was not vague. Due to the similarity of Rule 3.501 and the Oklahoma statute, I know of no reason why a court reviewing Rule 3.501 would arrive at a different conclusion. Therefore, it is my opinion that Rule 3.501 is not unconstitutionally vague. OPINION 75-146 To: Commissioner, Department of Offender Rehabilitation December 19, 1975 Re: State Board of Corrections has the power to promulgate rules and regulations as to good time allowances which are applicable to prisoners transferred to Central State Hospital due to mental illness. This is written in response to your recent request for an official opinion on four specific questions. It is noted that three of your questions concern application of good time provisions to those confined at 2 The Georgia General Assembly has directed the State Personnel Board to define and prohibit improper political activity by any person covered under the State Merit System. Ga. Laws 1975, pp. 79, 85 (Ga. Code Ann. 40-2204 (b) (3)). 287 75-146 Central State Hospital. These three questions may be answered by considering the following more general question: Is a prisoner, who has been transferred to Central State Hospital due to mental illness, subject to the rule-making power of the State Board of Corrections as to good time allowances? While I have been unable to locate any statutory or case law directly in point, it should be noted that Ga. Code Ann. 77-320 (Ga. Laws 1956, pp. 161, 178, as amended) gives the State Board of Corrections the rule-making power for extra good time allowances and sets forth specifically statutory good time allowances. Under this section, certain statutory good time allowances are mandatory, but may be deducted from or reinstated according to your own published rules; also, rules for extra good time allowances are provided for in this section. Ga. Code Ann. 77-310 (Ga. Laws 1956, pp. 161, 173; 1957, pp. 477, 479; 1960, pp. 234, 235; 1962, p. 699) authorizes the State Board of Corrections to transfer inmates to the criminal facilities at Central State Hospital. This facility is under the control of the Department of Human Resources, and the facility assumes actual custody of a prisoner transferred pursuant to Ga. Code Ann. 77-310 (d). However, by implication from the language of Ga. Code Ann. 77-310 (d), the State Board of Corrections retains a certain amount of administrative control over the prisoner. That statute provides that should the prisoner be considered sane he will be returned to the custody of the State Board of Corrections. If he is still in the hospital upon completion of his sentence, he may petition for a trial as to lunacy; prior to completion of this sentence the petition is not available to the prisoner. The prisoner is hospitalized pursuant to a decision by the State Board of Corrections which can keep him at Central State Hospital for the duration of his sentence; in this sense, the board retains constructive control over the prisoner. There is no statutory prohibition precluding your making rules in regard to good time allowances while a prisoner is at Central State Hospital. I view it as within your administrative discretion to provide these rules. Certain problems peculiar to a prisoner's role as a mental patient will present themselves; you should be able to adequately deal with those problems under your rule-making power. For example, you probably would not expect the same standard of conduct for a mentally ill person as for a fully competent one. Any harsh results which might accrue can be dealt with by promulgating rules pursuant to your power to reinstate forfeited good tirne allowances. Of course, any rule which you formulate in this area for prisoners transferred to Central State Hospital will not apply to prisoners sentenced to life imprisonment, as they are not eligible for good time allowances. Ga. Code Ann. 77-320. with specific reference to your question regarding escape from 75-147 288 Central State Hospital, a prisoner under treatment there is in your custody in the sense described above. A prisoner there may be classified as an escapee, but keep in mind that intent is an element of the crime of escape, and the ability of a mental patient to form criminal intent is always in question. I have previously stated that a conviction for escape is not necessary for forfeiture of good time allowances, but an ability to form intent may be a factor you wish to consider. Op. Att'y Gen. 67-234. Again, this is a matter to which you may want to afford special treatment under rules concerning prisoners at Central State facility. Therefore, it is my official opinion that the State Board of Corrections has the power to promulgate rules as to good time allowances which are applicable to prisoners transferred to Central State Hospital due to mental illness. OPINION 75-147 To: Director, Civil Defense Division December 19, 1975 Re: The provisions of Ga. Laws 1975, p. 1551, authorizing the Governor, in the exercise of his emergency powers, to make grants to individuals under certain prescribed conditions, are not inconsistent with the State Constitution. This is in response to your recent letter concerning a 1975 amendment to the Civil Defense Act of 1951 (Ga. Laws 1975, p. 1551). In particular, you requested my opinion as to whether the provision of the above Act, which authorizes the Governor, in the exercise of his emergency powers, to bestow welfare benefits in the form of grants to individuals, under certain prescribed conditions, is consistent with the requirements of the Georgia Constitution. The provisions of the Act about which your question is centered provide in part : "In the event that the Governor proclaims an emergency or disaster, as defined in this Act, the Governor may provide welfare benefits to the citizens of this State in the form of grants to meet disaster related necessary expenses or serious needs of individuals or families adversely affected by an emergency or disaster in those cases where such individuals or families are unable to meet such expenses or needs from other means, provided that such grants are authorized only when matching federal funds are available for such purposes pursuant to the provisions of the Disaster Relief Act of 1974 (Public Law 93-288)." Ga. Laws 1975, p. 1551, at p. 1554 (Ga. Code Ann. 86-1807 (1)). 289 75-147 In examining the Act in view of recent federal legislation, it is obvious that: (1) the General Assembly intended to enable the state to participate in the benefits available under the Disaster Relief Act of 1974, which provides in part for 75 percent to 25 percent federal-state grants to individuals who are adversely affected by an emergency or disaster (such grants had been 100 percent federally funded prior to the passage of the 1974 Federal Act), and (2) the General Assembly intended that the grants made pursuant to the Act were to be a form of welfare benefits for the citizens of this state and thus consistent with the requirements of the Georgia Constitution. The State of Georgia is authorized to provide welfare benefits under prescribed conditions, in Article VII, Section II, Paragraph I of the Constitution (Ga. Code Ann. 2-5501 (7)), which provides in part: "The powers of taxation over the whole state shall be exercised by the General Assembly for the following purposes only: * * * "7. To make provision for the payment of old age assistance to aged persons in need, and for the payment of assistance to the needy blind, and to dependent children and other welfare benefits; provided that no person shall be entitled to the assistance herein authorized, who does not qualify for such provisions in every respect, in accordance with enactments of the General Assembly, which may be in force and effect, prescribing the qualifications for beneficaries hereunder. . . .'' The General Assembly, in enacting the above Act, has not only specifically provided that the grants shall be a form of welfare benefits for the citizens of the State of Georgia but has also placed detailed conditions under which the grants are authorized. Accordingly, it is evident that the manifest intent of the General Assembly was for the provisions of the Act to be consistent with the above cited constitutional provision. "Among general rules to be applied in determining whether a legislative enactment offends a constitutional provision, and is for that reason void, are the following: (1) all doubts upon the subject of unconstitutionality are to be resolved in favor of constitutionality, in order (if it be legally possible) to give effect to the manifest legislative intent." Felton v. Bennett, 163 Ga. 849 (1926). I am unaware of any statutory provision or judicial construction which would cause the provisions of the above Act to be without or beyond the scope of the authorization provided in the Constitution. With this in mind, and the general rule of construction that a court will resolve all doubt upon the subject of unconstitutionality of a statute in favor of its constitutionality in order to carry forward the clear legislative intent of an Act, it is my opinion that the provisions of 75-148 290 Ga. Laws 1975, p. 1554, are consistent with the requirements of the Georgia Constitution. Accordingly, grants made pursuant to and in accordance with the provisions of the Act would not run afoul of the provisions of the Georgia Constitution concerning gratuities, the grants in question being a specific exception thereto. OPINION 75-148 To: Secretary of State December 24, 1975 Re: County registrars may not establish voter registration places outside the county which they serve. This is in reply to your request for my official opinion as to whether county registrars may, consistently with the Georgia Election Code, establish a place outside the county which they serve for the purpose of receiving and acting upon applications for registration of voters. It is my opinion that they may not do so. In a prior opinion, Op. Att'y Gen. 74-25, we observed that the courts have consistently held that county business, which includes receiving and acting upon applications for registration of voters, must be conducted at the county site absent authorization to conduct that business in other places. See also, Ops. Att'y Gen. 71-168, 66-163. The sole authority of the registrars to establish places other than at the county site for the purpose of registration of voters is contained in Ga. Code Ann. 34-610 (a), which provides: "The chief registrar, in addition to the main office, may designate other fixed places in the county to be used for the purpose of receiving applications.... In any county having a population of more than 100,000 ..., the chief registrar in each even-numbered year shall designate and staff, on a full or part-time basis, additional voter registration places within the county at least six months prior to the voter registration deadline for the November election in that year." Ga. Laws 1964, Extra. Sess., pp. 26, 54; 1968, pp. 871, 873. This authority clearly and unequivocably relates to the establishment of voter registration places within the county, and does not authorize the registrars to establish places in another county for that purpose. It is, therefore, my official opinion that county registrars may not lawfully establish a place outside the county which they serve for the purpose of receiving and acting upon applications for registration of voters. 291 UNOFFICIAL OPINIONS of THE ATTORNEY GENERAL 1975 293 U75-1 UNOFFICIAL OPINION U75-1 To: County Attorney January 3, 1975 Re: A county may appropriate funds to be used for day care services pursuant to Title IV of the Federal Social Security Act and applicable state public assistance laws; however, a grant to a private day care center not made pursuant thereto would be an unauthorized gratuity This is in response to your request for an opinion concerning the legality of the county appropriating public funds to be used for child day care services. For the following reasons, it is my unofficial opinion that a county may appropriate funds to provide day care services for children in conformity with the provisions of the federal and state public assistance program for families with dependent children but may not make a direct grant to a private day care center which is not part of such a program. The Polk County Board of Commissioners is considering applications by two day care centers for funds to operate day care programs for children. The applicants for these funds and the services which they provide are very different from each other. One program is operated for children eligible for services pursuant to the Federal Social Security Act (42 U.S.C. 601 et seq.) and the Georgia Public Assistance Act of 1965 (Ga. Laws 1965, p. 385; Ga. Code Ann. Ch. 99-29). This program would be funded in substantially the following manner. The county would make a grant to the Department of Human Resources which would obtain federal matching funds at the prescribed rate with the donated local share. Finally, the Department of Human Resources would then contract with the day care center for the provision of day care services to eligible children. The other applicant is a private day care center, not operating as part of the public assistance program. The grant for the public assistance program is authorized by the Constitution and laws of this state. The Constitution provides that counties are authorized to tax and expend funds to "establish and conduct programs of welfare benefit and public assistance as may be provided by law." Ga. Const., Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702(8)). Georgia Code Ann. 92-3701 relating to the purposes of county taxation permits county taxation: "(11) To provide for payment of old age assistance to aged persons in need, and for the payment of assistance to the needy blind, and to dependent children and other welfare benefits, provided that no person shall be entitled to such assistance who does not qualify for such assistance in every respect, in accordance with the enactments U75-2 294 of the General Assembly which may be in force and effect prescribing the qualifications for beneficiaries hereunder. . . ." Ga. Laws 1946, p. 87, as amended. The public assistance programs in this state are established and administered pursuant to the Georgia Public Assistance Act of 1965, Ga. Laws 1965, p. 385 (Ga. Code Ann. Ch. 99-29). "Public assistance" is defined to mean: "payment in or by money, medical care, remedial care, goods or services, to, or for the benefit of needy persons under any category that may be established pursuant to this Chapter." Ga. Code Ann. 99-2902 (Ga. Laws 1965, pp. 385, 386; 1967, p. 878). (Emphasis added.) Aid to Families with Dependent Children (AFDC) is one of the categories established by the Chapter and pursuant to federal regulations day care for children is an optional service in the AFDC program. See 45 C.F.R. 220.51. Therefore, day care services for eligible children are a form of "public assistance" within the meaning of the Georgia Constitution and applicable laws. The counties are specifically authorized to appropriate county funds for welfare services. Ga. Laws 1937, pp. 355, 356 (Ga. Code Ann. 99-508). Although counties may appropriate funds for public assitance programs, Ga. Laws 1970, p. 451 (Ga. Code Ann. 99-2916), provides that counties are no longer required to expend funds for categorical assistance programs. In Op. Att'y Gen. 72-12, a copy of which is enclosed, this office concluded that the 1970 statute does not prevent county donations to the state and that earlier but still unrepealed welfare laws authorized the department to spend such donated county funds. Therefore, it is my unofficial opinion that the county may donate funds to be used for child day care services as part of the state's AFDC program. On the other hand, there is no authority for a county to grant public funds to a day care center which is not operated as part of the AFDC program. Since the Constitution limits county taxation and expenditures to welfare programs as provided by law, and the only welfare program provided by law which may include this type of day care services is the AFDC program, there would be no authority for the county to appropriate money for the private day care center which is not operated as a service for eligible children. UNOFFICIAL OPINION U75-2 To: Polk County Attorney January 3, 1975 Re: Ga. Code Ann. 34-1514 establishes the consequences for the 295 U75-3 withdrawal of a person elected to the office of Solicitor of State Court of Polk County. This is in reply to your request for an unofficial opinion as to the proper course of action to be taken as a consequence of the failure of the person duly elected in the November 1974 general election to the office of Solicitor of the State Court of Polk County to take the oath of office. The solicitor-elect succeeds an incumbent who decided not to seek reelection. It is my unofficial opinion that the following conclusions may be drawn with respect to the proper course of action in these circumstances. First, Ga. Code Ann. 34-1514 requires that a special election be held to fill such position. That section in pertinent part provides: " ... [W]henever any person elected to public office shall die or withdraw prior to taking office, then the authority, with whom the candidates for such nomination or office filed their notice of candidacy, shall thereupon call a special primary or election to fill such position." Ga. Laws 1970, pp. 347, 382. By virtue of Ga. Code Ann. 34-102 (Ga. Laws 1964, Extra. Sess., pp. 26, 28), this section governs over any conflicting provisions in the laws creating the State Court of Polk County. Op. Att'y Gen. 68-224 (Unofficial). Second, the incumbent solicitor, by virtue of Ga. Laws 1901, p. 156, as amended, and Ga. Code (1933) 89-105, holds the office, and is entitled to the emoluments thereof, until his successor is duly commissioned and qualified. Finally, in the event the incumbent solicitor fails or refuses, after January 1, 1975, to perform the duties of his office, the Judge of the State Court of Polk County is authorized to appoint a solicitor pro tern. to act until the position is filled by the special election required under Code 34-1514. Horton v. State, 11 Ga. App. 33 (1912); Ga. Laws 1901, pp. 156, 157-58. The Governor's power of appointment of a solicitor in the event of a vacancy, under Ga. Laws 1901, p. 156, as amended, particularly by Ga. Laws 1931, p. 365, is not applicable here. UNOFFICIAL OPINION U75-3 To: Judge, Superior Courts, Rome Judicial Circuit January 9, 1975 Re: A superior court judge emeritus is authorized by law to perform marriage ceremonies. U75-4 296 You have asked my opinion on whether superior court judges emeritus can perform :marriage ceremonies under Georgia law. As I understand it, you beca:me a judge of the superior courts e:meritus on December 30, 1974. You currently have two different requests to perform marriage ceremonies during January 1975, and you want to perform those ceremonies if Georgia law so permits. The statutory law delineating which persons may perform marriage ceremonies in Georgia clearly authorizes the performance of such ceremonies by any judge and certain other officials and ministers. Ga. Laws 1960, p. 179 et seq., as amended (Ga. Code Ann. 53-201). The statute creating both your position and the accompanying retirement system for certain superior court judges creates the office of judge of superior courts emeritus (Ga. Laws 1945, p. 362; Ga. Code Ann. 24-2601a) and further provides that: "Any judge of the superior courts of the State of Georgia who shall be in at least his 19th year of service as judge ... shall be eligible for appointment (by the Governor) to judge of the superior courts emeritus: . . ." Ga. Laws 1960, pp. 161, 162; Ga. Code Ann. 24-2602a. (Parenthetical words and emphasis added.) Thus it is clear that the statutory scheme creating the superior court judges emeritus program envisions the creation of a special group of judges to perform duties as provided by law. Generally, the duties of the emeritus judge are specified in the Emeritus Act (e.g., serve on the superior court bench when so directed by the Governor or authorized by law (Ga. Code Ann. 24-2605a; Ga. Laws 1945, p. 362, as a:mended)). However, when a separate statute provides that the ministerial act of performing a marriage ceremony may be carried out by any judge, certainly a judge of the superior courts emeritus may perform that function. Accord: Ops. Att'y Gen. 1954-56, p. 156, wherein it was opined that a juvenile court judge could perform a marriage ceremony. This opinion does not and is not intended to address the questions pertaining to the authorization of an emeritus judge in any situation other than which you have now presented to us. Therefore, based on the foregoing authorities and rationale, it is my opinion that a superior court judge emeritus is authorized by law to perform marriage ceremonies. UNOFFICIAL OPINION U75-4 To: County Attorney, Fayette County January 13, 1975 Re: Words traced with a pen, or stamped, printed, or made legible 297 U75-4 with any other device for the purpose of putting down an individual's name on an instrument to attest to its validity, and which words are intended by the individual to be his signature, are a sufficient signature for the signing of the instrument involved. Authentication of such a signature, if it is in question, may be made by any of the several methods commonly available to authenticate signatures, including identification by the author. This is in response to your recent request for our opinion as to the sufficiency of a printed or stamped facsimile signature on documents required under Ga. Code Ann. 53-215 (Ga. Laws 1949, p. 1054, as amended) to be "signed" by certain persons. The question presented involves an interpretation of the word "sign." This question has been addressed several times by the courts in this state. In Bank of Ringgold v. Poarch, 30 Ga. App. 102, 117 S.E. 114 (1922), the Court of Appeals stated that: ""Words traced with a pen, or stamped, printed, or made legible by any other device whereby such act is for the purpose of putting down a man's name at the end of an instrument to attest its validity, and is adopted by the party whose name is so signed, is a sufficient signature and signing of the instrument to which it is signed." ::Vlore recently, the same court in Katz v. Teicher, 98 Ga. App. 842, 107 S.E.2d 250 (1959), stated that: "The signature may be in one's handwriting, or printed, engraved, lithographed or photographed so long as they are adopted as the signatures of the signers." The Supreme Court has addressed itself to the matter only in passing, but has clearly indicated that, when intended to be adopted as a signature, a printed signature will suffice. See Delaware Insurance Co. v. Pennsylvania Insurance Co., 126 Ga. 380, 55 S.E. 330 (1906). Therefore, it is quite clear, in any instance where the signature of an individual is required, that a person may offer as his signature any facsimile which he intends to use as his signature. The key question, of course, appears to be the intent involved and from that question the risk of using a stamp arises since the matter of intent is less susceptible of proof in the case of a stamp. See Hansen v. Owens, 132 Ga. 648, 64 S.E. 800 (1909). If there is a question as to the authenticity of the signature, it would appear that the most readily available method of authenticating the signature would simply be to have the person whose signature it purports to be authenticate it as being his own. Adding handwritten initials to the signature by stamp might aid in this process since the identity of the handwriting would be provable by means U75-5 298 other than direct testimony of the author and would reflect the author's intent. Another method of authenticating such a signature would be to have any person who witnessed the affixing of the signature to the document testify as to its authenticity. One of these methods should be available in almost any instance where the authenticity of a signature may be in question. Although the question does not arise under the law which you have cited, you should be aware that the statutory use of the word "subscribe" might require a different conclusion than that which I have reached. UNOFFICIAL OPINION U75-5 To: Probate Judge, Houston County February 10, 1975 Re: Marriage license; documentary proof of applicant's age. Your letter of January 30, 1975 requested my opinion as to what constitutes documentary proof of age with regard to issuance of a marriage license. As you state in your request, Ga. Code Ann. 53-102 requires that documentary proof of an applicent's age be furnished "in the form of a birth certificate, baptismal certificate or driver's license." Ga. Laws 1963, p. 485. However, you point out that Ga. Code Ann. 53-206 requires that documentary evidence of age, where required, be furnished in the form of a birth certificate or baptismal certificate. Ga. Laws 1972, pp. 193, 197. Both statutes purport to prescribe the procedure for and method of providing documentary proof of an applicant's age. There appears to be an irreconcilable conflict between these two statutes as to what constitutes acceptable documentary evidence for proof of age. A general rule of statutory construction provides that where an irreconcilable conflict between two statutes exists, the most recent legislative expression on the particular point takes precedence over the earlier statute. E.g., Macon & Birmingham R.R. v. Gibson, 85 Ga. 1, 19-20 (1890); see Ops. Att'y Gen. 73-114, 72-101. Therefore, it is my unofficial opinion that Ga. Laws 1972, pp. 193, 197, takes precedence over Ga. Laws 1963, p. 485, insofar as a conflict exists between the two statutes and that where documentary proof of an applicant's age is required only a birth or baptismal certificate will suffice. See Ga. Code Ann. 53-206. 299 U75-7 UNOFFICIAL OPINION U75-6 To: Representative, District 115 February 10, 1975 Re: A local constitutional amendment which does not provide otherwise becomes effective on January 1 following its ratification. This is in reply to your letter requesting an opinion as to the effective date of Ga. Laws 1973, p. 1500, a local constitutional amendment ratified in November 1974, which authorizes the City of Perry to grant increased homestead exemptions for persons over 65 years of age with eertain limited income. Article XIII, Section I, Paragraph IV of the Georgia Constitution of 1945 (Ga. Code Ann. 2-8104) provides: "Unless the amendment itself shall provide otherwise, an amendment to the Constitution shall become effective on the first day of January following its ratification." The local constitutional amendment (Ga. Laws 1973, p. 1500), ratified in November 1974, does not provide for an effective date. Therefore, it is my unofficial opinion that this local constitutional amendment was effective on January 1, 1975. UNOFFICIAL OPINION U75-7 To: Executive Director, Georgia Peace Officer Standards and Training Council February 18, 1975 Re: Deputy sheriffs of municipal eourts are not peace officers pursuant to Ga. Laws 1970, p. 208 (Ga. Code Ann. Ch. 92A-21). By your letter of January 20, 1975, you have requested an evaluation of the status of a particular individual relative to the certification requirements of Ga. Laws 1970, p. 208 (Ga. Code Ann. Ch. 92A-21). The thrust of your inquiry revolves around the question of whether deputy sheriffs of municipal courts are peace officers as defined by the Georgia Peace Officer Standards and Training Act. The function of determining whether a particular prospective peace officer meets the certification requirements of Ga. Laws 1970, p. 208 (Ga. Code Ann. Ch. 92A-21) must of course be performed on a case by case basis by the Peace Officer Standards and Training Council. However, the status of deputy sheriffs of municipal courts presents a recurring factual situation which is the proper subject of legal interpretation. U75-7 300 It is my understanding that sheriffs and deputy sheriffs of municipal courts are employees of the municipal court and are not a part of nor answerable to the county sheriff's department; that their function is to maintain order in their respective courts and to serve summons and warrants of such courts; that their duties do not include undertaking general criminal investigations; and they do not exercise a general power of arrest. The conclusion set forth herein is based solely on the existence of the above-stated facts and has no applicability to any different factual situations. Ga. Laws 1970, p. 208 (Ga. Code Ann. 92A-2102 (d)), defines peace officer as follows: " 'Peace officer' means any officer or member of a law enforcement unit employed full time by the Department of Public Safety, a municipality or a county, who has the power of arrest, and who is responsible for the enforcing of criminal laws in this State or its political subdivisions; sheriffs and other constitutional law officers who hold elective office are not considered peace officers under the provisions of this Chapter." (Emphasis added.) The key term to this definition is "law enforcement unit." The Georgia Peace Officer Standards and Training Act defines law enforcement unit as: "'Law enforcement unit' means the officers of the Department of Public Safety, a police force or sheriff's office of a municipality or a county whose primary duty is detecting crime and enforcing the criminal laws of this State or its political subdivisions." (Emphasis added.) Ga. Laws 1970, p. 208 (Ga. Code Ann. 92A-2102 (e)). The question is, then, whether sheriffs and deputy sheriffs of municipal courts fall within the two definitions set forth above. From the foregoing it is apparent that in order to be classified as a peace officer one must not only have the power of arrest and be responsible for enforcing criminal laws but must also be an employee of a law enforcement unit the primary duty of which is detecting crime and enforcing the criminal laws of the State of Georgia. As previously set forth, the primary duty of municipal court sheriffs' offices is not detecting crime but rather maintaining order in the courtroom and serving subpoenas and warrants. Moreover, the enforcement function of municipal courts and the officers thereof is limited to misdemeanors and does not extend to felonies. Ga. Const., Art. VI, Sec. VI, Par. II (Ga. Code Ann. 2-4102); Ga. Code (1933) 69-704; Ga. Laws 1937-38, Extra. Sess., p. 558 [Ga. Code Ann. 92A-501]. Sheriffs and deputy sheriffs of municipal courts are not then members of a "law enforcement unit" having a primary function of enforcing the criminal laws of the state and detecting crime. 301 U75-8 It is, therefore, my unofficial opinion that sheriffs and deputy sheriffs of municipal courts are not peace officers as defined by Ga. Laws 1970, p. 208 (Ga. Code Ann. 92A-2102 (d)) since they are not employed by a law enforcement unit. To the extent that it conflicts with the views expressed herein, an unofficial opinion issued March 31, 1971 (Ops. Att'y Gen. U71-49) is hereby withdrawn. I again caution you that the conclusions contained in this opinion are specifically addressed to the facts stated above and should not be extended to other factual situations. UNOFFICIAL OPINION U75-8 To: Vice Chairman, Georgia Regional Executive Directors Association, Altamaha Georgia Southern Area Planning and Development Commission February 18, 1975 Re: Area Planning and Development Commissions have limited authority to borrow money (i.e., they can borrow funds, facilities, equipment and supplies from those local governmental entities which are situated within the area the APDC embraces) but are unauthorized to convey mortgages or liens on their property. In your letter of January 31, you ask whether Area Planning and Development Commissions are authorized by Section 14 of Ga. Laws 1970, pp. 321, 330, to borrow and repay money in the course of performing the legal duties and functions required of the commissions. By virtue of subsequent telephone conversation with your office it is my understanding that you also wish to know, in the event that APDC's do have the power to borrow money, whether an APDC may, in connection with such a loan, convey a first mortgage or lien on its property. I responded to each question in turn. Looking first at your initial inquiry, were I to answer strictly in terms of the precise question you ask, i.e., the authority conferred upon APDC's under Section 14 of Ga. Laws 1970, pp. 321, 330 (Ga. Code Ann. 40-2920), it would be my opinion that they are not authorized to borrow and repay money in the performance of their legal duties and responsibilities. The basic function of an APDC is to cooperate with and provide technical assistance to those units of local government situated within their boundaries. See Ga. Laws 1970, pp. 321, 330 (Ga. Code Ann. 40-2920 (h)). The only provision of Section 14 which could even arguably authorize the incurring of a debt by an APDC is subsection (b) thereof (i.e., Ga. Code Ann. 40-2920 (b)). This Section authorizes APDC's to "make and enter into all contracts or agree- U75-9 302 ments necessary or incidental to the performance of its duties and functions." Looking at this Section alone it would be my conclusion that the power to borrow and repay monies cannot be said to be necessary or incidental to the performance of an APDC's basic duties of rendering technical assistance or advisory services to local political subdivisions. I think this interpretation of Section 14- by itself is supported (even while at the same time the overall conclusion as to the power of APDC's to borrow is modified) by Section 16 of the Act (Ga. Code Ann. 40-2922). This latter section declares that: "The governing authorities of the local government entities within each area planning and development commission may appropriate or loan its funds, facilities, equipment and supplies to the area planning and development commission." On the basis of this statutory authorization to which you did not refer, I conclude that APDC's do have limited authority to borrow money in the sense that they can borrow funds as well as facilities, equipment and supplies from those local governmental entities which are located within their respective boundaries. Their borrowing power, however, stops here and they are not authorized to borrow funds from any other lenders. With respect to your second question, I would have to say that I am unaware of any authority which would permit APDC's to convey first mortgages or liens on their property. In the absence of any specific authorization, it is my opinion that it would not be lawful for an APDC to convey a mortgage or lien on its property. The reason for this conclusion is that Section 17 of Ga. Laws 1970, pp. 321, 331 (Ga. Code Ann. 40-2923), expressly declares the property of an APDC to be "public property." In the absence of statutory authorization, it appears to be the general rule that mortgages and liens cannot be conveyed on public property. Cf. Ops. Att'y Gen. 1957, p. 179 (citing numerous cases). UNOFFICIAL OPINION U75-9 To: Judge, Probate Court, Jackson County February 27, 1975 Re: A citizen of the State of Georgia is not prohibited from starting a family cemetery on his own property. This is in response to your recent request for an opinion as to whether there is any prohibition against a citizen starting a family cemetery on his own property. My conclusion, as set out below, is that there is no such prohibition. 303 U75-10 Georgia Laws 1969, pp. 242, 245 (Ga. Code Ann. 84-5107), provides that each cemetery shall register with the Secretary of State and shall obtain a certificate of registration, and it shall be unlawful to sell any cemetery property without obtaining and maintaining a valid certificate. However, the term cemetery is defined as including ''all cemeteries in the State of Georgia, whether operated for profit or otherwise, or incorporated or otherwise, except municipally-owned cemeteries, fraternal cemeteries, church cemeteries, or family burial plots." See Ga. Laws 1969, p. 242 (Ga. Code Ann. 84-5101). Thus, an exception to the general rule requiring registration is made for the family burial plot. Therefore, a citizen desiring his own family cemetery would not have to comply with the state licensing laws regarding cemeteries. However, in the event of any death, certain health requirements must be met regardless of where burial takes place. These include the proper completion and registration of a death certificate and the acquisition of a burial transit permit. See Ga. Code 88-1715 and 88-1717 (Ga. Laws 1964, p. 499, as amended). Moreover, in some instances a post mortem examination may be required. Ga. Code Ann. 21-201 et seq. (Ga. Laws 1953, p. 602). Therefore, notwithstanding interment in a family burial plot, compliance with the above cited state laws would be required. It should also be noted that under its police power, a municipality could exercise some control over cemeteries and burials. See Mayor and Aldermen of Savannah v. Golding, 181 Ga. 260, 181 S.E. 821 (1935). This could include local health or zoning ordinances. Before starting a family cemetery, a thorough investigation of local law is advised. In conclusion, absent some local regulation to the contrary, it is my unofficial opinion that a citizen could start a family burial plot on his own property. In the event of any death, however, all public health formalities would have to be complied with. UNOFFICIAL OPINION U75-10 To: Judge, McDuffie County Probate Court February 27, 1975 Re: This issuance of more than one permit to an individual to carry a handgun pursuant to Ga. Code Ann. 26-2904 rests in the discretion of the judge of the probate court of each county. This is in reply to your recent letter requesting my opinion as to whether or not a judge of the probate court is required to issue more than one license per person for the carrying of an additional handgun when that same individual already has a valid permit to carry one pistol or revolver. Ga. Laws 1968, pp. 1249, 1324 (Ga. Code Ann. U75-10 304 26-2904), the handgun licensing statute, does not specifically address this question. However, the language contained in paragraph one of this statute when read in connection with the second paragraph seemingly leaves it up to the individual discretion of the probate court judge in each county to determine whether or not to issue a resident of the county a license for each handgun he or she wishes to carry. "The ordinary of each county may on application under oath and payment of a license fee of three dollars issue a license, either in term time or during vacation, to any resident of the county authorizing the applicant, for a period of three years from the granting of such license, to have and carry a pistol or revolver in any open manner and fully exposed to view or in his motor vehicle ..." Ga. Laws 1968, pp. 1249, 1324 (Ga. Code Ann. 26-2904). (Emphasis added.) The word "may" generally connotes a request for permission rather than a mandatory direction or command. When used in the context of a statute concerning the public interest or one affecting the rights of third parties, "may" has ordinarily been construed to mean "must" or "shall." Ga. Code Ann. 102-103. See also, Roe v. Pitts, 82 Ga. App. 770, 772 (1950). Unequivocally, Code Ann. 26-2904 concerns the public interest, since its objective is to avoid the unrestrained use of having people carry firearms outside of their homes or places of business. Melton v. State, 41 Ga. App. 501, 503 (1930). The licensing requirement of the statute in question protects the public interest by requiring the issuance of such a license. When viewed in this manner paragraph one of the handgun licensing statute does seemingly diminish the discretionary definition of the word "may." It is my unofficial opinion that the discretionary meaning of the word "may" in paragraph one of the above-referenced statute is revitalized and strengthened when viewed along with paragraph two of this same statute, which uses the word "shall" in regard to what a probate court judge must do when granting a license for a handgun. Having both the words "may" and "shall" used in this Code section, and in an almost side by side way, restores the permissive or discretionary use of the word "may." Roe, supra. Another salient factor which tends to bolster the probate court judge's discretionary authority as to whether or not to issue more than one pistol permit to an individual is the fact that the licensing authority reserved to the probate court judge is limited to residents of the judge's county. Ga. Laws 1968, pp. 1249, 1324 (Ga. Code Ann. 26-2904). The probate court judge as the licensing authority in a particular county is in a better position to become familiar with the residents of his or her county as opposed to there being a central licensing authority for the state. Perhaps the legislature at the time it 305 U75-11 enacted this statute intended to personalize the issuance of gun permits, and did so by entrusting this duty upon the probate court judge in each county under the expectation that the judge would better be acquainted with the personal idiosyncrasies of each resident in his or her county who might appear before him for the issuance of such a handgun license. It is, therefore, my unofficial opinion that Ga. Code Ann. 26-2904 gives you discretionary authority as the probate court judge in McDuffie County to determine whether or not to issue more than one license per person to carry a handgun in your county. The legislature has seemingly entrusted you with the function of controlling the issuance of gun licenses in your county to more than one individual by placing upon you the duty of balancing the particular facts and circumstances of each subsequent application with the right to bear arms and the state's pervading interest in preventing the random licensing of weapons. Further, you have a duty as probate court judge to guard against having any one individual in the county becoming a threat to the community by issuing numerous permits to any one citizen. UNOFFICIAL OPINION U75-ll To: Judge, Superior Court, Rome Judicial Circuit February 28, 1975 Re: The compensation of a juvenile court judge once fixed may not be altered during the term for which said compensation is fixed, but claims of a county commission for reimbursement of excess compensation paid to such judge more than four years prior to such claims would be barred by the statute of limitations. This is in response to your January 27, 1975 request for an unofficial opinion concerning (i) the authority for certain compensation you received while serving as Judge of the Juvenile Court of Floyd County and (ii) the application of the statute of limitations to demands of the Floyd County Board of Commissioners that portions of the aforementioned compensation, being made without proper authority, be reimbursed. I shall not in this unofficial opinion attempt to answer the ultimate question as to your liability vel non, as such an answer would be inappropriate in view of potential litigation between the Floyd County Board of Commissioners and you concerning such liability, if any. Further, I do not have knowledge of the complete facts of your situation, which knowledge would be necessary, were it appropriate, to make an evaluation of your liability. U75-11 306 As to the authority for the compensation you received while serving your first term as Judge of the Juvenile Court of Floyd County, it appears that the Juvenile Court Act of 1951 (Ga. Laws 1951, p. 291, as amended; Ga. Code Ann. Ch. 24-24), pursuant to which you were appointed to said office in 1964, is controlling. At that time said Act provided, in pertinent part, as follows: " ... [T]he judge or a majority of the judges of the superior court circuit presiding over the county wherein a juvenile court is established ... shall appoint the judge ... of the juvenile court for a term of six years and shall fix the compensation except in those counties wherein the salary of the judge is fixed by legislative Act." (Emphasis and bracketed matter added.) Ga. Laws 1956, pp. 69, 71 (Ga. Code Ann. 24-2402). The Juvenile Court Act of 1951 was further amended subsequent to 1956, but the above quotation and its effect were unchanged. The General Assembly on several occasions by the enactment of "population Acts" fixed the salary of juvenile court judges in counties having a population within the limits of such Acts. See, e.g., Ga. Laws 1957, p. 3303; Ga. Laws 1961, p. 402; Ga. Laws 1962, p. 2380. None of these "population Acts" appear to have been applicable to Floyd County. Thus, your compensation as the Juvenile Court Judge of Floyd County would have been determined by the amount fixed in the order appointing you. The word "fix" was interpreted in Culberson v. Watkins, 156 Ga. 185 (1923). The Supreme Court there held that "fix" means "to place securely, settle, determine, immovable and unalterable." The question before the Supreme Court in Culberson was whether the compensation of a juvenile court judge appointed under Ga. Laws 1915, p. 35 (which, in pertinent part, is almost identical to the above quotation, Id. at 43), could be altered during the six-year term for which said judge was appointed. The court held that the judges of the superior court appointing said juvenile court judge for a six-year term were without power during said term to alter his compensation. Culberson, supra, at 185. The court further held that there is no necessity for any audit or approval by the county commissioners of said compensation (Id.), thus making immaterial, to a question of the legality of such judge's compensation, consideration by the county commissioners. Based on the above it is my unofficial opinion that during the period March 1, 1964, to February 28, 1970, all compensation you received from Floyd County for the performance of the duties of Judge of the Juvenile Court of Floyd County in excess of that fixed in the order appointing you to such position was unauthorized. As to your second six-year term, the same reasoning as set forth above would apply. This is true though the Juvenile Court Act of 1951, 307 U75-ll as amended, was repealed effective July 1, 1971, and superseded by Code of Georgia Title 24A. Judges, such as yourself, who were serving in established juvenile courts as of December 31, 1970 were to continue to serve until the expiration of the terms of office to which they were appointed under the Juvenile Court Act of 1951, as amended. Ga. Code Ann. 24A-201. Thus, it is my unofficial opinion that during the period March 1, 1970, until the termination of your duties as Juvenile Court Judge, no alteration of your compensation from that fixed in the order appointing you to a second six-year term was authorized. Given the virtual identity of the facts in your situation as compared to those in the Culberson case, the unofficial opinions expressed above, being based exclusively on Culberson, are intended solely to apply to situations such as yours. Questions involving the compensation of other public officials could well involve considerations inapplicable to your case. For example, Ga. Const. Art. III, Sec. XI, Par. I (Ga. Code Ann. 2-2301), provides as follows: "The General Assembly may, at any time, by a majority vote of both branches prescribe other and different salaries for all the elective officers provided for in this Constitution, but no such change shall diminish the amount of any salary set forth in the Constitution.'' With respect to the applicability of the statute of limitations to the demands of the Floyd County Board of Commissioners that portions of your compensation as Judge of the Juvenile Court of Floyd County, being made without authorization, be reimbursed by you, Ga. Code (1933) 3-706 and 3-715 as interpreted by the Supreme Court in MacNeill v. McElroy, 193 Ga. 55 (1941), are controlling. Code of Georgia 3-706 provides, in pertinent part, as follows: "All actions upon open account ..., or upon any implied assumpsit or undertaking, shall be brought within four years after the right of action shall have accrued.'' Code of Georgia 3-715 provides as follows: "vVhen, by the provisions of the foregoing sections, a private person would be barred of his rights, the State shall be barred of her rights under the same circumstances." In MacNeill, supra, at 55, the Supreme Court held the above quoted portions of the Code of Georgia applicable to the right of a county to recover excess salary paid without authority to an assistant probation officer. The court also held that the four-term period specified in Code 3-706 should be computed from the times when the several payments were made, regardless of the continuance in office of such probation officer. MacNeill, supra, at 56. U75-12 308 The court in MacNeill held Cook v. Houston County Commissioners, 62 Ga. 223, 224 (1879), to be inapplicable. The holding in Cook, that the statute of limitations does not commence in favor of a county sheriff, who falsely and fradulently drew money from the county treasury, during his continuance in office, was distinguished in MacN eill on the basis of the payments to the assistant probation officer having been made by the county voluntarily, openly and in good faith and without misrepresentation or fraud on the part of such probation officer or of anyone else. MacNeill, supra, at 59. Cook was further distinguished on the basis of the absence of withdrawals by the probation officer from money collected by him as a public officer and illegally retained by him. Id. Also the public policy consideration applied in Cook in that the county in Cook had no effective means of detecting the sheriff's delinquency was found not to obtain in MacNeill. Id. Therefore, it is my unofficial opinion that, absent any relevant facts which would distinguish your situation from that present in MacNeill, and absent any facts from which it could be concluded that such claims had been revived, the statute of limitations as set forth in Ga. Code Ann. 3-706 would bar claims of the Floyd County Board of Commissioners for reimbursement of overpayments in your compensation, which overpayments occurred more than four years prior to such claims. In summary, it is my unofficial opinion that (i) compensation you received from the Floyd County Board of Commissioners for the performance of the duties of Judge of Juvenile Court of Floyd County in excess of the amounts fixed in the orders appointing you to the two six-year terms, beginning respectively on March 1, 1964, and March 1, 1970, were unauthorized; and (ii) that, subject to the conditions outlined above, the statute of limitations set forth in Ga. Code Ann. 3-706 would bar claims of said board for such excess as was paid to you more than four years prior to such claims. UNOFFICIAL OPINION U75-12 To: Judge, Municipal Court, City of Rome March 3, 1975 Re: Motor vehicle registration by nonresidents; effect of reciprocity agreements with sister states. This is in response to your recent letter concerning the following questions: 1. Would a student, driving his parents' automobile, while attending a private school in Georgia, be required to obtain Georgia license tags? 309 U75-12 2. Would that student be required to obtain Georgia license tags if he obtained part-time employment? Georgia Code Ann. 68-221 (a) provides, in part, "Motor vehicles owned by nonresidents of the State may be used and operated on the public streets and highways for a period of 30 days without having to register and obtain a license to do so or a chauffeur's license...." Ga. Laws 1927, p. 226; 1973, p. 342. Subject to the limitations of subsection (b), a nonresident is required to purchase Georgia license tags if his automobile is within the state for a continuous period in excess of 30 days. See Ops. Att'y Gen. 195859, p. 211.1 If the student returns home on a daily basis, no purchase of a license tag is required. However, if the student establishes a temporary residence in the state and maintains that temporary residence for a period in excess of 30 days he is required to purchase a license tag without regard for the fact that (1) he returns home once a month and is never in Georgia for a period in excess of 30 days or (2) the automobile is not within the state for a continuous period in excess of 30 days. See Ops. Att'y Gen. 67-330. If, however, the nonresident student is from a state which has entered into the Multi-State Reciprocal Agreement Governing the Operation of Interstate Vehicles, 68-221 does not apply. The essence of the reciprocity agreement provides for a "good neighbor policy" which can be summed up as follows :2 if Georgia will allow nonresident students to use its highways without the necessity of purchasing license tags as is required in 68-221, the state of that student's residence will afford the same courtesy to Georgians who attend school there, and vice versa. The reciprocity agreement is binding upon the signatory states and is superior to laws such as 68-221. See Ops. Att'y Gen. 73-121. Therefore, if the nonresident student's home state has entered into the reciprocity agreement, the student can operate his automobile on the public highways of Georgia without the need to purchase Georgia license tags. However, if the nonresident student's state has not entered into the reciprocity agreement and if the automobile is within the state for a continuous period in excess of 30 days or if the student establishes a temporary residence within the state and maintains that temporary residence for a period that exceeds 30 days (without regard for the length of time the automobile is in the state), the student would be required to obtain Georgia license tags. In response to your second question, Ga. Code Ann. 68-221 (b) provides, in part, 1 Ops. Att'y Gen. 1958-59, p. 211, was changed in part by Ga. Laws 1973, p. 342 (Ga. Code Ann. 68-221 (b)), but only insofar as that opinion relates to employment. 2 This summary is very general and is made only for the purpose of demonstrating the agreement's effect on the acts under consideration. U75-13 310 "Notwithstanding the provisions of subsection (a), in every case where a nonresident accepts employment ... in the State ... such nonresident shall within 10 days after the commencement of such employment ... be required to register his motor vehicles in this State if such motor vehicles are proposed to be operated on the highways of the State." This section of the law does not distinguish between full-time and part-time employment, nor is it subject to the 30-day exemption found in subsection (a). If any nonresident, be he student or not, accepts employment within this state, he must obtain Georgia license tags within 10 days of the commencement of that employment. See Ops. Att'y Gen. 73-121. The operation of 68-221 (b) is limited by the fact of whether or not the states involved are signatories of the reciprocity agreement. If both states are signatories, and if the operator (employee) has not established residence-permanent or temporary exceeding 30 days-within this state, he may operate his automobile between his place of residence and his place of employment in Georgia without the need for purchasing Georgia license tags. However, if the nonresident employee's state has not entered into the reciprocity agreement, the employee is required to purchase Georgia license tags within 10 days after commencing that employment. Therefore, it is my unofficial opinion that the resolution of your questions is governed by whether or not the states involved are signatories of the reciprocity agreement. Generally, if a nonresident uses Georgia highways, never establishes residence within this state, and his state of residence is a signatory of the agreement, he will not be required to obtain Georgia tags. Alternatively, if the nonresident's state of residence is not a signatory, the nonresident must satisfy the requirements of Ga. Code Ann. 68-221. I trust that the foregoing sufficiently answers your questions. I am enclosing a Department of Revenue pamphlet entitled "Motor Vehicle License Laws and Regulations" for your general information. UNOFFICIAL OPINION U75-13 To: City Attorney March 7, 1975 Re: A judge of the superior courts emeritus who accepts appointment as a city recorder subjects himself to a suspension of his rights, duties and salary as an emeritus judge during the time he serves as city recorder. This responds to your request for my opinion on whether the salary of a superior court judge emeritus would be affected if he accepted the 311 U75-13 position of City Recorder of the City of Clarkesville, either with or without pay. My understanding is that the Mayor and City Council of Clarkesville are seeking a city recorder to administer the Recorder's Court of Clarkesville and, in this connection, have approached a superior court judge emeritus. The emeritus judge is concerned whether his appointment as such would affect his emeritus salary. The portion of the Superior Court Judges Emeritus Act pertinent to your inquiry reads as follows: "Notwithstanding any other provisions of this Act, in the event that any judge of the superior court shall become eligible for appointment or shall have actually been appointed judge of the superior courts emeritus, and while so eligible for appointment or holding such an appointment, shall be elected or appointed to, or shall qualify for an office of profit or trust under the Constitution of the United States or the Constitution of Georgia, his right to appointment as judge of the superior courts emeritus or to continue to hold such an appointment and to draw the salaries fixed therefor under this Act, shall be suspended during the period of time that he shall hold such office...." Ga. Laws 1960, p. 161; Ga. Code Ann. 24-2605a.l. Briefly stated, the purpose of this statute is to allow a judge emeritus, or one eligible for such appointment, to accept appointment to or be elected to another office of profit or trust under the Georgia or United States Constitution. While the emeritus judge is holding another office of profit or trust, his right to hold his emeritus office and draw his salary is suspended, but he retains a right of reappointment. If the office of City Recorder of Clarkesville is an office of profit or trust under the Georgia Constitution, an emeritus judge assuming that office would suffer a suspension of his salary. Any individual who has been appointed or elected in a manner prescribed by law, and who has a designation or title given him by law, and exercises functions and powers concerning the public, assigned to him by law, is a public officer. Mayor and Council of the City of Butler v. Hortman, 70 Ga. App. 848 (1944). In my judgment, it is clear that the office of city recorder is a public office, and the holder of that office is a public officer. The remaining question is whether this office is one of profit or trust under the Georgia Constitution. Article VI, Sec. I, Par. I of the Georgia Constitution of 1945 reads as follows: "The judicial powers of this State shall be vested in a Supreme Court, a Court of Appeals, Superior Courts, Courts of Ordinary, Justices of the Peace, Notaries Public who are ex-officio Justices of the Peace, and such other Courts as have been or may be established by law." (Emphasis added.) Ga. Code Ann. 2-3601. U75-13 312 The city recorder's office was created in the charter of the City of Clarkesville. The most recent charter is found at Ga. Laws 1953 (Nov.Dec. Sess.), p. 2745 et seq., as amended. The City Recorder of Clarkesville sits as the Judge of the Recorder's Court in Clarkesville pursuant to the provisions of the city's charter created by law. He exercises judicial functions given him by law within the jurisdiction of the recorder's court. The city recorder is entitled to receive compensation for his services rendered, and his office requires that he perform duties with respect to the public trust which require skill, experience and integrity. Accordingly, I believe the city recorder occupies an office of profit or trust. See generally, Long v. Rose, 132 Ga. 288 (1909); Dickson v. People, 17 Ill. 191 (1855); Moser v. Board of County Commissioners of Howard County, 235 Md. 279, 201 A.2d 365 (1964); State v. Clarke, 3 Nev. 566 (1867); In re Corliss, 11 R.I. 638 (1876). Even if the city recorder were to receive no compensation, it is my opinion the office would still be an office of trust in the sense that term is used in the Emeritus Act. Since the recorder's court is a court created by law under the general authority of Art. VI, Sec. I, Par. I of the Georgia Constitution, and since the recorder, in my view, occupies an office of profit or trust, I must conclude that the office of city recorder is an office of profit or trust under the Georgia Constitution. Practical and policy considerations buttress my legal conclusion on your question. As I read the Emeritus Act, the policy expressed appears to be that an emeritus judge occupies an office to which he is appointed for life and to which he is to devote his time. He cannot practice law. Ga. Code Ann. 24-2605a. He serves as a judge of the superior courts in certain instances upon proper request (Ga. Code Ann. 24-2605a, 24-2621a, 24-2622a), and he has certain other enumerated duties by virtue of his office (Ga. Code Ann. 24-2606a, 24-2607a). It is necessary that an emeritus judge be available to fulfill the responsibilities of his office when needed. Additionally, it should be noted that under the charter of the City of Clarkesville, appeals from the recorder's court may be taken by writ of certiorari to the Superior Court of Habersham County. Ga. Laws 1953 (Nov.-Dec. Sess.), p. 2758. The emeritus judge, therefore, might be needed to sit as the Judge of Habersham Superior Court to review a case from the recorder's court. Of course, he could disqualify himself in such an instance, but this would be disingenuous to his stated statutory duty to be available to serve as superior court judge in Habersham County. [Ga. Code Ann. Ch. 24-26A sections are based on Ga. Laws 1945, p. 362, as amended.] Based on the foregoing authorities and rationale, it is my unofficial opinion that a judge of the superior courts emeritus who accepts appointment as a city recorder subjects himself to a suspension of his rights, duties and salary as an emeritus judge during the time he serves as city recorder. 313 U75-14 UNOFFICIAL OPINION U75-14 To: Representative, District 95 March 7, 1975 Re: The Citizens & Southern National Bank's divestiture of its stock in five percent banks to its profit sharing plan does not comply with the decision of the Supreme Court in Independent Bankers Association v. Dunn, 230 Ga. 345 (1973). In your letter of February 4, 1975, you asked that I render my opinion as to "whether or not a divestiture to the trustees of the pension trust of the C & S [National Bank] would comply with the decision of the Supreme Court of Georgia in Independent Bankers Association v. Dunn, 230 Ga. 345 (1973)." For the reasons stated and discussed herein, I have concluded and it is my unofficial opinion that such a divestiture does not comply with the Supreme Court's mandate in that case. In order to properly treat the question presented, I believe it is necessary to first examine the Supreme Court's decision and the nature of the "pension trust" involved. I. The evidence before the Supreme Court in Independent Bankers Association v. Dunn, supra, showed that the Citizens & Southern Holding Company ("holding company"), which is wholly owned by the Citizens & Southern National Bank ("bank"), directly owned five percent of the stock in each of 10 banks which were named as co-defendants in that suit. Stock in these 10 banks (referred to as "five percent banks" by the court) was also owned by certain officers, directors and shareholders of the bank. After an extensive review of the facts, the Supreme Court held that the bank and the holding company were "directly and indirectly holding and controlling more than five percent of the voting stock of the ten five percent defendant banks" in violation of Ga. Code Ann. 13-207 (a) (Ga. Laws 1960, p. 67). 230 Ga. at page 363. The court arrived at its holding by determining that the bank had become an unlawful bank holding company, as that term is defined in Code 13-201.1 (e) (Ga. Laws 1960, p. 67, as amended), by reason of the stock in the five percent banks held by the bank's officers, directors and shareholders. The court found that when the stock held by the bank's shareholders was attributed to the bank, as required by Code 13-207 (b) (Ga. Laws 1960, p. 67, as amended), the five percent statutory limit specified in Code 13-207 (a) was exceeded because of the additional five percent held by the holding company. The court concluded, therefore, that there was a violation of the state's banking U75-14 314 laws and held that the trial court erred in not issuing the writ of mandamus to compel the Commissioner of Banking and Finance to take appropriate action against the bank and its holding company. Hence, the court's holding was essentially twofold. First, the stock of the five percent banks held by the bank's shareholders had to be attributed to the bank and, through the bank's ownership of the holding company, to the holding company. Second, after the stock was so attributed, the bank and holding company, which had to be regarded as one entity because the corporate veil had been pierced, directly and indirectly controlled more than five percent of the voting stock of the 10 five percent defendant banks. See Citizens & Southern National Bank v. Independent Bankers Association, 231 Ga. 421 (1973). This result contravenes Code 13-207 (a) which makes it unlawful: " ... (2) for any bank holding company to acquire or hold direct or indirect ownership or control of more than 5 per centum of the voting shares of any bank...." Subsequent to the court's holding in Independent Bankers Association v. Dunn, and in furtherance thereof, the Commissioner of Banking and Finance ("commissioner") issued his order, dated May 22, 1974, directing certain officers and directors of the bank and the holding company, and in certain instances the holding company itself, to divest themselves of any stock they might own in any of the five percent banks. 1 The thrust of the Supreme Court's decision and the direction of the commissioner's resultant order is clear-the bank must divest itself of "direct or indirect ownership or control" of the five percent stock. In an effort to comply with the commissioner's order, the bank and holding company have transferred stock in certain of the five percent banks to the Citizens & Southern National Bank Profit Sharing Plan (hereinafter "plan"). 2 In an earlier opinion (Op. Att'y Gen. 74-151), I concluded that the trustees of the plan would become a bank holding company in violation of Code 13-207 (a) if they acquired more than five percent of the voting stock of two or more banks. The commissioner's request for my opinion in that instance posed a very narrow question, and I declined to enlarge upon it to consider all of the ramifications of the transfers to the plan's trustees. Your inquiry requires that I now resolve those issues left unanswered in Op. Att'y Gen. 74-151. However, it is important to note that the issue presented is not the 1 The list of the five percent banks subject to the commissioner's order was expanded from the original 10 co-defendants to a total of 25 banks, the commissioner finding the additional banks to be similarly situated. 2 Although you referred to a "pension trust" in your letter of February 4, it appears that the transfers have actually been to the bank's profit sharing plan. 315 U75-14 factual issue of control of the five percent banks by the bank or holding company. That factual issue was determined, and determined adversely to the bank and holding company, by the Supreme Court in Independent Bankers Association. The issue now is a legal one, divestiture, and the question is has the bank complied with the mandate of the Supreme Court and commissioner by transferring the five percent stock to the plan's trustees. Although the Supreme Court concerned itself with certain indicia of actual control, or physical dominance, in arriving at its conclusion, those matters are not material to the present issue. The ownership or control of the voting stock in the five percent banks was the key mechanism that enabled the bank and holding company to exercise managerial and policy making control over the five percent banks. Hence, the issue here is whether the sale of the five percent stock to the plan's trustees will divest the bank of the means whereby it exercised that degree of control exemplified in and repudiated by the court in Independent Bankers Association. II. Of course, of primary importance in resolving this inquiry is the profit sharing plan itself. From the information furnished my office by the commissioner and the attorneys for the bank and holding company, it appears that the plan in question is one created pursuant to and which qualifies for preferential tax treatment under 401 of the Internal Revenue Code of 1954. 26 U.S.C.A. 401. It was established and is maintained by the bank to allow the bank's employees, and the employees of other member employers, participation in the employers' profits. Contributions to the plan are regularly made by the bank and the other participating employers, as well as by the participating employees. These sums are in turn invested for the benefit of the employees and their beneficiaries. As indicated above, participation in the plan is not limited to the bank alone. Other employers may participate with the approval of the board of directors of the bank (hereinafter referred to simply as the "board"). As of this time, other participating, or member, employers include the holding company, subsidiaries of the bank and holding company, and all but one of the 25 five percent banks subject to the commissioner's order of May 22. The plan reserves unto the bank and the member employers the unilateral right to amend, modify or terminate the plan at will. The plan provides for the appointment of a group of trustees to administer the plan. Their duties, powers and responsibilities are detailed in a separate agreement of trust. This agreement provides that the trustees shall be appointed by the board and may be removed by the board upon 10 days' written notice. Successor trustees are likewise U75-14 316 appointed by the board of directors. The trustees' compensation, if any, is also determined by the board. The trust instrument further provides that the bank, or any other member employer, may amend or terminate the trust agreement at any time upon the authorization of the board of directors. Approval of the trustees is not required. The trustees are empowered to vote any stock or other securities held by the plan, unless such voting rights are proscribed by applicable statutes or regulations, and provided further that ". . . no securities issued by the Bank may be voted by the Trustees at meetings of the stockholders of the Bank in the election of Directors...." The agreement of trust further provides: "7. Valid Directions. Whenever the Trustees are required to take any action hereunder upon the request, direction or authorization of the Bank, or any Employer Member, such request, direction or authorization shall be conclusive protection to the Trustees if the request, direction or authorization is signed by the President or by any Vice President of the Bank or any Employer Mem- ber. * * *" My office has been informed by counsel for the bank that until recently there were seven trustees, but only five trustees are presently serving. Of the five trustees, only one is an officer, director or employee of the bank, the holding company, any of their subsidiaries, or any of the five percent banks. The one officer of the bank presently serving as a trustee is described as a "personnel technician" and does not have a policy making role within the bank. The other trustees are business or professional men chosen by the board. Each of these trustees is also a member of one of the several advisory boards established by the bank throughout the state to informally advise the board on business and community affairs. All of these trustees are also customers and stockholders of the bank, although none are reported to be a "substantial" stockholder. Their stock holdings, if any, in the five percent banks are unknown. My office has also been informed by the bank's attorneys that until the summer of 1974, the trustees were all officers and/or directors of the bank and/or the holding company. At that time, all the officers and directors (with the one exception noted above) resigned and were replaced by individuals who were not officers or directors. Of course, the plan and agreement of trust clothe the trustees with broad investment powers. In addition, pursuant to the provisions of the plan, the board is to appoint an investment committee consisting of three trustees to serve at the pleasure of the board. The investment committee in turn is to direct the investment of one of the funds created by the plan. However, no such investment committee has been ap- 317 U75-14 pointed by the board. Rather, the trustees act as a group with respect to all investments, relying upon the investment advice given them by Citizens & Southern Investment Company. Citizens & Southern Investment Company is a corporation owned by the holding company and certain of the holding company's wholly owned subsidiaries. The individual within the investment company with the responsibility of advising the trustees is also an officer of the bank. The plan also calls for the appointment of a profit sharing committee which is to be responsible for the administrative aspects of the plan. Like the investment committee, the members of the profit sharing committee are also to be appointed by and serve at the pleasure of the board. Also like the investment committee, a profit sharing committee has not been appointed by the board, and its functions are presently being performed by officers of the bank, including the bank officer who also serves as a trustee. III. It is clear from the preceding discussion of the profit sharing plan that the trustees of the plan are completely subordinate to the bank's board of directors. They are appointed and serve at the pleasure of the board. Moreover, the board has ultimate and total control over the very existence of both the plan and trust agreement. It could literally abolish either, or both, overnight. Even the trustees' power to vote the stock held by the plan is circumscribed so that it prevents the trustees from obtaining any independence from the board. Moreover, paragraph 7 of the trust agreement absolves the trustees of responsibility if they act upon the "request, direction or authorization" of the board. This language suggests that the plan not only permits direction by the board but anticipates it as well. The very structure of the plan and trust agreement prevents the trustees from exercising any meaningful degree of independence. This failing is compounded by the fact the trustees are dependent upon a holding company subsidiary and a bank officer for their investment advice. Even the plan's administrative details are handled by officers of the bank. Those committees authorized by the plan which could conceivably give the trustees some measure of independence are not operative because they have not been appointed by the board. The Supreme Court in Independent Bankers Association held: "The word 'indirectly' signifies the doing by an obscure, circuitous method something which is prohibited from being done directly and includes all methods of doing the thing prohibited except the direct one. Whether control of banks is being exercised indirectly may be difficult to resolve in many instances and contrary conclusions may be validly reached. However, in view of the declared U75-14 318 purpose of the banking law, a finding of indirect control is demanded under certain circumstances." 230 Ga. at pp. 362-63. The "declared purpose of the banking law" referred to above was quoted by the court in its opinion: ''The legislative intent is expressed clearly in the banking laws which provide in Section 1 (Ga. L. 1960, pp. 67, 68): '... It is the intent of this Act to restrict further the acquisition of voting shares of banks by bank holding companies....'" 230 Ga. at pp. 360-61. The court found this intention frustrated by the bank and holding company's direct and indirect control of the voting stock in the five percent banks. It was to achieve this stated intent and to eliminate the bank and holding company's violations of the banking laws that divestiture was ordered. Yet, I am unable to conclude that the intention of the law and the law itself is any less frustrated by the transfer of the voting stock to the plan's trustees. Even though the present trustees may be "outsiders," they nevertheless share a mutuality of interest with the bank. Moreover, irrespective of the identity of the trustees, the plan and trust agreement by their very terms foreclose any possibility that the trustees will ever achieve any degree of effective independence from the bank's board of directors. The bank's untenable position in this matter can perhaps be best demonstrated by reference to the resignation a few months ago of the policy making officers and directors as trustees and their replacement by "outsiders." If the plan's trustees were still policy making officers and directors of the bank, no one would seriously question the lack of compliance with the Supreme Court's decision. Hence, the existence of these "independent" trustees is the key to the bank's position. Yet, these "independent" trustees may be replaced at any time, and, for any reason, by the bank's board of directors. Today's "independent" trustees may be policy making directors tomorrow. Therefore, I have concluded that the divestiture route chosen by the bank and holding company does not deprive the bank of indirect control of the five percent banks. The bank continues to control by an "obscure, circuitous method" that which it is prohibited from controlling directly. Nothing said herein should be construed as an expression of opinion with respect to the legality or the validity of the profit sharing plan for the purposes for which it was established. It has been assumed throughout that the plan comports with both federal and state laws relating to trusts and plans of this nature. Nor do I intend to intimate any disapproval of the manner in which the trustees have performed their fiduciary duties. There has been no suggestion, nor do I suggest, that the trustees may have violated their fiduciary responsibilities as 319 U75-15 trustees by purchasing stock in the five percent banks. Those issues are simply not involved. As noted above, the issue presented by your inquiry is whether the transfer of the five percent stock to the profit sharing plan would divest the bank and holding company of its illegal indirect control of the five percent banks. I believe the answer is self-evident; the transfers are merely a substitution of form, not substance. Therefore, it is my unofficial opinion that such a divestiture does not comply with the decision of the Supreme Court in Independent Bankers Association v. Dunn. UNOFFICIAL OPINION U75-15 To: Attorney, Thomas County March 12, 1975 Re: Cemeteries and places of burial are properties exempt from ad valorem taxation. Reference is made to your letter of February 27, 1975 in which you posed the question of whether or not a cemetery, privately owned by a corporation, is exempt from ad valorem taxation. Article VII, Section I, Paragraph IV of the Constitution of the State of Georgia as set forth in Ga. Code Ann. 2-5404 and Ga. Laws 1878-9, p. 33, as amended (Ga. Code Ann. 92-201) provide that places of burial are exempt from taxation. In Suttles v. Hill Crest Cemetery, Inc., 87 Ga. App. 343 (1952), the corporation successfully argued that its cemetery was exempt from taxation. The deed which conveyed the property to the corporation specifically designated the property to be used solely as a cemetery. After a thorough examination of the deed and the actual use to which the property had been put, the court concluded: "We have not a doubt that this cemetery, as a whole, is a 'place of burial' within the intendment of the constitution. Then it is exempt from taxation, unless, under the proviso of the constitution, it is leased or used for purposes of private or corporate income or profit.... The sole fact upon which is predicated the charge of use for corporate profit is that the corporation sells plots of the ground to persons desiring to build tombs and bury their dead therein, at prices which, if all were sold, would yield a profit on the investment. But, it is to be observed that such sales do not, in any manner, change the use of the property but rather preserves and confirms the use and dedication as a place of burial." (Emphasis by court.) Id. at 350. The rationale of Suttles was followed in City of Atlanta v. Crest Lawn U75-16 320 Memorial Park Corp., 218 Ga. 497 (1962), where the Supreme Court said, in essence, that once property has been dedicated for use as a cemetery or place of burial, even though undeveloped, it is entitled to the tax exemption so long as the tract maintains its character as a place of burial. It is my unofficial opinion, therefore, that property utilized as a cemetery or place of burial is exempt from taxation without regard for the fact that the property is owned by either a public or private corporation or by individuals, collectively or severally. UNOFFICIAL OPINION U75-16 To: Judge, Probate Court, Clayton County Courthouse March 19, 1975 Re: The costs authorized for support of county law libraries in Ga. Laws 1971, p. 180, as amended (Ga. Code Ann. Ch. 23-31), may not be imposed for applications by personal representatives for leave to sell or reinvest filed in probate courts; a librarian of a county law library may not serve in a dual capacity as librarian-secretary; and a member of the board of trustees of such library may not serve as treasurer of said board. This is in response to your February 17, 1975 request for an unofficial opinion concerning county law libraries established pursuant to Ga. Laws 1971, p. 180, as amended (Ga. Code Ann. Ch. 23-31). As I understand your referenced request, you have posed the following questions: 1. May the costs authorized for support of county law libraries in Ga. Laws 1971, p. 180, as amended (Ga. Code Ann. Ch. 23-31), be imposed for applications by personal representatives for leave to sell or reinvest filed in courts of ordinary (hereinafter referred to as "probate courts" pursuant to Ga. Const., Art. VI, Sec. VI, Par. IV; Ga. Code Ann. 2-4104). 2. May a librarian designated and compensated under Section 2 of Ga. Laws 1971, p. 180, as amended (Ga. Code Ann. 23-3102), serve in a dual capacity as librarian-secretary? 3. May a member of the board of trustees of a county law library serve without compensation as treasurer of said board? With respect to your first question, an examination of Ga. Laws 1971, p. 180, prior to the 1973 amendment (Ga. Laws 1973, p. 430) is necessary. Charges imposed pursuant to Ga. Laws 1971, p. 180, for applications by personal representatives for leave to sell or reinvest 321 U75-16 were clearly authorized only where such applications were filed in the superior courts. Id. at 181. As this office concluded in Op. Att'y Gen. U71-119, the statute contains no authority for the imposition of any charge to support county law libraries with respect to any matter before probate courts. A copy of the referenced opinion is enclosed. The 1973 amendment, among other things, broadened the scope of court actions to which a charge not to exceed $2 for support of a county law library might be applied by providing, in pertinent part, as follows: "For the purpose of providing funds for the purpose of purchasing law books, reports, texts and periodicals for such library, a sum not to exceed $2, in addition to all other legal costs, may be charged and collected in each suit, action or case, either civil or criminal, including, without limiting the generality of the foregoing, all adoptions, charters, certiorari, applications by personal representatives for leave to sell or reinvest, trade name registrations, applications for change of name, and all other proceedings of civil or criminal or quasi-criminal nature, filed in the superior and state courts and in traffic cases tried in the [probate court], in and for said counties. . . ." (The material added by the 1973 amendment is in italics.) Ga. Laws 1973, pp. 430, 431 (Ga. Code Ann. 23-3106). The first and most important rule of statutory construction is to "look diligently for the intention of the General Assembly." Ga. Code 102-102 (9). The intent of the General Assembly in enacting the above statute appears clear with respect to your first question; i.e., the costs authorized for support of county law libraries are to be charged for traffic cases tried in probate courts but not for other matters before said courts. This conclusion is buttressed by the language contained in the caption of Ga. Laws 1973, p. 430. Assuming arguendo that an ambiguity in the above quoted statute exists, the language contained in the caption, though not a part of the statute, may be considered as an aide to the construction of said statute. Bentley v. State Board of Medical Examiners of Georgia, 152 Ga. 836, 839 (1921). The caption of Ga. Laws 1973, p. 430, states that one purpose of said Act is "to include traffic cases tried in the [Probate CourtJ within the provisions of ... [Ga. Laws 1971, p. 180]." The caption makes no mention of including within the provisions of said statute any other matters coming before probate courts. Based on the above, it is my unofficial opinion that the costs authorized by Ga. Laws 1971, p. 180, as amended (Ga. Code Ann. Ch. 23-31), to be charged for support of county law libraries may be imposed for U75-16 322 traffic cases tried in probate courts but not for other matters before said courts. As to your second and third questions, Ga. Laws 1971, p. 180, as amended (Ga. Code Ann. 23-3102), provides, in part, as follows: "There is hereby created an office to be known as secretarytreasurer of the board of trustees of the county law library, who shall be selected and appointed by the board, and he shall serve at the pleasure of the board...." There is only one office created by the above quoted statute. The office thus created is that of secretary-treasurer of the board of trustees. The statute contains no language which would authorize the board of trustees to appoint a secretary and a treasurer as there is only one office to which appointments may be made. Additionally, the mandatory language of the last clause of the above quotation ("he shall") indicates that one person is to fill the office of secretary-treasurer. To appoint one person as secretary and another person as treasurer would constitute an attempt by the board of trustees to create two public offices which may only be created by the Constitution, by some statute or by a municipal ordinance passed pursuant to legislative authority. Morris v. Peters, 203 Ga. 350, 356 (1948). From the above, it is my unofficial opinion that a librarian designated and compensated under Ga. Laws 1971, p. 180, as amended (Ga. Code Ann. 23-3102), may not serve in a dual capacity as librariansecretary. Further, it is my unofficial opinion that a member of the board of trustees of a county law library may not serve as treasurer of said board. Although not necessary to the resolution of your third question, it is worthy of note that the board of trustees is not authorized to appoint one of its own members as secretary-treasurer of said board. In Parrish et al. v. Town of Adel, 144 Ga. 242 (1915), the Supreme Court held that when a statute confers appointing power and does not expressly authorize self-appointment, the appointment of some other than self is always contemplated. As Ga. Laws 1971, p. 180, as amended (Ga. Code Ann. 23-3102), does not expressly authorize appointment by the board of trustees of one of its own members as secretary-treasurer, by virtue of the holding in the Parrish case, such appointment is not authorized. In summary, it is my unofficial opinion that all three questions presented in your request should be answered in the negative. 323 U75-17 UNOFFICIAL OPINION U75-17 To: Justice of the Peace, 97th District March 22, 1975 He: A bailiff or constable of the Small Claims Court of Washington County does not have the authority to make application for a search warrant. This is written in response to your recent request for my opinion on the question of whether or not constables and bailiffs of the Small Claims Court of Washington County have the authority to sign an affidavit to obtain a search warrant. Generally, a search warrant may be issued only upon the application of an officer of the state or its political subdivisions charged with the duty of enforcing the criminal laws. Further, it shall not be issued upon the application of a private citizen or for his aid in the enforcement of personal, civil or property rights. Ga. Code Ann. 27-314 (Ga. Laws 1966, p. 567). The Small Claims Court of Washington County was created by Ga. Laws 1973, p. 2061, and according to the creating statute has jurisdiction in civil cases ex contractu in which the demand or value of the property involved does not exceed $500. In addition, the court has all the powers granted to justices of the peace by the laws of the State of Georgia. This creating statute provides that the "Small Claims Court Bailiff" shall have the powers and authority of lawful constables of the State of Georgia. Ga. Laws 1973, pp. 2061, 2067. Therefore, the question becomes whether or not a constable of this state is charged with the duty of enforcing the criminal laws of this state. The duties of a constable are set out in Ga. Code (1933) 24-817. It may be noted that this section does not confer upon the constable general police powers. Ga. Code Ann. 24-822 (Ga. Laws 1969, pp. 875, 876) provides that constables shall not exercise any power of arrest without a warrant for offenses arising from violations of traffic laws or laws regulating the use, ownership, and control of motor vehicles or for offenses committed upon the highways of this state. Ga. Code Ann. 24-823 (Ga. Laws 1969, pp. 875, 876) provides, in part, that constables shall not hold themselves out to the public as state police or county police. While I have not found any case or statutory law which clearly answers your inquiry, I must conclude that a constable or a small claims court bailiff is not charged with the general duty of enforcing the criminal laws of this state. Therefore, it is my opinion that a bailiff or constable to the Small Claims Court of Washington County does not have the authority to make application for a search warrant as described in Ga. Code Ann. 27-314. U75-18 324 UNOFFICIAL OPINION U75-18 To : Secretary-Treasurer, Georgia Firemen's Pension Fund March 28, 1975 lle: Firemen and volunteer firemen must make application to the board of trustees for membership in the Firemen's Pension Fund within four months after becoming employed as such in order to become members of the fund. This responds to your letter requesting the unofficial opinion of this office with respect to applications for membership in the Firemen's Pension Fund (hereinafter FPF or fund). For clarity, the facts generating your questions are set out in full in the following two paragraphs. To separate my answers to your questions, I will refer to the firemen about whom you inquire as Fireman C and Fireman H. Fireman C was employed as a fireman by the Gwinnett County Fire Department on July 10, 1974. He completed an application for membership in the FPF on October 20, 1974. However, his application for membership was not received by the FPF until December 12, 1974. It was both mailed by Fireman C and received by the FPF after the expiration of five months from the time Fireman C became employed by the Gwinnett Fire Department. You have advised that you have received a letter from the secretary of the fire department indicating she held the application for approximately one month prior to forwarding it to the FPF. Your question is whether Fireman C may be admitted to membership in the fund under these circumstances. Fireman H resigned from the Fire Department of the City of Moultrie, Georgia in July 1972, at which time he withdrew his contributions from the fund. He was reemployed by the Moultrie Fire Department in February 1974, and was informed by the chief of that department that he was not eligible to again become a member of the fund because he had previously withdrawn. Fireman H subsequently learned that he could, in fact, again become a member even though having withdrawn his contributions once. He tendered his application for membership to the FPF on December 12, 1974, some 10 months after being reemployed as a fireman. The applicable portion of the FPF Act which controls both of these cases reads in pertinent part as follows: "Those firemen or volunteer firemen who are now serving as such shall make application through the board for membership in said fund within six months from the approval of this Act. All those persons who subsequently become firemen or volunteer firemen shall make application for membership in such fund within four 325 U75-18 months from the date of becoming such firemen or volunteer firemen...." Ga. Laws 1968, pp. 441, 442 (Ga. Code Ann. 78-1005). Fireman C was making application for his first membership in the FPF. Fireman H had previously withdrawn from the fund and was again applying for membership. Under such circumstances, Fireman H was applying for membership in the status of a new member. See Op. Att'y Gen. 67-317. Accordingly, as I read the FPF Act, both firemen were applying for membership in the fund as new members and were subject to the provisions of Ga. Code Ann. 78-1005, quoted above. Georgia Code Ann. 78-1005 requires that firemen or volunteer firemen making application for membership in the FPF shall make such application through the board of trustees within four months from the date of becoming a fireman or volunteer fireman. Fireman C's application was mailed and received by your office more than five months after he was employed. Fireman H's application was mailed and received approximately 10 months after he rejoined the Moultrie Fire Department and again became eligible to apply for membership as a new member. Obviously, neither application was made to the board of trustees within the four-month deadline set by the Act. This office has consistently opined that this portion of the Act is clear and plain and must be read to mean what it says. See, e.g., Barnes v. Carter, 120 Ga. 895 (1904). Because the four-month limitation is clear, this office has advised you that applications filed after the fourth month of employment or reemployment are not sufficient to allow membership in the fund. See, e.g., Ops. Att'y Gen. 67-317, U73-47. As an aside, I should point out that documents or papers required by law to be filed with the board of trustees are so filed when they reach your custody. You have informed that, as secretary-treasurer of the fund, you are the custodian of all documents required to be filed with, or retained by, the board of trustees. Therefore, in my judgment, a document or other paper delivered for filing to you should be considered as filed with the board. See, e.g., Palcar Real Estate Co. v. Commissioner of Internal Revenue, 131 F.2d 210 (8th Cir. 1942). Additionally, the fact that third parties intervened and contributed to the causes for the applications being filed late makes no difference. It is the responsibility of each fireman or volunteer fireman to accomplish the requisites for securing his own membership in the fund. Although this seems a belabored legal proposition, ignorance of the law excuses no one. Ga. Code 102-105; Hughes v. State Board of Medical Examiners, 162 Ga. 246, 250 (1926). In summary, you have advised that two firemen filed applications for membership in the fund five months and 10 months after respectively becoming employed as firemen. Consequently, based on those U75-19 326 facts and the cited statutory authority, it is my unofficial opinion that neither fireman is entitled to membership in the fund. UNOFFICIAL OPINION U75-19 To: City Attorney, City of Cumming March 31, 1975 Re: A city council cannot call a referendum on the sale of liquor without a petition of 35 percent of the registered voters. This is in reply to your letter of March 11, 1975 in which you requested an opinion as to whether or not the City Council of Cumming, Georgia can lawfully call a referendum under Ga. Laws 1972, pp. 207, 208, on its own motion and without the petition of 35 percent of the registered voters which is provided for by the same statute. You stated that the City Council of Cumming has unanimously passed a resolution calling for such a referendum on the question of whether or not the city should pass an ordinance taxing, legalizing and controlling the sale of alcoholic beverages and has already set the date for the special election. Georgia Laws 1937-38, Extra. Sess., pp. 103, 105, as amended by Ga. Laws 1972, pp. 207, 208 (Ga. Code Ann. 58-1003), provides as follows: "Upon a petition signed by at least 35 percent of the registered voters of the political subdivison concerned, qualified to vote at the general election immediately preceding the presentation of the petition, being filed with the ordinary of any county, in the case of a county, or with the mayor of any municipality, in the case of a municipality, such ordinary or mayor shall call a special election to be held within 30 days from the filing of this petition and shall publish the notice of the call of the election in the official gazette of the county once a week for two weeks preceding the election." In the case of a county referendum on the sale of liquor, the Supreme Court of Georgia has held that the prerequisite of a proper petition by 35 percent of the qualified registered voters, as required by Ga. Code Ann. 58-1003, is mandatory and a failure to comply with this mandatory prerequisite vitiates an improperly called election. Barrentine v. Griner, 205 Ga. 830 (1949). This office has issued an opinion to the same effect. See Op. Att'y Gen. U72-27. See also, Committee for New Cobb Co. Revenue v. Brown, 228 Ga. 364, 369 (1971). Georgia Laws 1972, pp. 207, 208-09, specifically amended the provision in the prior law regarding a petition by 35 percent of the voters in 327 U75-20 cases of county liquor referendums, so as to make the provision applicable to municipalities as well as counties. Therefore, it is my unofficial opinion that no special election under Ga. Code Ann. 58-1003 may be called by a municipality except upon the petition of at least 35 percent of the registered qualified voters, and any such election called by a city council without such petition having first been presented would be a nullity. UNOFFICIAL OPINION U75-20 To: County Attorney, Sumter County March 31, 1975 Re: Sumter County may not, either directly or indirectly, make a donation of funds to the Americus-Sumter County Chamber of Commerce. This is in response to your recent letter requesting an unofficial opinion as to whether Sumter County could transfer certain county funds to the Americus-Sumter County Chamber of Commerce, to be used by that body to promote industry and trade in the Sumter County area. As I explained to you in our telephone conversation just prior to the meeting of the county commissioners on March 4, 1975, I agree with your opinion issued to the county commissioners that under the Constitution of Georgia, Sumter County has no authority to donate or otherwise transfer funds to the Americus-Sumter County Chamber of Commerce, for reasons which I shall explain herein. To restate the original situation which led to your inquiry, it is my understanding that the Americus-Sumter County Chamber of Commerce approached the county commissioners of Sumter County, requesting that certain funds be donated to the Chamber of Commerce for the furtherance of their work. As an alternative to a direct donation, it was evidently suggested that the county give the funds to the Americus-Sumter Payroll Development Authority, a body created by Ga. Laws 1962, p. 933, which in turn would then donate the funds to the Chamber of Commerce. Article VII, Sec. I, Par. II of the Constitution of the State of Georgia (Ga. Code Ann. 2-5402) specifically provides that: "The General Assemby shall not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association." This provision has specifically been made applicable to counties and the Supreme Court of Georgia has held, in Atlanta Chamber of Commerce v. McRae, 174 Ga. 590, 163 S.E. 701 (1932), that a donation of U75-21 328 funds to an organization such as the Chamber of Commerce would clearly be unauthorized. Just as the power to make such a donation was not within the power of the commissioners of Fulton County, which was the county involved in Atlanta Chamber of Commerce v. McRae, supra, neither is it within the power of the county commissioners of Sumter County, for the specific authorization for the expenditure of tax funds by counties which is found in Art. VII, Sec. IV, Par. II of the Constitution of the State of Georgia (Ga. Code Ann. 2-5702) cannot be construed to include such expenditures. Therefore, as stated above, it is my unofficial opinion that Sumter County may not make a grant of funds to the Americus-Sumter County Chamber of Commerce. A second question was raised concerning the possibility of the county granting funds to the Americus-Sumter Payroll Development Authority, created by Ga. Laws 1962, p. 933, which would in turn then grant the funds to the Chamber of Commerce. I have reviewed the law which created the authority and it is my opinion that, while the county might be able to contract with the authority and to pay the authority to provide services that the county would otherwise be authorized to perform itself, the county would not be authorized to make any donations or direct grants to the authority which it would not otherwise be authorized to make to any other organization. As such, the county would no more be authorized to make a donation to the AmericusSumter Payroll Development Authority than it would be to make the same donation to the Americus-Sumter County Chamber of Commerce. UNOFFICIAL OPINION U75-21 To: Judge, State Court March 31, 1975 Re: Discussion of retirement eligibility under the Trial Judges and Solicitors Retirement Fund; a judge of an inferior court must have a minimum of 10 years of creditable service for retirement. This responds to your letter of March 17 inquiring as to your eligibility for retirement. You indicate that you intend to resign as Judge of the State Court of Bryan County prior to the expiration of your current term on December 31, 1976. I have reviewed your retirement status and records on file with the Employees Retirement System of Georgia. By virtue of your office, you are a member of the Trial Judges and Solicitors Retirement Fund created by Ga. Laws 1968, p. 259 et seq. (Ga. Code Ann. Ch. 78-13), and administered by the Employees Retirement System. Ga. Code Ann. 78-1303. You became a member of the Trial Judges Fund upon 329 U75-22 its establishment in 1968 under the mandatory inclusion provision of the Act which reads as follows : "Any person holding office as a judge or solicitor of an inferior court on June 30, 1968 ... shall be a member of said fund and shall begin making employee contributions to said fund as provided for hereinafter. . . ." Ga. Laws 1968, p. 259 (Ga. Code Ann. 78-1308 (d)). The Act specifies that a minimum of 10 years of creditable service is required before a member of the fund may qualify for retirement benefits. Ga. Code Ann. 78-1318. Regretfully, I must advise you that even if you delay your retirement until the end of your current term (December 31, 1976), you would still not have the requisite minimum creditable service necessary for retirement. However, because you are over the age of 65, you can obtain additional credit for any service as Judge or Solicitor of the State Court of Bryan County rendered prior to June 30, 1968 as follows: "Judges and solicitors of inferior courts may receive credit in said fund for service as judges and solicitors of inferior courts prior to June 30, 1968, by the payment, by such judge or solicitor, of employer and employee contributions into the fund for such prior service. . . . "In the event a contributing member who is eligible for credit for prior service has reached retirement age ... but does not have the minimum creditable service for retirement ... such member may, at his election, pay into said Fund, at any time after becoming a contributing member, employee and employer contributions for all actual prior service in order to qualify for a monthly retirement benefit." Ga. Laws 1968, pp. 259, 269 (Ga. Code Ann. 78-1316 (a) and (b)). If you are interested in purchasing any prior service to which you may be entitled under the Act in order to qualify for retirement, you should contact Mr. Abe Domain, Director, Employees Retirement System of Georgia, 254 \Vashington Street, Room 592, Atlanta, Georgia 30334. Mr. Domain will be happy to advise you as to the various alternatives open to you and what your monthly retirement benefit would be should you choose any of the available alternatives. UNOFFICIAL OPINION U75-22 To: County Attorney April 7, 1975 Re: County may not lawfully expend county funds to reimburse U75-22 330 sheriff's surety for payments made to satisfy judgment rendered against the sheriff. This is in response to your recent letter requesting my unofficial opinion with respect to a request presented to the Wayne County Board of Commissioners that the county reimburse the sheriff's surety for certain payments made on behalf of the sheriff. For the reasons stated hereinafter, it is my unofficial opinion that the county commissioners may not lawfully reimburse the sheriff's surety under the circumstances set forth in your letter. From your letter, I understand the facts to be that a judgment in the amount of $10,000 was rendered against the sheriff in the United States District Court because one of his deputies used excessive force in making an arrest. The sheriff's surety company has satisfied the $10,000 judgment and has now instituted suit against the sheriff for reimbursement. The sheriff in turn has asked the county to reimburse the surety company out of county funds. Of course, the first avenue of inquiry in a situation such as this is the question of the scope of the county's authority. It is elementary that "[c]ounties can exercise only such powers as are conferred on them by law, and a county can exercise no powers except such as are expressly given or necessarily implied from express grant of other powers." DeKalb County v. Atlanta Gas Light Co., 228 Ga. 512, 513 (1972). Grants of powers to the counties are found both in the Constitution and legislative enactments. Article VII, Section IV, Paragraph II of the Constitution of 1945 (Ga. Code Ann. 2-5702) lists 14 objects for which a county may exercise its power of taxation. Needless to say, authority to reimburse county officials, or their sureties, for payments of the type in question is not included among these permissible powers. Ga. Code Ann. 2-5702. In addition to the enumerated powers of Paragraph II, Paragraph I of Section IV, Article VII of the Constitution (Ga. Code Ann. 2-5701) empowers the General Assembly to authorize the counties to exercise their power of taxation for other "public purposes." Pursuant thereto, the legislature has authorized the counties to expend public funds for those purposes specified in Ga. Code Ann. Chapter 87-8 (Ga. Laws 1937, p. 761, as amended). However, even a cursory examination of these statutes clearly shows that no authority exists thereunder to reimburse a surety for expenditures made pursuant to the terms of a county official's bond. Hence, it is apparent that a county lacks the authority to expend county funds in the manner requested by the sheriff. Therefore, since there is a lack of authority on the part of the county, any such payment would appear to be a gratuity. Article VII, Section I, Paragraph II of the Constitution of 1945 (Ga. Code Ann. 2-5402). 331 U75-24 UNOFFICIAL OPINION U75-23 To: Director, Fiscal Division, Department of Administrative Services April 9, 1975 Re: The State of Georgia may not make workmen's compensation payments without an agreement approved by the Workmen's Compensation Board. This is in response to your letter of March 26, 1975, regarding a letter from the Honorable Earl Mallard suggesting that your office commence workmen's compensation payments at the time you enter into an agreement with the claimant, but before the agreement is approved by the board as specified in Ga. Code Ann. 114-106 (amended by Ga. Laws 1963, p. 141) and 114-705. I appreciate the need for commencing workmen's compensation benefits as soon as possible. However, I would be remiss in my duties if I did not point out the possible consequences of making any payment prior to the agreement being approved by the State Board of Workmen's Compensation. The Georgia Court of Appeals has consistently held that payments of compensation and medical expenses without approval of the State Board of 'l{orkmen's Compensation are mere gratuities for which no credit could be taken by the employer. See Mason v. City of Atlanta, 124 Ga. App. 849 (1971); Pacific Indemnity Co. v. Moorman, 122 Ga. App. 881 (1970); Baggett Transportation Co. v. Barnes, 113 Ga. App. 58 (1966); Baggett Transportation Co. v. Barnes, 109 Ga. App. 98 (1964). The payment of such a gratuity by the State of Georgia would be in direct violation of the Georgia Constitution and therefore illegal. See Art. VII, Sec. I, Par. II (1) of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5402 (1)). Accordingly, it is my unofficial opinion that any payment of compensation or medical benefits which you authorize prior to the Workmen's Compensation Board approving an agreement or a deputy director entering an award would be an illegal payment for which you could be held personally liable. UNOFFICIAL OPINION U75-24 To: Representative, District 61 April 10, 1975 Re: The general law of Georgia does not provide for a municipality creating a "reserve" police force. This is written in response to your letter dated March 18, 1975, wherein you requested an opinion from this office on the question of U75-25 332 whether the establishment of a "reserve" police force for the City of Lawrenceville would be legal. You describe this "reserve" police force as assisting in traffic control and having other arrest powers. A review of the general law on peace officers in this state does not reveal any provision in Georgia law for a "reserve" police force. However, there are several statute provisions which may be of interest to you. Ga. Code (1933) 27-206 provides that an officer who is bound to execute penal warrants may summon to his assistance any of the citizens of the neighborhood or county as a posse. The acts of the posse would be subject to the same protection and consequences as official acts. Another statute, Ga. Code Ann. 92A-2114 (Ga. Laws 1970, pp. 208, 214), a part of the Georgia Peace Officer Standards and Training Act, provides that the provisions of that Act shall not apply to emergency peace officers. Emergency peace officers are defined as being employed or appointed to act as peace officers during an emergency or disaster and whose status as a peace officer is intended to be temporary and for that limited purpose of assisting in the emergency or disaster. The exceptions for emergency peace officers, peace officers employed on the effective date of the Act, sheriffs, and other constitutional officers who hold elective office, appear to be the only exceptions to the training and other requirements set out in the Georgia Peace Officer Standards and Training Act. Therefore, it is my unofficial opinion that at present the general law does not provide for a municipality having a "reserve" police force. You may wish to inquire of the city attorney as to whether there is a city charter provision applicable to your question. UNOFFICIAL OPINION U75-25 To: Judge, State Court of Hall County April 10, 1975 Re: The sentence review provisions of Ga. Code Ann. 27-2511.1 do not apply to sentences imposed by courts other than superior courts of this state. This is written in response to your request dated March 28, 1975, for an opinion on the question of whether the sentence review provisions of Ga. Code Ann. 27-2511.1 (Ga. Laws 1974, pp. 352, 358) apply to "state courts." The provisions of Ga. Code Ann. 27-2511.1 make it manifest that the sentence review provisions of that section apply only to the superior courts of this state. 333 U75-26 UNOFFICIAL OPINION U75-26 To: County Attorney, Douglas County April 21, 1975 Re: County may not lawfully expend county funds to satisfy judgment rendered against an ex-sheriff. In your recent letter, you requested our unofficial opinion with respect to a question that has arisen because of a civil judgment entered against the ex-sheriff of Douglas County. In particular, you posed the question as follows: "May the county legally pay the judgment since the Sheriff and his Deputies were at all times acting in good faith and within the scope of their employment?" For the reasons stated hereinafter, it is our unofficial opinion that the county may not lawfully satisfy the judgment in question. From your letter, I understand the facts to be that a judgment was rendered against Claude Abercrombie, Jr., in a civil action instituted in the Superior Court of Douglas County. The plaintiff in that action alleged that Mr. Abercrombie, who was then sheriff of Douglas County, converted certain property belonging to the plaintiff. The facts giving rise to the allegations in trover are immaterial for the purposes of this opinion, but suffice it to say that it appears that Mr. Abercrombie was acting in good faith at all times. We further understand from your letter than a verdict was rendered against the sheriff and that that verdict was affirmed upon appeal to the Georgia Court of Appeals. You have now been asked whether this judgment may be paid with county funds. It is unclear from your correspondence at what point Mr. Abercrombie ceased to be the sheriff of Douglas County. However, we do not consider that point material inasmuch as it is our unofficial opinion that the county may not lawfully pay such judgments for either present or past sheriffs. Your inquiry is very similar to an inquiry received recently from another county attorney. In that situation, a $10,000 judgment had been rendered against the sheriff and had been satisfied by the sheriff's surety. The county attorney inquired as to whether or not the county could reimburse the surety, which had instituted proceedings for reimbursement against the sheriff. We concluded that the county could not do so. The grounds for our conclusion in that particular instance are controlling here, and for that reason I am enclosing a copy of that unofficial opinion (Op. Att'y Gen. U75-22). As you can see from the enclosed opinion, we determined that a county may exercise only such powers as are conferred upon it by law. DeKalb County v. Atlanta Gas Light Co., 228 Ga. 512 (1972). We further pointed out that there is no authority, pursuant to either the Georgia U75-27 334 Constitution or the applicable statutes, for payments of this type. In addition, since counties lack the necessary authority, such a payment would appear to be a gratuity. Article VII, Sec. I, Par. II of the Constitution of 1945 (Ga. Code Ann. 2-5402). The earlier opinion dealt primarily with the question of reimbursing the sheriff's surety who had satisfied the judgment on behalf of the sheriff. In your case, we understand that the ex-sheriff is seeking reimbursement directly, or, in the alternative, requesting the county to satisfy the judgment for him. However, in either event, county funds are being used to satisfy a judgment rendered against a county official, and the earlier unofficial opinion concluded, and we again affirm, that such payments by a county are unlawful. You also pointed out in your letter that the sheriff was acting in agood faith and within the scope of [his] employment" during the time giving rise to the civil action. The questions of good faith and scope of employment may be issues relevant to the civil action, but the determination of those issues would in no way affect the conclusions drawn above. UNOFFICIAL OPINION U75-27 To: Acting County Attorney April 24, 1975 Re: Power of Glynn County to incur debt. This is in reply to your request for our unofficial opinion on a matter involving Glynn County, Georgia. Your request sets forth the pertinent facts as follows: "Glynn County, Georgia would like to obtain an unofficial opinion of your office as to its ability to purchase an office over a period in excess of one year. . . . [The vehicle of a lease-option to purchase] was used because it appeared that Glynn County could not incur a debt other than for casual deficiencies under the constitutional prohibition against County incurring debts. "The County intends to pay off these notes out of Federal revenue sharing funds, and the use of these funds for this purpose has been okayed by the appropriate Federal agency. Under the proposed agreement between the Seller and the County, the County would pay the Seller $15,000.00 this year and give him a note for $135,000.00, which would be payable before the end of the year, and a note for $500,000.00 to be payable sometime during the year of 1976. In order that the Seller be secured, I am sure that he will require the County to give a deed to secure debt for the indebtedness on the property to be conveyed to the County." 335 U75-28 You inform us that you have concluded that the county may not give a promissory note or deed to secure debt in the manner indicated. I have reviewed your opinion and based thereon and on Ga. Const., Art. VII, Sec. VII (Ga. Code Ann. Ch. 2-60), and the decisions thereunder, it is my unofficial opinion that your opinion is correct. UNOFFICIAL OPINION U75-28 To: County Attorney, Forsyth County April 24, 1975 Re: Annual service increase in minimum salaries under Ga. Laws 1974, p. 455 (Ga. Code Ann. Ch. 24-17B), applicable to judges of probate courts, is computed on a calendar year basis and includes the calendar year 1974. This is in reply to your request for an unofficial opinion as to the initial date on which the two and one-half percent service increase in minimum salaries for judges of probate courts, established by Ga. Laws 1974, p. 455 (Ga. Code Ann. Ch. 24-17B), becomes effective. As you know, the authorization for a service increase in Section 3 of that Act is an authorization for an increase in the minimum salary established under Section 1 of the Act, and is not authority for an increase in salary if the compensation of the particular judge of probate court by local legislation is fixed at a level higher than the minimum computed by the application of Sections 1 through 3 of that Act. The term "year in office" as used in Section 3 of this Act refers to calendar years of service. Any other construction would introduce so many variables in the application of the Act that any semblance of uniformity, obviously one of the objectives of the Act, would be lost. It is thus my opinion that the "year of service" does not run either from the effective date of the Act or from the date of any interim appointment. Thus, it is my further unofficial opinion that the minimum salary applicable to a judge of probate court under Section 1 of Ga. Laws 1974, p. 455, is increased two and one-half percent for each calendar year he has been in office that was not completed prior to April1, 1974, and that such increase becomes applicable at the close of that calendar period, namely December 31 of each such year. Thus, the minimum salary of a judge of probate court in office on January 1, 1974, or prior thereto, was increased two and one-half percent on January 1, 1975, and as long as he continues to serve the minimum salary will increase annually thereafter. U75-29 336 UNOFFICIAL OPINION U75-29 To: Assistant City Judge, City Court of East Point April 24, 1975 Re: While acting in his official capacity, the Assistant City Recorder for the City Court of East Point has the authority to issue criminal warrants as provided by Georgia law. This is written in response to your recent request for an unofficial opinion as to whether you have, as Assistant City Recorder for the City Court of East Point, the legal authority to issue criminal warrants upon proper application. The charter for the City of East Point, Ga. Laws 1972, p. 2151, creates a "City Court of East Point" and provides that the court shall be presided over by the recorder. The charter also provides that the city council shall have the power to appoint one or more assistant recorders to assist the recorder or to serve in his absence, disability, or disqualification. You state in your letter that the City Council of the City of East Point by Ordinance No. 545-73, Sec. 7-12.1, has provided for the position of assistant city recorder pursuant to the authorization in the city charter. That ordinance provides that the assistant city recorder shall have all the rights, privileges, and duties of the city recorder and that the assistant city recorder shall preside over city court in East Point at such times and on such occasions that the city recorder is unable or for any reason not presiding over the court. You state in your letter that you have been duly elected by the city council of the City of East Point to serve in the position of assistant city recorder. Judges of all recorders' courts in this state in criminal matters have been granted the same powers and authority as ex-officio justices of the peace. Ga. Code Ann. 69-705 (Ga. Laws 1935, p. 458). Ga. Code (1933) 69-702 provides in substance that the governing body of a municipal corporation having a corporate, police, or mayor's court is authorized either by ordinance or by resolution to elect a recorder pro tern. to hold and preside over such court in the absence or disqualification of the recorder and who shall have all the power, authority, and jurisdiction while presiding as is given by the charter of the municipal corporation to its recorder. Thus, it appears that you as assistant city recorder when officially acting in that capacity would have the same powers and authority as the recorder who has the authority in criminal matters as an ex-officio justice of the peace. The criminal jurisdiction of a justice of the peace is set out in Ga. Code (1933) 24-1501 and includes the authority to issue warrants for the apprehension of any person charged on oath with a violation of 337 U75-30 any penal law of this state or for the apprehension of any person who the justice of the peace officially knows has violated any such provision. See also, Ga. Code Ann. 27-102 (Ga. Laws 1974, p. 1230); Bush v. Wilcox, 223 Ga. 89 (1967). Therefore, it is my unofficial opinion that while acting in your official capacity as the Assistant City Recorder for the City Court of East Point, you have the authority to issue criminal warrants as provided by Georgia law. UNOFFICIAL OPINION U75-30 To: Attorney, Peace Officers Annuity and Benefit Fund April 30, 1975 Re: Parole Review Officers employed by the State Board of Pardons and Paroles are entitled to membership in the Peace Officers Annuity and Benefit Fund. This is in response to your letter requesting an opinion on whether a Parole Review Officer employed by the State Board of Pardons and Paroles is entitled to membership in the Peace Officers Annuity and Benefit Fund (hereinafter POAB or fund). As I understand it, the specific person generating your question was formerly a Parole Supervisor II with the Pardons and Paroles Board (hereinafter board) and has now been promoted to the position of Parole Review Officer. As a Parole Supervisor II, his principal duties consisted of the supervision and counseling of parolees and the investigation of the records of penal inmates eligible for parole consideration. Additionally, he was authorized to make arrests of parolees upon the violation of parole conditions. You have explained that his new position as a Parole Review Officer changes his actual job duties and functions. He now serves the board in more of an administrative capacity, conducting preliminary parole revocation hearings, assisting the board in final revocation hearings, reviewing cases and recommending clemency action to the board, and the like. The job description for a Parole Review Officer filed with POAB delineates and bears out these new assignments. However, by letter in the file from Cecil C. McCall, Chairman, State Board of Pardons and Paroles, the fund was advised that, in actuality, that job description is not complete. Mr. McCall has informed the fund that, although a Parole Review Officer has detailed administrative duties, he has arrest powers and, in certain situations, is instructed to make arrests and execute the board's warrants. See Ga. Laws 1970, p. 187 et seq.; Ga. Code Ann. 77-518. U75-30 338 Based on the job description, there is a distinction between the functions of a Parole Supervisor II and a Parole Review Officer. In my judgment, however, for purposes of membership in POAB, this may be a distinction without a difference. Be that as it may, your question can be answered without considering whether this individual's job duties have so changed as to classify him as other than a peace officer in the general sense of that term. As a normal rule, only individuals who perform the full-time duties of a peace officer in the general sense of enforcing all public laws and preserving the public order are entitled to POAB membership. Fleming v. Maddox, 225 Ga. 737 (1969); Board of Commissioners v. Clay, 214 Ga. 70 (1958). The referenced decisions of the Georgia Supreme Court have pivoted on the definition of a peace officer in the POAB Act, which reads in pertinent part as follows: "The term 'peace officer' 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. . . ."Ga. Laws 1974, pp. 1201, 1202; Ga. Code Ann. 78-901. In addition to the above-quoted portion of the definition of a peace officer, however, there are specific classes of individuals which have been declared by the General Assembly to be definitional peace officers for purposes of the POAB Act. These include wardens or guards of state or county public works camps and wardens or guards of municipal public works camps in municipalities of over 70,000 population (Ga. Laws 1956, pp. 280, 285; Ga. Code Ann. 78-901), as well as all employees of the POAB Fund required by the terms of their employment to devote full time to their job (Ga. Laws 1962, pp. 39, 43; Ga. Code Ann. 78-901). In 1970, the General Assembly added the following language to the statutory definition of a peace officer under the Act : "Such term shall also include any parole officers who are required by the terms of their employment to devote full time to their job." Ga. Laws 1970, pp. 199, 200; Ga. Code Ann. 78-901. Under the above language in the Act, parole officers were added to the list of persons entitled to membership in the fund. In :my opinion, the requirements enunciated in Fleming and Clay, supra, that one :must be a peace officer in the general sense of enforcing all public laws and not just a limited sector in order to be eligible for membership, do not apply to the special classes of persons definitionally included in 339 U75-31 the statute. The Supreme Court of Georgia reflected this thinking in Clay, supra, at p. 72, where the court stated: ''. . . (The definition of a peace officer) restricts the general class of peace officers, other than convict guards and wardens, to those who give their full time either to the preservation of public order, or to the protection of life and property, or to the detection of crime; convict guards and wardens of county and State camps are specifically included within the definition. . . ." (Parenthetical matter added.) Board of Commissioners v. Clay, 214 Ga. 70 (1958). In summary, you have advised, and the file reflects, that the applicant in question is employed and functioning full time as a Parole Review Officer, one of the strata of parole officers employed by the board. Accordingly, based on the foregoing authorities and rationale, it is my unofficial opinion that Parole Review Officers employed by the State Board of Pardons and Paroles are entitled to membership in the Peace Officers Annuity and Benefit Fund. UNOFFICIAL OPINION U75-31 To: Secretary-Treasurer, Firemen's Pension Fund May 2, 1975 Re: Discussion of several questions on the statutory interpretation of the service and disability retirement portions of the Georgia Firemen's Pension Fund Act. This responds to your request for my opinion on several questions involving the statutory interpretation of portions of the Georgia Firemen's Pension Fund (hereinafter FPF or fund) Act. You have posed six questions. As we have discussed and agreed, and as you will notice in the opinion, two of your six questions have been rendered moot by action taken on Tuesday, April 22, 1975, at the meeting of the fund's board of trustees (hereinafter board). In construing any statute, as you have asked me to do here, I must be guided by the prevailing, accepted rules of statutory construction enunciated by the General Assembly and interpreted by the appellate courts. The two most crucial to a consideration of your questions are that: (1) the cardinal rule of statutory construction is the ascertainment of the intention of the General Assembly in enacting a particular Act, Ga. Code 102-102 (9), Gazan v. Heery, 183 Ga. 30 (1936); and (2) where the language of a statute is clear and unambiguous, no occasion for construction exists and the statute must be taken to mean what it clearly expresses, Kendrick v. Kendrick, 218 Ga. 284 (1962). With these rules in mind, your questions will be answered seriatim. U75-31 340 I. Can a fireman retire and draw pension benefits and then go back to work with a fire department and continue to draw his pension? This question is answered in the negative by Ga. Laws 1955, p. 339 et seq., as amended; Ga. Code Ann. 78-1007. That portion of the FPF Act declares that only those firemen and volunteer firemen whose official duties have terminated as such firemen or volunteers are eligible to receive retirement benefits. Additionally, even were this statutory statement not present in the Act, it seems obviously inimical to the purposes of any retirement statute to construe that a member may enjoy a retired and employed status in the same retirement system simultaneously. See, e.g., Op. Att'y Gen. 75-8. II. Can a fireman retire, start drawing his pension, reenter the fire service and become an active member again in the pension fund? This question has been rendered moot by action taken by the board at its meeting on April 22, 1975. III. Can a fireman retire from his fire department before he reaches 55 years of age, assuming the requisite service, then go to work for another fire department and continue to work for another fire department and not pay dues to this fund? This question has also been rendered moot by action taken by the board at its meeting on April 22, 1975. IV. When a member is on disability retirement and the board of trustees has him reexamined for his disability and finds that he is physically able to return to the fire service, does the time spent in disability retirement count as service time toward a later service retirement? As in the case of I above, this question is also answered in the negative by Ga. Laws 1955, p. 339 et seq., as amended; Ga. Code Ann. 78-1007. This portion of the FPF Act states that, as a requisite of retirement eligibility, a fireman or volunteer fireman must have actively served 25 years as such. A fireman or volunteer who is on disability retirement with your fund could not definitionally or actually be actively engaged in the fire service. Accordingly, any time spent on disability retirement should not be counted as creditable service toward a subsequent service retirement. V. Under 78-1017 of our Act, a member must wait six months after his disability before he can apply for his disability benefits from the pension fund. Upon his retirement from the fund after the six-month waiting period, is he entitled to disability retirement benefits for the six months which comprised the waiting period? 341 U75-31 Georgia Laws 1955, p. 339 et seq., as amended (Ga. Code Ann. 78-1017 (a)), declares explicitly that no fireman or volunteer fireman shall be eligible for disability benefits from the fund until at least six months from the date he sustained the injury or impairment causing the total and permanent disability. Under the Act, a fireman or volunteer can only receive retirement benefits (service or disability) after becoming eligible for them. Therefore, it is my opinion that disability retirement benefits should commence being paid to a member of the fund retired for total and permanent disability only after the six-month "waiting" period under the Act has elapsed. VI. Section 78-1017 (b) reads as follows: " ... 'Nonservice-connected' is defined to mean that disability not a result of fire service while actively engaged in the performance of such fireman's or volunteer fireman's official duties within the fire department by which employed." (Emphasis yours.) Since the word volunteer is used, is a volunteer fireman covered by this section of our Act? This question is the most difficult of the ones considered herein. The statutory language you quote as part of this question, if read literally and by itself, indicates that a volunteer fireman is entitled to the stated "nonservice-connected" disability benefits. However, the entire statute reads as follows: "Any fireman who is a member of the Fund who shall become totally and permanently disabled as a result of heart disease or respiratory disease shall be entitled to receive benefits in the amount of one hundred twenty-five ($125.00) dollars per month. Provided, however, no such person shall be entitled to any benefits as a result of nonservice-connected disability from heart disease or respiratory disease, unless such person shall have served at least five (5) consecutive years as a 'fireman' and a member of the Fund immediately preceding the date of disability. 'Nonservice-connected' is defined to mean that disability not a result of fire service while actively engaged in the performance of such fireman's or volunteer fireman's official duties within the fire department by which employed." (Emphasis added.) Ga. Laws 1973, pp. 186-8 (Ga. Code Ann. 78-1017 (b)). In reviewing the legislative history of this section of the Act, which is a valid concern in statutory construction (see Acree v. State, 122 Ga. 144 (1904)), I notice that it has been amended eight times from 1957 until, most recently, in 1973. Not until1973 was the term "volunteer fireman" inserted in the last sentence of this statute in the definition of "nonservice-connected" disability. Throughout the FPF Act, U75-32 342 the terms "fireman" and "volunteer fireman" are used very carefully, with different standards and requirements imposed by the Act as to each because of the differing nature of their obligations to the fire service. See, e.g., Ga. Code Ann. 78-1001, 78-1014, 78-1017 (a) and (b). There is an obvious distinction declared in the Act between the provisions of Ga. Code Ann. 78-1017 (a) and (b). The former allows disability retirement benefits to both firemen and volunteer firemen who become totally and permanently disabled due to bodily injury or permanent impairment of health occurring while actively engaged in the duties of a fireman or volunteer. The latter disability section is specifically limited to total and permanent disability resulting from heart disease or respiratory disease. The latter section provides these benefits for a "fireman" even if the respiratory or heart disease is "nonservice-connected" so long as the "fireman" has served at least five consecutive years as a "fireman" and a member of the fund immediately preceding the date of disability. The full section of the statute (Ga. Code Ann. 78-1017 (b)), as quoted above, begins with the language "Any fireman." The proviso indicating the conditions under which benefits for "nonserviceconnected" disability are authorized explicitly states that the applicant must have been serving as a "fireman." The last sentence of the statute, about which you inquire, merely defines "nonservice-connected," and gives no substantive disability retirement rights to volunteers. I realize that all words in a statute are to be presumed purposeful and are to be given due weight and meaning. Falligant v. Barrow, 133 Ga. 87 (1909). However, it is equally true that statutes must be interpreted in view of all of the language contained therein in an effort to discern the real intent of the General Assembly. Lucas v. Smith, 201 Ga. 834 (1947); Freeman v. Woodmen of the World Life Ins. Society, 200 Ga. 1 (1945). In view of its legislative history, and considering all of the language of 78-1017 (b), I am impelled to the opinion that the inclusion of the term "volunteer fireman" within the definition of "nonservice-connected" is a meaningless scrivener's oversight and does not operate to make volunteer firemen eligible for disability retirement benefits resulting from respiratory or heart disease. UNOFFICIAL OPINION U75-32 To: Representative, District 115 May 2, 1975 Re: Local boards of education may in general contract with each other for the care, education and transportation of pupils, but not for -joint management, operation and control of school facilities. 343 U75-32 This is in reply to your letter of April 22, 1975, in connection with a contract between Schley, Webster and Marion Counties for the operation of a consolidated high school for the students of all three counties. Under the contract, a copy of which you attach to your letter, the high school is fiscally supported by all three counties, but is managed and operated by the Marion County Board of Education (the school being physically located in that county). The contract does provide for an "advisory" committee consisting of the superintendents and board chairmen of all three counties, but the authority of this committee is limited to that of making recommendations to the Marion County Board of Education. In light of the fact that the taxpayers of Schley County have no official representative on the Marion County Board of Education, you wish to know whether it is legal for the Marion County Board of Education to be spending school funds (pursuant to the contract) which are in part derived from Schley County taxes. You also ask what can be done (in the event that it is legal for Marion County to spend school funds derived from Schley County taxes) in order to assure Schley County of some representation on the Marion County Board of Education. In answer to your initial question, we need but point to Ga. Const., Art. VIII, Sec. IX, Par. II (Ga. Code Ann. 2-7202), which expressly states that: "Any two or more county boards of education, independent school systems, or area boards of education, or any combination thereof, may contract with each other for the care, education, and transportation of pupils and for such other activities as they may be authorized by law to perform." Under this constitutional provision the Supreme Court of Georgia has held that Macon County was constitutionally empowered to execute contracts with the Boards of Education of Peach and Taylor Counties (for the education of school children residing in Macon County) for a period of 20 years. Walker v. McKenzie, 209 Ga. 653 (1953). The answer to your second question similarly appears to be settled by both the Constitution and interpretative judicial decisions. Citizens of one county are ordinarily prohibited from sitting as members of the board of education of another county by virtue of Ga. Const., Art. VIII, Sec. V, Par. I (Ga. Code Ann. 2-6801), which sets forth a general qualification that members of a county board of education be citizens of that county. In Tipton v. Speer, 211 Ga. 886 (1955), the Supreme Court of Georgia pointed out that the previously quoted constitutional provision (i.e., Ga. Code Ann. 2-7202) was subject to the limitations of this last mentioned provision (i.e., Ga. Code U75-33 344 Ann. 2-6801), and that for this reason two local school systems could not by contract provide for the joint management of a school situated within one of the two systems. UNOFFICIAL OPINION U75-33 To: Representative, District 8, Post 3 May 9, 1975 Re: Property owners currently located in a special fire protection district would not be subjected to dual taxation after annexation into the City of Woodstock. This is in response to your request for an opinion as to whether property owners currently located in a county fire protection district would be subjected to dual taxation after annexation into the City of Woodstock. Your request indicated that property owners situated within the special county fire protection district are currently subject to a special millage which has not been levied. The dual taxation problem would seemingly arise after the same property is annexed into the City of Woodstock. An amendment to the Georgia Constitution, proposed by Ga. Laws 1968, pp. 1743, 1744, and subsequently ratified, provides in pertinent part: "The governing authority of Cherokee County is hereby authorized and empowered to establish and administer fire protection districts and sewerage districts in the unincorporated area of the County. The governing authority shall fix the geographical boundaries of any such district and may construct, maintain, operate and administer a fire protection system in such district. The governing authority is hereby authorized to levy a tax not to exceed five mills, for such purpose on all property in said district...." Accordingly, property within the county fire protection districts would be subject to the five mill tax. However, the constitutional amendment limits the establishment of these special districts to the unincorporated areas of the county. Once annexed into the City of Woodstock, the property in question would no longer be in the unincorporated area of the county and therefore could not be a part of the special fire protection district. See Ga. Code Ann. 69-902 (Ga. Laws 1962, p. 119; 1969, p. 504). As a result, the five mill tax could not be imposed on that property. Therefore, it is my unofficial opinion that property owners currently located in the special fire protection district would not be subjected to dual taxation after annexation into the City of Woodstock. 345 U75-34 However, I must caution that my opinion is premised upon the absence of any liability established prior to annexation. Your attention is also called to Article XI, Section III of the Constitution (Ga. Code Ann. 2-7901a). UNOFFICIAL OPINION U75-34 To: Cobb County Sheriff May 12, 1975 Re: The Georgia Crime Information Center Act requires persons in charge of law enforcement agencies to obtain fingerprints each time a person is arrested or taken into custody and forward such prints to GCIC. This unofficial opinion responds to the request which was made on your behalf for an interpretation of the Georgia Crime Information Center Act, Ga. Laws 1973, p. 1301 (Ga. Code Ann. Ch. 92A-30 [hereinafter "Act"]). As I understand your inquiry, you wish to know if Section 4 of the Act requires a person to be fingerprinted each time he is arrested. The Act provides in relevant part as follows: "Section 4. Duties of Criminal Justice Agencies. (a) All criminal justice agencies within the State shall submit to GCIC fingerprints ... on persons who have been lawfully arrested or taken into custody. . . . Specifically, the responsibilities of criminal justice agencies in this area will require that: "(1) All persons in charge of law enforcement agencies shall obtain, or cause to be obtained, the fingerprints . . . of each person arrested or taken into custody. . . . "(2) Fingerprints and other identifying data required to be taken under paragraph 4 (a) (1) shall be forwarded within 24 hours after taking for filing and classification...." (Emphasis added.) I am not aware of any provision of the Act or any other law which would suggest that these requirements do not apply when a person has been previously arrested and fingerprinted. Moreover, Section 3 of the Act charges GCIC with the responsibility of compiling and disseminating complete criminal histories and statistics concerning crime. This obviously cannot be accomplished unless each arrest of each person is reported to GCIC. Fingerprint information, since it is the most accurate means of identification, is an essential element of such reports. U75-35 346 Additionally, Section 4 (a) of the Act provides: "It shall be the duty of all ... sheriffs ... to furnish the GCIC with any other data deemed necessary by GCIC to carry out its responsibilities under this Act." The Director of GCIC informs me that it is absolutely essential to enable GCIC to carry out its responsibilities that each arrest be reported to GCIC and that the report include appropriate fingerprint information. In light of the foregoing it is my unofficial opinion that the Act requires that fingerprint and other required information must be taken and forwarded to the Georgia Crime Information Center each time a person is arrested.1 You also inquire whether photographs must be taken each time a person is arrested. Section 4 (a) (1) of the Act provides that "[p]hotographs need not be taken if it is known that photographs of the [required type] taken within the previous year are on file." Otherwise, photographs should be taken and the requirements of Section 4 (a) (2) of the Act regarding forwarding such photographs to GCIC would be applicable. UNOFFICIAL OPINION U75-35 To: County Attorney, Hall County May 16, 1975 Re: A county may, in certain circumstances, apply to the Federal Government for funds to be used for urban redevelopment and for public housing within the county. This is in response to your recent request for information as to whether there is any authority for a county to apply to the Federal Government for a grant of money to be used for the specific purpose of improving housing within the county. Generally, the pertinent statutory authority relating to public housing relates to the development of such projects through housing authorities, and I am unaware of any statutory authority which would specifically authorize the county to apply to the Federal Government for a grant of money and to then, in turn, use that grant to improve housing in the county. See Ga. Code Ann. Chs. 99-11, 99-12, 99-12A (Ga. Laws 1937, p. 210; 1937, p. 697; 1946, p. 157; as amended). 1 This opirllon should be understood to apply to juveniles only to the extent provided for in the Juvenile Code of Georgia, Chapter 24A-35, based on Ga. Laws 1971, p. 709. See Georgia Crime Information Center Act, Section 9 (b) (Ga. Code Ann. 92A-3008). See also Op. Att'y Gen. 74-58. 347 U75-35 Since these authorities are public instrumentalities, it would appear that the clearest authority to make application for federal funds would be found in these agencies and, indeed, there is specific authority for these agencies to receive federal grants. The primary obstacle to that which you seek to do is found in Art. VII, Sec. I, Par. II, of the Constitution of the State of Georgia (Ga. Code Ann. 2-5402), which provides that the General Assembly may not by vote, resolution or order grant any donation or gratuity in favor of any person, corporation or association. This same provision has been construed to apply to political subdivisions of the state. See Atlanta Chamber of Commerce v. McRae, 174 Ga. 590, 163 S.E. 701 (1932). However, I do believe that your analysis of this problem and your method of avoiding it are correct. That is, it is my unofficial opinion that Art. XI, Sec. III, Par. I of the Constitution of the State of Georgia (Ga. Code Ann. 2-7901a) does authorize the political subdivisions of the state to expend funds, whether they are received from the Federal Government or through taxation, to provide urban redevelopment programs or to provide public housing. If this is the purpose in seeking a grant from the Federal Government, it would be clear that such an activity is not, as a general proposition, prohibited by the Constitution of the State of Georgia, provided that there is some statute or ordinance which would authorize such an activity. This authority to undertake such an activity on the behalf of your county could be in the form of a county ordinance, which could be promulgated under the provisions of Art. XV, Sec. I, of the Constitution of the State of Georgia (Ga. Code Ann. Ch. 2-83), which provides for home rule of counties. Article XV, Sec. II-A, Par. I of the Constitution of the State of Georgia (Ga. Code Ann. 2-8402), clearly provides that: "The governing authority of each county shall have legislative power to adopt clearly reasonable ordinances, resolutions or regulations relating to its property, affairs and local government for which no provision has been made by general law and which is not inconsistent with this Constitution, or any local law applicable thereto." Therefore, since, as I have already indicated, the county does have the authority, as a general proposition, to provide the services which I have enumerated above, and since there appears to be no general law applicable to the situation, each county may by ordinance or resolution provide such services. Therefore, it would be my unofficial opinion that the county could apply to the Federal Government for funds to be used for public housing and urban redevelopment in your county. However, I must caution U75-36 348 that my views do not relate to the specific matters that may be contemplated by acceptance of the grant and expenditure of the funds under it. For example, I can find no authority which would authorize the county to make loans or grants to individuals for these purposes. While Art. XVI of the Constitution (Ga. Code Ann. Ch. 2-85) would authorize the General Assembly to confer such powers, it has not done so. UNOFFICIAL OPINION U75-36 To: Attorney for the Consolidated Government of Columbus, Georgia May 16, 1975 Re: The mayor and council of the consolidated government of Columbus, Georgia do not have the authority to investigate the office of sheriff of the consolidated government. As you are aware, pursuant to conversations between myself and your office, the mayor of Columbus has forwarded to this office an opinion issued by your office with a request for our comments. It is my understanding that this was done with your concurrence and, on that basis, we will be happy to be of whatever assistance we can. It is my understanding that the primary question is whether the mayor and council of Columbus have the authority to investigate the office of sheriff of the consolidated government. The authority of the council to investigate is found in section 3-300 of the charter of Columbus (Ga. Laws 1971, Extra. Sess., p. 2007). That section reads, in pertinent part, as follows: "The council shall have the power to conduct or cause to be conducted inquiries and investigations of the operation of any office, department, or agency or the conduct of any officer or employee thereof administering the affairs of consolidated government." The controversy then arises from an interpretation of this section. The key question is first whether the sheriff's office is an "office, department or agency" of the consolidated government and second, if it is, whether it is engaged in "administering the affairs of the consolidated government." For reasons enumerated herein, I concur with your opinion, that is, it is my opinion that the council does not have the power to conduct an investigation of the sheriff's office. Section 8-100 of the charter of Columbus, relating to the sheriff, makes it clear that the sheriff is required to perform the same duties and exercise the same powers as are conferred upon sheriffs generally by the Constitution and laws of Georgia. Georgia Code 24-2813 349 U75-37 (1933 Code, as amended), relating to the duties of a sheriff, clearly delineates those duties, and Ga. Code (1933) 24-2814 provides that if a sheriff fails to perform his duties and responsibilities, he may be fined by the superior court of the county as for contempt, and may be removed from office for any sufficient cause after a jury trial in the superior court of the jurisdiction. Additionally, Ga. Code Ann. 24-2827 (Ga. Laws 1968, p. 1248) provides that whenever the Governor of this state determines that an investigation of any charges against a sheriff should be made, he shall appoint a committee which shall consist of two sheriffs and the Attorney General who shall conduct an investigation into the charges. While Ga. Code 24-2830 (Ga. Laws 1968, p. 1248), relating to the same topic, indicates that this remedy is cumulative, it does provide an effective method of investigating such departments. Therefore, there is ample authority in the general law to provide for the investigation of the sheriff's office. To conclude that an additional method of investigating the sheriff's office has been granted by section 3-300 of the charter of Columbus is certainly not mandated by the language of that section and at best can only be obtained through a rather obtuse construction of that section when taken in conjunction with the entire charter. Therefore, for the reasons which I have stated, it is my unofficial opinion that you were correct in your conclusion that the mayor and council of Columbus do not have the authority pursuant to section 3-300 of the charter of Columbus to investigate the sheriff's office. However, you should note that this opinion only addresses itself to the provisions of the cited section of the charter. This in no way affects or limits the right of the mayor and council to engage in an inquiry into any public office just as could any interested person. UNOFFICIAL OPINION U75-37 To: County Attorney, Floyd County May 30, 1975 Re: Under the county home rule amendment, the Floyd County Retirement Plan, adopted by the Floyd County Board of Commissioners in January 1973, cannot constitutionally apply to employees of the Floyd County sheriff, nor to other employees of elected Floyd County officers who are not subject to the jurisdiction of the board of commissioners; retirement plans or programs for these employees may only be instituted by general or local Act of the General Assembly. This responds to your request for an unofficial opinion as to whether certain employees in Floyd County may retire pursuant to a county U75-37 350 retirement plan. To your letter you attached a portion of a January 1973 Resolution of the Floyd County Board of Commissioners, instituting a retirement plan for Floyd County employees, and a part of the definitional section of the Floyd County Retirement Plan. As I understand it, your specific question is whether two identified employees of the Floyd County sheriff may retire under the county's plan. Additionally, you also ask whether other employees of Floyd County's various elected officials may retire under this plan. The county home rule amendment to the Georgia Constitution reads in relevant part as follows: "The governing authority of each county is authorized to fix the salary, compensation and expenses of those employed by such governing authority and to establish and maintain retirement or pension systems, insurance, workmen's compensation, and hospitalization benefits for said employees." Ga. Const., Art. XV, Sec. II-A, Par. II (Ga. Code Ann. 2-8403), ratified on November 8, 1966. While the language of the above constitutional amendment authorizes county governing authorities to establish and maintain retirement or pension systems for their employees, this authority is limited by another section of the county home rule amendment: aThe power granted to counties in (the county home rule amendment) shall not be construed to extend to the following matters ... but such matters shall be the subject of general law, or the subject of local Acts of the General Assembly ...1. Action affecting any elective county office, the salaries thereof, or the personnel thereof, except the personnel subject to the jurisdiction of the county governing authority." (Parenthetical matter added.) Ga. Const., Art. XV, Sec. II-A, Par. I (c) (Ga. Code Ann. 2-8402 (c)), ratified on November 8, 1966.1 The apparent principle to be gleaned from this latter-quoted portion of the county home rule amendment is that county governing authorities cannot use their home rule power to affect other county elective offices, the affairs of such offices to be governed by general or local law. The necessity for this principle is manifest, in view of the potential conflicts between elected officials if one office were able to withdraw funds from, or govern the personnel of, another office at will. See Warren v. Walton, 231 Ga. 495 (1973); Op. Att'y Gen. U74-47. The office of sheriff is elective and the sheriff is a county officer. Cole v. Holland, 219 Ga. 227 (1963). Historically, from both common and statutory law, sheriffs have had the authority to appoint such 1 See Richmond County v. Pierce, 234 Ga. 274 (1975). 351 U75-37 deputies as the duties of their office may require. Ga. Code (1933) 24-2811; Warren v. Walton, supra. Deputies employed by the sheriff are employees of the sheriff, not the county governing authority, and the sheriff alone is entitled to appoint and discharge them. Drost v. Robinson, 194 Ga. 703 (1942); Board of Commissioners of Richmond County v. Whittle, 180 Ga. 166 (1934). The Floyd County Merit System Act provides that the Floyd County sheriff shall be considered the governing authority for his employees. Ga. Laws 1969, pp. 2505-2513. Accordingly, based on the foregoing, I must conclude that the employees of the Floyd County sheriff, who specifically generate your question, cannot constitutionally be covered by the Floyd County Retirement Plan. Consequently, these men cannot retire pursuant to the provisions of that plan, adopted by the Floyd County Board of Commissioners. As to the employees of other elected officials in Floyd County, I suggest that you look closely at the employment relationships between these employees and their governing authorities. As stated previously, the authority given to the commissioners under the county home rule amendment does not extend to action affecting the personnel of elective county offices, except the personnel subject to the jurisdiction of the county governing authority. (See generally, (unofficial) Ops. Att'y Gen. 69-28, 69-68.) It would be of paramount importance, therefore, to determine, in each questionable instance, whether an employee is considered the employee of the elected official or of the county governing authority. The Floyd County Merit System Act, cited supra, would be of assistance to you in this regard. In summary, based on the foregoing authorities and rationale, it is my unofficial opinion that, under the county home rule amendment, the Floyd County Retirement Plan, adopted by the Floyd County Board of Commissioners in January 1973, cannot constitutionally apply to employees of the Floyd County sheriff, nor to other employees of elected Floyd County officers who are not subject to the jurisdiction of the board of commissioners. Retirement plans or programs for these employees may only be instituted by general or local Act of the General Assembly. Op. Att'y Gen. 69-474 (unofficial) indicates, ostensibly at least, a contrary view to that expressed in this opinion. However, the factual situation generating Op. Att'y Gen. 69-474 posed a similar question to yours in a slightly different context. Because of this, Op. Att'y Gen. 69-474 is not overruled, but is modified to the extent necessary for consistency with this opinion. U75-38 352 UNOFFICIAL OPINION U75-38 To: Senator, 46th District June 2, 1975 Re: The local option hotel and motel tax is not applicable to the hotel portion of the Georgia Center for Continuing Education. This is in response to your recent letter concerning the applicability of the local option hotel and motel tax (Act No. 600 (H.B. No. 248), approved April24, 1975) to the hotel portion of the Georgia Center for Continuing Education. Since the Center is neither licensed by nor required to pay business or occupation taxes to the City of Athens or Clarke County, the Center would not be subject to a hotel and motel tax imposed by those jurisdictions under the authority of Act No. 600. See Act No. 600 (H.B. No. 248), approved April 24, 1975, Sections 2 and 3 (copy attached). Ga. Laws 1975, p. 1002 (Ga. Code Ann. Ch. 52-5). UNOFFICIAL OPINION U75-39 To: City Attorney June 3, 1975 Re: Where a councilman is elected from a particular ward, but by the voters of the entire city, he is not required to forfeit his office if he moves to a different ward in the same city. This is in reply to your request for an unofficial opinion concerning restrictions placed upon the residency and activities of councilmen. You asked, first, whether a councilman elected from a particular ward must continue to reside in that ward or forfeit his office. Second, you asked if a person could serve both as councilman and as a member of the city volunteer fire department, (1) Neither the Georgia Constitution nor any section of the Georgia Code specifically requires that a councilman continue to reside in the ward from which he was elected. The right to hold office unless disqualified by the Constitution and laws is one of the rights of Georgia citizens. Ga. Code (1933) 79-205. "(A] citizen may not be deprived of this right without proof of some disqualification specially declared by law." Patten v. Miller, 190 Ga. 123, 139 (1940). Thus, any purported disqualification for holding office must be strictly construed and implications which restrain the citizen's right to hold public office should be avoided whenever possible. Beazley v. Lunceford, 178 Ga. 683 (1934). The only stated qualification and ground for removal in the Dallas charter is provided in Section 8 of Ga. Laws 1956, p. 2947, which provides: 353 U75-39 "Be it further enacted, that any person, a resident of the City of Dallas, and who has been a bona fide resident thereof for twelve (12) months prior to the time of election, and who shall be twentyone (21) years of age and a qualified voter of said City of Dallas, shall be eligible to the office of mayor and councilmen of said City of Dallas. Should the mayor or any councilmen, during the term of his or her office, remove from the limits of said city or cease to be a bona fide resident thereof, his or her office shall thereby become vacant." Id. at 2954. There are no Georgia cases on your particular question. However, this issue has been decided by appellate courts in other states. These cases indicate that forfeiture of office by a councilman who moves to another ward is not required unless there is an expressed statutory mandate to this effect. See 62 C. J. S. Municipal Corporation, 479; 56 Am. Jur. 2d Municipal Corporations, 148. The only foreign decision apparently in point is Krulish v. Evans, 16 N.J. 200, 108 A.2d 177 (1954). There, the statutory language relied upon was almost identical to the language in Section 7 of the Dallas charter. Ga. Laws 1956, pp. 2947, 2953-4. Both provisions require that councilmen be elected "from" the city's wards. In Krulish, the court construed such a provision as to require forfeiture of office upon removal of the councilman's residence to another ward. However, it is my unofficial opinion that this decision would not be followed since it is distinguishable from the situation in Dallas. The New Jersey Supreme Court based its decision on the fact that applicable New Jersey law required councilmen to be elected by the qualified voters residing within the ward rather than by the voters of the entire city as is the case in Dallas. Ga. Laws 1956, pp. 2947, 2957, Section 11. As you stated in your letter of inquiry, where councilmen are elected by the voters of the entire city, a councilman represents the people who elected him even though he moves to a different ward. Therefore, it is my unofficial opinion that where councilmen are elected from wards, but by the voters of the entire city, a councilman who does not continue to reside in the ward from which he was elected is not required to forfeit his office. (2) There is no statutory provision which would expressly prohibit a member of a city council from simultaneously serving as a volunteer fireman. However, at common law, public officers were consistently prohibited from holding two incompatible positions at the same time because of the conflict of interest presented by being both master and servant. 67 C. J. S. Officers, 23; see also Montgomery v. City of Atlanta, 162 Ga. 534 (1926); Parrish v. Town of Adel, 144 Ga. 242 (1915). It has been the official opinion of this office that a city councilman is prohibited from city employment as a policeman or plumber for the above- U75-40 354 stated reason. See (unofficial) Ops. Att'y Gen. 69-105, 69-109 and 69-110. While it would appear that service in such a volunteer position would not be incompatible, we are unable to render an unofficial opinion without further information and believe that you are in a better position to advise the city on this issue. UNOFFICIAL OPINION U75-40 To: Attorneys for Bacon County June 4, 1975 Re: The Bacon County Board of Commissioners may not, by ordinance, resolution or regulation, institute a retirement or pension program for the elected officials of Bacon County; such a program must, under the Georgia Constitution, be created by local or general Act of the General Assembly. This responds to your request for an unofficial opinion as to whether Bacon County may levy taxes to provide for retirement or pension benefits for the elected officials of the county. Your letter specifically asks the question whether Bacon County may tax for this purpose under existing law, without additional legislation or a constitutional amendment. Your attention is directed to Ga. Canst., Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702), which reads, in relevant part, as follows: "In addition to such other powers and authority as may be conferred upon any county by this Constitution or by the General Assembly, counties are hereby authorized to exercise the power of taxation for the following purposes which are hereby declared to be public purposes and expend funds raised by the exercise of said powers for said purposes and such other public purposes as may be authorized by the General Assembly: . . . *** "10. Provide insurance, retirement and pension benefits, coverage under federal old age and survivors' insurance programs, hospitalization benefits, and workmen's compensation benefits for its officers and employees, their dependents and survivors...." Could your question be held within the parameters of authority given by this constitutional provision, its answer would be yes. However, your specific question is whether Bacon County may levy taxes for the provision of retirement benefits to elected officials. Apparently, the county envisions accomplishing this by resolution or other action of the board of commissioners. 355 U75-40 The county home rule amendment to the Georgia Constitution authorizes county governing authorities, by ordinance, resolution or regulation, to establish and maintain retirement or pension systems for employees of the county. Ga. Const., Art. XV, Sec. II-A, Par. II (Ga. Code Ann. 2-8403), ratified on November 8, 1966. However, this authority is limited by another paragraph of the county home rule amendment which reads, in part, as follows: "(c) The power gran'ted to counties in (the county home rule amendment) shall not be construed to extend to the following matters ... but such matters shall be the subject of general law, or the subject of local Acts of the General Assembly ... "1. Action affecting any elective county office, the salaries thereof, or the personnel thereof, except the personnel subject to the jurisdiction of the county governing authority." (Parenthetical matter added.) Ga. Const., Art. XV, Sec. II-A, Par. I (c) (Ga. Code Ann. 2-8402 (c)), ratified on November 8, 1966. The cited paragraphs of the county home rule amendment have been held to apply to county retirement and pension programs. Richmond County v. Pierce, 234 Ga. 274 (1975); see, generally, (unofficial) Ops. Att'y Gen. 69-28, 69-68. It is clear that the county home rule amendment precludes the county governing authority from taking action affecting the salaries of elected county officials and personnel directly responsible to them. Warren v. Walton, 231 Ga. 495 (1973); Op. Att'y Gen. U74-47. It appears manifest that the provision of retirement benefits by the board of commissioners to elected officials would, also, be action affecting an elective office. Accordingly, this preclusion would extend to the establishment of retirement benefits for these officials. Therefore, based on the foregoing authorities and rationale, it is my unofficial opinion that the Bacon County Board of Commissioners may not, by ordinance, resolution or regulation, institute a retirement or pension program for the elected officials of Bacon County. Such a program must, under the Georgia Constitution, be created by local or general Act of the General Assembly. As a footnote, I feel compelled to mention that, in my judgment, the preclusion herein stated would also appertain to personnel employed by elected Bacon County officials, except the personnel subject to the jurisdiction of the Bacon County Board of Commissioners. See Ga. Const., Art. XV, Sec. II-A, Par. I (c) (Ga. Code Ann. 2-8402 (c)). U75-41 356 UNOFFICIAL OPINION U75-41 To: County Attorney, Wilkinson County June 11, 1975 Re: A sheriff is not entitled to the proceeds received from the sale of contraband articles under Ga. Laws 1952, pp. 201, 202 (Ga. Code Ann. 42-813.1). This is in response to your request for an unofficial opinion concerning whether a sheriff is entitled to a portion of the proceeds received from the sale of contraband articles under Ga. Laws 1952, pp. 201, 202 (Ga. Code Ann. 42-813.1). Language identical to the language of subsection (d) of this statute was construed in the case of Cloud v. DeKalb County, 70 Ga. App. 777 (1944). The court held that a salaried county policeman was not precluded from receiving the fee provided under Ga. Laws 1946, pp. 96, 99 (Ga. Code Ann. 58-207), for sale of automobiles used in the transportation of nontax paid whiskey. In so holding, the court stated that this was so, providing that there was no other provision of law prohibiting him from receiving the compensation in addition to his salary. The fee system as a method of compensation for sheriffs has been abolished in Georgia by the provisions of Ga. Laws 1964, p. 310 (Ga. Code Ann. 24-2826). This Act provides that: " ... no sheriff shall receive as any portion of his compensation for his services as such any fees, fines, forfeitures, costs, commissions, emoluments or perquisites of any nature whatsoever." The sheriff of Wilkinson County was placed on a salary pursuant to Ga. Laws 1965, pp. 2551, 2552, as amended by Ga. Laws 1971, p. 3913 and Ga. Laws 1975, pp. 2554, 2555. This legislation has the effect of prohibiting the sheriff from receiving the fee in question. See Op. Att'y Gen. 68-467. Therefore, it is my unofficial opinion that the sheriff is not entitled to the proceeds received from the sale of contraband articles under Ga. Laws 1952, pp. 201, 202 (Ga. Code Ann. 42-813.1). UNOFFICIAL OPINION U75-42 To: District Attorney, Eastern Judicial Circuit June 13, 1975 Re: A superior court judge may impose the payment of a fine as a term and condition of probation for a defendant being treated under the First Offenders Act. 357 U75-43 This is written in response to your recent request for an unofficial opinion on the question of whether a Superior Court Judge may, when allowing a defendant to come under the provisions of the First Offenders Act, also impose a fine on the defendant. The First Offenders Act (Ga. Laws 1968, pp. 324-326; Ga. Code Ann. 27-2727 to 27-2732) found at Ga. Code Ann. 27-2727 provides in part that: "Upon a verdict or plea of guilty or a plea of nolo contendere but before an adjudication of guilt, the court may, in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilty and with the consent of the defendant, defer further proceeding and place the defendant on probation as provided by the Statewide Probation Act[ 27-2702 through 27-2726.1]." It is significant to note that the First Offenders Act provides that the defendant is to be placed on probation as provided by the Statewide Probation Act (based on Ga. Laws 1956, p. 27, as amended). The Statewide Probation Act, and in particular at Ga. Code Ann. 27-2711, sets out some of the terms and conditions of probation which a judge may include in his order. The terms and conditions of probation expressly set out in Ga. Code Ann. 27-2711 are not exhaustive and the trial court has a wide discretion in this area. Marshall v. State, 127 Ga. App. 805, 809 (1972); Yarbrough v. State, 119 Ga. App. 46 (1969); Gay v. State, 101 Ga. App. 225 (1960). It is reasonable to conclude that the imposition of a fine as a term and condition of probation would be within the court's discretion under Ga. Code Ann. 27-2711. In People v. Labarbera, 89 Cal. App.2d 639, 201 P.2d 584, 587 (1949), a California appellate court has held: "There is no finality to an order granting probation, and the imposition of a fine as a condition of probation is not a judgment imposing a fine." Therefore, it is my unofficial opinion that a superior court judge may impose the payment of a fine as a term and condition of probation for a defendant being treated under the First Offenders Act. UNOFFICIAL OPINION U75-43 To: District Attorney, Stone Mountain Judicial Circuit June 13, 197.5 Re: A person under the age of 17 years at the time of the commission of a capital felony offense may lawfully be sentenced to death. U75-43 358 This is written in response to your recent request for an opinion on the question of whether or not a person under 17 years of age may be lawfully sentenced to death. The General Assembly in 1963 by Ga. Laws 1963, p. 122, amended Code 26-1005 and 27-2302. Code 26-1005, which was concerned with punishment for persons convicted of murder, was amended by Ga. Laws 1963, p. 122, so that the following language was added to that Code section: "vVhen it is shown that a person convicted of murder had not reached his seventeenth birthday at the time of the commission of the offense, the punishment of such person shall not be death but shall be imprisonment for life." Code 27-2302, which concerned punishment in all capital cases other than those of homicide, was amended by Ga. Laws 1963, p. 122, so that the following language was added to that section: "When the verdict is guilty without a recommendation to mercy, it shall be legal and shall mean that the convicted person shall be sentenced to death. However, when it is shown that a person convicted of a capital offense without a recommendation to mercy had not reached his seventeenth birthday at the time of the commission of the offense the punishment of such person shall not be death but shall be imprisonment for life." Thus, the effect of Ga. Laws 1963, p. 122, was to prohibit a sentence of death for a person who was under the age of 17 years at the time the crime was committed. By the enactment of the Criminal Code of Georgia in 1968, Ga. Laws 1968, pp. 1249, 1339, Section 1 of Ga. Laws 1963, p. 122, was repealed. Section 1 of Ga. Laws 1963, p. 122, was the amendment to Code 26-1005 as described above. The amendment to Code 27-2302 was not specifically repealed by Ga. Laws 1968, pp. 1249, 1339. Thus, after the enactment of the Criminal Code of 1968, a sentence of death could be lawful for a person under the age of 17 years at the time of the commission of the crime of murder. However, a sentence of death could not be lawful for a person under the age of 17 years at the time of the commission of a capital felony offense other than murder. In 1974, the General Assembly again amended Code 27-2302, Ga. Laws 1974, pp. 352, 353, and after setting out the specific amendment the Act set out how Code 27-2302 should read as amended. The 1963 amendment to Code 27-2302 was omitted from the 1974 Act. Thus, there is a strong argument that the General Assembly repealed by implication the 1963 amendment to Code 27-2302. Leonard v. State of Georgia, 204 Ga. 465 (1948); City of Atlanta v. Goodman, 183 Ga. 834 (1937); Central of Georgia Railway Co. v. Keating, 177 Ga. 345 (1933). 359 U75-44 Therefore, it is my unofficial opinion that a person under 17 years of age may be lawfully sentenced to death for the commission of a capital felony offense. UNOFFICIAL OPINION U75-44 To: District Attorney, Cobb Judicial Circuit June 17, 1975 Re: If the court were to hold unconstitutional that portion of Code Chapter 84-16 concerning race, the remainder of that Chapter (otherwise regulating billiard rooms) would be valid law. This is written in response to your recent request for an unofficial opinion. In your request you state that in your view certain portions of Code Chapter 84-16, which provides for the regulation of billiard rooms, is unconstitutional. Your question appears to be whether or not the unconstitutional sections are severable to the extent that other portions of the Chapter remain valid law. It should be noted that Ga. Code (1933) Ch. 84-16 sets out a comprehensive scheme for the regulation of billiard rooms. Among other things, that Chapter provides for qualifications of licensees, the grant of licenses for the operation of billiard rooms, municipal fees and regulations, various health standards, hours of operation, and prohibitions against minors frequenting billiard rooms. The portion of that Chapter which you state that you consider unconstitutional is that portion of Code 84-1603 which provides that "No license to operate a billiard room shall be issued ... to any person of the white or Caucasion race to operate a billiard room to be used, frequented or patronized by persons of the Negro race; nor to any person of the Negro race to operate a billiard room to be used, frequented or patronized by persons of the white or Caucasion race." Similar wording is found in Code 84-1604. The Supreme Court of Georgia has held that: "However, the judiciary will not, and indeed cannot, void an enactment of the General Assembly merely because it is defective in part. Constitutional principles dictate that such defective parts be excised and the remainder sustained provided the legislative scheme can be preserved." Fortson v. Weeks, 232 Ga. 472, 473 (1974). The Supreme Court applied the same principle in Greer v. State of Georgia, 233 Ga. 667, 670 (1975). Applying the principle enunciated by the Supreme Court to Code Ch. 84-16, it appears that if the portions of that Chapter which you consider unconstitutional were deleted the remainder of that U75-45 360 Chapter would be sufficient to carry out the apparent legislative scheme. Therefore, it is my unofficial opinion that if the court were to declare unconstitutional that portion of Code Ch. 84-16 which concerns race, the remainder of that Chapter would still be valid law. UNOFFICIAL OPINION U75-45 To: Judge of the Probate Court, Harris County June 23, 1975 Re: (1) A special election pursuant to Ga. Laws 1972, pp. 207, 209 (Ga. Code Ann. 58-1005), may not be held on the same date as any other election. (2) A special election to fill the position of justice of the peace may be called despite the. fact that more than 30 days have elapsed since the position was vacated. This is in reply to your request for an unofficial opinion from this office. You asked, first, if it was permissible to hold an election under Ga. Laws 1972, p. 207 (Ga. Code Ann. 58-1005), at the same time as a special election pursuant to Ga. Laws 1975, p. 2960 (H. B. No. 1114). Secondly, you wanted to know whether both questions could be placed on a voting machine. Your third question concerned whether it would be legal to call a special election to fill a justice of the peace position which has been vacant for more than 30 days. (1) Under Ga. Laws 1972, p. 207 (Ga. Code Ann. 58-1005), an election to authorize the sale of intoxicating beverages cannot be held" ... at the time of holding any other election (primary or general) in said county." This language must be construed according to the mandate of Ga. Code 102-102 which requires that words in the Georgia Code must be given their ordinary usage. See Thompson v. Eastern Air Lines, 200 Ga. 216 (1946). The word "any" has several meanings depending upon the context in which it is used. Using the definition which most closely corresponds to its context in the applicable section the word means "... one or some indiscriminately of whatever kind...." Webster's New Collegiate Dictionary (1975). Therefore "any" in the statute applies to elections of whatever kind. Applying this definition it is my unofficial opinion that the General Assembly intended that an election to authorize the sale of intoxicating beverages be conducted on a day when no other elections are being held. It could be argued that the parenthetic inclusion of the words "primary or general" indicated an intent that the prohibition not apply to days when other special elections are being held. According 361 U75-46 to well-recognized rules of statutory construction, if a statute enumerates certain things to which the section applies and also a general expression concerning the section's applicability, the general expression may be given effect if the context shows that the enumeration was not intended to be exclusive. See C. J. S. Statutes, 333. See also, Springer v. Government of the Philippine Islands, 277 U.S. 189, 200 (1928). Therefore, the maxim of statutory construction expressio unius est exclusio alterius [expression of one thing is the exclusion of anotherBlack's Law Dictionary 692 (Revised 4th Ed. 1968)] does not apply when the statutory language clearly comprehends several different cases in which only some are expressly mentioned by way of example. C. J. S. Statutes, 333. By use of the all-inclusive word "any" to modify "elections" it seems reasonable to conclude that the words "primary or general" were not intended to be a complete listing of the type of elections which cannot be held on the same day as an election to authorize the sale of intoxicating beverages. (2) Since it appears that both elections cannot be held on the same day there is no necessity to determine if both questions may be placed on voting machines. (3) There has been a vacancy in a justice of the peace office for many years and you ask whether you may now call a special election to fill the vacancy. We have previously answered this question in the affirmative in Op. Att'y Gen. 67-435 (unofficial), a copy of which is enclosed for your reference. The reasoning of this opinion is still applicable and therefore it remains my unofficial opinion that you may call a special election to fill this vacancy. UNOFFICIAL OPINION U75-46 To: Solicitor, State Court of Clarke County June 23, 1975 Re: The jurisdiction of the Magistrate's Court of Clarke County does not embrace criminal prosecutions for violations of the insurance laws of Georgia, specifically proceedings brought under the penal provision of the No-Fault Act, Ga. Code Ann. 56-9915.2. Your letter of June 6, 1975 requested an opinion from this office regarding the jurisdiction of the Magistrate's Court of Clarke County with respect to prosecutions brought pursuant to the Georgia Motor Vehicle Accident Reparations Act. (Acts 1974, p. 113, Ga. Code Ann. 56-3401b et seq.) (hereinafter referred to as the "No-Fault Act"). Specifically, you ask whether the magistrate's court has jurisdiction U75-46 362 over cases brought under Acts 1974, pp. 113, 124, Ga. Code Ann. 56-9915.2. The criminal jurisdiction of the Magistrate's Court of Clarke County extends, inter alia, to crimes and offenses, not exceeding the grade of misdemeanor, that involve a violation of the penal provisions of any and all laws relating to the following classifications: "(1) The laws governing the operation, regulation, and traffic of motor vehicles, particularly as set forth in an Act approved March 27, 1941 (Ga. L. 1941, p. 449), relating to the dimensions of vehicles; an Act approved February 12, 1951 (Ga. L. 1951, p. 90), relating to special permits for excessive loads; an Act approved March 2, 1953 (Ga. L. 1953, Jan.-Feb. Sess., p. 331), relating to cash appearance bonds in traffic cases; an Act approved January 11, 1954 (Ga. L. 1953, Nov.-Dec. Sess., p. 556), known as the "Uniform Act Regulating Traffic on Highways"; an Act approved March 3, 1961 (Ga. L. 1961, p. 68), known as the "Motor Vehicle Certificate of Title Act"; and all Acts that have been enacted or may hereafter be enacted amending any of the Acts herein cited; and also including but not limited to the applicable provisions contained in Title 68 of the Code of Georgia Annotated as published by the Harrison Company of Atlanta, Georgia as such title exists at the time this Act becomes law. *** (6) The laws relating to the public safety, particularly as set forth in an Act creating the Department of Public Safety, approved March 19, 1937 (Ga. L. 1937, p. 322), and all amendatory Acts thereof; and also including but not limited to the applicable provisions contained in Code Chapters 92A-1 through 92A-4 of the Code of Georgia Annotated as published by the Harrison Company of Atlanta, Georgia as such chapters exist at the time this Act becomes law." Acts 1964, pp. 3255, 3257 (hereinafter referred to as the "1964 Act"). The preceding provisions superseded the prior law which limited the criminal jurisdiction of the magistrate's court to misdemeanors involving a violation of the penal laws: " ... relating to traffic upon the public roads, streets and highways of this State, including but not limited to penal laws relating to the provisions of Chapters 68 and 92A-1 through 92A-4 of the Code of Georgia ..."Acts 1960, pp. 3208, 3210 (hereinafter referred to as the "1960 Act"). In Willingham v. State, 104 Ga. App. 863 (1961), a case decided under the 1960 Act, the defendant was tried and convicted in Athens City 363 U75-46 Court for speeding and driving without a license. Although he entered a plea of autrefois convict in which he alleged that he had been tried and convicted for identical sentences in the Magistrate's Court of Clarke County, the city judge overruled and dismissed the plea, whereupon defendant was found guilty and sentenced. In defining the scope of the magistrate's court's jurisdiction to try defendant, the Court of Appeals said: "While Chapters 92A-1 through 92A-4 of the Annotated Code are not part of the official Code of Georgia, as referred to in the above act, the reference to said chapters in section 4 of the act is simply discriptive (sic) of the jurisdiction and power granted to the Magistrate Court by said section and is not essential to the grant of the authority itself as contended by the State." Id., at 864. Hence, the Court of Appeals felt that the statutory reference to Chapters 92A-1 through 92A-4 of the Georgia Code Annotated was merely a short-hand formula whereby the legislature sought to describe the range of topics under whose related penal provisions prosecutions could be maintained in the magistrate's court. Thus the court's jurisdiction extended broadly over traffic cases of all sorts. The 1964 Act, therefore, merely codified the Willingham case, supra, as that case spoke to the court's jurisdiction with reference to the laws relating to the public safety. See Acts 1964, pp. 3255, 3258. Therefore, the only other provision of the 1964 Act that might provide a basis for the court's jurisdiction with reference to your inquiry is the subsection granting the court jurisdiction over offenses relating to the laws governing the operation, regulation, and traffic of motor vehicles. See Acts 1964, pp. 3255, 3257. Obviously, the No-Fault Act is not mentioned in the laws specifically listed in the 1964 Act. TheNaFault Act was enacted in 1974, not as an amendment to existing legislation, but as an altogether separate statute the fundamental objective of which was to provide that persons suffering personal injuries and sustaining property damage as a result of automobile accidents are to be compensated for their losses without regard to fault. See Op. Att'y Gen. 75-42. The No-Fault Act has been unofficially codified by The Harrison Company as Ga. Code Ann. 56-3401b et seq. and hence has been placed in the insurance title of the Georgia Code Annotated. The 1964 Act refers to applicable provisions of Title 68 of Georgia Code Annotated (Motor Vehicles) and contains no reference to insurance. If we follow the reasoning of Willingham, supra, the reference in the 1964 Act to Title 68 was simply descriptive of the magistrate's court's jurisdiction, and was meant to be a short-hand way of saying that it has jurisdiction to hear misdemeanor cases relating to crimes regarding motor vehicles generally just as the reference to Chapters 92A-1 U75-47 364 through 92A-4 grants it jurisdiction over traffic cases generally. See Ga. Code Ann. 68-9901 et seq. The penal provision of the No-Fault Act, which is the subject of your inquiry, is simply an additional criminal provision of the Georgia Insurance Code (Acts 1960, p. 289 as amended, Ga. Code Ann. 56-101 et seq.) and ought not to be isolated therefrom. Since nothing in the 1964 Act even remotely alluded to criminal prosecutions for violation of the insurance laws of Georgia, I feel that no such jurisdiction should be ascribed where none was intended. Nothing I have said should be construed to suggest, however, that if The Harrison Company chose to codify the penal provision of the No-Fault Act under Title 68 or Chapters 92A-1 through 92A-4 of Georgia Code Annotated the Clarke County Magistrate's Court would then have jurisdiction of prosecutions brought thereunder. For one reason, the 1964 Act specifically limits the court's jurisdiction with reference to Title 68 and Chapters 92A-1 through 92A-4 to the provisions contained therein "at the time this Act becomes law." Acts 1964, pp. 3255, 3257. Also, for another reason, it would be nothing short of ludicrous to suppose that the General Assembly intended the magistrate's court's jurisdiction to vary depending upon where The Harrison Company chose to codify the session laws. My conclusion, therefore, is that the jurisdiction of the Magistrate's Court of Clarke County does not embrace criminal prosecutions for violations of the insurance laws of Georgia, specifically, proceedings brought under the penal provision of the No-Fault Act, Ga. Code Ann. 56-9915.2. UNOFFICIAL OPINION U75-47 To: Georgia Sheriffs Association, Inc. June 24, 1975 Re: The Minimum Salaries for County Sheriffs Act (Ga. Laws 1971, p. 380) entitles sheriffs who complete a full four-year term of office on December 31, 1976 to a five percent salary increase beginning January 1, 1977. This is in response to your inquiry concerning the application of the Minimum Salaries for County Sheriffs Act, Ga. Laws 1971, p. 380 (Ga. Code Ann. 24-2831 to 24-2834). In particular, you posed several questions with respect to the five percent increase allowed for each four-year term of office served by a sheriff, as provided in Section 2 of the Act. Your first question asked, "Are the sheriffs entitled to a five percent raise at the end of the present term which is December 31, 1976?" 365 U75-48 As you know, Section 2 of the Act provides that a sheriff will receive a five percent increase in his minimum salary for each four-year term of office completed by that sheriff after April 2, 1971. Consequently, it is my unofficial opinion that any sheriff who completes a full four-year term of office on December 31, 1976 will be entitled to a five percent increase in his minimum salary beginning with the start of his new term of office on January 1, 1977. In this regard, please note Op. Att'y Gen. U74-19 (a copy of which is enclosed), which held that the five percent increase is applicable only to those sheriffs who have completed a full four-year term. Your other questions were directed toward the manner in which the five percent salary increase is to be computed. The Act clearly provides in this regard that the increase shall be prospective. In other words, each sheriff who begins a new term of office on January 1, 1977 shall be entitled to a five percent increase for each full four-year term of office completed after April 2, 1971. For example, a sheriff who commenced a term on January 1, 1969, and who completed a full term on December 31, 1972, should have received a five percent increase in his minimum salary as specified in Section 1 of the Act when he began his new term on January 1, 1973. If he remains in office continuously through December 31, 1976, he will then be entitled to a second five percent increase in his minimum salary when he begins his new term on January 1, 1977. In other words, the salary of a sheriff who serves continuously from 1969 through 1976, and who begins a new term on January 1, 1977, will be 10 percent greater than the amount specified in the minimum salary schedule. A sheriff who completes his first term on December 31, 1976, and who begins a new term on January 1, 1977, will .receive a salary five percent greater than the amount specified in the schedule. UNOFFICIAL OPINION U75-48 To: Judge, Probate Court of McDuffie County June 24, 1975 Re: The last expression of legislative intent found in Ga. Laws 1974, p. 1230, must be given effect, and, therefore, a warrant for the arrest of a peace officer may be issued by either a judge of the superior court, a judge of the state court, or a judge of the probate court. This is in response to your request for my opinion as to who may properly issue a warrant for the arrest of a peace officer who has allegedly committed an offense in the performance of his duties. In particular, you asked whether a probate judge could issue such a U75-48 366 warrant when a superior court or state court judge was also available within the county. For the reasons stated herein, it is my unofficial opinion that such a warrant may be issued by a judge of the superior court, state court or probate court, in the alternative, and a probate judge may issue such a warrant irrespective of the fact that a superior court or state court judge may also be present and available within the county. As you know, Ga. Code Ann. 27-102 was amended by Ga. Laws 1974, p. 1230. However, the amending statute is confusing in that it appears that the result achieved by the legislature does not conform to the legislature's initial intent. Ga. Laws 1974, p. 1230, Section 1, begins by stating that Code 27-102 is amended by adding the following language: "except that any warrant for the arrest of a peace officer for any offense alleged to have been committed while in the performance of his duties may be issued only by a judge of a superior court, a judge of a state court, or, in the event a superior court judge or a state court judge does not reside in the county where the offense is alleged to have occurred or any such judge is not available in such county, the judge of the court of ordinary of such county." (Emphasis added.) However, Section 1 continues by stating that when so amended, Code 27-102 should read as follows (in pertinent part): " . . . except that any warrant for the arrest of a peace officer for any offense alleged to have been committed while in the performance of his duties may be issued only by a judge of a superior court, a judge of a state court, or a judge of a court of ordinary." You will note that in resttliting how Code 27-102 should read after being amended, the General Assembly omitted substantial portions of the original amending language (which I have emphasized above). This obviously poses the question which of the two statements of the amendment is controlling. Is it the amendment as initially declared by the legislature in Section 1, or is it the amendment as declared by the legislature when it restated Code 27-102. It appears that the problem presented by Ga. Laws 1974, p. 1230, Section 1, is not unique. The conclusion reached by the courts in such instances is that the last expression of the General Assembly is controlling, because "[i]t is a well-settled rule of construction that if there is a conflict between two parts of a single act, the latest in position will be declared to be the law, since it is presumed to be the last expression of the legislative will." Tyler v. Huiet, 199 Ga. 845, 850 (1945). The rationale for this rule was stated in Gilbert v. Georgia Railroad and Banking Co., 104 Ga. 412 (1898), wherein the court was confronted 367 U75-49 with a situation similar to that presented by your inquiry. There, the court held: " . . . "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 the 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. If the declaratory part, which recites that certain amendments are to be made, is entirely omitted from the recital as to 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 which was not carried into the new law as recited in the statute, and that the failure to strike from the declaratory part of the law so much of it as was not to be embraced in the new law was by mistake or inadvertence." 104 Ga. at page 414. Accord: Ryle v. Wilkinson County, 104 Ga. 473 (1898); Grine v. Morton Salt Co., 178 Ga. 754 (1934); Hart v. Head, 186 Ga. 823 (1938); Atlanta Metallic Casket Company v. Mosby Truck Co., Inc., 107 Ga. App. 677 (1963). It should be noted that this rule applies even if the caption of the amending Act also expresses an intent which does not appear in the final declaration of how the law, as amended, shall read. Hart v. Head, supra. It is my unofficial opinion, therefore, that those portions of the amendment contained in Ga. Laws 1974, p. 1230, Section 1, which were not incorporated into the language used by the General Assembly, when it restated how Code 27-102 shall read, did not become operative. Thus, the proper construction of Code 27-102, as amended by Ga. Laws 1974, p. 1230, is that a warrant for the arrest of a peace officer may be issued by a judge of the superior court, a judge of the state court, or a judge of the probate court, in the alternative, and that the power of a probate judge to issue such a warrant is not dependent upon the absence of the superior court and state court judges from the county where the offense is alleged to have occurred. UNOFFICIAL OPINION U75-49 To: Probate Judge, Heard County June 25, 1975 Re: The provision of Ga. Laws 1974, p. 455, does not presently operate to increase the compensation of the Probate Judge of Heard County. U75-49 368 This is in response to your request for an unofficial opinion as to the meaning of Section 2 of Ga. Laws 1974, p. 455 (Ga. Code Ann. Ch. 24-17B), which provides for an increase in the minimum salaries for probate judges established by that Act of an additional $50 salary per month in those cases where the probate judge is responsible for the conduct of elections. The applicable language of Ga. Laws 1974, pp. 455, 456 (Ga. Code Ann. 24-1702b), reads as follows: "Section 2. The amount of the minimum salary provided in Section 1 for the [probate judge] of any county who also holds and conducts elections or is responsible for conducting elections for members of the General Assembly, under the provisions of any applicable general or local law of this State, shall be increased by $50.00 per month." The term "minimum salary" contained in Section 2 obviously refers to the minimum "annual salary" contained in Section 1, which is payable in monthly installments. Ga. Code Ann. 24-1701b. Since the annual minimum salary is to be increased by "$50.00 per month," and since there are no words of limitation which restrict the increase to months in which elections are held, the intention and effect was obviously to provide for an increase in the minimum annual salary at the rate of $50 per month. Therefore, it is my unofficial opinion that Ga. Laws 1974, pp. 455, 456, does not limit the salary increase for probate judges who hold elections to the months during which elections are actually conducted. Based on this interpretation of Section 2, the minimum salary for probate judges who hold elections is $7,600 for a county with a population of less than 6,000. Section 3 of the Act also provides that the minimum salary determined under Sections 1 and 2 is increased by two and one-half percent for each year in office served by a probate judge. Ga. Code Ann. 24-1703b. However, it also provides that the increase per year may not be computed upon the basis of any year of service completed prior to the effective date of the Act. Thus, the first longevity increase would be computed on December 31, 1974, and on December 31 of each year thereafter, and would determine in each case the minimum salary payable for the succeeding year. However, Section 4 of the Act also provides that the Act does not affect local legislation governing compensation: " ... except where such local legislation provides for a salary lower than the salary provided in this Act, in which event the provisions of this Act shall prevail." Ga. Code Ann. 24-1704b. By virtue of Ga. Laws 1973, p. 2452, the salary of the Judge of Pro- 369 U75-50 bate Court for Heard County is established at $7,800 per annum, which exceeds the amount determined by the addition of $7,000, authorized by Section 1, and $600 authorized by Section 2, and the amount derived by the multiplication of $7,600 by two and one-half percent. Since this is the case, Ga. Laws 1974, p. 455, will have no effect on the level of compensation to which you are entitled until the longevity increases provided for in Section 3 of the Act operate to increase the minimum salary above the level provided by Ga. Laws 1973, p. 2452. UNOFFICIAL OPINION U75-50 To: Acting Director, Judicial Council of Georgia June 27, 1975 Re: Section 4 of Ga. Laws 1975, p. 852, which purports to repeal Ga. Code 24-1304, contains a typographical error and the section actually repeals Ga. Code 24-3104, leaving Ga. Code 24-1304 in full force and effect. This is in response to your recent letter in which you requested our opinion as to the effect of what you indicate is a typographical error found in Section 4 of Ga. Laws 1975, p. 852. You noted that Ga. Laws 1975, p. 852, deals generally with the authority of the Judicial Council of the State of Georgia to promulgate rules and regulations which affect the fees set by court reporters for reporting criminal and civil cases. Further, you indicated that the specific problem which generated your inquiry is that Section 4 of Ga. Laws 1975, p. 852, purports to repeal section 24-1304 of the Code of Georgia of 1933, a Code section which has nothing at all to do with the Judicial Council of Georgia or with court reporters, instead of repealing Ga. Code 24-3104, as you feel was the intent of the General Assembly. The particular section in question presently reads as follows: "Section 24-1304 of the Code of Georgia of 1933, as amended by an Act approved February 16, 1949 (Ga. Laws 1949, p. 646), and by an Act approved February 21, 1951, (Ga. Laws 1951, p. 630), and by an Act approved February 18, 1959 (Ga. Laws 1959, p. 61), and by an Act approved April 10, 1968 (Ga. Laws 1968, p. 1230), is hereby repealed in its entirety." For the reasons enumerated hereinbelow, it is my unofficial opinion that the General Assembly repealed Ga. Code Ann. 24-3104 instead of Ga. Code (1933) 24-1304. First, Ga. Code 102-102 (9), a rule of statutory construction, most clearly provides that: U75-50 370 "In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy. Grammatical errors shall not vitiate, and a transposition of words and clauses may be resorted to when the sentence or clause is without meaning as it stands." (Emphasis added.) It is patently obvious that the General Assembly did not intend that Ga. Code 24-1304 be repealed, but in fact intended to repeal Ga. Code Ann. 24-3104. This can be ascertained initially by the fact that the amending Acts cited in Section 4 of Ga. Laws 1975, p. 852, and referred to above, all amended Ga. Code Ann. 24-3104, and none amended Ga. Code 24-1304. Second, Ga. Laws 1975, p. 852, purports to deal with one subject matter, that being the authority of the Judicial Council of Georgia to regulate fees charged by court reporters, a subject also addressed by Ga. Code 24-3104, while Ga. Code 24-1304 deals not with court reporters, but with the taking of testimony by interrogatories. Third, the caption of Ga. Laws 1975, p. 852, specifically provides the Code section to be repealed is Ga. Code 24-3104, thus creating an inconsistency between the caption and the body of the text. That this rule of construction can be used to correct such clerical errors and that the criteria noted above is sufficient to demonstrate such a clerical error has been fully acknowledged by the Supreme Court of this State in Cairo Banking Co. v. Ponder, 131 Ga. 708, 63 S.E. 218 (1908), in which it was stated that: "We recognize the rule that where two acts of the legislature are inconsistent, the last passed contains the controlling expression of the legislative intent; and also the application of this doctrine to a single act where certain proposed amendments are first recited, and then it is declared that the law as amended shall be as follows, but in the statement of what the law shall be the act omits a portion of one of the amendments recited in the beginning. . . . [Cites omitted] This rule is one the design of which is to arrive at the legislative intent as to what the law shall be. It is not an arbitrary rule under which it must be held without variance or shadow of turning that the legislature intended to make a typographical or clerical error, the result of which would be to make nonsense of the section of the act, and not to carry out the legislative scheme but to destroy it, where it could be ascertained from the act itself what was the letter evidently intended to be used." Therefore, it is my unofficial opinion that the reference to Ga. Code 24-1304, which is found in Section 4 of Ga. Laws 1975, p. 852, is a typographical error and the Code section actually repealed is Ga. Code 24-3104, with Ga. Code 24-1304 remaining in effect. 371 U75-52 UNOFFICIAL OPINION U75-51 To: Senator, District 53 June 27, 1975 Re: A properly recorded automobile mortgage is superior to a mechanic's lien arising from subsequently provided services and materials. This is in response to your recent letter requesting my unofficial opinion as to the effect of a mechanic's lien under Ga. Laws 1975, p. 489, on recorded automobile mortgages. The relevant portion of that statute provides that a mechanic's lien " ... shall be superior to all liens except for taxes and such other liens and security interests of which the mechanic had actual or constructive notice before the work was done or material furnished." See Ga. Laws 1975, pp. 489, 490 (Ga. Code Ann. 68-423a). The proper filing or recording of the mortgage pursuant to the provisions of the Motor Vehicle Certificate of Title Act (Ga. Laws 1961, p. 68, as amended; Ga. Code Ann. 68-401a et seq.) provides constructive notice of the mortgage to any subsequent lienholder. See Gwinnett Sales and Services v. Trust Co. of Georgia, 130 Ga. App. 31 (1973); City Wholesale Co. v. Harper, 100 Ga. App. 151, 155 (1959). Therefore, it is my unofficial opinion that a properly recorded automobile mortgage is superior to a mechanic's lien arising from subsequently provided services or materials. UNOFFICIAL OPINION U75-52 To: Judge, Probate Court, Dougherty County June 27, 1975 Re: A probate judge may not appoint physicians who are not residents of the judge's county to a panel whose purpose, pursuant to Ga. Code 88-507.3, is to determine the mental competency of a person, unless it is made to appear that there are not two physicians who do reside in the county. This is in response to your recent letter in which you inquired as to whether two physicians, not residents of Dougherty County, could be lawfully appointed to a commission convened pursuant to the provisions of Ga. Code 49-604 (b) and 88-507.3, for the purpose of declaring a person mentally incompetent in order to authorize the appointment of a guardian for such person. Georgia Code Ann. 49-604 (b) (amended by Ga. Laws 1969, p. 505; 1973, p. 827), relating to the appointment of a guardian for a person U75-53 372 who is mentally incompetent, provides that a hearing into the person's competency must be held pursuant to the provisions of Ga. Code 88-507.3. The specific provision of this latter section which has given rise to your problem reads as follows: "(b) The court shall issue a commission directed to three reputable persons, two of whom shall be practicing physicians in good standing, said physicians to be residents of the county, if that number reside therein...." (Emphasis added.) Ga. Laws 1969, pp. 505, 532. As I understand your specific problem, there are more than two physicians practicing in Dougherty County but it is difficult to get these persons to sit on your panel. While I am aware of the impact of your problem, the law cited above is quite clear in holding that the physicians who participate on the panel must be residents of the county unless the county does not have that number of physicians residing therein. If Dougherty County has two or more physicians who reside within the county, this would clearly preclude your going outside the county to appoint other physicians. Therefore, it is my unofficial opinion that you may not appoint physicians residing outside the county to sit on a panel to determine whether a person is mentally incompetent, as long as there are at least two physicians who do reside within the county. UNOFFICIAL OPINION U75-53 To: Coweta County Attorney July 8, 1975 Re: Deeds executed in states allowing notaries public to use a rubber stamp in indelible ink, in lieu of a raised seal, qualify for recordation in Georgia under the provi~ion~ of Ga. Code 29-409. This is in response to your request for an opinion as to whether deeds executed in states allowing notaries public to use a rubber stamp in indelible ink, in lieu of a raised seal, qualify for recording in Georgia under the provisions of Ga. Code 29-409. The provisions of Ga. Code 29-409 set out the attestation requirements necessary for recordation of deeds executed outside the State of Georgia. One authorized means of attestation is "by a notary public ... with his seal of office attached." Ga. Code Ann. 29-409 (Ga. Laws 1895, p. 73; 1900, p. 52; 1912, p. 71; 1924, p. 58; 1951, p. 261; 1962, pp. 156, 432; 1963, pp. 188, 211). The purpose of requiring attestation is: 373 U75-54 " ... to bear witness to a fact; to affirm to be true; to make solemn declaration in words or writing to support a fact; to signify by subscription of his name that the signer has witnessed the execution of the particular instrument." Lindsey v. Realty Trust Co., 75 S.E.2d 322, 324 (Tex. Cir. App. 1934). One of the purposes of notarization is to"... give them [documents] credit and authenticity in foreign jurisdictions." Black's Law Dictionary, 1209 (Fourth Ed. 1968). The provisions of Ga. Code 29-409 were intended to give the greatest possible assurance that a conveyance is a true conveyance before allowing its recordation. A signature by a notary public accompanied by an official stamp in indelible ink lends authenticity and credit just as surely as does a signature accompanied by a seal. The use of the word "seal" is merely reflective of the standard mode of notarization at the time of the original enactment of this legislation in 1895. See Ga. Laws 1895, p. 73. Furthermore, Ga. Code 102-102 (6) states that: "A substantial compliance with any requirement of the Code, or laws amendatory thereof, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by the enactment." Ga. Code 102-102 (6). Where another state allows notaries public to use an official indelible ink stamp, rather than an official seal, such use would substantially comply with the requirements of Ga. Code 29-409. Therefore, it is my unofficial opinion that deeds executed in states allowing notaries public to use a rubber stamp in indelible ink, in lieu of a raised seal, qualify for recordation in Georgia under the provisions of Ga. Code 29-409. UNOFFICIAL OPINION U75-54 To: Judge, State Court of Dougherty County July 9, 1975 Re: A clause in an appearance bond whereby a defendant expressly does not waive a committal hearing is permissible. This is written in response to your recent letter requesting a determination of whether an appearance bond wherein the defendant expressly does not waive a committal hearing is proper. It appears that there is no Georgia law precisely on point. However, a bond payable to the Governor is a contract between the state and the obligors and contract principles apply. Williams v. City of Tifton, U75-55 374 3 Ga. App. 445 (1907). A committal hearing certainly is not contrary to public policy; in fact, it is a valuable right which the law gives to one accused of a crime. Whitfield v. State, 115 Ga. App. 231 (1967). Therefore, it appears clear that a clause in an appearance bond whereby the defendant expressly does not waive a committal hearing is permissible. UNOFFICIAL OPINION U75-55 To: City Attorney, City of Toccoa July 10, 1975 Re: A county may establish a special tax district for fire protection without the assent of a majority of the qualified voters of such district. This is in response to your recent letter wherein you ask whether a referendum is a prerequisite to the establishment by a county of a special tax district for fire protection. As you point out in your letter, your question is occasioned by an apparent conflict between two provisions of the Georgia Constitution. Article VII, Sec. IV, Par. III of the Georgia Constitution (Ga. Code Ann. 2-5703) permits establishment by a county of special tax districts for certain services, including fire protection, only under the authority of a general or local law. Implementation of acts establishing, or authorizing the establishing of, such districts is specifically " ... conditioned upon the assent of a majority of the qualified voters of any such proposed district voting in an election for that purpose...." A subsequent1 amendment to the Georgia Constitution, Art. XI, Sec. III, Par. I (Ga. Code Ann. 2-7901a), permits, inter alia, the establishment of special tax districts for certain services, including fire protection. This amendment provides that: "Any county, municipality, or any combination thereof, or the General Assembly, may provide for the creation of special districts within which [fire protection] ... shall be provided....'' There is no mention of a referendum requirement in Code 2-7901a. In construing different parts of the Constitution where a conflict is alleged, the following rule governs: "The different provisions of the Constitution should be harmonized if practicable. If an amendment duly adopted necessarily conflicts with some previous provision, the amendment, being the last expression of the sovereign will of the people, will prevail as an 1 Article VII, Sec. IV, Par. III (Ga. Code Ann. 2-5703), derives from Ga. Laws 1966 p. 1066, ratified November 8, 1966. Article XI, Sec. III, Par. I (Ga. Code Ann: 2-7901a), derives from Ga. Laws 1972, p. 1552, ratified November 7, 1972. 375 U75-56 implied modification pro tanto of the former provision." [Citations omitted.] Cason v. State of Georgia, 217 Ga. 339 (1961). With the above-stated rule of construction in mind, my reading of 2-5703 and 2-7901a reveals no conflict with respect to the question you have asked. Rather, 2-7901a is merely supplementary to 2-5703. That is to say, there now exist two methods whereby a county can establish a special tax district for fire protection. First, such a district may be established or authorized to be established by the General Assembly under the authority of either 2-5703 or 2-7901a. However, under this procedure compliance with the referendum provision of 2-5703 must be had. Second, such a district may be established solely by the action of the county under the authority of 2-7901a. In that event no referendum is required. In light of the foregoing, it is my unofficial opinion that a county may, by resolution, establish a special tax district for fire protection without the assent of a majority of the qualified voters of such district. UNOFFICIAL OPINION U75-56 To: District Attorney, Southern Judicial Circuit July 18, 1975 Re: In the absence of a warrant, a constable does not have authority to enforce the motor vehicle laws of this state. vVe have recently received from your office a request for advice as to whether a constable has the authority to enforce the motor vehicle laws of this state. Georgia Code Ann. 92A-509 (Ga. Laws 1937-38, Extra. Sess., pp. 558, 561) provides: "State Highway patrolmen and any officer of this State, or of any county or municipality thereof having authority to arrest for a criminal offense of the grade of misdemeanor shall have authority to prefer charges and bring offenders to trial under this Chapter: Provided, that officers of an incorporated municipality shall have no power to make arrests beyond the corporate limits of such municipality, unless such jurisdiction is given by local or other laws." In Op. Att'y Gen. 67-217 (unofficial), this office was requested to answer a similar question, i.e., whether a constable has the authority to enforce the traffic laws in their district. In that opinion we answered in the affirmative and stated that constables may enforce the traffic laws in their district. U75-57 376 However, in the interim since that opinion was issued, Ga. Laws 1969, pp. 875, 876 (Ga. Code 24-822), was added to Ga. Code Ch. 24-8. This section states: "Constables shall not exercise any power of arrest without a warrant for offenses arising from violations of traffic laws or laws regulating the use, ownership, and control of motor vehicles or for offenses committed upon the highways of this State." (Emphasis added.) Although a constable is a public officer, it would seem clear from reading this section that a constable no longer has the authority or power to arrest without a warrant for offenses arising from violations of the motor vehicle laws of this state. UNOFFICIAL OPINION U75-57 To: Deputy Commissioner, Department of Banking and Finance July 31, 1975 Re: The position of Deputy Commissioner of Banking and Finance is in the unclassified service of the State Merit System. This is in response to your recent letter requesting my unofficial opinion as to whether your position is in the classified or unclassified service of the State Merit System. The problem arises because of a conflict between two laws, the Financial Institutions Code of Georgia (Ga. Laws 1974, p. 705; Ga. Code Ann. 41A-101 et seq.) and the Merit System Law (Ga. Laws 1975, p. 79; Ga. Code Ann. Ch. 40-22). The Financial Institutions Code of Georgia, which was approved on March 25, 1974, places the deputy commissioner in the classified service of the State Merit System. See Ga. Code Ann. 41A-205. This had an effective date of April1, 1975. The Merit System Law, on the other hand, places the deputy commissioner in the unclassified service. See Ga. Laws 1975, pp. 79, 82; Op. Att'y Gen. 75-48. This latter Act was approved on March 13, 1975, and became effective when approved. When two statutes are in direct conflict, the one containing the last expression of the will of the General Assembly repeals, by implication, the conflicting provisions in the other statute. Clark v. Kaylor, 219 Ga. 256 (1963); Harrison v. Walker, 1 Ga. 32 (1846). The last expression of the legislative will is determined not by comparing the effective dates, but rather by comparing the dates that the Acts were approved by the Governor. See Gunn v. Balkcom, 228 Ga. 802, 803 (1972); County of Butts v. Strahan, 151 Ga. 417 (1921); Op. Att"y Gen. 72-101. Accordingly, the Merit System Law would be the last expression of the 377 U75-58 legislative will and would repeal any conflicting provisions in the Financial Institutions Code of Georgia. Therefore, it is my unofficial opinion that the Deputy Commissioner of Banking and Finance is in the unclassified service of the State Merit System. UNOFFICIAL OPINION U75-58 To: Acting Director, Judicial Council of Georgia August 7, 1975 Re: Georgia Laws 1975, p. 1331, which provides for a six-person jury in civil cases where the claim for damages is less than $5,000, would be applicable to any cause of action where damages are claimed and the sum does not exceed $5,000, irrespective of whether the claim is based in tort or otherwise. This is in response to your recent request for an opinion concerning the meaning of the phrase "claim for damages," as it is used in Ga. Code Ann. 59-703 and 59-704, as amended by Ga. Laws 1975, p. 1331, which provides for six-person juries in civil cases where the claim for damages is less than $5,000. Since Ga. Laws 1975, p. 1331, does not, on its face, limit the phrase "claim for damages" to actions sounding in tort, the inevitable conclusion is that the statute applies to any claim for relief in which relief in damages is requested where the claimed damages do not exceed $5,000, irrespective of the underlying basis for suit. This conclusion is reinforced by the statutory use of the term "in all civil actions." Compare Ga. Code Ann. 81A-101, 81A-102, 81A-108 (a) (Ga. Laws 1966, p. 609). I would caution you that rules of construction are to be applied by the courts, and this opinion can therefore only be construed as expressing my opinion as to the interpretation of the statute, and, of course, cannot be binding on any court called upon to make a judicial interpretation of this same statute. Further, I wish to call your attention to Art. VI, Sec. XVI, Par. I of the Constitution (Ga. Code Ann. 2-5101), which may well affect the validity of this statute. See First Fidelity Insurance Corp. v. Busbia, 128 Ga. App. 485 (1973). U75-59 378 UNOFFICIAL OPINION U75-59 To: Senator, District 32 August 7, 1975 Re: There are four (4) methods of expanding the boundaries of municipalities, three (3) of which are applicable to municipalities located in Cobb County, Georgia. The three (3) available in Cobb County are: (1) charter amendment by the General Assembly; (2) by ordinance upon application of 60 percent of the electors and owners of 60 percent of the acreage in the area to be annexed after notice and public hearing; and (3) by resolution when essential services are to be furnished to an unincorporated area, provided such resolution is approved by a referendum. This is in response to your recent request for information as to the various methods of annexation which a city located in Cobb County, Georgia could use in order to expand municipal limits. There are currently four methods of annexing property to a munici:.. pality. Only three of these are applicable to municipalities located in Cobb County, Georgia. The first method, which is not applicable to municipalities located in Cobb County, is set forth in Ga. Code Ann. 69-902 (Ga. Laws 1962, p. 119), which provides that any municipality may annex contiguous property upon the written and signed application of all the owners of all the land, except public streets, roads, highways and rights of way, in the area proposed to be annexed. However, this method is limited to municipalities which are located in counties having a population of less than 100,000 persons according to the United States census of 1960 or any such future census. Cobb County, according to the 1960 and 1970 census, had a population of more than 100,000, and thus this method of annexation is not available. The second method of annexation is found in Ga. Code Ann. 69-904 (Ga. Laws 1966, p. 409), which provides that a municipality may annex unincorporated areas which are contiguous to the existing limits of the municipality upon the written and signed application of not less than 60 percent of the electors, resident in the area to be annexed, and of the owners of not less than 60 percent of the land, by acreage, included in such area. I have attached hereto Op. Att'y Gen. 67-236 which expounds on the requirements of this method of annexation. Briefly, after obtaining the requisite signatures, the governing body is required to authenticate the application, hold a hearing on the question of annexation, and, if after the public hearing the governing body determines that the annexation would be in the best interest of the residents and property owners of the area proposed to be annexed and of the citizens 379 U75-59 of the municipality, the area is annexed by ordinance. For your information, "contiguous area" is defined by Ga. Code Ann. 69-908 as an area which coincides with the existing municipal boundary on at least one-eighth of the area's aggregate external boundary. Note that this means the external boundary of the area which is proposed to be annexed, not the existing boundary of the municipality. Since there are no population limits on this method of annexation, it is evident that municipalities in Cobb County can utilize this method of annexation. A third mode of annexation is found in Ga. Code Ann. 69-913 et seq. (Ga. Laws 1970, p. 426, as amended). These sections essentially state that a municipal body may extend the municipal corporate limits to include any area which is adjacent to the existing municipal corporate limits if certain requirements are met. The requirements are that the area to be annexed is: (1) adjacent to the existing municipal limits, with at least one-eighth of the aggregate external boundaries of the area to be annexed coinciding with the existing municipal boundary; (2) not included within the boundary of any other incorporated municipality or county; and (3) not receiving either water service or sewer service, or both, or fire protection or police protection from any other unit of government other than the municipality proposing annexation. In addition to these requirements, the law also requires that the area to be annexed must be developed for urban purposes or must be an area which lies between the existing municipal boundary and an area developed for urban purposes. vVhen the existence of these requirements is established, the municipal body is authorized to pass a resolution stating its intent to annex and it must then hold a public hearing on the merits of that resolution. After the hearing, the municipality must hold a referendum not less than 30 days nor more than 60 days after the date of the public hearing, in which all registered voters who live in the area proposed to be annexed may vote. If the majority of those voting favor the annexation, the area is then annexed to the municipality. This method of annexation also does not have population limits and would be available to municipalities located in Cobb County. This then provides two of the methods which are available to the municipalities in Cobb County for annexation of additional property. Other than by these, the only other method by which the municipal boundaries can be altered is by a special Act of the General Assembly, amending the charter of the municipal corporation. While the General Assembly has delegated to the municipalities both the right and method to annex property, see Ga. Code Ch. 69-9 (Ga. Laws 1946, p. 130; 1949, p. 1049; 1962, p. 119; 1966, p. 409; as amended), and the right to have home rule, see Ga. Code Ann. Ch. 69-10 (Ga. Laws 1951, p. 116, as amended), language in both of those Chapters clearly indicate that the General Assembly has reserved authority to expand U75-60 380 municipal limits by local legislation. To illustrate, Ga. Code Ann. 69-1016 provides that: "No municipality shall be incorporated, dissolved, merged or consolidated with any other municipality or municipal boundaries changed, except by local Act of the General Assembly or by such methods as may be provided by general law." (Emphasis added.) Ga. Laws 1965, p. 298. Thus, Ga. Code Ann. 69-1016 clearly anticipates that the boundaries of municipalities may be changed either through an Act of the General Assembly or through the other general statutes, referred to above. A second section containing similar language is Ga. Code Ann. 69-921, which provides that: "It is declared to be the intention of the General Assembly in enacting this law to provide a method for annexing to municipalities areas which meet the legislative standards established by section 69-915. This law is not intended to affect or restrict the present authority of the General Assembly to legislate regarding the annexation of any area contiguous to any municipality in this State, nor to limit in any way the authority of the General Assembly to provide alternative methods for extending municipal boundaries. ..." (Emphasis added.) Ga. Laws 1970, pp. 426, 434. Therefore, there is evidence of the intent on the part of the General Assembly to retain authority to alter municipal boundaries through local Acts and this would provide an additional way of expanding municipal limits in Cobb County. UNOFFICIAL OPINION U75-60 To: District Attorney, Cordele Judicial Circuit August 15, 1975 Re: Participation in advanced training in the Senior Reserve Officers' Training Corps prior to entry into the active service of the U.S. Army is not creditable service under the District Attorneys Retirement Fund of Georgia. You have requested an opinion as to the proper amount of creditable military service to which you are entitled under the District Attorneys Retirement Fund of Georgia (hereinafter "fund"). Ga. Laws 1949, p. 780 et seq., as amended; Ga. Code Ann. Ch. 24-29A, as amended. As you have stated the facts in your letter, you enlisted in the U. S. 381 U75-60 Army on December 15, 1942, but were permitted at that time to continue in attendance as a student at the University of Georgia, on the condition that you continued advanced participation in the Senior Reserve Officers' Training Corps (ROTC). The next summer, specifically on June 21, 1943, you began serving on active duty in the U. S. Army and you continued such service until your honorable discharge on April 14, 1946. The fund has already informed you that your military service from June 21, 1943 through April 14, 1946 is creditable. You are now concerned with your "service" from December 15, 1942 until June 21, 1943, during which time you were permitted to remain a student at the university. Under the Act establishing the fund, a full year of credit is given for each year or fraction of a year of service in the armed forces, provided such service was occasioned by World War I, World War II or the Korean Conflict, and provided such service is properly purchased by the member DA. Ga. Laws 1949, p. 780 et seq., as amended; Ga. Code Ann. 24-2909a. A year's service has been interpreted to mean service during a continuous 12-month period rather than service during an exact calendar year. See, e.g., Ops. Att'y Gen. 72-14, U72-91, U72-59. The difference this calculation makes in your individual situation is obvious. If the proper creditable service time is from June 21, 1943 to April 14, 1946, you served in the army for almost two years and 10 months, which would give you three years of credit. Otherwise, if the proper creditable period is from December 15, 1942 to April 14, 1946, you served for approximately three years and four months, which would give you four years of military service credit in the fund. As discussed previously, military credit under the fund is given member DA's for "service in the armed forces of the United States." (Ga. Code Ann. 24-2909a).1 The crucial question in your situation is whether your attendance at the University of Georgia following your enlistment, while taking advanced ROTC from December 15, 1942 to June 21, 1943, is to be considered "service in the armed forces of the United States." I understand from you that this period of time was considered by the army as service for the purpose of longevity pay. In answering your question by this opinion, I must seek to determine how our courts would reasonably construe the language of the applicable law in light of the facts as you have outlined them to me. Courts must construe Acts of the General Assembly with a view toward ascertaining the true legislative intent from a reading of the Act as a 1 The recent Act reopening eligibility to claim and pay for military service in the fund is found at Ga. Laws 1975, pp. 1632-7 (amending Ga. Code Ann. 24-2902a, 24-2903a.l, 24-2904a, 24-2909a, 24-2910a). This Act also allows appointment as a district attorney emeritus when aDA has served into his 19th year (some time more than 18 years) of creditable service. This changes the previous requirement that aDA serve 19 full years. See, generally, Ops. Att'y Gen. 68-520, 68-349, 68-53. U75-61 382 whole, and then endeavor to carry that intent into effect. Ga. Code 102-102 (9); Erwin v. Moore, 15 Ga. 361 (1854). In the construction of the federal laws pertaining to rights and responsibilities in the armed forces of the United States, the courts have drawn a distinction between active and inactive military service. See, e.g., Vason v. U.S., 369 F. Supp. 1202, aff'd 491 F.2d 1271 (5th Cir. 1974). That distinction is definitionally manifest under the armed forces provisions contained in 10 U.S.C.A. 101. In Leighton v. U. S., 159 Ct.Cl. 118 (1962), the court of claims determined that inactive service in the armed forces which is creditable for military longevity pay purposes is not necessarily creditable as service in the armed forces for other purposes. See also, 10 U.S.C.A. 971. More specifically pertinent to the question you have raised, I find the discussion in Allison v. U. S., 426 F.2d 1324 (6th Cir. 1970), to be persuasive. There, Allison, enrolled in a state university and participating in advanced training in the Senior Reserve Officers' Training Corps, died in an accident while in required attendance at summer camp. The administrator of Allison's estate subsequently filed an action seeking to recover under a servicemen's group life insurance policy. The district court, affirmed by the Sixth Circuit Court of Appeals, held that individuals enrolled in ROTC are not considered in the regular service of the armed forces. The court pointed out that students participating in ROTC are not subject to the Uniform Code of Military Justice under 10 U.S.C.A. 802. After analyzing the statutory and judicial authorities germane to your question, I do not think it reasonable that the Georgia General Assembly intended to include advanced ROTC training within the ambit of "service in the armed forces of the United States" for purposes of creditable service under the fund. Accordingly, it is my unofficial opinion that such training prior to your actual entry into active duty in the U.S. Army is not creditable service as contemplated by the Act. I regret any personal inconvenience this opinion may cause you, but I must interpret the law as I see it and as I believe a court of law would hold. UNOFFICIAL OPINION U75-61 To: Senator, District 25 August 20, 1975 Re: A sheriff would be personally liable in the event of a judgment entered against him in excess of the amount of his official bond. This is in response to your request for an opinion as to whether a sheriff would be personally liable in the event of a judgment rendered against him in excess of the amount of his official bond. 383 U75-62 Georgia Code Ann. 24-2805 provides for bonds of sheriffs as follows: "They shall also give a bond, with at least two sureties, in the sum of $10,000,1 which amount may be increased in any county by local Act, conditioned for the faithful performance of their duties as sheriffs, by themselves, their deputies, and their jailers and upon the terms required by law." 1933 Code, amended by Ga. Laws 1965, p. 448; 1975, p. 922. Georgia Code Ch. 89-4 sets out the general requirements and procedures for bonds of public officers and employees. Included therein is Ga. Code (1933) 89-423, which deals with the liability of a public officer when the bond is exhausted and provides in pertinent part: "When the penalty is exhausted, the officer himself shall still be liable...." Hence, if a sheriff commits an act which gives rise to liability, the plaintiff in seeking recovery would not be restricted to the amount of the sheriff's bond. See Cantrell v. National Surety Co., 46 Ga. App. 202 (1932). Therefore, it is my unofficial opinion that a sheriff would be personally liable in the event of a judgment entered against him in excess of the amount of his official bond. In closing, it should also be noted that if a sheriff's surety company satisfies a judgment entered against the sheriff, the surety company could institute suit against the sheriff for indemnification thereby rendering the sheriff personally liable for the entire judgment. UNOFFICIAL OPINION U75-62 To: Representative, District 32 August 25, 1975 Re: Landowners ma.y withdraw their consent to any annexation petition at any time through the date of the public hearing on such petition and if these withdrawals result in a reduction of the percentage of the land represented below 60 percent of the total area of land to be annexed, the petition is thereby invalidated and the municipality into which the land was to be annexed has no authority to continue with the annexation. This is in response to your recent letter in which you requested my assistance and advice in answering three questions pertaining to annexation. All three questions involve the method of annexation authorized by Ga. Code Ann. 69-904 et seq. (Ga. Laws 1966, p. 409), often referred to as the 60 percent method of annexation, and your questions, briefly summarized, were as follows: 1 Ga. Laws 1975, p. 922, raised the amount of the bond from $10,000 to $25,000. U75-62 384 1. If, pursuant to Ga. Code Ann. 69-906, a property owner requests that his name be removed from a petition requesting annexation of an area pursuant to Ga. Code Ann. 69-904, and the removal of the property owner's name would reduce the percentage of land owned by the signers of the petition to less than 60 percent of the area to be annexed, is the annexation petition thereby rendered null and void? 2. If a petition can be rendered invalid by the occurrence of the event outlined in question 1, may the local governing authority allow the names of additional property owners to be added to the petition so as to bring the amount of land owned by the signers over the 60 percent level again, thus curing the invalidity which resulted from the removal of the names of some of the original signers? 3. If names can both be deleted and added to the petition after the validity of the petition has been initially determined under Ga. Code Ann. 69-905, at what point is the final determination made concerning the validity of the petition? In response, it is my unofficial opinion that a property owner can have his name removed from the petition at any time through the date of the hearing and thus render the petition invalid, and thereby deprive the municipality of its authority to consider the proposed J;J,nnexation. It is also my unofficial opinion that while names can be removed from the petition, additional names may not be added. The answer to the third question is dictated by the answers to the first two, and is that the petition becomes irrevocably valid at the end of the day on which the public hearing is held, if sufficient signatures remain on the petition. I have not reached this conclusion without a great deal of difficulty and I will set forth both the reasons for my decision and certain reservations which I have. Georgia Code Ann. 69-904 provides that the governing body of a municipality may annex to the existing corporate limits unincorporated areas which are contiguous to the existing corporate limits upon the written and signed application of not less than 60 percent of the electors resident in the area included in any such application and of the owners of not less than 60 percent of the land area, by acreage, included in such application. Georgia Code Ann. 69-905 provides that whenever the governing body of any municipality shall receive such an application, it shall, after investigation, determine whether such application complies with the requirements of law, and, if it does, the municipal governing body is required to proceed with a public hearing on the application and, ultimately, the adoption or refusal of an ordinance annexing the 385 U75-62 property into the municipality. Georgia Code Ann. 69-905 further provides that if the body determines that the application does not comply with the pertinent provisions of the law, the governing body must notify the persons presenting the application, in writing, stating where the application is deficient. Georgia Code Ann. 69-906 provides that when an application has been determined to be valid, the municipal governing body is required to hold a public hearing not less than 15 nor more than 45 days from that date. It is in this section that the language which has given rise to your questions is found. The last sentence of the second paragraph of that section provides that: "Provided, however, that any property owner may withdraw his consent at any time through the date of the public hearing." No similar statement is found with regard to the electors resident in the area. As I understood your first question, you have a situation where if any landowner withdraws, the remaining acreage represented by the applicants will not equal 60 percent of the land area, by acreage, which is to be annexed to the municipality. You inquired as to whether such a withdrawal, which would drop the percentage of land represented below the required level, would invalidate the entire petition. It is indisputable that without a specific statutory grant of authority, no person who signs a petition, or who consents to his name being inserted on a petition, may withdraw his name after such a petition has caused jurisdiction to vest in any municipality pursuant to which it may exercise any of the power thus granted to it. The leading case on this point is City of Dawson v. Bolton, 166 Ga. 232, 143 S.E. 119 (1928). In City of Dawson v. Bolton, supra, the court considered the following situation. The charter of the City of Dawson, Ga. Laws 1927, p. 1025, provided that if the owners of 51 percent of the abutting frontage on particular streets wished to have those streets paved, and furnished to their city council a written petition requesting that the paving be done, the municipal authority would thereby be clothed with the discretion to pave those streets and to do so either at the expense of the abutting property owners or at the expense of the city. In City of Dawson v. Bolton, supra, the petition had been executed by 51 percent of the landowners, but thereafter certain of the persons signing the petition wished to withdraw their consent, and, at the time the city made its determination, only the owners of 40 percent of the abutting frontage wished to have the street in question paved. Suit was brought to enjoin the paving of the street, on the grounds that the petition did not bear the signatures of the owners of the requisite percentage of street frontage. The court, in speaking of the property owners who originally signed the petition, said: U75-62 386 "We think that upon principle they are estopped to destroy the instrumentality which they themselves assisted in creating. Were the rule otherwise, there would frequently be instances where at considerable trouble and expense the municipal authorities of cities and towns in this State would initiate improvements looking to the paving of streets under petitions that might be well-nigh unanimous, and, when they assembled to finally pass upon the question, would find that so many had withdrawn after the preliminary investigations which should have been made by council as to the feasibility and probable cost of the grading and paving, if there were no other objections, that they would find themselves and their acts placed in a ridiculous position.... Therefore it is our opinion that he cannot withdraw, have his name stricken, and the petition which was obstensibly extended to the council in good faith be destroyed, because, forsooth, he has perhaps learned something since he signed the petition which he did not know at the time of the signing, but a fact in regard to which could have been as well ascertained had he declined to sign until his information was more complete." Id. at 237. Therefore, the language of City of Dawson v. Bolton, supra, would clearly foreclose, in the absence of specific statutory language to the contrary, the removal of a name from the petition, after it had been submitted to the governing authority of the municipality and validated by them. However, as noted above, the language of Ga. Code Ann. 69-906 does contain language not found in the charter of the City of Dawson, and which necessarily affects the impact of that case on the matter at hand. The effect of the language is ascertained through the application of several statutory rules of construction. The initial rule is found in Ga. Code 102-102 (9), which states: "In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil and the remedy...." Judicial application of this rule has resulted in several corollaries. First, every word of a statute must be given due weight and construction. See Falligant v. Barrow, 133 Ga. 87, 65 S.E. 149 (1909). Thus, the proviso in question cannot be simply ignored, and the dictates of the City of Dawson v. Bolton, supra, followed. Second, the courts are prohibited from providing judicial interpretations of statutes when none is needed in giving effect to plain and unambiguous legislative language. See Aldridge v. Federal Land Bank of Columbia, 203 Ga. 285, 46 S.E.2d 578 (1948). Finally, it is clear that the impact of a court decision, which does not achieve constitutional proportions, may later 387 U75-62 be vitiated by an Act of the General Assembly. See Brown v. Brown, 184 Ga. 827, 193 S.E. 754 (1937). Thus, the conclusion is inescapable that some weight and meaning must be given to the proviso in question, and if the meaning of the language of that provision is clear and unambiguous, the court must apply that meaning without interpretation, notwithstanding the earlier decision which clearly held that signatures on petitions could not be withdrawn. That the language of the clause in question is clear and unambiguous, and that, therefore, its meaning is readily ascertainable, is undeniable. The language specifically allows the signer of the petition to withdraw his "consent," which has been defined as an affirmative act of will (see Brown v. Rome Foundry Co., 5 Ga. App. 142, 62 S.E. 720 (1908)), and the only affirmative act which is involved in the matter at hand is the signing of the petition which instituted the move toward annexation. Thus, the language authorizes any landowner to withdraw his name from the petition through the date of the public hearing, and, if in doing so the requisite percentages no longer exist, the petition is no longer valid. The answer to the second question, that is, whether additional landowners may be added to the petition in order to raise the percentage of land represented above the 60 percent level again, is controlled by the answer to the first question and by the provisions of Ga. Code Ann. 69-905. It is readily ascertainable from the answer of the first question that once the percentage of land represented by the signers of the petition drops below 60 percent, the petition becomes invalid. The only provision relating to the invalidity of any petition is found in Ga. Code Ann. 69-905, which provides, in pertinent part, that: "If it is determined that such application does not comply with this law, the governing body shall notify in writing the persons presenting such application 8tating wherein the application is deficient." No provision is made for adding additional names to the petition to correct the deficiency caused by the withdrawal of the names of the petitioners and thus there is no right to do so. However, as a practical matter, this may be easily cured. It would seem that if the application were refused because of an inadequate number of signatures, the petition could be returned to the persons presenting the petition and that they could cure this defect by simply having additional signatures included in the petition and resubmitting the petition to the governing authority. The only effect which would result from this procedure is that instead of using the original date of the validation of the petition to determine when the public hearing would have to be U75-63 388 held, a new date would be established, that being the date the new petition is validated. The final question, I think, has been answered by the answers to the first two questions. Since Ga. Code Ann. 69-906 clearly provides that property owners may withdraw their consent at any time through the date of the public hearing, using the same rules of construction cited above, it is apparent that a property owner may invalidate the procedure at any time before, during or after the hearing as long as it is done before or on the date of the public hearing. Thus, notwithstanding the dangers acknowledged in the language of the Supreme Court's decision in City of Dawson v. Bolton, supra, it is quite conceivable that, in a close matter, a landowner could, at the eleventh hour, totally invalidate the whole procedure. As I pointed out initially, I do have some reservations concerning the results which I have reached particularly since the pertinent parts of the Code and their constitutionality have never been construed by a court. UNOFFICIAL OPINION U75-63 To: Member, Georgia House of Representatives August 25, 1975 Re: Ga. Laws 1975, p. 370, providing for change in the legal rate of interest on loans, does not repeal Ga. Code 57-118 or 57-119. This is in reply to your request for an unofficial opinion as to whether Ga. Laws 1975, p. 370, which, inter alia, amended Ga. Code 57-101, also had the effect of repealing Ga. Code 57-118 and 57-119 (Ga. Laws 1961, p. 300; 1969, p. 80). Section 1 of Ga. Laws 1975, p. 370, amended Ga. Code Ann. 57-101 so as to increase the maximum allowable interest rate on loans from eight percent per annum to nine percent per annum. Georgia Code 57-118 and 57-119 were preexisting exceptions to Ga. Code 57-101. Your concern as to whether these exceptions were repealed is Section 5 of Ga. Laws 1975, p. 370, which provides that "all laws and parts of laws in conflict with this Act are hereby repealed.'' It is my unofficial opinion that Section 5 of Ga. Laws 1975, p. 370, does not operate, expressly or by implication, to repeal the preexisting exceptions to Ga. Code 57-101. The language of Section .5 cannot constitutionally operate as an express repeal. Ga. Const., Art. III, Sec. VII, Par. XVI (Ga. Code Ann. 2-1916). 389 U75-64 Since nothing in the 1975 amendment to Ga. Code 57-101 remotely suggests that the General Assembly intended to displace the preexisting exceptions to that provision, Section 5 of Ga. Laws 1975, p. 370, does not operate as an implied repeal of those exceptions. See Thomas v. Board of Commissioners of Chattooga County, 196 Ga. 10 (1943). It is, therefore, my unofficial opinion that Ga. Laws 1975, p. 370, did not repeal Ga. Code 57-118 or 57-119. UNOFFICIAL OPINION U75-64 To: City Attorney August 28, 1975 Re: Under the particular annexation ordinances adopted by the City of Perry, in which one boundary of the area to be annexed is a public street, such public street is not itself included within the corporate boundaries unless the annexation ordinance specifically includes the street within such boundaries and the city police are not authorized to patrol or to make cases on any such street which lies outside the municipal boundary. This is in response to your recent request for my opinion on three questions. The questions, briefly stated, were: (1) When an annexation ordinance described one boundary of an area to be annexed as being a public street, is the street itself annexed into the corporate limits? (2) If a public street is used as the boundary of an area to be annexed into the city, but the street itself is not so annexed, can the city police patrol and work accidents on that street? (3) If an area, which lies on the opposite side of a street from an existing municipal boundary, is annexed into the city, but the street itself is not so annexed, may the city police patrol and work accidents in that portion of the street which separates the two parts of the city? As you correctly note in your letter, those annexation ordinances adopted prior to the enactment of Ga. Laws 1969, p. 504 (Ga. Code Ann. 69-902), could not include streets and highways within the city limits of Perry, notwithstanding any specific language in the ordinance to that effect, if the city did not obtain the approval of the owner of the highway right-of-way. See City of Adel v. Georgia Power Co., 224 Ga. 232, 161 S.E.2d 297 (1968). However, with the adoption of Ga. Laws 1969, p. 504 (Ga. Code Ann. 69-902), it is no longer necessary for cities to obtain the consent of the owners of the highway right-of-way in order to annex public U75-64 390 roads into the city. Therefore, after 1969, the question of whether a highway is annexed into the corporate limits of a municipality turns solely on the language of the ordinance affecting the annexation. I have reviewed and read all of your city's ordinances through which the city annexed property using, as one boundary of that property, a public street. In each case, the ordinance simply refers to the area as being bounded by the public highway and in no instance does the ordinance specifically include the highway within the corporate limits. Therefore, the question of whether the highway is included in the corporate boundaries becomes a question of interpretation of the ordinances. When dealing with conveyances of real property, a situation which, at first blush, seems analogous to the matter at hand, it is the generally accepted rule that when the description of the property designates a public highway as being one of the boundaries, the boundary is actually taken to the center or middle thread of the road. See Silvey v. McCool, 86 Ga. 1, 12 S.E. 175 (1890). However, it is also a statutory rule of construction that the court is required to look for the intention of the body adopting the legislation and that intent must be effectuated if possible. See Ga. Code Ann. 102-102 (9). Further, when an interpretation of the words of an enactment would lead to an absurdity, that constitutes sufficient authority for the interpreter to depart from that interpretation. See Gillis v. Gillis, 96 Ga. 1, 23 S.E. 107 (1895). If the rule which is used in determining the extent of conveyances of real property were used in the matter at hand, and the boundary of the municipality extended to the center of the road, the result would be an absurdity. Since, as indicated below, municipalities can only patrol public highways which are located within the municipal boundary, this interpretation would provide that the city police could patrol one-half of the street, but not the other. It is obvious that such a conclusion would not be warranted. Therefore, the basic question is to which side of the road the boundary extends, that is, the boundary either excludes or includes the entire street. It is my opinion that the ordinances which you presently have exclude the street and this opinion is based on the following reasoning. It is a principal rule of construction that legislative intent is to be arrived at by a construction of the statute or ordinance in its entirety. See City of Macon v. Georgia Power Co., 171 Ga. 40, 155 S.E. 34 (1930). The particular statute which authorizes the mode of annexation used by your city, Ga. Code Ann. 69-902, clearly provides that: ''Authority is hereby granted to the governing bodies of the several incorporated municipalities of this State to annex to the existing corporate limits thereof unincorporated areas contiguous to the existing corporate limits at the time of such annexation upon the 391 U75-64 written and signed applications of all of the owners of all of the land, except the owners of any public street, road, highway, or right-of-way, proposed to be annexed containing a complete description of the lands to be annexed.... When such application is acted upon by the municipal authorities and the land is, by ordinance, annexed to the municipality, a complete survey by a competent surveyor, not necessarily a county surveyor, shall be filed as a part of the ordinance annexing the territory and a copy certified to by the clerk or similar official of the municipality shall be filed with the Secretary of State of the State of Georgia." (Emphasis added.) Thus, it appears clear from a reading of this statute that every annexation ordinance must have, as a part of that ordinance, a survey of the property annexed. I have reviewed the surveys which are on file with the Secretary of State's office with each annexation ordinance adopted by the City of Perry since 1969, and each of those surveys clearly shows that the municipal boundary stops at the highway right-of-way and does not include the highway. Therefore, as I have stated, based on the above-cited rules of construction, it is my opinion that the highways used as boundaries in your annexation ordinances are not included within the municipality. Your second question involved whether the city police could patrol these highways which are used as a boundary, but not included within the municipal limits. Georgia Code Ann. 92A-509 provides the answer to this question and reads as follows: "State Highway patrolmen and any officer of this State, or of any county or municipality thereof having authority to arrest for a criminal offense of the grade of misdemeanor shall have authority to prefer charges and bring offenders to trial under this Chapter: Provided, that officers of an incorporated municipality shall have no power to make arrests beyond the corporate limits of such municipality, unless such jurisdiction is given by local or other laws." Ga. Laws 1937-38, Extra. Sess., p. 558. I have been unable to ascertain that this authority to patrol or arrest persons beyond the municipal limits has been given to your city police. Therefore, in the absence of such a law, the city police may not make cases or work accidents on the highways which have been used as municipal boundaries. Your third question involves whether the city police may make cases and investigate accidents on highways in areas where the municipal boundaries include land on both sides of the highway but not the highway itself. The answer to this question is found in Ga. Code Ann. 95A-503 (g) which provides, in pertinent part, that: U75-65 392 "A municipality may regulate and control the use of the public roads on its municipal street system and on portions of the county road systems extending within the corporate limits of the municipality...." Ga. Laws 1973, pp. 947, 1000. This statute clearly provides the authority for the city police to patrol and to exercise jurisdiction over the traffic on these streets. UNOFFICIAL OPINION U75-65 To: Judge of the Probate Court, Webster County August 29, 1975 Re: A judge of the probate court has no authority to issue a bench warrant; however, he may issue an arrest warrant for persons who do not appear to answer a traffic offense citation issued to them. You have requested my opinion on the question of whether a judge of the probate court has the authority to issue a bench warrant for a person who does not appear to answer a traffic offense citation issued to him. For the following reasons, it is my unofficial opinion that a judge of the probate court may not issue a bench warrant, but he may issue an arrest warrant for a person who does not appear to answer a citation issued to him. A bench warrant is a warrant issued by a judge for the arrest of a person accused of a crime by a grand jury. See Ga. Code (1933) 27-801. A judge of the probate court thus cannot issue such a warrant for one's failure to answer a traffic citation. However, Ga. Code Ann. 92A-502 provides in a pertinent part: "The court of ordinary [probate court] shall have jurisdiction to issue warrants ... in all misdemeanor cases arising under Chapters 92A-1 through 92A-5, and other traffic laws of the State...." Ga. Laws 1937-38, Extra. Sess., p. 558. In regard to the jurisdiction of the probate court over offenses relating to traffic on public roads of this State, Ga. Code Ann. 92A-511 reads in part: "The ordinaries [judges of the probate court] shall have exclusive jurisdiction of all cases originating in the county, outside of municipal corporations. . . ." Ga. Laws 1937-38, Extra. Sess., p. 558. The above-quoted sections clearly indicate that a judge of the probate court has the power, within the jurisdiction set forth above, to 393 U75-66 issue an arrest warrant for one's failure to answer a traffic violation citation. The next question that must be answered is whether the abovecited authority of the probate judge extends to nonresidents of the county in which the judge resides. Georgia Code (1933) 27-108 provides as follows: "A warrant for arrest may be issued in any county, though the crime was committed in another; and a warrant once issued may be executed in any county, without being backed or indorsed by a judicial officer upon its being carried from one county to the other." Thus, a probate judge has the authority to issue a warrant for the arrest of a resident of another county of this state. See Burrow v. Southern Railway Co., 139 Ga. 733 (2) (1913). It is, therefore, my unofficial opinion that a judge of the probate court does not have authority to issue a bench warrant, but he does have authority to issue an arrest warrant for a person who does not appear to answer a traffic violation citation issued to him, regardless of whether he resides in or out of the respective county. UNOFFICIAL OPINION U75-66 To: City Attorney August 29, 1975 Re: Landowners wishing to withdraw their signatures from petitions requesting that a municipality annex a certain area may do so by timely notifying the governing authorities of the municipality in any manner reasonably calculated to inform those authorities of their decision to do so. This is in response to your request for our opinion on four questions, all of which concern the application of Ga. Code Ann. 69-904 et seq. (Ga. Laws 1966, p. 409), dealing with annexation of property by a municipality. Briefly summarized, you asked the following four questions: (1) Under the provisions of Ga. Code Ann. 69-906, may an elector withdraw his consent from an annexation petition at any time through the date of the public hearing? (2) Does the provision of Ga. Code Ann. 69-906, which allows any landowner to withdraw his consent at any time through the date of the hearing, authorize such landowner to withdraw his consent after the public hearing has been held? U75-66 394 (3) May additional petitions from those who favor annexation be received and validated after the original petitions have been validated and the process of annexation has begun? (4) By what method or methods may a landowner exercise his prerogative to withdraw his name from a petition requesting that the governing authority of a municipality consider the annexation of a particular area? I have attached hereto an unofficial opinion of this office dated August 25, 1975, Op. Att'y Gen. U75-62, which in essence addresses the issues which you have raised in your first three questions. I believe that if you will peruse that opinion you will find that we have answered each of those questions. The remaining question concerns the method by which a person may withdraw his signature from a petition after the petition has been presented to the governing authority of the municipality. You indicate in your letter that presently you require any person wishing to withdraw his signature to personally appear at your office and, after properly identifying himself, the person may then withdraw his name from the petition. You further state that you do not allow withdrawals by letter because you do not know the identity of the person writing the letter. while I understand the principle of your procedure, I do not agree that the procedure is correct. Nothing in the existing statute establishes the formality with which the petition requesting annexation must be prepared; that is, nothing in the law that requires that the original petition be notarized or witnessed or that the persons signing the petition in any way identify themselves to the governing authority of the municipality to whom the petition is to be presented. While there are no cases directly in point in Georgia, it is generally accepted in other jurisdictions, with regard to such petitions, that no greater degree of formality is required to withdraw a signature than is required to place a signature on the petition in the first instance. See Halgren v. Welling, 91 Utah 16, 63 Pac.2d 550 (1936); Westhues v. Sullivan, 283 Mo. 546, 224 s.w. 327 (1920). Therefore, it would be my opinion that no greater formality would be required to withdraw a signature than is required to have the signature initially placed on the petition. I might point out that while I agree that it might be possible for persons to submit letters of withdrawal over other person's names, I would also point out that precisely the same problem exists with respect to the submission of the initial petition. Just as you have no way of knowing whether the letter of withdrawal is from the person whose name appears on it, neither do you have any method of determining whether the signature of any particular person which appears on the petition is genuine. I would 395 U75-67 suggest that the obvious solution to this problem, and I recognize that it is a problem, would be an amendment to the law which would require that both the original petitions and the letters of withdrawal be notarized or that the identity of the signers be established in some other satisfactory manner. UNOFFICIAL OPINION U75-67 To: City Attorney, City of Cordele August 29, 1975 Re: Under the facts as given and under the charter of the City of Cordele, a city commissioner may not claim as "necessary expenses" the cost incurred in traveling from an out-of-town place of employment to Cordele to attend commission meetings. This is in response to your request for my unofficial opinion as to whether a city commissioner who normally works out of town in another city is entitled to reimbursement for his cost in traveling to and from Cordele to attend regular or special commission meetings. The Cordele charter provides that: "[A] commissioner may be reimbursed for actual and necessary expenses incurred in the performance of his official duties as provided by ordinance of the commission. . . ." Ga. Laws 1969, pp. 3806, 3825. Although there are no Georgia decisions directly on point, it is well established in other jurisdictions that the right of an official to claim expenses incurred by him in the performance of his official duties must be established statutorily, either expressly or by reasonable implication. See Austin v. Barrett, 41 Ariz. 138, 16 P.2d 12 (1932); Maricopa County v. Biaett, 21 Ariz. App. 286, 518 P.2d 1003 (1974); State v. Sims, 145 vV. Va. 289, 115 S.E.2d 140 (1960). See also, Mitchell v. City of Thomasville, 50 Ga. App. 304 (1934). Courts in other jurisdictions have construed the language "actual and necessary expenses" in determining if certain claimed expenses by officials are necessary. Although there are very few cases construing this language, the decisions in point have taken a restrictive view as to claims such as the one involved here. In the case of Austin v. Barrett, supra, it was held that a county supervisor could not be reimbursed for the costs incurred in traveling between his home and the county seat to attend board meetings. In its opinion the Arizona Supreme Court stated: "The universal rule is that he who accepts public office takes it, U75-68 396 not only with the rights, but with the burdens attached thereto by law, and he may not complain because the burden is greater than that imposed on other officers." 16 P.2d 12, 14 (1932). This opinion further stated: "When supervisors are elected they know their respective places of residence and that they will be required to attend at the county seat to discharge their official duties. They are not obligated to seek for the office, nor to accept it if tendered them, and such being the case, if they accept it they take it with the necessary inconveniences and inequalities attaching thereto, and may not be heard to say that the law is unjust merely because it results in unequal compensation for their services." 16 P.2d 12, 14 (1932). As stated above, other jurisdictions have been similarly restrictive in finding travel expenses not to be "necessary expenses." See Hammond v. Harris County, 243 S.W. 1002 (Tex. Ct. of Civ. App. 1922); State v. Sims, 145 W.Va. 289, 115 S.E.2d 140 (1960). It appears that the same reasoning is applicable to your question. Therefore, it is my unofficial opinion, that under the facts as given in your opinion and the quoted provision of the charter of the City of Cordele, when a city commissioner incurs expenses in traveling from his out of town place of employment to Cordele to perform his official dutues, he is not entitled to reimbursement by the city. This opinion is restricted solely to the facts as related in your letter and the quoted provision in the charter of the City of Cordele. UNOFFICIAL OPINION U75-68 To: Judge, Dougherty Superior Court August 29, 1975 Re: Ga. Code 24-2617 permits nonresident superior court judges to act in chambers in other than their own circuit with respect to matters which may be heard and determined in vacation in chambers as long as originating superior court is not in session. This is in reply to your request for my unofficial opinion as to your authority with respect to matters pending in the Pataula Judicial Circuit during the absence of the judge of that circuit during illness. Georgia Code (1933) 24-2617 provides, in pertinent part, as follows: "The authority granted in the preceding section to each judge in his own circuit may be exercised by any judge of another circuit whenever the resident judge ... is indisposed.... The authority, when thus exercised, should show the grounds." 397 U75-68 The preceding section to which reference is made is Ga. Code (1933) 24-2616. The Supreme Court has held that a superior court judge acting under Ga. Code 24-2617 on matters within Ga. Code 24~2616 arising in cases pending in another circuit which may be and are heard and determined in vacation in chambers may so act in his own circuit. Glover v. Morris, 122 Ga. 768, 772 (1905); Galloway v. Mitchell County Electric Corp., 190 Ga. 428 (1940). However, the authority granted by Ga. Code 24-2617 extends only to those matters encompassed within Ga. Code 24-2616. See Burge v. Mangum, 134 Ga. 307 (1910). All other matters must be determined by a judge properly presiding for another by virtue of some other authority. This authority is derived from an order by the Governor under Ga. Code (1933) 24-2610 or from the authority of superior court judges to alternate. See Pendergrass v. Duke, 144 Ga. 839 (1916); Burge v. Mangum, 134 Ga. 307 (1910). In these matters, the requirement that the matter be heard and determined within the circuit and county in which the case was pending would be applicable. See Glover v. Morris, 122 Ga. 768, 772 (1905); Pruitt v. State, 123 Ga. App. 659 (1971). The doctrine established by Glover v. Morris, 122 Ga. 768, 772 (1905), relates to the authority granted to superior court judges under Ga. Code (1933) 24-2616.4: "to perform any and all other acts required of them at chambers." Under Glover, if the resident superior court judge could hear and determine a matter in vacation, in chambers, then the nonresident judge to whom application is properly made under Ga. Code 24-2617 may hear and determine the matter in chambers in his own circuit, as long as the matter is not presented to him at a time when the superior court of the originating county is in session. Galloway v. Mitchell County Electric Corp., 190 Ga. 428 (1940). In order to determine the scope of this authority in a particular case, it is proper to examine the provisions of Ga. Code 24-2616 and the provisions specially applicable to the particular matter which is presented for determination. See e.g., Glover v. Morris, supra, where Ga. Code (1933) 62-107 permitted determination of the issues in vacation. It is also pertinent to examine the provisions of the Civil Practice Act, Ga. Laws 1966, p. 609 et seq., as amended. With respect to judgments by default, Section 55 of the Civil Practice Act provides that when a case is in default, " ... the plaintiff ... shall be entitled to verdict and judgment by default, in open court or in chambers ... without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages...." Ga. Code Ann. 81A-155. U75-69 398 When a plaintiff is entitled to a judgment by default in chambers without further proceedings, it is my unofficial opinion that a judge acting under the authority granted by Ga. Code 24-2617 may sign the judgment in his own circuit as long as the superior court of the originating county is not in session. Further, Section 40 of the Civil Practice Act provides: "The judges of any court of record may, on reasonable notice to the parties, at any time, either in term or vacation, and at chambers, in any county in the circuit, hear and determine by interlocutory or final judgment any matter or issue, where a jury trial is not required or has been waived: Provided, however, nothing herein shall authorize the trial of any divorce case by consent or otherwise until after the last day upon which defensive pleadings were required by law to be filed therein." Ga. Code Ann. 81A-140 (b). Under Glover v. Morris, supra, Ga. Code 24-2617 when read in light of Ga. Code 24-2616 and Ga. Code Ann. 81A-140 (b) confers authority on the nonresident superior court judge in chambers in his own circuit to hear and determine by interlocutory or final judgment, in accordance with Ga. Code Ann. 81A-140 (b), any matter in a case from the originating superior court which arises while the originating superior court is in vacation. UNOFFICIAL OPINION U75-69 To: State Senator, District 19 September 17, 1975 Re: State law does not preclude a local board of education from requiring its teachers to work more than eight hours per day. This is in response to your letter of September 5, 1975, requesting an opinion as to whether teachers can be required to work more than eight hours per day. Although Ga. Code Ann. 32-658 (a) (Ga. Laws 1974, pp. 1045, 1089) declares in part that: "The State Board of Education shall define ... the length of school day....", it seems clear that this statutory reference relates to the length of the day during which students are actually being taught and not to the traditional duties required of teachers above and beyond actual classroom teaching, e.g., faculty meetings, grading and preparation of of examinations, etc. I am unaware of any other law of the State of 399 U75-70 Georgia which limits the number of hours a local board of education may require of the teachers it employs. I note that the teacher contract form used by many, if not most, local school systems provides in part: "The teacher agrees to ... obey such reasonable rules and regulations as may from time to time be put in force by appropriate lawful action either by the employer or of the state board of education." It is arguable, of course, that rules and regulations pertaining to a teacher's duties and working hours could become so extreme as to cause a court to conclude that it was not "reasonable." As to what point in excess of eight hours per day this might occur, I would not venture to speculate. UNOFFICIAL OPINION U75-70 To: Representative, House District 70 September 17, 1975 Re: Neither a grand jury nor a superior court judge is authorized to employ a fraud investigator; a grand jury may appoint a citizen committee to report upon conditions in county-funded public assistance programs. This is in response to your recent request for my unofficial opinion on certain questions arising from a grand jury presentment. Specifically, you wish to know the following: Question 1: If a grand jury, in its presentment, requests a superior court judge to employ a person to investigate fraud in the welfare and food stamp programs, would it be within the judge's authority to do so? I know of no Georgia law which would authorize a judge to appoint an investigator in a criminal action. Moreover, the Georgia Supreme Court has held that a judge, having made a similar appointment, was without authority to include compensation for such services as a contingent expense of the superior court. Freeney v. Geoghegan, 177 Ga. 142, 169 S.E. 882 (1933) (accountant in embezzlement case); Maxwell v. Cumming, 58 Ga. 384 (1877) (detective to look for escaped prisoner). The rule seems to be well established that a claim for payment of services not authorized by law, although approved by the trial judge, may not be paid from the public treasury. Walden v. Nichols, 201 Ga. 568, 572, 40 S.E.2d 644, 648 (1946). Question 2: May the grand jury itself employ such an investigator? The grand jury may, when they shall deem it necessary, appoint any one or more citizens of the county to inspect the offices and papers U75-70 400 of county officials and to make a report of the finances and conditions of those offices to the grand jury at the succeeding term of the superior court. Ga. Code (1933) 59-310. This citizen committee has the power to compel the attendance of witnesses, hear evidence in regard to fraud, nonperformance of official duty, and the improper disbursement of county funds. Ga. Code (1933) 59-311. The compensation for this citizen committee may be determined and authorized by the judge as a contingent expense of the superior court. Chatham County v. Gaudry, 120 Ga. 121, 47 S.E. 634 (1904). However, it has been held that neither the grand jury nor the court may authorize the expenditure of funds to hire expert or clerical personnel to assist the citizen committee. Watkins v. Tift, 177 Ga. 640, 170 S.E. 918 (1933); McLarty v. Fulton County, 52 Ga. App. 445, 183 S.E. 646 (1935). Moreover, it must be noted that Ga. Code 59-310 authorizes the appointment of citizen committees only to investigate and report upon county affairs, especially the disbursement of county funds. The aid to families with dependent children, supplemental security income, medicaid and food stamp programs are cooperative federal-state programs, and county funds are not used to pay benefits to eligible recipients. See 42 U.S.C. 601 et seq.; 42 U.S.C. 1381 et seq.; 42 U.S.C. 1396 et seq.; and 7 U.S.C. 2011 et seq.; and Ga. Code Ann. 99-2916 (amended by Ga. Laws 1970, p. 451). Therefore, it would not seem that Ga. Code 59-310 would authorize a grand jury to appoint a citizen committee to investigate benefits paid under such federal-state programs. However, many counties do run general public assistance programs with county funds and, insofar as this may be the case, Ga. Code 59-310 would authorize the grand jury to appoint a citizen committee to inspect and report upon conditions in those particular programs. Of course, specific accusations of obtaining public assistance and food stamps by fraud, made a crime by Ga. Code Ann. 99-9904 (amended by Ga. Laws 1973, p. 183), would continue to be a proper :matter for presentment or indictment by the grand jury in the traditional manner. As an alternative procedure, I might suggest that referrals of specific instances of suspected fraud in the public assistance and food stamp programs :may be made to Mr. T. M. Parham, Commissioner of the Department of Human Resources. Mr. Parham's staff looks into such fraud allegations and, where appropriate, refers cases to the proper law enforcement officials. It is my understanding that their policy is one of cooperation with grand juries to the fullest extent possible. In conclusion, it is my unofficial opinion that, whereas neither a grand jury nor a superior court judge is authorized to employ a fraud investigator, a grand jury may appoint a citizen committee to report upon conditions in county-funded public assistance programs. 401 U75-72 UNOFFICIAL OPINION U75-71 To: Senator, District 25 September 18, 1975 Re: State employee credit problems. This is in response to your recent letter requesting an unofficial opinion as to whether the Governor could issue an executive order establishing a general procedure that could be used by the executive department in handling employee credit problems. In 1970, the General Assembly attempted to repeal a prior Act which prohibited garnishment of state employees' salaries without the consent of the state. See Ga. Laws 1970, pp. 724, 728. However, in Mayson v. Davis, 227 Ga. 399 (1971), the Supreme Court held the attempted repeal invalid since the repealing Act did not contain a description of the Act to be repealed. Hence, salaries of state employees are currently not subject to garnishment without the consent of the head of the department by which they are employed. Ga. Code Ann. 46-801 (Ga. Laws 1945, p. 438). Presumably, the Governor has the power to suggest to department heads appropriate standards relevant to the question of whether they should consent to garnishment, but the ultimate determination statutorily resides in the head of the department. Moreover, Ga. Laws 1975, pp. 79, 90, provides in pertinent part: "No employee of any department who is included under this Act or hereafter included under its authority and who is subject to the rules and regulations prescribed by the State Merit System may be dismissed from said department or otherwise adversely affected as to compensation or employment status except for good cause as shall be specified in the rules and regulations of the State Merit System...." Ga. Code Ann. 40-2207. Therefore, any disciplinary action taken against a classified State Merit System employee would have to be based on "cause" as set out in the rules of the State Personnel Board. An executive order of the Governor could not alter that statutory requirement. UNOFFICIAL OPINION U75-72 To: Judge, State Court of DeKalb County September 19, 1975 Re: Under the provisions of Ga. Laws 1975, pp. 1291, 1293, either personal service of a summons of garnishment or in some instances constructive service by publication must be made on a defendant before the court can distribute property received from a garnishee. U75-72 402 This is in response to your letter of August 21, 1975. In your inquiry you requested my unofficial opinion concerning Ga. Laws 1975, pp. 1291, 1293 (Ga. Code Ann. 46-105.1), which provides for the issuing of a summons of garnishment to the defendants in a garnishment proceeding. As you know, the United States Supreme Court recently held that Georgia's garnishment statute violated the due process clause of the Fourteenth Amendment. See North Georgia Finishing, Inc. v. DiChem, Inc., 419 U.S. 601 (1975). As a result of this decision, Title 46 of the Georgia Code has been extensively amended by the General Assembly. One such amendment is contained at Ga. Laws 1975, pp. 1291, 1293. It appears that the purpose behind the requirements of this section was to make certain that, whenever possible, a defendant has actual notice before subjecting his property to garnishment. This is a departure from previous requirements in Georgia and most other jurisdictions. The rule had been that it was not necessary to serve notice of ancillary garnishment proceedings on a defendant, particularly where he has appeared or been served with process in the principal proceeding. See 38 C.J.S. Garnishment, 162; Ga. Code Ann. 46-105 (amended by Ga. Laws 1962, p. 717; 1964, p. 220). Georgia Laws 1975, pp. 1291, 1293, provides for personal service of summons of garnishment upon the defendant in a garnishment proceeding in accordance with the provisions of the general rule under the Civil Practice Act (Ga. Laws 1966, p. 609 et seq.). The Georgia Civil Practice Act contemplates personal service in most instances, but in certain cases authorizes service by publication. See Ga. Code Ann. 81A-104 (e) (1) (i) and (ii). Under the latter subsection, service may be made by publication: "In any action which relates to, or the subject of which is, real or personal property in this State in which any defendant, corporate or otherwise, has or claims a lien or interest, actual or contingent, therein, or in which the relief demanded consists wholly or in part of excluding such defendant from any interest therein, and the said defendant resides out of the State or has departed from the State, or cannot after due diligence be found within the State, or conceals himself to avoid the service of summons, ..." Ga. Code Ann. 81A-104 (e) (1) (ii). Garnishment in Georgia has been described as a quasi-in-rem action. See United States Rubber Co. v. Poage, 297 F.2d 670 (5th Cir. 1962). See also, Baxter & Co. v. Andrews, 131 Ga. 120 (1908). Consequently, where a defendant is out of the state or cannot be found or served as provided in Ga. Code Ann. 81A-104 (e) (1) (ii), service can be effected by publication. 403 U75-73 Therefore, it is my unofficial opinion that Ga. Laws 1975, pp. 1291, 1293, requires either personal service of a summons of garnishment or in certain instances constructive service by publication on a defendant before the court can distribute property received from a garnishee. UNOFFICIAL OPINION U75-73 To: City Attorney September 19, 1975 Re: Municipal police officers may go beyond city limits in hot-pursuit situations and make arrests. In your letter of August 29, 1975, you requested my opinion concerning when and under what circumstances is a city policeman empowered to go beyond the city limits and make arrests. You also inquired concerning whether a city policeman can go beyond the city limits to make arrests for speeding, driving under the influence of alcohol, misdemeanors, and felonies. There are certain limitations placed on the authority of municipal policemen to arrest outside of the municipality. Ga. Code Ann. 92A-509 (Ga. Laws 1937-38, Extra. Sess., pp. 558, 561) provides " ... that officers of an incorporated municipality shall have no power to make arrests beyond the corporate limits of such municipality, unless such jurisdiction is given by local or other laws." This section applies to misdemeanors and traffic violations. "However, under common law even a municipal officer has the power of arrest outside his city limits when a 'hot pursuit' situation exists." City of Winterville v. Strickland, 127 Ga. App. 716, 719, 194 S.E.2d 623 (1972). The hotpursuit exception appears to be applicable to any traffic violation, whether speeding or driving under the influence of alcohol, or to any misdemeanor. See City of Winterville v. Strickland, supra; Shirley v. City of College Park, 102 Ga. App. 10 (2), 115 S.E.2d 469 (1960). There does not appear to be a felony counterpart to Ga. Code Ann. 92A-509; however, by implication city policemen have the same arrest powers for felonies outside their appointed territories. See City of Winterville v. Strickland, supra, at 719 (dealing with implied arrest powers of county officers). Under the common law doctrine of hot pursuit, a city policeman may pursue a felon or suspected felon, with or without a warrant, and arrest him in another jurisdiction. See City of Winterville v. Strickland, supra. U75-74 404 UNOFFICIAL OPINION U75-74 To: Judge Emeritus, Stone Mountain Judicial Circuit September 24, 1975 Re: Several sections of Title 89 of the Georgia Code of 1933 appear to require that a judge of the superior courts emeritus retain his legal residence in Georgia. The Georgia General Assembly, in 1945, created the Superior Court Judges Retirement Fund of Georgia and the office of superior court judge emeritus. Ga. Laws 1945, p. 362 et seq., as amended; Ga. Code Ann. Ch. 24-26A. After becoming eligible under the provisions of that Act, a superior court judge may apply and be appointed by the Governor as an emeritus judge of the superior courts. By recent letter, you request my opinion on whether such an emeritus judge may reside in a state other than Georgia and continue to function as an emeritus judge and receive the benefits provided by the Superior Court Judges Emeritus Act. An emeritus judge occupies a public office as well as a retirement status. See Ga. Code Ann. 24-2601a, 24-2605a; Op. Att'y Gen. 73-75. An occupant of that public office is appointed by the Governor for life and may be called upon to serve and preside as judge of the superior court when the "regular" judge for some reason is unable to serve, or in other instances. Ga. Code Ann. 24-2605a, 24-2621a, 24-2622a. Additionally, emeritus judges have other duties of a consultative nature provided by statute. Ga. Code Ann. 24-2606a, 24-2607a. The office of emeritus judge carries with it a salary in the amount of two-thirds of the salary of superior court judges as paid at the time of the emeritus appointment or as later increased by the General Assembly. Ga. Code Ann. 24-2610a; Op. Att'y Gen. 73-75. I have found no provision of the Act creating the office of judge of the superior courts emeritus which would either authorize or prohibit the residency of an emeritus judge in a foreign state. However, I have found other authority on this question which, in my judgment, is pertinent and persuasive. Section 89-105 of the Code of Georgia of 1933 mandates that all officers of the State of Georgia shall reside herein, at such places as are designated by law. Ga. Laws 1851-2, p. 77. The Judges Emeritus Act, as stated previously, does not designate a specific place of residence for emeritus judges. However, I read this statute to require public officers of the State of Georgia to reside in Georgia, and then, more restrictively, in a specific city, county, judicial circuit, etc., if otherwise provided by law.1 1 Such as the requirement that the Governor reside at the seat of governmen(during his term of office. Ga. Code (1933) 40-107. 405 U75-74 Section 89-501 of the 1933 Code provides in relevant part: "Offices, how vacated.-All offices in the State shall be vacated- * * * "5. Nonresidence.-By the incumbent ceasing to be a resident of the State, or of the county, circuit, or district for which he was elected. In the first case the office shall be vacated immediately; in the latter cases, from the time the fact is judicially ascertained." This Code section was examined by the Georgia Supreme Court in Smith v. Ouzts, 214 Ga. 144 (1958). There, the court pointed out that in the case of a state officer ceasing to be a resident of Georgia, the office held by such officer immediately becomes vacant. In the case of a county, circuit or district officer, the vacancy does not occur until the fact of nonresidency is judicially determined. Smith v. Ouzts, at p. 149. Additionally, 89-101 states as follows: "Persons ineligible; de facto officers.-The following persons are held and deemed ineligible to hold any civil office, and the existence of any of the following states of facts shall be a sufficient reason for vacating any office held by such person, . . . viz: "1. Nonresidents and minors.-Persons who are not citizens of this State, and persons under the age of 21 years." Ga. Laws 1931, p. 126 et seq.; Ga. Code 89-101 (1). Your question, as posed in your letter, asks whether an emeritus judge may cease to be a resident of Georgia and reside in a foreign state, continuing to function as an emeritus judge and receiving the benefits accorded that office and status. It is not clear whether you mean permanent residence (domicile) or temporary residence. Neither do the referenced statutes specify clearly which meaning they portend. Accordingly, the distinction between domicile and residence may become pertinent. The words residence and domicile are frequently used carelessly to convey the same idea. Avery v. Bower, 170 Ga. 202 (1929). However, residence and domicile are not synonymous and convertible terms. A person may have several residences, but only one place of domicile. Commercial Bank of Crawford v. Pharr, 75 Ga. App. 364 (1947). A domicile is only acquired through a concurrence of actual, physical residence and the intention to remain. Worsham v. Ligon, 144 Ga. 707 (1915); Mayo v. Ivan Allen-Marshall Co., 51 Ga. App. 250 (1935). As a general rule, the meaning of the word residence is determined by examining the context and purpose of the statute in which it is used. Kemp v. Kemp, 16 N.Y.S. 2d 26, 172 Misc. 738 (1939); In re Jones, 341 Pa. 329, 19 A.2d 280 (1941). Also, domicile is often defined or re- U75-75 406 ferred to as legal residence. Mitchell v. Kenney, 242 Ala. 196, 5 So. 2d 788 (1942); Nunn v. Hamilton, 233 Ky. 633, 26 S.,V.2d 526 (1930); Phillips v. South Carolina Tax Comm'n, 195 S.C. 472, 12 S.E.2d 13 (1940). The context and purpose of the Act establishing the office of superior court judge emeritus appears clearly to be that of extending retirement benefits in the form of a salary to deserving and eligible superior court judges who have given years of faithful public service. See, e.g., Ga. Code Ann. 24-2604a, 24-2610a. It is equally clear that the Act's coexistent purpose is that of establishing an office which is available to serve the people of Georgia through the function of presiding and serving as superior court judges in a Georgia judicial circuit when needed. See, e.g., Ga. Code Ann. 24-2605a, 24-2621a, 24-2622a. The use of emeritus judges who have served as superior court judges and are learned and experienced in the administration of justice to perform this public service is a logical and reasonable approach by the General Assembly. Based on the foregoing rationale and authorities, I am persuaded that the referenced statutes in Title 89 of the 1933 Georgia Code most probably refer to legal residence or domicile. Accordingly, it is my opinion that several sections of Title 89 of the Georgia Code of 1933 appear to require that a judge of the superior courts emeritus retain his legal residence in Georgia. It appears manifestly obvious, however, that these statutes would not prohibit temporary residences in foreign states. Vacations, trips, excursions or even the establishment of a temporary vacation home would seem permissible, so long as the public official's legal residence remains in Georgia. Of course, as you know, this is an unofficial opinion of the Attorney General. The authority for the ultimate construction of these statutes lies with the Georgia judiciary. UNOFFICIAL OPINION U75-75 To: Judge of the Superior Court, Atlantic Judicial Circuit of Georgia September 30, 1975 Re: (1) A statute forbidding the county comm1sswners from employing anyone who is related as close as second cousin to a county commissioner does not prohibit the hiring of the widow of a deceased brother of one of the commissioners. (2) There is no violation of Ga. Code Ann. 89-103, which prohibits one from holding two county offices at the same time, when a person serves simultaneously as a member of the county board of equalization and as a member of the board of voter registration. (3) The power of a sheriff to appoint 407 U75-75 deputies flows from the general law and cannot be diminished by local legislation. (4) It is not proper for a county tax commissioner to store tax records in his home. This is in response to your letter of August 26, 1975, in which you requested my opinion as to several questions posed by the foreman of the grand jury for the August term of the Long Superior Court. You asked, first, if a statute forbidding the county commissioners from employing anyone who is related as close as a second cousin to a county commissioner prohibited the hiring of the widow of a deceased brother of one of the commissioners. Second, you wanted to know if it was illegal for the same person to serve as both a member of the county board of equalization and a member of the board of voter registrars. Your third question concerned whether the county commissioners are authorized to expend funds to pay four deputy sheriffs and a clerk when the special Act only authorizes three deputies and a clerk. Finally, you asked if it is illegal for the tax commissioner, who is presently ill, to remove the tax records from the courthouse and keep them at his residence. 1. In answer to your first question, it is my opinion that Ga. Laws 1921, pp. 525, 528, which forbids the county commissioners from hiring anyone who is related as close as second cousin to a county commissioner, does not prohibit the hiring of the widow of a deceased brother of one of the commissioners. Ga. Laws 1921, pp. 525, 528, makes no specific mention of relation by marriage. However, in this situation, any relationship has been severed by the death of the commissioner's brother. For these reasons, it does not appear that it is illegal for the county commissioners to hire as their clerk the wife of a deceased man whose brother is presently serving as a county commissioner. 2. Your second question concerned the legality of a person serving simultaneously as a member of the county board of equalization and as a member of the board of voter registrars. Under the provisions of Ga. Code (1933) 89-103, a person cannot hold two county offices at the same time. Consequently, your question is dependent upon whether the two positions in question are "county offices." It is my opinion that they are not for the reasons stated in prior opinions of this office, which are enclosed for your information. See Ops. Att'y Gen. 68-30, 68-223, U73-83. 3. Your third question involved the power of the county commissioners to authorize funds for four deputy sheriffs when Ga. Laws 1973, pp. 3039, 3040, provides for only three deputies. A similar question has been the subject of an unofficial opinion by this office. See Op. Att'y Gen. U74-47. In that opinion it was concluded that the power of a sheriff to appoint additional deputies flows from the general law and cannot be diminished by local legislation. It was also the U75-76 408 opinion of this office at that time that a statute similar to Ga. Laws 1973, pp. 3039, 3040, did not limit the authority of the commissioners to compensate additional deputy sheriffs. ..f. In answer to your fourth question, it is my opinion that it would not be proper for the tax commissioner to keep the tax records at his residence. Various provisions of law clearly suggest that the tax commissioner is required to maintain an office and to maintain public records pertaining to his office at that place. Ga. Code (1933) 23-518, 89-601, 91-702; Ga. Code Ann. 40-2701 (Ga. Laws 1959, p. 88); Ga. Code Ann. 92-4611 (3) (Ga. Laws 1962, p. 533); Ga. Code Ann. 92-4901 (5) (Ga. Laws 1962, p. 532); Allen v. Thomas, 225 Ga. 650 (1969). A reasonable construction of these sections precludes the tax commissioner from removing public records to his home. UNOFFICIAL OPINION U75-76 To: Senator, Eighth District October 2, 1975 Re: The trade-in credit provision of the Sales and Use Tax Act does not apply to automobile dealers who "trade" with themselves. You have requested my opinion on a question raised by a retail dealer in motor vehicles, who has inquired as to whether or not he is entitled to the trade-in credit of Ga. Laws 1951, pp. 360, 374 (Ga. Code Ann. 92-3420a), in computing the sales and use taxes he owes the state. The facts are that every year the dealer withdraws from his inventory a truck which is used by his service department. At the end of the year he withdraws another new truck for the same purpose and puts the used truck on his used car lot for sale. He feels he should be allowed the benefit of the trade-in provision just like individuals who make purchases from him and trade in used cars on their purchases. The trade-in provision and the corresponding regulations of the Revenue Commissioner provide that where used articles are taken in trade as a credit or part payment on the sale of new or used articles, sales tax is due only on the net difference between the article being purchased and the article being traded in. However, in order for there to be a "trade" there must be an exchange, and an exchange requires parting with, giving, or transferring something in consideration of something received as an equivalent. See Webster's Third New Int'l Diet. (1961) (definitions of "trade" and "exchange"). Thus, a person cannot "trade" with himself under the Sales and Use Tax Act, because he is neither receiving nor giving up anything; both title and possession of each article remain in one person. See also Ga. Laws 1951, pp. 360, 363, as amended (Ga. Code Ann. 92-3403aB). 409 U75-77 Therefore, it is my unofficial opinion that the trade-in provision of the Sales and Use Tax Act does not apply in the situation you have described, and the dealer must continue to pay the tax upon the cost price of the trucks he withdraws from his inventory, see Ga. Laws 1951, pp. 360, 371, as amended (Ga. Code Ann. 92-3410a (a)). This conclusion is fortified by the rule of strict construction in cases involving tax statutes conferring a benefit. See Seaboard Coast Line R.R. v. Blackmon, 129 Ga. App. 342, 344 (1973). UNOFFICIAL OPINION U75-77 To: Hall County Attorney October 6, 1975 Re: Hall County firemen and deputy sheriffs are not prohibited from simultaneously belonging to both the Hall County retirement system and either the Peace Officers Annuity and Benefit Fund or the Georgia Firemen's Pension Fund. Your letter informs that certain firemen and deputy sheriffs in Hall County desire to participate in the county's retirement program. These firemen and deputy sheriffs may also wish to join either the Peace Officers Annuity and Benefit Fund (POAB) or the Georgia Firemen's Pension Fund (FPF). You have requested my opinion on whether these firemen and deputy sheriffs are prohibited by state law from participating in two different retirement programs each of which is wholly or partially funded by public monies. Recently, by telephone, you have informed me that the Board of Commissioners of Hall County has decided to participate in a statewide retirement plan provided for county employees by the Georgia Association of County Commissioners. Hall County, then, is not establishing its own retirement plan, but is participating in this state-wide retirement program which is optional for each county. Certain Georgia statutes prohibit simultaneous membership in more than one specific retirement system. For example, members of the Employees Retirement System of Georgia may not simultaneously be members of the Teachers Retirement System of Georgia. Ga. Laws 1949, p. 138 et seq., as amended; Ga. Code Ann. 40-2501 (4). However, I have carefully studied the statutes governing the POAB and the FPF, and I can find no provision prohibiting membership in either of them concomitantly with membership in another retirement program such as Hall County's.1 See Ga. Laws 1950, p. 50 et seq., and 1 Moreover, the POAB Act contains an express authorization that its members may belong to other retirement systems. Ga. Laws 1956, pp. 280, 292; Ga. Code Ann. 78-920. The FPF Act does not have this same express permission, but I do not construe the absence of such express statutory permission to create a prohibition. U75-78 410 Ga. Laws 1955, p. 339 et seq., both as amended; Ga. Code Ann. Chs. 78-9 and 78-10, both as amended. Additionally, the method of funding each of the considered retirement programs utHizes a distinct and different source of public funds. This obviates any problem or question as to dual payment by the public for the retirement benefits of one individual. See Ga. Code Ann. 78-909, as amended, and 78-1006. Therefore, based on the foregoing, it is my unofficial opinion that Hall County firemen and deputy sheriffs are not prohibited by state law from simultaneously belonging to both the Hall County retirement system and either the Peace Officers Annuity and Benefit Fund or the Georgia Firemen's Pension Fund. Of course, membership in any of these retirement systems may only be extended if the individual is definitionally eligible for such membership. As an aside, I feel I should point out one potential problem for your consideration. The county home rule amendment to the Georgia Constitution (Ga. Const., Art. XV, Sec. II-A, Par. I (c); Ga. Code Ann. 2-8402 (c)) appears to prohibit the inclusion of deputy sheriffs in a county retirement program instituted by a county board of commissioners. For your ready reference, I have attached a copy of Op. Att'y Gen. U75-37 discussing that problem. UNOFFICIAL OPINION U75-78 To: Director, Georgia Crime Information Center October 6, 1975 Re: The Georgia Records Act, as amended in 1975, permits GCIC to allow private researchers access to criminal history record information and to impose such conditions on that access as GCIC deems appropriate. The General Assembly at its 1975 Session amended the Georgia Records Act (Ga. Laws 1972, p. 1267) to provide for use of confidential, classified or restricted records for research purposes by qualified private researchers. Georgia Records Act, Section 13, Ga. Laws 1975, pp. 675, 680 (Ga. Code Ann. 40-813c). You have asked my opinion concerning the applicability of this provision to the Georgia Crime Information Center (hereinafter GCIC) and criminal history record information. It is my opinion that the Georgia Records Act, when read together with the Act creating the Georgia Crime Information Center, Ga. Laws 1973, p. 1301 (Ga. Code Ann. Ch. 92A-30) (hereinafter GCIC Act), allows GCIC to disseminate criminal history record information to private researchers under such conditions as GCIC deems appropriate to prevent invasions of privacy. The GCIC Act directs GCIC to collect and store certain criminal 411 U75-78 history record information and to disseminate it to criminal justice agencies. GCIC Act, Section 3. In addition, the GCIC Act mandates dissemination of statistical information in two instances. First, GCIC is to compile statistical information for the Governor, General Assembly, and other government agencies for the purpose of planning, development and execution of crime reduction programs. GCIC Act, Section 3 (g). Secondly, GCIC is to report crime statistics to governmental entities and the public no less frequently than annually. GCIC Act, Section 3 (h). In both of these cases, the information must be in such form that individuals cannot be identified. There is no mention in the GCIC Act of use of GCIC records by private researchers. The GCIC Act does not, however, prohibit all disseminations of criminal history record information which are not specifically provided for in the Act. Rather, it states: "Nothing in this Act shall be construed so as to give authority to any person, agency or corporation or other legal entity to invade the privacy of any citizen as defined by the General Assembly or courts other than to the extent provided in this Act." GCIC Act, Section 6. The GCIC Act thus clearly contemplates that other Acts will define the rights of individuals to have GCIC records concerning them remain private. The 1975 amendment to the Georgia Records Act, Section 13 (a), provides that: "Records that are by law confidential, classified or restricted may be used for research purposes by private researchers providing that (1) the researcher is qualified to perform such research; (2) the research topic is designed to produce a study that would be of potential benefit to the State or its citizens; and (3) the researcher will agree in writing to protect the confidentiality of the information contained in the records. When the purpose of the confidentiality is to protect the rights of privacy of any person or persons who are named in the records the researcher must agree, in either his notes or in his finished study or in any manner, not to refer to said person in such a way that they can be identified." Ga. Code Ann. 40-813c (a). This Section of the Georgia Records Act explicitly refers to precautions that must be taken in order to preserve the rights of privacy of persons whose records are being used. This appears to be exactly the type of legislative definition of a citizen's right to privacy which is contemplated by the GCIC Act. It is my opinion, therefore, that GCIC is authorized to disseminate criminal history record information to U75-79 412 private researchers pursuant to the provisions of Section 13 of the Georgia Records Act. I hasten to point out, however, that the provisions of Section 13 of the Georgia Records Act are permissive, not mandatory. That Section does not require GCIC to provide any information to private researchers. Such dissemination is only permitted. All such disseminations must be in accordance with the limitations and restrictions set forth in the Georgia Records Act, but there is nothing to prevent GCIC from imposing such additional limitations and restrictions as it deems appropriate. In determining whether to impose additional limitations and restrictions, GCIC should be guided by the applicable Rules and Regulations of the United States Department of Justice, 28 CFR Ch. 20, and the rules and regulations of the GCIC Advisory Council when such are promulgated. UNOFFICIAL OPINION U75-79 To: Representative, District 42 October 8, 1975 Re: A discussion of the respective responsibilities of private landowners and local governments with regard to streams which cause flooding problems. You have written expressing your concern about flooding problems in Fulton County and requesting an opinion on several legal questions presented by these flooding problems. You have inquired as to theresponsibility of property owners adjacent to a stream to keep the stream clear and flowing. You have also asked whether the city and county governments have any legal responsibility to keep the streams open. Your final question refers to the right of the city or county to access over private property in order to clear, dredge or channel a problem stream. In discussing the rights and responsibilities in regard to these strea:ms, I am assuming that the streams in question are nonnavigable within the meaning of Georgia law. Ga. Code (1933) 85-1303. If any of the streams in question is navigable, then different considerations would apply. Georgia law regarding streams generally follows the doctrine of riparian rights, as set forth in the statutes and in case law. R. C. Kates, Georgia Water Law, p. 15 et seq. The owner of a nonnavigable stream has no right to use the stream in such a way as to interfere unreasonably with the rights of the downstream riparian owners. Ga. Code (1933) 85-1301, 105-1407. Further, and more relevant to your questions, the obstruction of a stream so as to impede its flow and to 413 U75-79 cause it to overflow on another's land is a tortious interference with the rights of the upstream riparian owners. Ga. Code 105-1407. The bed of a nonnavigable stream belongs to the owner of the adjacent land; if the stream is the dividing land between two property owners, each is presumed to own to the thread or center of the main current. Ga. Code (1933) 85-1302. If the adjoining owners are responsible for an obstruction of the stream, they may be jointly or severally liable for any damages or nuisance occasioned thereby. See Vaughn v. Burnette, 211 Ga. 206 (1954). The legal responsibility for obstruction or flooding attaches to the persons who: "create or maintain a situation which is a tortious invasion of a landowner's interest in the use and enjoyment of land by interfering with his quiet, light, air, or flowing water, [for which] each is liable only for such proportion of the harm caused to the land or the loss of enjoyment of it by the owner as his contribution to the harm bears to the total harm...." Vaughn v. Burnette, supra, at 207. The flooding problems which are of concern to you may be caused not only by obstruction of the natural flow of streams, but also by increased surface runoff resulting from development of surrounding areas. With respect to surface water runoff from precipitation, the lower property owner owes a servitude to the higher property owner to receive the surface water, provided that the owner of the higher property has not increased such flow by artificial means. Mallard v. Pye, 215 Ga. 645 (1960); Goldsmith v. Elsas, May & Co., 53 Ga. 186 (1874). If, by artificial means, the owner of the upper land causes water to flow in greater quantities or at different locations than it was accustomed to flow naturally, he is liable for any damage thus caused. First Kingston Corp. v. Thompson, 223 Ga. 6 (1967); Mayor and Council of Albany v. Sikes, 94 Ga. 30 (1894). The above is a very brief summary of some of the principles of Georgia law applicable to legal responsibility for flooding, obstructing or diverting water. It should be clear, however, that legal responsibility in any particular situation depends on the facts involved, and there are numerous decisions of the Georgia appellate courts construing and applying these general rules of law. For a fuller discussion of these issues see R. C. Kates, Georgia Water Law. I will now seek to apply these rules to the specific questions which you have raised. A person may be enjoined or held liable in damages for causing water to flood onto another's property, whether such water is from a naturally-flowing stream or is surface runoff. If there is debris, silt, logs, etc., blocking a stream or drainage ditch and causing flooding or erosion damage to property, the person responsible for the obstruction may be held accountable. Southern Mutual In- U75-79 414 vestment Corp. v. Langston, 128 Ga. App. 671 (1973). However, the problems of proving legal causation may be extremely difficult, if not impossible, especially in an urban area where many minor alterations may combine to cause seriously disruptive flooding. In the case of Southern Mutual Investment Corp. v. Langston, 128 Ga. App. 671 (1973), the court upheld a jury verdict for the plaintiffs, where there was evidence that the erosion and damage to plaintiffs' property was caused by unnatural surface runoff from defendant's property. There was also evidence that defendant's trees had fallen into the creek, causing erosion, and that defendant's lessees had thrown refuse into the creek, which had not been removed. 128 Ga. App. at 673. Your letter suggests the question whether the owner of the bed of the stream may be legally responsible for clearing the stream of debris, silt, etc., even if the owner did not cause the obstruction. I find no authority in Georgia law for any affirmative responsibility on the part of the owner of the stream, although in Edgar v. Walker, 106 Ga. 454 (1898), the court held that the plaintiff could not recover for defendant's tortious flooding of her property by improper drainage if the plaintiff had negligently allowed debris to accumulate on her property, contributing to the flooding problem. While that case seems to hold that a property owner who allows debris to accumulate on his property is contributorily negligent, I have not found any case holding that such property owner has any affirmative duty to upstream owners to clear the stream of debris, silt, etc., which was placed into the stream by the acts or inaction of another person. However, in certain circumstances it could be argued that the sufferance of an obstructive condition in itself amounts to negligence. You have inquired as to the legal responsibility of a municipality or county government to keep streams within its jurisdiction clear and flowing. It is clear that both municipalities and counties have broad authority to act to control or alleviate flooding problems within their boundaries. Providing for drainage of storm water and runoff has long been recognized as part of the public health function exercised by counties and municipalities. See Foster v. Mayor, etc., of Savannah, 77 Ga. App. 346 (1948). There are long-standing statutes authorizing counties and municipalities to develop regulations to prevent flooding and to provide for drainage systems. Ga. Code Ann. 69-314 (Ga. Laws 1962, p. 140); Ga. Code Ann. 69-802 (Ga. Laws 1946, p. 191); Ga. Code (1933) 23-2501 et seq. A recent amendment to the Georgia Constitution specifically authorizes municipalities, counties, or any combination thereof, to provide "storm water and sewage collection and disposal systems." Ga. Const., Art. XI, Sec. III, Par. I (6); Ga. Code Ann. 2-7901a (6). However, the statutory authority of a city or county to act is very 415 U75-79 different from legal responsibility to act to correct flooding and drainage problems. Generally, both municipalities and counties are immune from suit, at least when they are performing a governmental function. A county is not liable to suit unless specifically made so by statute. Ga. Code (1933) 23-1502. This immunity extends both to negligence actions and to actions for nuisance. Felton v. M aeon County, 43 Ga. App. 651 (1931); Op. Att'y Gen. U74-66. In the context of flooding caused by a county's allegedly negligent construction of a highway, bridge, and culvert, it has been held that the county is not subject to an action for damages and the complaint was properly dismissed. Rhines v. Commissioners of Chatham County, 50 Ga. App. 844 (1934).1 A municipality's immunity from suit is somewhat more limited. Generally, a municipality, too, is not liable for its actions, or for its inaction, when acting in its governmental capacity. Ga. Code (193:3) 69-301. However, an exception to the rule has been judicially created where a municipality is responsible for the creation of a nuisance which is dangerous to life and health. Stubbs v. City of M aeon, 78 Ga. App. 237 (1948). "While the maintenance by the city of a sewerage-drainage system is connected with the preservation of public health, and therefore is a governmental function, and while ordinarily a city cannot be held liable for damage to person or property caused by negligence of any of the city's servants while engaged in such work ..., or by an error of judgment on the part of its authorities in adopting a general plan of drainage and in determining when, where, and of what size, and at what level, drains or sewers shall be located ..., yet where such negligence or error of judgment results in the creation and maintenance by the city of a nuisance permanent in its character and dangerous to life and health, and where the effect of the nuisance is specially injurious to an individual by reason of its proximity to his home, he is entitled to recover adequate compensation for his injuries, including damages for any decrease in the market value of his realty." Lewis v. City of Moultrie, 27 Ga. App. 757 at 757-58 (1921). A city has been held liable for flooding resulting from its alteration of the drainage system. Mayor and Alderman of Milledgeville v. Stembridge1 139 Ga. 692 (1913). In certain circumstances, a city may also be liable for failing to improve or enlarge its system of drainage of storm waters, for the Court of Appeals has held: "Although a system for the drainage of surface-water from the streets of a city may be sufficient for that purpose at the time of its installation, yet where, by reason of changed conditions, due to the erection of buildings which shed water into the streets, and 1 Recovery may be had against a county only pursuant to the just compensation clause of the Georgia Constitution. Ga. Canst., Art. I, Sec. III, Par. I (Ga. Code Ann. 2-301). U75-79 416 to the construction of pavements in the streets, both of which prevent the natural seepage of surface-water into the ground and thereby concentrate and augment the volume of water flowing through the streets, the drainage system becomes inadequate to carry off water accumulating in the streets from an ordinary rainfall, by reason of which condition the water precipitated into the streets during a rainfall is not drained with sufficient rapidity to prevent its overflowing upon adjoining premises, and where the situation is known to the city, its maintenance thereafter by the city constitutes a nuisance, and the city may be liable for resulting damage therefrom to adjacent property owners." City of Macon v. Macon Paper Co., 35 Ga. App. 120 (1925). Similarly, liability for damages to private property may arise where a city fails to remove an obstruction to a drainage ditch constructed by the city. Harris v. City of Rome, 10 Ga. App. 409 (1911). In that case the court emphasized that the city had caused the nuisance and, in addition, had control over the drainage ditch and thus had the power and ability to correct the situation. 10 Ga. App. at 410. The court in Harris distinguished Mayor, etc., of Dalton v. Wilson, 118 Ga. 100 (1903), in which the city was held not liable for a nuisance which it had not created but had merely failed to abate. From the above discussion, it appears that a municipality may be legally responsible for flooding if such flooding constitutes a nuisance and if the nuisance is caused by the actions of the city. The cases also indicate that the city is more likely to be held liable if the cause of the flooding is on city-owned property and the city thus has the authority and ability to abate the nuisance. You have obviously anticipated this issue, for your third question relates to a city or county's right to access over and along private property for the purpose of clearing, dredging, etc., a stream which periodically causes flooding problems. It is clear that both a city and a county have the authority to acquire, by gift, devise, purchase, condemnation, etc., interests in real property for purposes of constructing, maintaining, improving, etc., a system for the drainage of surface water. Ga. Const., Art. VII, Sec. IV, Par. II (2) (Ga. Code Ann. 2-5702 (2)); Ga. Code Ann. 69-314 (Ga. Laws 1962, p. 140); Ga. Code (1933) 23-2501. However, I have found no provision of law which would authorize a city or county to cross private property or to channel, dredge, etc., private property without acquiring an appropriate interest in real property or license from the owners of the property. Cf. Op. Att'y Gen. 75-29. The above discussion is of necessity in somewhat general terms, for legal responsibility in any case will depend on the specific facts and circumstances presented thereby. However, it is generally true that: 417 U75-80 (1) The owner(s) of a stream cannot obstruct the stream and cause flooding upstream; I find no case imposing on him an affirmative responsibility to clear the stream of an obstruction which he has not caused. (2) A county is immune from suit for flooding; a municipality may be held liable only if it has caused the flooding and if such flooding constitutes a nuisance. (3) A city or county government must acquire an easement, license, or other authorization to cross private property for access to a stream or to clear, channel or dredge a privately-owned stream. UNOFFICIAL OPINION U75-80 To: Judge, Small Claims Court October 9, 1975 Re: A contract which violates the Industrial Loan Act may not be enforced through repossession and a court may properly refuse to enforce such a contract whether or not the matter is raised by the defendant. This is in response to your letter of August 26, 1975, in which you requested advice as to certain issues raised by Hodges v. Community Loan, 234 Ga. 427 (1975). Specifically, you wanted to know if a violation of the provisions of the Industrial Loan Act, Ga. Laws 1955, p. 431, as amended (Ga. Code Ann. Ch. 25-3), precluded the creditor from enforcing a security interest in the collateral given to secure the note, and whether the court could properly raise illegality under the Industrial Loan Act where the defendant did not raise it himself. In reversing the Court of Appeals, in Hodges v. Community Loan, supra, the Supreme Court stated: "If the General Assembly declares a contract void, then the entire obligation is void unless specific language in the statute allows partial recovery. "The effect of the opinion of the Court of Appeals is to impose an inconsequential penalty for the violation of the Industrial Loan Act. Under that view the lender who violates the act is permitted to recover its principal, with interest thereon at 7%. This surely was not what was intended by the unequivocal language declaring contracts made in violation of the statute to be null and void. "We conclude that the unambiguous language of Code Ann. 25-9903 requires a holding that a contract made in violation of the Industrial Loan Act is null and void and that no recovery can U75-81 418 be had of the principal in a suit for money had and received." 234 Ga. at 431. (Emphasis in original.) The court's ruling is that the Industrial Loan Act deprives a lender who violates its terms of any benefit under the loan contract. It would appear to be inconsistent to construe this language as precluding enforcement for recovery of principal but allowing enforcement for the purpose of recovery of property which secures an unlawful loan, especially since it is only by reference to the unlawful contract that the lender's security interest is ascertainable. The quoted language from Hodges, supra, states without qualification that the entire obligation is void and unenforceable. Thus, an enforcement of the obligation in the form of protecting a security interest which cannot exist independently of the void obligation is precluded by Hodges v. Community Loan, 234 Ga. 427 (1975). As to your second question, a void contract has been defined as a contract "which never had any legal existence or effect." Black's Law Dictionary 1745 (Revised 4th Ed. 1968). See also, Chrysler Corp. v. Wilson Plumbing Co., Inc., 132 Ga. App. 435 (1974). Where the illegality of a contract is apparent it is not necessary that illegality be specially pleaded. See Cook v. Blain, 44 Ga. App. 691 (1932). Consequently, it would appear that it would be proper for the court to refuse to enforce such a contract whether or not the matter was raised by the defendant himself since otherwise the court would be giving legal effect to a contract which is void on its face. UNOFFICIAL OPINION U75-81 To: Representative, 73rd District October 10, 1975 Re: Georgia Laws 1975, p. 4092, which created a new charter for the City of Hampton, effectively repealed any prior charter for that city, and thus constitutes the authority under which the City of Hampton must operate. This is in response to your recent letter in which you noted that Ga. Laws 1975, p. 4092, which created a new charter for the City of Hampton, Georgia, contained an error in that the specific section which was intended to repeal the prior charter of the City of Hampton incorrectly cited the law which created that prior charter. In view of this error, you inquired as to whether Ga. Laws 1975, p. 4092, had any validity. For the following reasons, it is my opinion that Ga. Laws 1975, p. 4092, repealed the charter of the City of Hampton which was in effect prior to July 1, 1975. 419 U75-81 The caption of Ga. Laws 1975, p. 4092, clearly sets forth its purpose. The caption reads, in pertinent part, as follows: "An Act to create a new charter for the City of Hampton, Georgia, in the county of Henry ..." The body of the Act reflects similar language, providing in Section 1.10 that: "The City of Hampton, Georgia, in the county of Henry, and the inhabitants thereof shall continue to be a body politic and corporate under the same name and style of the City of Hampton, Georgia. Under that name, said City shall continue to be vested with all of the property and rights of property which now belong to the corporation; shall have perpetual succession; may sue and be sued; may contract and be contracted with; may acquire and hold such property, real and personal, as may be devised, bequeathed, sold or in any manner conveyed or dedicated to or otherwise acquired by it, and from time to time may hold or invest, sell, or dispose of the same; may have a common seal and alter and renew the same at will; and may exercise in conform'ity with this Charter all municipal powers, functions, rights, privileges, and immunities of every name and nature whatsoever." (Emphasis added.) To repeal the charter which was in existence for the City of Hampton prior to the effective date of Ga. Laws 1975, p. 4092, the General Assembly included certain repealing language. In Section 7.14 of Ga. Laws 1975, p. 4092, the General Assembly provided that: "An Act incorporating the City of Hampton in the County of Henry, approved March 24, 1939 (Ga. Laws 1939, p. 1302), as amended, is hereby repealed in its entirety." Further, the General Assembly provided in Section 7.17 that: "All laws and parts of laws in conflict with this Act are hereby repealed." Unfortunately, the Act referred to in Section 7.14, that being Ga. Laws Hl39, p. 1302, approved March 24, 1939, was a statute which created the charter for the City of Sugar Hill, a city located in Gwinnett County and, therefore, the cited law did not do that which Section 7.14 indicated that it did, that is, it did not incorporate the City of Hampton in Henry County, which has given rise to your question concerning the effect of Section 7.14. However, it is not necessary to become involved in resolving these conflicts since the courts of this state have made it clear that when the General Assembly enacts an entirely new charter for any municipality, any previous charter is thereby repealed. U75-81 420 The oldest case in point is Horn v. State, 114 Ga. 509, 40 S.E. 768 (1901), which states the rule of repeal by implication, saying: "The rule as to repeal by implication is, in such cases, so far as we can ascertain from the authorities, that when the legislature intends to revise a former act or charter or to deal exhaustively with the subject of all or a part of the original act, and a portion of the original act is left out, such omitted portion is repealed by implication." Similarly, in Brackett v. Arp, 156 Ga. 160, 118 S.E. 651 (1923), the Supreme Court, in considering whether a new charter revoked a prior charter, stated: "The act of 1908 creates a new charter for the City of Blue Ridge. It was intended to consolidate and supersede the several acts incorporating that municipality; and it contains not only the recital in the caption that the act was to consolidate and supersede the several acts of incorporation, which apparently might have been as strong an expression as it was necessary to use, but the draftsmen of the act added in the caption that the purpose of the act was 'to create a new charter and municipal government for said corporation.' And the act itself, as a whole and in particular features, shows that it was intended to 'supersede' the several acts incorporating the City of Blue Ridge." Finally, and squarely in point, is the case of Peacock v. Larsen, 180 Ga. 444, 178 S.E. 922 (1935), in which the Supreme Court stated: "An Act approved August 22, 1905, Ga. Laws 1905, pp. 792-814, was entitled: 'An Act to create a new charter for the City of Dublin, in the County of Laurens, and to consolidate and declare the rights of said corporation; and for other purposes.' The act contained 75 sections ... In Section 75 it was declared that 'all laws and parts of laws in conflict with this Act be and the same are hereby repealed.' There were no other words of repeal and no express repeal of the former act of 1893 (Ga. Laws 1893, p. 210), hereinafter mentioned. Held, that this act was the creation of a new charter for the City of Dublin, and necessarily repealed the act approved December 9, 1893 (Ga. Laws 1893, p. 210) ...." Therefore, and notwithstanding the confusion created by the language found in Section 7.14 of Ga. Laws 1975, p. 4092, all previous charters for the City of Hampton have been repealed by implication and the only charter presently in effect for the City of Hampton is the one contained in Ga. Laws 1975, p. 4092. Furthermore, since the language of Section 7.14 of Ga. Laws 1975, p. 4092, did not express the 421 U75-82 intent of the General Assembly, it is my opinion that this section does not repeal the charter of Sugar Hill, Georgia, but is simply a nullity to be ignored. UNOFFICIAL OPINION U75-82 To: Executive Director, Macon-Bibb County Planning and Zoning Commission October 10, 1975 Re: The Macon-Bibb County Planning and Zoning Commission is not an eligible applicant for federal funds under the Federal Highway Safety Act of 1966. Your letter of September 23, 1975 requested an opinion from this office as to whether the Macon-Bibb County Planning and Zoning Commission (hereinafter "commission") is an eligible applicant for federal highway safety project funds. The answer to that inquiry turns upon whether the commission is a "political subdivision" of the State of Georgia within the meaning and contemplation of the applicable federal statute. As enacted by the Congress in 1966, the Highway Safety Act, 23 U.S. C. 401-04 (1966) (hereinafter "Federal Act") provides that each state shall have a highway safety program approved by the Secretary of Transportation and designed to reduce traffic accidents and death~, injuries, and property damage resulting therefrom. 23 U.S.C. 402 (a). It is provided that the secretary shall not approve any state highway safety program that does not: "Authorize political subdivisions of each State to carry out local highway safety programs within their jurisdictions as part of the State highway safety program if such local highway safety programs are approved by the Governor and are in accordance with the uniform standards of the Secretary promulgated under this section." 23 U.S.C. 402 (b) (1) (B). The Act was originally introduced in the Senate as S. 3052 and referred to the Committee on Public Works. The committee report stated, inter alia, that if enacted S. 3052 would: "(6) ... (b) Define political subdivision for the purposes of the act as any city, county, combined city-county, multicounty or metropolitan regional governmental unit which is predominantly within a standard metropolitan statistical area of a population of 50,000 or more; ... " U.S. Code Cong. and Admin. News, 89th Cong., 2d Sess. 2742 (1966). U75-82 422 "'Whether the commission, therefore, qualifies as a "political subdivision" for purposes of the Federal Act depends on whether it fits into at least one of the units of local government listed above. See also, 23 C.F.R. 1204.4 (13) (1975). The commission was created in 1952 by a joint resolution of the City of Macon and Bibb County pursuant to enabling legislation passed by the General Assembly in 1947 and ratified by the electorate in 1948. That enabling Act amended Article XI, Section I, Paragraph VI of the Constitution of Georgia (Ga. Code Ann. 2-7806) to provide: "And except that the City of Macon and Bibb County may, through their respective governing authorities, separately or jointly, promulgate zoning and planning laws, ... appoint agencies or agency for adopting zoning and planning laws, rules, and regulations, and for administering the same, the governing authorities or their designated agencies, being authorized to condition the application of any zoning and planning and the administration of the same according to any presently existing zoning or planning law, and that may hereafter be enacted or according to any that may be resolved or ordained by either or both or by their designated agency or agencies." Ga. Laws 1947, p. 1240. It should be noted that nothing in the foregoing purports to elevate the commission to the status of a political division or subdivision by definition. See Richmond County Hospital Authority v. McLain, 112 Ga. App. 209 (1965); cf. Commissioner v. Shamberg's Estate, 144 F.2d 998 (2d Cir. 1944). Ten years after the legislature passed the foregoing enabling Act, it enacted another law authorizing the governing authorities of the several counties and municipalities of Georgia to establish separate or joint planning commissions. Ga. Laws 1957, p. 420 (Ga. Code Ann. 69-1201 et seq.). Pursuant to an inquiry raised by the then Coordinator of Highway Safety as to whether joint planning commissions created under the 1957 Act constituted political subdivisions within the meaning of the Federal Act, we expressed the opinion that they did not. Op. Att'y Gen. 69-43 (unofficial). The similarities between the powers, functions, and duties of joint planning commissions authorized by the 1957 Act and the commission as authorized by the General Assembly in 1947 and created by the joint action of the City of Macon and Bibb County makes the reasoning of Op. Att'y Gen. 69-43 applicable with equal force thereto. When we issued Op. Att'y Gen. 69-43 we carefully considered whether a joint planning commission came within any of the local governmental units specifically mentioned in the committee report, supra, and felt that it did not. It was our opinion that the Federal Act's concept of a "political subdivision" contemplated an entity 423 U75-83 having the traditional characteristics generally inherent in the concept of a political subdivision, namely, the power to tax, to elect officials, and to have a political geographic area. Richmond County Hospital A tdhority v. McLain, supra, at 211; see also, Board of Education of Wilcox County v. Board of Cornrnissioners of Wilcox County, 201 Ga. 815 (1947). Moreover, it is characteristic of a political subdivision that it is entitled to incur bonded indebtedness independently of county bonded obligations. Pinion v. Walker County School District, 203 Ga. 99 (1947); Ty Ty Consol. School Dis't v. Colquitt Lurnber Co., 153 Ga. 426 (1922). We do not find such authority vested in the commission, and indeed an amendment to the joint resolution creating it, which was adopted on August 16, 1956, specifically forbids the commission from incurring any debt except within the limits of such funds as have been given or granted to the commission and are on hand in its treasury. See Op. Att'y Gen. 69-44 (unofficial) (expressing the opinion that joint planning commissions may contract to obligate only free, present, and unexpended appropriations as matching funds under federal-grant legislation); cf. Reg. 3.8, Interim Admin. Regs., Office of Highway Safety. Since we feel that the commission is but a functional arm of concerted action taken by the City of Macon and Bibb County and is not in itself a political subdivision of the State of Georgia, we reaffirm our previous opinion that such joint planning and zoning commissions are not political subdivisions within the meaning and contemplation of the Federal Act and hence are not qualified or eligible applicants for funds available thereunder. UNOFFICIAL OPINION U75-83 To: Assistant District Attorney October 20, 1975 Re: Georgia Code (1933) 30-128 has current application to those persons who obtained a partial divorce in Georgia prior to 1946; it may not be used to eliminate compliance with marriage licensing and health requirements for persons who have previously obtained a total divorce. This is in response to your request for an opinion as to the force and effect of the following statute: "Ga. Code Ann. 30-128. Renewed cohabitation by persons divorced frorn bed and board.-Parties divorced from bed and board, on subsequent reconciliation, may live together again as husband and wife by first filing in the office of the ordinary of the county where the divorce was granted their written agreement to that effect, attested by the ordinary." U75-84 424 As I understand your question, you wish to know if compliance with this statute would eliminate the necessity for compliance with license and health requirements for Georgians who wish to remarry their former spouses after having obtained a divorce a vinculo matrimonii. In order to appreciate the current effect of this statute, I think it important to note that, historically, Georgia recognized both total divorces (a vinculo matrimonii) which set the parties at liberty from their matrimonial bond, and partial divorces (a mensa et thoro or, as commonly referred to, divorces from bed and board) which allowed the parties to live separately, although the marriage itself continued in force. Head v. Head, 2 Ga. 191, 205 (1847). However, in 1946, the General Assembly, in a comprehensive revision of the Georgia divorce laws, repealed all of the prior provisions for partial divorce (Ga. Code Ann. 30-101, 30-103, 30-104, 30-117, 30-120) except 30-128. Ga. Laws 1946, p. 90 et seq. (Of course, Georgia law continues to make provisions for total divorces. Ga. Code Ann. 30-101 et seq.). Since laws normally have prospective operation only, Ga. Code 102-104, the 1946 revision of the divorce laws did not nullify then valid partial divorce decrees; however, by retention of Ga. Code Ann. 30-128, it would seem to have been the intent of the legislature to allow the parties themselves to negate a previous partial divorce in the manner prescribed. Therefore, it is my unofficial opinion that, although, Georgia law no longer authorizes the issuance of partial divorce decrees, Ga. Code Ann. 30-128 would still have current application to those persons who might have obtained a partial divorce in Georgia prior to 1946. However, since it refers specifically to partial divorces, 30-128 may not be used to eliminate the necessity for compliance with marriage licensing and health requirements for persons who wish to remarry their former spouses after having obtained a total divorce. UNOFFICIAL OPINION U75-84 To: Secretary-Treasurer, Georgia Firemen's Pension Fund October 21, 1975 Re: Neither the Governor nor the State Insurance Commissioner is authorized to appoint a designee or proxy to act and vote in his behalf in the event of his absence from a meeting of the Board of Trustees of the Firemen's Pension Fund. The Georgia Firemen's Pension Fund (hereinafter "FPF" or "fund") is governed by a five-member board of trustees created to administer the fund and the provisions of the FPF Act. Ga. Laws 1955, p. 339 425 U75-84 et seq., as amended; Ga. Code Ann. 78-1002. The board is comprised of the Governor, the State Insurance Commissioner!, the Secretary-Treasurer of the Georgia State Firemen's Association (all ex officio), and two additional members elected by the Firemen's Association. Ga. Code Ann. 78-1002. You have informed me that, on occasion, certain members of the board of trustees are unable to attend specific board meetings. Principally, you refer to the Governor and the State Insurance Commissioner. This occurrence is quite understandably due to the demands placed on the time and schedules of these officers by the magnitude and scope of their offices. Unavoidably, scheduling conflicts arise and, on occasion, the Governor or the Insurance Commissioner cannot be present at a meeting of the board because of a prior commitment or other similar reason. Because of this, you have asked my opinion on whether these members of the FPF Board of Trustees may authorize designees to attend board meetings in their places and cast proxy votes in their behalves. Both of these officers are clearly public officers. See Ga. Canst., Art. V, Sees. I and II (Ga. Code Ann. Chs. 2-30, 2-31); Ga. Code (1933) Chs. 40-1 and 40-14. There is no doubt that they retain their capacities as public officers in the exercise of their powers and duties as ex officio members of a public trust fund and retirement system such as FPF. See, e.g., State ex rel. Kleinsurge v. Reid, 221 Or. 558, 352 P.2d 466 (1960). The prevailing rule of law in Georgia is that duties and powers which require judgment and discretion on the part of a public officer are not delegable to another; while acts which are purely mechanical or ministerial in nature may be properly delegated to an agent. See, e.g., Levine v. Perry, 204 Ga. 323 (1948); Mobley v. Marlin, 166 Ga. 820 (1928); Horton v. State, 112 Ga. 27 (1900); Ops. Att'y Gen. 75-66, 72-105, 72-80, 66-159. The Supreme Court of Georgia has stated that: " ... an agent in whom is reposed trust and confidence, or who is required to exercise discretion or judgment, may not intrust the performance of his duties to another without the consent of his principal (General Assembly) ...." (Parenthetical matter added.) Mobley v. Marlin, 166 Ga. 820, 830 (1928). See also, In re Giles, 21 F.2d 536 (5th Cir. 1927). The duties and powers of the board are set forth by law to include, among other things, the responsibility: (1) to determine all applications for pensions; (2) to provide for the payment of retirement benefits to eligible members; (3) to expend funds in accordance with the 1 The State Insurance Commissioner is the Comptroller General. Ga. Laws 1960, pp. 289, 297; Ga. Code Ann. 56-201. U75-84 426 provisions of the FPF Act and to invest and reinvest the FPF's trust funds; and (4) to generally exercise all powers necessary for the administration of the fund. Ga. Code Ann. 78-1004. It appears manifest from my consideration of the FPF Act that the decisions of the board concerning the government and administration of the fund and relative to the investment and control of trust fund assets involve nondelegable judgment and discretion.2 See, e.g., Ga. Code Ann. 78-1002, 78-1004, 78-1020, 78-1021. The statutory composition of the board of trustees includes the "Governor, ex officio" and the "State Insurance Commissioner, ex officio," with no mention of any authority for a designee to act in their places.3 The case of Candlestick Properties, Inc. v. San Francisco Bay Conservation & Development Comm'n, 89 Cal. Rptr. 897 (Cal. Ct. App. 1970), addressed the effect of a statute allowing public officers to designate proxies to vote and act on certain permit applications. There, the California Court of Appeals held that the designation of a proxy did not violate the general rule against the delegation of discretionary or judgmental authority vested in an administrative tribunal, since the legislature had vested this authority in the officers or their proxies. The court stated, however, that: "This situation is manifestly different from a situation in which the legislature commits discretionary powers to an administrative tribunal and the members of that tribunal delegate their powers to others without any prior authorization from the legislature. In this latter situation the attempted delegation would clearly be contrary to law and void." Candlestick Properties, Inc., supra, at p. 903. In my judgment, the duties and powers conferred by statute upon the board of trustees are discretionary and nondelegable. Moreover, there is no statutory authority for any member of the board to appoint a designee or proxy to act and vote in his behalf. Therefore, based on the foregoing authorities, it is my opinion that neither the Governor nor the State Insurance Commissioner is authorized to appoint a designee or proxy to act and vote in his behalf in the event of his absence from a meeting of the Board of Trustees of the Firemen's Pension Fund. 2 However, these decisions may be based on reports and recommendations from the secretary-treasurer or other agents of the board, so long as, in the final analysis, the board acts upon its own judgment in a properly assembled meeting. See, e.g., Sc:ofield v. Perkerson, 46 Ga. 325 (1872). A quorum of the board of trustees is a majority of the members (three) and a majority of the members must agree on action to be taken before that action is binding. Op. Att'y Gen. 72-103. 3 Neither is there any statutory authority for any of the other three members of the board to appoint designees. The rationale and conclusion contained in this opinion applies with equal force to all five board members. 427 U75-86 UNOFFICIAL OPINION U75-85 To: District Attorney, Western Judicial Circuit October 28, 1975 Re: A court may allow a defendant to avail himself of first offender treatment for a crime or crimes growing out of the same conduct. This is written in response to your request dated October 10, 1975, for an opinion on the question of whether the First Offender Act, Ga. Laws 1968, p. 324 (Ga. Code Ann. 27-2727 to 27-2732), may be applied to the disposition of an entire indictment or accusation regardless of the number of counts contained therein or is the application of that Act limited to only one count within a multicount indictment or accusation. The First Offender Act provides in part that: "No person may avail himself of the provisions of this law on more than one occasion." (Emphasis added.) Ga. Code Ann. 27-2727. The answer to your inquiry depends upon the construction to be given the sentence just quoted. My research has not uncovered any decided case which has construed that portion of the Act in question. Thus, it is necessary to resort to the appropriate general principles of statutory construction. First, penal statutes are always construed strictly against the state and liberally in favor of human liberty. Gee v. State, 225 Ga. 669 (1969); Riley v. Garrett, 219 Ga. 345 (1963). Also, in construing Acts of the General Assembly, it is required that the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil and the remedy. Barrett & Caswell v. Pulliam, 77 Ga. 552 (1886). In construing statutes, the purpose for which they were enacted is of great importance. Trust Co. of Ga. v. Mortgage-Bond Co. of N.Y., 203 Ga. 461, 474 (1948). With the above principles of construction in mind, it appears that the intent of the General Assembly was to allow, within the court's discretion, a defendant to avail himself of first offender treatment for a crime or crimes growing out of the same conduct which may be the subject of a multicount indictment. UNOFFICIAL OPINION U75-86 To: Clerk-Treasurer, City of Millen November 7, 1975 Re: If required by city charter, a municipal election should be held on a legal holiday. This is in response to your request for an opinion on the question U75-87 428 of whether a municipal election must be held on January 1 if that date is set by the municipal charter. For the following reasons it is my unofficial opinion that the municipal election should be held on January 1, 1976, if that date is established by the city's charter. You have informed this office that the city charter requires that municipal elections be held on the first Thursday in January which next year falls on January 1, 1976. While it seems wholly reasonable to hold the election on a day other than a holiday, I could not advise you to do so because the Georgia Supreme Court has clearly held that the holding of an election on a day not prescribed by law will render the entire election void. See, e.g., Davis v. Page, 217 Ga. 751 (1962). On the other hand, acts performed on Saturdays and legal holidays are valid and only Sunday is die non juridicus. Hamer v. Sears, 81 Ga. 288 (1888). The Municipal Election Code in Ga. Code Ann. 34A-105 does provide "When the last day for the exercise of any privilege or the discharge of any duty prescribed by the Code shall fall on a Saturday, Sunday or legal holiday, the next succeeding business day shall be the last day for the exercise of such privilege on the discharge of such duty." Ga. Laws 1969, p. 355. This provision does not, in my opinion, apply to the circumstances in which you find yourself because January 1 is not the last day for the election, it is the only day set for the election. Since the effect of holding an election on the wrong day is so severe, my advice is to hold the election as provided in the charter even when this falls on January 1, 1976. UNOFFICIAL OPINION U75-87 To: Clerk, Superior Court of Laurens County November 12, 1975 and State Board of Laurens County Re: An instrument which conveys only a security interest in personal property is not entitled to recording as an instrument affecting title to land. This is in reply to your request for advice on whether an instrument captioned a uconsumer property improvement note," a copy of which you enclosed with your request, is entitled to recording in books maintained for recording, under Ga. Code Ann. Ch. 29-4 (1933 Code, as amended), instruments affecting title to land, and, if so, whether the tax imposed by Ga. Code Ann. 92-164 (Ga. Laws 1953, Nov. 429 U75-87 Sess., pp. 379, 383; 1955, pp. 288, 289) is due at the time of recording. For the reasons stated below, it is my unofficial opinion that your first question must be answered in the negative and your second question is therefore moot. As a general proposition, unless an instrument affects title to real property, it is not entitled to recording. Witt v. Sims, 140 Ga. 48 (1913). The instrument involved here does not purport to do so. The only language which may be construed as remotely affecting an interest in realty is the provision contained therein in which the owner of the realty promises that: " ... he will not create or permit to attach to the premises any lien or encumbrance other than presently existing and ... disclosed [to the note holder] without written consent of Holder." This promise by the owner does not convey to the obligee on the note an interest in the realty itself. That obligation is not unlike the obligation involved in Witt v. Sims, supra, and is thus not sufficient to entitle the instrument to recording. Otherwise, the instrument purports to be only a promise to pay for "repairs furnished and goods added to and becoming an integral part of [described] premises...." However, the instrument further provides that: " . . . the described goods, whether affixed to the premises or not, are and shall remain personal property, and the [owner] conveys and grants to [the obligee) security title to and a security interest in the described goods...." Obviously, the instrument does not purport to convey an interest in realty and, in fact, purports expressly to negate any agreement that the goods, consisting of aluminum siding, guttering, and window shutters, become part of the realty at all, stating that the goods "shall remain personal property." The language of the instrument reflects that it may give rise to a security interest which may be perfected in accordance with the Uniform Commercial Code, Ga. Code Title 109A (Ga. Laws 1962, p. 156 et seq., as amended), or, depending upon the underlying circumstances and relationship of the parties, that a lien may exist under Ga. Code Ch. 67-20 (1933 Code, as amended). However, that language clearly negates any effect on title to the realty. Thus, it is my unofficial opinion that the instrument involved is not entitled to recording under Ga. Code Ch. 29-4 as an instrument affecting title to land. Since it is my unofficial opinion that the instrument is not entitled to be so recorded, your question concerning the applicability of the tax imposed by Ga. Code Ann. 92-164 need not be answered. U75-88 430 UNOFFICIAL OPINION U75-88 To: Assistant County Attorney November 12, 1975 Re: DeKalb County Board of Elections exercises all powers and duties vested by the Georgia Election Code in the judge of probate court. This is in reply to whether the DeKalb County Board of Elections, created by Ga. Laws 1967, p. 3280, is to exercise all the powers imposed upon the judge of probate court of the county as the superintendent of elections under the Georgia Election Code, Ga. Code Title 34. The Act creating the DeKalb County Board of Elections provides that the board: "Shall ... succeed to and exercise all duties and powers granted to and incumbent upon the Ordinary [now judge of probate court] by Title 34 of the Georgia Code of 1933, as now or hereafter amended...." Ga. Laws 1967, pp. 3280, 3283, Section 8. This provision clearly confers on the DeKalb County Board of Elections the powers and responsibilities of the judge of probate court under the Georgia Election Code "as now or hereafter amended." It appears obvious, and it is my unofficial opinion, that amendments to the Georgia Election Code after 1967 which confer additional responsibilities on the judge of probate court would, in the case of DeKalb County, confer those powers on the Board of Elections, absent a concurrent, contrary mandate by the General Assembly. See, e.g., Campbell v. Hunt, 115 Ga. App. 682 (1967). There is no provision in the Election Code which suggests such a mandate. UNOFFICIAL OPINION U75-89 To: Representative, District 51 November 21, 1975 Re: The General Assembly may lawfully abolish the office of notary public ex-officio justice of the peace without simultaneously abolishing the office of justice of the peace. This is in response to your inquiry of October 15, 1975, in which you requested my opinion as to the proper interpretation of Ga. Const., Art. VI, Sec. VII, Par. I (Ga. Code Ann. 2-4201). Specifically, you wanted to know if this section conferred upon the General Assembly the authority to abolish only the office of notary public ex-officio 431 U75-89 justice of the peace, without al~ abolishing the office of justice of the peace. Ga. Const., Art. VI, Sec. VII, Par. I (Ga. Code Ann. 2-4201), in pertinent part, states: "[T]he General Assembly may, in its discretion, abolish justice courts and the office of justice of the peace and notary public ex-officio justice of the peace in any county in this State having within its borders a city having a population of over twenty thousand, ...." (Emphasis added.) The answer to your question is, of course, dependent upon the interpretation given the emphasized conjunction "and." As you stated in your inquiry, the crux of the problem involves a determination of whether the word ''and" requires that the office of notary public exofficio justice of the peace be abolished simultaneously wjth the office of justice of the peace. In reviewing the cases, opinions of the Attorney General and statutes concerning the two offices, I can find nothing to indicate that the two offices are to be mandatorily coexistent. The statute providing for the office of justice of the peace states that there "shall be one justice of the peace in each militia district." Ga. Code (1933) 24-401. See also, Ga. Const., Art. VI, Sec. VII, Par. I and III (Ga. Code Ann. 2-4201 and 2-4203). It has been the opinion of thjs office that this language requires that there must be a justice of the peace in each militia district. See Op. Att'y Gen. 67-435. On the other hand, it does not appear that the office of notary public ex-officio justice of the peace is mandatory. The Georgia Constitution merely authorizes appointment to this office when recommended by the grand jury. See Ga. Const., Art. VI, Sec. VIII, Par. I (Ga. Code Ann. 2-4301). Thus, it is obvious that it was contemplated that the office of justice of the peace would often exist without there being a corresponding notary public ex-officio justice of the peace within the same militia district. Consequently, since there is no absolute requirement that a notary public ex-officio justice of the peace exist in each militia district, it does not appear to be a strained construction of Ga. Const., Art. VI, Sec. VII, Par. I (Ga. Code Ann. 2-4201), to conclude that the office of notary public ex-officio justice of the peace can be abolished by the General Assembly without the elimination of the office of justice of the peace. Moreover, this interpretation is not in violation of established rules of statutory construction. Where the context of the word favors giving "and" a disjunctive meaning, courts sometimes construe "and" and "or" as interchangeable. See Comer v. American Telephone and Teltgraph Co. of Ga., 176 Ga. 651 (1933); 82 C.J.S. Statutes, 335. For the reasons stated above, it appears to me that the word "and" taken in U75-90 432 the context of Ga. Canst., Art. VI, Sec. VII, Par. I (Ga. Code Ann. 2-4201), is a situation where aand" clearly should be construed as meaning "or." Therefore, it is my unofficial opinion that it would be proper to abolish the office of notary public ex-officio justice of the peace in DeKalb County, while at the same time retaining the office of justice of the peace. UNOFFICIAL OPINION U75-90 To: County Attorney November 21, 1975 Re: The only person authorized to conduct hearings for a county board of health is the board's chief executive officer. This is in response to your recent request for our opinion as to whether any person other than the director of the Coweta County Board of Health is authorized, pursuant to Ga. Code 88-304 (d), to conduct a hearing on behalf of the Coweta County Board of Health. The pertinent section of the law, Ga. Code Ann. 88-304 (d) (Ga. Laws 1964, pp. 499, 519), provides that: "The Department of Public Health is hereby authorized and empowered to employ and appoint hearing examiners to conduct hearings, issue compulsory process, administer oaths, and submit their findings and recommendations to the appointing agency, provided, however, that such examiner shall be a member of the State Bar of Georgia in good standing. The county boards of health are hereby authorized and empowered to direct its director to conduct hearings, issue compulsory process, administer oaths, and submit his findings and recommendations to the county board of health. In both of such cases, the examiner and director shall make the report available to all interested parties, and they are permitted to file written exception thereto prior to final decision thereon.'' (Emphasis added.) It is a standard and basic rule of construction that: "The ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subjectmatter, when they shall have the signification attached to them by experts of such trade, or with reference to such subject-matter." Ga. Code 102-102 (1). Therefore, since the language of Ga. Code Ann. 88-304 (d) is clear on its face, it would be my opinion that the director of the Coweta County Board of Health may not delegate his responsibility to con- 433 U75-91 duct hearings on behalf of the Coweta County Board of Health. Either the dirt:lctor or, where appropriate, the acting director must conduct the hearings required by Ga. Code Ann. 88-304 (d). UNOFFICIAL OPINION U75-91 To: Senator, 33rd District November 21, 1975 Re: Cobb County may utilize the procedures set forth in either Ga. Laws 1970, p. 321, or Ga. Laws 1971, p. 17, in attempting to withdraw itself from the Atlanta Regional Commission. This is in response to your recent request for an unofficial opinion concerning what procedures Cobb County may follow in attempting to withdraw itself from the Atlanta Regional Commission. As will be shown herein, there are two such procedures. First, Ga. Laws 1971, p. 17, as amended, pursuant to which the Atlanta Regional Commission was created, provides as follows: "Any other provision of this Act to the contrary notwithstanding, the General Assembly shall be authorized by local Act to remove any county within an area from the provisions of the Act upon the recommendation of a majority of the full membership of the board of commissioners of any such county." Id. at 21. Thus, upon the recommendation of a majority of the full membership of the Cobb County Board of Commissioners, the General Assembly, by local legislation, may remove Cobb County from the Atlanta Regional Commission. A second procedure by which Cobb County may attempt to withdraw itself from the Atlanta Regional Commission is provided in Ga. Laws 1970, pp. 321, 329, as amended. This results from the manner in which the General Assembly defined the "Area" in which a metropolitan area planning and development commission, such as the Atlanta Regional Commission, exercises its jurisdiction. Such an "Area" is defined as a Standard Metropolitan Statistical Area ("SMSA") subject to changes made pursuant to Section 11 of Ga. Laws 1970, pp. 321, 329. Ga. Laws 1971, pp. 17, 18. Section 11, however, does not deal with changes to the boundaries of an area planning and development commission; thus the references to Section 11 must have been intended by the General Assembly to refer to Section 12 (Ga. Code Ann. 40-2918) as that is the section of Ga. Laws 1970, p. 321, dealing with boundary changes. See Humthlett v. Reeves, 211 Ga. 210, 211 (1954). A boundary change under Ga. Laws 1970, p. 321, may be made by U75-92 434 the Board of Community Development upon petition by the unit or units of local government desiring such change. Ga. Laws 1970, pp. 321, 329, as amended, particularly by Ga. Laws 1972, pp. 1015, 1035 (Ga. Code Ann. 40-3542). Therefore, the Board of Commissioners of Cobb County may attempt to withdraw Cobb County from the Atlanta Regional Commission by petitioning the Board of Community Development to change the boundaries of the Atlanta Regional Commission so as to exclude Cobb County therefrom. The Board of Community Development is not obligated by Ga. Laws 1970, p. 321, to grant such petitions but is obligated to create and promulgate policies and procedures for effecting boundary changes. Ga. Laws 1970, pp. 321, 329. Based on the foregoing, it is my unofficial opinion that Cobb County may utilize the procedures set forth in either Ga. Laws 1970, pp. 321, 329, or Ga. Laws 1971, pp. 17, 21, in attempting to withdraw itself from the Atlanta Regional Commission. UNOFFICIAL OPINION U75-92 To: City Attorney November 25, 1975 Re: An investigation report of a police officer is not a "public record" within the meaning of the Georgia Open Records Law. You have written this office, as City Attorney for the City of Dublin, requesting our assistance in answering a request for opinion which you have received. As I understand the relevant facts, a councilman of the City of Dublin has been involved in an automobile accident which was investigated by a member of the City of Dublin Police Department. The councilman was dissatisfied with the manner in which the investigation was conducted and filed a formal complaint with the city manager. At the city manager's request, an investigation concerning the officer's conduct was made by the Dublin Police Department. As a result of this investigation, a report was submitted to the cheif of police and the city manager. You desire to know if this report is a "public record" which the councilman is entitled to inspect and copy pursuant to Ga. Laws 1959, p. 88 (Ga. Code Ann. Ch. 40-27, hereinafter referred to as the "Georgia Open Records Law"). This office has on two previous occasions rendered opinions concerning the applicability of the Georgia Open Records Law. See Ops. Att'y Gen. 73-55, U71-9. In both cases, it was opined that the Georgia law is in accord with the prevailing law in the country that not all records made by public officers are "public records" within the contemplation of the Georgia Open Records Act. Rather, "[A] public record or writing 435 U75-93 is one which an officer is required by law to keep or which is intended to serve as a memorial and evidence of something written, said or done by the officer or public agency." Linder v. Eckard, 152 N.W.2d 833, 836 (Iowa 1967). "A public record, strictly speaking, is one made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public or to serve as a memorial of official transactions for public reference." People v. Olson, 42 Cal. Rptr. 760 (1965). See Matthews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952). Cf. Morris v. Smiley, 378 S.W.2d 149 (Texas Civ. App. 1964). Clearly, the investigation report about which you are concerned was not created to disseminate information to the public or memorialize any public activity for public reference. To the contrary, it was prepared for presentation to the city manager and chief of police. It is my opinion, therefore, consistent with previous opinions of this office, that a policeman's investigative report prepared for submission to his superiors is not a record which must be available for inspection or copying pursuant to the Georgia Open Records Law. You also ask whether the councilman, as councilman, might have a right to see this investigation where an ordinary citizen would not. As you point out, the capacity of the councilman to act "as councilman" in this matter in which he has a personal interest is subject to question. I think this is a matter which you, being more familiar with the specific facts in this case and the organization and powers of various officers and officials of the City of Dublin, can better answer than I. UNOFFICIAL OPINION U75-93 To: County Attorney November 25, 1975 Re: Only the Director of Corrections, with the approval of the State Board of Corrections, may make assignments of state prisoners to county correctional institutions. This is written in response to your recent request for an opinion on the question of whether or not Richmond County may legally transfer state prisoners, whose convictions have become final, from the county jail to the Richmond County Correctional Institute. Your question appears to be answered by Ga. Code Ann. 77-309, subsections (b), (c) and (d) (Ga. Laws 1956, p. 161, as amended). These ~ubsections set out the general statutory scheme for the disposition of a state prisoner after his conviction has become final. It should be noted that Ga. Code Ann. 77-309 (b) specifies that the Director of Cor- U75-94 436 rections, with the approval of the State Board of Corrections, shall designate the place of confinement for the prisoner. No other public official or public body is given that authority. Ga. Code Ann. 77-309 (c) specifies the necessary certifications and papers to be submitted by the clerk to the Director of Corrections. Subsection (d) of Ga. Code Ann. 77-309 provides that "Within a reasonable time thereafter, ..." the prisoner shall be assigned by the Director of Corrections to a correctional institution. At no point in this statutory scheme does it provide that a county may make assignments of state prisoners to its county correctional institution. Therefore, I must conclude that it was the intent of the General Assembly that only the Director of Corrections, with the approval of the State Board of Corrections, make assignments of state prisoners to the various county correctional institutions. UNOFFICIAL OPINION U75-94 To: Senator, District 50 December 3, 1975 Re: Discussion of whether interbasin transfers of water are presently legal under Georgia law. This is in response to your recent request to this office for an opinion as to whether or not interbasin transfers of surface waters are presently legal under Georgia law. More specifically, you ask whether or not waters flowing in the Chattahoochee River may be withdrawn, piped outside the Chattahoochee River Basin, partially consumed, and the remainder disposed of in locations where such waters will never again return to this basin. You state in your letter that the Chattahoochee River Basin is quite constricted geographically and, consequently, Atlanta's internal and suburban growth has spilled over into many areas located outside this basin. This in turn results in large quantities of water being piped from the Chattahoochee River into these outlying areas. Let me state at the onset that the nature of your inquiry does not lend itself to any definite answer. This is true in part because of the dearth of Georgia case law on this subject and in part because of the many factual variances which could affect the rights of various riparian proprietors along the Chattahoochee River. By way of illustration, the rights of riparian proprietors could hinge on answers to the following questions, to-wit: 1. Is there some injury to a riparian proprietor to support a cause of action, whether it be to a present or future use, and has such proprietor moved to protect his right with reasonable promptness? 437 U75-94 2. Has a particular riparian proprietor granted his riparian rights to another by means of an easement and thereby vitiated any cause of action which he might have had prior to such conveyance? 3. Has such an easement been obtained by prescription through an adverse user? 4. Is the Chattahoochee River navigable or nonnavigable along the particular stretch of river in question? 5. Whether nonnavigable or navigable, who owns the river bottom along that stretch of the river and what private riparian rights and/or duties, if any, attach thereto? 6. Has federal legislation affected the water rights of a particular riparian proprietor? Notwithstanding the above, however, I have attempted herein to set forth and discuss as clearly and concisely as possible various legal principles which might be applicable to a particular factual setting in the hope that this will afford you some guidance in this quite complex area. I need add that this discussion will be limited to nontidal streams (meaning nontidal streams, rivers, etc.) and that same will be presented in the context of nonnavigable streams unless otherwise noted herein. As a general rule in this state, "[A] 'riparian proprietor' is a landowner whose land is either bounded or crossed by a watercourse. He has certain legal interests in connection with such a watercourse which are not common to the citizens at large and which are lmown as 'riparian rights.' These rights are limited to riparian land. If a tract of land is large and a part of it extends outside the watershed of the watercourse, then this portion is not riparian land, even though contiguous to riparian land." Agnor, Riparian Rights in Georgia, 18 Ga. B.J. 401, 402 (1956). Most jurisdictions east of the Mississippi River follow the doctrine of riparian rights (also referred to as the natural flow theory). Id. at 402. Georgia's riparian rights doctrine is codified in Ga. Code 85-1301 and 105-1407. Code (1933) 85-1301 provides, to-wit: "Running water, while on land, belongs to the owner of the land, but he has no right to divert it from the usual channel, nor may he so use or adulterate it as to interfere with the enjoyment of it by the next owner." Code (1933) 105-1407 reads: "The owner of land through which nonnavigable watercourses may flow is entitled to have the water in such streams come to his land in its natural and usual flow, subject only to such detention U75-94 438 or diminution as may be caused by a reasonable use of it by other riparian proprietors; and the diverting of the stream, wholly or in part, from the same, or the obstructing thereof so as to impede its course or cause it to overflow or injure his land, or any right appurtenant thereto, or the pollution thereof so as to lessen its value to him, shall be a trespass upon his property." Probably the best judicial interpretation of the above language can be found in the case of Price v. High Shoals Manufacturing Co., 132 Ga. 246, 248 (1909), wherein can be found the following language: "Under a proper construction of the Civil Code, Sees. 3057, 3802, 3879, every riparian owner is entitled to a reasonable use of the water in the stream. If the general rule that each riparian owner could not in any way interrupt or diminish the flow of the stream were strictly followed, the water would be of but little practical use to any proprietor, and the enforcement of the rule would deny, rather than grant, the use thereof. Every riparian owner is entitled to a reasonable use of the water. Every such proprietor is also entitled to have the stream pass over his land according to its natural flow, subJect to such disturbances, interruptions, and diminutions as may be necessary and unavoidable on account of the reasonable and proper use of it by other riparian proprietors. Riparian proprietors have a common right in the waters of the stream, and the necessities of the business of one can not be the standard of the rights of another, but each is entitled to a reasonable use of the water with respect to the rights of others. What is a reasonable use is a question for the jury in view of all the facts in the case, taking into consideration the nature and use of the machinery, the quantity of water used in its operation, the use to which the stream can be applied, the velocity of its current, the character and size of the watercourse, and the varying circumstances of each case." (Emphasis added.) Although the Georgia Supreme Court recognized the riparian right to a "reasonable" use of a stream very early, Hendrick v. Cook, 4 Ga. 241 (1848), the few Georgia decisions on this point after 1860 have failed to establish any clear-cut guidelines for the reasonableness of a particular use. As noted from the language in Price, supra, any such determination generally turns upon questions of act to be decided by a jury. Kates, Georgia Water Law, p. 33 (1969). There are several cases on this question noteworthy of mention, however. McNabb v. Houser, 171 Ga. 744 (1931), involved the diversion ofa "substantial" part of a stream flow outside the watershed by a mining operator. The defendant contended that the amount diverted was minimal and would not harm the plaintiff. The court nevertheless held that the technical 439 U75-94 trespass warranted injunctive relief. In Hendrix v. Roberts Marble Co., 175 Ga. 389 (1932), the court enjoined a diversion for nonriparian purposes of from one-twenty-fifth to one-half of the stream's flow. From the above authorities, it would appear that diversion of a portion of a stream either outside the watershed or for nonriparian uses within the watershed is more likely to be found unreasonable. Furthermore, " ... since the right to use the water arises from a natural right to the enjoyment of the riparian land itself, it would seem that a nonriparian use, being unrelated to this enjoyment, is not a protected right." Georgia Water Law, supra, at p. 37. It is clear that a mere technical infringement of a present or future riparian right through diversion may well support a cause of action. Hendrick v. Cook, 4 Ga. 241 (1848); Robertson v. Arnold, 182 Ga. 664 (1936). However, as noted earlier, circumstances may alter cases, even where diversion takes place. Municipalities consu:me great quantities of water for their citizens' domestic needs. The question then arises as to whether or not a city bordering on a stream has the right to divert a portion of the stream for domestic consumption on privately owned property within the city limits. In City of Elberton v. Hobbs, 121 Ga. 749 (1905), a municipality which was not contiguous to a watercourse was enjoined from transferring water from a small piece of riparian land which it owned into the city proper. There are no Georgia cases, however, involving the diversion of water by a municipality contiguous to a stream for use on privately-owned nonriparian property located within the city limits. It has been suggested that Georgia would follow the general rule and limit the use of water to riparian land actually owned by the city. Georgia Water Law, supra, at p. 38. In such case, the city would have the option of using its eminent domain authority to pay for diversion rights. At least one jurisdiction has taken a contrary view, however. Canton v. Shock, 66 Ohio 19, 63 N.E. 600 (1902). The right to invade a riparian proprietor's rights may be obtained by grant or by prescription through an adverse user. Terrell v. Terrell, 144 Ga. 32 (1915); see also, Seaboard Air-Line Rwy. v. Sikes, 4 Ga. App. 7 (1908). Furthermore, it has been held on at least one occasion that relief will be denied if the complaining riparian owner fails to act with reasonable promptness. City of Elberton v. Pearle Cotton Mills, 123 Ga. 1 (1905). Thus far I have discussed riparian rights in the context of nonnavigable streams. With regard to navigable streams, Ga. Code (1933) 85-1304 provides as follows: "The rights of the owner of lands adjacent to navigable streams extend to low-water mark in the bed of the stream." However, neither the above-cited Code section nor any other Georgia statute expressly limits the use of navigable waters by private riparian U75-94 440 owners. Furthermore, I am unaware of any court decision delineating the rights and duties of riparian owners on navigable streams. Consequently, it could be argued that the restrictions on consumption and diversion simply do not apply to the waters in navigable streams. It has been suggested, how!3ver, that the law in this state grants to riparian owners along navigable streams the same class of rights as given such owners on nonnavigable streams. Georgia Water Law, supra, at pp. 149-150. If such is the case, then it is necessary to consider the matter of ownership of the stream beds of navigable streams; for under the riparian doctrine, the stream bed owner has the exclusive right to a reasonable use of the waters flowing thereover. Georgia Water Law, supra, at p. 150. Owners of land adjacent to nonnavigable streams own the stream beds to the thread or center of the main current. Ga. Code (1933) 85-1302. Prior to 1863, the effective date of Code 85-1304, supra, such was also the law as applied to owners of land adjacent to navigable streams, subject to the servitude of public passage thereon. Young v. Harrison, 6 Ga. 130 (1849). As a result of the enactment of Code 85-1304, any grant of adjoining land out of the state after 1863 extended only to the low water mark of the navigable stream. Since much of this land was owned by the state in 1863, the effect of this Code section was to remove from future grants out of the state many stream bed parcels which would otherwise have become private property. Legal Ramifications Of Various Applications And Proposals Relative To The Development Of Georgia's Coastal Marshes, Position Paper of the Attorney General of Georgia (March 16, 1970). Consequently, the state presently owns many of the stream beds of navigable streams from low water mark to low water mark. It could be argued, therefore, that as to these stream beds, application of the common law riparian rights doctrine limits the use of the waters flowing thereover to the state alone. How then does one determine which streams of this state are navigable? Ga. Code (1933) 85-1303 provides as follows: "A navigable stream is one capable of bearing upon its bosom, either for the whole or a part of the year, boats loaded with freight in regular course of trade. The mere rafting of timber or transporting of wood in small boats shall not make a stream navigable." While there have been several cases in Georgia adjudicating the issue of navigability (see Brantley v. Lee, 139 Ga. 600 (1913); Seaboard Air-Line Rwy. v. Sikes, 4 Ga. App. 7 (1908); Charleston, etc., Ry. v. Johnson, 73 Ga. 306 (1884)), I am unaware of any appellate court decision applying Code 85-1303 to the Chattahoochee River or any portion thereof. In short, the question of navigability alone makes it impossible, 441 U75-95 absent judicial guidance, to definitively ascertain the rights and duties of riparian owners along the Chattahoochee River. Finally, the rights and duties of riparian owners may well be affected by the exercise of plenary federal authority under the commerce clause or other powers contained in the United States Constitution. If Congress chooses to exercise any such power through general legislation or legislation relating to a specific project, conflicting rights granted under state law must fall before the supreme federal power. On the Chattahoochee River, Congress authorized the construction of the Buford Dam for purposes ranging from flood control to water supply. Coneequently, should the Secretary of the Army act within this authority to the detriment of a riparian proprietor, assertion of a private riparian property right under Georgia law would most probably be of little consequence. UNOFFICIAL OPINION U75-95 To: Judge, Probate Court December 5, 1975 Re: "The Age of Majority Act" reduced the age at which a "year's support" is barred from age 21 to age 18. This is in response to your recent inquiry in which you requested an opinion as to whether "The Age of Majority Act," Ga. Laws 1972, p. 193 (Ga. Code Ann. 74-104.1), reduced the age at which a "year's support" is barred under Ga. Laws 1955, pp. 638, 639, as amended (Ga. Code Ann. 113-1034). "The Age of Majority Act," in pertinent part, reads as follows: "It is the intention of this Act to reduce the age of legal majority in this State from 21 years of age to 18 years of age.... To further carry out this intention, the word 'twenty-one' and the figure '21' are hereby stricken where the same appear in all laws of this State referring to the required age for majority and the word 'eighteen' and the figure '18' are hereby inserted in lieu of said word and figure." Ga. Laws 1972, pp. 193, 199; 1973, p. 590 (Ga. Code Ann. 74-104.1). This Act did not affect all prior laws having age qualifications. See, e.g., Ops. Att'y Gen. 72-136, 72-51. However, since a "minor" is by definition a person who has not reached "majority" (Black's Law Dictionary 1148 (4th ed. 1968)), its applicability to Ga. Laws 1955, pp. 638, 639, which establishes a "year's support," is clearly indicated by that Act's caption which reads: "An Act to provide that the right of a minor to a year's support U75-96 442 shall be barred by the marriage or death, or arrival of age of said minor prior to the filing of the application for such year's support...." Therefore, it is my unofficial opinion that under Ga. Laws 1955, pp. 638, 639, as amended (Ga. Code Ann. 113-1034), a "year's support" is barred by a minor's attaining the age of 18 years, prior to the filing of the application for a "year's support." UNOFFICIAL OPINION U75-96 To: Recorder and Town Attorney December 8, 1975 Re: A city recorder, authorized by Ga. Code Ann. 53-201 to perform marriage ceremonies, is not restricted to performing such ceremonies within the territorial limits of the city in which he serves as recorder. This is in response to your letter of December 1, 1975, requesting an unofficial opinion as to whether or not you may perform a marriage ceremony in Savannah, Georgia, on December 12, 1975. I understand that you serve as both the town attorney and recorder for the Town of Thunderbolt, which duality of employment is specifically approved by the town's charter, Ga. Laws 1974, pp. 3269, 3293-94. Therefore, in your official capacity as recorder, you would be authorized to perform marriage ceremonies by virtue of Ga. Code Ann. 53-201, wherein it states, inter alia, that marriage licenses, once properly granted by the county ordinary "shall be directed to any judge, city recorder, justice of the peace, or minister of the gospel, authorizing the marriage of the persons therein named. . . ." You would also be required to return the license to the ordinary with the certificate thereon as to the fact and date of marriage, within 30 days of the marriage ceremony, so that it may be officially recorded by the ordinary. Ga. Code Ann. 53-201 (1933 Code, as amended by Ga. Laws 1956, p. 43; 1960, p. 179; 1965, p. 335). The question as to whether you may perform such marriage ceremonies outside the Town of Thunderbolt is somewhat more difficult to answer in that there is no law directly on point. The jurisdiction of the recorder's court and your functions as its presiding officer are clearly confined to the territorial limits of the Town of Thunderbolt by the town's charter. Ga. Laws 1974, pp. 3269, 3296-98. However, I find nothing in Georgia statutory or case law which would similarly restrict the jurisdiction of those authorized to perform marriage ceremonies by Ga. Code Ann. 53-201. It has been the opinion of this office on two occasions that justices of the peace may perform marriage ceremonies outside of the district or county in which they were commissioned 443 U75-97 (Op. Att'y Gen. 1963, p. 329; Op. Att'y Gen. 69-178), and I see no reason why a similar rule would not also apply to city recorders. Therefore, it is my unofficial opinion that a city recorder, authorized by Ga. Code 53-201 to perform marriage ceremonies, is not restricted to performing such ceremonies within the territorial limits of the city in which he serves as recorder. UNOFFICIAL OPINION U75-97 To: State Representative, District 69 December 17, 1975 Re: Effect of Ga. Laws 1974, p. 200, on arrest powers of law enforcement officers. Your letter of November 12, 1975, requested that the office of the Attorney General state how Ga. Laws 1974, p. 200 (Ga. Code Ann. Ch. 99-39), will affect the arrest powers of law enforcement officers. Section 11 (b) provides that the police may take a person incapacitated by alcohol into protective custody; however, the person must be brought to an approved treatment facility for emergency treatment. If no treatment facility is available, the person must be taken to an emergency medical service customarily used for incapacitated persons. If no emergency medical service is available, the person may be taken into protective custody for no more than 12 hours and detained in such facilities as may be available. I would interpret this section to mean that the incapacitated person could be placed in a local jail only if there were no approved treatment facility for intoxicated persons and no available emergency medical service customarily used for incapacitated persons. The incapacitated person could be kept in the jail no longer than 12 hours; otherwise the officers might be liable for false imprisonment. According to Section 12 (a), an intoxicated person may be committed to an approved treatment facility for emergency treatment if the person has threatened, attempted, or inflicted physical harm to himself or others ; is likely to inflict physical harm on another or himself unless committed; or is incapacitated by alcohol. This section does not preclude the police from arresting an intoxicated person who has committed a crime. A concurring opinion in Fulton County v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints, 133 Ga. App. 847, 212 S.E.2d 451 (1975), drew a distinction between the time an Act of the legislature becomes law and the time the law becomes effective. According to that opinion an Act becomes law when it is approved, regardless of the effective date. U75-98 444 In my opinion both Ga. Code 58-608 (amended by Ga. Laws 1962, p. 656) and Ga. Laws 1974, p. 200, are validly existing Georgia laws; however, Ga. Code 58-608 is not repealed until Ga. Laws 1974, p. 200, becomes effective. If Ga. Laws 1974, p. 200, is repealed without ever becoming effective, it is my opinion that Ga. Code 58-608 has never been repealed, and, therefore, no legislation is necessary to reinstate 58-608. UNOFFICIAL OPINION U75-98 To: County Attorney December 19, 1975 Re: (1) The Ware County Water System can, if proper ordinances are in effect, be operated using general revenues of the county and, at least in part, the operating expenses may be paid with federal revenue sharing funds. (2) The principal on revenue anticipation bonds may not be paid out of a county's general revenues or with revenue sharing funds. This is in response to your request for our unofficial opinion as to the following questions: 1. May Ware County pay the operating costs of the Ware County Water System out of its general revenues? 2. May Ware County pay the operating expenses of the Ware County Water System out of federal revenue sharing funds? 3. May Ware County pay the principal on the bonded indebtedness of the Ware County Water System out of either its general revenues or out of federal revenue sharing funds? Each of your questions is interdependent since 31 U.S.C. 1243 (a) (4), and the applicable regulations provide that state and local governments may only expend federal revenue sharing funds in accordance with the laws and procedures available for the expenditure of their own revenues. Thus, if you cannot spend your own general revenues for any particular purpose, you also cannot spend the revenue sharing funds for that purpose. With respect to question 1, that being whether Ware County could pay the operating cost of the Ware County Water System out of its general revenues, it is my opinion that the county may do so if it follows the correct procedure. Article XI, Sec. III, Par. I, of the Constitution of the State of Geor,gia (Ga. Code Ann. 2-7901a) provides that: "In addition to and supplementary of any powers now conferred 445 U75-98 upon and possessed by any county, municipality, or any combi-' nation thereof, any county, any municipality and any combination of any such political subdivisons may exercise the following powers and provide the following services: *** "(7) Development, storage, treatment and purification and distribution of water. * * * "Each county and municipality, and any combination thereof, shall have the authority to enact ordinances and to contract with each other in pursuance of this Paragraph and for the purpose of carrying out and effectuating the powers herein conferred upon such political subdivisions and in order to provide such services. . . . In addition, the powers of taxation and assessment may be exercised by any county, municipality or any combination thereof, or within any such district, for the above powers and in order to provide such services." Therefore, it is clear that if the county enacts the proper ordinances the county may pay the operating costs of the Ware County Water System out of general revenues and thus through taxation and the other methods set forth in the cited section of the Constitution. Since the county may use its own revenues for such a purpose, the threshold question concerning the use of federal revenue sharing funds is met. The question then becomes: are there any limitations imposed by the Federal Government which would prevent the county from using revenue sharing funds to operate the Ware County Water System? The State and Local Fiscal Assistance Act of 1972, 31 U.S. C. 1221 et seq., the source of funds often designated as revenue sharing funds, provides for the. granting of funds to state and local governments for certain purposes, generally classified in two groups which are called priority expenditures. The category of interest to you authorizes the expenditure of revenue sharing funds for ordinary and necessary maintenance and operating expenses for projects in a number of areas including health and environmental protection. Thus, if the operating expenses for the Ware County Water System can be brought within this category, it would be proper to expend the revenue sharing funds on this project. While the federal law is not very explicit as to what constitutes ordinary and necessary maintenance and operating expenses in the area of health or environmental protection, the Department of the Treasury, Office of Revenue Sharing, has issued letter rulings setting forth their interpretation of these sections of the law. The first published edition of these letter rulings, governing the period between U75-98 446 October 20, 1972 and September 30, 1973, indicated that the expenditure of revenue sharing funds for a water system is a permissible expenditure under either of the two categories. See One Year of Letter Rulings on Revenue Sharing-A Digest, Department of the Treasury. This would seem to authorize expenditure of these funds for the regular operating expenses of your water system. However, in the second edition of these letter rulings, covering the period between October 1, 1973 and September 30, 1974, the department retreated from its earlier position with respect to such expenditures. In this later edition, they indicated that: "The priority expenditure category of environmental protection encompasses sewage disposal, sanitation and pollution abatement. Employee's salaries or other operating and maintenance expenses of a Water Department are priority expenditures only to the extent that those expenses are related to the above-mentioned environmental protection activities. Thus, a locality may not expend revenue sharing funds on the salary of employees engaged purely with activities relating to reading home water meters." One Year of Letter Rulings on General Revenue Sharing-A Digest Supplement, Department of the Treasury, p. 11.2. While the Department of the Treasury has modified its position with respect to such expenditures under the guise of .environmental protection, no reference is made in these later rulings with respect to expenditures for health purposes. It may, therefore, be possible to pay for the operation of the entire water system with revenue sharing funds, arguing that this is a proper expenditure under the category of health. Thus, it is apparent that the question of whether you can use revenue sharing funds for the operation of your water system has not been resolved by the Department of the Treasury, Office of Revenue Sharing, and therefore we are unable to advise you definitely that you can use those funds in this manner, although it seems safe to say at least for some items, and particularly those mentioned above, you could safely use the revenue sharing funds. Your third question is whether Ware County could pay the principal on the bonded indebtedness of the Ware County Water System. You indicated in your letter that the bonds were revenue anticipation bonds and, for that reason, it is my opinion that the county may not use its local revenues, and thus the county may not use revenue sharing funds, to retire the principal on these bonds. Article VII, Sec. VII, Par. V of the Constitution of the State of Georgia (Ga. Code Ann. 2-6005), speaks directly to this problem, providing: "Revenue anticipation obligations may be issued by any county, 447 U75-99 municipal corporation or political subdivision of this State, to provide funds for the purchase or construction, in whole or in part, of any revenue-producing facility which such county, municipal corporation or political subdivision is authorized ... to construct and operate. . . . Such revenue anticipation obligations shall be payable, as to principal and interest, only from revenue produced by revenue-producing facilities of the issuing political subdivisions, and shall not be deemed debts of, or to create debts against, the issuing political subdivisions within the meaning of this paragraph or any other of this Constitution...." The above-quoted provision seems to clearly preclude your using general revenues to retire the principal on these revenue anticipation bonds, and on the basis of my statement in the first paragraph of the opinion, you may not use federal revenue sharing funds to retire the principal on these bonds. UNOFFICIAL OPINION U75-99 To: Judge, Probate Court December 31, 1975 Re: Under Ga. Laws 1974, p. 455 (Ga. Code Ann. Ch. 24-17B), a probate judge in a county having a population of 30,000 to 39,999 is entitled to a minimum annual salary of $12,000 which shall be increased by two and one-half percent for each year in which he serves. This is in response to your recent letter requesting an interpretation of Senate Bill No. 522 (Ga. Laws 1974, p. 455 (Ga. Code Ann. Ch. 24-17B)). Specifically, you asked whether the two and one-half percent annual salary increase provided for in Section 3 of that Act applies to a probate judge, who, by virtue of serving in a county having a population of 30,000 to 39,999, receives a minimum salary of $12,000. Your inquiry involves an apparent conflict between Section 1 and Section 3 of Ga. Laws 1974, p. 455. Section 1, in pertinent part, reads as follows: " ... the minimum annual salary of the [probate judge] in each county of the State of Georgia shall be fixed according to the population of the county in which he serves...."Ga. Laws 1974, p. 455 (Ga. Code Ann. 24-1701b). This section also provides for minimum salaries ranging from $3,600 to $16,000 depending upon the population of the county. Minimum salary levels and county population brackets are corre::;pondingly progressive. U75-99 448 Section 3 of Ga. Laws 1974, p. 455 (Ga. Code Ann. 24-1703b), provides that: "The total amounts applicable for each [probate judge] provided in sections 1 and 2 of this Aet shall be increased by two and onehalf (2 Y2) percent for each year in office served by any [probate judge], figured at the end of each such period of service, provided, however, that such increase shall not apply to any [probate judge] whose minimum salary as set forth in section 1 above (excluding the amount provided in section 2) exceeds $12,000 per annum." Section 3 clearly states that the provision for longevity is inapplicable only where the minimum salary established by Section 1 is in excess of $12,000. Since longevity increases are not established by Section 1, it would appear that a probate judge serving in a county having a population of between 30,000 and 39,999 is entitled to the annual increase, regardless of whether prior longevity increases have caused his total annual compensation to exceed $12,000. This conclusion may be contrary to the apparent intent of Section 1 which is to establish minimum, uniform salaries for probate judges based upon the population of the county in which they serve. As a practical matter, this construction of Section 3 will result in a probate judge who has served four years in a county having a population of 30,000 to 39,999 earning a higher income than a probate judge who has served the same number of years in a county having a population of 40,000 to 49,999. This is a situation which was doubtlessly neither anticipated nor intended by the General Assembly, but the language of the statute permits no other construction. 449 POSITION PAPERS The two documents which follow have been called Law Department "position papers" in view of the fact that they dealt comprehensively with a subject rather than responded narrowly to a request for an opinion. The :first dealt with Georgia's coastal marshes and was issued on March 23, 1970. It was tersely digested in the Opinions of the Attorney General, 1970, beginning on page 279. The second deals with the legal status of public employee labor organizations in Georgia. It was issued on July 23, 1974. Both documents have been repeatedly requested by attorneys in Georgia and in other states. In view of the continued interest in the content of these documents and in order to assure access to the information therein, the Attorney General has directed that each be set out in full. 450 IMPORTANT 1976 DECISION RELATING TO GEORGIA'S COASTAL MARSHES AND FORESHORE In a landmark decision, the Supreme Court of Georgia adopted the conclusions of the position paper regarding marshlands, which opinion begins on the next page. The decision held that the title to the foreshore of navigable tidewaters within the state is in the State of Georgia. State v. Ashmore, 236 Ga. __ (1976) (Case No. 30176, decided February 24, 1976). 451 LEGAL RAMIFICATIONS OF VARIOUS APPLICATIONS AND PROPOSALS RELATIVE TO THE DEVELOPMENT OF GEORGIA'S COASTAL MARSHES1 INTRODUCTION In recent years new and continuously accelerating interest has been directed toward the coastal marshlands of this state. Various proposals for the development of the marshlands, including the extraction of various natural resources believed to be present there, have given life and urgency to legal questions previously dormant and largely academic. Most of the developmental proposals, whether extractive or conservational, have hinged largely upon claims of ownership to large segments of the Georgia coastal marshes. Extensive research into the legal ramifications of both the proposed uses and the claims to legal ownership have convinced the Attorney General that the State of Georgia is the legal owner to much, if not all, of the coastal marshland now being privately claimed. In addition, the development of the legal ramifications surrounding the state's ownership has indicated the existence of a public trust administered by the state and covering the marshlands of the state which imposes upon the ownership of such lands various burdens in favor of the general public. As a result, it is the position of the Attorney General that the marshlands of Georgia are not susceptible to private exploitation or conservation without regard to the common-law trust purposes to which these lands have been long dedicated.1 A TRUST AT THE COMMON LAW The basic source of state involvement in the foreshore and inland waters of the coastal zone is the traditional trust imposed at common law upon this area of the zone. Like the bulk of real property law, this common-law trust doctrine has its origin and concept in the feudal system of land tenure. Shively v. Bowlby, 152 U.S. 1 (1893); Concord Mfg. Co. v. Robertson, 25 A. 718, 720-27 (N.H. 1890). Under this feudal system, initial title of all land whether dry or submerged was in the English Crown, which held it as trustee in official and representative capacity. Concord Mfg. Co. v. Robertson, supra. The dry land and the soil beneath fresh-water streams and bodies of water were convertible by Crown grant into privately-held property interests. Ibid. At the same time, the rivers and arms of the sea and all lands below the high-water mark by reason of their special adaptability to public uses were set apart and reserved as public waters. Concord 1 See preceding p. 450 regarding 1976 court decision. Coastal Marshes 452 Mfg. Co. v. Robertson, supra. Such waters, and the lands thereby covered, either at all times or at least when the tide is in, being incapable of ordinary and private occupation, cultivation and improvement, were reserved to their natural and primary public uses. Shively v. Bowlby, supra, at 11. The title, the jus privatum, in the lands involved was in the Crown as the sovereign; the dominion, the jus publicam, in the Crown as the representative of public trust and for the public benefit. Ibid. The original states of the United States succeeded to the Crown's status of trustee. Martin v. Waddell, 41 U.S. 367 (1842). Cf. Chapman v. Kimball, 9 Conn. 38 (1831); Johnson v. State, 114 Ga. 790 (1902). Both the common-law rule of title in trust and the sovereign succession concept have been recognized in Georgia. Johnson v. State, supra; Young v. Harrison, 6 Ga. 130 (1849). It was early recognized that the public trust concept is broad of scope including "all necessary and proper uses, in the interest of the public." Home for Aged Women v. Commonwealth, 89 N.E. 124, 127 (Mass. 1909). The more basic public uses include and embrace the navigation of the waters, the conduct of commerce upon the waters, and the right to fish therein free from the obstruction or interference of private parties. Illinois Central R.R. v. Illinois, 146 U.S. 387, 452 (1892). Other uses within the trust include: (1) fowling, hunting and camping, Town of Orange v. Resnick, 109 A. 864 (Conn. 1920); Butler v. Attorney General, 80 N.E. 688, 689 (Mass. 1907); Collins v. Gerhardt, 211 N.W. 115 (Mich. 1926); Nelson v. De Long, 7 N.W.2d 342 (Minn. 1942); Allen v. Allen, 32 A. 166, 167 (R.I. 1895); Muench v. Public Service Comm'n, 53 N.W.2d 514 (Wis. 1952); (2) swimming, Town of Orange v. Resnick, supra; Hayes v. Bowman, 91 So.2d 795 (Fla. 1957); Nelson v. De Long, supra; Treuting v. Bridge & Park Comm'n of City of Biloxi, 199 So.2d 627 (Miss. 1967); (3) establishing and maintaining public parks and general recreation areas, People v. Heckler, 4 CaL Rptr. 334 (App. 1960); Muench v. Public Service Comm'n, supra; and (4) taking of seaweed and sedge, Town of Orange v. Resnick, supra; Allen v. Allen, supra. Under the English common law, the landward boundary of the trust property is prima facie the high-tide line. This demarcation was generally adopted as a part of the trust concept. Shively v. Bowlby, supra, at 13; Martin v. Waddell, supra; United States v. Turner, 175 F.2d 644 (5th Cir. 1949); Arness v. Petersburg Packing Co., 260 Fed. 710 (9th Cir. 1919); State v. A. J. Industries, 397 P.2d 280 (Alas. 1964); Hayes v. Bowman, supra; State v. Stewart, 185 So. 247, 248 (Miss. 1939); Seaway Co. v. Attorney General, 375 S.W.2d 923, 928 (Tex. Civil App. 1964). See Johnson v. State, 114 Ga. 790 (1902). 453 Coastal Marshes Thus, in summary, the state succeeded to the Crown's legal title in trust to the foreshore and inland waters together with all lands covered by such waters under a sound, well-developed and widely-recognized principle of real property law. Further, the state's legal title to which the trust attaches began at the high-tide line, the line of demarcation between the property of the state and the property of the upland owner. THE IMMATERIAL NATURE OF NAVIGABILITY Before proceeding further in this statement with respect to rights and interests in the foreshore and inland waters of this state, a caveat would seem appropriate with respect to issues and questions concerning navigability and their relationship to the boundaries and limitations of the common-law trust. Essentially, attempts to describe the trust property in terms of navigability are both unfortunate and misleading. As originally described, and by succession transferred, the trust property was located in terms of tidal flow and nothing else or less. Marlin v. Waddell, supra. The insertion of navigability as a definitive aspect of the trust property was an unfortunate development of the difficulty experienced by the courts in defining the territory within the admiralty and maritime jurisdiction granted by the Constitution. Following the English courts, the Supreme Court of the United States early held that the federal courts were without jurisdiction to adjudicate a controversy arising out of a voyage on the Missouri River because, like their English counterparts, the federal admiralty courts had jurisdiction only over cases arising "upon the sea, or upon waters within the ebb and flow of the tide." The Thomas Jefferson, 23 U.S. 428 (1825). The subsequent growth of commerce on the nontidallakes and rivers of the developing nation soon resulted in the United States Supreme Court's reversal of its earlier decision and a redefinition of the scope of admiralty jurisdiction in terms of navigability. The Genessee Chief, 53 U.S. 443 (1851). An unfortunate side effect of this two-step decisional development was the judicial tendency to insert navigability into the definition of the trust property to which the states had succeeded as legal owner in trust. It must be recognized that the geographic nature of the British Isles was such that "there was no navigable stream in the country beyond the ebb and flow of the tide...." Id. at 454. The admiralty jurisdiction was limited in terms of tidal flow as a convenient shorthand expression of navigability. At the same time, there is absolutely nothing in the English common-law trust which would indicate that the tidal definition was a similar form of judicial short-hand. To the contrary, the common-law trust is predicated upon the constant covering and uncovering of the land in question; and to this predicate the concept of tidal effect is singularly germane. Coastal Marshes 454 The net effect of the common-law trust was to vest in the state legal title to all lands, waters and beds held by the Crown in trust as of July 4, 1776, from the line of high tide seaward without respect to navigability. Cf. Young v. Harrison, 6 Ga. 130, 140-41 (1849). THE JOHNSON CASE AND THE LEGISLATIVE RESPONSE As a result of the opinion in the 1849 Supreme Court of Georgia decision in Young v. Harrison, supra, the ownership of nontidal navigable streambeds was clearly defined as private property subject to the servitude of public passage thereon. In 1860, this prevailing common-law definition was revised by statute to key streambed ownership to navigability, navigable streams being defined as public property. Ga. Code 2208 (1863), Ga. Code (1933) 85-1303. Since much of the adjoining land was at this date in the state, the effect of this statute was to remove from future grants out of the state many streambed parcels which would otherwise have become private property. In 1902, the Supreme Court of Georgia rendered its decision in Johnson v. State, supra. The defendants had been found guilty of taking oysters from a private oyster bed without the consent of the bed's alleged owner. The oysters had been removed from the tidal flat of King's Bay, a tidal water in Camden County, bounded upland by the private property of the alleged owner: After analyzing the commonlaw rule, the court concluded that the 1860 enactment applied in accordance with its exact language, being a statute in derogation of the common law. The provision of the statute establishing the line of demarcation separating public and private ownership along navigable streams as the low-water mark was applied only to streams, e.g., watercourses, and not to the sea and its arms where the water does not course but merely rises and falls with the tide. The boundaries of landowners abutting on the ocean, or on any estuary, bay, inlet or arm thereof where the tide regularly ebbs and flows, were held to extend only to the ordinary high-water mark, the 1860 enactments being inapplicable to such beds and bodies. Following this, the legislature, apparently replying to the Supreme Court, attempted to extend the boundaries of owners abutting tidal waters to the low-water mark of such waters. Ga. Laws 1902, p. 108; Ga. Code (1933) 85-1309. This attempt to grant by legislative enactment the state's interest in the tidal flat was in obvious violation of the constitutional prohibition against legislative grants. Ga. Constitution of 1877, Art. VII, Sec. XVI, Par. I (Ga. Code (1933) 2-6401); Ga. Constitution of 1945, Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402 (1) ). Consequently, the 1945 Georgia Constitution contained a provision purporting to confirm the attempted property grant to the 455 Coastal Marshes low-water mark of tidal waters. Ga. Constitution of 1945, Art. I, Sec. VI, Par. I (Ga. Code Ann. 2-601). THE STATE AS OWNER OF UNGRANTED MARSHLAND Much of the marshland presently being claimed as private property is in fact of title property of the State of Georgia held in trust for the common, public benefit. This is so despite the 1902 enactment and its 1945 constitutional "confirmation" for a variety of self-sustaining reasons any one of which is separately sufficient to defeat outstanding claims of private ownership. The only paramount title recognized by the State of Georgia in the foreshore and inland waters is a grant out of the English Crown or the State of Georgia, and the latter only to the extent that it complied fully with the fundamental limitations upon the power of the state to act. MARSH NOT WITHIN SCOPE OF 1902 LEGISLATION AND SUBSEQUENT RATIFICATION An examination of the 1902 enactment considered against the backdrop of the definitive nature of marsh and the other forms of natural increments making up the coastal zone is convincing that neither the grant by enactment nor its attempted constitutional ratification cover the coastal marshes. First, the enactment attempted to vest "the beds of all [nonnavigable] tidewaters ... in the present owner of the adjacent land." Ga. Laws 1902, p. 108; Ga. Code (1933) 85-1307. Second, the enactment purported to extend "the boundaries and rights of owners of land adjacent to or covered in whole or in part by navigable tidewaters ... to low-water mark in the bed of the water." Ga. Laws 1902, p. 108; Ga. Code (1933) 85-1309. In the second case the enactment affects, at most, (1) land adjacent to navigable tidewaters, and (2) land covered in whole or in part by navigable tidewater. The only effect this portion of the enactment could possibly have upon the ownership of marsh would be to extend the boundary of marsh abutting on navigable tidewater (land covered in whole or in part by navigable tidewater) to the low-water mark of the abutting tidewater. Since the state holds title to all marsh not covered by a valid Crown or state grant as well as title to the tidal flats which, in certain cases, separate marsh from navigable tidewaters, the effect, if any, was minimal. Marsh is not tidewater and therefore landowners adjacent to marsh did not by operation of the 1902 enactment acquire an arguable title to abutting marshland. Essentially marsh is ''an area of soft wet land.'' U.S. Naval Oceanographic Office, Navigation Dictionary (2nd Ed. Coastal Marshes 456 1969). ({Flat land periodically flooded by salt water is called a salt marsh." Ibid. Tidewater is defined as ({water affected by tides or sometimes that part of it which covers the tideland." Ibid. This view is further reinforced by the language employed in the attempted constitutional enactment. Thus, the 1902 extension is considerably narrower than the common-law trust doctrine which defined the property covered in terms of land below the high-water mark, a concept more inclusive than the beds of tidewaters. Even if the foregoing distinctions were not present, the state cannot recognize the claim of title to marshland based on the 1902 enactment. As previously noted, the enactment was in rather obvious violation of the then-existing constitutional prohibition against legislative grants or donations or gratuities. Ga. Constitution of 1877, Art. VII, Sec. XVI, Par. I (Ga. Code (1933) 2-6401). This invalidity was not cured by the provision contained in Art. I, Section VI, Par. I of the Constitution of 1945 (Ga. Code Ann. 2-601). Legislation which is unconstitutional and void at the moment of its passing cannot be confirmed by subsequent constitutional action. Jamison v. City of Atlanta, 225 Ga. 51 (1969); DeLamar v. Dollar, 128 Ga. 57, 65 (1907); Jones v. McCaskill, 112 Ga. 453, 456 (1900). Further, the 1945 constitutional provision does not by virtue of its language operate as an effective, original grant of title. Continental Ill. N at'l Bank & Trust Company of Chicago v. Art Institute of Chicago, 94 N.E.2d 602, 607 (Ill. App. 1950). Even if susceptible to construction as an original grant of title, the constitutional provision was ineffective in that the language failed to express the donative, public intention with sufficient clarity to alert the electors to the fact that they were being called upon to vote a grant of public rights to private persons. See Goolsby v. Stephens, 155 Ga. 529, 540 (1923). Cf. Illinois Central R.R. v. Illinois, supra. Still further, the 1945 constitutional provision cannot be reasonably construed as a grant of legislative power to enact legislation similar to the 1902 legislative enactment, and even if so construed, the legislature has not subsequent to 1945 enacted any such legislation. THE ABSOLUTE PROHIBITION UPON DISRUPTIVE USES OF GEORGIA MARSHLAND Even where a party by some unusual circumstance is able to establish a title to marshland, such a party cannot use the marshland in any manner which impedes or otherwise interferes with the public use and enjoyment of the public rights in such marshland unless the grant out of either the State of Georgia or the Crown, as the case may be, sufficiently expresses a fullrelinguishment of all public rights. See Johnson v. State, supra. Cf. Illinois Central R.R. v. Illinois, supra. 457 LEGAL STATUS OF PUBLIC EMPLOYEE LABOR ORGANIZATIONS IN GEORGIA INTRODUCTION During the past year the office of the Attorney General has received an increasing number of requests for advice in connection with the legal status of public employee labor organizations in Georgia. These requests have come from both public employees desiring to know the extent to which they may lawfully become involved in labor union activities, and from concerned state department and agency officials who are equally desirous of knowing what their rights and obligations are with respect to union activities on the part of the public employees under their supervision. As we shall soon see, a great many of the questions which have been raised really relate not so much to law as they do to agency policy and administrative discretion. It goes without saying that the disposition of questions of this sort addresses itself ultimately to the sound discretion of the policy-making officials of the affected state departments or agencies. It is equally true, on the other hand, that there are legal considerations which must be taken into account in this policy-making process. It is for this reason that the office of the Attorney General feels obligated to present this review of the legal parameters of the matter. THE HISTORICAL BACKGROUND IN BRIEF In the early years of this century a number of Danbury, Connecticut's hatters decided to affiliate with a labor union as a means of improving their working conditions; Sometime thereafter, the unionmember employees of one hat manufacturer which refused to recognize or deal with the union went on strike. In conjunction with the strike, the union and its members sponsored a boycott of the manufacturer's hats. The 1908 response of the Supreme Court of the United States to this seemingly commonplace use of organized labor's two most powerful weapons was to declare the union's action to be an unlawful combination and conspiracy in restraint of trade under the Sherman Antitrust Act. See Loewe v. Lawlor, 208 U.S. 274 (1908); Lawlor v. Loewe, 235 U.S. 522 (1915). This decision was followed almost immediately by the court's striking of a Kansas statute which attempted to outlaw the practice of an employer requiring its employee, as a condition of his employment, not to become a member of a labor union (i.e., the so-called "yellow dog" contract). Coppage v. Kansas, 236 U.S. 1 (1915). The court held that the Kansas statute violated the "liberty" and "property" rights secured to the employer by the "due process" clause of the Fourteenth Amendment. Using language quite reminiscent of Labor Organizations 458 Anatole France's reputed quip about "the majestic equality of the law which forbids both the poor and the rich alike from sleeping under the bridges," the court said that "It takes two to make a bargain," that if the employee didn't like this condition, he could always decline employment, and that the "liberty of contract" which the court was protecting applied to both parties equally. In a dissent which has proved him to be as accurate a prognosticator of the law here as he has been in other areas, Justice Holmes criticized this "reasoning" of the majority in Coppage [Justices Day and Hughes also dissented], pointing out that there just might be something to be said for trying "to establish the equality of position between the parties in which liberty of contract begins." 236 U.S. at p. 27. (Emphasis added.) Needless to say, Justice Holmes' view has prevailed and the Danbury Hatters case and Coppage have long since been laid to rest. Actually congressional reaction came rather quickly. Sections 6 and 20 of the Clayton Act (15 U.S.C. 17 and 29 U.S.C. 52), enacted in late 1914, provided that nothing in the antitrust laws was to be construed to forbid the existence and operation of labor unions, that labor unions and their members were not to be construed to be illegal conspiracies in restraint of trade, and that federal courts were not (with certain exceptions) to grant injunctions in cases between an employer and employee growing out of a dispute over the terms or conditions of employment. When Congress later considered the courts to be overly restrictive in applying this statutory exemption of labor from the antitrust laws1 its response was to tighten the screws further by the NorrisLa Guardia Act of 1932 (29 U.S.C. 101-110, 113-115). This Act absolutely removed the jurisdiction of any court of the United States to enter an injunction "in a case involving or growing out of a labor dispute" unless certain specified circumstances existed (e.g., unlawful acts threatening injury to property, with police officers being unable or unwilling to furnish adequate protection). The Norris-La Guardia Act also rejected Coppage, both as to its holding and as to its rationale, by declaring "yellow dog" contracts to be contrary to public policy and unenforceable in any court of the United States.2 The Congress recognized the realities of life pointed to by Anatole France and Justice Holmes (which the majority of the court in Coppage had rejected in favor of its highly fictional "equal liberty to contract" theory) when it declared that public policy of the United States recognized the fact that: " . . under prevailing economic conditions, developed with the 1 In Bedford Cut Stone Co. v. Journeymen Stone Cutter's Ass'n, 274 U.S. 37 (1927), for example, the court limited the scope of Section 20 to disputes between an employer and his own employees. 2 29 u.s.c. 103. 459 Labor Organizations aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment...." 29 U.S.C. 102. This recognition of the factual discrepancy between (not to mention the inevitable consequences of) the real bargaining positions of the individual employee and his employer (more often than not a corporation) culminated three years later with the National Labor Relations Act of 1935, 29 U.S.C. 151 et seq., which provided for a comprehensive regulatory code for labor relations in all areas affecting interstate and foreign commerce. The NLRA secured to those employees covered by the Act the right to organize, the right to bargain collectively through representatives of their own choosing, and the right to engage in concerted activities (e.g., strikes and boycotts) to achieve these and other legitimate union ends (e.g., improved wages or other conditions of employment). See, generally, 29 U.S.C. 151-168; 48 Am. Jur.2d, Labor and Labor Relations, 9. For an employer to refuse to bargain collectively with a labor union representing a majority of its employees (or the majority of the employees of one of its "bargaining units") became an "unfair labor practice" subject to a cease and desist order of the newly-created National Labor Relations Board. 29 U.S.C. 160.3 If anything, the NLRA worked only too well for the cause of organized labor. Over the years its application appeared to many to be overly one-sided and not sufficiently protective of the employer against unfair labor practices by unions. Consequently the Congress amended the NLRA by passing the Labor-Management Relations Act of 1947 (i.e., the Taft-Hartley Act), 61 Stat. 136 et seq. See, e.g., 29 U.S.C. 158 (b), 174. As amended by the Taft-Hartley Act, the NLRA (sometimes referred to in its amended form as LMRA) continues today to provide the basic statutory framework for labor organizations and collective bargaining in the general industrial setting. Not surprisingly this massive statutory treatment has been accompanied by and continues to be accompanied by a large number of judicial decisions. However, it is not the purpose of this memorandum to review the minutia of labor relations law with respect to general industry. We are here concerned with the status of the law with re- 3 The constitutionality of this congressional reversal of the Supreme Court's earlier constitutional interpretations in the Danbury Hatters case and Coppage was upheld on the theory that it was a proper exercise of Congress's power under the commerce clause to deal with the burden which strikes, boycotts and other labor disturbances placed upon interstate commerce. See NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1, 41 (1937). Labor Organizations 460 spect to union organization and activities on the part of public employees in the State of Georgia. While the foregoing extremely cursory review of the development of federal law concerning labor organizations and relations in the general industrial setting is relevant to a discussion of labor organizations of public employees in terms of the general concepts involved (e.g., collective bargaining, etc.), and as a reflection of underlying philosophy of legislators and courts, it does not precisely answer the questions we shall deal with in this memorandum. Public employment and the necessity of the state's performance of essential functions frequently poses different and additional problems. It is one thing if recreational employees are on strike (whether employed by a public or private body) and quite another if police or firemen go out on strike. One might produce but a public inconvenience which is acceptable (no recreational service in public or private parks) while another might result in a public catastrophe (no police or fire protection). In recognition of the differing values which may be involved when it comes to public employment the Congress has here left the matter to be dealt with by the various states (whose operations are directly affected). Both before and after the 1947 amendment the Congress has seen fit to exclude public employees from NLRA-LMRA coverage. The term "employer," as defined by 29 U.S.C. 152, expressly excludes: "any state or political subdivision thereof."4 It is in this light that we proceed to discuss the extent to which the various labor relations concepts of NLRA and LMRA may be applicable to labor organizations of public employees. In specificity we shall look at: (1) Whether Public Employees Have Any Right to Organize or Become Members of a Labor Union. (2) Union "Recognition." (3) Collective Bargaining. (4) Collective Bargaining Contract. (5) Strikes. (6) Picketing. (7) "Closed Shop." (8) "Checkoff" of Union Dues. 4 See also 29 U.S.C. 142. In International Longshoremen's Ass'n, AFL-CIO v. Georgia Ports Authority, 217 Ga. 712 (1) (1962), the Supreme Court of Georgia construed a state authority to be within this "state and political subdivision" exemption and hence not subject to the Act. 461 Labor Organizations THE RIGHT OF PUBLIC EMPLOYEES TO ORGANIZE OR BECOME MEMBERS OF A LABOR UNION It is no longer open to question that public employment cannot be used as a means of compelling the employee to waive or forego constitutionally protected rights. See, e.g., Pickering v. Board of Education, 391 U.S. 563, 568 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 606 (1967). It is similarly settled that "freedom of association" is a First Amendment (Ga. Code Ann. 1-801) right applicable to the states by virtue of the Fourteenth Amendment (Ga. Code Ann. 1-815 to 1-819). N.A.A.C.P. v. Alabama, 357 U.S. 449, 460-463 (1958). The application of these principles to an attempt to prohibit public employees from becoming members of labor organizations was squarely presented to the courts in Atkins v. City of Charlotte, 296 F. Supp. 1068 (W.D. N.C. 1969) [three-judge]. Members of the Charlotte Fire Department filed suit attacking the constitutionality of North Carolina statutes which (1) prohibited public employees from being members of a labor union and (2) prohibited contracts between units of government and labor organizations concerning public employees. While the three-judge district court upheld the statutory prohibition of contracts between governmental units and unions, it flatly held that the attempt to prohibit public employees from even being members of a union was on its face an intolerable overbreadth which infringed upon their constitutionally protected "freedom of association." Observing that: "It is beyond argument that a single individual cannot negotiate on an equal basis with an employer who hires hundreds of people. Recog'nition of this fact of life is the basis of labor-management relations in this country." 296 F. Supp. at p. 1075, the court concluded: " ... the firemen of the City of Charlotte are granted the right of free association by the First and Fourteenth Amendments to the United States Constitution; that that right of association includes the right to form and join a labor union-whether local or national. ..." 296 F. Supp. at p. 1077. This rationale has been even more recently applied right here in Georgia where a three-judge federal district court for the Northern District of the State, following Atkins, held that Ga. Code Ann. 54-909 (Ga. Laws 1953, Nov. Sess., p. 624) (which prohibited police officers from becoming members of a union) was unconstitutional. Labor Organizations 462 See Melton v. City of A~lanta, Georgia, 324 F. Supp. 315 (N.D. Ga. 1971) [three-judge]. In Melton, the court took great care to point out that the constitutional defect lay in the overbreadth of the statute (i.e., its extension far beyond anything necessary to protect any valid state interests) and that the court was not holding that the state could not prohibit strikes by police officers. Ibid. at pp. 318-320. The conclusions of Atkins and Melton are in line with what the courts have held elsewhere (see e.g., American Federation of State, County & Municipal Employees, AFL-CIO v. Woodward, 406 F.2d 137, 193 (8th Cir. 1969); McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir. 1968)), and it is perhaps also worthy of mention that the office of the Attorney General of Georgia said the same thing as early as 1969, to-wit: " ... the basic right of all individuals, including [state] hospital employees, to join labor organizations is undoubtedly protected by the First Amendment to the United States Constitution." Op. Att'y Gen. 69-262.5 For all of these reasons, the constitutional right of public employees in Georgia to organize or to become members of labor unions can no longer be doubted. UNION RECOGNITION As used in connection with the Labor Management Relations Act (LMRA), "union recognition" has a fairly precise meaning. It refers to the employer's obligation under that Act to "recognize" and bargain collectively with that union which has been freely chosen by a majority of the employees in an appropriate "bargaining unit" to represent them.6 Proof of majority representation can be evidenced by various means, such as the union's disclosure of signed authorization cards of employees. If and when a dispute on the matter exists the issue may be determined by an NLRB sponsored election followed by the board's "certification" of the union as the official representative of the employees (if this is the result of the election). 29 U.S.C. 159 (c); 51 C.J.S. Labor Relations, 170, 172. "Recognition," whether by election and certification or by agreement, is exclusive. Having "recognized" one union as the representative of the employees in a bargaining unit, the employer is under a duty not to bargain with anyone else. 29 U.S.C. 159 (a); 51 C.J.S. Labor Relations, 162. In summary, 5 See also Op. Att'y Gen. 69-379. 6 An appropriate bargaining unit is an employee unit, a craft unit, a plant unit, or a subdivision thereof, as determined by the National Labor Relations Board (NLRB). 29 U.S.C. 159 (b). It is majority representation in this "unit" which controls. 29 U.S.C. 159 (a); 51 C.J.S. Labor Relations, 165. 463 Labor Organizations union "recognition" in the context of LMRA relates to the question of whether a labor union in fact represents the majority of employees required to place a collective bargaining obligation on the employer. With respect to public employees (which as we have already seen are excluded from LMRA coverage) the term is of more questionable significance. As we will show in more detail in the following section of this memorandum, there is no such thing as compulsory "collective bargaining" with respect to public employees in Georgia. This by itself would seem to rule out the general LMRA meaning of the term (i.e., its use in connection with the employer's legal obligation to bargain with that labor union which represents a majority of the employees in a given bargaining unit). Thus to the extent that it has any meaning at all in the context of public employment, "recognition" would seem to relate simply to that sort of recognition or acknowledgement in the dictionary sense which a governmental agency may, if it so desires, accord to any given factual circumstances, including the fact that a number of its employees are members of a particular social, religious or labor organization. It goes without saying that in the public sector such "recognition" doesn't carry the legal obligations it does for private employers who are covered by LMRA, and among other things any sort of "recognition" respecting a labor union in the public sector would not be required to be "exclusive" recognition. COLLECTIVE BARGAINING Since the LMRA does not apply to public employment, there is no question as to the fact that a public employer is not required to bargain collectively with its employees or their union representatives. The question is, may a public employer bargain collectively with a labor union concerning the terms and conditions of employment of its employees if in its discretion it desires to do so? At the very start of our consideration of this question, it must be recognized that one problem, perhaps the principal problem, stems from the fact that the term "collective bargaining" is susceptible of varied usages and definitions. In the industrial sense and with reference to the LMRA it is generally used to describe the negotiations leading to the collectively bargained contract between the employer and the labor union. See, e.g., 51 C.J.S. Labor Relations, 148. However, as the Court of Appeals of Arizona pointed out in Board of Education v. Scottsdale Education Association, 17 Ariz. App. 504,498 P.2d 578, 582 (1972), the term has many meanings to many people, ranging in the school context: " ... from a teacher making known to the Board his or her desires concerning placing a blackboard in a classroom, to discussing and Labor Organizations 464 conferring with the Board as to a teacher's salary scale, to an agreement setting forth in exacting details the workings of the school system." The court concluded that in the sense of meeting and consulting with union officials concerning the working conditions of public employees there was no problem. As the court put it: "In our opinion, this power to hire teachers, fix their salaries and to control the operation of the school district, necessarily carries with it the implied power, or authority, if the Board so desires, to consult and confer with an individual teacher in order for the Board to make a sapient judgment as to wages and working conditions. In this regard we see little difference between 1200 teachers individually making known their desires to the Board concerning their wages and working conditions, and a representative of those 1200 teachers making known the same desires. 498 P .2d at p. 582. The court stressed the fact that the decision of whether or not to engage in "collective bargaining" was one which addressed itself to the board, saying: "We therefore hold that the Board has authority to enter into 'collective bargaining' with a representative of the teacheremployees when that 'collective bargaining' is used in the context of meeting and consulting with. However, the decision of whether the Board desires to enter into such a 'collective bargaining' situation remains for the Board, and actions to compel or coerce the Board to so bargain collectively against its better judgment are improper." 498 P.2d at p. 583. Approval of "collective bargaining" in this sense is also seen in State Board of Regents v. United Packing House Workers, 175 N.W.2d 110 (Iowa 1970), where the Supreme Court of Iowa noted that: "A public employer's general power to carry out its assigned functions is sufficiently inclusive to permit consultation with all persons affected by those functions.... This consultation serves the public interest by permitting informed governmental action without abridging governmental freedom of action." 175 N.W.2d at pp. 112-113. The Iowa Supreme Court thereupon held: "The Board of Regents has the power and authority to meet with representatives of an employee's union to discuss wages, working conditions and grievances if it so desires. It can do so without be- 465 Labor Organizations coming obligated to meet with the representatives of any other group of employees. The agreed terms could be adopted by the Regents in a proper legislative manner. Such action does not involve an improper delegation of legislative powers to private persons as there is no compulsion to sign an agreement and the final decision remains in the Board of Regents." 175 N.W.2d at p. 113. (Emphasis added.) The reasoning of these cases seems sound, and while the courts of Georgia do not appear to have passed upon the question, the office of the Attorney General of Georgia has, in an unofficial opinion, reached the same conclusion. In discussing the question of possible collective bargaining with state hospital employees it was concluded in Op. Att'y Gen. 69-262 (unofficial): "Inasmuch as I am unaware of any State statute which would require [state] hospitals to bargain collectively with hospital employees or their labor organizations, I conclude that no such legal obligation exists. This is not to say, of course, that the hospital employer could not bargain collectively if it voluntarily chose to do so." (Emphasis added.) It is my opinion that if called upon to pass on the matter the courts of Georgia would probably uphold the right to bargain collectively in the sense of meeting and consulting with union officials about wages, hours and the conditions of employment of public employees. COLLECTIVE BARGAINING CONTRACT Although there is some authority to the contrary, see, e.g., Gary Teachers Union, Local No.4, American Federation of Teachers v. School City of Gary, 284 N.E.2d 108 (Ind. App. 1972); Chicago Div. of Ill. Ed. Ass'n v. Board of Education, 76 Ill. App.2d 456, 222 N.E.2d 243, 251 (1966)/ the weight of authority seems to be that in the absence of legislative authority a governmental body may not enter into a binding collective bargaining contract with a labor union. See, e.g., State Board of Regents v. United Packinghouse Food and Allied Worker's, 175 N.W.2d 110, 117 (Iowa 1970); Fellows v. LaTronica, 151 Colo. 300, 377 P.2d 547, 550 (1962); Anno: Labor-Public Employees, 31 A.L.R.2d 1142, 1170. The most commonly stated reason for this conclusion is that the power to determine wages, hours and other conditions of 7 While holding that the governmental employers involved could lawfully enter into binding union contracts, the Illinois and Indiana courts both stressed the fact that the authority was "permissive," and that there was no constitutional or statutory "duty" upon the public employers to enter into the agreements in question. Labor Organizations 466 employment cannot be delegated by the governmental board or agency in which it has been legislatively vested. As stated in Board of Education v. Scottsdale Educ. Ass'n, 17 Ariz. App. 504, 498 P.2d 578, 585-586 (1972): " . . . the alternate responsibility of controlling and managing the affairs of the school district rests with the Board and the Board may not by contract, dilute that responsibility or surrender the Board's legal discretion in how the responsibility is to be exercised. We, therefore, hold that the 1971 agreement between the Board and SEA was without the power of the Board to enter into and is therefore void." In International Longshoreman's Ass'n, AFL-CIO v. Georgia Ports Authority, 217 Ga. 712 (1962), cert. denied, 370 U.S. 977 (1972), the Supreme Court of Georgia, in addressing itself to a strike situation involving the Georgia Ports Authority, said: "We, therefore, hold that the State Ports Authority in the operation of the docks and warehouses at its Savannah terminals was without authority to enter into an agreement with any third party fixing the terms and conditions of the employment of personnel working for the authority." 217 Ga. at p. 718. Whatever question may heretofore have existed with respect to whether this language was in fact a "holding" or whether it was really only "dicta" (the issue before the court was the legality of the strike and picketing and not the authority of the Ports Authority to enter into a collective bargaining contract) is no longer of any consequence. In Chatham Association of Educators v. Board of Public Education for the City of Savannah and the County of Chatham, 231 Ga. 806 (1974), the court squarely held that a collective bargaining contract between a school board and a labor union was void, and the rationale of the holding unquestionably rests on the ground that it was an illegal attempt by the school board "to delegate its powers and authority to provide the conditions of employment of its teachers and to determine the manner in which the public funds for the operation of the schools shall be allocated." 231 Ga. at p. 808. Thus, it is now clear that unless and until the General Assembly authorizes them to do so, public employers in Georgia cannot enter into valid collective bargaining contracts with labor unions.8 8 In Atkins v. City of Charlotte, 296 F. Supp. 1068 (W.D. N.C. 1969) [three-judge], the court rejected a constitutional attack upon a state statute declaring contracts between governmental units and labor unions to be contrary to public policy and void. 467 Labor Organizations STRIKES Ga. Laws 1962, p. 459 (Ga. Code Ann. 89-1301), provides that: "No person holding a position by appointment or employment in the Government of the State of Georgia or any agency, authority, board, commission, or public institution thereof shall promote, encourage or participate in any strike." The courts have quite generally recognized the right of states to prohibit strikes by their employees. See, e.g., Melton v. City of Atlanta, Georgia, 324 F. Supp. 315, 319 (N.D. Ga. 1971) [three-judge]; Atkins v. City of Charlotte, 296 F. Supp. 1068, 1076-77 (W.D. N.C. 1969) [three-judge]; Norwalk Teachers' Ass'n v. Board of Education, 138 Conn. 269, 83 A.2d 482, 484-485 (1951); Anno: Labor-Public Employees, 31 A.L.R.2d 1142, 1159. Consequently, there would seem to be little doubt as to the validity of Georgia's statute. It must not be overlooked, of course, that by its terms, Ga. Code Ann. 89-1301 applies only to state agencies, authorities, boards and institutions. Yet the prohibition seems to be well rooted in public policy. Courts in other jurisdictions have held strikes by public employees (whether state or local) to be unlawful under common law even in the absence of statute. See 51A C.J.S. Labor Relations, 306. Although I have not found any reported decision of the Supreme Court or Court of Appeals of Georgia on the point it would be my opinion that if the question arose the Georgia courts would more likely than not hold that the same public policy which has been given statutory recognition with respect to state employees also applies to county or municipal employees even in the absence of statute. PICKETING The question of picketing presents unsettled issues. Ga. Code Ann. 54-803 makes it unlawful for anyone: ". . . to engage in mass picketing at or near any place where a labor dispute exists, in such number or manner as to obstruct or interfere with the entrance to or egress from any place of employment...." Ga. Laws 1947, p. 620. Moreover, the Supreme Court of Georgia, along with the courts of various other jurisdictions, has held that even "peaceful picketing" may be enjoined if it is conducted for "unlawful purposes." See International Longshoreman's Ass'n, AFL-CIO v. Georgia Ports Authority, 217 Ga. 712 (1962), cert. denied, 370 U.S. 977 (1962); Weakly County Labor Organizations 468 Municipal Electric System v. Vick, 309 S.W.2d 792, 804 (Tenn. 1958). On the other hand, Ga. Laws 1962, pp. 459, 460 (Ga. Code Ann. 89-1302), expressly provides that the statutes prohibiting strikes by state employees shall not: " ... limit or impair the right of any State employee to express or communicate a complaint or opinion on any matter related to the conditions of State employment so long as the same is not designed and does not interfere with the full, faithful, and proper performance of the duties of employment." The expansion of the federal constitutional protections of "freedom of speech" and "freedom of association" by the Supreme Court of the United States during recent years is, of course, common knowledge. The question of whether or not, and if so, to what extent, this federal constitutional guarantee has extended into the area of "peaceful picketing" is uncertain. Courts in other jurisdictions have held that picketing of an "informational" nature, such as publicizing the fact of a labor dispute, is not unlawful so long as the administration and performance of the public functions or services are not interfered with. See Klein v. Civil Service Commission of Cedar Rapids, 260 Iowa 1147, 152 N.W.2d 195, 200 (1967); City of West Frankfort v. United Ass'n of Journeymen, etc., 53 Ill. App.2d 207, 202 N.E.2d 649, 652 (1964). Because of the unsettled issues of law concerning the First Amendment, and because of the obvious involvement of factual circumstances which will vary in each case, it would seem that with respect to "peaceful picketing" of an essentially informational nature by public employees, the questions of legality and illegality will probably have to be resolved on a case-by-case basis-the principal (but not exclusive) guideline being whether the picketing in any way interferes with "the full faithful and proper performance" of the governmental function, service or activity involved. Accord, Ga. Code Ann. 89-1302. CLOSED SHOP Interestingly enough, Georgia's "right to work" legislation (Ga. Laws 1947, p. 616 et seq.; Ga. Code Ann. Ch. 54-9), which provides that no individual can be required to be a member of or to pay dues or any fee to a labor organization as a condition of his employment, and which further provides that any provision in a contract between an employer and a labor organization to the contrary is against public policy and "absolutely void" (see Ga. Code Ann. 54-904), does not by its terms appear to be applicable to public employees (since the term "employer" expressly excludes "any state or political subdivision thereof"). Ga. Code Ann. 54-901 (a). 469 Labor Organizations Yet I think that this is primarily of academic interest. If the mere entry into a collective bargaining agreement concerning public employment in general is an unlawful delegation by the public employer of its power and responsibility to determine wages, hours and other conditions of employment (see International Longshoreman's Ass'n, AFL-CIO v. Georgia Ports Authority, 217 Ga. 712 (1962), cert. denied, 370 U.S. 977 (1972); Chatham Association of Educators v. Board of Public Education for the City of Savannah and the County of Chatham, 231 Ga. 806 (1974)), a delegation of its even more basic power and responsibility to determine whom it shall employ and whom it shall not employ is surely an even more flagrantly unlawful delegation of the power and responsibility which the legislature has placed upon it. While there seems to be a paucity of legal authority on the matter this appears to be the conclusion reached by those courts which have considered the matter. See, e.g., Smigel v. Southgate Community School District, 24 Mich. App. 179, 180 N.W.2d 215 (1970); Los Angeles v. Los Angeles Bld. & Constr. Trades Council, 94 Cal. App.2d 36, 210 P.2d 305, 310 (1949); Petrucci v. Hogan, 27 N.Y.S.2d 718, 725 (1941). THE CHECKOFF OF UNION DUES Article VII, Section I, Paragraph II of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5402 (1)), provides that with certain enumerated exceptions not here applicable: "The General Assembly shall not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association...." While the language of this constitutional provision by its terms speaks of grants by the General Assembly, it has long since been settled that it is equally applicable to subordinate agencies and even political subdivisions of the state. See, e.g., Grand Lodge of Georgia, Independent Order of Odd Fellows v. City, 226 Ga. 4, 8 (1970); Atlanta Chamber of Commerce v. McRae, 174 Ga. 590 (1932). Ops. Att'y Gen. 73-116, 73-120. I do not think it can be questioned but that deducting dues, contributions, donations or other payments from the pay check of a public employee and then transmitting the sums withheld to some third party would impose a significant bookkeeping and administrative burden upon the state department or agency concerned. Nor do I think that it can seriously be questioned but that the third party recipient of the sums withheld (be it labor union or any other a5sociation or organization) would receive a very valuable service as a concomitance of the state's assumption of this burden. When the third Labor Organizations 470 party recipient is not in a contractual relationship with the state, it would seem to follow that what it receives (i.e., the state's bookkeeping and administrative support and services) is a "donation or gratuity" within the meaning of Article VII, Section I, Paragraph II of the State Constitution. That the objective of the dues checkoff or other deduction for a third party may be for a worthy or even charitable cause would not appear to be of any consequence. As the Supreme Court of Georgia put it in Wright v. Absalom, 224 Ga. 6, 8 (1968): "The object of an expenditure may be a very worthy cause and highly beneficial to the general public, but this will not suffice where the constitutional authorization for such expenditure is lacking." In light of the foregoing it is my opinion that in the absence at the very least of some clear legislative authorization, it would not be lawful for a state department, board or agency to deduct dues, contributions, donations or other payments from a public employee's pay check for transmittal to some third party (whether a labor organization or otherwise) with which the state has no contractual relationship. With specific reference to a checkoff of union dues I believe this conclusion is further supported by the fact that bills which would have authorized the checkoff of union dues of public employees have been introduced into the General Assembly and that such bills have not passed. See H.B. 359 (1951); H.B. 1344 (1972). Nor would it seem amiss to point out that as a matter of policy the state has ordinarily declined to assume this sort of a burden for the benefit of a third party (i.e., bookkeeping and administrative services) even where incidental to the judicial process of garnishment. Cf. Ga. Laws 1945, pp. 438, 440 (Ga. Code Ann. 46-805); Troup County Board of Commissioners v. Public Finance Corp., 109 Ga. App. 547 (1964). CONCLUSION As we have seen, the current legal status of public employee labor unions in Georgia involves some certainties and perhaps an even greater number of uncertainties. The situation with respect to those legal issues which we have discussed might best be summarized as follows: 1. Organization and Membership-This would appear to be one of the certainties. The right of a citizen to organize or to join a labor union is protected by the First Amendment to the United States Constitution (Ga. Code Ann. 1-801) and it is well settled that a state cannot require an individual to waive or forego this federally 471 Labor Organizations protected right as a condition of public employment. 2. Union "Recognition"-This is one of the uncertainties. While the term has a rather precise meaning and triggers various legal obligations in the general industrial context of the Labor Management Relations Act, it has, so far as we are able to ascertain, no fixed meaning outside of the purview of that Act (as, for example, with respect to public employment). 3. Collective Bargaining-This is another uncertainty since the answer depends on how the term is defined. If the term is used solely in the limited sense of meeting with and talking to union officials to obtain their views or recommendations on the wages, hours or other employment conditions of public employees, it is unquestionably within the discretionary power of the affected state agency to do so if it wants to. 4. Collective Bargaining Contract-The Supreme Court of Georgia has spoken (see Chatham Association of Educators v. Board of Public Education for the City of Savannah and the County of Chatham, 231 Ga. 806 (1974)), and there would appear to be no question as to theiact that public employers in Georgia cannot enter into valid collective bargaining contracts with labor unions. 5. Strikes-Strikes by the employees of state departments and agencies are prohibited by statute in Georgia. 6. Picketing-The question of peaceful picketing by public employees raises un&ettled legal issues which will probably have to be resolved on a case-by-case basis. It is possible that peaceful picketing which is purely informative and does not interfere in any way with the performance of the public function in question may be protected by the First Amendment. 7. Closed Shop-Although Georgia's "right to work" legislation does not by its express term apply to public employees, there would seem to be little doubt but that any attempt to provide for a closed shop arrangement with respect to public employees would be stricken by the courts as contrary to public policy. 8. Union Dues Checkoff-In the absence of clear legislative authorization it would not appear to be lawful for a state department, board or agency to deduct union dues from an employee's pay check. 473 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 475 TABLE 1 UNITED STATES CONSTITUTIONAL PROVISIONS CITED OP. No. Art. I, Sec. X ........................................ 75-41 Amend. 1 ....................... Op. Att'y Gen. 1975, p. 457 Amend. 14 ...................... Op. Att'y Gen. 1975, p. 457 TABLE 2 GEORGIA CONSTITUTIONAL PROVISIONS CITED OP. No. Art. I, Sec. I, Par. XXIII. ..................... 75-40, 75-142 Art. I, Sec. III, Par. I .............................. U75-79 Art. I, Sec. III, Par. II ................... 75-14, 75-41, 75-82 Art. I, Sec. VI, Par. I ............. Op. Att'y Gen. 1975, p. 451 Art. II, Sec. II, Par. I. ............................... 75-17 Art. III, Sec. IV, Par. VI ............................ 75-109 Art. III, Sec. VII, Par. I ............................. 75-109 Art. III, Sec. VII, Par. IX ...................... 75-40, 75-87 Art. III, Sec. VII, Par. XI. ........................... 75-69 Art. III, Sec. VII, Par. XVI. ........................ U75-63 Art. III, Sec. XI, Par. I ............................. U75-11 Art. V, Sec. I, Par. XI ................................ 75-17 Art. V, Sees. I and II ............................... U75-84 Art. V, Sec. XI, Par. I ................................ 75-65 Art. VI, Sec. I, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-13 Art. VI, Sec. VI, Par. II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-7 Art. VI, Sec. VI, Par. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-16 Art. VI, Sec. VII, Par. I. ........................... U75-89 Art. VI, Sec. VII, Par. III ........................... U75-89 Art. VI, Sec. VIII, Par. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-89 Art. VI, Sec. XVI, Par. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-58 Art. VII, Sec. I, Par. II .......... 75-9, 75-27, U75-20, U75-22, U75-26, U75-35; Op. Att'y Gen. 1975, p. 451 and p. 457 Art. VII, Sec. I, Par. II(1) ................... 75-119, U75-23 Art. VII, Sec. I, Par. IV . . . . . . . . . . . . . . . . . . . . . . . . 75-7, U75-15 Art. VII, Sec. II, Par. I. ....................... 75-33, 75-147 Art. VII, Sec. II, Par. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-69 Art. VII, Sec. III, Par. I .................. 75-19, 75-40, 75-51 Art. VII, Sec. III, Par. IV ................ 75-40, 75-88, 75-119 Art. VII, Sec. IV, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-22 476 GEORGIA CONSTITUTIONAL PROVISIONS-Continued OP. No. Art. VII, Sec. IV, Par. II . . . . . . . . . 75-29, 75-33, U75-1, U75-20, U75-22, U75-40 Art. VII, Sec. IV, Par. II (2) . . . . . . . . . . . . . . . . . . . . . . . . U75-79 Art. VII, Sec. IV, Par. III. . . . . . . . . . . . . . . . . . . . . . . . . . . U75-55 Art. VII, Sec. V, Par. I .............................. 75-119 Art. VII, Sec. VI ... 75-40 0 0. 0 0 0 Art. VII, Sec. VI, Par. I. .................. 0 75-40, 75-51 Art. VII, Sec. VII. U75-27 0 0 0 Art. VII, Sec. VII, Par. I. ............ 0 0 75-19 Art. VII, Sec. VII, Par. V . . . . . . . . . . 0 0 0 0 0 U75-98 Art. VII, Sec. IX .. 75-40 0 0 Art. VII, Sec. IX, Par. I. 0 0 0. 75-40, 75-71, 75-87 Art. VII, Sec. IX, Par. II (c) 75-74 0 0 0. 0. 0 0 0 Art. VII, Sec. IX, Par. II (e) 75-40 0 0 0. 0 0 0 0 0 0 0 0 0 0. 0 Art. VII, Sec. IX, Par. IV. 75-74, 75-96 0 0 0 0. 0 0 0 Art. VIII, Sec. V, Par. I. 75-63, U75-32 0 0 0 0 0 0 Art. VIII, Sec. IX, Par. II . . . . . . . . . . . . . 0 0 o 0 U75-32 Art. XI, Sec. I, Par. I ... 75-51 0 0 0 0 0 0 0. 0 Art. XI, Sec. I, Par. VI. U75-82 0 0 0 0 0 0 0 0 Art. XI, Sec. III .. U75-33 0 0 0 0 0 0 0 Art. XI, Sec. III, Par. I ........ 75-29, U75-35, U75-55, U75-98 Art. XI, Sec. III, Par. I (6). U75-79 0 0 0 Art. XIII, Sec. I, Par. IV . . . . . . . . . . 0 0 0 0 0 0 U75-6 Art. XIV, Sec. I, Par. I. 75-145 0 0 0 0 0 0 0 0 0 Art. XV, Sec. I ... U75-35 0 0 0 0 0 0 Art. XV, Sec. II-A, Par. I 0 0 0 U75-35, U75-40 Art. XV, Sec. II-A, Par. I (c). 0 0 0 0 U75-37, U75-77 Art. XV, Sec. II-A, Par. II 0 0 0 0 0 0 0 U75-37, U75-40 Art. XVI 75-119, U75-35 0 0 0 0 477 TABLE 3 GEORGIA LAWS CITED AcT PAGE 77........ Ga. Laws 185152 OP. No. 33 ........ : ......... G~: La;.:s i878:79 .............. U75-74 73....... . ......... G~: La~~ "1895 .. .U75-15 ....... . ...G~~ La:~~ i9oo ...... u75-53 52 . 156 . .. . . . 0 . .. . . . . . . . . . . . . ..... "G~: La:~ "1001 ............... U75-53 0 0 0 0 0 0 108........ Ga. LawS1iiOi . U75-2 71....... . ......... G~: ia_;,;.i~~ Att'y Gen. 1975, p. 451 35 ..... .................. G~: La:~~ "i91ii ............... U7 5-53 288, 320. . ...... "G~: i~~~ "1919 ............... U75-11 288, 3252. ..... . . . . . . . . . . . . ...... ::: ............. 75-15, 75-63 ' . . . . . . . . . . . . . . . . . . . . . . . . . .................. 75-15 525, 528. . . . . . Ga. Laws 192i .... . 75-63 ss ........... :....... G~: La~ 1924 ... U75-75 G~: ia~~ 226 . . . . . . . . 0 1927 ..... U75-53 2170925.............. . . .......................... . U75-12 . 0. 0. 0 0...... . . . . . . . . . . . . . . . .. 0. . ............ 75-124 126 et seq... Ga. Laws 19a1 U75-62 316655:: . . . . . . ......... .......................' ... . . . . ..................75.-.3U' 7755--7748 115........... Ga. Lawi. "19:i:i .... .. U75-2 !~ .............0...0...0 ~~-:~ws i935.......75-69 . 0. 0... . . . . . . . . . . . . . . . ........ .................. 75-33 210. . . . . . . Ga. Laws 1937 .U75-29 224850 . . . . . . . ...0 . ... . . . . . . . . . . .. . . . . . . . : . : . : : . . : ::: . . 0. ........ . 0 . . . 0 . . . . . . . . . . . . . . . . . . . . .. .. . . . . . U75-35 .. .. .. ....7755--6699 478 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1937-Continued 322 ............................................... U75-46 322, 352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-49 355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-1 377 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-29 377, 390 et seq....................................... 75-45 477 ' ..... ' ...... ' .................. ' ............... 75-124 503 . ' . . . . . . . ' . ' . ' . ' ............ ' .... ' . . . . . ' . . . ...... 75-58 697 ............................................... U75-35 761 ............................................... U75-22 864, 866 ............ ' . ' .. ' ........ ' .............. ' .. 75-63 1122 ... ' .. ' ' ..... ' .... ' ....... ' ... ' ... ' .. ' ........... 75-7 Ga. Laws 1937-38, Extra. Sess. 103, 105 ........................................... U75-19 145 . ' . ' ...................... ' . . . . . . . . . . . ............ 75-7 558 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-7, U75-64, U75-65 558, 561 ................................... U75-56, U75-73 Ga. Laws 1939 99 . . . . . . . . . . . . . . . . . . . . . . ' . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-7 160 ................................................. 75-58 252 ................................................. 75-69 337 ................................................. 75-69 1302 .............................................. U75-81 Ga. Laws 1941 449 ............................................... U75-46 Ga. Laws 1943 185 .............................. 75-35, 75-72, 75-78, 75-121 370 ................................................. 75-43 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-33 640 et seq...................... 75-1, 75-8, 75-9, 75-25, 75-46, 75-66, 75-86, 75-113 Ga. Laws 1945 8, 60. ' ' . ' ... ' ...... ' .............. ' ................. 75-7 294' . . . . . ....... ' ' . ' .... ' ...... ' . . . . . . . . . . ........ ' .75-69 316 to 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-65 356 ............ ' ... ' .......... ' .......... ' ' . ' 75-76' 75-105 362 et seq............................ U75-3, U75-13, U75-74 435' ' . ' ' ' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ' . . . . . . . . . . . 75-7 438 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-71 438, 440 . . . . . . . . . . . . . . . . . . . . . . . . . Op. Att'y Gen. 1975, p. 457 1152 .................. ' ............................. 75-64 1199 .. ' .............. ' . . . . . . ..... ' . . . . ............. ' 75-52 479 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1946 12, 14 ...... 000.... 000. 000. 00. 0.... 000... 000... 0. 000. 75-7 87 ................................................. U75-1 90 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U75-83 96, 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-41 130 ............................................... U75-59 157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-35 191 ............................................... U75-79 206, 216 0..... 0000.. 000.... 0..... 000... 0.. 00........ 75-94 Ga. Laws 1947 616 et seq....................... Op. Att'y Gen. 1975, p. 457 620 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Op. Att'y Gen. 1975, p. 457 1186, 1187. 000. 00. 0.. 0. 0000. 0.. 00000.. 0000. 000. 00... 75-94 1240 .............................................. U75-82 Ga. Laws 1949 56.0 00000000000. 0. 000000000. 0.. 00. 00. 000000. 000000. 75-142 138 et seq.............................. 75-70, 75-82, U75-77 780 et seq.......................................... U75-60 1049 .............................................. U75-59 1054 ............................................... U75-4 1622. 00000.. 00000.. 000000. 000. 00. 000000. 0. 000. 0000. 75-69 Ga. Laws 1950 50 et seq........................................... U75-77 238 .. 000. 000. 0000... 0000. 0000000000. 0. 0000000000000075-69 Ga. Laws 1951 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-46 116 ............................................... U75-59 224, 226 .... 000000. 00000000. 0.. 000.. 00. 0.. 000. 00000075-81 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-53 291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-11 360 .. 0. 000000.. 0000. 00000. 00. 000000000000. 000. 000. 075-136 360, 363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-76 360, 371 ........................................... U75-76 360, 374 ........................................... U75-76 417, 428 .. 000000.. 0.. 00. 0. 000000000. 000. 00... 075-68, 75-108 428. 000000. 00. 0.. 00. 0. 000. 00000. 00. 0. 0.... 000. 0. 00. 075-65 565. 00. 0.. 0. 000000... 000. 00. 00. 0.... 0.. 75-36, 75-42, 75-122 581, 586 0.... 0.. 00.. 00. 0000.. 00.. 0...... 0... 0.. 000. 075-69 Ga. Laws 1952 201, 202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-41 Ga. Laws 1953, Jan.-Feb. Sess. 114 .. 00. 00.. 0. 0.. 00. 0......................... 0..... 75-69 480 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1953, Jan.-Feb. Sess.-Continued 185 ................................................ 75-142 331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-46 333 ................................................. 75-44 337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-142 480 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-23 602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-9 Ga. Laws 1953, Nov.-Dec. Sess. 210 ................................................. 75-72 294 et seq. . . . . . . . . . . . . . ............................. 75-65 294' 297 . . . . . . . . . . . . . . . ............................. 75-65 379 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-125 379, 383 ........................................... U75-87 471 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-142 556 ............................................... U75-46 556, 577 ........................................... 75-117 624 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Op. Att'y Gen. 1975, p. 457 2745 et seq......................................... U75-13 2758 .............................................. U75-13 Ga. Laws 1955 10, 23 .............................................. 75-81 288, 289 ........................................... U75-87 323 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-43 339 et seq........................... U75-31, U75-77, U75-84 354 ................................................ 75-119 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-2, U75-80 638, 639 ........................................... U75-95 Ga. Laws 1956 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-36, 75-110, U75-42 43 ................................................ U75-96 69, 71 ............................................. U75-11 148 ................................................. 75-69 161 ................................... 75-20, 75-78, U75-93 161, 171 ............................................ 75-93 161, 173 ........................................... 75-146 161, 178 ........................................... 75-146 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-69 280, 285 ........................................... U75-30 280, 292 ........................................... U75-77 543 ................................................. 75-36 543, 545 ............................................ 75-42 2947 .............................................. U75-39 481 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1957 72 ................................................... 75-7 97 .................................................. 75-18 219 ........................................... 75-69, 75-99 224 ................................................. 75-64 273 et seq........................................... 75-70 420 ............................................... U75-82 477, 479 ........................................... 75-146 486-8 ............................................... 75-14 3303 .............................................. U75-11 Ga. Laws 1958 6 ................................................... 75-69 174 ................................................. 75-69 387 ................................................. 75-55 Ga. Laws 1959 83 .................................................. 75-57 83, 86 ........ ....................................... 75-57 83, 87 ...... ........................................ 75-57 88 ......................................... U75-75, U75-92 135 ................................................ 75-124 Ga. Laws 1960 67 ................................... 75-12, 75-141, U75-14 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-3, U75-13 179 et seq................................... U75-3, U75-96 234, 235 ........................................... 75-146 289 et seq.................................... 75-83, U75-46 289, 297 ........................................... U75-84 289, 389 ..................................... 75-54, 75-116 289, 505 ............................................ 75-54 289' 523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 75-83 289, 535 ............................................ 75-83 764 ................................................ 75-142 806 ................................................. 75-69 961 ................................................. 75-69 1032 ............................................... 75-132 1043, 1046 ......................................... 75-124 3208, 3210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-46 Ga. Laws 1961 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-46, U75-51 96 ................................................. 75-142 147, 149 ............................................ 75-137 147, 150 ............................................ 75-6.1 482 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1961-Continued 161 ................................................. 75-10 300 ............................................... U75-63 356, 368 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-68, 75-108 402 ............................................... U75-11 Ga. Laws 1962 8 ................................................... 75-10 17 .................................................. 75-40 17' 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............... 75-71 39, 43 ............................................. U75-30 119 ........................................ U75-33, U75-59 140 ............................................... U75-79 156 et seq.................................... 75-21, U75-87 156, 237 ............................................ 75-21 156, 432 ........................................... U75-53 459 ............................. Op. Att'y Gen. 1975, p. 457 532 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-75 533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-75 656 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-97 699 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-146 717 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-72 933 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-20 2380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-11 Ga. Laws 1963 81 .................................................. 75-98 122 ............................................... U75-43 141 ............................................... U75-23 188, 189 ............................................ 75-92 188, 211 ........................................... U75-53 485 ................................................ U75-5 602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-141 602, 604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-141 Ga. Laws 1964 220 ............................................... U75-72 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-41 338 et seq....................... 75-62, 75-123, 75-124, 75-139 483' 484 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .............. 75-30 485 ................................................. 75-36 494 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-20 499 et seq..................................... 75-23, U75-9 499, 513 ............................................ 75-22 499, 519 ........................................... U75-90 483 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1964-Continued 499, 547 ............................................ 75-22 499, 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-44 678 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-40 693, 696 ............................................ 75-58 3255 .............................................. U75-46 Ga. Laws 1964, Extra. Sess. 26 et seq............................... 75-77, 75-111, 75-144 26, 28 ........................................ 75-77, U75-2 26, 38 ............................................. 75-103 26, 49 ............................................. 75-111 26, 54 ............................................. 75-148 Ga. Laws 1965 18, 22 .............................................. 75-30 81 .................................................. 75-21 92 .................................................. 75-69 230 ...................................... 75-3, 75-30, 75-78 283 ................................................ 75-139 298 ........................................ 75-140, U75-59 335 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-96 385 ......................................... 75-142, U75-1 448 ............................................... U75-61 458 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-68, 75-108 2243' 2274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-54 2551, 2552 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-41 Ga. Laws 1966 195 ................................................. 75-69 296, 298 ............................................ 75-140 334 ................................................. 75-23 346 ................................................. 75-69 398 ................................................. 75-69 409 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-59, U75-62, U75-66 471 ................................................. 75-69 567 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-17 609 et seq.................... 75-105, U75-58, U75-68, U75-72 692 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-126 1066 .............................................. U75-55 Ga. Laws 1967 226 ................................................ 75-105 252 .......................................... 75-40, 75-142 296 et seq..................................... 75-23, 75-44 555 ................................................ 75-141 484 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1967-Continued 878 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-1 888 ............................... ' ................. 75-65 3280 .............................................. U75-88 Ga. Laws 1968 137, 141 ............................................ 75-69 259 et seq............................. 75-80, 75-104, U75-21 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-69 324 ........................... 75-36,75-110, U75-42, U75-85 425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-10 430, 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-41 441, 442 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-18 565 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-38, 75-83 565, 706 ............................................ 75-83 565, 707 ............................................ 75-38 565, 818 ........................................... 75-143 871, 873 ........................................... 75-148 885 et seq.......................................... 75-144 1143 ................................................ 75-69 1217 ................................................ 75-69 1248 .............................................. U75-36 1249, 1282 .......................................... 75-73 1249, 1287 .......................................... 75-17 1249, 1324 ......................................... U75-10 1249, 1339 ......................................... U75-43 1364 ................................................ 75-41 1690 ................................................. 75-7 1743, 1744 ......................................... U75-33 Ga. Laws 1969 80 ................................................ U75-63 152, 201 ............................................ 75-38 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-69, U75-9 355 ............................................... U75-86 504 ........................................ U75-33, U75-64 505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-52 546 ................................................. 75-43 561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-69 721 ................................................. 75-33 763 ................................................ 75-136 875, 876 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-17, U75-56 929 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-14, 75-80 996 ............................... 75-17, 75-47, 75-78, 75-98 485 GEORGIA LAWS-Continued AcT PAGE Op. No. Ga. Laws 1969-Continued 2502 to 2513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-37 3806, 3825 ......................................... U75-67 Ga. Laws 1970 187 et seq.......................................... U75-30 199, 200 ........................................... U75-30 208 ................................... 75-89, 75-118, U75-7 208, 214 ........................................... U75-24 243 ................................................. 75-61 301 ................................................. 75-69 321 ............................. 75-40, 75-95, U75-8, U75-91 346 ................................................ 75-140 347 .......................................... 75-18, U75-2 426 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-59 451 ......................................... U75-1, U75-70 511 ................................................. 75-69 531 ................................................. 75-69 573, 576 ............................................ 75-69 653 ............................................ 75-5, 75-69 692 .................................................. 75-3 695 ................................................. 75-28 724, 728 ........................................... U75-71 954 et seq.......................................... 75-141 1049 ................................................. 75-7 Ga. Laws 1971 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-91 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-4, 75-45 93 .................................................. 75-82 99, 100 ............................................ 75-104 111, 133-34 ................................... 75-68, 75-108 180 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-16 380 ............................................... U75-47 425 ................................................. 75-69 559 ................................................. 75-69 583' 588 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 75-69 627 ........................................... 75-25, 75-26 709 ................................... 75-20, 75-98, U75-34 856 ................................................. 75-38 906 ................................................. 75-87 3913 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-41 Ga. Laws 1971, Extra. Sess. 2007 ................................. 75-68, 75-108, U75-36 486 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1971, Extra. Sess.-Continued 2007, 2012 ......................................... 75-108 2007, 2101 .......................................... 75-108 2007, 2103-04 ....................................... 75-108 2007, 2105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-108 Ga. Laws 1972 176 ................................................. 75-46 193 ............................................... U75-95 193, 197 ............................................ U75-5 207, 208 ........................................... U75-19 207, 209 ........................................... U75-45 222, 229 ............................................. 75-69 347 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-115 388 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-69 541-2 ............................................... 75-80 592 .............................. 75-47, 75-50, 75-73, 75-127 617 et seq........................................... 75-70 673 ................................................. 75-44 676 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-44 742, 743 ............................................. 75-3 762 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-83, 75-128, 75-135 909, 910 ............................................ 75-25 1015 ............................. 75-35, 75-40, 75-72, 75-142 1015, 1020 ................................... 75-89, 75-106 1015, 1032 ......................................... 75-142 1015, 1035 ......................................... U75-91 1015, 1038 .................................... 75-65, 75-80 1015, 1041 ......................................... 75-124 1015, 1046 ........................................... 75-4 1015, 1060 .......................................... 75-89 1069 ........................................... 75-4, 75-35 1069, 1073 .................................... 75-35, 75-72 1069, 1074 .......................................... 75-72 1094 ................................................ 75-55 1120 ............................................... 75-142 1125 ............................................... 75-120 1161 .............................................. 75-142 1267 ........................................ 75-84, U75-78 1460, 1463 ........................................... 75-7 1537-44 ............................................. 75-65 1552 .............................................. U75-55 2151 .............................................. U75-29 487 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1973 4, 6 ................................................ 75-69 40 ................................................. 75-100 100 ................................................. 75-69 127 ................................................ 75-141 149 ............................................ 75-6, 75-37 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-70 186-8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-31 200, 217 ........................................... 75-139 260, 262 ............................................ 75-69 311 ................................................ 75-142 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-12 430 ............................................... U75-16 449, 500 ........................................... 75-116 504 ................................................. 75-49 542 ................................................. 75-93 590 ............................................... U75-95 665 ................................................ 75-142 709 ................................................. 75-55 750 ................................................. 75-51 750, 752 ............................................ 75-6.1 750, 759 ............................................ 75-58 778, 780 ........................................... 75-140 790, 791 ........................................... 75-124 827 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-52 895 ..................................... 75-9, 75-27, 75-113 924 ..................................... 75-6, 75-37, 75-125 947 ................................................. 75-24 947, 960, 963 ........................................ 75-96 947, 1000 .......................................... U75-64 947, 1071 et seq...................................... 75-24 1202 .......................................... 75-38, 75-79 1301 .................. 75-110, 75-142, 75-144, U75-34, U75-78 1353, 1390 .......................................... 75-74 1450 ................................................ 75-69 1500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-6 2061 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-17 2452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-49 3039, 3040 ......................................... U75-75 Ga. Laws 1974 113 ...................... 75-13, 75-16, 75-42, 75-115, U75-46 155 ..................... 75-53, 75-103, 75-129, 75-131, 75-143 488 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1974-Continued 1740 0. 0... 0...... 00..... 000.... 0.. 0.. 00... 00000. 00075-142 183, 185 ...... 0...... 0......... 0..... 0....... 0. 0... 075-7 198. 00. 0....... 00. 0. 0. 00.......... 0........... 0.. 0075-107 2000 00. 00... 0....... 00. 00... 000......... 0... 0..... U75-97 221. 0... 0. 0.... 0. 0. 000... 0.... 00. 0. 0. 0... 0..... 0.. 75-121 284. 0. 0... 0.. 0....... 00.. 0............. 0... 0. 0..... 075-38 352, 353. 0. 0.. 0..... 0...... 0......... 00. 0........ 00U75-43 352, 354. 000. 0.. 00.. 0... 0........... 0. 0. 0............ 75-30 352, 3580 0.. 0.. 0..... 00000.. 0... 0....... 0..... 0.. 0. U75-25 379, 380 00.. 0. 0....... 0................ 00.. 0.. 0. 0.... 75-69 392, 393 ...... 00. 000. 0... 0... 0. 00000000... 0.. 0...... 75-69 455. 0.... 00.. 00000... 0........ 0.. 00U75-28, U75-49, U75-99 4940 00.. 0.. 0. 0.... 00............ 0... 0......... 0..... 75-69 496, 497 .............................. 0..... 0... 0... 75-69 522.0 000.......... 0....... 00............ 0.... 0..... 75-144 567, 570 ... 0................... 00.. 0.. 0. 0........ 0. 075-69 609. 0. 00.... 0................... 0... 0...... 0... 0. 0.. 75-55 633.0 00.. 0............. 0.. 0............. 000. 0.. 0... 75-117 705 0000......... 0.. 00.. 075-62, 75-126, 75-128, 75-135, U75-57 705, 716 0.... 0........... 0.. 0. 0. 0.. 0. 0....... 0... 00.75-92 705, 783 0.. 0... 0.. 00........... 0.... 0.. 0... 0.... 0. 0.75-92 705, 784 ..... 0.... 0....... 0..... 00.. 0.. 0. 0. 0.75-56, 75-92 705, 793 0...... 00. 00...... 00....... 0. 00...... 0..... 075-67 705, 802 0. 0. 0........ 0.. 00. 0...... 000.... 000..... 0.. 075-2 705, 819 00.. 00............... 0.. 0.. 00.. 0....... 0... 075-128 705, 869 ...... 0. 0. 0...... 0... 0......... 0. 0... 00.. 0075-126 705, 900 ........... 0..... 0....... 0............. 75-2, 75-67 705, 911 et seq.... 0.. 00. 0. 0. 0.. 0...... 0...... 075-21, 75-102 9720. 000...... 000. 00... 0...... 0. 0.... 00.. 00........ 75-112 975 ..... 0.. 0.. 0.. 0. 00... 0.. 0...... 0....... 0. 0000.... 75-40 10090 00. 0. 0........................ 0.. 00....... 0... 0. 75-5 10450 0. 0... 00... 0.. 0. 0.. 00............. 0.. 00.. 0. 0. 0. 75-63 1045, 1046 ... 0. 00... 0............ 0. 0. 0... 0... 00.... 075-63 1045, 1069 .... 0........ 00..... 0.. 00. 000...... 00.. 0. 075-39 1045, 1080. 0........ 0...... 00.. 0.. 00.... 0... 0.. 75-71, 75-94 1045, 1089 000.... 000. 0... 0...... 0...... 0.. 0..... 00.U75-69 1045, 1090 0... 0. 0.. 0. 0.. 0.. 0...... 0... 0... 0.. 0... 0.. 75-63 1045, 1096 .... 0... 0. 00. 0..... 0.. 0..... 0........ 0.. 0.75-63 11180. 0. 0.. 0.... 0. 0... 00.. 0............. 00... 00... 075-138 1139 0000. 0.................... 0.. 0... 0.. 75-9, 75-27, 75-113 1182 0. 0.. 0.......... 00. 0............. 0. 0. 00......... 75-41 489 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1974-Continued 1201 .............................................. U75-30 1210 to 1213 ....................................... 75-114 1223 ................................................ 75-69 1230 ....................................... U75-29, U75-48 1441 ................................................ 75-31 1455 ........................ 75-20, 75-47, 75-73, 75-78, 75-98 1459 ............................................... 75-125 1508 ..................................... 75-4, 75-40, 75-74 1508, 1559 ........................................... 75-4 1508, 1611 ......................................... 75-125 1508, 1622 .......................................... 75-74 1508, 1625 ................................... 75-68, 75-108 1508, 1630 .......................................... 75-11 1508, 1631 .......................................... 75-69 1652 ........................................... 75-9, 75-27 3269, 3293 ......................................... U75-96 Ga. Laws 1975 79 et seq....... 75-4, 75-45, 75-48, 75-81, 75-106, 75-145, U75-57 79, 90 ............................................. U75-71 147 ................................................. 75-37 154 .......................................... 75-37, 75-125 181, 182 ............................................ 75-130 216 ................................................ 75-40 216, 318 ............................................ 75-89 216, 345 ............................................ 75-74 216, 348 ....................................... 75-68, 75-74 370 ............................................... U75-63 372 .......................................... 75-76, 75-105 376 et seq..................................... 75-91, 75-134 404 ................................................ 75-139 473 ................................................ 75-141 474, 475 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-141 475, 476 ........................................... 75-141 489 ............................................... U75-51 492 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-142 539 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-39 567 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-59 583 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-83 676, 680 ........................................... U75-78 774 ................................................. 75-55 801 ................................................. 75-99 490 GEORGIA LAWS-Continued AcT PAGE OP. No. Ga. Laws 1975-Continued 852 ............................................... U75-50 900 .................................... 75-47, 75-50, 75-127 922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-61 1002 .............................................. U75-38 1008 ........................................ 75-117, 75-122 1079 ......................................... 75-68, 75-108 1090 ................................................ 75-55 1120 .................................. 75-53, 75-103, 75-131 1165 ......................................... 75-89, 75-118 1165, 1168 to 1170 ................................... 75-89 1165, 1169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-118 1165, 1170 .......................................... 75-89 1223 ............................................... 75-132 1291, 1293 ......................................... U75-72 1320 to 1321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-87 1331 .............................................. U75-58 1333 .......................................... 75-37, 75-59 1333, 1361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-71 1333, 1407 ......................................... 75-142 1506 .......................................... 75-70, 75-82 1551, 1554 ......................................... 75-147 1576 ........................................ ' ...... 75-111 1582 ............................................... 75-117 1632 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-133, U75-60 1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-40 2554, 2555 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-41 2960 .............................................. U75-45 4092 .............................................. U75-81 Ga. Laws 1975, Extra. Sess. 1734 ................................................ 75-87 1734, 1807 ......................................... 75-142 1734, 1875 ......................................... 75-108 491 TABLE 4 GEORGIA CODE ANNOTATED SECTIONS CITED CODE SECTIONS OP. No. 1-1340 000000 0000. 000000000. 000000. 000000000000000075-41 1-801. 00000000000000000000000000Op. Att'y Gen. 1975, p. 457 1-815 to 1-819 ... 00. 0000000000000Op. Att'y Gen. 1975, p. 457 2-123 00000000000. 0000000000000000. 0000000000075-40, 75-142 2-3010 0000. 00000000000.. 000000000. 0000000000000000U75-79 2-302 00000. 0. 00000000. 0000.. 00000000000075-14, 75-41, 75-82 2-6010 000000000000. 0000000000000Op. Att'y Gen. 1975, p. 451 2-8010 0000 0000.. 000000000000000000.. 00. 0. 0000000075-17 2-16060 000000. 000000000000000000000000000000000000075-109 2-19010 00000000000000. 0. 00000000000000000000. 0000. 075-109 2-1909 .. 000000. 0..... 0... 0.. 0.. 00.. 0.. 000. 0.. 075-40, 75-87 2-1911 .... 0. 0.. 0. 0. 0.. 0.. 00.. 0.. 00..... 0.. 00.. 0.. 0.. 75-69 2-1916 0.. 00.. 0.. 0.... 000. 00. 000. 00000.... 0..... 000U75-63 2-23010 .. 000... 000. 0. 0.. 0. 00. 0. 0. 0. 000.. 0.. 0. 00000U75-11 Ch. 2-30 ... 0.. 0. 000. 00..... 0.. 00.... 00... 0. 00000.. U75-84 2-3011. 0...... 00... 0. 00... 0.. 0.. 0... 0.. 0.. 0.. 0000.. 075-17 Ch. 2-31 ... 000.. 00. 00.. 0... 0. 0.... 0000. 00.. 00000000U75-84 2-3506 0. 0.... 00.. 00. 0. 0. 0..... 0...... 00. 0. . 000.... 0075-65 2-3601. 0.. 00.. 0... 00. 0.. 000.. 00. 0.... 00. 00000000.U75-13 2-4102 ....... 00... 00... 00.. 0. 0. 0. 00. 0. 0.. 0... 000... U75-7 2-4104 .... 0... 0........ 000. 000. 0. 00000000.. 0000.. U75-16 2-4201 ... 00... 0. 0...... 0. 00000. 0. 00000. 00.. 0... 00U75-89 2-4203 . 0............... 0.. 00. 0. 0... 000. 000. 0000. 00U75-89 2-4301. 0. 00... 0.. 0.. 00.. 00. 0.. 00. 0 0.. 00... 00.. 00U75-89 2-5101 ............ 00.. 0000000000. 00. 0. 000.. 000.. U75-58 2-5402 000.. 00.. 0.. 0.. 0. 75-9, 75-27, 75-119, U75-20, U75-22, U75-26, U75-35 2-5402 (1) .... 0.. 0... 0... U75-23; Op. Att'y Gen. 1975, p. 451 and p. 457 2-5404 .................... 0.. 0....... 00..... 75-7, U75-15 2-5501 .. 0............ 000. 0. . 0. 0..... 0...... 00.. 000075-33 2-5501 (7) ..... 0...... 0.... 0...... 0... 0. 00....... 075-147 2-5503 . 0..... 0...... 0000... 0... 0. . . . 00... 00. 000. . . .75-69 2-5601. 00.. 00..... 0..... 00.. 0..... 0000075-19, 75-40, 75-51 2-5604 .. 0...... 0.. 00....... 0....... 0. 75-40, 75-88, 75-119 2-5701 ... 00. 000... 0000. 0.. 0.. 00....... 00. 000000. 0U75-22 2-57020 00... 0.. 0. 0..... 075-29, 75-33, U75-20, U75-22, 'U75-40 2-5702 (2) ......... 0...... 0........ 0...... 00........ 75-29 2-5702 (8) .. 00..... 0...... 00. 0... 0.... 0.. 0.. 0U75-1, U75-79 2-5702 (9) ......... 0....... 0...... 0..... 0... 0.... 00. 075-29 492 GEORGIA CODE ANNOTATED SECTIONS-Continued ConE SEcTIONs OP. No. 2-5702 (11) .......................................... 75-29 2-5703 ............................................ U75-55 2-5801 ............................................. 75-119 2-5901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 75-40' 75-51 Ch. 2-60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-27 2-6001 .............................................. 75-19 2-6005 ............................................ U75-98 2-6201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-40, 75-71 2-6201 (c) ........................................... 75-87 2-6202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ 75-40 2-6202 (c) ........................................... 75-74 2-6204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-74 2-6204 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... 75-96 2-6801. ..................................... 75-63, U75-32 2-7202 ............................................ U75-32 2-7801 .............................................. 75-51 2-7806 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-82 2-7901a ............... 75-29, U75-33, U75-35, U75-55, U75-98 2-7901a (6) ........................................ U75-79 2-7901a (6) and (7) ................................... 75-29 2-8104 ............................................. U75-6 2-8201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-145 Ch. 2-83 ........................................... U75-35 2-8402 ............................................. U75-35 2-8402 (c) .......................... U75-37, U75-40, U75-77 2-8403 ..................................... U75-37, U75-40 Ch. 2-85 ........................................... U75-35 2-8501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-119 3-706 ............................................. U75-11 3-715 ............................................. U75-11 Title 3A ............................... 75-62, 75-124, 75-139 Ch. 3A-1 ........................................... 75-123 3A-102 (b) ......................................... 75-139 3A-104 ............................................. 75-123 3A-104 (b) .......................................... 75-62 3A-106 ....................................... 75-62, 75-123 5-1807 .............................................. 75-29 5-1901 ........................ -...................... 75-29 Ch. 5-20 ............................................ 75-45 Ch. 5-27 ............................................ 75-57 Ch. 5-29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-136 Ch. 5-30 ............................................ 75-23 493 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. Ch. 5-33 ........................................... 75-142 5-3301 ............................................. 75-142 5-3303 . . . . . . . . . . . . . . . . . . . . . . . ...................... 75-142 5-3305 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ 75-142 5-3308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... 75-142 6-1001 .............................................. 75-30 13-201.1 ...................................... 75-12, 75-141 13-201.1 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-14 13-203 ............................................. 75-141 13-203.1 ............................................ 75-141 13-203.2 ........................................... 75-141 13-207 ...................................... 75-12, U75-14 Ch. 13-22 ........................................... 75-21 13-2202 (a) (2) ....................................... 75-21 13-2202 (b) (2) ...................................... 75-21 13-2203 ............................................. 75-21 13-2216 ............................................. 75-21 Ch. 13-23 .......................................... 75-126 15-301 .............................................. 75-97 15-302 ............. ; ................................ 75-97 20-117 .............................................. 75-41 20-301 .............................................. 75-22 21-201 et seq........................................ U75-9 22-101 et seq......................................... 75-83 22-102 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-38 22-1324 ............................................. 75-83 22-1401 ............................................. 75-38 22-5105 ............................................ 75-143 23-518 ............................................. U75-75 23-1502 ..................................... 75-32, U75-79 23-2501 et seq...................................... U75-79 23-2906 ............................................. 75-65 23-2908 to 23-2913 ................................... 75-68 Ch. 23-31 .......................................... U75-16 23-3102 ............................................ U75-16 23-3106 ........................................... U75-16 24-401 ............................................ U75-89 Ch. 24-8 ........................................... U75-56 24-817 ............................................ U75-17 24-822 ..................................... U75-17, U75-56 24-823 ............................................ U75-17 24-1304 ............................................ U75-50 494 GEORGIA CODE ANNOTATED SECTIONS-Continued ConE SECTIONS Or. No. 24-1501 ... 0. 00. 00000. 000000. 0. 0000000000. 00. 000000U75-29 Ch. 24-17B 000000. 00... 0000. 00000000U75-28, U75-49, U75-99 24-1701b 00000. 00000000000000000000000000000U75-49, U75-99 24-1702b 00000000000000000000000000000. 0. 000000. 0.. U75-49 24-1703b 000. 000000000000000000000. 000000000U75-49, U75-99 24-1704b 0000000000. 00000000000000000000. 0. 00000000U75-49 Cho 24-240 0000000000000000000000000000. 0.. 0.. 00. 00OU75-11 24-2402 00000000. 00000000. 000000. 000000000. 00000. 000U75-11 24-2606.1 (3)0 00. 000.. 00.. 0. 0000000000. 00000000. 0000075-52 24-2610. 000000000. 0000. 0000000000000. 0. 0.... 0. 0. 00U75-68 24-2616. 0000000000000000000000. 0000000000000000000U75-68 24-2616.40 000000000. 000000000. 0000. 0. 00. 00000000000U75-68 24-2617 00000000. 0. 00. 0000000000000. 00000000. 0. 00000U75-68 24-26310 000000. 0000000000000. 00000000. 000..... 75-70, 75-82 24-26320. 000000. 0. 000000. 0. 00000000. 000000000075-70, 75-82 Ch. 24-26Ao 0000.... 0... 0000. 00. 000000. 00000U75-13, U75-74 24-2601ao 0000000000000000000000000000. 000000U75-3, U75-74 24-2602a 0. 0000. 000000000. 00000000. 000000. 000075-14, U75-3 24-2604a 000000. 00000000000. 00000000. 00. 0. 000000000U75-74 24-2605a 0000000. 00000000000000000000U75-3, U75-13, U75-74 24-2605aol. 000000000000000. 000000000. 0. 0..... 0.. 00U75-13 24-2606ao 000000000000000000000. 0. 0000. 00000U75-13, U75-74 24-2607ao 0000.. 0. 0.... 0.. 00. 000000000. 0000U75-13, U75-74 24-2610ao 000000000000000000. 0000. 0000000000. 0000000U75-74 24-2621ao 00000000000000000000. 0000. 0. 00. 000U75-13, U75-74 24-2622ao 000000000. 0:. 00000. 0000. 0000. 00000U75-13, U75-74 24-2805 000000000. 0000000000000. 0000. 00000000000000U75-61 24-28110 .. 0. 00. 00000000000. 000000. 00.. 0. 0... 75-64, U75-37 24-2813. 000000000000000000. 000000000. 00. 0000000000U75-36 24-2814 00000. 0. 0. 0.. 0... 0.. 00000.... 000. 0000000. 00U75-36 24-2825 00. 00000. 00. 0. 000000.. 00000. 0000000. 0. 000000075-64 24-2826 0. 0000000000000000000. 000000000. 00. 00000. 00U75-41 24-2827 000000000. 000000000. 000. 00000. 00. 00000. 00. 0U75-36 24-2830 00000000. 0000000000000. 000000000. 000. 000000U75-36 24-2831 to 24-28340 00000000. 000000000.. 0. 0.. 0... 0. 00U75-47 24-2930 00000000000000000. 00. 00000. 00000000. 00075-14, 75-80 24-29310 00000. 000.. 0....... 0. 00. 000. 0. 0000. 075-70, 75-82 Ch. 24-29A 000. 0000000000o00000. 00000. 00000000000. 0U75-60 24-2902a 0. 00000. 000000. 000000. 0. 0000.. 0. 00. 000. 00. U75-60 24-2903a.10 00000. 000000. 0. 00. 00000.. 0000000000. 0. 00U75-60 24-2904a 0000000000000000000000000. 000. 000000. 00000U75-60 24-2909a 00000000000000000. 00. 0000. 00. 0..... 75-133, U75-60 495 GEORGIA CODE ANNOTATED SECTIONS-Continued ConE SECTIONS OP. No. 24-2910a .......................................... U75-60 24-3104 ........................................... U7 5-50 Title 24A .................................... 75-98, U75-11 24A-201. .......................................... U75-11 24A-301 ............................................. 75-98 24A-2303 ............................................ 75-98 24A-2304 ............................................ 75-20 24A-2401 ...................................... 75-20, 75-98 24A-2701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-98 24A-2701 (b) ........................................ 75-20 Ch. 24A-35 ........................................ U75-34 Ch. 25-1 ............................................. 75-2 Ch. 25-3 ...................................... 75-2, U75-80 26-1005 ........................................... U75-43 26-1311 ............................................. 75-73 26-1601. ............................................ 75-17 26-2904 ........................................... U75-10 27-102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-29, U75-48 27-108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-65 27-206 ............................................ U75-24 27-314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-17 27-801 ............................................ U75-65 27-2302 ........................................... U75-43 27-2502 ............................................. 75-30 27-2505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-3, 75-30, 75-78 27-2506 ............................................. 75-36 27-2510 ............................................. 75-20 27-2511.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-25 27-2530 .............................................. 75-3 27-2702 et seq........................................ 75-36 27-2702 to 27-2726.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-42 27-2727 ............................................. 75-36 27-2727 et seq....................................... 75-110 27-2727 to 27-2732 . . . . . . . . . . . . . . . . . . . . . . . . . . U75-42, U75-85 Ch. 29-4 ........................................... U75-87 29-409 ............................................. U75-53 30-101 ............................................ U75-83 30-103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-83 30-104 ............................................. U75-83 30-117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-83 30-120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-83 30-128 ............................................ U75-83 496 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. 32-408 .............................................. 75-63 32-658 (a) . . . . . . . . . . . . . . . . . . . . . . . . . ................ U75-69 Ch. 32-6A ........................................... 75-63 32-602a ............................................. 75-63 32-637a ............................................. 75-39 32-648a ............................................. 75-71 32-648a (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-94 32-653a ............................................. 75-63 32-655a ............................................ 75-130 32-661a ............................................. 75-63 32-669a ............................................. 75-63 32-901 .............................................. 75-63 32-902 .............................................. 75-15 32-905 .............................................. 75-15 32-912 .............................................. 75-63 32-942 .............................................. 75-33 32-1403 ............................................. 75-94 32-1403.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-94 Ch. 32-26 ........................................... 75-33 32-2606 ............................................. 75-33 32-2607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-33 32-2706 ............................................. 75-33 32-2707 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-33 32-2901 ............................................. 75-46 32-2901 (5) ..................................... 75-9, 75-46 32-2901 (8) ......................................... 75-113 32-2903 (1) .......................................... 75-46 32-2903 (3) ......................................... 75-113 32-2904 (2) ......................................... 75-113 32-2904 (5-A) .................................. 75-25, 75-26 32-2905 ............................................. 75-86 32-2905 (1) ........................................... 75-8 32-2905 (1) (a) ....................................... 75-1 32-2905 (2) (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-9, 75-27, 75-113 32-2905 (2) (f) ........................... 75-9, 75-27, 75-113 32-2905 (6) (a) ...................................... 75-25 32-2906 ............................................. 75-66 32-2912 ............................................. 75-66 32-2917 ............................................. 75-66 32-2918 ............................................. 75-66 32-2922 .............................................. 75-9 32-2922 (2) ......................................... 75-113 497 GEORGIA CODE ANNOTATED SECTIONS-Continued ConE SEcTIONS OP. No. 32-3706.1 .......................................... 75-138 Ch. 32-39 ........................................... 75-87 32-3907 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-87 34-101 et seq........................................ 75-144 34-102 ............................................. U75-2 34-103 (aa) .......................................... 75-77 34-107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-144 34-201 ............................................. 75-144 34-202 ............................................. 75-144 34-203 ............................................. 75-144 34-205 ............................................. 75-103 34-602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ 75-77 34-605 ............................................. 75-111 34-610 (a) .......................................... 75-148 34-613 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-111 34-627 ............................................. 75-111 34-631 (e) .......................................... 75-111 34-632 .............................................. 75-77 34-1002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-144 34-1014 ............................................. 75-18 Ch. 34-10A ......................................... 75-132 34-1011a ........................................... 75-132 34-1514 ............................................ U75-2 34-1702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-144 34-1703 ............................................ 75-144 34-1901.1 .......................................... 75-144 34A-101 et seq...................................... 75-144 34A-105 ........................................... U75-86 34A-107 ............................................ 75-144 34A-110 ........................................... 75-144 34A-901 ............................................ 75-144 34A-1501 .......... ,. __ .............................. 75-144 34A-1602 .......................................... 75-144 34B-311 ........................................... 75-139 Ch. 40-1 ........................................... U75-84 40-107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-74 40-304 . . . . ......................................... 75-142 40-305 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-142 40-402 (1) and (2) .................................... 75-71 40-421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ 75-40 Ch. 40-8C ........................................... 75-84 40-802c (g) .......................................... 75-84 498 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SEcTIONS OP. No. 40-803c ............................................. 75-84 40-804c . . . . . . . . . . . . . . . . . . . . . . . . . . . .................. 75-84 40-805c ............................................. 75-84 40-807c (b) .......................................... 75-84 40-813c ........................................... U75-78 Ch. 40-8D ......................................... 75-142 40-801d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-142 40-805d ............................................ 75-142 Ch. 40-14 .......................................... U75-84 40-1909 ............................................. 75-58 40-1910 ............................................. 75-58 40-1921.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-58 Ch. 40-20 .......................................... 75-120 40-2001 ............................................ 75-120 Ch. 40-22 ............ 75-4, 75-45, 75-48, 75-81, 75-106, U75-57 40-2202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-81, 75-106 40-2203 ............................................. 75-45 40-2204 ............................................. 75-45 40-2204 (b) (3) ..................................... 75-145 40-2207 ........................................... U75-71 Ch. 40-25 ........................................... 75-82 40-2501 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-77 40-2503 (14) ......................................... 75-82 40-2503 (16) ................................... 75-70, 75-82 40-2518.1 ........................................... 75-114 40-2535 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-104 40-2601 ............................................. 75-40 Ch. 40-27 .......................................... U75-92 40-2701 ........................................... U75-75 40-2901 to 40-2907 .................................. 75-142 40-2902 ............................................. 75-40 40-2903 ............................................. 75-40 40-2905 (d) .......................................... 75-40 40-2909 (a) .......................................... 75-40 40-2916 (e) .......................................... 75-40 40-2918 ........................................... U75-91 40-2920 ...................................... 75-95, U75-8 40-2922 ............................................ U75-8 40-2923 ............................................ U75-8 40-3501 et seq........................................ 75-72 40-3505 . . . . . . . . . . . . . . . . . . . . . . . . . . 75-35, 75-72, 75-89, 75-106 40-3510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-35 499 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SEcTIONS OP. No. 40-3528. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-142 40-3532 ............................................ 75-142 40-3540 to 40-3542 ................................... 75-40 40-3542 ........................................... U75-91 40-3557 ....................................... 75-65, 75-80 40-3574 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-124 40-3575 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-124 40-35101 ............................................. 75-4 40-35113 ............................................ 75-40 40-35168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-89 Ch. 40-36 .......................................... 75-142 Ch. 40-38 ............... 75-53, 75-103, 75-129, 75-131, 75-143 40-3803 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-131 40-3806.1. ................................... 75-53, 75-143 40-3809 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-103 Title 41A ........................................... 75-62 41A-101 et seq...................................... U75-57 41A-102 ............................................ 75-92 41A-205 .......................................... U75-57 41A-302 ............................................ 75-62 41A-317 (a) ........................................ 75-126 41A-504 ........................................... 75-135 41A-1102 ........................................... 75-92 41A-1103 ........................................... 75-56 41A-1104 ........................................... 75-92 41A-1306 ........................................... 75-67 41A-1313 ............................................. 75-2 41A-1611 ........................................... 75-128 41A-1907 .......................................... 75-126 41A-2201 ........................................... 75-126 Ch. 41A-23 ......................................... 75-126 41A-2301 ........................................... 75-126 41A-2303 (b) ....................................... 75-126 41A-2305 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-126 41A-2306 ........................................... 75-126 Ch. 41A-30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-2 Ch. 41A-31 ........................................... 75-2 41A-3109 ............................................ 75-2 41A-3109 (d) and (e) ................................. 75-67 Ch. 41A-32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-21, 75-102 41A-3202 ........................................... 75-102 42-813.1. .......................................... U75-41 500 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. 43-213a ............................................. 75-69 46-105 ............................................ U75-72 46-105.1 ........................................... U75-72 46-801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-71 46-805 .......................... Op. Att'y Gen. 1975, p. 457 Ch. 47-10 ........................................... 75-28 47-1002 (a) .......................................... 75-28 49-604 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............. U75-52 Ch. 52-5 ........................................... U75-38 53-102 ............................................. U75-5 53-201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-3, U75-96 53-206 ............................................. U75-5 53-215 ............................................. U75-4 54-803 .......................... Op. Att'y Gen. 1975, p. 457 Ch. 54-9 ........................ Op. Att'y Gen. 1975, p. 457 54-901 (a) ....................... Op. Att'y Gen. 1975, p. 457 54-904 .......................... Op. Att'y Gen. 1975, p. 457 54-909 .......................... Op. Att'y Gen. 1975, p. 457 55-301 .............................................. 75-83 Title 56 ............................................. 75-83 56-101 et seq................................. 75-83, U75-46 56-201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-84 56-623 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-54, 75-116 56-1303 ............................................. 75-54 56-1312 ............................................ 75-116 56-1424 . . . . . . . . . . . . . . . . . . . . . . . . ..................... 75-83 56-1503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-83 Ch. 56-34B ....................... 75-13, 75-16, 75-42, 75-115 56-3401b et seq..................................... U75-46 56-3402b . . . . . . . . . . . . . . . . . . . . . . . . . . . ................ 75-115 56-3402b (e) ......................................... 75-13 56-3403b ..................................... 75-13, 75-115 56-3405b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-115 56-3411b ............................................ 75-16 56-3412b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-13 56-9915.2 .......................................... U75-46 57-101 ............................................. U75-63 57-118 ............................................ U75-63 57-119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-63 58-207 ............................................ U75-41 58-608 ............................................ U75-97 58-1003 ........................................... U75-19 501 GEORGIA CODE ANNOTATED SECTIONS-Continued ConE SECTIONS OP. No. 58-1005 .. 0..... 0..... 0........................... 0U75-45 59-310 0........ 0. 0.. 0........................... 00U75-70 59-3110 ......... 0.... 0............................ U75-70 59-703 .............. 0.. 0. 0... 0............... 0. 0.. U75-58 59-704 0..... 000........... 0................. 0..... U75-58 62-107. 0....... 00.... 0....... 0................... 0U75-68 Ch. 62-15 ....... 0..... 0....... 0......... 0. 0...... 0.75-142 62-1502 ........ 00.. 00............... 0... 0..... 0. 00075-142 62-15050 0...... 00... 0......... 0....... 0......... 00075-142 62-17160. 00.... 0.. 000...... 0. 00....... 0........... 0. 75-23 64-1010. 00.. 00..... 00.. 00...... 00000....... 0...... 0075-59 Ch. 67-20 .. 0... 00.... 00.. 0.... 00......... 0........ U75-87 Title 68 . 00..... 0... 0. 0.. 0.... 0.. 0................ 0U75-46 68-221 . 000. 00.. 0. 0.... 0... 0. 0. 00. 00............. 0. 0U75-12 68-401a et seq.... 0... 0.. 0. 0..... 000. 0.... 0.. 0...... U75-51 68-423a 0. 0. 0. 00.. 0.. 0.. 0000.... 0......... 0........ U75-51 68-16260 .. 0.. 000. 0.. 0.. 0. 00........... 0........... 075-117 68-1682 00000000.. 0000.. 0.. 0..... 0... 0............ 00075-10 Ch. 68-210 ..... 000... 0....... 0........ 0....... 0... 0.75-10 68-2101. 00... 000..... 00. 0.. 0. 00............... 0. 0.. 075-10 68-2107. 0.... 00.................... 0......... 000... 075-10 68-9901 et seq.... 0.. 0. 0.... 0.. 0..... 0. 0. 0..... 00... U75-46 Title 68A .. 0......... 0.. 0... 0.. 0.... 0............ 0.75-117 68A-801 et seq. 00. 00000.. 000.... 0. 00... 0... 00. 00... 075-117 68A-808 ... 000... 0. 0...... 0... 0. 0...... 00.... 0. 0. 00.75-117 Title 68B. 0.... 0.... 000...... 00.... 0. 0.. 00.. 75-117, 75-122 68B-215 .. 0000000.... 00. 00. 00. 0....... 0............ 075-122 68B-305 0. 0.. 00..... 00.... 0.. 0......... 0.. 0. 0..... 075-117 68B-312. 0........ 0...... 0.. 0.... 0.... 000. 0..... 00075-117 69-2010 000000.. 00..... 00...... 00000. 00.. 0.... 0...... 75-18 69-3010 ... 0.... 00..... 0....... 0.. 0. 0. 0...... 75-32, U75-79 69-314. 00... 0000..... 00.... 0....... 0... 0..... 000.. U75-79 69-702 ........ 0.. 0.. 0.......... 0............ 0000. 0U75-29 69-704 .. 0. 000000. 0........ 0... 0.... 0. 0.......... 0. 0U75-7 69-705 ...0.. 00.. 00..... 0. 0.... 000..... 0.. 0. 0..... 00U75-29 69-802 00.. 0............ 0......... 0........... 0. 0. 0U75-79 Ch. 69-9 0. 00... 00. 0... 000... 0. 00.. 0000....... 0. 0000U75-59 69-902 .... 0... 0...... 0000. 0.. 0.. 0. 0U75-33, U75-59, U75-64 69-904 et seq.... 0......... 0..... 0. 0. U75-59, U75-62, U75-66 69-905 .. 0...... 0.......... 0... 0...... 0. 0.... 00. 000U75-62 69-906 0. 00.. 0..... 0..... 0...... 0.. 0.... 0. 0.U75-62, U75-66 69-908 0.. 000.. 00..... 00.. 0.. 0.... 0.. 0... 0. 0..... 0.U75-59 502 GEORGIA CODE ANNOTATED SECTIONS-Continued ConE SECTIONS OP. No. 69-913 et seq....................................... U75-59 69-921 ............................................ U75-59 Ch. 69-10 .......................................... U75-59 69-1015 et seq....................................... 75-140 69-1016 ........................................... U75-59 69-1018 (a) ......................................... 75-140 69-1101 et seq....................................... 75-119 69-1105 ............................................ 75-119 69-1107 (e) ......................................... 75-119 69-1107 (f) ......................................... 75-119 69-1201 et seq...................................... U75-82 Ch. 69-13 ..................................... 75-68, 75-108 72-101 .............................................. 75-32 Ch. 73-2 ........................................... 75-124 73-216 ............................................. 75-124 73-222 ............................................. 75-124 73-222 (a) (3) ...................................... 75-124 73-223.1 ........................................... 75-124 73-224 ............................................. 75-124 73-9902 ............................................ 75-124 73-9907 ............................................ 75-124 74-104.1 ........................................... U75-95 77-309 ............................................ U75-93 77-309 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 75-93 77-310 ............................................. 75-146 77-317 .............................................. 75-93 77-320 ....................................... 75-78, 75-146 77-345 to 77-360 ......................... 75-47, 75-50, 75-73 77-346 .............................................. 75-47 77-355 .............................................. 75-47 77-356 ........................................ 75-47, 75-50 77-358 ............................................. 75-127 77-359 ........................................ 75-47, 75-50 77-360. . . . . . . . . . . . . . . . .............................. 75-50 Ch. 77-5 ............................................ 75-78 77-509 .............................................. 75-35 77-511 ............................................. 75-121 77-512 .............................................. 75-72 77-518 ............................................ U75-30 77-522 .............................................. 75-72 77-525 .............................................. 75-78 77-533 .............................................. 75-72 503 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SEcTIONS OP. No. 77-505a 0... 0.. 000.. 0..... 00..... 0.. 0........ 0.75-35, 75-72 77-507ao ..... 000....... 000......................... 075-72 Ch. 77-5C 00.. 0. 00...... 0... 0. 0.. 0.. 0... 0. 0.. 0.. 00.. 075-59 Ch. 78-9 ....... 0... 0... 0. 0. 0. 0. 0.... 0. 0... 00...... U75-77 78-901 ... 00. 0000.. 0.... 0...... 00. 00.... 0....... 0. U75-30 78-909 ........... 00... 0.................. 0.. 0... 00U75-77 78-920 .... 0.. 0....... 0. 0. 0... 0...... 0.. 00. 0. 00... 0U75-77 Ch. 78-100 0.. 0. 0....... 0.. 0.. 0000 00.... 0.. 0U75-77 78-1001 .... 0. 00.. 0...... 00. 0. 0 00.. 0... 0...... 0.. U75-31 78-1002 .... 0..... 00 00.... 0..... 0.... 0. 0... 0... 0000U75-84 78-1004 .... 000... 0......... 00...... 00000... 0... 000. U75-84 78-1005 .... 000... 0... 0... 00......... 0000..... 0.. 0.U75-18 78-1006 .. 00. 0000.... 0. 00..... 0. 00. 00. 00.... 0.... 00U75-77 78-1007 .... 000............ 0........ 0... 0... 00. 0. 00U75-31 78-10140 00.... 000.. 0.... 000.. 000......... 0... 0 0. 00. U75-31 78-1017 0... 0..... 0...... 0... 00. 000. 0 0.. 00.. 0 00.. 0U75-31 78-1020. 00.. 0. 00.. 0 00000... 0.. 0... 00.. 00000. 0... U75-84 78-10210 0... 0.. 0.. 00.. 00000000.. 000.. 0.. 000. 0 0000.U75-84 Ch. 78-13 ..... 000.. 0. 0. 0. 00000. 000. 00075-80, 75-104, U75-21 78;.1303 ... 00. 00000000.. 00. 00. 000. 000.... 0.. 0.... 0. U75-21 78-13080 00000. 000000 000. 000. 000 00.. 00.. 0075-80, U75-21 78-1311 (a) 0. 0. 000.. 00.. 00000 0. 0... 000. 00. 0.. 00. 0000075-80 78-1316 (a) and (b) 00000. 0. 0. 00000.. 000. 0. 0. 000. 0. 00U75-21 78-13180 000000. 0000.. 00. 0000. 00. 00.. 000. 000. 75-104, U75-21 78-1319 0...... 0.. 00.. 00. 0000. 00.. 00. 000. 000... 000. 075-104 79-2010 0. 0.. 00..... 0. 000.. 0.. 00.. 00.. 00.. 000. 0000.. 0 75-77 79-205 0.... 0000. 000.. 0. 0. 00000. 0 00.. 00. 0. 0. 075-18, U75-39 79-4030 0. 00. 00.... 000. 0... 0000. 0. 00.. 000.. 00... 00. 00 75-77 79-407 0. 0... 0 00........ 00.. 00000. 00. 00000.. 000. 000. 75-77 Ch. 79-5 . 0.. 0 0 0 00 0 0 000 000.. 0. 00.. 0... 0.. 0.. 0 0... 00.75-49 79-501 ..... 00... 0.... 0. 00... 00. 0.. 000. 0. 00. 0. 00. 00. 075-49 Title 79A ......... 0.... 0.. 0000.. 0. 00. 0.. 0.... 000... 075-44 Ch. 79A-2 0000.. 0. 0. 00. 0.... 000.. 00.. 0 0......... 00.. 075-23 Ch. 79A-30 00. 0......... 0.. 00.. 00...... 0.. 0. 0.... 0 0 75-23 Ch. 79A-7 .. 0. 00... 0... 000.. 0.. 00... 0. 000 0.. 000.. 000. 75-23 81-108 (a) ... 0....... 0.. 00.. 0.. 000 000. 000 0.. 000 0. 00U75-58 81A-101. .... 0... 000... 0.. 000.. 0 0.... 0.. 0.... 000. 00U75-58 81A-102 0. 0... 0... 0... 00000 00 0000000. 0.. 000 0.. 0000U75-58 81A-104 (e) 000. 00. 0. 0000.. 0.. 00.. 00 0 0000. 00... 000U75-72 81A-105 (b) ... 0.. 0.... 0... 0000.. 00.. 0. 0.. 0. 00 0.... 075-105 81A-140 (b). 0.. 00... 0. 0...... 00... 0.. 00..... 00 000U75-68 81A-155. 0 0......... 0000.. 0000.. 00000. 00. 0... 0... 0. U75-68 504 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SEcTIONS OP. No. 82-202 ............................................. 75-132 Ch. 84-1 ............................................ 75-43 84-102 .............................................. 75-43 84-312 .............................................. 75-69 84-409 .............................................. 75-69 84-604 .............................................. 75-69 84-507 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 75-69 84-713 .............................................. 75-69 84-808 .............................................. 75-69 Ch. 84-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-44, 75-60 84-901. ....................................... 75-44, 75-60 84-906 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ 75-44 84-914 .............................................. 75-69 Ch. 84-10 ........................................... 75-44 84-1007 ............................................. 75-69 84-1022 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-44 84-1023 ............................................. 75-69 84..,1105 ............................................. 75-69 84-1207 ............................................. 75-69 84-1412 ............................................. 75-69 84-1413 ............................................. 75-69 84-1504 ............................................. 75-31 84-1506 ............................................. 75-69 84-1508 ............................................. 75-69 Ch. 84-16 .......................................... U75-44 84-1603 ........................................... U75-44 84-1604 ........................................... U75-44 84-2128 ............................................. 75-69 84-2133 ............................................. 75-69 84-2134 ............................................. 75-69 84-2208 ............................................. 75-69 84-2318 ............................................. 75-69 84-2502 ............................................. 75-69 84-3004 ............................................. 75-69 84-3019 ............................................. 75-69 84-3115 ............................................. 75-69 84-3504. . . . . . . . . .................................... 75-69 84-3701 ............................................. 75-99 84-3706 ............................................. 75-69 84-3710 ............................................. 75-99 84-3711 ............................................. 75-99 84-3809 ............................................. 75-69 505 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONs OP. No. 84-4018 ............................................. 75-69 84-4104 ............................................. 75-69 84-4410 ............................................. 75-69 84-4505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-69 84-4609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-69 84-4704 ............................................. 75-69 84-4805 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 75-69 84-4904 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 75-69 84-5006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 75-69 84-5101 ............................................ U75-9 84-5107 ............................................ U75-9 84-5111 ............................................. 75-69 84-5304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-69 Ch. 84-54 ........................................... 75-61 84-5405 ............................................. 75-61 84-5504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-69 Ch. 84-56 ............................................ 75-5 84-5602 (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-5 84-5603 (F) .......................................... 75-5 84-5609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-69 84-5616 (H) (5) ....................................... 75-5 84-5714 ............................................. 75-69 Ch. 84-58 ........................................... 75-38 84-5910 ............................................. 75-69 Ch. 84-60 ........................................... 75-43 84-6004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 75-43 Ch. 84-62 ........................................... 75-44 84-6505 ............................................ 75-100 84-6507 ............................................ 75-100 84-6508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 75-100 84-6510 ............................................ 75-100 84-6511 ............................................ 75-100 84-6512 ............................................ 75-100 84-6514 (a) (1) ..................................... 75-100 84-6702 .............................................. 75-5 84-6703 (e) ........................................... 75-5 84-6707 .............................................. 75-5 84-9963.1 ........................................... 75-99 85-1301 .................................... U75-79, U75-94 85-1302 .................................... U75-79, U75-94 85-1303 .......... U75-79, U75-94; Op. Att'y Gen. 1975, p. 451 85-1304 ........................................... U75-94 506 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. 85-1307 0000000000000000000000000Op. Att'y Gen. 1975, po 451 85-1309 0 000000000000000000000000Opo Att'y Gen. 1975, p. 451 85-2001 et seq. 0 000000000000000000000000000000000000075-83 85-2003 0000000000000000000000000000000000000000000075-135 85-2004 00 00000000000000000000000000000000000000000075-83 85-2007 000 0 00000000000000 00. 0000000000000000075-83, 75-135 85-2009 0000000000000000000000000000000000000075-83, 75-135 85-2012 0000000000000000000000000000000 000000000000075-135 85-20130 0 0000000000000000000000000000. 00000075-128, 75-135 85-2014 0000000000000000000000000000000000000000000075-135 85-2015 0000000000000000000000000000000000000000000075-135 86-202 00. 00000000000000000. 000000000000000000000000075-81 86-206 000000000000000000000000000000000000000 00000075-81 86-1804 0000000 000000000000000000000000000000000000075-81 86-1807 (l) 0 00000000000000000000000000000000000 0000075-147 87-102a 0 000000000000000000000000000000000000000000075-6.1 87-103a 00000000000000000000000000000000 000000075-51, 75-58 87-2010 00000000000000 00000000000000000000000 0000075-132 Ch. 87-8 0000000000000000000000000000000000000000000U75-22 88-203 00000000000000 00000000000000000000000 00000075-22 88-204 (f) 000000000 0000000000000000000000000000000075-22 88-204 (g) 0000000000000000000000000000000 00000000000075-22 88-304 (d). 0000000000000000000000000000000000000000U75-90 88-507.3 000000000000000 00000000000000000. 000000000U75-52 88-602 000000000000000000000000000000000000000000000075-22 Ch. 88-15 0 000000000000000000000000. 000000 0000000000075-23 88-1715 0 0 000000000000000000000000000000000000000000U75-9 88-1717 0 0 0 000000000000000000000000000000000 0000000U75-9 Ch. 88-19 0 0 000000000000000; 00000000000000000000000075-44 Title 89 0 000000000000000000000000000000000000000000U75-74 89-1010 0 00000000000000000000000. 000000000000000000U75-74 89-103 0 0 0 0 0 00000000000000000000000000075-18, 75-90, U75-75 89-105 000000 00000. 00000000000000000075-15, U75-2, U75-74 89-3020 00000000000000000000000000000000000000000000075-15 89-309 000000000000000000000000000000000000000000 00075-15 Ch. 89-4 0000000000000000000000000 0000000000000000U75-61 89-423 0 0 0 00000000000000000000000000000000000000000U75-61 89-6010 0 0 00000000000000000000000000000000000000000U75-75 89-903 0000000 0000000000000 0000000000000000000000075-137 89-9320 0000000. 0000000000000000000000. 000000000000075-115 89-950 0000. 0000 00000 000000000 0000000 000000000075-111 89-12060 0000000. 0000000000000000000000000000000000075-137 507 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. 89-1207 ............................................ 75-6.1 89-1301 ......................... Op. Att'y Gen. 1975, p. 457 89-1302 ......................... Op. Att'y Gen. 1975, p. 457 Ch. 89-16 .......................................... 75-107 91-702 ............................................ U75-75 92-104 ............................................... 75-7 92-110 ............................................... 75-7 92-145.1 ............................................ 75-37 92-164 ..................................... 75-125, U75-87 92-165 ............................................. 75-125 92-171 ............................................. 75-125 92-175 ............................................. 75-125 92-201. ........................................... U75-15 92-219 ............................................... 75-7 92-219.1 .............................................. 75-7 92-233 (d) ............................................ 75-7 92-233 (h) ............................................ 75-7 92-233 (j) ............................................ 75-7 92-238.3 ............................................. 75-7 92-1404. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-65 Ch. 92-24 ........................................... 75-37 92-3402a ........................................... 75-136 92-3403a ........................................... 75-136 92-3403a (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. U75-76 92-3410a (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-76 92-3420a .......................................... U75-76 92-3701. ........................................... U75-1 Ch. 92-39A .......................................... 75-55 92-4611 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-75 92-4901 (5) ........................................ U75-75 92-5712 .............................................. 75-7 92-6407 ............................................ 75-112 92-6912 ............................................. 75-55 92-8411.1 ........................................... 75-142 Chs. 92A-1 to 92A-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-46 92A-444 ............................................. 75-41 92A-445 ............................................. 75-41 92A-501 ............................................ U75-7 92A-502 ........................................... U75-65 92A-509 ............................ U75-56, U75-64, U75-73 92A-511 ........................................... U75-65 92A-601 et seq....................................... 75-42 508 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SEcTIONS OP. No. 92A-603 ........................................... 75-122 92A-605 ............................................. 75-42 92A-608 ............................................. 75-36 92A-610 ............................................ 75-42 Ch. 92A-21 ................................... 75-89, U75-7 92A-2101 et seq..................................... 75-118 92A-2102 .................................... 75-118, U75-7 92A-2103 ............................................ 75-89 92A-2104 (d) ........................................ 75-89 92A-2106 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-118 92A-2107 ........................................... 75-89 92A-2114 .......................................... U75-24 Ch. 92A-30 ............ 75-110, 75-142, 75-144, U75-34, U75-78 92A-3003 .......................................... 75-144 92A-3005 ........................................... 75-142 92A-3008 .......................................... U75-34 92A-9912 ........................................... 75-49 Ch. 93-3A ........................................... 75-76 93-303a (a) ................................... 75-76, 75-105 93-414 ............................................. 75-139 93-501 ....................................... 75-76, 75-105 95A-104 ............................................ 75-96 95A-503 (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-64 95A-913 to 95A-934 .................................. 75-24 95A-914 (h) ......................................... 75-24 95A-914 (j) ..........................................75-24 95A-915 (d) ......................................... 75-24 Title 97 ............................................. 75-79 97-102 (5) ........................................... 75-38 97-103 (a) . . . . . . . . r- 75-38 99-209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-73, 75-78 99-209 (a) (5) . . . . . . . . . . . . . . . . 75-17, 75-20, 75-47, 75-78, 75-98 99-222 .................................. 75-47, 75-78, 75-98 99-508 . . . . . . . . . . . . . . . . . . . . . . . . . .................... U75-1 Ch. 99-11 .......................................... U75-35 Ch. 99-12 .......................................... U75-35 Ch. 99-12A ........................................ U75-35 Ch. 99-21 ........................................... 75-65 99-2104 (d) .......................................... 75-65 99-2104 (f) ..........................................75-65 Ch. 99-29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-142, U75-1 99-2902 ............................................ U75-1 509 GEORGIA CODE ANNOTATED SECTIONS-Continued CoDE SECTIONS OP. No. 99-2916 ..................................... U75-1, U75-70 99-3604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 75-40 99-3606. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-40 99-3607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 75-40 99-3608 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75-40 Ch. 99-39 .......................................... U75-97 99-9904 ........................................... U75-70 Ch. 100-1 ........................................... 75-37 100-101 ........................................ 75-6, 75-37 100-108 .............................................. 75-6 102-102 ..................................... 75-52, U75-45 102-102 (1) . . . . . . . . . . . . . . . . . . . . . . 75-37, 75-76, 75-120, U75-90 102-102 (6) ........................................ U75-53 102-102 (9) ........... 75-10, 75-16, 75-48, 75-53, 75-68, 75-108, 75-123, U75-16, U75-31, U75-50, U75-60, U75-62, U75-64 102-103 ............................... 75-80, 75-96, U75-10 102-104 .......................... 75-14, 75-41, 75-82, U75-83 102-105 ........................................... U75-18 102-109 .......................... 75-13, 75-28, 75-99, 75-115 102-111. ...................................... 75-41, 75-55 105-1407 ................................... U75-79, U75-94 Ch. 106-12 ................................... 75-91, 75-134 106-1202 (f) ........................................ 75-134 106-1205 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-134 106-1213 (a) ........................................ 75-134 108-401 ............................................. 75-61 Title 109A ......................................... U75-87 109A-1-201 (4) ..................................... 75-92 109A-1-201 (14) .................................... 75-21 109A-3-102 (1) ..................................... 75-21 113-1034 .......................................... U75-95 114-106 ........................................... U75-23 114-705 ........................................... U75-23 511 INDEX OP. No. ACCIDENT REPARATIONS ACT. See Motor Vehicle "No Fault" Act. AD VALOREM TAXES. Cemeteries, exemption from ......................... U75-15 Installment payments by utilities ..................... 75-112 Public utilities, installment payments .................. 75-112 Refund, payment of taxes pending appeal on refund not prejudice appeal .............................. 75-55 Revenue Commissioner, State, utilities making returns to, installment payments ................. 75-112 ADEQUATE PROGRAM FOR EDUCATION IN GEORGIA. Before 1974, see Minimum Foundation Program. Teacher allotment ................................... 75-39 ADJUTANT GENERAL, GEORGIA. Merit system, status of self and subordinates ............ 75-81 ADMINISTRATIVE PROCEDURE. Banking and Finance Department rules, applicability to .. 75-62 Electric membership corporation loan proceedings before Public Service Commission ................. 75-139 Public Service Commission, see Electric membership corporation, supra. Regulations, see Rules and regulations, infra. Rules and regulations- Emergency, effective upon adoption ................. 75-123 Filing with Secretary of State, emergency rules effective prior to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-123 ADMINISTRATIVE SERVICES, STATE DEPARTMENT OF. Fiscal Division, see Fiscal Division. Motor vehicles, highly specialized equipment of Department of Public Safety, maintenance and repair not regulated, by .......................... 75-120 Secretaries of superior court judges and district attorneys who are county employees, reports and remittances, for .............................. 75-70 ADVERTISING. Outdoor, see Outdoor Advertising. AGE OF PERSONS. See Trial Judges and Solicitors Retirement Fund. Capital felonies by persons under 17 .................. U75-43 512 INDEX OP. No. AGE OF PERSONS-Continued. Majority, age of- Year's support, effect of Act lowering to 18 years ..... U75-95 Marriage, establishing age of applicant for license ........ U75-5 AGRICULTURAL COMMODITY COMMISSIONS. Sales and use taxes, subject to . . . . . . . . . . . . . . . . . . . . . . . . 75-136 AGRICULTURE. See Seed Development Commission. AGRICULTURE, COMMISSIONER OF. Motor fuel price advertisements, regulation of .......... 75-124 AGRICULTURE, STATE DEPARTMENT OF. Gasoline, see Motor fuel, infra. Motor fuel sales, regulation, of. ....................... 75-124 Rabies vaccine, no authority to restrict distribution ...... 75-23 AGRIRAMA DEVELOPMENT AUTHORITY. Separation of powers provision applied to .............. 75-142 ALCOHOLIC BEVERAGES. See Intoxicating Liquors. ALLATOONA DAM RESERVOIR AREA. Police jurisdiction over ............................... 75-34 ALTERNATIVE FINE PROGRAM. See Probation. APPROPRIATIONS. Acts- General law ....................................... 75-71 Officers, substantive powers not affected . . . . . . . . . . . . . . . . 75-4 Separation of powers, application ................... 75-142 General law, purposes not varied by appropriations Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-71 Inadequacy, effect upon duties of officers . . . . . . . . . . . . . . . . 75-59 Motor fuel taxes, restrictions on funds derived from ...... 75-96 Officers, substantive powers not affected by Acts .......... 75-4 Residential Finance Authority, Georgia, unauthorized; transfer ......................................... 75-40 Student grants, proportional reductions in ............... 75-87 Transfer of funds ................................ 75-4, 75-40 Transportation Department, general appropriation and that from motor fuel tax compared . . . . . . . . . . . . . 75-74 APPROPRIATIONS ACTS. See Appropriations. INDEX 513 OP. No. AREA PLANNING AND DEVELOPMENT COMMISSIONS. Borrowing funds, authority for ........................ U75-8 Child development programs not conducted or aided, by ... 75-95 Mortgages and liens on property prohibited ............. U75-8 ARREST. Drunkenness, disposition of persons arrested for ........ U75-97 Municipal officer, by, beyond city limits . . . . . . . . . . . . . . . U75-73 Uninterrupted pursuit ............................... U75-73 Warrants for, see Warrants. ATLANTA REGIONAL COMMISSION. Cobb County, procedure for withdrawal. .............. U75-91 AUDIOLOGISTS. Hearing aid dispensers not to hold selves out as, unless so licensed ................................. 75-5 BACON COUNTY. Retirement plan for officers, necessary legislation ....... U75-40 BAIL. Committal hearing, nonwaiver clause in bond permissible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U75-54 BAILIFFS. Search warrants, no authority to apply for ............. U75-17 BANKING AND FINANCE, DEPARTMENT OF. See Banks and Banking. BANKS AND BANKING. Administrative Procedure Act, applicability to rules ...... 75-62 Banking and Finance, Department of- Articles of amendment of financial institution, approval of ................................... 75-126 Disposition of unclaimed accounts on liquidation ...... 75-135 Rule-making authority ............................. 75-62 Branch banks, see Military bases, infra. Depositories, state, see Depositories, State. Deputy Commissioner of Banking and Finance, merit system status ............................. U75-57 Dormant accounts, service charges upon ............... 75-128 Holding company- Position of trustees profit-sharing plan as to bank ...... 75-12 Trustees of employee profit-sharing plan, as .... 75-12, U75-14 Intangible taxes on long term notes held by banks ...... 75-125 Interest rates permitted ................................ 75-2 514 INDEX OP. No. BANKS AND BANKING-Continued. Liquidation, disposition of unclaimed accounts, on ...... 75-135 Military bases, regulation of branches and offices, on .... 75-141 Other banks, control of by one bank .................. U75-14 Pension plan, position of trustees . . . . . . . . . . . . . . . 75-12, U75-14 Profit-sharing plan, see Holding company, supra. "Trust," use of word by business trust ................. 75-92 BEACHES. See Position Paper Relating to Coastal Marshes . . . . . . . . . . . . . . . . . . . . . Op. Att'y Gen. 1975, p. 451 BENCH WARRANTS. Probate judge cannot issue .......................... U75-65 BICENTENNIAL CELEBRATION COMMISSION. Separation of powers provision applied to . . . . . . . . . . . . . . 75-142 BIDS, COMPETITIVE. Financing and Investment Commission exempt from requirements .................................... 75-58 BILLIARD ROOMS. Race requirements, if unconstitutional, leave remainder of law as valid ........................ U75-44 BONDS. Criminal, see Bail. BROKERS. See Insurance. BUILDING ADMINISTRATIVE BOARD, GEORGIA STATE. Joint Secretary, State Examining Boards, duties respecting ....................................... 75-43 BURIAL PLACES. See Cemeteries. BUSINESS TRUSTS. Banking laws not violated, by ......................... 75-92 BUSINESSES. Regulation, see Fair Business Practices Act. CAMPAIGN AND FINANCIAL DISCLOSURE ACT. See Elections. CAMPAIGN FINANCING DISCLOSURE ACT. See Elections. INDEX 515 OP. No. CAPITAL FELONIES. Age 17, committed by persons under .................. U75-43 CAPITAL PUNISHMENT. Age 17, person under at time of commission of crime .... U75-43 CEMETERIES. Family burial grounds exempt from certain state requirements .................................... U75-9 Tax exemption from ad valorem taxes ................. U75-15 CENTRAL STATE HOSPITAL. Prisoners, at, good time allowances .................... 75-146 CHARLTON COUNTY. Education, capital outlay, necessity for local contributions to obtain from state .................. 75-71 CHECKS. Sale of, see Sale of Checks Act. CHILD DEVELOPMENT PROGRAMS. Area planning and development commissions not to conduct or aid ................................... 75-95 CIVIL DEFENSE. Grants, emergency, to individuals, under law . . . . . . . . . . . 75-147 Merit system status of employees ...................... 75-81 CLARKE COUNTY MAGISTRATE'S COURT. Insurance and "no fault" motor vehicle offenses, jurisdiction .................................... U75-46 COASTAL MARSHES. Position paper relating to ......... Op. Att'y Gen. 1975, p. 451 COBB COUNTY. Atlanta Regional Commission, withdrawal from, procedure ..................................... U75-91 Municipal corporations, in, annexation of territory ...... U75-59 COLLEGES AND UNIVERSITIES, PRIVATE. Grants to students by state, proportional reduction caused by appropriation reduction ................. 75-87 COLUMBUS, GEORGIA. Mayor and council, no authority to investigate office of sheriff . . . . . . . . . . . . . . . . . . . . . . . .......... U75-36 Sheriff, see Mayor, supra. 516 INDEX OP. No. COMPTROLLER GENERAL. Insurance Commissioner, ex officio, duties as,. see Insurance Commissioner, State. CONFLICTS OF INTEREST. See Officers and Employees, Public. Building contract by company in which state officer having supervisory authority is officer and stockholder . . . . . . ................................ 75-11 CONSTABLES. Search warrants, no authority to apply for ............ U75-17 Traffic laws, enforcing ............................... U75-56 CONSTITUTIONAL LAW. Amendments, effective date ........................... U75-6 Contracts, state and agencies, beyond fiscal year, for, see Contracts. Grants to individuals, emergency under Civil Defense Act .................................... 75-147 Gratuities, see Counties. Chamber of commerce, to, or to county payroll development authority, prohibited .............. U75-20 Donation of county funds to private day care centers prohibited ............................. U75-1 Prisoners confined under conviction under unconstitutional statute, rights of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-121 Separation of powers provision applied toAgrirama Development Authority ................... 75-142 Bicentennial Celebration Commission ................ 75-142 Crime Commission, State .......................... 75-142 Crime Information Center, advisory council .......... 75-142 Criminal Law Study Commission ................... 75-142 Development Authority, Georgia .................... 75-142 Equalization, State Board of . . . . . . . . . . . . . . . . . . . . . . . 75-142 Post Secondary Education Commission .............. 75-142 Southern Regional Education Board of Control. ...... 75-142 Severability of statute unconstitutional in part ......... U75-44 CONSUMER PROTECTION. See Fair Business Practices Act. CONSUMERS' UTILITY COUNSEL. See Public Service Commission. CONTRABAND. Sheriffs not entitled to fees from sales ................. U75-41 INDEX 517 OP. No. CONTRACTS. Health, county boards of, with Department of Human Resources ................................ 75-22 Human Resources Department, with county boards of health ................................. 75-22 State- Beyond fiscal year, for .............................. 75-88 Vocational technical school board, by ............... 75-19 Bids, competitive, not required on contracts of Financing and Investment Commission contracts ............ 75-58 CORDELE, CITY OF. Expenses of city commissioner not reimbursed for travel from out-of-town employment to commission meetings ...................................... U75-67 CORONERS. Death certificates, see Federal enclaves, infra. Federal enclaves or military reservations, death certificates not signed for persons on . . . . . . . . . . . . . . . .75-97 CORPORATIONS. Campaign contributions, by .......................... 75-143 Electric membership, see Electricity. Foreign- Securities dealer, registration as, not eliminate need for certificate of authority ....................... 75-38 Holding companies, see Banks and Banking. Professional, see Professional Corporations. Securities dealers, registration ......................... 75-38 CORRECTIONS, STATE BOARD OF. Director of Corrections- Appropriation, insufficient, duties to be performed to best of ability in spite of ...................... 75-59 Transfer of state prisoners to county institutions, approval necessary ........................... U75-93 Good time allowances for prisoners in Central State Hospital, regulating ............................. 75-146 Gratuities to prisoners upon release where assigned to board but confined in other facilities ............... 75-93 Transfer of state prisoners to county institutions, approval necessary ............................. U75-93 Youthful offender, release revoked, disposition .......... 75-127 CORRECTIONS, STATE DEPARTMENT OF. Youthful offenders, see Youthful Offender Act. 518 INDEX OP. No. COUNTIES. Day care services, use of funds for ..................... U75-1 Debts for period of over one year, secured by promissory notes and security deeds, not to be incurred ....... U75-27 Elections, see Elections. Expenditures- Water system, for ................................ U75-98 Watershed projects, federally built, improvements on ... 75-29 Federal Government, applications to, for redevelopment and housing aid ................................ U75-35 Federal revenue sharing funds, restrictions on use, of . . . . U75-98 Fire protection tax districts, referendum, establishment, without .......................... U75-55 Funds, see Gratuities, infra. Debts, see Debts, supra. Delinquency in funds due state, withholding of appropriated grants to cover . . . . . . . . . . . . . . . . . . . . . 75-65 Donations to state agencies for day care services ...... U75-1 Sheriff liable to surety on bond, reimbursement by county not permitted ......................... U75-22 Gratuities- Chamber of commerce, to, or to county payroll development authority, prohibited .............. U75-20 Judgment against sheriff, payment prohibited, as ..... U75-26 Sheriff, reimbursement for liability on bond, as ....... U75-22 Housing, public, see Urban Redevelopment Law. Indebtedness, revenue anticipation bonds, not paid from general funds .............................. U75-98 Law libraries, see Law Libraries, County. Liabilities, probationers working under Alternative Fine Program, for acts of ......................... 75-32 Motor Vehicle "No Fault" Act not applicable to ......... 75-13 Officers, residence requirements, prohibition of, not applicable to election registrars and deputies ........ 75-111 Retirement- Employees, plan enacted according to home rule amendment restricted to employees under county commission ........................... U75-37 Officers, elected, legislation necessary for plan . . . . . . . . U75-40 Sheriffs, see Sheriffs. Social security funds due state, collection of. ............ 75-65 Tax commissioners, see Tax Commissioners. Taxation, see Fire protection tax districts, supra. Water, duties as to, see Water. INDEX 519 OP. No. COUNTIES-Continued. Water systems, financing of. ......................... U75-98 Watershed projects, furnishing equipment and expending funds for ............................... 75-29 COUNTY COMMISSIONERS. Relatives, widow of deceased brother of county commissioner may be employed .................. U75-75 COURT REPORTERS. Compensation ...................................... U75-50 COURTS. See Clarke County Magistrate's Court; Justices of the Peace; Juvenile Courts; Probate Courts; State Courts; Superior Courts. CREDIT UNIONS. Employee Retirement Income Security Act, not authorized as custodians of funds, under ............ 75-56 Interest to be charged ................................. 75-2 Limitations on loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-67 Unsecured debt limits, compliance with . . . . . . . . . . . . . . . . . 75-67 CRIME COMMISSION, STATE. Merit system status of employees ..................... 75-106 Organized Crime Prevention Council, merit system status of employees .............................. 75-106 Separation of powers provision applied to .............. 75-142 CRIME INFORMATION CENTER. Advisory council, separation of powers provision applied to ...................................... 75-142 Fingerprints to be forwarded to, upon arrest ........... U75-34 Photographs of persons arrested to be forwarded to ..... U75-34 Records- Criminal, of candidates for public office, dissemination of .............................. 75-144 Public access, to; restrictions . . . . . . . . . . . . . . . . . . . . . . U75-78 Purged, when . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-110 CRIMINAL LAW. Escape by youthful offenders .......................... 75-98 Sentences, see Sentence and Punishment. Unconstitutional law, rights of persons convicted under .......................................... 75-121 Voting rights of persons convicted, see Elections. Youthful offenders (not juvenile), see Youthful Offenders. 520 INDEX OP. No. CRIMINAL LAW STUDY COMMISSION. Separation of powers provision applied to .............. 75-142 CRIMINAL PROCEDURE. Arrest, see Arrest. Bail, see Bail. Committal hearing, right to; nonwaiver in bail bond permissible ............................... U75-54 Search warrants, see Search Warrants. Warrants, authority of assistant recorder to issue ....... U75-29 DEAD BODIES. Family burial plots, when buried on ................... U75-9 DEATH CERTIFICATES. Military reservations, death certificates not signed by county coroner, on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-97 DEATH PENALTY. See Capital Punishment. DEBTOR AND CREDITOR. Industrial Loan Act, violation renders secured transaction unenforceable . . . . . . . . . . . . . . . . . . . . . . . U75-80 DEEDS. Recording, notaries' seals rubber-stamped, rather than raised .................................... U75-53 DEFENSE DEPARTMENT, STATE. Merit System, State, personnel in unclassified service ..... 75-81 DEFERRED COMPENSATION PLAN, STATE. Financing, methods considered ........................ 75-107 DEKALB COUNTY. Election board, powers and duties .................... U75-88 DELEGATION OF POWERS. Unauthorized, when ................................ U75-84 DEPOSITORIES, PUBLIC. State depositories, see Depositories, State. DEPOSITORIES, STATE. Board, State Depository, designating depository ......... 75-37 Building and loan associations, as . . . . . . . . . . . . . . . . . 75-6, 75-37 Federal Savings and Loan Insurance Corporation coverage no substitute for bond or securities required .......... 75-6 Savings and loan associations, as ... , .............. 75-6, 75-37 INDEX 521 OP. No. DEPUTY SHERIFFS. Appointment ........................................ 75-64 General law controls; not changed by local legislation ................................... U75-75 Bond............................................... 75-64 Registration with clerk ................................ 75-64 "Special deputies," office created only by special statute .... 75-64 DETECTIVES, PRIVATE. Fingerprint reports with application, answer not required before license issued ..................... 75-100 DEVELOPMENT AUTHORITY, GEORGIA. Separation of powers provision applied to .............. 75-142 DIAGNOSTIC AND CLASSIFICATION CENTER. Gratuities to prisoners on release where assigned to, but confined elsewhere ............................ 75-93 DISTRICT ATTORNEYS. Assistants- Superior court judge emeritus, service prior to 1957 not counted ............................... 75-14 Retirement, see District Attorneys Retirement Fund. Military service, payment into fund for portion of year, in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-133 SecretariesCounty employees, social security reports and remittances, for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-70 State employees, merit system status ................. 75-82 Trial Judges and Solicitors Retirement Fund, mandatory membership, in ........................ 75-80 DISTRICT ATTORNEYS RETIREMENT FUND. Military service, no credit for R.O.T.C. service . . . . . . . . . U75-60 DIVORCE. Partial, under former law, resumption of cohabitation by parties ..................................... U75-83 Total, remarriage of parties .......................... U75-83 DOMICILE. Residence distinguished ............................. U75-74 DRIVERS LICENSES. Drivers Licensing Act, effect upon disclosure of driving records of individuals ............................ 75-122 Names of married women, issued in .................... 75-49 522 INDEX OP. No. DRIVERS LICENSES-Continued. Suspension or revocation- Conflicting statutes construed ...................... 75-117 First Offenders Law, plea of guilty under ............. 75-36 Racing, for ....................................... 75-117 Suspension under point system . . . . . . . . . . . . . . . . . . . . . . . . . 75-41 DRUGS. Unconstitutional statute, effect upon persons convicted under ................................. 75-121 DRUNKEN DRIVING. Drivers license revocation, First Offenders Law, under .... 75-36 First Offenders Law, effect ............................ 75-36 DRUNKENNESS. Disposition of persons arrested for .................... U75-97 EAST POINT, CITY OF. Recorder, assistant, in City of East Point, has authority to issue criminal warrants .............. U7 5-29 EDUCATION. See Adequate Program for Education in Georgia; Schools, Public; Teachers. Assistance, see Higher Education Assistance Act. Certification of teachers, principals and guidance counselors, principles governing ................... 75-130 Georgia Center for Continuing, hotel and motel taxes not applicable .................................. U75-38 Guidance counselors, certification requirements . . . . . . . . . 75-130 Post Secondary Education Commission, separation of powers provision applied to ...................... 75-142 Principals, certification requirements .................. 75-130 Southern Regional Education Board of Control, separation of powers provision applied to .................... 75-142 Teachers, see Teachers. Vocational, see Vocational Technical Schools. EDUCATION AUTHORITY (SCHOOLS). Facilities constructed with proceeds of general obligation bonds not to be given to local school systems . . . . . . . . 75-51 Local school systems constructing schools on property . . .. 75-51 EDUCATION, COUNTY AND LOCAL BOARDS OF. Administration, see Management, infra. Bonds, buses not purchased with proceeds ............... 75-94 INDEX 523 OP. No. EDUCATION, COUNTY AND LOCAL BOARDS OF- Continued. Buses, purchase not financed by bonds .................. 75-94 Campaign and Financial Disclosure Act, see Officers, infra. Contracts with other local boards authorized ........... U75-32 Education Authority (Schools), constructing facilities on property of ................................... 75-51 Funds- Capital outlay, necessity for local contributions to project ..................................... 75-71 Libraries, public, use of, for ......................... 75-33 Libraries, public, use of funds, for ...................... 75-33 Management of schools, joint, by more than one board, not authorized ........................... U75-32 Members- Qualification, commission and oath necessary before function ................................ 75-15 Termination of service .............................. 75-15 Oath of members, necessity, for ........................ 75-15 Officers of county, county board members, are, and subject to Campaign and Financial Disclosure Act .... 75-129 Reading requirements for students, enforcement by State Board ..................................... 75-63 Teachers, hours per day which may be prescribed ...... U75-69 EDUCATION, LOCAL BOARDS OF. See Education, County and Local Boards of. EDUCATION, STATE BOARD OF. Funds, capital outlay, not required to be transmitted to Charlton County without local contributions to project ....................................... 75-71 Reading requirements for students, enforcement of ....... 75-63 ELECTIONS. Bond elections- Presidential Preference Primary, held on same date of .................................. 75-132 Campaign and Financial Disclosure ActCorporations, contributions, by ..................... 75-143 Education, county boards of, candidates subject ...... 75-129 Ethics Commission, State, see Ethics Commission, State, infra. List of persons to whom expenditures made .......... 75-131 Political parties as subject ........................... 75-53 524 INDEX OP. No. ELECTIONS-Continued. Campaign Financing Disclosure Act- Name changed to Campaign and Financial Disclosure Act ................................. 75-53 Political parties as subject ........................... 75-53 Candidates- Criminal records of, dissemination ................... 75-144 Contributions to candidates, see Campaign and Financial Disclosure Act, supra. Conviction of crime as affecting elective franchise, youthful offenders ................................ 75-17 County registrars not to establish registration places outside county .................................. 75-148 DeKalb County Board of Elections exercising powers of probate judge ................................ U75-88 Deputy registrars, residence requirement unaffected by law prohibiting political subdivisions from requiring local residence for employees ............. 75-111 Ethics Commission, State- Reimbursement for expenses ........................ 75-103 Intoxicating liquors- Legalization, see Intoxicating Liquors. Sale, as to, see Intoxicating Liquors. Municipal, see Municipal Corporations. Ordinaries- After 1974, see Probate judges, infra. Presidential primaries, see Primaries, infra. Primaries- Presidential, bond election held on same date ......... 75-132 Probate judges- Assistance by another county officer prohibited ........ 75-90 Before 1974, see Ordinaries, supra. DeKalb County Board of Elections exercising powers of .................................... U75-88 Records, criminal, of candidates for public office, dissemination of . . .............................. 75-144 Registrars, residence requirement unaffected by law prohibiting political subdivisions from requiring local residence for employees ..................... 75-111 Registration of electorsCounty of residence, registration places not established outside ............................ 75-148 Residence requirementsMarried woman whose husband is legal resident ....... 75-77 INDEX 525 OP. No. ELECTIONS-Continued. Special elections- Justice of the peace, for . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-45 Solicitor of state court, vacancy in office . . . . . . . . . . . . . . U75-2 Voting rights, loss of, see Conviction, supra. ELECTRIC MEMBERSHIP CORPORATIONS. See Electricity. ELECTRICITY. Electric membership corporations, loan proceedings as contested cases before Public Service Commission .... 75-139 EMPLOYEE RETIREMENT INCOME SECURITY ACT. Credit unions not custodians under . . . . . . . . . . . . . . . . . . . . . 75-56 EMPLOYEES RETIREMENT SYSTEM. See Deferred Compensation Plan, State; Employee Retirement Income Security Act. Counties delinquent with social security funds, collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 75-65 Mandatory retirement of conservation ranger, waiver .... 75-114 Secretaries of superior court judges and district attorneys- County employees not members ...................... 75-70 State employees, status ............................. 75-82 EQUALIZATION, STATE BOARD OF. Separation of powers provision applied to .............. 75-142 ETHICS COMMISSION, STATE. See Elections. EVIDENCE. Signatures, authentication where affixed other than by handwriting .................................... U75-4 EX OFFICIO JUSTICES OF THE PEACE. See Justices of the Peace. EXAMINING BOARDS, STATE. Fees authorized ...................................... 75-69 Refunds of fees not authorized in absence of statute ...... 75-69 EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS. Exceptions to application ............................ U75-45 FAIR BUSINESS PRACTICES ACT. Administrator, delegation of authority ................. 75-134 Documentary evidence, method of filing ............... 75-134 526 INDEX OP. No. FAIR BUSINESS PRACTICES ACT-Continued. Investigative demand and notice of contemplated civil action issued simultaneously .................. 75-91 Notice of contemplated civil action, see Investigative demand, supra. FAIR CREDIT REPORTING ACT, FEDERAL. Driving records of individuals, effect upon disclosure ..... 75-122 FEDERAL DEPOSIT INSURANCE CORPORATION. Federal Savings and Loan Insurance Corporation, distinguished ..................................... 75-6 FEDERAL GOVERNMENT. Counties, aid to, for urban redevelopment and housing .. U75-35 Employee, of, serving in General Assembly ............. 75-109 Military bases, see Military Bases. Revenue sharing funds, restrictions on use, of .......... U75-98 Watershed projects built by, expenditure of county funds on improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-29 FEDERAL HIGHWAY SAFETY ACT. Macon-Bibb County Planning and Zoning Commission not eligible for funds, under ...................... U75-82 FEDERAL SAVINGS AND LOAN ASSOCIATIONS. Depositories, see Depositories, State. FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION. Federal Deposit Insurance Corporation distinguished ...... 75-6 State depositories, coverage not substitute for bond ....... 75-6 FIDELITY DAILY INCOME TRUST. Status under Georgia law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-92 FINANCIAL INSTITUTIONS. See Banks and Banking. Liquidation, disposition of unclaimed accounts, on ...... 75-135 FINANCING AND INVESTMENT COMMISSION. Bids on construction contracts not necessary . . . . . . . . . . . . 75-58 FINGERPRINTS. Candidates for office, in connection with criminal records, of ..................................... 75-144 Crime Information Center, to ........................ U75-34 INDEX 527 OP. No. FIRE PROTECTION. Districts, establishment without referendum ........... U75-55 Municipal annexation, property owners subject to, relieved of fire protection district taxes . . . . . . . . . ... U75-33 FIREMEN'S PENSION FUND, GEORGIA. Applications for membership, time for filing ............ U75-18 Disability retirement, rights of persons under, discussed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... U75-31 Governor cannot designate proxy to attend board meetings ...................................... U75-84 Insurance Commissioner cannot designate proxy to attend board meetings ........................ U75-84 Local retirement system, member belonging to, in addition ....................................... U75-77 Retired persons, status and rights discussed ............ U75-31 Return to service by retired persons . . . . . . . . . . . . . . . . . . . U75-31 FIRST OFFENDERS LAW. Drivers license revocation, under ....................... 75-36 Drunken driving, effect of plea ......................... 75-36 Fine, payment as condition of probation . . . . . . . . . . . . . . U75-42 Multiple offenses, effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-85 Probation, see Fine, supra. FISCAL DIVISION. Counties delinquent in payment of social security funds, collection ................................. 75-65 FLOODS. See Water. FLOYD COUNTY. Retirement plans for employees ...................... U75-37 FORT BENNING. Death certificate not signed by county coroner, on ....... 75-97 GAME AND FISH DIVISION. Retirement age of conservation ranger, mandatory, waiver ......................................... 75-114 GARNISHMENT. Service requirements ................................ U75-72 State employees .................................... U75-71 GASOLINE. See Motor Fuel. 528 INDEX OP. No. GENERAL ASSEMBLY. Federal civil service employee as member .............. 75-109 Lobbyists, public officers need not register as ............ 75-28 Officers and employees, public, influencing legislation ..... 75-28 Qualification of members, determining ................. 75-109 GEORGIA CENTER FOR CONTINUING EDUCATION. See Education. GEORGIA, STATE OF. See State of Georgia. GOVERNOR. Firemen's Pension Fund board meetings, may not appoint proxy to attend ......................... U75-84 Grants to individuals, emergency under Civil Defense Act .................................... 75-147 GRAND JURIES. Citizens committees, investigative, appointment ........ U75-70 Investigators of fraud in welfare, no authority to appoint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-70 HALL COUNTY. Retirement funds, firemen and deputy sheriffs belonging to both state and local. . . . . . . . . . . . . . . . . . . . . . . . . . U75-77 HAMPTON, CITY OF. Charter, new; previous provisions repealed ............. U75-81 HEALTH CARE INSTITUTIONS. Medication administered by unlicensed personnel ........ 75-44 HEALTH, COUNTY BOARDS OF. Contracts with Department of Human Resources ........ 75-22 Rabies control ....................................... 75-23 HEALTH, LOCAL BOARDS OF. Hearings conducted only by chief executive officer ...... U75-90 HEARD COUNTY. Probate judge, compensation ......................... U75-49 HEARING AID DISPENSERS. Audiologists, not to hold selves out as, unless so licensed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 75-5 HIGHER EDUCATION ASSISTANCE ACT. Veterans, honorable discharge necessary to qualify ...... 75-138 INDEX 529 OP. No. HIGHWAY SAFETY ACT. See Federal Highway Safety Act. HIGHWAYS. Fishing walkways on bridges not constructed with motor fuel taxes . . ............................... 75-96 Muscogee County, distribution of state grants, to ................................ 75-68, 75-108 HOLDING COMPANIES. See Banks and Banking. HOLIDAYS. Elections, municipal, holding on ...................... U75-86 HOME RULE. Counties, for- Federal Government, authorizing applications to, for aid ...................................... U75-35 Retirement plans for employees restricted to those under county commissioners ................... U75-37 Elections, municipal, dates not changed where fixed by charter . . . . . . . . . . . . . . . . . . . . . ............ 75-140 HOMESTEAD EXEMPTIONS. Partial ownership of property . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-7 Tenants in common ................................... 75-7 HONESTY IN GOVERNMENT. See Officers and Employees, Public. HOSPITALS. Medicaid, see Medicaid. HOUSING, PUBLIC. See Residential Finance Authority, Georgia; Urban Redevelopment Law. HUMAN RESOURCES, COMMISSIONER OF. See Human Resources, State Department of. HUMAN RESOURCES, STATE DEPARTMENT OF. Appropriations, transfer of funds within department ....... 75-4 Commissioner, authority to organize department, regional offices, etc................................. 75-4 Contracts with county boards of health ................. 75-22 Medicaid, see Medicaid. Regional offices, authority to establish ................... 75-4 Youthful offenders, see Youthful Offender Act. Escaping, disposition, of ............................ 75-98 530 INDEX OP. No. INDUSTRIAL LOAN ACT. See Debtor and Creditor. INSOLVENCY. Insurance companies, see Insurance Companies. INSURANCE. Brokers, surplus line, tax refunds to, how paid . . . . . . . . . . 75-116 Commissioner, see Insurance Commissioner, State. Companies, see Insurance Companies. Criminal offenses under laws, jurisdiction .............. U75-46 Health- Public employees, for, see Officers and Employees, Public. State employees- Health plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-137 Tax refunds to surplus line brokers, how paid ........... 75-116 INSURANCE COMMISSIONER, STATE. Firemen's Pension Fund board meetings, may not appoint proxy to attend ......................... U75-84 Tax refund to surplus line brokers, how paid ........... 75-116 INSURANCE COMPANIES. Defunct, see Insolvent, infra. Insolvent, disposal of unclaimed funds .................. 75-83 License necessary for companies with State Personnel Board administered contracts ..................... 75-137 Premium taxes not exempt on coverage sold MARTA .... 75-54 Rates- Georgia experience, only, considered as to vehicle accident insurance ............................. 75-16 State employees, license necessary under self-insured plans .......................................... 75-137 INTANGIBLE TAXES. Banks, long term notes held by ....................... 75-125 Intangible Tax Equalization Fund- Depositories, state, effect as to appointment of building and loan associations and savings and loan associations, as ........................ 75-37 Long term notes secured by real estate ................ 75-125 Savings and loan associations, long term notes held by .... 75-125 INTEREST. Amount increased to nine percent; previous exceptions not repealed ................................... U75-63 Banks, interest chargeable compared with other institutions ....................................... 75-2 INDEX 531 OP. No. INTEREST-Continued. Credit unions compared with banks ..................... 75-2 Industrial Loan Act, see Debtor and Creditor. Intangible taxes on long term notes, not considered part of ......................................... 75-125 INTOXICATED PERSONS. See Drunkenness. INTOXICATING LIQUORS. Elections as to sale- Petition for election, necessity for .................. U75-19 Time of holding must be different from other elections . . . . . . . . . . . . . . ....................... U75-45 INVESTIGATIONS. Sheriffs ........................................... U75-36 JOINT SECRETARY, STATE EXAMINING BOARDS. See Examining Boards, State. Building Administrative Board, duties respecting ......... 75-43 JUDGES. Trial Judges and Solicitors Retirement Fund, mandatory membership, in . . . . . . . . . . . . . . . . . . . . . . . . 75-80 JUDICIAL COUNCIL, GEORGIA. Court reporters, fixing compensation, of . . . . . . . . . . . . . . . U75-50 JURY. Number of jurors, six persons where claim less than $5,000 .................................... U75-58 JUSTICES OF THE PEACE. Abolishment of notaries public ex-officio, not affect office of j.p..................................... U75-89 Election where office vacant . . . . . . . . . . . . . . . . . . . . . . . . . U75-45 Notaries public ex-officio justice of the peace, see Notaries Public. Vacancies in office, filling ............................ U75-45 JUVENILE COURTS. Judges- Limitation of actions as to county seeking return of overpayments ............................. U75-11 Salary, once fixed, not changed during term of office .... U75-11 JUVENILE OFFENDERS. Escapees not governed by Children and Youth Act ....... 75-98 532 INDEX OP. No. JUVENILE OFFENDERS-Continued. Superior court sentence imposed subsequent to unexpired order of commitment, disposition .................. 75-20 Transfer to Offender Rehabilitation Department, effect as to sentence .............................. 75-78 Youthful offenders, not juvenile, see Youthful Offender Act. KIDNAPPING. Youthful Offender Act, punishment under ............... 75-73 LABOR. Collective bargaining, see Unions, infra. Unions- Employees, public, rights as to, see Position Paper on Legal Status of Public Employee Organizations in Georgia ................. Op. Att'y Gen. 1975, p. 457 LAND. See Real Estate. LAW LIBRARIES, COUNTY. Officers and employees- Board members not to serve as ..................... U75-16 Created by statute, restricted to .................... U75-16 Probate courts, costs from . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-16 LAWRENCEVILLE, CITY OF. Reserve police force not authorized ................... U75-24 LIBRARIANS. Regional and county, retirement ....................... 75-46 LffiRARIES. See Law Libraries, County. Public, school funds used for .......................... 75-33 LICENSES. Auto tags, see Motor Vehicles, catchwords License tags. Drivers licenses, see Drivers Licenses. Marriage, see Marriage. Pistol, to carry, issuance of more than one to individual. .................................... U75-10 LIENS. Motor vehicles, mortgages, properly recorded, superior to mechanic's ........................... U75-51 LIMITATION OF ACTIONS. Juvenile court judge, overpayments of salary, seeking return, of ............................... U75-11 Officers, public, return of overpayments, to ............ U75-11 INDEX 533 OP. No. LOBBYISTS. Officers and employees, public, need not register as ....... 75-28 MACON-BIBB COUNTY PLANNING AND ZONING COMMISSION. Federal highway safety project funds, not eligible, for .... U75-82 MAGISTRATES' COURTS. See specific courts: Clarke County Magistrate's Court, etc. MARRIAGE. Divorce, partial and total, distinguished as to remarriage of parties ............................ U75-83 Judges emeritus of superior court performing ceremonies ...................................... U75-3 Licenses- Age of applicant, establishing . . . . . . . . . . . . . . . . . . . . . . . U75-5 Names of women, effect upon .......................... 75-49 Recorder, city, ceremonies by, outside his municipality ... U75-96 Remarriage after divorce ............................ U75-83 MARRIED WOMEN. Names, legal, what constitute .......................... 75-49 Vote, right to, though not domiciled in Georgia but husband resident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-77 MARSHES. See Coastal Marshes. MARTA. Tax on premiums on insurance sold to, not exempt ....... 75-54 MEDICAID. Contracts with providers not to obligate state funds beyond fiscal year ................................ 75-88 Hospital admissions, see Twenty-four hour review, infra. Twenty-four hour review of hospital admissions not to be resorted to in view of recent litigation . . . . . . . . . . . 75-101 MENTAL ILLNESS. Physicians, examining, residence of ................... U75-52 Probate courts, proceedings, in ....................... U75-52 MENTALLY RETARDED OFFENDER ACT. Appropriations, insufficient, effect upon duties of officers . . ..................................... 75-59 MERIT SYSTEM, STATE. Adjutant General, Georgia, status of, and subordinates ... 75-81 534 INDEX OP. No. MERIT SYSTEM, STATE-Continued. Banking and Finance, Deputy Director of, status . . . . . . U75-57 Classification, class being one of series of related classes, effect on retention rights ................... 75-75 Crime Commission, State, status of employees .......... 75-106 Defense Department, State, classification of employees ... 75-81 Department heads in unclassified service . . . . . . . . . . . . . . . . 75-48 Deputy department heads in unclassified service ......... 75-48 Dismissal, restrictions upon .......................... U75-71 Organized Crime Prevention Council, status of members ....................................... 75-106 Political activities of members, limiting ................ 75-145 Reduction in force, see Retention of rights, infra. Retention of rights in a reduction in force situation ....... 75-75 Secretary, confidential, of department head in unclassified service ............................... 75-48 Simultaneous employment of members by other public agencies, see Officers and Employees, Public. Unclassified service, positions transferred to ............. 75-48 METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY. See MARTA. MILITARY BASES. Banks, branches and offices, on, regulation by State and Federal Government . . . . . . . . . . . . . . . . . . . . . . . . . 75-141 MILITARY RESERVATIONS. See United States. MILITARY SERVICE. District Attorneys Retirement Fund, no credit for R.O.T.C. service ............................... U75-60 Honorable discharge distinguished from other types ..... 75-138 MINIMUM FOUNDATION PROGRAM. After 1974, see Adequate Program for Education in Georgia. MONEY TRANSFER COMPANIES. Sale of Checks Act, when subject to ............. 75-21, 75-102 MOTOR FUEL. Advertising prices, self-service pump prices and fullservice pump prices to be advertised separately where different .................................. 75-124 Agriculture Department, regulation by ................ 75-124 INDEX 535 OP. No. MOTOR FUEL TAXES. Appropriation to Transportation Department, status ..... 75-74 Fishing walkways not constructed with proceeds ......... 75-96 MOTOR VEHICLE ACCIDENT REPARATIONS ACT. See Motor Vehicle "No Fault" Act. MOTOR VEHICLE CERTIFICATE OF TITLE ACT. Liens, mechanic's, inferior to recorded mortgage ........ U75-51 Priorities, under .................................... U75-51 MOTOR VEHICLE "NO FAULT" ACT. Counties not subject to ............................... 75-13 Criminal offenses, under, jurisdiction .................. U75-46 Municipal corporations not subject to .................. 75-13 Self-insurers, under, not governed by Motor Vehicle Safety Responsibility Act ......................... 75-42 State is not bound by Act, and insurance policies need not comply ..................................... 75-115 MOTOR VEHICLE SAFETY RESPONSIBILITY. See Motor Vehicle "No Fault" Act. MOTOR VEHICLES. Drivers licenses, see Drivers Licenses. Driving records of individuals, disclosure . . . . . . . . . . . . . . . 75-122 License tags- Nonresident students, of. ......................... U75-12 Public Safety Department, of, maintenance and repair not regulated by Department of Administrative Services ........................................ 75-120 Racing, revocation of drivers licenses, for .............. 75-117 Title, see Motor Vehicle Certificate of Title Act. Traffic, see Traffic Control. Traffic regulationsRacing, revocation of drivers licenses, for ............ 75-117 Violations, arrest warrants issued by probate judge .... U75-65 MUNICIPAL CORPORATIONS. Annexation- Citizens of county fire protection districts affected by, taxation ................................. U75-33 Cobb County, methods available, in ................ U75-59 Methods enumerated ............................. U75-59 Property owners, withdrawal of consent from petition .............................. U75-62, U75-66 Street as boundary, effect ......................... U75-64 536 INDEX OP. No. MUNICIPAL CORPORATIONS-Continued. Charter, new, effect on previous legislation . . . . . . . . . . . . . U75-81 Councilman- Mayor, to become, must resign ...................... 75-18 Removal from ward to another, retention of office .... U75-39 Elections- Holidays, holding upon ............................ U75-86 Time ............................................ U75-86 Home rule, date not changed by, where fixed by charter. . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 75-140 Home rule, see Home Rule. Housing, public, see Urban Redevelopment Law. Intoxicating liquorsElection as to sales, necessity for petition ............ U75-19 LiabilitiesProbations working under Alternative Fine Program, for acts of ............................ 75-32 Mayor, councilman must resign before becoming ......... 75-18 Motor Vehicle "No Fault" Act not applicable to ......... 75-13 OfficersReimbursement of expenses for travel connected with own employment not allowed .............. U75-67 Residence requirements, prohibition of, not applicable to election registrars and deputies ............... 75-111 Police officersArrest powers beyond city limits . . . . . . . . . . . . . . . . . . . U75-73 Authority on streets outside corporate limits ......... U75-64 Hot pursuit, arrest powers in ...................... U75-73 Police, reserve forces ................................ U75-24 Recorder, assistant, in City of East Point, has authority to issue criminal warrants ............... U75-29 Recorders- Judge emeritus of superior court suspended while serving as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-13 Marriage ceremonies performed by, outside limits of city . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-96 Reserve police force not authorized ................... U75-24 Water- Duties as to, see Water. Transfer from one rivercourse to another ............ U75-94 MUNICIPAL COURTS. Deputy sheriffs not "peace officers" under Peace Officer Standards and Training Act ...................... U75-7 INDEX 537 OP. No. MUSCOGEE COUNTY. Highway grants, state, distribution .............. 75-68, 75-108 NAMES OF PERSONS. Change of ........................................... 75-49 Legal, of persons, what constitute ...................... 75-49 NATURAL RESOURCES, BOARD OF. Retirement age of conservation ranger, mandatory, waiver ......................................... 75-114 NO FAULT ACT. See Motor Vehicle "No Fault" Act. NONRESIDENTS OF STATE. Students, license tags, for ............................ U75-12 NOTARIES PUBLIC. Ex-officio justices of the peace- Abolishment of office not to affect that of justice of the peace ................................. U75-89 Foreign deeds, notaries' seals rubber-stamped, rather than raised .................................... U75-53 Seals, see Foreign deeds, supra. NOTES. Secured by real estate, intangible taxes ................ 75-125 OCEAN, ATLANTIC. Lands adjoining, see Position Paper Relating to Coastal Marshes ............. Op. Att'y Gen. 1975, p. 451 OFFENDER REHABILITATION, STATE DEPARTMENT OF. Escaping youthful offenders, disposition of .............. 75-98 Kidnapping, persons convicted, custody ................. 75-73 Pardons and Paroles, State Board of- Administrative purposes, assigned to, for .............. 75-35 Certain functions of, transferred to . . . . . . . . . . . . . . . . . . . 75-72 Personnel of Offender Rehabilitation not assigned to Pardons and Paroles Board for duty ........... 75-35 Youthful offender program, custody of persons guilty of kidnapping, in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-73 Youthful offenders, escaping, disposition of. . . . . . . . . . . . . . 75-98 OFFICERS AND EMPLOYEES, PUBLIC. Appropriations, inadequate, effect upon duties ........... 75-59 Compensation- Fixed, how . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-31 Less than amount due, claim for, effect ............... 75-31 538 INDEX OP. No. OFFICERS AND EMPLOYEES, PUBLIC-Continued. Conflicts of interest, see Simultaneous employment, infra. Building contract by company in which state officer having supervisory authority is officer and stockholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 75-11 Credit, personal, problems in securing ................. U75-71 Criminal records of candidates, dissemination of ........ 75-144 Deferred compensation, see Deferred Compensation Plan, State. Federal employee serving in General Assembly .......... 75-109 Garnishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-71 Honesty in government, see Simultaneous employment, infra. Insurance, healthStone Mountain Memorial Association employees not eligible for state plan . . . . . . . . . . . . . . . . . . . . . . . 75-6.1 Labor unions, rights, as to, see Position Paper on Legal Status of Public Employee Organizations in Georgia . . . . . . . . . . . . . . . . . . . Op. Att'y Gen. 1975, p. 457 Legislation, influencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-28 Lobbyists, public officers need not register as . . . . . . . . . . . . 75-28 Overpayments, to, limitation of actions as to return ..... U75-11 Peace officers, see Peace Officers. Political activities ................................... 75-145 Relatives, widow of deceased brother of county commissioner may be employed .................. U75-75 Residence requirements prohibited to local subdivision not applicable to election registrars and deputies .... 75-111 Salaries, see Compensation, supra. Simultaneous employmentCouncilman, city, as volunteer fireman .............. U75-39 County law library, board member as employee ...... U75-16 Equalization board member as voter registration board member ............................... U75-75 Federal employee serving in General Assembly ........ 75-109 Municipal councilman as mayor ...................... 75-18 Soil and water conservation district supervisor, merit system employee, as ....................... 75-45 Tax commissioner assisting probate judge in conducting election ............................. 75-90 Social security, see Social Security. StateHealth insurance plans ............................ 75-137 INDEX 539 OP. No. OFFICERS AND EMPLOYEES, PUBLIC-Continued. Vacancies- Solicitor of state court ............................. U75-2 ORDINARIES. After 1974, see Probate Judges. ORGANIZED CRIME PREVENTION COUNCIL. See Crime Commission, State. OUTDOOR ADVERTISING. Forest-agricultural zoned districts, in ................... 75-24 Glynn County, regulating, in .......................... 75-24 Zoning regulations, as applied to ....................... 75-24 PARDONS AND PAROLES, STATE BOARD OF. Offender Rehabilitation, State Department of- Administration, by ................................. 75-35 Functions transferred to ............................ 75-72 Personnel of Offender Rehabilitation not assigned to Pardons and Parole Board for duty ............... 75-35 Parole review officers employed by, status as to peace officers retirement .............................. U75-30 Personnel, how acquired .............................. 75-35 Unconstitutional statute, duties as to prisoners convicted under ................................. 75-121 Youthful offender, release revoked, disposition of ........ 75-127 PAROLE. Juvenile offender transferred to Offender Rehabilitation Department at age 17, for ......................... 75-78 PEACE OFFICER STANDARDS AND TRAINING ACT. Civilian training, consideration for certification ......... 75-118 Council- Budgetary administration ........................... 75-89 Staff, assistants, etc., appointment ................... 75-89 Municipal court sheriffs and deputy sheriffs not "peace officers" under Peace Officer Standards and Training Act .................................... U75-7 Reserve peace officers not covered .................... U75-24 PEACE OFFICER STANDARDS AND TRAINING COUNCIL. See Peace Officer Standards and Training Act. PEACE OFFICERS. See Peace Officer Standards and Training Act. Municipal court deputy sheriffs, as not ................. U75-7 Warrants for arrest, of, how issued ................... U75-48 540 INDEX OP. No. PEACE OFFICERS ANNUITY AND BENEFIT FUND. Local retirement system, member belonging to, in addition ..................................... U75-77 Parole review officers, eligibility to participate . . . . . . . . . U75-30 PENSIONS. See Deferred Compensation Plan, State. PERSONNEL BOARD, STATE. Health insurance- Self-insurance for employees, if plan administered, contract to be with state-licensed company ....... 75-137 Political activities of state employees, limiting .......... 75-145 PERSONS. Names, legal, what constitute .......................... 75-49 PHARMACY, STATE BOARD OF. Vaccine, rabies, control of ............................. 75-23 PHYSICIANS. Earlobes, piercing by unlicensed persons . . . . . . . . . . . . . . . . 75-60 Mental illness cases, residence of appointed physicians ..................................... U75-52 Unlicensed personnel administering medication in health care institutions ......................... 75-44 PISTOLS. See Weapons. PLANNING COMMISSIONS. Political subdivisions, as not constituting .............. U7.5-82 POLICE OFFICERS. See Municipal Corporations. Arrest powers beyond limits of employing city ......... U75-73 POLITICAL PARTIES. Campaign Financing Disclosure Act, subject to .......... 75-53 POSITION PAPERS. Coastal marshlands, as to ......... Op. Att'y Gen. 1975, p. 457 Labor union status of public employees, as to ........................ Op. Att'y Gen. 1975, p. 457 PRISONS AND PRISONERS. See Sentence and Punishment. Alternative Fine Program, see Probation. Central State Hospital, in . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-146 INDEX 541 OP. No. PRISONS AND PRISONERS-Continued. County correctional institutions, transfer of state prisoners, to .............................. U75-93 Crime Information Center, fingerprints and photographs to ................................. U75-34 Drunkenness, disposition of persons arrested for ........ U75-97 Good time allowances- Central State Hospital, for prisoners in .............. 75-146 Gratuities upon release where assigned to Board of Corrections, but confined elsewhere ................. 75-93 Probation, see Probation. Sentences, see Sentence and Punishment. Unconstitutional statute, rights of prisoners convicted under .......................................... 75-121 PROBATE COURTS. Insanity, see Mentally ill persons, infra. Judges- Arrest warrants for traffic violators, issuance ......... U75-65 Bench warrants not issued by ...................... U75-65 Compensation- Elections, where judge responsible for ............. U75-49 Longevity increases ............................. U75-49 Law libraries, county, use of costs, for ................. U75-16 Mentally ill personsExamining physicians, residence of ................. U75-52 Warrants for arrest of peace officers, issuance .......... U75-48 PROBATE JUDGES. Before 1974, see Ordinaries. Compensation, longevity increases as affected by population bracket statute ....................... U75-99 Pistol licenses, issuance of more than one per person .... U75-10 Salaries, increase in minimum, as prescribed by law, is computed upon calendar year basis, and includes calendar year 1974 ...................... U75-28 PROBATION. Alternative Fine Program, liability of political sub- divisions for persons employed under ............... 75-32 Conditions- Alternative Fine Program, see Alternative Fine Program, supra. Imposed conditions, computation of sentence during appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-30 542 INDEX OP. No. PROBATION-Continued. Conditions-Continued. Payment of fine, as, for defendant under First Offenders Law ................................ U75-42 Fines, payment, see Conditions, supra. Sentence computation where probated prisoner appeals .... 75-30 PROFESSIONAL CORPORATIONS. Stock, issuance and restrictions on who may hold ........ 75-61 PROFESSIONS. See specific professions: Audiologists; Physicians; etc. Businesses, regulation, see Fair Business Practices Act. Corporations, see Professional Corporations. PROFIT-SHARING PLANS. See Banks and Banking. PROPERTY. Personal- Security instrument covering, not recorded as realty instrument ............................. U75-87 Real, see Real Estate. PUBLIC SERVICE COMMISSION. Consumers' Utility Counsel, notice, to, of proceedings ............................... 75-76,75-105 Electric membership corporations, proceedings for loans to, as contested cases . . . . . . . . . . . . . . . . . . . . . . . 75-139 Public Counsel, see Consumers' Utility Counsel, supra. PUBLIC UTILITIES. See Utilities, Public. PURCHASING AND SUPPLIES DIVISION. Bids, Financing and Investment Commission, not necessary for .................................... 75-58 RABIES. Agriculture Department, no authority to restrict vaccine distribution .............................. 75-23 RACE. Billiard room statute, portions relating to, invalid, remainder of law valid . . . . . . . . . . . . . . . . . . . . . . . . . . U75-44 RADAR. Timing device, as .................................... 75-10 INDEX 543 OP. No. RAILROADS. Taxes, ad valorem, installment payments .............. 75-112 REAL ESTATE. Cemetery, private, on ................................ U75-9 Coastal marshlands, title to, see Coastal Marshes. Riparian owners, see Water. Riparian rights, owners of, as to transfer of water from one basin or rivercourse to another ............... U75-94 REAL ESTATE TRANSFER TAX. Consumer property improvement note, not affecting title to land, not recorded as realty instrument ..... U75-87 RECIPROCITY. License tags for students, as to ....................... U75-12 RECORDERS. See Municipal Corporations. RECORDING. Consumer property improvement note, not affecting title to land, not recorded as realty instrument ..... U75-87 Foreign deeds, notaries' seals rubber-stamped, rather than raised . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U75-53 Intangible taxes, effect of nonpayment on recording ..... 75-125 Personal property, instrument affecting, only, not entitled to recording as one affecting land title ..... U75-87 RECORDS. Crime Information Center- Public access, to .................................. U75-78 Purged, when ..................................... 75-110 Criminal, see Crime Information Center. Department heads, retention of records control. ......... 75-84 Driving records of individuals, disclosure ............... 75-122 Inspection of publicPolice investigation reports not subject .............. U75-92 Police investigation reports not subject to public inspection ..................................... U75-92 RECORDS ACT, GEORGIA. See Records. RECORDS MANAGEMENT OFFICER, STATE. Department heads, retention of records control .......... 75-84 REGIONAL COMMISSIONS. Atlanta, see Atlanta Regional Commission. 544 INDEX OP. No. REORGANIZATION. Offender Rehabilitation Department, functions of Pardons and Paroles Board transferred to ........... 75-72 Pardons and Paroles Board, functions, effect ............. 75-72 RESIDENCE. Domicile distinguished .. U75-74 0 0 Married women whose husbands are residents ......... 0. 75-77 Superior court judges, emeritus, requirements for. 0 U75-74 RESIDENTIAL FINANCE AUTHORITY, GEORGIA. Appropriations to, transfer 75-40 0 0 0 0 0 0 0 0 0 0 0 0 0 Narne changed from Residential Finance Agency ........ 0 75-40 RETIREMENT. See Counties; Deferred Compensation Plan, State; Firemen's Pension Fund, Georgia; Trial Judges and Solicitors Retirement Fund. Librarians, regional and county 75-46 0 0 0. Local and state systems, employees belonging to, simultaneously ... U75-77 0 0 0. 0 0 0 REVENUE BONDS. Counties not to retire bonds from general funds. 0 0 0 0 0. U75-98 RIPARIAN OWNERS. See Water. RIPARIAN RIGHTS. See Real Estate; Water. RIVERS. See Water. RULES AND REGULATIONS. See Administrative Procedure. SAFETY, STATE DEPARTMENT OF PUBLIC. Allatoona Dam Reservoir Area, policy jurisdiction over .... 75-34 Driving records of individuals, disclosure. 0 0 0 0 0 0 75-122 Federal property, jurisdiction over .... 0 0 0. 0 0 0 75-34 Motor vehicles, highly specialized, maintenance and repair not regulated by Department of Administrative Services .... 75-120 0 0 0 0 0 0 0 0 0 Timing devices for traffic, use of . . . 0 0 0 0 0 0 0 75-10 SALE OF CHECKS ACT. Transfer companies subject to ...... 0 75-21, 75-102 SALES AND USE TAXES. Agricultural commodity commissions, subject to ........ 75-136 INDEX 545 OP. No. SALES AND USE TAXES-Continued. Trade-in credits not available to automobile dealer who withdraws new trucks from inventory, drives them for year, then "trades them in" with self . . . . . . . . . . U75-76 SANITARIANS. Clerical error in Act resolved . . . . . . . . . . . . . . . . . . . . . . .... 75-99 Qualification for employment .......................... 75-99 Registered professional sanitarians distinguished from mere sanitarians ............................. 75-99 SAVINGS AND LOAN ASSOCIATIONS. Depositories, state, as, see Depositories, State. Deposits guaranteed, see Federal Savings and Loan Insurance Corporation. Intangible taxes on long term notes held by ............ 75-125 SCHOOLS, PUBLIC. See Adequate Program for Education in Georgia; Education, County and Local Boards of. Certification of teachers, principals and guidance counselors, principles governing. . . . . . . . . . . . . . . . . .. 75-130 Reading requirements for students, enforcement by State Board of Education ......................... 75-63 Teachers, see Teachers. SEARCH WARRANTS. Small claims courts, bailiffs and constables, no authority to apply, for .......................... U75-17 SECRETARY OF STATE. Rules and regulations of state agencies, filing . . . . . . . . . . . 75-123 SECURITIES. Fees, registration not refundable on withdrawal of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-79 Foreign corporations, see Registration, infra. Refund of registration fees not permitted ............... 75-79 Registration as dealer does not exempt foreign corporation from requirement of certificate of authority to do business ........................ 75-38 SECURITY TRANSACTIONS. Industrial Loan Act violation renders unenforceable .... U75-80 SEED DEVELOPMENT COMMISSION. University of Georgia Agricultural College, funds for research ........................................ 75-57 546 INDEX OP. No. SENTENCE AND PUNISHMENT. Appeals, see Computation, infra. Capital felony by person under 17 years old at time of crime ....................................... U75-43 Computation during appeal where prisoner on probation ... 75-31 Credit for time awaiting trial ........................... 75-3 First offenders, see First Offenders Law. Juveniles, see Juvenile Offenders. Probation, see Computation, supra; see also Probation. Sentence review provisions of Code 27-2511.1 apply only in superior courts .......................... U75-25 Youthful offenders, see Youthful Offender Act. Release revoked, disposition ........................ 75-127 SEPARATION OF POWERS. See Constitutional Law. SERVICE OF PROCESS. Garnishment cases, in ............................... U75-72 SHERIFFS. Bonds- County cannot reimburse liability, for ............... U75-22 Personal liability where judgment in excess of ........ U75-61 Compensation, increases on completion of terms of office . . . . . . . . . . . . . . . . . ...................... U75-47 Contraband articles, not entitled to fee from sale ....... U75-41 Deputies, see Deputy Sheriffs. Fee system abolished, effect on contraband sales ........ U75-41 Investigations of office .............................. U75-36 Judgment against, not paid by county ................ U75-26 Liability, personal, on judgment in excess of bond ...... U75-61 Municipal court sheriffs and deputy sheriffs not "peace officers" under Peace Officer Standards and Training Act .................................... U75-7 SIGNATURES. Authentication where affixed other than by handwriting ..................................... U75-4 SMALL CLAIMS COURTS. Search warrants, bailiffs and constables not authorized to apply, for ................................... U75-17 INDEX 547 Or. No. SOCIAL SECURITY. Secretaries of superior court judges and district attorneys who are county employees, reports and remittances, for .............................. 75-70 SOIL AND WATER CONSERVATION DISTRICTS. District supervisor, other state employment ............. 75-45 SOLICITORS. State court, in, vacancy in office ....................... U75-2 STATE COURTS. See specific courts. Sentence review provisions of Code 27-2511.1 apply only in superior courts ..................... U75-25 Solicitors, vacancy in office ........................... U75-2 Warrants for arrest of peace officers, issuance .......... U75-48 STATE OF GEORGIA. Contracts, see Contracts. Depositories, see Depositories, State. Employees, see Officers and Employees, Public. Grants to individuals, emergency under Civil Defense Act .................................... 75-147 Gratuities, see Constitutional Law. Workmen's compensation, payments without agreement not approved by board .............. U75-23 Officers, see Officers and Employees, Public. Statutes, regulatory, generally not applicable to .......... 75-13 Workmen's compensation payments not to be made by state before agreement approved by board ...... U75-23 STATUTE OF LIMITATIONS. See Limitation of Actions. STATUTES. Construction- Failure of amendatory Act to refer to basic Act ........ 75-53 Inconsistency between formal enactment and "to read" portion ............................. U75-48 Latest expression of legislative will ............ 75-117, U75-5 "Not," word supplied where necessary ................ 75-99 Effective dateRepeal before, effect as to Acts otherwise repealed .... U75-97 Repeals by implication, considered as to ............. 75-117 Time statute becomes law distinguished, from ........ U75-97 548 INDEX OP. No. STATUTES-Continued. Ex post facto, regulatory statute under police power not void, though it have some punitive effect as to earlier offenses .............................. 75-41 Latest expression by legislature, effect ................ U75-57 Penal statutes, how construed . . . . . . . . . . . . . . . . . . . . . . . . U75-85 Repeals- Clerical errors in, effect ........................... U75-81 Typographical error, in, effect ...................... U75-50 Repeals by implicationConstrued to have occured where Acts irreconcilable ................................. 75-128 Drivers license suspension laws ..................... 75-117 Omission of portion of earlier Act, effect .............. 75-42 Reconcilable laws not repealed ..................... U75-63 Severability, where part unconstitutional .............. U75-44 State and political subdivisions, generally not applicable to ........................ 75-13, 75-28, 75-115 State, compliance, by, not required ..................... 75-99 "To read," see Construction, supra. STOCKHOLDERS. Professional corporations, see Professional Corporations. STONE MOUNTAIN MEMORIAL ASSOCIATION. Insurance, health, employees not eligible under state plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-6.1 STREAMS. See Water. SUPERIOR COURTS. Judges- Expenses, meals, cost to be reimbursed at actual, rather than estimated cost . . . . . . . . . . . . . . . . . . . . . . 75-52 Investigators of fraud in welfare, no authority to appoint ................................... U75-70 Jurisdiction outside circuit ......................... U75-68 Outside circuit, authority in chambers as to matters ..................................... U75-68 Secretaries- County employees, social security reports and remittances, for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-70 State employees, merit system status ............... 75-82 Trial Judges and Solicitors Retirement Fund, mandatory membership, in ...................... 75-80 INDEX 549 OP. No. SUPERIOR COURTS-Continued. Judges emeritus- Assistant district attorney, service as, prior to 1957 not counted ............................... 75-14 Duties .......................................... U75-74 Marriage ceremonies, performing .................... U75-3 Recorders, municipal, suspension from emeritus position while serving as ....................... U75-13 Residence requirements ........................... U75-74 Warrants for arrest of peace officers, issuance .......... U75-48 TAX COMMISSIONERS. Records not to be stored in home ..................... U75-75 TAXATION. Ad valorem, see Ad Valorem Taxes. Exemptions, see Homestead Exemptions. Cemeteries ...................................... U75-15 MARTA, insurance sold to, not exempt from premium tax .................................. 75-54 Fire protection district property owners, effect of municipal annexation ........................... U75-33 Hotel and motel tax not applicable to Georgia Center for Continuing Education . . . . . . . . . . . . . . . . . . . . . . . U75-38 Intangible taxes, see Intangible Taxes. Motels, see Hotel, supra. Motor fuel taxes, see Motor Fuel Taxes. RefundsInsurance brokers, how paid, to ..................... 75-116 Payment of taxes pending appeal on refund not prejudice appeal ............................... 75-55 Sales, see Sales and Use Taxes. TEACHERS. Allotment under Adequate Program for Education in Geor~aAct ..................................... 75-39 Certification, necessity and requisites .................. 75-130 Hours per day which may be required ................ U75-69 Local retirement funds, having credits, under, payments by Teachers Retirement System .................. 75-113 Retirement, see Teachers Retirement System. Local systemsMinimum benefits ........................... 75-9, 75-27 Work day, length of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U75-69 550 INDEX OP. No. TEACHERS RETIREMENT SYSTEM. Applications- Date effective ...................................... 75-8 Filing before benefits due, necessity ................... 75-1 Benefits, minimum ................................... 75-27 Disability retirement and service retirement, employee qualified for both, maximum benefit to be paid ...... 75-86 Executive secretary-treasurer as member of investment committee; ministerial duties as to investments ...... 75-66 Investment committee, see Executive secretary- treasurer, supra. Librarians, regional and county, required to be members ... 75-46 Local retirement funds, payments to teachers with creditable service, under ......................... 75-113 Local systems, minimum benefits where retired under ..... 75-27 Minimum benefits ............................... 75-9, 75-27 Nonmember teachers, for ............................ 75-9 Nonmember teachers, minimum benefits ................. 75-9 Optional benefits, election of ........................... 75-86 Out-of-state service- Annuities, receipt of funds from, effect . . . . . . . . . . . . . . . . 75-26 Establishment of credit, for .................... 75-25, 75-26 Retroactive benefits not payable; no benefit to be paid for period before application filed with board ......... 75-1 TIDELANDS. See Coastal Marshes. TRADE REGULATIONS. Fair Business Practices Act, see Fair Business Practices Act. TRAFFIC CONTROL. Constables, no power of arrest without warrant ........ U75-56 Public Safety Department, use of timing devices, Vascar and radar ................................. 75-10 Radar, use of. ....................................... 75-10 Timing devices used by Department of Public Safety ..... 75-10 Vascar, use of ....................................... 75-10 TRANSPORTATION, STATE DEPARTMENT OF. Appropriations, general, and those from motor fuel tax compared . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-74 Fishing walkways on bridges, motor fuel taxes not used for ..................................... 75-96 INDEX 551 OP. No. TRANSPORTION, STATE DEPARTMENT OF-Continued. Muscogee County, distribution of state grants, to ................................ 75-68, 75-108 Outdoor advertising permits, issuance of ................ 75-24 State grants, see Muscogee County, supra. TRIAL JUDGES AND SOLICITORS RETIREMENT FUND. Age at which retirement benefits payable .............. 75-104 District attorneys, see District Attorneys. Eligibility for retirement; length of service; payment into fund by persons otherwise ineligible . . . . . . . . . . . U75-21 Mandatory membership, in . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-80 Time of service when right to benefit vests ............. 75-104 TRUSTS. Coastal marshlands, in, Position Paper Relating to Coastal Marshes ............. Op. Att'y Gen. 1975, p. 451 TRUSTS, BUSINESS. Banking laws not violated, by ......................... 75-92 UNCLAIMED PROPERTY ACT. Accounts of financial institutions, unclaimed on liquidation, disposition .......................... 75-135 Dormant accounts, service charges upon ............... 75-128 Insurance companies, not applicable to ................. 75-83 UNITED STATES. See Federal Government. Allatoona Dam Reservoir Area, police jurisdiction over ... 75-34 Military bases, see Military Bases. Military reservations, death certificates not signed by county coroner, on ............................ 75-97 Property owned by, difference in jurisdiction from that over reservations and enclaves ..................... 75-34 UNIVERSITIES. See Colleges and Universities, Private; University System of Georgia. UNIVERSITY SYSTEM OF GEORGIA. Seed Development Commission funds used for research ... 75-57 URBAN REDEVELOPMENT LAW. Private housing, loans and grants for, not authorized by political subdivisions subject to Act ............ 75-119 552 INDEX OP. No. UTILITIES, PUBLIC. Complaints by public .......................... 75-76, 75-105 Consumers' Utility Counsel, see Public Service Commission. Taxes, ad valorem, installment payments .............. 75-112 VASCAR. Timing device, as .................................... 75:..10 VETERANS. Honorable discharge distinguished from other types ..... 75-138 Statutory rights, higher education assistance, honorable discharge, necessity .................... 75-138 VETERINARY MEDICINE, STATE BOARD OF. Compensation, submission of claims for less than amount due, effect ............................... 75-31 VOCATIONAL TECHNICAL SCHOOLS. Board not to borrow money to be paid beyond fiscal year ....................................... 75-19 Contracts, see Board, supra. WARE COUNTY. Water system, financing ............................. U75-98 WARRANTS. Peace officers, arrest of, who may issue ................ U75-48 WASHINGTON COUNTY, SMALL CLAIMS COURT. Search warrants, bailiffs and constables not authorized to apply, for ................................... U75-17 WATER. Counties, duties and liabilities as to streams ........... U75-79 Lands adjoining, see Position Paper Relating to Coastal Marshes ............. Op. Att'y Gen. 1975, p. 451 Municipal corporations, duties and liabilities as to streams ..................................... U75-79 Riparian owners, duties and liabilities ................. U75-79 Transfer from one basin or rivercourse to another ...... U75-94 WATERS AND SEWAGE SYSTEMS. Counties, of, how financed ........................... U75-98 WATERSHED PROJECTS. Counties using equipment and spending funds for improvements ................................... 75-29 WEAPONS. Licenses, issuance of more than one to individual ....... U75-10 INDEX 553 OP. No. WELFARE. Investigators of fraud in food and welfare programs not employed at public expense .................. U75-70 WOODSTOCK, CITY OF. Annexation, citizens of county fire protection districts affected by, taxation ............................ U75-33 WORDS AND PHRASES. Deposit ............................................. 75-92 Domicile .......................................... U75-74 Fix ............................................... U75-11 Honorable discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-138 Political subdivision ................................ U75-82 Practice of medicine .................................. 75-60 Residence ......................................... U75-74 Seal .............................................. U75-53 Special deputy sheriffs ................................ 75-64 Specialized vehicles .................................. 75-120 Teachers ............................................. 75-9 Trust . . . . . . . . . . . . . . . . . . . . . . . . ....................... 75-92 WORKMEN'S COMPENSATION. State, payments not to be made by, before agreement approved by board ............................. U75-23 YEAR'S SUPPORT. Age of Majority Act, effect as to beneficiaries .......... U75-95 YOUTHFUL OFFENDER ACT. Kidnapping, persons convicted of ...................... 75-73 Sentences computed, how ....................... 75-47, 75-50 Transfer of inmates from Department of Human Resources to Department of Corrections ...... 75-47, 75-50 YOUTHFUL OFFENDERS. Escape, disposition of persons guilty, of ................. 75-98 Revocation of release, disposition ..................... 75-127 Voting rights, loss of. ................................ 75-17 ZONING. Outdoor advertising, as related to ...................... 75-24