Opinions of the Attorney General 1976

OPINIONS of
THE ATTORNEY GENERAL
1976 ARTHUR K. BOLTON
ATTORNEY GENERAL
CURTISS PRINTING CO., INC.
62 ELLIS STREET, N. E. ATLANTA, GEORGIA

TABLE OF CONTENTS
PAGE
OFFICIAL OPINIONS, 1976. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 UNOFFICIAL OPINIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 POSITION PAPER RELATING TO CONFLICTS
OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355 TABLE 1. UNITED STATES CONSTITUTIONAL
PROVISIONS CITED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383 TABLE 2. GEORGIA CONSTITUTIONAL
PROVISIONS CITED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383 TABLE 3. GEORGIA LAWS CITED ....................... 385 TABLE 4. GEORGIA CODE ANNOTATED
SECTIONS CITED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 TABLE 5. OBSOLETE OR MODIFIED OPINIONS ......... 413 TABLE 6. TABLE OF CASES ............................. 419 INDEX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431
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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-
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ARTHUR K. BOLTON The Attorney General
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LEGAL STAFF OF DEPARTMENT OF LAW DURING CALENDAR YEAR 1976

ATTORNEY GENERAL Arthur K. Bolton

EXECUTIVE ASSISTANT ATTORNEY GENERAL Robert S. Stubbs, II

FIRST ASSISTANT ATTORNEYS GENERAL

Richard L. Chambers

Don A. Langham

SENIOR ASSISTANT ATTORNEYS GENERAL

Robert S. Bomar Michael J. Bowers J. Robert Coleman G. Thomas Davis Alfred L. Evans, Jr.

Marion 0. Gordon H. Perry Michael Timothy J. Sweeney John C. Walden

ASSISTANT ATTORNEYS GENERAL

Sarah H. Adams Gary B. Andrews Kirby G. Atkinson David J. Bailey John B. Ballard, Jr. Patricia T. Barmeyer Franklin N. Biggins Gerald W. Bowling Lauren 0. Buckland Harold D. Corlew Stephen L. Cotter John W. Dunsmore, Jr. J. David Dyson Bruce M. Edenfield

Andrew J. Ekonomou Melvin M. Goldstein Thomas W. Greene B. Dean Grindle, Jr. Robert E. Hall W. Hensell Harris, Jr. John E. Hart Michael E. Hobbs Carl C. Jones, III William C. Joy Dorothy Y. Kirkley R. Douglas Lackey Daniel I. Macintyre, IV Roland F. Matson

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LEGAL STAFF-Continued -

ASSISTANT ATTORNEYS GENERAL-Continued

Lois F. Oakley Donn L. Odom G. Stephen Parker David A. Runnion

Robert H. Shell Verley J. Spivey Wayne P. Yancey

STAFF ASSISTANT ATTORNEYS GENERAL

Curtis E. Anderson Victor M. Baird Susan V. Boleyn Isaac Byrd Carol Atha Cosgrove Julius C. Daugherty, Jr. Jefferson J. Davis

Daniel M. Formby Dallas P. Jankowski Harrison W. Kohler James L. Mackay James C. Pratt Daryl A. Robinson J. Michael Walls

Linda Ruth Birrel Ann Estes

ATTORNEYS John C. Jones

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FOREWORD It is the duty of the Attorney General, when required to do so by the Governor, to give his opinion in writing on any question of law connected with the interest of the state or with the duties of any of its departments. Ga. Code Ann. 40-1602, Par. 1. To avoid requiring the Governor to endorse requests for opinions originating with the departments of the state, the Attorney General receives such requests directly from the department heads. Opinions rendered to the Governor and to the heads of departments are classified as "official opinions." In addition to "official opinions," the office of the Attorney General renders "unofficial opinions" to other state officers (e.g., legislators, district attorneys) and to county and municipal attorneys on questions involving the general laws of the state. The "unofficial opinions" have been separated from and follow the "official opinions" herein. Each "unofficial opinion" bears the following notation: "The views expressed herein are the completely unofficial views of the writer only, and should be considered as information only." The "official opinions" are serially numbered, showing the last two digits of the year of rendition, followed by a hyphen, then the number of the opinion as rendered that year. Therefore, for 1970 we have: "70-1," "70-2," etc., and for 1971 and each following year we begin a new series: "71-1," "71-2," etc. The "unofficial opinion" numbers are preceded by the letter "U." Thus, "U70-1," "U70-2," ... "U71-1," aU71-2," etc., refer to aunofficial opinions."
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OFFICIAL OPINIONS of
THE ATTORNEY GENERAL
1976
XI

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76-1

OPINION 76-1

To: Governor of Georgia

January 6, 1976

Re: A superior court judge, who selects widows' benefits under the Superior Court Judges Retirement Fund, but who resigns or otherwise leaves office prior to attaining age 60, is entitled, upon the attainment of age 60, to be appointed Judge of the Superior Courts Emeritus, assuming he otherwise meets the service requirements for that office, notwithstanding the fact that he is not serving as a judge when appointed as Judge of the Superior Courts Emeritus.

This responds to your letter of this same date in which you request my opinion on the following question:

"Is a superior court judge, who selects widows' benefits under the Superior Court Judges Retirement Fund and is otherwise eligible for emeritus appointment, but who resigns or otherwise leaves office prior to attaining age 60, eligible to be appointed to the office of Judge of the Superior Courts Emeritus?"

The Superior Court Judges Retirement Fund was created by Ga. Laws 1945, p. 362 et seq., as amended; Ga. Code Ann. Ch. 24-26A, as amended. That Act also created the office of Judge of the Superior Courts Emeritus and specified the duties, rights, obligations and salary of Emeritus Judges.
The 1945 Emeritus Act was amended in 1968 to allow any superior court judge who so chose to select widows' benefits to continue to his surviving spouse upon his death, provided the judge paid an additional contribution of two percent of his salary to the fund. Ga. Laws 1968, p. 275 et seq., as amended; Ga. Code Ann. 24-2610a.l. The widows' benefits amendment of 1968 clearly states that no judge of the superior courts selecting widows' benefits may be appointed Judge of the Superior Courts Emeritus until he is at least 60 years of age (except for emeritus appointments under the disability section of the Act). Ga. Code Ann. 24-2610a.1 (a) (1).
As a general rule, a superior court judge must be serving as a judge at the time of his appointment to the office of Judge of the Superior Courts Emeritus. Ga. Code Ann. 24-2603a. However, the 1968 amendment allowing the option of selecting widows' benefits was amended in 1970 by the addition of the following language:
"No provision of this Act shall be construed so as to require any superior court judge exercising the option provided by this section to be holding office as a superior court judge in order to be eligible for appointment as judge emeritus, and, if otherwise qualified in accordance with the applicable provisions of this Act, any such

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judge shall be entitled to be appointed judge emeritus subject to the requirements of this section, whether or not he is holding office at the time of his appointment." Ga. Laws 1970, pp. 249-51; Ga. Code Ann. 24-2610a.1 (d).
The above language was added to the Act to provide some flexibility in the service and appointment requirements of Emeritus Judges who select widows' benefits. In my judgment, it recognizes that the attainment of age 60 is required for the emeritus appointment of judges selecting widows' benefits and that some judges may attain the requisite service for emeritus appointment and desire to leave the bench before attaining age 60.
Accordingly, based on the foregoing, it is my opinion that a superior court judge, who selects widows' benefits under the Superior Court Judges Retirement Fund, but who resigns or otherwise leaves office prior to attaining age 60, is entitled, upon the attainment of age 60, to be appointed Judge of the Superior Courts Emeritus, assuming he otherwise meets the service requirements for that office, notwithstanding the fact that he is not serving as a judge when appointed as Judge of the Superior Courts Emeritus.
As an aside, I sbould point out that the Act also provides for widows' benefits to the surviving spouse of a judge who dies after obtaining the service requirements for appointment as Emeritus Judge but who has not yet reached age 60 at the time of death. This is true whether or not the member is serving as a superior court judge at the time of his death. Ga. Code Ann. 24-2610a.l (c) (Ga. Laws 1973, p. 785).

OPINION 76-2

To: Secretary of State

January 12, 1976

Re: Procedures to be employed for disposition of applications for absentee ballots.

This is in reply to your request for my opinion as to the proper disposition, under both the Georgia Election Code and the Georgia Municipal Election Code, of an application for absentee ballot where the corresponding registration card on file in the registrar's office is incomplete, by reason of the absence of the required signature or by reason of the absence of the information otherwise sought by the statutory form of the registration card.
The requirements of both the Georgia Election Code and the Municipal Election Code in this respect are substantially equivalent and the opinions expressed herein are applicable in each case.

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Both the Georgia Election Code and the Municipal Election Code provide:
"Upon receipt of a timely application, [the appropriate officer] shall enter thereon the date received, and shall determine if the applicant is eligible to vote in the primary or election involved." Ga. Code Ann. 34-1402 (c) (amended by Ga. Laws 1974, p. 71); Ga. Code Ann. 34A-1304 (b) (amended by Ga. Laws 1975, p. 888).
Eligibility to vote in any election is conditioned upon prior "registration in accordance with the requirements of law." Ga. Const., Art. II, Sec. I, Par. I (Ga. Code Ann. 2-701); Ga. Code Ann. 34-602 (Ga. Laws 1964, Extra. Sess., pp. 26, 45, as amended); Ga. Code Ann. 34A-501 (Ga. Laws 1968, p. 885, as amended).
Registration in turn is dependent upon making proper application by furnishing under oath, and over the signature of the applicant, the information required by the statutorily prescribed registration forms. Ga. Code Ann. Chs. 34-6, 34A-5. The form now required by Ga. Code 34-609 has remained substantially the same since 1958. Ga. Laws 1958, pp. 269, 274, Section 8. Georgia Code Ann. 34A-505 (amended by Ga. Laws 1974, p. 82) requires municipalities using separate registration lists to employ the form prescribed by Ga. Code Ann. 34-609 (Ga. Laws 1964, Extra. Sess., p. 26, as amended).
The self-evident purpose of the registration requirement is to protect the purity of the ballot by ascertaining before the vote is cast whether such person possesses the qualifications to vote and by preventing impersonation thereafter at the polls. 25 Am. Jur. 2d Elections, 95.
This office concluded in a prior unofficial opinion that the absence of the applicant's signature on the registration card operates to prevent registration and thus eligibility to vote. Op. Att'y Gen. 68-145; see also Op. Att'y Gen. 74-54. I adhere to that conclusion.
It is thus my official opinion that if upon examination of an application for absentee ballot, the appropriate officer ascertains that the supporting registration card is incomplete by reason of the absence of the required signature, he should determine the applicant ineligible and should proceed accordingly. Ga. Code Ann. 34-1402 (c), 34A-1304 (b).
Where the appropriate officer, upon examination of the registration card supporting an application for absentee ballot, finds the registration complete as to signature but incomplete as to other information required by the statutory form, a more difficult question is presented. The difficulty arises in part from the fact that the absence of the required information is partially the fault of the registrars in failing to insist at the time of application upon compliance. Ga. Code Ann.

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34-614 (Ga. Laws 1964, Extra. Sess., pp. 26, 56); Ga. Code Ann. 34A-509 (Ga. Laws 1968, pp. 885, 902). It also arises from the fact that, unlike the situation which arises from the applicant's failure to sign the card, by executing the oath also prescribed by the registration card the applicant has furnished information, albeit incomplete, as to both his identity and his qualifications to vote. See Ga. Code 102-102.6. These two considerations, in my opinion, preclude a summary finding under Ga. Code Ann. 34-1402 (c) or 34A-1304 (b) that the applicant for an absentee ballot is ineligible to vote.
However, the absence of information on a registration card, and the consequent lack of correspondence between that source of information and the information provided on the completed absentee ballot application, may give rise to a question as to the identity of the applicant. In that event, the registrar:
" ... should promptly write (using airmail, if necessary) to request additional information." Ga. Code Ann. 34-1402 (c), 34A-1304 (b).
In my opinion, in such a case the registrar may properly request the absentee ballot applicant to furnish all the information which is sought by Ga. Code Ann. 34-609 and 34A-505. In the event the applicant does not furnish the requested information, his application may be rejected in accordance with the procedures established by Ga. Code Ann. 34-1402 (c), 34A-1304 (b).
Moreover, both the Georgia Election Code and the Municipal Election Code provide:
"The failure on the part of the applicant to disclose information sought by a direct question of the registration officers in connection with the taking of the application or at subsequent proceedings ... shall result in the application being rejected by the registration officers, and shall also be a cause for challenge, which, if sustained, shall result in the elector's name being removed from the list." Ga. Code Ann. 34-614, 34A-509.
Finally, each also provides:
"The board of registrars ... shall have the right and shall be charged with the duty of examining from time to time the qualifications of each elector whose name is entered upon the list of electors, and shall not be limited or estopped by any action previously taken."
***
"If the right of any person to remain on the list of electors, whose name appears thereon, is questioned by the registrars, they shall give such person written notice of the time and place of a hearing to determine such right...."Ga. Code Ann. 34-627, 34A-519.

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By following the procedure outlined in the latter provisions, the registrars are given a mechanism to insure full compliance with the statutory registration requirements, but at the same time the voter is not penalized for their prior failure to insure that compliance.
In sum, where the registration card corresponding to an otherwise proper application for absentee ballot is signed but is otherwise incomplete in some respect, until the completion of proceedings in accordance with Ga. Code Ann. 34-627 or 34A-519, as the case may be, the registrar may not refuse to deliver the absentee ballot unless the absence of information sought by the registration card on file gives rise to a question as to the applicant's identity. In the latter event, the registrar may request additional information, including that sought by Ga. Code Ann. 34-609, and may, if the applicant refuses to furnish the information requested, reject the absentee ballot application. Ga. Code Ann. 34-1402 (c), 34A-1304 (b).

OPINION 76-3

To: Secretary of State

January 12, 1976

This is in reply to your request for my opinion on the following question:

"[An individual], whose house is located in Miller County just a few feet from the Early County line, wants to know if he adds a room to this house and the room extends into Early County, would he be eligible to register and vote in Early County. He now pays tax and gets homestead exemption in Miller County. . . . [The individual] does not want to build the room unless it would give him the legal right to register and vote in Early County."
In my opinion, the facts stated above would not alter the previously established residence of the individual involved.

OPINION 76-4

To: Commissioner of Agriculture

January 12, 1976

Re: The assessments and voting rights created for the proposed Agricultural Commodity Commission for Pecans both inure to the lessee of land utilized for pecan production if the lessee is the individual undertaking the physical activities of producing or causing to be pro duced pecans for market. The Commissioner of Agriculture retains the

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right of access to the records of pecan producers and handlers regardless of the method used to determine the assessment levjed upon producers.
You have requested my opinion as to certain issues confronting your current endeavor to establish a proposed Agricultural Commodity Commission for Pecans. Basically, your inquiry is three-fold:
(1) Inasmuch as much land used for pecan production is leased, does the landowner (lessor) or the lessee bear the responsibility for the Agricultural Commodity Commission for Pecans assessment (however measured) levied on the pecans produced from that land?
(2) Who retains the voting rights to participate in Agricultural Commodity Commission for Pecans referenda ascribed to the producer of pecans from lands leased in the aforesaid manner?
(3) If the assessment of the proposed Agricultural Commodity Commission for Pecans is based upon acreage utilized for production rather than upon the basis of actual pecan production, does the Commissioner of Agriculture have right of access to records of handlers and producers even though assessments and the basis therefor may be determined without financial audits of actual sales and production records?
The creation, powers, and duties of any agricultural commodity commission are subject to the provisions of the Georgia Agricultural Commodities Promotion Act (Ga. Laws 1969, p. 763, as amended (Ga. Code Ann. Ch. 5-29)), and are governed and controlled thereby. Ga. Laws 1969, pp. 763, 769 (Ga. Code Ann. 5-2907). Upon review of the language of that statute, my responses to your first two queries are that the assessment for pecan production must be borne by the lessee of the land utilized for pecan production and that voting rights for Agricultural Commodity Commission for Pecans referenda ascribed to such lands must necessarily inure also to the lessee.
The Act provides that assent to marketing orders of agricultural commodity commissions must be provided in writing by producers who are engaged in the production for market of the agricultural commodity specified and that assessments levied by agricultural commodity commissions shall be levied upon producers of the commodity affected. Ga. Laws 1969, pp. 763, 780, 786 (Ga. Code Ann. 5-2914 and 5-2916). The Act further defines a producer as " ... any person engaged within this state in the business of producing, or causing to be produced for market, any agricultural commodity ..." Ga. Laws 1969, pp. 763, 766 (Ga. Code Ann. 5-2903 (b)). These statutory expressions persuade me that the individual or individuals engaged in the physical activities of producing the agricultural product or causing

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to be produced for market that agricultural product must necessarily be the "producer" contemplated by the Act as the party responsible for assessments levied by the agricultural commodity commission and the individual to whom voting rights in agricultural commodity commission referenda must devolve. Of course, this response is predicated upon the assumption that the lessee of the land involved performs all of the physical activities necessary to produce the pecans for market, inasmuch as I perceive the landowner or lessor to undertake no active role in such production in the relationship you have described.
Bearing in mind the mandatory precept that any marketing order of an agricultural commodity commission must comport to the provisions of the Agricultural Commodities Promotion Act, my answer to your final question is rendered quite simple. Pursuant to the Act, the Commissioner of Agriculture "may" require producers and handlers to maintain books and records reflecting their operations and to permit inspection of those records by the commissioner or his duly authorized representative. Ga. Laws 1969, pp. 763, 801 (Ga. Code Ann. 5-2922). While this statutory expression does not direct the commissioner to require the maintenance and audit of such records, it certainly reserves to his office the prerogative to do so. Whether he does so is a matter for his discretion and his determination of its necessity or desirability. Obviously, no marketing order may derogate or inhibit that prerogative, and the deletion of such a requirement from the marketing order of the proposed Agricultural Commodity Commission for Pecans will not preclude the commissioner from subsequently impressing upon pecan producers and handlers the responsibility of maintaining records for periodic inspection.
In conclusion, I should emphasize that the availability to the commissioner of pecan production records will be necessary to the enforcement and implementation of Sections 15 and 17 of the Agricultural Commodities Promotion Act. Section 17 expressly states that the maximum assessment upon a commodity producer or handler shall not exceed two and one-half per cent of the gross dollar volume of the commodity sold by a purchaser or bought or handled by handlers. Ga. Laws 1969, pp. 763, 786 (Ga. Code Ann. 5-2916). Similarly, Section 15 indicates that the tabulation of referenda votes is conducted according to the number of producers voting and the total volume of commodity production represented by those voting. Ga. Laws 1969, pp. 763, 780 (Ga. Code Ann. 5-2914). Consequently, the ascertainment of figures reflecting commodity production, sales, and purchases appears to be dictated for the satisfaction of statutory requisites in the determination of maximum assessment and voting results regardless of whether the acreage method of assessment you have mentioned is utilized by the Agricultural Commodity Commission for Pecans.

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OPINION 76-5

To: Secretary of State

January 13, 1976

Re: Georgia Code Ann. 34-1102 (c) (Ga. Laws 1964, Extra. Sess., pp. 26,97; 1968,pp.871, 877; 1970, pp. 347,369;1970,pp. 383,385) requires incumbency designation of the present officeholder, regardless of whether the officeholder was previously elected or was appointed to fill a vacancy.

This is in reply to your request for my opinion on whether an incumbent officer, who holds that position by virtue of an appointment to fill a vacancy for the unexpired term, is subject to the requirement of Ga. Code Ann. 34-1102 (c) that he be designated as the incumbent on a party primary ballot if he seeks nomination for election to that position.
The purpose of the requirement of incumbency designation established by Ga. Code Ann. 34-1102 (c) is to provide factual information to a voter which is relevant to the choice which he makes in voting and which aids him in that decision. Williamson v. Fortson, No. C74-1030A, U.S.D.C., N.D. Ga. (June 19, 1974); Op. Att'y Gen. 72-74. Essentially, Ga. Code Ann. 34-1102 (c), which is mandatory, not permissive, identifies on the ballot the candidate responsible for the current conduct of the office involved, permitting the voter to express his approval or disapproval of that conduct. I d.
"Incumbent" in its ordinary sense means the holder of the office, regardless of whether he acquired title by election or appointment to fill a vacancy. Op. Att'y Gen. 72-74. Unlike other provisions of the Election Code, the statute involved here does not suggest any contrary meaning was intended by the General Assembly. See Ga. Code Ann. 34-1002 (c) (iv) (Ga. Laws 1970, pp. 347, 354). Engrafting some other meaning, dependent upon the concept that the statute confers a privilege dependent upon whether the present officeholder has "earned" the incumbency designation by prior election, would be inconsistent with that language and with the purpose of the statute.
It is thus my official opinion that upon offering for nomination in a party primary as a candidate for the office he holds, the present officeholder must be designated the incumbent on the primary ballot regardless of whether he holds that office by virtue of prior election or by virtue of his appointment to fill a vacancy in that office.

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OPINION 76-6

To: Secretary of State

January 13, 1976

Re: Effect of Privacy Act of 1974 on Georgia election laws.

This is in reply to your request for my opinion on the effect, if any, which the Privacy Act of 1974, Pub. L. 93-579 (88 Stat. 1896), may have on certain provisions of the Georgia Election Code Title 34 (Ga. Laws 1964, Extra. Sess., p. 26 et seq.).
The Privacy Act of 1974 relates primarily to obligations of federal agencies with respect to the collection, retention, and disclosure by those agencies of information relating to individuals. With one exception, noted below, it does not purport to affect the states' powers or obligations in those matters. It is thus my official opinion that the Privacy Act of 1974 does not alter the powers conferred or obligations imposed by Ga. Code Ann. 34-107, 34-609, or 34-621.
The exception relates to Section 7 of the Privacy Act of 1974 which essentially prohibits state and local governments, as well as federal agencies, from denying to any individual any right, benefit, or privilege afforded by law for the individual's refusal to disclose his social security number. However, Section 7 provides that the prohibition does not apply where the disclosure is required, by a state or local agency, under authority in effect prior to January 1, 1975, as part of the system of records "in existence and operating" prior to that date for the purpose of verifying the identity of individuals.
Obviously, all of the disclosures required by Ga. Code 34-609, which includes a request for disclosure of the applicant's social security number, are required by a statute in effect prior to January 1, 1975, are maintained as a part of a system of records operating prior to that date, and are required and maintained for the purpose of verifying the identity of individuals.
Hence, it is my opinion that the social security number disclosure required by Ga. Code 34-609 is exempted by Section 7 (a) of the Privacy Act from the prohibition otherwise imposed thereby.
However, Section 7 (b) of the Privacy Act also requires that a state or local agency which requests an individual to disclose his social security number to inform that individual whether the disclosure is mandatory or voluntary under what statutory authority the disclosure is requested, and the uses to which the disclosure will be put. A statement to the effect that the disclosure is mandatory if the social security number is known at the time of the application, that the disclosure is requested under the authority of the Georgia Election Code, and that the disclosure will be used for the purpose of verifying the identification of that individual will suffice.

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OPINION 76-7

To: Commissioner, Department of Human Resources

January 14, 1976

Re: Under Ga. Laws 1974, pp. 1451-3, accumulated days of forfeited sick and annual leave of a member of the Employees Retirement System, which were earned in state service and for which the employee is not otherwise entitled to be paid, constitute creditable retirement service, notwithstanding the fact that some of the leave was forfeited prior to the employee's retirement.

This responds to the recent inquiry from your office relative to a specific employee of the Department of Human Resources (DHR) and the circumstances under which this person may use certain forfeited leave for retirement credit with the Employees Retirement System (ERS). I have studied the memorandum your staff provided along with the attached background material. As I understand the facts, a career employee in the Institutional Health and Safety Unit of DHR has filed an application for a service retirement effective January 31, 1976. On June 30, 1959, this employee left the employ of the Georgia Department of Health, at that time forfeiting 29 days of accumulated sick leave. He returned to employment by the Health Department on December 1, 1959, but under the Rules and Regulations of the State Personnel Board, the 29 days of sick leave were not restored to his credit.
This employee has now attained the requisite service and age for a service retirement with the ERS. Since his break in service with the Health Department in 1959, he has accumulated sick and annual leave above and beyond that amount for which he can be paid at retirement, and this leave will be forfeited upon his retirement in January and may be used by him as additional retirement creditable service. You have asked whether his 29 days of sick leave forfeited in 1959 are also creditable for retirement purposes.
In 1974, the ERS Act was amended by the addition of the following language, quoted in pertinent part:
"Accumulated days of forfeited annual and sick leave of a member of the retirement system, for which the member is not otherwise entitled to be paid, shall constitute creditable service, computed on the basis of 20 days of forfeited leave constituting one month of service, and at the time of retirement, if the retiring member has a total of six months or more of such forfeited annual and sick leave, the employer shall certify to the retirement system the total amount of such forfeited annual and sick leave and

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contribute the same amount as would have been contributed by the employer had the member remained in state employment without change in compensation for a period equal to the amount of such forfeited annual and sick leave.... Any accrued sick or annual leave for which an employee has not been paid at retirement shall be deemed to be forfeited leave for the purpose of this Act." Ga. Laws 1974, pp. 1451-3; Ga. Code Ann. 40-2504 (1).1
This amendment to the Act was addressed and interpreted in Op Att'y Gen. 74-79. There, I opined that all accumulated days of forfeited sick and annual leave of a member of the retirement system, which were earned in state service and for which the member is not otherwise entitled to be paid, should constitute creditable service for retirement purposes under Ga. Laws 1974, pp. 1451-3.
The goal of statutory construction is always the ascertainment of the General Assembly's intent in enacting any specific statute. Ga. Code 102-102 (9); Thacker v. Morris, 196 Ga. 167 (1943). The earlierquoted amendment to the ERS Act, as I perceive its meaning, is intended to reward or even encourage the husbandry and judicious use of annual and sick leave. Certainly, the State of Georgia receives a benefit when her employees are working and performing their employment duties as public servants, rather than concerning themselves with the utilization of every day of leave to which they are entitled. Notwithstanding when the forfeiture of unused leave occurs, it occurs because the employee was performing his employment duties on days when he could have otherwise been on leave with pay.
Additionally, it should be noted that the 1974 amendment does not state that the leave must be forfeited at the time of retirement in order to constitute creditable service. Had the General Assembly intended such a meaning, the language of the statute would be clear and specific to that effect. See, e.g., Barnes v. Carter, 120 Ga. 895 (1904). Moreover, Acts of the General Assembly providing retirement benefits for public officers and employees should be liberally construed in favor of the claimant. Burks v. Board of Trustees, 214 Ga. 251 (1958); City of Macon v. Herrington, 198 Ga. 576 (1944); Op. Att'y Gen. 73-45.
I have carefully considered the information you submitted on the subject employee. His 29 days of forfeited sick leave were earned in state service and he is not otherwise entitled to be paid for them. Based on the foregoing, it is my opinion that, under Ga. Laws 1974, pp. 1451-3, accumulated days of forfeited sick and annual leave of a member of the Employees Retirement System, which were earned in state service and for which the employee is not otherwise entitled to be paid, constitute creditable retirement service, notwithstanding the
1 Acts 1976, pp. 393, 394, rewrote this paragraph of 40-2504 (1).

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fact that some of the leave was forfeited prior to the employee's retirement.

OPINION 76-8 To: Secretary of State

January 14, 1976

Re: County and municipal registrars are ineligible for any election to or nomination for office while in office or for six months after so serving.

This is in reply to your request for my opinion on the following Issues:
(1) Can a county registrar run for and hold a city office if the county does not maintain the registration list for the city?
(2) Can a county registrar run for and hold a city office when the county does maintain the registration for a city?
(3) Can a city registrar run for and hold a county office?
The resolution of these questions depends in large part upon a proper construction of Ga. Code Ann. 34-605 (Ga. Laws 1964, Extra. Sess., pp. 26, 49; 1976, p. 468) and 34A-503 (amended by Ga. Laws 1974, p. 82). Each provides:
"No person, while serving as a registrar or deputy registrar or within a period of six months after so serving, shall be eligible to any nomination or office to be voted for at a primary or election."
In a prior unofficial opinion, Op. Att'y Gen. 68-366, this office concluded that while a city councilman appointed to the position of county registrar may continue to serve the remainder of his term as city councilman, that he "may not offer for reelection while serving as a county registrar or within a period of six months after so serving."
That conclusion obviously flows from the view that properly interpreted the words "at a primary or election," as they are used in Ga. Code Ann. 34-605, includes any primary or election, whether or not the conduct of that primary or election is otherwise governed by the Georgia Election Code.
After reexamination of that conclusion, I believe it to be correct and equally applicable in construing the comparable language now contained in Ga. Code Ann. 34A-503.
It is thus my official opinion that neither a county nor a city registrar may offer as a candidate for nomination or office in a state, county, or municipal election while serving as a county or city registrar or within a period of six months after so serving.

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76-9

OPINION 76-9

To: Executive Director, Georgia Peace Officer Standards and Training Council

February 3, 1976

Re: A pardon by the State Board of Pardons and Paroles that relieves an individual convicted of a felony from civil and political disabilities does not eliminate such a conviction as one which would disqualify an applicant under the Georgia Peace Officer Standards and Training Act.

The Georgia Peace Officer Standards and Training Act (Ga. Laws 1970, p. 208, as amended; Ga. Code Ann. Ch. 92A-21) (hereinafter "POSTC Act") provides in Section 8 (d) that any person employed or certified as a peace officer shall not have been convicted, by any state or by the Federal Government, of any crime the punishment for which could have been imprisonment in the federal or state prison or institution.
In Op. Att'y Gen. 73-61 we expressed the opinion that while an act by the State Board of Pardons and Paroles which relieves an individual from the civil and political disabilities created by a conviction operates so that the pardoned person is treated as though he never committed the offense, nevertheless the record of commission and conviction remain. Accordingly, a convicted felon cannot after pardon say that he has never been convicted of a crime, but rather that he has been convicted and pardoned. The pardon relates to forgiveness of guilt and not forgetfulness of conviction.
Thus, an applicant for certification under the POSTC Act who has been convicted of a felony in any state or federal court and who has subsequently been pardoned would nevertheless not qualify to be employed or certified as a peace officer pursuant to the POSTC Act.
Our conclusion in this respect is strengthened by the fact that the General Assembly has provided that any person convicted and sentenced finally for any felony involving moral turpitude, under the laws of Georgia or of any other state, unless restored by a pardon from the proper executive, is ineligible to hold any civil office. Ga. Code Ann. 89-101 (1933 Code, as amended). Had the General Assembly intended for a convicted felon who has been pardoned to be eligible for certification under the POSTC Act, it could have so provided just as it did in the case of public officers. However, since no such provision exists in the POSTC Act, the reasonable inference, applying the principle of expressio unius est exclusio alterius, is that a convicted felon who has been pardoned does not qualify for certification under the POSTC Act.

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14

OPINION 76-10

To: Executive Director, Georgia State Soil and Water Conservation Committee

February 4, 1976

Re: An incumbent Soil and Water Conservation District Supervisor continues in office until his successor has been duly elected, sworn in and commissioned.

This is in response to your letter seeking guidance from this office concerning problems which have been experienced in electing a district supervisor in a particular county. Your letter sets forth the following facts: The term of the then incumbent elected Soil and Water Conservation District Supervisor from that county expired on February 25, 1975. An election for a new district supervisor from that county was held on February 28, 1975, at which time the incumbent was the only person qualified as a candidate. A write-in candidate received a majority of the votes cast in that election.
The supervisor-elect, the write-in candidate, attended one meeting of the Soil and Water Conservation District but was never sworn in. On April 29, 1975, the supervisor-elect submitted a letter of resignation from the position of district supervisor. Another election for the post of district supervisor from that county was held on October 17, 1975. Once again the same supervisor-elect, who had previously submitted a letter of resignation from the position, received a majority of the ballots cast, on a write-in vote.
After several attempts to contact the again supervisor-elect by telephone, you mailed him a letter on November 18, 1975, advising him that he had been elected to the post of district supervisor and requesting that he notify you concerning his willingness to serve in that office. To date you have received no response.
The Soil and Water Conservation District which includes that county has inquired of you whether or not the elected supervisor whose term expired on February 25, 1975 can continue to serve as a district supervisor and to receive per diem allowances until a duly elected supervisor from that county is sworn in and commences service as a district supervisor.
The Soil and Water Conservation Districts Law (Ga. Laws 1937, p. 377; Ga. Code Ann. 5-2001 et seq.), as amended, provides as follows: "A supervisor shall hold office until his successor has been elected ... and has qualified." Ga. Code Ann. 5-2004. A subsequently enacted provision of the Act states: "[A]s the terms of office of the present elected supervisors shall expire, their successors shall be elected to serve for terms of office of four years and until their successors are duly elected." Ga. Laws 1973, pp. 929, 931; Ga. Code Ann. 5-2011.1.
Georgia law dealing with public officers generally provides that "All officers of the State shall ... discharge the duties of their offices

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until their successors are commissioned and qualified...." Ga. Code (1933) 89-105. The law provides for an incumbent officer to hold over in office until his successor is legally qualified to assume the office in order to avoid a vacancy in the office. Ga. Code (1933) 89-501 sets forth the circumstances which do create a vacancy in a public office, one of which is resignation. The letter of resignation submitted by the supervisor-elect was not effective as a resignation of the office, within the meaning of Ga. Code 89-501, unless he had actually succeeded to the office of district supervisor at that time.
An analogous situation was presented to the Supreme Court in the case of Pittman v. Ingram, 184 Ga. 255 (1937). In that case a person was elected to the office of superior court judge but died after the election and prior to qualifying. The court held that no vacancy had been created and that the incumbent continued in the office, stating:
" 'The office is not vacant so long as iil is supplied, in the manner provided by the constitution or law, with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it,' and 'the mere expiration of the term of the incumbent does not create a vacancy.' " 184 Ga. at 256-57.
Reading the general provisions of Georgia law on public officers together with the provisions of the Soil and Water Conservation Districts Law, it is clear that an incumbent elected district supervisor holds over in that office until his successor is both elected and qualified. The question then remains as to the meaning of the word "qualified," with respect to Soil and Water Conservation District Supervisors.
Georgia law requires that every public officer take the oath of office and swear that he is qualified to assume the office. Ga. Code (1933) 89-301 et seq. State officers must also be commissioned, as provided by law. Ga. Code (1933) 89-202. In discussing the steps necessary for qualification for the office of judge of the superior court, the Supreme Court noted that a newly elected judge had died after his election but "without having qualified by taking the oath and receiving a commission." Pittman v. Ingram, 184 Ga. 255 at 258 (1937). With regard to Soil and Water Conservation District Supervisors as well, to have "qualified" for the office, one elected as a district supervisor must be sworn in and commissioned.
In the factual situation which you have described to me, the newly elected district supervisor was never sworn in or commissioned and therefore never "qualified" for the office. As a result, the incumbent supervisor has continued to hold that office, and will continue to hold it until his successor is elected, sworn in and commissioned. By virtue of his office the incumbent district supervisor is entitled to receive the same per diem payments, mileage allowances, and travel expenses as are paid to other district supervisors.

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16

OPINION 76-11

To: Director, State Crime Laboratory

February 4, 1976

Re: If a court of competent jurisdiction issues a subpoena for the production of a blood alcohol report, the State Crime Laboratory should comply with the terms of the subpoena and immediately notify by certified mail the person who has been tested that the State Crime Laboratory intends to honor the subpoena.

You have requested an opinion concerning under what circumstances you should distribute blood alcohol reports and whether any laws prohibit the distribution of these reports.
Ga. Laws 1975, p. 1008 (Ga. Code Ann. 68B-306 (a)), provides for the administering of blood, breath, or urine tests to a person arrested for allegedly driving under the influence of alcohol or other drugs. If the person consents to one of the chemical tests, at his request the results of the test shall be made available to the person or his attorney. Ga. Laws 1974, p. 633 (Ga. Code Ann. 68A-902.1 (a) (4)). It is my opinion that if the person given a blood alcohol test requests the results of the test, then a copy of the blood alcohol report should be given to him or his attorney. Copies of blood alcohol reports should not be distributed under any other circumstances unless a subpoena is issued from a court of competent jurisdiction.
Evidence of the amount of alcohol or drug in the tested person's blood is admissible at any civil or criminal action arising out of the acts alleged to have been committed while the person was driving under the influence of alcohol or other drugs. Ga. Laws 1974, p. 633 (Ga. Code Ann. 68A-902.1 (a)). The statute clearly contemplates the admission into evidence of a blood alcohol report in a tort action or criminal case arising out of acts alleged to have been committed by the per- son while he was driving under the influence.
The limitations on the Georgia Crime Information Center are not applicable to blood alcohol reports. The Georgia Crime Information Center is limited to providing information only to local, state, and federal law enforcement agencies and to Georgia courts of proper jurisdiction. Ga. Laws 1973, p. 1301 (Ga. Code Ann. 92A-3003 (i)). However, the Georgia Crime Information Center limits its gathering of data to information concerning arrests and convictions. Ga. Laws 1973, p. 1301 (Ga. Code Ann. 92A-3003 (a) and (b)).
Since the limitations on the Georgia Crime Information Center are not applicable to blood alcohol reports, the State Crime Laboratory should comply with the terms of the subpoena of a court of competent jurisdiction for the production of a blood alcohol report. However, in

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order to give the person tested opportunity to move to quash the subpoena, the State Crime Laboratory should immediately notify the person by certified mail that the State Crime Laboratory intends to honor the subpoena.

OPINION 76-12

To: Commissioner, Department of Banking and Finance

February 9, 1976

Re: Neither Ga. Code Ann. 41A-3101 nor Ga. Code Ann. 41A-3109 (a) prevents a credit union from investing in United States Government guaranteed participations in Small Business Administration loans.

This is in response to a request by your office for my opinion as to whether state-chartered credit unions could invest surplus funds in United States Government guaranteed participations in Small Business Administration (hereinafter S. B. A.) loans.
Georgia Code Ann. 41A-3101 (Ga. Laws 1974, pp. 705, 894) states the powers of a credit union and, in pertinent part, reads as follows:
"A credit union shall have, in addition to the powers common to all corporations under the laws of the State, the following powers:
* * *
(c) It may make loans to members through its credit committee, or authorized loan officer pursuant to section 41A-3109.
(d) It may also invest, through its board of directors, funds not used in loans to members, in the following manner:
(1) obligations of the United States including bonds and securities upon which payment of principal and interest is fully guaranteed by the United States, ..." (Emphasis added.)
Thus, the answer to your inquiry is dependent upon whether the guaranteed portion of S. B. A. loans are obligations of the United States upon which payment of principal and interest is fully guaranteed by the United States.
It is my understanding that the United States Attorney General and the Comptroller General of the United States have determined that the guaranteed portion of S. B. A. loans are fully guaranteed by the United States Government to innocent purchasers. See Op. U. S. Att'y Gen., April14, 1971, addressed to Honorable Thomas S. Kleppe, Administrator, Small Business Administration (unpublished); 51 Comp. Gen. 474. This guarantee includes both principal and interest. It is further my understanding, that, based upon this determination,

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the Federal Home Loan Bank and the National Credit Union Administration have authorized investment in the guaranteed portion of S. B. A. loans for federal savings and loan associations and federal credit unions. I find it significant that both federal savings and loan associations and federal credit unions are restricted as to investments by language almost identical to that contained in Ga. Code 41A-3101. See 12 C.F.R. 545.9 (b) (1975); 28 U.S.C. 1757 (8). While Ga. Code Ann. 41A-3101 has never been construed by the Georgia courts, it is my official opinion that, were the courts of this state called upon to do so, they would give deference to the opinion and policies of federal agencies and departments as to the nature of these participations.
Therefore, it is my official opinion that the guaranteed portion of S. B. A. loans are obligations upon which payment of principal and interest is fully guaranteed by the United States and are therefore legal investments under Ga. Code Ann. 41A-3101.
In your inquiry, you also expressed concern that credit unions which invested in S. B. A. guaranteed participations would, in essence, be lending to persons or corporations who are not credit union members. You were concerned that this might possibly be a violation of Ga. Code Ann. 41A-3109 (a) (Ga. Laws 1974, pp. 705, 900; 1976, pp. 1681, 1683) which provides that "credit unions may lend money to their members at reasonable rates of interest, ..." It is my opinion that Ga. Code Ann. 41A-3109 (a) would not be violated by investment in S. B. A. guaranteed participations. Ga. Code 41A-3101, quoted above, authorizes, without qualification, a credit union to invest in obligations guaranteed by the United States. Since obligations are generally in the nature of loans, subsection (d) of Ga. Code Ann. 41A-3101 necessarily implies that a credit union may invest in authorized obligations irrespective of whether the obligation constitutes a loan to a nonmember.
Therefore, it is my official opinion that neither Ga. Code Ann. 41A-3101 nor Ga. Code Ann. 41A-3109 (a) prevents a credit union from investing in United States Government guaranteed participations in S. B. A. loans.

OPINION 76-13

To: Commissioner, Department of Public Safety

February 11, 1976

Re: A civilian Georgia resident convicted under Ga. Code Ann. 68A-902 of driving under the influence of alcohol on a United States military installation by a United States Magistrate is subject to the mandatory driver's license suspension provisions either of Ga. Code

19

76-13

Ann. 92A-608 or Ga. Code 68B-305 depending upon the date of disposition of his case.

The Supervisor of the Suspension and Revocation Services Section of the Department of Public Safety has requested this office for an official opinion on the question of whether a civilian Georgia resident convicted, under Ga. Code Ann. 68A-902 (based on Ga. Laws 1974, pp. 633, 671) prior to January 1, 1976, of driving under the influence of alcohol on a United States military installation by a United States Magistrate is subject to the mandatory driver's license suspension provisions of Ga. Code Ann. 92A-608 (Ga. Laws 1951, p. 565, as amended). We are of the opinion that he is.
As recited in the request for opinion, the facts show that a civilian resident of Georgia was apprehended by the United States military police on Fort Gordon, Georgia, and charged with driving under the influence of alcohol. The defendant was formally charged with violating Ga. Code Ann. 68A-902, pursuant to the assimilative crimes provisions of 18 U.S.C. 13, and on December 1, 1975, was found guilty by a United States Magistrate in the United States District Court for the Southern District of Georgia.
The provisions of the Uniform Rules of the Road Act (Ga. Code Ann. Title 68A) with respect to driving under the influence of alcohol are specifically made applicable to "vehicles operated upon highways and elsewhere throughout the state." Ga. Code Ann. 68A-103 (c) (Ga. Laws 1974, p. 633). Hence, a motorist is subject to charges of violating Ga. Code Ann. 68A-902 relating to driving under the influence wherever in Georgia he happens to be operating a motor vehicle while he is intoxicated, including on a federal military installation, provided, of course, that federal law does not preempt the operation of state and local laws. See Ops. Att'y Gen. 1952-3, p. 8; 75-34. In a letter to the Staff Judge Advocate of Fort Stewart, Georgia on October 15, 1975, we expressed the view that United States military prosecutorial authorities had authority to prosecute those who violate the provisions of Ga. Code Title 68A on federal military installations before a United States Magistrate pursuant to the provisions of 18 U.S.C. 13. Accordingly, it is our opinion that the United States Magistrate in the instant case had jurisdiction over the civilian Georgia resident to find him guilty of violating Ga. Code Ann. 68A-902.
As of December 1, 1975, the date of disposition of the case herein, Georgia law provided that:
"Upon conviction or plea of guilty or forfeiture of bond of any of the following offenses of an operator by or in any court it shall be mandatory upon the director to revoke said operator's license for a period of one year, effective as of the date of such disposi-

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20

tion: ... (2) Driving a motor vehicle while under the influence of intoxicating liquors or drugs; ..." Ga. Code Ann. 92A-608.

Whether the mandatory driver's license revocation provisions of Ga. Code Ann. 92A-608 apply in the present case turns upon the interpretation of the phrase "by or in any court." In Dunn v. Cofer, 134 Ga. App. 173 (1975), cert. den., 234 Ga. 756 (1975), the issue as framed by the Georgia Court of Appeals was whether Ga. Code Ann. 92A-608 refers to courts outside the territorial jurisdiction of the State of Georgia. The court held that the phrase "by or in any court" referred only to "any court within the jurisdiction of this state." Dunn, supra, at 175. The court arrived at this conclusion not only by an examination of the extant legislative history of Ga. Code Ann. 92A-608, but also by reasoning that the General Assembly intended that conviction of an offense for which a driver's license revocation must ensue should be an offense tested by the laws of Georgia and not by those of a foreign jurisdiction. Dunn, supra, at 175.
We are of the opinion that nothing in Dunn v. Cofer, supra, prevents the Department of Public Safety from proceeding in the present case to apply the mandatory revocation provisions of Ga. Code Ann. 92A-608. The defendant in Dunn, supra, had been convicted in a South Carolina state court under a different law enacted and applied by the authority of a different sovereign. In the instant case, the United States District Court has jurisdiction over the territorial area defined by statute as the Southern District of Georgia-a region wholly within the State of Georgia. Moreover, the law applied in the present situation is Georgia law, which is assimilated into the federal court by a specific federal statute. For all practical purposes, the United States District Court for the Southern District of Georgia in this case is in effect only another court of Georgia. See Angel v. Bullington, 330 U.S. 183 (1947).
Our conclusion in this opinion is strengthened by the provisions of Ga. Code Ann. 68B-303 (Ga. Laws 1975, pp. 1008, 1026), which went into effect on January 1, 1976 supplanting Ga. Code Ann. 92A-608. Under Ga. Code Ann. 68B-303, the Department of Public Safety is now specifically empowered to suspend a Georgia resident's driver's license based upon a conviction in another state. It was, indeed, because of this very statutory provision that the Supreme Court of Georgia dismissed the writ of certiorari in Cofer v. Dunn, 234 Ga. 756 (1975), as having been improvidently granted since the case had become in effect moot.
Thus, although the question presented is limited to a conviction occurring prior to January 1, 1976, and hence subject to the mandatory license revocation provisions of Ga. Code Ann. 92A-608, we are nonetheless confident in expressing the btoader opinion that a civilian

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Georgia resident convicted under Ga. Code Ann. 68A-902 of driving under the influence of alcohol on a United States military installation by a United States Magistrate is subject to the mandatory driver's license suspension provisions either of Ga. Code Ann. 92A-608 or Ga. Code Ann. 68B-305 (Ga. Laws 1975, pp. 1008, 1027) depending upon the date of disposition of his case.

OPINION 76-14

To: Director, Environmental Protection Division, Department of Natural Resources

February 11, 1976

Re: The Director of the Environmental Protection Division may, if he deems it relevant, require that information accompany a solid waste permit application indicating whether the permit, if granted, would result in a violation of local zoning regulations or ordinances.

This responds to your request for my opinion as to whether the Director of the Environmental Protection Division ("director") can require applicants for solid waste permits to furnish information on whether their requested permits, if granted, would result in a violation of local zoning ordinances or regulations.
At the outset, it should be noted that the Solid Waste Management Act ("Act") (Ga. Code Ann. Ch. 43-16; Ga. Laws 1972, p. 1002) provides that it shall limit neither the power of cities and counties to adopt and enforce restrictions and limitations with respect to solid waste handling, nor the power to declare, prohibit and abate nuisances. Ga. Laws 1972, p. 1002 et seq., as amended; Ga. Code Ann. 43-1605 (a) and (b). Also, the policy and intent of the Act mandates that the director coordinate his activities with local political jurisdictions so as to achieve a unified and effective state-wide solid waste management program. Ga. Code Ann. 43-1602.
The answer to your question can be found in the Act's 1973 amendment authorizing permits. It reads, in relevant part, as follows:
"No person shall engage in solid waste handling or construct or operate a disposal facility or disposal site . . . without first obtaining a permit from the director authorizing such activity ... The director shall promulgate regulations prescribing the procedure to be followed in applying for such permits and requiring the submission of such plans, specifications and other information as he deems relevant in connection with the issuance of such permits...." Ga. Code Ann. 43-1607.1; Ga Laws 1973, pp. 1269, 1270.

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22

In my opinion, the language of this amendment would allow the director, if he deems it relevant, to require that information accompany a solid waste permit application indicating whether the permit, if granted, would result in a violation of local zoning regulations or ordinances. In this vein, Rule 391-3-4-.03(1) of the Rules and Regulations for Solid Waste Management mandates that all pertinent information as the director may require shall accompany permit applications. The director, without this information, may well be placed in the position of permitting solid waste activity which is violative of certain other laws or regulations. It appears manifest that information on local zoning restrictions may be determined by the director to be relevant and pertinent.

OPINION 76-15

To: Commissioner, Bureau of Community Affairs

February 19, 1976

Re: The Bureau of Community Affairs does not have the requisite statutory authority to apply for, receive, or administer federal grants under the Section 8 Housing Assistance Payments Program for Existing Units established pursuant to Title II of the Housing and Community Development Act of 1974.

This is in response to your recent request for my official opinion concerning the legal position of the Bureau of Community Affairs [hereinafter "BCA"] in relation to the Section 8 Housing Assistance Payments Program for Existing Units [hereinafter the "Section 8 Program"] which has been established pursuant to Title II of the Housing and Community Development Act of 1974 (42 U.S.C. 1437 et seq.).
The purpose of the Section 8 program is to aid lower-income families in obtaining a place to live and to promote economically mixed housing by means of payments to owners of existing housing units who agree to lease those units to lower-income families. The amount of the payment to the owner would be the difference between 15-25 percent of the family's gross income and the unit's rental value as established by the United States Department of Housing and Urban Development [hereinafter "HUD"]. 42 U.S.C. 1437 (f). This program is to be administered by a "public housing agency" (any state, county, municipality, or other government entity or public body) which is authorized to engage in or assist in the development of low-income housing. 42 U.S.C. 1437a (6).
In essence, you have asked the following question:
Does BCA have the authority to apply for and receive federal

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funds with which to administer a Section 8 program which would require, at a minimum, that BCA enter into the following agreements:
(a) an annual contribution contract with HUD;
(b) contracts with local "agencies"1 for various on-site services; and
(c) contracts with private landlords obligating BCA to pay to the landlords certain portions of the federal funds received from HUD?2
My answer is in the negative for the following reasons: First, in regard to your authority to contract with HUD to receive federal funds, Ga. Const., Art. VII, Sec. VI, Par. I (Ga. Code Ann. 2-5901(a)) provides in pertinent part as follows:
"(a) The State, state institutions, any city, town, municipality or county of this State may contract for any period not exceeding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created for the use by such subdivisions or the residents thereof of any facilities or services of the State, state institutions, any city, town, municipality, county, public agency, public corporation or authority, provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake." (Emphasis added.)
The term "public agency" in this provision has been interpreted to include the United States Government. Op. Att'y Gen. 72-132. However, as you will note from the emphasized clause, a state agency would be able to enter into only such contracts as deal with an activity it is authorized by law to undertake.
I have examined the underlying statutory authority for BOA's current operations, primarily Ga. Laws 1967, p. 252, as amended, and Ga. Laws 1970, p. 321, as amended (Ga. Code Ann. 40-2901 et seq.), which originally pertained to the State Planning and Programming Bureau and the Bureau of State Planning and Community Affairs, respectively. As you are well aware, in the course of amendments over the years, the functions set forth in those basic Acts have been transferred from the two now defunct bureaus to various other governmental entities, among which is BCA. As far as can be determined, the only
1 My understanding is that these would be public agencies. 2 I understand that these contracts would be in keeping with state constitutional prohibitions against deficit financing by limiting BCA's obligation to the payment of the subject subsidy funds ac~ually received by BCA from HUD for use in connection with said program.

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24

extant provision of those Acts now pertaining to BCA which might be helpful is Section 2 (g) of Ga. Laws 1967, p. 252, as amended, which would authorize BCA to:
"Apply for, receive, administer and utilize any grants or other financial assistance under Section 701 of the Federal Housing Act of 1954, as amended, or other federal, private or public financial sources that may be available for achieving the purposes of this Act." Ga. Code Ann. 40-2902 (g). (Emphasis added.)3
Thus, the legislature has given BCA the power to utilize financial assistance from various sources, but only insofar as such assistance would achieve the "purposes of this Act" (Ga. Laws 1967, p. 252). A careful reading of that Act reveals that its purpose was only to create a government entity to provide planning services, technical assistance, information and advice to various public bodies within the ~tate. There is no intimation of legislative intent to authorize BCA to become involved in housing assistance programs on behalf of low-income families.
It has long been a rule in Georgia law that an administrative body, created by an Act of the legislature, has only such powers as are expressly, or by necessary implication, conferred upon it. Bentley v. State Board of Medical Examiners, 152 Ga. 836, 111 S.E. 379 (1922). The legislature has not given BCA the express power to become involved in housing assistance programs for low income families, nor may such power be inferred by necessary implication from the powers conferred upon it with regard to planning activities.
Therefore, it is my official opinion that the Bureau of Community Affairs does not at present have the requisite statutory authority to apply for, receive, or administer federal grants under the Section 8 Housing Assistance Payments Program for Existing Units established pursuant to Title II of the Housing and Community Development Act of 1974.

OPINION 76-16

To: Commissioner, Department of Offender Rehabilitation

February 25, 1976

Re: A sentence imposed subsequent to revocation of first offender
probation should run from the date that sentence is imposed.
8 Although recent amendments to regulations promulgated pursuant to Section 701 of the Housing Act of 1954 indicate that federal funding may be available for the development of housing assistance plans required by Titles I and II of the Housing and Community Development Act of 1974, the concomitant requirement that an applicant be authorized by state law to perform the comprehensive planning work for which the grant is requested only serves to corroborate this opinion's focus on Georgia law. 24 C.F.R. 600.30 (a), 600.55 (h) (1). 40 F.R. 36856 et seq., August 22, 1975.

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This is written in response to your recent request for my opinion on the question as to what effect the time spent on first offender probation has on the sentence imposed subsequent to a revocation of that probation.
The First Offender Act, Ga. Code Ann. 27-2727 (Ga. Laws 1968, pp. 324, 325), provides in essence that a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, may be placed on probation as provided by the Statewide Probation Act. A provision of that Act, Ga. Code Ann. 27-2713 (Ga. Laws 1956, pp. 27, 32; 1960, p. 857; 1966, p. 440), provides that time served on probation "shall be considered as time served and shall be deducted from and considered a part of the time he was originally sentenced to serve." However, the Supreme Court of Georgia has distinguished first offender probation for at least one purpose: the sentence imposed subsequent to revocation of first offender probation is not limited by the period of probation originally imposed under the First Offender Act. State v. Wiley, 233 Ga. 316 (1974). It was held in that case that the first probation, under the First Offender Act, is not a sentence,. as no adjudication of guilt is made under that Act.
Since the original probation received under the First Offender Act is not a sentence in the same sense as probation under the Statewide Probation Act, it may be concluded that the defendant should not receive credit for time spent under the original first offender probation. Additionally, this is another aspect of the manifest intent of the General Assembly that a trial judge have a greater range of options in dealing with the first offender than he does in the normal criminal case. Sharpe v. Lowe, 214 Ga. 513 (1959); Collier v. Mitchell, 207 Ga. 528 (1951).
Therefore, it is my opinion that a sentence imposed subsequent to revocation of first offender probation should run from the date that sentence is imposed.

OPINION 76-17

To: Director, Environmental Protection Division, Department of Natural Resources

February 25, 1976

Re: The existence of general laws relating to the regulation of solid waste handling and management does not necessarily preclude the adoption of regulations on the same subject by county boards of health.

This responds to your request for my opinion on whether county boards of health may legally adopt regulations dealing with solid waste

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26

handling and management. Your question arises because the Solid Waste Management Act places the responsibility and power to regulate solid waste handling and management in Georgia in the hands of the Environmental Protection Division. Ga. Laws 1972, p. 1002 et seq., as amended (Ga. Code Ann. Ch. 43-16); Ga. Laws 1972, pp. 1015, 1058 (Ga. Code Ann. 40-35162). Your inquiry focuses on a set of regulations adopted by one particular Georgia county health board.
The Georgia Constitution of 1945 in Article I, Section IV, Paragraph I (Ga. Code Ann. 2-401) prohibits the enactment of any special law in any case for which provision has been made by an existing general law. This constitutional provision, read Hterally, might tend to indicate that regulations of a county board of health relating to solid waste handling or management would be invalid in view of general state law on the same subject. However, in construing this provision, the Georgia appellate courts have given validity to local ordinances and regulations relating to public health even though state laws existed on the same subject, under the theory that local jurisdictions have a responsibility to protect the health, welfare, safety and comfort of their citizens. Wright v. Richmond County Department of Health, 182 Ga. 651 (1936); Thombley v. Hightower, 52 Ga. App. 716 (1935); Op. Att'y Gen. 71-149.
County boards of health are empowered to take necessary steps to prevent and suppress disease and conditions deleterious to health. Ga. Laws 1964, pp. 499, 514; Ga. Code 88-204 (c). Also, county health boards are authorized to adopt and enforce rules and regulations appropriate to their functions and powers, so long as those rules and regulations are reasonably adapted to the purposes intended and are within the purview of the powers and duties imposed on the boards of health. Ga. Code 88-204 (d).
It is patently clear that the state, under its police power, can enact regulations in the interest of public health and safety. Cooper v. Rollins, 152 Ga. 588 (1922). Similar powers can also be granted to municipal or county governmental bodies. Vinson v. Home Builders Association of Atlanta, 233 Ga. 948 (1975); Abel v. State, 64 Ga. App. 448 (1941). However, a regulation cannot be adopted as a health measure unless it has some reasonable relation to the public health. Vinson, supra.
You have pointed out that the Solid Waste Management Act provides, specifically, that it shall not be construed as a limitation:

"On the power of a city, county or special district to adopt and enforce additional regulations, not in conflict with the provisions of this Act, imposing further conditions, restrictions, or limitations with respect to the handling or disposal of solid wastes. . . ." Ga. Laws 1972, pp. 1002, 1006; Ga. Code Ann. 43-1605 (a).
It is true that county boards of health are not specifically mentioned

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in the quoted portion of the statute. However, in my opinion, the reference to "county" should be construed broadly enough to cover other county governmental bodies. A "county" is not simply and only the board of commissioners. Counties operate by and through various governmental entities, such as county boards of education, county boards of health, and others. See, e.g., Rosser v. Meriwether County, 125 Ga. App. 239 (1971), aff'd 230 Ga. 236 (1973). The reference to "county" is, in my judgment, broad enough to cover the county board of health. cf. Op. Att'y Gen. 1963-65, pp. 347-8. Of course, a county board can regulate only those matters which fall within its properly specified authority.
My thoughts in this regard are buttressed by the rule of construction that statutes should be harmonized and read consistently together whenever possible, repeals by implication being not favored under Georgia law. Hines v. Wingo, 120 Ga. App. 614 (1969).
Based on the foregoing, it is my official opinion that the existence of general laws relating to the regulation of solid waste handling and management does not necessarily preclude the adoption of regulations on the same subject by county boards of health, provided such regulations have a reasonable relation to the protection of the health of the citizenry of the county and are not prohibited by express or implied language in the Solid Waste Management Act or the rules and regulations promulgated thereunder. However, it is a fundamental principle of law that such regulations are inferior in status and subordinate to the laws of this state. In the event that any regulation adopted by a county board of health clearly conflicted with the Solid Waste Management Act, the regulation would be invalid.

OPINION 76-18

To: Commissioner, Department of Revenue

February 27, 1976

Re: In the absence of a contractual relationship or authorizing legislation, a state agency may not properly honor a power of attorney authorizing collection by the State Employees' Credit Union of the unpaid wages due a terminated state employee in satisfaction of the unpaid balance on the employee's loan; however, should the employee decease prior to the loan's repayment, the unpaid compensation due the employee, not to exceed $2,500, may be paid to the employee's surviving spouse or minor children, as provided in Code Ann. 66-103.

This is in response to a request by your office for my opinion as to whether the department may honor a power of attorney which auth-

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28

orizes the State Employees' Credit Union to collect the unpaid compensation due a state employee in the event of his termination prior to the repayment of his loan. Specifically, you have inquired whether the agency is irrevocable in that it constitutes a power coupled with an interest within the meaning of Ga. Code Ann. 4-214 (Ga. Laws 1943, p. 354; 1945, p. 398). Further, you raised the question of the applicability of Ga. Code Ann. 66-103 (Ga. Laws 1958, p. 641; 1963, p. 434; 1975, p. 1191) which authorizes the payment of the wages due an employee in an amount not to exceed $2,500 to the surviving spouse or minor children of a deceased employee.
You have opined that a power of attorney authorizing a creditor's collection of the unpaid compensation due a terminated employee may constitute a power coupled with an interest, and qualify as an exception to the general rule that an agency is revocable at will. Code Ann. 4-214. A recital in the instrument that a power of collection is coupled with an interest is not sufficient to create the necessary interest. Ray v. Hemphill, 97 Ga. 563 (1895). Rather, the relationship must be examined to determine if the agent's interest is in the subject on which the power is to be exercised, and not merely in that which is produced by the exercise of the power. Gurr v. Gurr, 198 Ga. 493, 505 (1944); Ray v. Hemphill, supra, at 564; Cutcliffe v. Chesnut, 126 Ga. App. 378, 382 (1972). As you have described the agreement, the employee has not effectively conveyed an interest in the thing itself, the contract of employment, but has merely conveyed an interest in the proceeds of the exercise of the power of collection of the unpaid compensation. Adair v. Smith, 23 Ga. App. 290, 291 (1918). Further, it is questionable whether at the time of the formation of the agreement the employee had a sufficient interest in the unpaid compensation due at the date of his termination to effectively create a power coupled with an interest. See Hancock v. Hancock, 205 Ga. 684, 695-96 (1949).
Although the subject agreement does not constitute a power coupled with an interest within the meaning of Code Ann. 4-214, the statutory expression is not exhaustive of the exceptions to the general rule that an agency is revocable at will. Wheeler v. Pan Am. Petroleum Corp., 48 Ga. App. 378 (1934); see Ray v. Hemphill, supra, at 565. I understand that the credit union requires an employee's authorization of its power of collection only in those situations in which the employee gives no other security for his loan. A power which is given to an agent in exchange for valuable consideration is irrevocable should the power form a part of the contractual agreement as a security for the debt. Ray v. Hemphill, supra, at 564; see Hunt v. Rousmanier's Adm'rs, 21 U.S. (8 Wheat.) 174 (1823); Finn v. Dobbs, 188 Ga. 602, 607 (1939). Based upon the foregoing reasoning, the subject agreement would be deemed to confer a power of collection upon the credit union which is irrevocable during the lifetime of the employee.

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Although its resort to this device may be infrequent, the credit union's invocation of a power of collection against the department would impose a significant administrative burden upon the state. Op. Att'y Gen. 71-141. As the credit union has not contracted with the department to furnish the bookkeeping services required to honor its power, the gratuitous provision of such is precluded by Article VII, Section I, Paragraph II of the Constitution of the State of Georgia (Ga. Code Ann. 2-5402). Op. Att'y Gen. U74-62 (copy attached). Additionally, the power of collection conferred upon the credit union can be construed as an attempt to circumvent the judicial process of garnishment. Ga. Code Ann. Title 46. However, garnishment proceedings are purely statutory and attempts to enlarge the remedy have not been accorded judicial recognition. Undercojler v. Brosnan, 113 Ga. App. 475, 148 S.E. 2d 470 (1966). Further, the Code clearly and unambiguously provides that a valid judgment of garnishment cannot be obtained without the consent of the appropriate state official. Ga. Code Ann. 46-805 (Ga. Laws 1945, p. 438); Redwine v. Morgan, 88 Ga. App. 625, 628, 77 S.E. 2d 330 (1953); see Landmark Finance Corp. v. City of Warner Robins, 134 Ga. App. 356, 212 S.E. 2d 438 (1975); Troup County Bd. of Comm'rs v. Public Finance Corp., 109 Ga. App. 547 (1964); Seaboard Finance Co. v. City of Decatur, 119 Ga. App. 223, 166 S.E. 2d 638 (1969). As I noted in a previous opinion, the state has ordinarily declined to assent to the judgment of garnishment against its employees. Op. Att'y Gen. U74-62; see e.g., Redwine v. Morgan, supra. Accordingly, in the absence of authorizing legislation, the department may not properly honor a power of collection of the unpaid compensation due a terminated state employee which is asserted by the State Employees' Credit Union.
You have also requested my opinion respecting the appropriate disposition of the unpaid compensation of an employee who deceases prior to the repayment of his loan from the State Employees' Credit Union. The general rule is that all powers, except those which are coupled with an interest in the thing itself, are revoked by the death of the principal. Wilkins v. McGehee, 86 Ga. 764, 766 (1891); Coney v. Sanders, 28 Ga. 511 (1859). Although the subject agreement is irrevocable during the lifetime of the employee, it does not survive the death of the principal as it does not confer a power coupled with an interest. Ray v. Hemphill, supra, at 564; see Hunt v. Rousmanier's Adm'rs, supra, at 210. Further, the department has been given express legislative authorization to pay all wages and other moneys due, not to exceed $2,500, to the surviving spouse or minor children of a deceased employee. Ga. Code Ann. 66-103.
Therefore, it is my official opinion that the department may not properly honor a power of collection of the wages due a terminated state employee in favor of the State Employees' Credit Union during
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30

the lifetime of the employee; however, should the employee decease prior to the loan's repayment, the unpaid compensation due the employee, not to exceed $2,500, may be paid to the employee's surviving spouse or minor children, as provided by Ga. Code Ann. 66-103.

OPINION 76-19

To: Executive Secretary-Treasurer, Teachers Retirement System

March 4, 1976

Re: Georgia Laws 1975, pp. 1579-80, was intended to operate prospectively; a teacher who withdraws her contributions with interest from the Teachers Retirement System of Georgia is no longer a member of the Retirement System.

This replies to your request for my opinion on the proper interpretation of Ga. Laws 1975, pp. 1579-80, in the context of a specific factual setting.
As I understand the facts, a teacher with J;tpproximately 18 years of service within a local retirement fund has contacted you and requested, pursuant to Ga. Laws 1975, pp. 1579-80, that she be allowed to transfer to the Teachers Retirement System of Georgia (TRS) and be credited with her local service. This teacher had 10 years of service with TRS before becoming employed under the local fund. At the time of her local fund employment, she withdrew her contributions with interest from TRS.
The 1975 Act generating the teacher's request reads as follows:
"Any other provisions of law to the contrary notwithstanding, if a member with ten or more years creditable service after becoming a member is employed by an employer operating a local retirement fund, his membership does not automatically terminate and he may elect to maintain his membership, rather than participate in the local retirement fund, subject to the same terms and conditions as other members of the system." Ga. Laws 1975, pp. 1579, 1580; Ga. Code Ann. 32-2903 (4).
The Georgia appellate courts have consistently held that a statute is not to be construed retroactively in operation unless the language of the statute imperatively requires such a construction. Walker County Fertilizer Co. v. Napier, 184 Ga. 861 (1937); Jaro, Inc. v. Shields, 123 Ga. App. 391 (1971); Leathers v. Turner, 75 Ga. App. 62 (1947). As I read it, this statute does not imperatively require a retroactive construction. To the contrary, the use of such language as "is employed" and "may elect" clearly indicates a prospective application intendment.

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Accordingly, in my opinion, the statute is only applicable to teachers becoming employed under a local fund subsequent to its approval (April 25, 1975).
Additionally, you have informed me that this teacher withdrew her contributions with interest from TRS upon becoming employed under the local fund. Under such circumstances, the teacher's membership in TRS ceased at that point. See Ga. Code Ann. 32-2903 (4). Consequently, this teacher could not be considered a "member" of TRS as that term is employed by the 1975 amendment. See Ga. Code Ann. 32-2901 (6) (Ga. Laws 1943, pp. 640, 641, as amended).

OPINION 76-20

To: Commissioner, Department of Banking and Finance

March 12, 1976

Re: Absent an intervening transaction which operates to extinguish the original contractual relationship, purchasing banks in a participation agreement are entitled to a pro rata share in the appreciation of the underlying collateral security when the increase in the value of the collateral occurs after its purchase by the originating bank for the amount of the indebtedness upon the grantor's default.

This is in response to a request by your office for my opinion as to what extent the purchasing banks in a participation agreement are entitled to share in the appreciation of the underlying collateral security when the increase occurs after the purchase of the collateral by the originating bank for the amount of the indebtedness upon the grantor's default.
As the transaction has been described, the originating bank in the participation agreement extended credit to one of its customers, and the note was secured by the debtor's conveyance of real property by a deed to secure debt. Due to the institution's loan policy, debt limitations, or for other reasons, the creditor found it necessary to require the participation of other banks in its extension of credit. Comment, I Modern Banking Forms, ~ 10.23 at p. 1049 (1974). As was customary, the participation of the purchasing banks in the loan was evidenced by a letter of participation.
The practice of selling participations in one or more evidences of indebtedness or agreements for the payment of money is permissible, subject to the regulations of your department. Ga. Code Ann. 41A-1304 (Ga. Laws 1974, pp. 705, 791). Although regulations respecting participation loans have been promulgated, no regulation

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addresses the particular question your office has raised. Rule 80-1-5-.04, Official Compilation, Rules and Regulations of the State of Georgia.
Generally, the grantor's execution of a deed to secure debt operates to pass absolute title in the collateral security to the grantee subject to the grantor's right to the property's reconveyance upon his repayment of the loan in accordance with the terms of the contract. Ga. Code (1933) 67-1301; Fourth Nat'l Bank v. Grant, 231 Ga. 692, 694, 203 S.E. 2d 517 (1974). Under the terms of the letter of participation, the originating bank was responsible for servicing the debt, and when the debtor defaulted on his obligation, those rights of the debtor in the collateral security were foreclosed pursuant to the originating bank's purchase of the property for the amount of the grantor's indebtedness on the note. However, as you relate the facts, the participation agreement was not extinguished at the time of the foreclosure, and the originating bank continued to hold the property for the participating banks pro rata, as set forth in the letter of participation. At a later date, the originating bank sold the subject property for an amount in excess of the subject note.
In the absence of an intervening transaction, the rights of the various institutions in the proceeds of the sale of the property would continue to be determined by the terms of the letter of participation. The participation agreement unambiguously provides that the collateral is to be held by the originating bank for the participating institutions pro rata, and it would thus appear to be the intention of the parties that the participants share pro rata in the entire proceeds of the sale of the collateral. Should it be asserted by the originating bank that it is solely entitled to that portion of the proceeds of the sale of collateral which represents the amount of the property's appreciation, the contractual agreement may be deemed ambiguous. However, when the intention of the parties is unclear, resort must be made to the rules of construction which would prefer that interpretation of the agreement operating most strongly against the party executing the instrument, the originating bank. Ga. Code Ann. 20-704 (5) (Ga. Laws 1964, p. 414).
It is therefore my official opinion that in the absence of an intervening transaction which operates to extinguish the original contractual relationship, purchasing banks in a participation agreement are entitled to a pro rata share in the appreciation of the underlying collateral security when the increase in the value of the collateral occurs after its purchase by the originating bank for the amount of the indebtedness upon the grantor's default.

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OPINION 76-21

To: Joint Secretary, State Examining Board

March 12, 1976

Re: Veterans' preference points should be credited to the examination scores of eligible candidates for registration by the State Board for Examination, Qualification and Registration of Architects.

This is in response to your request for my opinion as to whether veterans' preference points must be credited to the examination scores of eligible candidates for registration by the State Board for Examination, Qualification and Registration of Architects as required by Ga. Code Ann. 84-108a to 84-112a (Ga. Laws 1960, p. 1172).
You relate that the results of the examinations administered by the board in accordance with the outline prepared by the National Council of Architectural Registration Boards are compiled by the Educational Testing Service. Ga. Code Ann. 84-303 (a) (superseded by Ga. Laws 1974, p. 162); Rule 50-4-.03 (1), Official Compilation, Rules and Regulations of the State of Georgia. Under the current practice, the grading servjce reports the scores on the national examination to each member board solely on a "pass" or "fail" basis, and does not furnish a numerical score to which the board can add the veterans' preference points in appropriate cases.
The Veterans' Preference Act provides that any applicant taking an examination administered by any of the examining boards under the supervision of the Secretary of State shall have additional points credited to his examination score should the board be furnished with sufficient proof that the applicant is a veteran and qualified for credit under the Act. Code Ann. 84-108a to 84-112a. I noted in an earlier opinion, a copy of which is attached, that the language of the Act is mandatory, as each section employs the word "shall" in its provisions. Op. Att'y Gen. 72-119; see Code Ann. 102-103. The imperative language of the statute allows the board no discretion in the application of the preference points in appropriate cases. I would therefore recommend that the board consult with its grading service to determine if a numerical score could be provided, at least in those cases in which a "fail" grade is presently reported. The board might also consider the possibility of grading its own examinations to determine a numerical score.
Should the alternatives to the present system of reporting scores on a "pass" or "fail" basis prove to be insuperably difficult, it could be argued that a literal interpretation of the Act requires an impossibility. In the face of evidence that an absolute construction of the terms of a statute imposes an impossible burden, statutory language has been

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34

judicially infused with a reasonable meaning and interpreted to require only substantial compliance with the legislative command. Pope v. United States Fidelity & Guar. Co., 198 Ga. 304, 307 (1944); Atlantic Coast LineR. Co. v. State, 135 Ga. 545, 561 (1910).
The intention of the Act is to require that qualifying veterans be allowed a preference in the grant of a professional license or certificate of registration. It is therefore my official opinion that the State Board for Examination, Qualification and Registration of Architects should exhaust every possibility by which veterans' preference points may be credited to the examination scores of eligible candidates for registration by the board.

OPINION 76-22

To: Executive Secretary, State Ethics Commission

March 15, 1976

Re: The filing dates which the "Campaign and Financial Disclosure Act" specifies for "Campaign Financing Disclosure Reports" are of general applicability and ordinarily not affected by the method or procedures used by a "candidate" to seek office (viz., by petition, primary, convention or "write-in" votes); exception; the "15 days prior to the general election" filing date applies only to those candidates in the general election campaign.

This is in reply to your letter of February 5, 1976, in which you pose three questions relating to the filing of "Campaign Financing Disclosure Reports" under the "Campaign and Financial Disclosure Act," Ga. Laws 1974, pp. 155-162, as amended (Ga. Code Ann. Ch. 40-38). The questions are stated and responded to seriatim.
(1) "Does the definition of 'candidate' under Section 3 (b) of the Act, or other sections as may apply, require candidates who qualify for election other than through the primary process (i.e., independent, political body or write-in) to file campaign disclosure reports the same as candidates who do qualify through the primary process (i.e., 45 day report, 15 day report prior and 10 day report after the primary)?"
The basic purpose of Georgia's "Campaign and Financial Disclosure Act"1 is to provide the electorate with information about fiscal contributions made to, and expenditures made by, those who seek public office. It goes without saying that to be of reasonable value (e.g., comparison of the reports filed by differing candidates), and to avoid con-
1 Ga. Laws 1974, pp. 155-162, as amended (Ga. Code Ann. Ch. 40-38).

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fusion both in the mind of the general public and in the administrative supervision and enforcement of the Act, uniformity of reporting, both as to substance and procedure (including uniform filing dates) is highly desirable if not a practical necessity. This obvious fact was not overlooked by the General Assembly. In providing for the periodic reporting of financial information, the General Assembly selected fixed filing dates. These dates were fixed in relation to the most commonly used method of selecting candidates for the general election, i.e., the primary election of a political party, as well as by subsequent dates fixed in connection with the general election. Accordingly, Section 6 (c) of the Act states:
"Such campaign financing disclosure reports shall be filed 45 days and 15 days before the primary election, and 10 days after the primary election. Candidates in a general election campaign shall make such reports 15 days prior to the general election and all candidates shall make a final campaign disclosure report no later than December 31 of the year in which the election occurs...."2
There is nothing in logic or in the law to suggest that in fixing the earlier filing dates with reference to the primary election, the legislature intended to restrict these earlier filing requirements exclusively to those candidates participating in the primary. Quite to the contrary, the fact that the General Assembly intended for the 45, 15 and 10 day reports before and after the primary to apply to all candidates, regardless of the methods they employ in the seeking of political office (i.e., primary, petition, convention, etc.) is rather clearly demonstrated by the definition of the term "candidate" in Section 3 (b) of the Act:
" 'Candidate' means an individual who seeks nomination for election or election to any office provided for in Section 2, whether or not such an individual is elected, and a person shall be deemed to seek nomination or election if he has taken necessary action under the law of the State of Georgia to officially qualify himself for nomination for election or election, or has received contributions or made expenditures, or has given his consent for his campaign committee to receive contributions or make expenditures with a view to bringing about his nomination for election or election to such office."
With one exception, which we discuss below, this view of the filing requirements would not appear to pose any greater difficulty of compliance upon candidates seeking office other than through party primaries than it does upon those who are involved in a primary. Where a "political body" uses the "convention" process to choose its nominee,

z Ga. Code Ann. 40-3806 (c).

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its convention must be held at least 90 days prior to the date upon which the primaries are held, hence at least 45 days prior to the initial campaign financing disclosure report.3 Moreover, all candidates whose notice of candidacy is required to be accompanied by a petition must file both (i.e., the notice and the petition) not later than the second Wednesday in June-which this year, for example, would be about 17 days prior to the initial campaign financing disclosure report.4
Problems do exist, on the other hand, with respect to "write-in" candidates. Under Article II, Section VII, Paragraph I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-1201a), "write-in" candidates are given until the 20th day prior to the election to file a "notice of intention of candidacy." This, of course, comes long after the 45, 15 and 10 day reports before and after the primary date have passed. Thus while a "write-in" candidate who has in fact filed a "notice of intention of candidacy" prior to any of the fiscal disclosure report filing dates surrounding the primary must comply with those report requirements occurring after he has become a candidate, and while an individual who "intends" to subsequently become a "write-in" candidate "should" file such reports, the practical consequence is probably that only those reporting dates fixed with respect to the general election can be enforced against a "write-in" candidate.

(2) "Does this same definition, or other sections as may apply, require withdrawing candidates (prior to or after a primary or general election) or losing candidates (primary or general election), once they have entered the election process by whatever means, to file the same campaign disclosure reports as candidates actually in or continuing the election process?"

This second question is in large part answered by Section 6 (c) which has already been quoted above. Only those candidates involved in the general election campaign (i.e., excluding those who lost in the primaries or who withdrew) are required to file a report 15 days prior to the general election, but all candidates (presumably including those who lost in the primaries or withdrew) are required to file a final report on December 31 of the year in which the election occurs.5 On the other hand, in light of the broad definition of the term "candidate" in Section 3 (b) and the absence of any applicable limiting provision in Section 6 (c), it would be my opinion that withdrawal of a candidate prior to any of the reporting dates surrounding the primary would not relieve him of compliance with those dates.

3 See Ga. Code Ann. 34-1012 (Ga. Laws 1970, pp. 347, 364). 4 See Ga. Code Ann. 34-1002 (b) (Ga. Laws 1970, pp. 347, 354; 1971, p. 602). 6 Note also the "exemption" contained in Section 6 (d) which is discussed, infra, in our response to your final question.

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(3) "Does the language of Section 6 (d), or other sections as may apply, require candidates to file campaign disclosure reports during the primary process if:
"a. A candidate is unopposed in his party primary but has opposition in the opposing party primary?
"b. A candidate has no primary for his party, but opposing party does?
"c. A candidate's party holds a primary for his office and others, but because he is unopposed, his name does not appear on the ballot (municipal elections only)?"
Section 6 (d) of the Act states in part that:
"In the event any candidate covered by the provisions of this Act has no opposition (primary or general) and receives no contributions, regardless of amount, said candidate shall only be required to make the initial and final report as required under the provisions of this Act."6 (Emphasis added.)
The answers to the questions you pose under this provision depend, of course, on the meaning given to the phrase " ... has no opposition (primary or general)...." Since the report obligations of candidates generally do vary slightly from those candidates who are involved in a general election campaign/ it is arguable that the two (i.e., primary and general) are to be viewed separately. It is my opinion, however, that the probable intent of the General Assembly was to provide for the narrower exemption, which is to say that the reports (other than the first and last) can be omitted only where the candidate has no opposition either in the primary or in the general election. In light of this interpretation, it follows that my answer to questions (a) and (b) is in the affirmative. In connection with question (c), the answer is in the negative assuming that the candidate does not have opposition for the office he seeks in either the primary or in the general election.

OPINION 76-23 To: Secretary of State

March 15, 1976

Re: Municipality may treat election ordered as a result of failure of prior election as a continuation of prior election, recognizing acts validly taken.
eGa. Code Ann. 40-3806 (d). 7 See response to question 2, supra.

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This is in reply to your request, prompted in turn by an inquiry to you, for my opinion as to certain issues relating to a determination by the governing authority of a municipality in a contest proceeding under Ga. Code Ann. 34A-1501 (Ga. Laws 1968, pp. 885, 979; 1970, pp. 341, 345) that a municipal election was void because of mechanical failure of a vote recorder and that another election should be held.
While several issues are presented by your request, the central issue is whether the new election is to be regarded as simply a continuation of the prior election proceedings, adopting the acts validly taken thereunder, or as a wholly new election proceeding with no recognition given to prior actions previously taken.
There appears to be little if any precedent on this issue. However, given the limited nature of the failure of the prior proceeding and the fact that determination of the fatal disenfranchisement of voters was made in an election contest,1 it is my opinion that the new election may properly be regarded as a continuation of the prior election with due recognition given to the acts validly conducted. Georgia Code Ann. 34A-1501; Ga. Laws 1965, p. 298, as amended (Ga. Code Ann. 69-1017, 69-1018 (1)); Ga. Laws 1973, p. 3074, Section 2.35. In this respect, it should be noted, as the municipal attorney suggested to you, that the governing authority should adopt ordinances governing this situation. Id. All of the issues presented by your request may, in my opinion, be thereby resolved by the governing authority of the municipality, including a resolution in favor of treating the election as a continuation of the prior proceeding recognizing to the extent possible the validity of acts previously taken. Such a resolution would not conflict with the provisions of the Georgia Municipal Election Code.

OPINION 76-24

To: Secretary of State

March 15, 1976

Re: Microfiche of electors list does not comply with Ga. Code Ann. 34-623.

This is in reply to your request for my opinion on whether the county registrars may comply with Ga. Code Ann. 34-623 (Ga. Laws 1964, Extra. Sess., pp. 26, 63) by filing a microfiche of the list of electors for that county.
While the statute is not explicit on this issue, it is my opinion that the certified list of electors required to be filed under Ga. Code Ann.
1 Georgia Code Ann. 34A-1409 (Ga. Laws 1968, pp. 885, 978) might arguably apply in the event the failure was ascertained prior to declaration of the results of a contest.

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34-623 with the clerk of the superior court of the county and with the Secretary of State must be independently legible and that a record of the list which may not be read except by resort to uRe of other devices does not comply. See, e.g., Ga. Code Ann. 34-302 (Ga. Laws 1964, Extra. Sess., pp. 26, 39).
It is thus my official opinion that a microfiche of a list of electors does not comply with Ga. Code Ann. 34-623.

OPINION 76-25

To: Director, Public School Employees Retirement System

March 17, 1976

Re: The Board of Trustees of the Public School Employees Retirement System has the statutory authority to correct its records; this authority obtains even when the incorrectness of the records is in no manner attributable to the Retirement System but is wholly caused by a member and her employer failing to detail an accurate amount of prior service credit.

This replies to your request for my opinion as to the proper interpretation of the Act establishing the Public School Employees Retirement System (PSERS) in a given factual situation. The PSERS Act is contained in Ga. Laws 1969, pp. 998 to 1013; Ga. Code Ann. Ch. 32-38, both as amended. The facts, as indicated in the file, are as follows.
A cook employed by the Washington County Board of Education, performing her services in T. J. Elder Elementary School in Sandersville, Georgia, filed an Application for Membership in PSERS on January 6, 1971. Her application, which was certified by the principal of her school, reflected no claimed creditable service prior to June, 1970.
The PSERS Act allows a member to claim credit for all prior service as a public school employee from the commencement date of the Retirement System back to July 1, 1945. Ga. Code Ann. 32-3805 (b). The Application for Membership in PSERS provides a table which may be completed, detailing all the prior service which a member claims pursuant to Ga. Code Ann. 32-3805 (b). In this member's case, the table was not completed and the Membership Application did not show any claimed prior service.
The member terminated her employment with the Washington County Board of Education on June 6, 1975, and on October 1, 1975 filed an Application for Refund of Contributions. Pursuant to this Refund Application, PSERS properly refunded the member's contributions in the amount of $176 on October 20, 1975.

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40

Subsequently, in December 1975, PSERS received a telephone call from the Superintendent of the Washington County Board of Education explaining that a mistake had been made in the member's original Application for Membership and she had not been certified as having a significant amount of prior service which she, in fact, had. On December 15, 1975, PSERS wrote the superintendent acknowledging that the original application may have contained an error, and informing him that PSERS would consider any request he made concerning the restoration of the member's account.
Under date of January 27, 1976, PSERS received a new Application for Membership on behalf of the member and an accompanying, explanatory letter from the Superintendent of the Washington County Board of Education. Attached to those documents was a cashier's check in the amount of $176 from the member, repaying the amount of her October 1975 refund of contributions. The superintendent's letter, in essence, explained that the board of education and the member had made a material mistake in her original Application for Membership by not listing a detailed account of her prior service. The new application certifies that the member had prior service for which she co"!lld have claimed credit back to July 1949. PSERS also received an Application for Disability Retirement from the member, requesting disability retirement effective January 1, 1976.
The difference this material mistake or error on the part of the member and the board of education makes is obvious. If her original Membership Application is adhered to, she is only entitled to the refund of her contributions under Ga. Code Ann. 32-3807 (a). On the other hand, if the new Membership Application (January 27, 1976) is operative, the member, if found totally and permanently disabled to perform the duties of her employment, would be eligiblefor disability retirement benefits under Ga. Code Ann. 32-3807.1. You have asked me whether this member may have her account restored under PSERS and, simultaneously, apply for disability retirement benefits.
The letter from the superintendent, and other information in the member's file, indicates that the error or mistake was made by- the Board of Education of Washington County or its administrative officials. While it is true that the member signed both the original Membership Application and the Application for Refund of Contributions, it is nevertheless also true that the board of education possessed and controlled the records of the member's prior service and previous employment. The statement of the member's prior service should have been completed by the board of education before the application was presented to her for signature.
The superintendent acknowledges that it was the mistake of the board of education that the member's original application did not include the detailed statement of prior service. He acknowledges also

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that the original application was completed by the administrative officials of the board of education and filed containing erroneous information or, perhaps more aptly stated, the absence of important information.
Section 21 of the PSERS Act allows the board of trustees to correct errors in the records of the system. That section reads as follows:

"Should any change or error in the records result in any member or beneficiary receiving from the retirement system more or less than he would have been entitled to receive had the records been correct, the board shall have the power to correct such error and to adjust as far as practicable the payments in such a manner that the actuarial equivalent of the benefit .to which such member or beneficiary was correctly entitled shall be paid." Ga. Laws 1969, pp. 998, 1012; Ga. Code Ann. 32-3821.

I am aware of the provisions of Ga. Code Ann. 32-3805 (b) which

sta.te that, following the receipt of a member's prior service statement,

the board of trustees shall issue to the member a prior service certifi-

cate indicating the prior service with which the member is credited. I

am also aware that the law provides the member one year from the is-

suance of the certificate to request the board of trustees to correct or

modify the certificate. However, here, there was no prior service cer-

tified on the Membership Application. Hence, the member was not

issued a prior service certificate and cannot be held to the limitation

of only one year within which to request the modification or correction

of the certificate. Under the plain language of the statute, this one-year

correction period is applicable only when a prior service certificate has

been issued to the member.



I am also not unmindful of the language in Ga. Code Ann. 32-3804

(c) to the effect that the membership of any member terminates if

contributions are withdrawn. However, the original error was made

while the member enjoyed a membership status and the very fact that

a refund of contributions was made was attributable to the mistake or

error in her records. Were it not for the incorrectness of the records,

the refund of contributions would, most probably, have never been

requested or made.1

Under the facts of this unfortunate situation, as have been fully

stated, it is my opinion that the board of trustees may correct its rec-

ords with regard to this particular member so as to reflect her true

statement of total creditable service. It is further my opinion that, if

the board chooses to correct its records, it may then process the mem-

1 It should be clear from this opinion, but bears emphasis here, that PSERS has at all times acted correctly and properly in accordance with the law. There has been no fault in this matter attributable to PSERS. However, when the mistake of another is brought to the attention of PSERS, the law does not prohibit rectification.

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her's Disability Retirement Application in normal fashion for a determination as to whether she is totally and permanently disabled to the extent that she is unable to perform the duties of her employment as per the terms of Ga. Code Ann. 32-3807.1.
If this member is determined to be disabled, she may then be granted disability retirement benefits. However, in the event that she is not determined to be disabled, she could be granted a refund of her contributions or advised that she may be entitled to receive service retirement benefits under Ga. Code Ann. 32-3806 or 32-3807 upon the filing of a proper application and the attainment of the requisite age for the receipt of such benefits.
This opinion does not suggest that it is PSERS' responsibility to shepherd its members to the extent of filing their documents for them, or challenging and inquiring into properly verified documents. Quite to the contrary, PSERS has a right to rely on duly certified documents filed with the board of trustees. However, when an honest mistake is brought to the attention of the trustees, and sufficiently explained, the law does not bind the hands of the trustees and prevent them from acting in the best interests of the member and the retirement system.

OPINION 76-26

To: Commissioner, Department of Banking and Finance

March 19, 1976

Re: An agreement made in the course of securing a previously contracted debt which transfers control of shares of stock in a bank does not fall within the reach of the Bank Holding Company Act provided that the shares are disposed of within two years from the date of their acquisition.

This is in response to a request by your office for my opinion as to whether an agreement executed by a Tennessee corporation on October 1, 1975, concerning control of 38.35 percent of the outstanding capital stock of a federally chartered financial institution with offices located in Georgia, fell within the reach of the Georgia Bank Holding Company Act provisions. It was related that the Tennessee corporation contracted a debt on March 27, 1975, and thereafter by means of a "supplemental security agreement" the rights in a sizable block of the outstanding stock of a federally chartered bank were transferred to the creditor.
The recent amendments to the Bank Holding Company Act incorporate that exception to the definition of a bank holding company embodied in Ga. Code Ann. 13-207 which provides that ownership or

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control of shares of stock in a bank may be lawfully acquired in the course of securing or collecting a previously contracted debt. Ga. Code Ann. 13-207 (a) (5) (B) (amended by Ga. Laws 1976, p. 168). However, those shares of bank stock acquired for such purpose must be disposed of within two years of the date on which they were acquired. Id. The creditor had, according to your letter, secured a comparable interest in more than five percent of the shares of a Georgia chartered bank. The acquisition of the security interest in the bank's shares clearly brings the transactions within the scope of Ga. Code Ann. 13-207. However, assuming the good faith of the parties and the truth of the recitation in the supplemental security agreement that a default has occurred in the prior debt obligation, it is my opinion that the subject agreement is not in violation of the Bank Holding Company Act, as amended, provided that the shares are disposed of within two years of the first acquisition of any security interest therein, which on the face of the supplemental security agreement appears to be October 1, 1975.

OPINION 76-27

To: Commissioner of Labor, Georgia Department of Labor

March 24, 1976

Re: An unemployment compensation claimant who left his last employment under disqualifying circumstances would have to serve a disqualification period after he becomes eligible for unemployment benefits under state law regardless of any benefits he received or did not receive under any other program prior to his eligibility under state law.

This is in response to your recent request for my official opinion regarding the relationship between the Federal Special Unemployment Assistance Program (hereinafter "SUA") and the State Employment Security Act (unemployment compensation law). Specifically, you want to know if the serving of a disqualification period under "SUA" prior to becoming eligible for unemployment compensation benefits under state law would have any effect on any disqualification period that a claimant may be required to serve under the state unemployment compensation law.
To answer your question it is necessary to examine briefly the pertinent legislative history of the Georgia Employment Security Act. This law was originally enacted in 1937. Ga. Laws 1937, p. 806 (Ga. Code Ann. 54-601 et seq.). Included in this law were the requirements for eligibility for benefits. Ga. Code Ann. 54-609. Also, the law provided that claimants who left their last employment under certain disquali-

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44

fying grounds (e.g., voluntarily quit or were fired for misconduct) had to serve a disqualification period during which time they would not receive unemployment benefits. Ga. Code Ann. 54-610.
In an early case, the Georgia Court of Appeals interpreted the disqualification provisions to mean that the disqualification period began when the claimant left his last job, regardless of whether the claimant had filed for benefits. Peerless Woolen Mills v. Huiet, 69 Ga. App. 166 (1943). In 1950, the Georgia General Assembly amended the disqualification provisions to provide that the disqualification period does not begin until the claimant has "filed an otherwise valid claim for benefits." Ga. Laws 1950, pp. 38, 42. This aspect of the unemployment compensation law has remained unchanged since the 1950 amendment. Ga. Code Ann. 54-610.
Consequently, the clear meaning of the statute and the intent of the General Assembly in enacting the statute is that if an unemployment compensation claimant is required to serve a disqualification period, that period cannot begin until the claimant becomes eligible for unemployment benefits under the state law. He cannot count as part of his disqualification any period subsequent to the time he became unemployed and prior to the time he became eligible for benefits under the state law.
"SUA" has no effect on the state disqualification period. This totally federally funded program provides benefits to persons who have been employed, who are presently unemployed, but who are not eligible for benefits under any other unemployment compensation law. Pub. Law 93-567, Title II, 203, 88 Stat.1850. In granting these benefits, "SUA" applies the disqualification period provided for under state unemployment compensation law. Pub. Law 93-567, Title II, 207, 88 Stat. "1852. If, after qualifying for benefits under "SUA," the claimant becomes eligible for benefits under state law, his benefits under "SUA" terminate. Pub. Law 93-567, Title II, 203, 88 Stat. 1850.
"SUA" only operates when the claimant is not eligible for benefits under the state law. It does not supersede the separate state program. Accordingly, I cannot find any authority under the "SUA" law or the state unemployment compensation law that would exempt a claimant from serving a disqualification from benefits where such disqualification is required by state law.
Therefore, it is my official opinion that an unemployment compensation claimant who left his most recent employment under disqualifying circumstances, as determined under state law, cannot begin his disqualification period until after he has filed a valid unemployment compensation claim under state law. Furthermore, it is my official opinion that the claimant cannot count as part of his disqualification period the time between the day he became unemployed and the day he filed a valid state claim, regardless of whether he has received public

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funds from any other source during this interim time or served a disqualification period under any other program including "SUA."

OPINION 76-28

To: Secretary of State

March 26, 1976

Re: A third-year law student who serves as a legal assistant to a district attorney pursuant to Ga. Code Ann. 9-401.2 does not thereby become "duly admitted and licensed to practice law in the superior courts" for the purposes of determining eligibility to the office of dis.;. trict attorney under Ga. Code Ann. 24-2901.

This is in response to your recent request for my opinion, in which you asked whether serving as a law school public prosecutor pursuant to Ga. Code Ann. 9-401.2 constitutes being "duly admitted and licensed to practice law in the superior courts," for purposes of determining eligibility to the office of district attorney, under Ga. Code Ann. 24-2901.
Georgia Code Ann. 9-401.2 (Ga. Laws 1970, pp. 336, 338) provides in pertinent part the following:
"(a) This section shall be known and cited as 'The Law School Public Prosecutor Act of 1970.'
"(b) It is in the public interest to provide legal assistance to district attorneys with the increasing docket in criminal matters, and in connection therewith to utilize the services of third-year law students and staff instructors in criminal proceedings as a form of legal intern training which will promote the efficiency of criminal proceedings.
"(c) An authorized third-year law student or staff instructor when under the supervision of a district attorney may assist in criminal proceedings within this state as if admitted and licensed to practice law in this state, except that all indictments, presentments, pleadings, and other entries of record must be signed by a district attorney, or by his duly appointed assistant; and in the conduct of a grand jury investigation, trial or other criminal proceeding, a district attorney or his duly appointed assistant must be physically present.''
Georgia Code Ann. 24-2901 (1933 Code; amended by Ga. Laws 1964, p. 362), paraphrasing Const., Art. VI, Sec. XIII, Par. I (Ga. Code Ann. 2-4801), provides in pertinent part the following:
"No person is eligible to the office of district attorney ... who has

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not been duly admitted and licensed to practice law in the superior courts for at least three years...."
It is clear that a third-year law student does not become duly admitted and licensed to practice law in the superior courts by his becoming authorized to assist a district attorney in the manner prescribed in Ga. Code Ann. 9-401.2.
The statement that the student may assist the district attorney "as if admitted and licensed" necessarily implies that the student has not actually been admitted and licensed.
Moreover, the fact that there are strict rules governing what a student prosecutor may and may not do makes it clear that, while the student is practicing law in the sense that he is performing acts that a layman is not authorized to perform, he has not thereby been admitted and licensed to practice law in a general sense. The Supreme Court in Gazan v. Heery, 183 Ga. 30 (1936), recognized that the term "practice of law" has an entirely different meaning in a statute designed to prevent the practice of law by one who is not qualified to do so, from that which it has in determining qualifications to hold judicial office. Thus, the court held that while a judge is forbidden by statute to practice law, service as a judge constitutes the practice of law for the purpose of determining qualifications to hold another judicial office.
Accordingly, it is my official opinion that a third-year law student who serves as a legal assistant to a district attorney pursuant to Ga. Code Ann. 9-401.2 does not thereby become "duly admitted and licensed to practice law in the superior courts" for the purposes of determining eligibility to the office of district attorney, under Ga. Code Ann. 24-2901.

OPINION 76-29

To: Commissioner, Department of Public Safety

March 29, 1976

Re: Validity of Ga. Laws 1974, pp. 1137-1138.

This is in response to your letter of March 11, 1976 wherein you requested my official opinion as to the validity of Ga. Laws 1974, pp. 1137-1138.
Ga. Laws 1974, p. 1137, is an Act to amend an Act known as the "Uniform Act Regulating Traffic on Highways," approved January 11, 1954 (Ga. Laws 1953, Nov.-Dec. Sess., p. 556), as amended, particularly by an Act approved April14, 1967 (Ga. Laws 1967, p. 542), to provide that no person shall operate a motor vehicle while wearing

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certain devices, with certain enumerated exceptions. The Act was approved March 28, 1974.
The "Uniform Rules of the Road Act" (Ga. Laws 1974, p. 633), approved March 25, 1974, specifically repealed Ga. Laws 1953, pp. 556, 601, Section 96.1 Ga. Laws 1974, pp. 1137-1138, specifically provides that the subsection therein enumerated shall be designated subsection D and shall appropriately follow subsection C of Ga. Laws 1967, p. 542.
The intention of the legislature is the cardinal guide to a construction of statutes, and an effort must be made to arrive at a reasonable construction of the statute which will attribute to the legislature an intention to pass the Act and which will not defeat the purposes of the Act. Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656 (3) (1931); Keener v. MacDougall, 232 Ga. 273 (1974). Furthermore, if an irreconcilable repugnancy exists between two Acts, the last approved by the Governor shall control. Keener, supra, at 277; County of Butts v. Strahan, 151 Ga. 417 (1) (1921); Macon and Birmingham Railroad v. Gibson, 85 Ga. 1, 20 (1890). An additional rule of statutory construction provides that a statute will be deemed to have repealed a prior statute by implication when the provisions of the latter are inconsistent with or repugnant to the provisions of the former. Keener, supra, at 276.
Applying the above stated rules of statutory construction to the question presented, it is my opinion that Ga. Laws 1974, pp. 1137-1138, approved by the Governor on March 28, 1974, is the controlling statutory expression on the subject and has by implication repealed any inconsistent or repugnant provisions of Ga. Laws 1974, p. 633.

OPINION 76-30

To: Commissioner, Department of Administrative Services

March 30, 1976

Re: The Department of Administrative Services is authorized, but not required, by Ga. Laws 1975, p. 735, to allow area planning and development commissions to purchase certain services and equipment through the Department of Administrative Services.

This is in response to your request for my opinion as to whether, pursuant to Ga. Laws 1975, p. 735, area planning and development commissions are authorized to purchase certain services and supplies, including gasoline and the use of rental automobiles, through the state.
1 Ga. Laws 1953, Nov.-Dec. Sess., pp. 556, 601, was codified as former Ga. Code Ann. 68-1674. Ga. Laws 1974, p. 633, enacted Ga. Code Ann. Title 68A.

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Section 1 of Ga. Laws 1975, pp. 735, 736 (Ga. Code Ann. 40-2925), provides that:
"The Department of Administrative Services is hereby authorized to permit area planning and development commissions, on an optional basis, to purchase their motor vehicles, material, equipment, services and supplies through the state and to issue purchase orders for area planning and development commissions for motor vehicles, material, equipment, services and supplies."
Initially, it is evident that the language of the cited section is not mandatory, but simply constitutes an authorization to the Department of Administrative Services to provide such services. This is bolstered by Section 5 of Ga. Laws 1975, pp. 735, 736 (Ga. Code Ann. 40-2929), wherein it is stated:
"The Director of the Department of Administrative Services shall prescribe regulations necessary for implementation of the provisions of this Act and is authorized to establish minimum standards and uniform standard specifications and procedures for the purchase and distribution of motor vehicles, material, equipment, services and supplies for the area planning and development commissions of this state."
However, with this limitation, it is evident that the authority contained in the cited law is sufficiently broad to allow the area planning and development commissions to avail themselves of all of the services provided by your department, including purchasing gasoline and renting automobiles, to the extent that the Department of Administrative Services makes such services available to other state agencies.

OPINION 76-31

To: Secretary of State

April 8, 1976

Re: Sheriffs must be bonded by at least one corporate surety liable for full amount of the statutory bond penalty; it is not permissible for sheriffs to file separate corporate surety bonds, each for less than the surety penalty even where the assumed but fictitious total of the penalties under each bond equals the statutory penalty.

This is in response to your letter of March 2, 1976, in which you requested an official opinion from this office concerning the proper bonding of sheriffs in Georgia.
Georgia Code Ann. 24-2805 relates to bond requirements for sheriffs. However, this section must be construed in conjunction with Ga.

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Code Ch. 89-4 relating to official bonds in general. See Ga. Code (1933) 89-401.
Georgia Code Ann. 24-2805 (amended by Ga. Laws 1965, p. 448; 1975, p. 922) reads as follows:
"They [sheriffs] shall also give a bond, with at least two sureties, in the sum of $25,000 which amount may be increased in any county by local Act, conditioned for the faithful performance of their duties as sheriff, by themselves, their deputies, and their jailers, and upon the terms required by law." [Matter in brackets added.]
Two provisions of Ga. Code Ch. 89-4 are pertinent and must be considered along with Ga. Code Ann. 24-2805 in determining the bond requirements for sheriffs. Ga. Code Ann. 89-405.1 provides that:
"All county officials who are required to give an official bond are hereby required to make bond signed by some surety or guaranty company authorized to do business in this state...." Ga. Laws 1947, p. 1543, as amended.
Georgia Code Ann. 24-2805 and Ga. Code (1933) 89-415 must be viewed in light of their historical origins. The original requirement of two sureties in Ga. Code Ann. 24-2805 was enacted at a time when officials were generally bonded by individuals and corporate bonds were rare. See Fidelity & Deposit Co. v. Butler, 130 Ga. 225, 236-37 (1908); Ga. Code (1933) 89-414. Georgia Code (1933) 89-415, which was enacted at a later date, when corporate sureties were more common, presumably reflects the finding that surety companies are more financially stable than individuals and that the double protection required of individual sureties is not necessary where corporate insurers are utilized. The latter section makes clear that a corporate surety may be accepted as "the only surety" upon the bond of any "state or county" officer. Ibid. Finally, Ga. Code Ann. 89-405.1 makes perfectly clear that county officers, including the sheriff, now must be bonded by a corporate surety. Thus, since the pertinent language of Ga. Code Ann. 24-2805, relating to the number of sureties, does not apply where the sheriff is bonded by a corporate surety under Ga. Code 89-415; and under Ga. Code Ann. 89-405.1, that must always be the case.
Finally, even when Ga. Code 24-2805 applied in full force, it was not permissible under that section for the two sureties to file separate bonds in separate amounts which hypothetically totalled the statutorily fixed bond penalty. The requirement of two sureties was to insure that any recovery against the sheriff might be satisfied by either of two sureties who were each jointly and severally liable for the full amount of the statutorily fixed bond penalty. It is, thus, more than clear that

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under current law, Ga. Code 89-405.1, 89-415, and 56-2435,1 there must be one bond in the penal sum fixed by statute and at least one corporate surety for the full amount of the bond. It is not permissible for two corporate sureties to file separate bonds, each for less than the statutory sum but which in the assumed but fictitious aggregate total that sum.
In sum, sheriffs must file a single bond in the amount fixed by Ga. Code 24-2805 secured to the full amount of the bond by at least one corporate surety.

OPINION 76-32

To: Adjutant General

April 12, 1976

Re: An officer must be a current member of the organized militia in order for the Governor to transfer him, upon certain conditions, to the retired list at one grade higher than the highest grade previously held.

This is in response to your recent request for an opinion as to the application of Ga. Code Ann. 86-114 (b) (Ga. Laws 1955, pp.10, 19). That section provides, in particular:
"Any officer who has served for at least twenty years in the organized militia or in the organized militia and the armed forces of the United States combined, upon his request, may be transferred to the State retired list by the Governor in a grade one grade higher than the highest grade previously held by him during such service."
In particular, you ask whether an officer must be a current member of the organized militia at the time of his request in order for the Governor to make the transfer.
In examining the relevant portion of the Code section, it is significant that the General Assembly used the term "transferred" rather than "placed" or some similar term. The term transferred, to my mind, requires that the transferee (officer) be in a present condition or status over which the transferor (Governor) exercises authority or control. Similarly, the person exercising the power to transfer would have to have authority or control to some extent over the position or status to which the transferee is transferred.
Considering the situation of an officer who had been in the organized militia but who was presently a member of the armed forces of the United States at the time he requested a transfer by the Governor, what power or control would the Governor have over his existing status prior to the transfer? The Governor of Georgia has no power to effect
1 Ga. Code Ann. 56-2435, based on Ga. Laws 1960, pp. 289, 672.

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or change the status of an officer in the armed forces of the United States. Accordingly, the Governor could not transfer the officer out of that status-all he could do would be merely to place or list the officer on a retired list or some other list. The Governor's action would in no way change the status of the officer with the armed forces of the United States.
On the other hand, if the officer requesting the transfer were a member of the organized militia of the State of Georgia, then the Governor, as Commander in Chief, has the power and authority to change the officer's status-he can remove the officer from his existing position or status and place him in another status (transfer the officer from the organized militia to the retired list).
On the basis of the foregoing, I am of the opinion that an officer must be a current member of the organized militia at the time he requests the Governor to transfer him to the retired list, pursuant to the provisions of Ga. Code Ann. 86-114 (b).

OPINION 76-33

To: Director, Georgia Bureau of Investigation

April15, 1976

Re: Under Ga. Laws 1973, p. 1301, the Georgia Crime Information Center is authorized to maintain records of reported crime and, in some instances, to record information identifying persons charged with the commission of crime; however, the Center is not authorized to maintain records identifying persons charged with disorderly conduct except when the charge is directly connected with an offense within subparagraph 3 (a) (1) (ii) of Ga. Laws 1973, p. 1301 (Ga. Code Ann. Ch. 92A-30).

Reference is made to your letter requesting an opinion with respect to the Georgia Crime Information Center Act of 1973 (the "Act"), and the duties and responsibilities of the Georgia Crime Information Center ("GCIC"). You have made particular inquiry with respect to therecording of crimes under the Act and the implementation of subparagraphs 3 (a) (1) (iii) and (v) thereof (Ga. Code Ann. 92A-3003).
At present there appears to be no case authority construing the statute about which you have inquired. Therefore, this opinion is based entirely upon the language of the statute and the rules of statutory construction as they become relevant.
A cardinal and pervasive rule of statutory construction is that statutes shall be construed so that the legislative intent behind them will be effectuated. Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656 (1931); Ford Motor Co. v. Abercrombie, 207 Ga. 464 (1950);

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Ga. Code Ann. 102-102 (9). This intention may be ascertained by considering the statute (being construed) as a whole or construing its provisions together. Freeman v. W.O.W. Life Insurance Society, 200 Ga. 1, 4 (1947). Since the words of a statute are presumed to have meaning, a statute is to be construed so that, if practical, all of its provisions are meaningful. Southeastern Fidelity Insurance Co. v. Heard, 123 Ga. App. 635 (1971).
With respect to the duty of GCIC to record crime under the Act, subsection 3 (c) provides that GCIC shall "provide a uniform crime reporting system ... [for the reporting of] crimes reported to ... all law enforcement agencies within the state...." The subsection makes no reference to the exclusion of any types of crimes from the system of recording crime. Also, subsection 3 (d) refers to the duty of GCIC to establish and maintain a crime information system. In addition, subsection 4 (b) refers to a "Uniform Crime Report" containing reported crimes and such other information as GCIC "shall specify." When these provisions are construed together, they show that the Act em-
powers acre to record crime as it deems necessary to establish and
maintain a uniform system of crime reporting.1 However, the authority of GCIC to record information about crimi-
nal offenders is narrower than its authority to record crime. Subsection 3 (a) of the Act sets forth circumstances in which GCIC is authorized to collect and file such personal information as fingerprints, photographs and so forth. Except for subparagraphs 3 (a) (1) (iii) and (v) of the Act, the provisions of subsection 3 (a) are rather clear on the face of the statute.
Subparagraph 3 (a) (1) (iii) is vague in that it provides:
"The Georgia Crime Information Center shall:
"(a) Obtain and file fingerprints, descriptions, photographs, and any other pertinent identifying data on persons who:
"(1) Have been or are hereafter arrested or taken into custody in this state:
* * *
"(iii) For an offense charged as disorderly conduct but which relates to an act connected with one or more of the offenses under subparagraph (ii) [of paragraph 3 (a) (1) of the Act]."
One cause of the vagueness of course is the fact that it is not apparent from the statute when disorderly conduct "relates" to an act con-
1 The National Crime Information Center has specified a number of offenses which are not to be reported to the National Crime Information Center. These crimes are: card game playing, dice game playing, lottery playing, misrepresenting age-minor, drunkenness, false fire alarm, disturbing the peace, violating curfew, loitering, moving and non-moving traffic violations, and vagrancy. See NCIC Uniform Crime List. GCIC may record these crimes for state purposes if it so chooses.

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nected with an offense. A well settled rule of statutory construction in this state is that the words used in a statute, but not defined therein, shall have their ordinary common sense meaning. Ga. Code Ann. 102-102; Wellborn v. Estes, 70 Ga. 390, 396 (1883); C. & S. National Bank v. Fulton County, 123 Ga. App. 323, 326 (1971). Webster's Third New International Dictionary (unabridged) defines "relate" as meaning "in relationship: having reference." When this definition is applied to the above-quoted language, it seems clear that an offense "relates" to an act when it refers to the act, i.e., the act comprises the offense or an element of the offense. For instance, fighting in public would be the act, but disorderly conduct would be the offense which refers ("relates") to the act.
Another cause of the vagueness of subparagraph 3 (a) (1) (iii) is that it fails to provide any guidance as to when an act is ''connected with" an offense. No precise definition of the phrase is presently available. However, an indication of how the phrase is to be interpreted may be derived from the legislative intent of the Act as evidenced by its language. Ga. Code Ann. 102-102 (9). The language of subparagraph 3 (a) (1) (iii) reflects a legislative policy that GCIC should collect and file identifying data on persons charged with disorderly conduct only in exceptional circumstances. That being the case, it would appear that "connected with" should be interpreted to require a direct relationship between the act charged as disorderly conduct and the offense within subparagraph 3 (a) (1) (ii) of the Act. Any of the acts set forth in Ga. Code Ann. 26-801 (b) (2), (3), and (4) (Ga. Laws 1968, pp. 1249, 1271) would certainly satisfy this "connected with" test. In addition, a disorderly conduct charge which results from an attempt to commit any of the offenses within subparagraph 3 (a) (1) (ii) would also be within this "connected with" test. Whether other acts can satisfy the test of connection is unclear at this time.
It should be noted that subparagraph 3 (a) (1) (iii) applies whenever a disorderly conduct charge is connected with an offense within subparagraph 3 (a) (1) (ii) irrespective of whether the offender is charged with an offense within that subparagraph. In fact, if the offender is charged with an offense within subparagraph 3 (a) (1) (ii), it is better to proceed under that subparagraph than to rely on subparagraph 3 (a) (1) (iii). As a practical matter then, under subparagraph 3 (a) (1) (iii), GCIC would collect identifying data on an offender charged with disorderly conduct only in cases where the offender is not charged with an offense within subparagraph 3 (a) (1) (ii) or some other provision of subsection 3 (a) of the Act. In those cases, GCIC should carefully record how the disorderly conduct was connected with an offense within subparagraph 3 (a) (1) (ii) of the Act.
Therefore, it is my opinion that GCIC has authority to record crime in the manner it deems necessary to reflect accurately the level of re-

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ported criminal activity in the state. It is my further opinion that while GCIC is authorized to collect and file identifying data on persons charged with the commission of felonies and certain misdemeanors, GCIC is not authorized to collect and file identifying information on persons charged with disorderly conduct except in cases where the disorderly conduct is directly connected to an offense within subparagraph 3 (a) (1) (ii) of the Act.
Subparagraph 3 (a) (1) (v) requires the Attorney General to designate crimes not within the scope of subsection 3 (a) for which he believes GCIC should collect and file identifying data pertaining to persons committing those crimes. Exhibit A hereof sets forth a list of those crimes.

EXHffiiT A

Pursuant to subparagraph 3 (a) (1) (v) of the Georgia Crime Information Center Act of 1973, the Attorney General of the State of Georgia hereby authorizes GCIC to collect and file pertinent identifying data on persons who commit any of the crimes set forth below. It is believed that by authorizing GCIC to collect and file identifying information on persons charged with the commission of any of the following crimes, GCIC will be able to continue its current policy with respect to the collection of offender data.

Crime

Ga. Code Ann.

Aiding Escape............................ . Compounding a Crime .................... . Criminal Trespass......................... . False Acknowledgment of Appearance
or Oath................................ . False Reporting of a Crime ................ . Giving False Name ....................... . Interference with Custody ................. . Obstruction of Officers ..................... . Receiving Funds for Enforcement of
Penal Laws or Regulations ............... . Simple Assault ........................... . Simple Battery ........................... . Wearing Mask ........................... .

26-2502 26-2504 26-1503
26-2310 26-2509 26-2506 26-1312 26-2505
26-2303 26-1301 26-1304 26-2913

(Title 26 sections cited herein are based upon Ga. Laws 1968, p. 1249 et seq., as amended.)

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OPINION 76-34

To: Acting Commissioner of Personnel Administration

April15, 1976

Re: The health insurance plan for public school teachers of Georgia would cover anyone defined as a "teacher" under the Georgia Teachers Retirement System Law. Ga. Laws 1943, pp. 640, 641, as amended. Furthermore, the State Personnel Board may assess the State Department of Education for contributions not to exceed three percent of its total outlay for personal services of public school teachers; however, no other assessment can be made against any governmental agency for an employer's contribution under this insurance plan.

This is in response to your recent request for my official opinion re-

garding the health insurance coverage authorized by Georgia Laws

1975, p. 37 (Ga. Code Ann. Ch. 32-43). This law authorizes the State

Personnel Board to create a health insurance plan for the public school

teachers of Georgia. This health insurance plan would provide cover-

age to all persons included in the definition of "teacher" under the

Georgia Teachers Retirement System Law. (Ga. Laws 1943, pp. 640,

641, as amended; Ga. Code Ann. 32-2901 (5)).

The benefits under this plan are to be paid out of a "health insur-

ance fund for public school teachers.". Ga. Laws 1975, pp. 37, 41. The

fund will be financed by both employees' contributions and a contribu-

tion from the State Department of Education. Ga. Laws 1975, pp. 37,

41-42. The amount of the department's contribution will be established

by the State Personnel Board but may not exceed three percent of the

total outlay for personal services. Ga. Laws 1975, pp. 37, 42.

Regarding the coverage and the funding of this health insurance

plan, you have asked three specific questions. I shall answer these ques-

tions in the order which you have asked them.



(1) Are all of the employees enumerated in Ga. Code Ann. 32-2901 (5) (1975 Cumulative Pocket Part) (e.g., including county librarians and public school nurses) eligible for coverage under this health insurance plan?

Yes, the law specifically provides that "public school teacher" means "teacher" as defined in Ga. Code Ann. 32-2901 (5). This would include all persons enumerated in that section of the Georgia Teachers Retirement System Law.

(2) Is the limitation on the Georgia Department of Education's contribution three percent of its total outlay for personal services for public school teachers or is it three percent of the aggregate received by the teachers as salary?

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The law provides that the "State Department of Education shall contribute to said health insurance fund such portion of the costs of such benefits as may be established by the Board [State Personnel Board] up to three per centum of the total outlay for personal services...." Ga. Laws 1975, pp. 37, 42. Consequently, the department's contribution for benefits is limited in that it cannot exceed three percent of its total outlay for personal services for public school teachers.
(3) Can the State Personnel Board assess the local employers for employers' contributions?
No, the board has not been given the authority or power to assess any local governmental agency for an employer's contribution. The board cannot act beyond the scope of its authority and power. See Op. Att'y Gen. 75-137.
Therefore, it is my official opinion that the health insurance plan for public school teachers of Georgia would cover all teachers defined in subsection 5 of Section 1 of the Georgia Teachers Retirement System Law. Ga. Laws 1943, pp. 640, 641, as amended. Furthermore, it is my official opinion that the State Personnel Board may assess the State Department of Education for contributions which shall not exceed three percent of the department's total outlay for personal services for public school teachers; however, the board may not assess any other governmental agency for an employer's contribution.

OPINION 76-35

To: Commissioner, Department of Banking and Finance

April 16, 1976

Re: Several questions concerning the Georgia bank holding company statutes as recently amended.

[Withdrawn by Op. Att'y Gen. 76-76.]

OPINION 76-36

To: Joint Secretary, State Examilling Boards

April16, 1976

Re: Psychological stress evaluators who are engaged in the business of furnishing information with respect to a person's honesty, integrity, credibility, knowledge and trustworthiness are engaged in the "private detective business" and must be registered or licensed by the Georgia State Board of Private Detective and Private Security Agencies.

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This is in response to your recent request inquiring as to whether psychological stress evaluators must be registered or licensed with the Georgia State Board of Private Detective and Private Security Agencies.
As I understand the use of the term, psychological stress evaluators are persons who are engaged in the business of providing information to their employers about other persons. Specifically, I understand that through the use of certain techniques involving the recording of a person's voice, psychological stress evaluators issue opinions and give information concerning a person's honesty, integrity, credibility, knowledge and trustworthiness as well as other similar information.
Georgia Laws 1973, pp. 40, 45 (Ga. Code Ann. 84-6505), provides that:

"Except as provided in section 84-6504, any person or corporation desiring to carry on a detective business or private security business in this State shall make a verified application in writing to the joint-secretary for a license therefor."

Further, Ga. Laws 1973, p. 40 (Ga. Code Ann. 84-9988), provides that any person who violates the provisions of Ga. Code Ann. Ch. 84-65, the Georgia Private Detective and Private Security Agencies Act, shall be guilty of a misdemeanor and upon conviction thereof shall be punished as for a misdemeanor.
Therefore, if psychological stress evaluators are carrying on a private detective business, they must be licensed or registered with the board.
Georgia Laws 1973, pp. 40, 41 (Ga. Code 84-6502 (b)), states that:

" 'Private detective business' means engaging in business of or accepting employment to obtain or furnish information with reference to:
***
(2) the identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation or character of any person."

As stated above, a psychological stress evaluator does provide information which clearly falls within the ambit of the cited section of Ga. Laws 1973, p. 40 (Ga. Code Ann. Ch. 84-65).
Therefore, it is my opinion that psychological stress evaluators must be licensed or registered with the Georgia State Board of Private Detective and Private Security Agencies.

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OPINION 76-37

To: Secretary of State

April 19, 1976

Re: Authority under Ga. Code Ann. 34-604 (c) extends only to students and employees of the school and does not extend to other employees of the school system.

This is in reply to your request for my opinion as to whether principals and assistant principals of public high schools may, under Ga. Code Ann. 34-604 (c) (Ga. Laws 1964, Extra. Sess., pp. 26, 49; 1968, pp. 871, 873; 1971, p. 270), register persons not employed at that school but who are employed by the school system of which the high school is a part. It is my opinion that the authority granted by Ga. Code Ann. 34-604 (c) is not sufficiently broad to permit that result.
In pertinent part, Ga. Code Ann. 34-604 (c) provides:
"Each principal or assistant principal of every public or private high school and director of each area vocational school ... shall be a deputy [registrar] for the purpose of registering as electors only those qualified applicants who are [1] enrolled students within the principal's school or [2] employed by the school." (Matter in brackets and emphasis added.)
This language clearly conveys authority to register (1) students enrolled at the particular school and (2) those persons who are employed, regardless of the capacity in which they are employed, at the particular school. It does not convey authority to register any others. Hence, it does not convey authority to register students enrolled in another secondary school even if the school is within the same school system nor does it convey authority to register employees of another elementary or secondary school even if the school is within the same school system.

OPINION 76-38

To: Commissioner, Department of Administrative Services

April 21, 1976

Re: The Department of Administrative Services does not have the authority to require other state departments to reimburse the Department of Administrative Services for money paid to state employees because of workmen's compensation claims.
This is in response to your request for my opinion as to whether the Department of Administrative Services has the authority to bill and collect from other state agencies sums of money paid by your depart-

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ment as workmen's compensation claims because of the untimely reporting of those claims to the Department of Administrative Services by these agencies.
As I understand your request, Rule 303 of the Rules and Regulations of the State Board of Workmen's Compensation provides that the failure of an employer or insurer to notify the board and the employee of a rejection of a claim within 60 days after receipt of notice of the accident creates a rebuttable presumption of acceptance of liability. From your question I would presume that in the past this failure to notify the department within 60 days has raised a presumption of liability which the Department of Administrative Services has been unable to rebut even when the claim was not otherwise compensable.
Initially, the rule in question clearly states that the failure to respond only raises a rebuttable presumption of the department's acceptance of liability and thus the department should in every instance be able to at least tLttempt to rebut any inference created by the department's failure to take action within the requisite 60-day period.
However, in response to your primary question, for reasons which I shall set out herein, it is my opinion that in those cases where the department does not take the required action within the 60-day period allowed by the cited rule, the department cannot rebill the agency involved for any losses incurred because of their delinquent reporting.
Article III, Sec. VII, Par. XI of the Constitution of the State of Georgia (Ga. Code Ann. 2-1911) provides that:
"No money shall be drawn from the Treasury except by appropriation made at law."
As you correctly note in your letter, appropriations are made to the Department of Administrative Services expressly for the purpose of paying workmen's compensation claims for state employees. See, e.g., Ga. Laws 1975, pp. 1333, 1339. It further appears that no specific appropriation is made to any other state agency which would enable them to pay workmen's compensation claims. Therefore, even if some vehicle were devised whereby you could bill other state departments, they would have neither the funds nor the authority to pay such bills.
This is not to say, of course, that you are without a remedy. You state in your letter that because the other agencies are not required to pay these claims out of their funds, that they have little or no incentive to make the appropriate timely reports to your department. However, such inaction or negligence on the part of a state employee who fails to make the proper report to the Department of Administrative Services could result in some form of disciplinary action against those employees or in the personal liability of those employees for the loss, particularly in those cases in which the state would have incurred no liability because of the accident had it not been for the late filing. I am sure that

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since such negligence or inefficiency is clearly an avoidable waste of the state's money, the heads of the various agencies involved would be compelled to correct the deficiencies if it were brought to the proper person's attention.

OPINION 76-39

To: State Revenue Commissioner, Department of Revenue

April 21, 1976

Re: Foreclosure sales of tangible personal property conducted by the Small Business Administration through an auctioneer are subject to Georgia sales tax.
This is in response to your request for my opinion on the following:
(1) Is a private auctioneer obligated to collect, and therefore liable for failure to collect, sales tax on the foreclosure sale of tangible personal property?
(2) If the answer to the first question is yes, is that result changed where the auctioneer is conducting such a sale on behalf of the United States Small Business Administration?
In answer to your first question, auctioneers selling tangible personal property are liable for collection and payment of Georgia sales tax. See Regulation No. 560-12-2-.07, Official Compilation Rules and Regulations of the State of Georgia. Additionally, foreclosure sales of tangible personal property are not exempt from sales tax. See Hopkins v. West Publishing Co., 106 Ga. App. 596 (1962).
The answer to your second question depends upon whether sales conducted through an auctioneer by the Small Business Administration, an instrumentality of the Federal Government, enjoy an implied intergovernmental immunity from Georgia sales tax. For reasons which follow, it is my opinion that they do not.
The Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. Laws 1951, p. 360 (Ga. Code Ann. Ch. 92-34A), as amended, imposes liability primarily on the purchaser with secondary liability on the seller to collect and remit the tax. See, e.g., Hawes v. Phillips, 122 Ga. App. 714 (1970). Thus, the only burden on the seller is the collection and remission of the tax. This inconsequential burden does not create an exemption from Georgia sales tax. See Blackmon v. Nichols, 494 F.2d 1179 (5th Cir. 1974).
In Nichols, supra, a trustee opposed collection of Georgia sales tax on a liquidation sale in bankruptcy contending that the tax was an impermissible burden on the bankruptcy process. In response, the court stated:

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"It may be true that although, in its legal incidence, the sales tax is on the purchaser, it has an indirect economic effect upon the bankrupt estate in that the purchaser, assumedly, would have been willing to pay more had he not been obliged to satisfy the tax. Such an indirect economic detriment is not an impermissible burden even were the estate a government instrumentality. Cf. Graves v. New York ex rel. O'Keefe, 1939, 306 U.S. 466, 59 S. Ct. 595, 83 L. Ed. 927." (Emphasis added.) Blackmon v. Nichols, supra, at p. 1181.
It is my opinion that the holding of Nichols controls the instant issue. In summary, it is my opinion that foreclosure sales conducted by the Small Business Administration through an auctioneer are subject to Georgia sales tax.

OPINION 76-40

To: Commissioner of Agriculture, Department of Agriculture

April 22, 1976

Re: The Department of Agriculture may not reimburse purchasers of inspection tax stamps that were issued for commercial feedstuffs pursuant to Ga. Laws 1906, p. 83, as amended, and that were not used prior to the repeal of the provisions of that statute requiring the affixing of such stamps to packaged animal feedstuffs sold in this state.

This is in response to your request for my opinion as to your authority to redeem inspection tax stamps that were previously required to be affixed to packaged commercial feedstuffs pursuant to the nowrepealed provisions of Georgia Laws 1906, p. 83, as amended. Those provisions had imposed an inspection tax upon animal feedstuffs sold in this state, remittance of which was to be made by sellers of the feedstuffs through the purchase of inspection tax stamps from the Commissioner of Agriculture. Ga. Laws 1906, pp. 83, 91, as amended. The stamps could be ordered from the commissioner in various denominations to cover projected sales, and any stamps unused at the end of a selling season were effective and could be utilized in subsequent seasons. Ga. Laws 1906, pp. 83, 93, as amended.
After the original legislation was passed creating the inspection tax and stamps, a series of amendments to the initial statute gradually altered and eventually abolished the inspection tax.
In 1953, the General Assembly authorized a system of reporting tonnage sales and periodic payment of taxes that could be used in lieu of the "prepayment" tax stamp plan. Ga. Laws 1953, Jan.-Feb. Sess., pp. 418, 419. In 1960, the reporting system was legislatively established

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as the sole methodology to be utilized by sellers in remitting inspection taxes, as the legislature expressed the intent to require the reporting system and eliminate the use of stamps. Ga. Laws 1960, pp. 970, 971. Finally, the General Assembly in 1968 repealed the inspection tax provisions altogether (Ga. Laws 1968, p. 288), and in the current Georgia commercial feed law, there exists no inspection fee or tax.
In the specific situation you have described in the opinion request, a dealer who bought inspection tax stamps prior to the abolition of the tax and tax stamp method has requested redemption of a number of stamps he did not or was unable to use. In essence, the dealer is now seeking a refund of voluntary tax overpayments. For the reasons I shall discuss subsequently, such a refund may not be made by the Department of Agriculture.
There is no general statute in this state that affords a taxpayer a remedy for the recovery of taxes erroneously or mistakenly paid. State Revenue Commission v. Alexander, 54 Ga. App. 295 (1936). Moreover, in the absence of a specific statute providing for refunds relative to the tax collected, the express statutory language of Ga. Code (1933) 20-1007 precludes such a recovery. Oxford v. Shuman, 106 Ga. App. 73, 79 (1962). That language states unequivocally:
"Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and cannot be recovered back. ..."
A thorough research of the original 1906 statute and numerous amendments thereto has revealed no legislative authority for redemption or refund of the subject tax stamps. Neither the 1960 and 1968 amendments abolishing first the tax stamp plan and then the tax itself, nor the present commercial feed law (Ga. Laws 1972, p. 10; Ga. Code Ann. Ch. 42-2) make reference to the possible refund of inspection taxes eliminated thereunder. In the absence of a specific provision for refund or redemption of the inspection tax stamps (as is provided, for example, for state cigar tax stamps in Ga. Laws 1967, pp. 563, 570; Ga. Code Ann. Ch. 92-22), it is my opinion that you may not reimburse purchasers of such stamps for the stamps unused during the periods when the tax was imposed. See Op. Att'y Gen. 72-83.
This result is necessarily reinforced by the import of the aforementioned statutory provisions allowing the use of stamps in more than one selling season and effecting the long phasing-out period of the tax stamp system, factors which afforded holders of stamps opportunity to exhaust inventories of stamps voluntarily ordered on the basis of their own projections of sales. Such a factual context does not admit of the exceptional circumstances contemplated by Ga. Code 20-1007

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that would avoid the characterization of the tax stamp purchases as voluntary payments so as to circumvent the proscription against recovery mandated by that section. Strachan Shipping Co. v. Savannah, 168 Ga. 309 (1929).

OPINION 76-41

To: Commissioner of Agriculture, Department of Agriculture

April 26, 1976

Re: Individuals holding warehouse licenses issued pursuant to the Georgia State Warehouse Act (Ga. Laws 1953, Nov. Sess., p. 412, as amended; Ga. Code Ann. Ch. 111-5) and bonded in accordance therewith must acquire a separate grain dealer's license and surety bond as required by House Bill1422 (Ga. Code Ann. 5-649 to 5-664) passed by the 1976 General Assembly if engaging in the activities defined by House Bill1422 as that of a grain dealer. The present language of House Bill1422 does not require a grain dealer operating in multiple locations to post an individual surety bond (each in amounts of up to a statutory maximum of $100,000) for each location of activity.

You have requested my opinion as to the applicability of the surety bonding provisions of House Bill 1422 (Ga. Code Ann. 5-649 to 5-664), passed in the 1976 General Assembly to regulate grain dealers in this state, to certain situations that have confronted your office in the initial stages of implementation of the Act. Specifically, you have inquired:
(1) Whether individuals storing grain and licensed and bonded pursuant to the Georgia State Warehouse Act, Ga. Laws 1953, Nov. Sess., p. 412, as amended (Ga. Code Ann. Ch. 111-5), are required to secure separate licenses and surety bonding to comply with the recently enacted House Bill 1422 if they are engaged in activities defined as that of grain dealers in House Bill1422; and
(2) Whether individuals operating as grain dealers, as defined by House Bill 1422, in multiple locations throughout the state are required to post individual surety bonds (each in amounts of up to a statutory maximum of $100,000) for each location of activity.
An examination of the language of the referenced 1976 legislation designed to regulate grain dealers and the Georgia State Warehouse Act will prove dispositive of your first inquiry. Sections 3 and 4 of House Bill1422 expressly require individuals who intend to engage in the activities of a grain dealer, as defined by that Act, to apply for and obtain a license from the Commissioner of Agriculture before commenc-

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ing such activities. Section 6 of the Act (Ga. Code Ann. 5-654) prescribes the bonding requirements to be satisfied by license applicants:

"Before any license shall be issued the applicant shall make and deliver to the commissioner a surety bond in the amount of 12 percent of the dollar value of the business transacted for the highest month of sales during the previous calendar year; provided, that, the minimum amount of such bond shall be $5,000 and the maximum amount of such bond shall be $100,000 ... Such bond .. shall be conditioned to secure the faithful accounting for, and payment to, the producers, their agents or representatives, of the proceeds of all grain handled or sold by such dealer." (Emphasis added.)

The aforementioned licensing and bonding mandates are impressed upon "grain dealers," a status defined in Section 1 (a) of the Act (Ga. Code Ann. 5-649), to-wit:

" 'Grain dealer' means any person, association, itinerant dealer, co-partnership or corporation engaged in the business of buying, receiving, selling, exchanging, negotiating, or soliciting the sale, resale, exchange or transfer of any grain purchased from the producer or his agent or representative or received on. consignment from the agent or representative or received on consignment from the producer or his agent or representative or received to be handled on a net return basis from the producer." (Emphasis added.)

The absolute and uncompromising tenor of these provisions persuades me to believe that unless an express exclusion exists, all persons engaged in grain dealing, as defined above, including warehousemen, must obtain a license as a grain dealer and post the necessary security. The only exceptions of which I am aware are legislatively decreed in Section 2 of the 1976 Act: (1) Farmers in the sale of grain grown by themselves; and (2) All persons who buy for cash (i.e., who pay at the time of purchase in currency, certified check, cashier's check or its equivalent). (Ga. Code Ann. 5-650.)
Inasmuch as the General Assembly did undertake the consideration and designation of exclusions from the requirements of the Act, I must conclude that all undertakings meeting the statutory definition of "grain dealer" and not falling within one of the aforementioned exclusions must comport to the Act's licensing and bonding requirements. Accordingly, it is my opinion that House Bill1422 will apply separately to warehousemen in the state who are licensed and bonded under the Georgia State Warehouse Act, Ga. Laws 1953, Nov. Sess., p. 412, as amended (Ga. Code Ann. Ch. 111-5), if those warehousemen are en-

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gaged in the marketing functions specified in Section 1 (a) of House Bill1422.
Such a construction is necessitated by the disparity of activities sought to be regulated by the two statutes. The licensing and bonding provisions of the Warehouse Act pertain exclusively to the storage functions performed by a bonded grain warehouse (Ga. Laws 1953, Nov. Sess., pp. 412, 413, 416 and 417 as amended, Ga. Code Ann. 111-502, 111-505, and 111-506); and, indeed, the Warehouse Act flatly pronounces that agricultural products delivered to a warehouse under that Act shall be presumed to be delivered for storage. Ga. Laws 1953, Nov. Sess., pp. 412, 419 (Ga. Code Ann. 111-511). The licensing and bonding provisions of House Bill1422, as aforementioned, are based upon and pertain exclusively to the marketing aspects of grain dealing. The bonding requirements are computed according to the dollar volume of grain dealt and secure the proceeds of grain handled or sold by the licensee-dealer. On the contrary, the warehouse bonding provisions are computed according to the storage capacity of the warehouse (which, incidentally, is the "licensee") and secure the grain or commodities stored. Such a dichotomy convinces me that the two Acts were designed to deal with separate functions and apply separately and equally to an individual engaged in both types of activities.
Your second query lends itself to a more direct conclusion. Insofar as House Bill1422 requires only one license to issue to each grain dealer (Sections 3 and 4) and inasmuch as Section 6 of the Act requires only that the license for each applicant be supported by a bond in the amount of 12 percent of the dollar value of the business transacted for the highest month of sales during the previous calendar year (provided, the minimum amount shall be $5,000 and the maximum shall be $100,000), the apparent ordinary significance of the words of the statute (and the appropriate statutory construction of that language) is that only one bond is required of each grain dealer and that the one bond is subject to the $100,000 maximum, regardless of the multiple number and locations of the dealer's operations. See Ga. Code 102-102 (1); Citizens & Southern National Bank v. Fulton County, 123 Ga. App. 323, 326 (1971). The language of House Bill1422 differs substantially from the Georgia State Warehouse Act wherein the individual warehouses are required to be licensed, Ga. Laws 1953, Nov. Sess., pp. 412, 416 (Ga. Code Ann. 111-505), and each licensed warehouse must be secured by a surety bond based upon the storage capacity of that individual warehouse. Ga. Laws 1953, Nov. Sess., pp. 412, 417, as amended (Ga. Code Ann. 111-506). Consequently, you may demand only one surety bond in an amount of up to $100,000 of each licensed grain dealer.

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OPINION 76-42

To: Commissioner, Department of Administrative Services

April 30, 1976

Re: The obligation of the Department of Administrative Services to pay for utilities at an established rate is not affected by the fact that the sums paid may include or reflect taxes paid by the provider of the services to a municipality.

This is in response to your request for my opinion as to whether the Department of Administrative Services may pay to Southern Bell Telephone and Telegraph Company a fee for services rendered which includes an amount which is subsequently paid to the City of Atlanta as a franchise tax.
Evidently the City of Atlanta has exercised its authority, contained in Ga. Code Ann. 69-310 (Ga. Laws 1962, pp. 140, 141; 1973, pp. 778, 779), to grant a franchise to Southern Bell Telephone and Telegraph Company which allows that company the use and occupancy of the streets of Atlanta in return for a franchise fee. The Southern Bell Telephone and Telegraph Company presumably has received permission from the Georgia Public Service Commission to pass this franchise fee on to its customers. Your inquiry addresses the issue of whether the state, through the Department of Administrative Services, has the authority or is required to pay that portion of its bill which is attributable to this franchise fee.
The Department of Administrative Services, pursuant to the authority contained in Ga. Laws 1937, pp. 503, 505, as amended (Ga. Code Ann. 40-1902 (C)), is authorized to:
"Contract for all telephones, telegraph, electric light, power, postal and any and all other contractual purchase and need (sic) of the State Government, or any of its departments, institutions or agencies; or in lieu of such contract to authorize any department, institution, or agency to purchase or contract for any or all such services."
Presumably, the Department of Administrative Services had made some arrangement with the Southern Bell Telephone and Telegraph Company to provide telephone services to the state and has agreed to pay for these services at some specified rate, established by the Public Service Commission, which the department clearly has the authority to do.
The question of the composition of the rate or what the Southern Bell Telephone and Telegraph Company does with the funds after they

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are paid to that company does not affect our liability to pay the rate allowed by the Public Service Commission.
An analogous question has been considered and answered in Op. Att'y Gen. 73-51, a copy of which is attached. In that instance, the British Consulate, which was exempt from ad valorem property taxes pursuant to a consular agreement between the United States and the United Kingdom of Great Britain, claimed that it could not be required to pay that portion of its rent which was directly attributable to the landlord's property tax. However, in that case I said:
"A tax exemption can only operate at the point where the legal incidence of the tax lies regardless of where the economic burden of the tax falls."
Thus, my conclusion is that while the state might not be required to pay such a franchise fee or other tax directly to the City of Atlanta, in those situations where the state is paying money to the Southern Bell Telephone and Telegraph Company, and that company is in turn remitting the money to the City of Atlanta as a franchise fee, it cannot be said that the state is the entity which is subject to the legal incidence of the tax so that it could successfully assert an exemption from such fees.
Therefore, it would be my official opinion that the state is required to pay to the Southern Bell Telephone and Telegraph Company, for services rendered, that sum which is established by that company with the concurrence of the Public Service Commission, and the state's obligation to pay is not affected by the fact that the rate may include a part of the franchise fee owned by the Southern Bell Telephone and Telegraph Company to the City of Atlanta.

OPINION 76-43

To: Joint Secretary, State Examining Boards

April 30, 1976

Re: Polygraph examiners, when engaged in activities directly related to their occupation and trade, are not required to be licensed by the Georgia State Board of Private Detective and Security Agencies.

This is in response to your recent request for my opinion as to whether polygraph examiners licensed by the State of Georgia are also required to be registered with the Georgia State Board of Private Detective and Security Agencies.
Georgia Laws 1973, pp. 40, 41 (Ga. Code Ann. 84-6502), defines a private detective as a person engaged in the business of accepting employment to obtain or furnish information with reference to:

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" ... the identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation or character of any person."
Using the generally accepted definition of what a polygraph examiner does, that is, examining a person's cardiovascular and respiratory patterns for the purpose of detecting truth or deception, it would appear that polygraph examiners would fall within the definition of a person who conducts a private detective business, and thus such person would be required to be licensed by the Georgia State Board of Private Detective and Security Agencies.
However, the General Assembly has in fact provided for the separate licensure of polygraph examiners in Ga. Laws 1968, p. 1217 (Ga. Code Ann. Ch. 84-50). In Ga. Laws 1968, pp. 1217, 1222 (Ga. Code Ann. 84-5009 (a)), the General Assembly specifically provided that:
"When the Board (of Polygraph Examiners) is satisfied that the applicant meets the requirements set out in section 84-5007 for a polygraph examiner the Board shall issue and deliver to such applicant a license to conduct polygraph examinations."
It is a cardinal rule of statutory interpretation that the intention of the General Assembly shall be effectuated in interpreting all statutes. Had the General Assembly intended to repeal Ga. Laws 1968, p. 1217 (Ga. Code Ann. Ch. 84-50), when they enacted Ga. Laws 1973, p. 40 (Ga. Code Ann. Ch. 84-65), they would have included specific language to that effect. Further, had the General Assembly intended to require that polygraph examiners be licensed both by the Board of Polygraph Examiners and by the Georgia State Board of Private Detective and Security Agencies, they would have presumably so indicated when the Georgia State Board of Private Detective and Security Agencies was created.
Finally, it is apparent that the purpose of licensure of persons engaged in trades and professions is to protect the public by insuring that persons who engage in any particular trade or profession meet certain qualifications and standards. Georgia Laws 1968, p. 1217 (Ga. Code Ann. Ch. 84-50), fulfills this purpose with respect to polygraph examiners. The qualifications contained in Ga. Laws 1968, p. 1217 (Ga. Code Ann. Ch. 84-50), certainly are as detailed as the requirements for license as a private detective with respect to the applicant's personal qualifications and, in fact, may be more so in that they require some proof of expertise in the field of polygraphy.
Therefore, it is my official opinion that persons licensed by the Board of Polygraph Examiners, when conducting activities related to the trade for which they have been licensed, may not be required to

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be licensed by the Georgia State Board of Private Detective and Security Agencies.

OPINION 76-43.1

To: Commissioner, Department of Human Resources

May 6, 1976

Re: Section 2 of Act No. 869, approved March 5, 1976, does not negate the rule making powers of the Board of Human Resources.

This is in response to your request for my official opinion as to the effect of Section 2 of Act No. 869 (Ga. Laws 1976, p. 344; Ga. Code Ann. 89-953 to 89-955) [hereinafter "the Act"], approved March 5, 1976, on the powers of the Board of Human Resources [hereinafter "the board"], which was created by the legislature to establish the general policy to be followed by the Department of Human Resources, Ga. Laws 1972, p. 1069; Ga. Code Ann. Ch. 99-35.
Inasmuch as the courts of this country have long recognized the right of administrative bodies to make rules and regulations to carry into effect their statutory authority, Glustrom v. State, 206 Ga. 734, 736 (1950), you are properly concerned as to whether or not this rule making power of the board has been negated by Section 2 of the Act, which provides as follows:
"Section 2. No member of any boards, commissions, or authorities created by general statute shall enact any rules or regulations or publicize such as being general laws and such rules and regulations shall in no way have effect of laws."
At first glance, this language might appear to repeal by implication1 the rule making authority of the board, without which, as you note, the various programs of the Department of Human Resources would be virtually unmanageable. However, it has long been a rule of statutory construction in Georgia that the law does not favor repeal of a statute by implication of later legislation, Erwin v. Moore, 15 Ga. 361 (1854), and that in order to bring about such a repeal, the legislative intent must be clear, manifest, and irreconcilable with an intent not to repeal. Connor v. 0'Brien, 198 Ga. 221 (1944); see also, annotations under the catchword "implication" following Ga. Code Ann. 2-1916 (Ga. Const., Art. III, Sec. VII, Par. XVI). For the reasons set forth in the following discussion, I do not think the Act need be construed so as to effect such a disfavored repeal by implication.
1 The Act does not specifically repeal any previous law; its final section, Section 4, is a standard repealer clause: "All laws and parts of laws in conflict with this Act are hereby repealed."

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In the first place, the title 2 of the Act gives no indication that a portion of the body of the Act purports to take away the rule making authority of all boards, commissions, and authorities of State Government; thus the question arises as to whether this violates Art. III, Section VII, Paragraph VIII of the Georgia Constitution, which states:
"No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof." Ga. Code Ann. 2-1908.
This paragraph of the Georgia Constitution was designed for two purposes: the prevention of surreptitious legislation typified by the ill-famed "Yazoo Lands Fraud," and the prevention of "omnibus" bills containing many adverse matters. Camp v. MARTA, 229 Ga. 35, 38 (1972). Although it is not required that the title contain an exact synopsis of the law itself, it is required that the matter following the enacting clause be definitely related to what is expressed in the title, and have a natural connection to the main object of the legislation. Williamson v. Housing Authority of Augusta, 186 Ga. 673 (1938). I cannot see that there is a natural connection between imposing a general code of ethics upon board members and concomitantly stripping them of rule making authority. Nor will the language '"and for other purposes" serve to obviate the disparity between the Act and title in this instance, for it is well settled that those words, too, only encompass provisions which are germane to the general subject matter embraced in the title of an Act. Cady v. Jardine, 185 Ga. 9 (1937).
Moreover, since the Georgia Constitution intended to protect the people against covert or surprise legislation, I think it appropriate to ask a question similar to one asked by the Georgia Supreme Court in Blair v. State, 90 Ga. 326 (1892): "Would the title put anyone, either in the General Assembly or out of it, on notice as to the contents of the legislation?" In this instance, I think the answer to such a question would be in the negative.
Therefore, in view of the above, I believe the courts could rule the Act constitutionally defective.3 A legislative enactment which is un-

2 The Act is entitled "An Act to provide for a code of ethics for members of all boards, commissions and authorities of State government created by general statute; to pro-
vide for the removal of members who violate said code of ethics; to provide for hearings; to provide for vacancies; to repeal conflicting laws; and for other purposes." a This is not to say, however, that the entire Act would be void. It is a familiar concept
that where an Act of the legislature contains a portion which is invalid, the Act does not fall in toto if there is enough left to carry out the legislature's intention. See Fuller v. State, 232 Ga. 581, 591 (1974) (Hall, J., concurring), and cases cited therein. I see no reason why, if Section 2 were excised from the Act, the remainder would not be
upheld as valid legislation. The remaining substantive sections of the Act, Section 1 (subtitled "Code of Ethics") and Section 3 (subtitled "Hearing; Removal from Office;
Vacancies") seem not only to be consonant with the title but also to provide ample
detail to carry out the legislature's intention.

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constitutional cannot repeal by implication a prior statute upon the subject, since a declaration of invalidity would eliminate the conflict which is the essential element of the repeal. See, Sutherland, STATUTORY CONSTRUCTION, 23.24.
Furthermore, there is a second construction of Section 2 which would also preclude any deleterious effect upon the board's rule making authority. You will note that, as quoted above, Section 2 simply says that "no member" of any board, etc., shall enact or publish rules. I know of no Georgia law which gives a single member of a board such power to act alone; on the contrary, joint authority given to any number of persons, or officers, may be executed by a majority of them, unless it is declared otherwise. Ga. Code Ann. 102-102 (5); Aliotta v. Gilreath, 226 Ga. 263, 265 (1970). Thus, Section 2 may be viewed, alternatively, not as being unconstitutional, but as merely restating the obvious: that no single member of a board may attempt to usurp the power of the board as a whole to establish policy matters. This latter construction might well be the one chosen by the courts, since it comports with the rule that where a statute is susceptible of more than one meaning, it should be interpreted consistently with the State Constitution. Forrester v. Culpepper, 194 Ga. 744 (1942).
At any rate, since both of the above interpretations militate against the "repeal by implication" concept, it is my official opinion that Section 2 of Act No. 869, approved March 5, 1976, does not negate the rule making powers of the Board of Human Resources.

OPINION 76-44

To: State Superintendent of Schools

May 7, 1976

Re: School funds cannot lawfully be expended to provide pupils with full medical care.

This is in reply to your letter of April 21, 1976, in which you refer to the desire of some local boards of education to contract (and use school funds to pay for) a rather broad package of medical and health service for public school pupils. The package would include examinations for such things as orthopedic deviation, upper and lower respiratory deviations, growth and development deviations, nutritional deficiencies, dental appraisals, abnormal skin, emotional symptoms, etc., plus follow-up physical and mental health care. Your question is whether public school funds can be used to provide such health care.
Your question brings to mind similar inquiries concerning (1) the propriety of using public school funds to support school lunch programs, and (2) whether public school funds can be used to pay for a

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child's appendectomy. In each of these situations we opined that an expenditure of public school funds for the service in question, however worthy and beneficial, was simply not lawful under the provisions of our State Constitution and statutes which restrict the use of school funds to school or educational purposes. See Ops. Att'y Gen. 66-166, 74-61. As to the school lunch controversy you will probably recall that shortly after our opinion was rendered, the matter was taken to the courts upon the theory that school lunches provided by school funds made pupils "more efficient" in their classroom studies and hence was "incidental" to the furtherance of education (the plaintiffs relying on Supreme Court of Georgia decisions to the effect that the term "for educational purposes" is broad enough to cover all things "necessary or incidental to the furtherance of education"). This argument was rejected by the Supreme Court of Georgia. See Wright v. Absalom, 224 Ga. 6 (1968). In that case, the court made it abundantly clear that the fact that the objective of the proposed expenditure was to make pupils "more efficient" and that it was a worthy and beneficial undertaking was not enough. As the court put it:
". . . the mere fact that the school lunch program may render pupils more efficient does not make it 'for educational purposes,' and further if school funds can be expended for feeding lunches to pupils, why also would not the providing of proper clothing, suitable dwellings, proper medical attention or breakfast and dinner for pupils be 'for educational purposes'? The answer is obvious. There would be no limit to the purposes for which state taxes could be expended.
"While the feeding of children is a worthy and beneficial undertaking and may well enhance the opportunities for a better learning situation, we are forced to the conclusion that eating is not education." Wright, at pp. 10, 11. (Emphasis added.)
The problem was subsequently dealt with by a tightly drawn constitutional amendment which authorized the expenditure of school funds for school lunch purposes without opening a "Pandora's Box" with respect to breakfast, dinner, clothing, health, housing, etc. See Art. VII, Sec. II, Par. I, and Art. VII, Sec. IV, Par. II, of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5501, 2-5702).
With respect to health care and medical services, the court's use of the term "proper medical attention" in Absalom, as an example of how school funds might be improperly diverted from their intended use, unquestionably reflects the court's awareness of the analogy. It is based on this analogy that we concluded in Op. Att'y Gen. 74-61 (a copy of which is attached for your ready reference) that school funds could not be used to pay for a child's appendectomy.

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It should be reiterated that I am not saying that school funds can never be used for any health or medical services for pupils. As pointed out in Op. Att'y Gen. 74-61, it is my opinion that some forms of medical service have such a direct and substantial relationship to the educational process as to render it rather unlikely that a court would strike the same, at least where arguably authorized by statute. Examples here would be the examination of a pupil's eyes and ears (Cf. Ga. Code Ann. 32-445 (Ga. Laws 1972, p. 214; 1976, p. 616)) or the immunization of pupils from a disease which has reached epidemic proportions (Cf. Ga. Code Ann. 32-911 (superseded by Ga. Laws 1968, p. 1436)). The first mentioned might well be held a permissible expenditure of school funds on the ground that it is an essential part of the process of educational planning-which needs answers to such questions as should the pupil be placed in a "special education class," does he suffer from a "learning disability," or does he need glasses or a hearing aid? The second, of course, goes to the ability of the school to function. If everyone is absent because of illness, it cannot operate.
Wherever the line might be drawn in this concededly nebulous area, I think it safe to say that under Absalom, and in line with the opinion expressed in Op. Att'y Gen. 74-61, it is my opinion that the courts ,would almost certainly conclude that the extremely broad package of medical services to which you refer in your letter would be far beyond the pale and that an expenditure of school funds in support of the same would be violative of Art. VII, Sec. II, Par. I, and Art. VII, Sec. IV, Par. II of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5501 and 2-5702) as well as of Ga. Code Ann. 32-942 (Ga. Laws 1919, pp. 288, 333; 1969, p. 721; 1975, pp. 94, 95), for the reasons stated in Op. Att'y Gen. 74-61.

OPINION 76-45
To: Commissioner, Department of Transportation May 10, 1976
Re: Performance of a duty imposed by the General Assembly which involves the exercise of discretion may not, absent specific authority, be delegated to another.
You have recently asked for my opinion as to whether you may designate a member of your staff to discharge your duties as a member of a Board of Directors of the Metropolitan Atlanta Transit Authority on those occasions when it is impossible for you to attend board meetings personally.
The Metropolitan Atlanta Rapid Transit Authority and its Board of Directors were created by the General Assembly. Ga. Laws 1965,

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p. 2243, as amended. The MARTA Board of Directors was enlarged in 1976, the General Assembly providing, in part, that:
"Three members, representing the State, shall be as follows: the Commissioner of the Department of Transportation who shall be an ex officio member; the State Revenue Commissioner who shall be an ex officio member; and the Executive Director of the State Properties Commission who shall be an ex officio member." H.B. 1585 (1976 Session) (Ga. Laws 1976, pp. 217, 218).
The General Assembly has not authorized the Commissioner of the Department of Transportation, serving as an ex officio member of the Board of Directors of MARTA, to substitute another in his place for the discharge of his duties on the MARTA Board.
One who is required to exercise discretion or judgment in the discharge of a duty imposed upon him by the legislature may not entrust the performance of the duty to another without the consent of the General Assembly. Mobley v. Marlin, 166 Ga. 820 (1928). Unless the power to substitute another in his place has been conferred upon him, the person who is required to act may not delegate his duties to another. Horton v. The State, 112 Ga. 27 (1900).
Discharge of the duties of a member of the Board of Directors of MARTA necessarily requires the exercise of judgment and discretion. The General Assembly not having conferred upon you the power of substitution, it is my official opinion that you may not designate a member of your staff to discharge your duties as a member of the Board of Directors of the Metropolitan Atlanta Rapid Transit Authority.
Your remaining inquiry has been treated in an extensive memorandum published by the Law Department on April 22, 1976, a copy of which is enclosed.

OPINION 76-46

To: Governor of Georgia

May 11, 1976

Re: Persons engaged in rendering health services may not comprise more than seven members of the Board of Human Resources.

This is in reply to your request for my opinion concerning the qualification for membership on the Board of Human Resources, created by Ga. Laws 1972, p. 1069 (Ga. Code Ann. Ch. 99-35). Specifically, you ask whether there is any limitation under state law limiting the number of members of that board who are engaged in providing health services.
Section 2 of Ga. Laws 1972, p. 1069, provides:

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"There is hereby created a Board of Human Resources which shall establish general policy to be followed by the Department of Human Resources .... Said Board ... shall consist of fifteen members . . . . Seven members of the Board shall be engaged professionally in rendering health services, and at least five of these seven shall be licensed to practice medicine . . . ."
However, the same statute also provides:
"Those members [of the Board] engaged in rendering health services shall comprise no more than seven members of the total membership of the Board." Ga. Code Ann. 99-3502.
Given the responsibilities of the board and the relationship of those responsibilities to the pecuniary interests of those providing health services (see Ga. Const., Art. I, Sec. I, Par. I (Ga. Code Ann. 2-101); Ga. Code Ann. 89-916 (Ga. Laws 1956, pp. 60, 62)), it is my official opinion that the foregoing limitation, which is entirely clear in its statement, precludes appointment to the Board of Human Resources of more than seven members who are engaged in providing health services. Any person engaged in providing health services whose appointment to the board causes that limitation to be exceeded could not lawfully hold office and would be subject to removal.

OPINION 76-47

To: Acting State Commissioner of Personnel Administration

May 11, 1976

Re: The State Commissioner of Personnel Administration is empowered to enter into an agreement with the EEOC whereby members of the commissioner's staff would investigate certain charges filed with the EEOC.

This is in response to your recent request for my opinion concerning whether the State Merit System of Personnel Administration is empowered to enter into an agreement with the Equal Employment Opportunity Commission (hereinafter "EEOC") regarding the investigation of charges of unlawful employment practices against state agencies. Specifically, your question, as I understand it, is whether the State Commissioner of Personnel Administration (hereinafter sometimes referred to as "commissioner") is empowered to enter an agreement with the EEOC whereby members of the commissioner's staff would investigate, in accordance with EEOC rules and regulations, charges of unlawful employment practices filed against state agencies with the EEOC.

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The commissioner, like other state officials or agencies, has only such powers as the General Assembly has expressly, or by necessary implication, conferred upon him. Bentley v. State Board of Medical Examiners, 152 Ga. 836, 838 (1921). Implied powers are limited to those reasonably necessary to execute the express powers conferred by the General Assembly. Id. The express powers of the commissioner, pertinent here, are set forth in Ga. Laws 1975, p. 79, as amended (Ga. Code Ann. 40-2201 et seq.), wherein it is provided that one of his duties and responsibilities shall be:
"To insure compliance [by the State Merit System] with all applicable state and federal statutes and regulations concerning discrimination in employment, personnel administration and related matters." Id. at 89 (Ga. Code Ann. 40-2205 (b) (7)). [Bracketed matter added.]
To the extent, therefore, that entering into an agreement of the type in question is reasonably necessary for the commissioner to execute his expressly conferred power of insuring compliance by the State Merit System with Title VII of the Civil Rights Act of 1964, as amended, the power to enter into such an agreement can be said to be necessarily implied. However, in that the State Merit System does not cover the unclassified service, Ga. Laws 1975, pp. 79, 81 (Ga. Code Ann. 40-2202 (a) (2)), I do not believe that from the above quoted express power of the commissioner, there can be implied, as being reasonably necessary to execute such express power, the power to enter into an agreement with the EEOC with respect to the investigation of charges pertaining to positions in the unclassified service.
Based on the foregoing, it is my official opinion that the State Commissioner of Personnel Administration is empowered to enter into an agreement with the EEOC whereby members of the State Commissioner's staff would investigate, in accordance with EEOC rules and regulations, unlawful employment practices filed against state agencies with the EEOC, provided such investigations pertain to the classified service of the State Merit System.

OPINION 76-48

To: Secretary of State

May 17, 1976

Re: Tax collector performing functions set forth in Code 34-604 (b) is not subject to disqualification established under Code 34-605.

This is in reply to your request for my opinion on the following question:

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"Can a person presently serving as a Tax Collector maintaining the voter registration records in his office as provided in Sec. 605 run for and hold the office, if elected, of Judge of the Probate Court in the 1976 General Primary and General Election without resigning or transferring the registration records six months prior to the date of the General Primary or General Election?"
Georgia Code Ann. 34-605 (Ga. Laws 1964, Extra. Sess., pp. 26, 49) provides that the ineligibility of registrars and deputy registrars "shall not apply to a tax commissioner or tax collector." It is thus my opinion that a tax collector performing the functions set forth in Ga. Code Ann. 34-604 (b) (Ga. Laws 1964, Extra. Sess., pp. 26, 49) is not subject to the disqualification imposed by Ga. Code Ann. 34-605.

OPINION 76-49
To: Commissioner, Department of Transportation May 18, 1976
Re: Property leased by the City of Columbus and utilized as a marina is not subject to the provisions of Section 4 (f) of the Department of Transportation Act of 1966.
This is in response to the request of Deputy Commissioner Emory G. Parrish for my official opinion as to whether a certain parcel of land leased by Georgia Power Company to the City of Columbus, and used as a marina by the city, is subject to the requirements of Section 4 (f) of the Department of Transportation Act of 1966. 49 U.S.C. 1653 (f); 23 U.S.C. 138. For the reasons set out below, it is my official opinion that the land in question is not subject to the Section 4 (f) requirements.
Section 4 (f) of the Department of Transportation Act of 1966 provides in pertinent part that:
" ... the Secretary [of Transportation] shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance ... unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use." 49 U.S.C. 1653 (f); 23 U.S.C. 138. [Matter in brackets added.]
The requirements of this section are applicable only to "publicly owned" land. See Committee to Stop Route 'l v. Volpe, 346 F. Supp.

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731, 741-42 (D.C. Conn. 1972); 23 C.F.R. 771.19 (a). The question thus becomes whether, under Georgia law, the land leased by the City of Columbus and used as a marina is publicly owned. See U. S. v. Crosby, 11 U.S. (7 Cranch) 115, 116 (1812); Sears v. Minchew, 212 Ga. 417, 419 (1956); Chidsey v. Brookes, 130 Ga. 218, 220 (1907).
On November 2, 1959, Georgia Power Company and the City of Columbus entered into a landlord-tenant relationship, whereby the city leased from Georgia Power Company certain described property contiguous to Lake Oliver for a term of 25 years. The consideration for the lease was $10 per year and the city's payment of an amount equal to all ad valorem taxes assessed against the rented premises annually. No estate vested in the city, which received only a usufruct, transferable only in limited situations and not subject to levy and sale.
Although the lease is renewable for a second 25-year term upon the same consideration and conditions, the lease terminates if the city ceases to use the premises for public park and recreational facilities. Additionally, both parties have the right to terminate the lease prior to the expiration date.
Although Georgia Power Company is a public utility, the property to which it holds title is not public property. See Hospital Authority of Albany v. Stewart, 226 Ga. 530, 534-35 (1970); Sheffield v. State School Building Authority, 208 Ga. 575, 583 (1952); Board of Trustees of the Gate City Guard v. Atlanta, 113 Ga. 883 (1901). Thus, the property in question is publicly owned only if the lease from Georgia Power Company to the City of Columbus makes the city the owner.
The creation of a landlord-tenant relationship for more than five years creates an estate for years, unless the contrary is agreed upon by the parties and evidenced by the contract. Warehouses, Inc. v. Wetherbee, 203 Ga. 483, 484-85 (1948). Where the evidence shows the conveyance of a lesser interest, or where the landlord-tenant relationship is created for a term of less than five years, no estate passes out of the landlord. The tenant has only a usufruct, which may not be conveyed without the landlord's consent and which is not subject to levy and sale. Ga. Code (1933) 61-101. The tenant has only a limited right of use and possession. Ga. Code (1933) 61-109.
Although the term "owner" is subject to no precise definition, the Georgia courts generally do not recognize a tenant as an owner. See Brandywine Townhouses, Inc. v. Joint City-County Board of Tax Assessors, 231 Ga. 585 (1974). Only where the tenant is the possessor of an estate for years for a period of longer than 20 years have the courts referred to that tenant as an owner. See Wilson Mfg. Co. v. ChamberlinJohnson-DuBose Co., 140 Ga. 593 (1913). Even then the tenant was held to be the owner only of an estate for years and not of the premises. See Alwood v. Commercial Union Assurance Co., 107 Ga. App. 797 (1963).

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The City of Columbus holds less than an estate for years, a mere usufruct, terminable on six months' notice, which cannot be levied upon or sold. The city has only the limited rights of possession and use, and no estate has passed out of Georgia Power Company. Ga. Code Ann. 61-101, 61-109. Under the Georgia law the City of Columbus is not the owner of this property. Brandywine Townhouses, Inc. v. Joint City-County Board of Tax Assessors, 231 Ga. 585 (1974); Alwood v. Commercial Union Assurance Co., 107 Ga. App. 797 (1963). Therefore, it is my official opinion that the property on the shore of Lake Oliver leased by the City of Columbus from Georgia Power Company is not publicly owned and is not subject to the provisions of Section 4 (f) of the Department of Transportation Act of 1966. Committee to Stop Route 7 v. Volpe, 346 F. Supp. 731, 741-42 (D.C. Conn. 1972).
This position is supported by the fact that, as recognized in the recital of consideration, the parties intended that ad valorem taxes would continue to be paid on this property. However, publicly owned property is exempt from taxation. Ga. Code Ann. 92-201 (Ga. Laws 1878-9, p. 33; 1913, p. 122; 1919, p. 82; 1943, p. 348; 1946, p. 12; 1947, p. 1183; 1955, pp. 262, 263; 1965, pp. 182, 183; 1973, p. 934).

OPINION 76-50

To: Commissioner, Department of Natural Resources

May 19, 1976

Re: Where the purpose of a conservation easement is to preserve land or water areas predominantly in their natural, scenic, landscape or open condition or in agricultural, farming, forest or open space use, it is not essential that the land be located within an historic district.

This responds to your request for my opinion construing the Facade. and Conservation Easements Act of 1976 (Ga. Laws 1976, Act 1280; approved March 31, 1976) (Ga. Laws 1976, p. 1181; Ga. Code Ann. 85-1406 to 85-1410), which establishes procedures governing the acquisition of both facade easements and conservation easements. Specifically, your question relates to the definition of a "conservation easement," which is set forth in the Act as follows:
"(c) 'Conservation easement' means a restriction or limitation on the use of real property expressly recited in any deed or other instrument of grant or conveyance executed by or on behalf of the owner of land described therein whose purpose is to preserve land or water areas predominantly in their natural, scenic, landscape or open condition or in agricultural, farming, forest or open

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space use or to return land or water areas to such conditions or uses when such land is located within a historic district provided for in (a) above." (Emphasis added.)
From the above, it appears clear that a conservation easement may have two purposes: (1) to preserve land or water areas predominantly in their natural, scenic, landscape or open condition or in agricultural, farming, forest or open space use, or (2) to return land or water areas to such conditions or uses. You wish to know whether the clause "when such land is located within a historic district provided for in (a) above," 1 as used in the definition, refers to and qualifies both of these purposes.
I think there is no question but that when the purpose of the easement is "to return land or water to such conditions," then the land must be located within an historic district. However, your question is whether the land to which such an easement attaches must also be located within an historic district when the purpose of the easement is "to preserve land or water areas predominantly in their natural, scenic, landscape or open condition or in agricultural, farming, forest or open space use."
The goal in construing any statute, as you have asked me to do here, is always the ascertainment of the General Assembly's intent in enacting the particular statute. Ga. Code Ann. 102-102 (9); J.A.T. v. State of Georgia, 133 Ga. App. 922 (1975); Thacker v. Morris, 196 Ga. 167 (1943). Based upon this rule, I am for two reasons impelled to the view that when the purpose of the easement is to preserve land or water areas as specified in the definition set forth above, it is not imperative that the land be located within an historic district. First, if the General Assembly had intended such to be the case, it could easily have specifically inserted the clause "when such land is located within an historic district" following the purpose relating to the preservation of land and water areas.
1 The phrase "historic district" is actually referred to and provided for in paragraph (b) of Section 2 of the Act, defining the phrase "facade easement," rather than in paragraph (a). No mention of an historic district is made in paragraph (a), defining the term "facade." However, I have ascertained that this Act as originally introduced in the House of Representatives did not include a definition of "facade," and that the definition of "facade easement" was originally found in paragraph (a). Rather, the definition of "facade" was added by a floor amendment, which made this definition a part of paragraph (a) and moved the definition of "facade easement" to paragraph (b). Apparently, through oversight, the reference to paragraph (a) in the definition of "conservation easement" was not also amended as was appropriate in order to comport with the restructuring of paragraphs in the floor amendment. However, a cardinal rule of statutory construction is that a transposition of words may be resorted to when a sentence or clause is without meaning as it stands. Ga. Code Ann. 102-102 (9). Therefore, in order to give the language in paragraph (c) of Section 2 meaning, it is my opinion that the intent of the legislature was to actually reference paragraph (b) in the definition of conservation easement, rather than to reference paragraph (a).

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Secondly, and most importantly, in Section 5 of the Act, entitled "Legislative purpose," the General Assembly specifically declares its intent in enacting the statute, by providing as follows:
"The General Assembly hereby finds, determines and declares that the historical, cultural and aesthetic heritage of this State is among its most valued and important assets and that the preservation of this heritage is essential to the promotion of the health, prosperity and general welfare of the people.
"In accordance with this finding, it is hereby declared to be the purpose and intent of the General Assembly to encourage and promote the protection, enhancement, perpetuation and use of places, districts, sites, buildings, structures, and works of art having special historical, cultural and aesthetic interest or value."
The General Assembly has, therefore, declared that the preservation of the state's historical, cultural and aesthetic heritage is essential to the promotion of the health, prosperity and general welfare of the people. It further finds such heritage to be among the state's most valued assets. Finally, the stated purpose of the Act is to encourage and promote the protection, enhancement, perpetuation and use of sites having special historical, cultural and aesthetic interest or value. In light of these provisions, I am of the opinion that the definition of "conservation easement" should be liberally construed in such a manner as to further to the greatest extent the stated findings and purposes of the Act.
Accordingly, to summarize, it is my official opinion that where the purpose of a conservation easement is to preserve land or water areas predominantly in their natural, scenic, landscape or open condition or in agricultural, farming, forest or open space use, it is not essential that the land be located within an historic district.

OPINION 76-51

To: Executive Secretary, State Ethics Commission

May 20, 1976

Re: The 1976 amendments to the Campaign and Financial Disclosure Act providing for local-level filing of reports with county probate judges would generally supersede any conflicting portions of those laws which have in certain counties transferred "election" responsibilities from probate judges to boards of election. Additionally, there does not appear to be any irreconcilable conflict between the two. For both reasons, the 1976 amendments should be adhered to.

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This is in reply to your letter of April19, 1976, concerning the 1976 amendments (i.e., Act No. 1363, Ga. Laws 1976, p. 1423; Ga. Code Ann. 40-3803 (g), 40-3805 (4), 40-3806, 40-3808, 40-3809)) to the Campaign and Financial Disclosure Act. Among other things, these amendments require a local-level filing of certain "campaign disclosure reports" with county probate judges. You advise that some 18 counties have had the functions and responsibilities of their probate judges as to "elections" (chiefly under the Georgia Election Code; see Ga. Code Ann. Ch. 34-4 (Ga. Laws 1964, Extra. Sess., pp. 26, 40 et seq., as amended)) transferred to "boards of election," and ask whether in these counties the campaign disclosure reports should be filed with their boards of election rather than probate judges.
In reviewing the individual enactments pertaining to the counties you have enumerated, I find that most have created their boards of election by general laws of local application (i.e., "population" bills). Two counties have done so, on the other hand, by local legislation, while one (i.e., Dougherty) has proceeded by way of a constitutional amendment of local application. For reasons which will soon become apparent, the necessity of a lengthy analysis and description of each county's individual legislative approach to the matter can be largely obviated by initially making the "assumption," solely for the sake of argument, that the 1976 amendments to the Campaign and Financial Disclosure Act do conflict with these local enactments.1
It is axiomatic that where enactments of the General Assembly are in irreconcilable conflict, the latter controls-repealing the former to the extent of the inconsistency. See, e.g., Gunn v. Balkcom, 228 Ga. 802 (1972); Tyler v. Huiet, 199 Ga. 845, 850 (1945); Atlanta Finance Company v. Brown, 187 Ga. 729 (1939); County of Butts v. Strahan, 151 Ga. 417, 418-419 (1921). In revi~wing the statutory enactments which have created "boards of election" in the counties in question, I find that all appear to pre-date the 1976 amendments to the Campaign and Financial Disclosure Act. Thus, if we are to "assume" the existence of a conflict between the 1976 amendments' requirement that "campaign disclosure reports" be filed with the county probate judge and the prior transfer of certain "election" responsibilities from the probate judge to election boards in some counties, the 1976 amendments control-repealing the earlier enactments to the extent of any inconsistency. Additionally, with respect to the two counties which have created boards of election by local or special laws (as opposed to the more common method of enacting a general law of local application, i.e., a "population" bill), the 1976 amendments would also control under Article I, Section IV, Paragraph I of the Constitution

1 Obviously, in the absence of any "conflict," the mandates of both the 1976 amendments and the county enactments would have to be complied with.

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of the State of Georgia of 1945 (Ga. Code Ann. 2-401), since a special law cannot exist where the matter is covered by general law. See, e.g., Moore v. Howard, 181 Ga. 605 (2) (1936); Op. Att'y Gen. U70-59. It is consequently my opinion that even if the "conflict" referred to (and for the sake of argument "assumed") did exist, the proper place to file "campaign disclosure reports" at the local level would be the probate judge's office.
In light of this conclusion, it would seem to be pointless to spend a great deal of additional time and pages to analyze the language of each individual county's "board of election" legislation to show how and why it does or doesn't conflict with the 1976 amendments to the Campaign and Financial Disclosure Act. Suffice it to say that for the reasons we now come to in discussing Dougherty County's constitutional amendment of local application, it is my further opinion that the so-called "conflict," which we have for sake of argument assumed up to this point, does not really exist.
Since the creation and jurisdiction of the Board of Elections for Dougherty County is by virtue of a constitutional amendment of local application, see Ga. Laws 1970, pp. 1127-1133, it would not, as in the case of the mere statutory enactments discussed above, be superseded by the 1976 amendments simply because the latter are more recent, or because they are "general," while the constitutional provision pertaining solely to Dougherty County is "local." A constitutional provision invariably prevails against an inconsistent statute. In this situation it therefore becomes necessary to analyze the provisions in question to see if they are in fact in irreconcilable conflict and unable to stand together.
Starting with the constitutional amendment, we find that Dougherty County's Board of Elections is given jurisdiction over: " ... the conduct of primaries and elections in Dougherty County....", and that it is to:
"With regard to preparation for and conduct of primaries: (a) succeed to all the duties and powers granted to and incumbent upon the ordinary by Title 34 of the Georgia Code of 1933, as now or hereafter amended, particularly by an Act entitled 'The Georgia Election Code,' approved June 24, 1964 (Ga. L. Ex. Sess. 1964, p. 26), of whatever nature and kind, and any provision of law with respect thereto, and (b) formulate, adopt and promulgate rules and regulations, consistent with law and the rules and regulations of the State Executive Committee of each political party, governing the conduct of primaries, to the end that, insofar as practicable, all primaries shall be uniformly conducted by the county executive committee of each political party, poll workers properly trained and voters adequately informed and instructed."

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All of this, of course, has to do with the physical process of holding (or "conducting") elections, as is more fully seen by an examination of those functions which the Georgia Election Code places upon probate judges. To illustrate, the Election Code requires the probate judge to receive and determine the sufficiency of nomination petitions, to select and equip polling places, appoint poll officers, and regulate their conduct, purchase voting machines, etc. See Ga. Code Ann. 34-401 (Ga. Laws 1964, Extra. Sess., pp. 26, 40; 1970, pp. 347, 350).
As I see it, this concern with the physical aspects of holding (i.e., the "conduct" of) primaries and elections is really a wholly different subject matter from the disclosure of campaign financing towards which the Campaign and Financial Disclosure Act is directed. To my way of thinking, there is really no conflict at all between the two. In any event, I am unaware of any basis for an argument that compliance with the 1976 amendments to the Campaign and Financial Disclosure Act would in any way make it impossible to comply with Dougherty County's constitutional amendment or vice-versa, and hence conclude that even if some inconsistency existed, it would not be the sort of irreconcilable conflict required to vitiate one of the two. Since the language of Dougherty County's constitutional amendment is quite similar to that contained in the legislative enactments of those counties whose boards of election are "statutory," my view that here too there is no real "conflict" is based upon the same reasoning.
In summary, it is my opinion that the requirements of the 1976 amendments to the Campaign and Financial Disclosure Act that certain "campaign disclosure reports" be filed with the probate judge are not in conflict with those prior constitutional provisions and statutes providing for boards of election in certain counties, but that were they in conflict, the 1976 amendments would control. For both reasons, the filing requirements of the 1976 amendments (including those making the probate judges the proper persons with whom to file the reports) should be followed.

OPINION 76-52

To: Executive Secretary, State Ethics Commission

May 20, 1976

Re: The State Ethics Commission is authorized to investigate possible violations of the Campaign and Financial Disclosure Act whether or not the questioned acts occurred prior to the commission's existence.

This is in reply to your letter of May 14, 1976, in which you ask whether the State Ethics Commission would have any authority to investigate alleged violations of the "Campaign and Financial Disclo-

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sure Act" (Ga. Laws 1974, pp. 155 to 162, as amended; Ga. Code Ann. Ch. 40-38), during the 1974 election campaign, when the commission itself was only created by the 1975 amendments to that Act (Ga. Laws 1975, pp. 1120, 1127; Ga. Code Ann. 40-3809). You point out that the commission has until now assumed (1) that the authority to enforce the provisions of the Campaign and Financial Disclosure Act only began when it was created in 1975, and (2) that matters concerning the application of the Act to the 1974 election campaigns were outside its jurisdiction. For the reasons which follow, it is my opinion that while the correctness of the :first assumption is selfevident, the second is non sequitur from a viewpoint of logic and erroneous as a matter of law.
It goes without saying, of course, that a governmental body cannot act or function before it is created and vested with its constitutional or statutory powers, duties and prerogatives. See, e.g., Ga. Code (1933) 89-903. The authority of the State Ethics Commission to supervise, investigate or take any action at all respecting the Campaign and Financial Disclosure Act (or for that matter to take any action at all as to anything) commenced as of the date of its creation in 1975.
However, this has nothing at all to do, once the governmental body (in this case the State Ethics Commission) has been created, with the question of what it may investigate or act upon, or, more specifically, whether it is limited to investigating or acting upon only those transactions or occurrences which take place after its creation. To illustrate, while a grand jury cannot act until it is convened, once it is convened it quite routinely concerns itself with things that happened before it (i.e., that grand jury) existed. Where a new court is created and vested with, for example, criminal jurisdiction, it is hardly to be supposed that it could not try prosecutions for crimes committed before its creation. Cf. Atlantic & Birmingham Railway Co. v. Johnson, 127 Ga. 392 (1) (1907); Wash v. Kennedy, 23 Ga. App. 618, 620 (1919).
The answer as to a governmental body's authority to investigate or act upon matters occurring prior to its creation depends upon the powers which its enabling legislation has given it. Here we find the following with respect to the powers of the State Ethics Commission under the 1975 amendments to the "Campaign and Financial Disclosure Act"-speci:fically under Section 9 (f) of the amended Act which sets forth the commission's duties:

"(f) The commission shall have the following duties ...
* * *
"(10) to determine whether the required statements and reports have been filed and, if so, whether they conform to the requirements of this Act;

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"(11) to make investigations with respect to the statements and reports filed under the provisions of this Act, and with respect to alleged failure to file any statements or reports required under the provisions of this Act, and upon complaint by any person with respect to alleged violation of any part of this Act;

* * *
"(13) to report suspected violations of law to the appropriate
law enforcement authority;

* * *

"(16) to make public its conclusion that a violation has occurred

and the nature thereof." Ga. Code Ann. 40-3809 (f).

(Emphasis added.)



The foregoing seems to speak for itself as to the scope of the commission's responsibilities. It charges the commission to investigate possible violations of the Act (unquestionably of 1974 vintage), and not merely those violations occurring subsequent to the 1975 amendments thereto. In the absence of such a limitation, it is my opinion that the State Ethics Commission is authorized to investigate possible violations of the 1974 Campaign and Financial Disclosure Act whether or not the questioned violations occurred prior to the commission's creation in 1975.

OPINION 76-53

To: Executive Secretary, State Ethics Commission

May 21, 1976

Re: Section 8B of the Campaign and Financial Disclosure Act prohibits political campaign contributions on behalf of public utility corporations regulated by the Public Service Commission; "public utility" and "regulated" defined.

This is in reply to your letter of May 6, 1976, concerning the application of Section 8B of the Campaign and Financial Disclosure Act, i.e., Ga. Laws 1974, pp. 155 to 162, as amended (Ga. Code Ann. Ch. 40-38). [Section 8B, Ga. Code Ann. 40-3808.2, enacted by Ga. Laws 1975, pp. 1120, 1127.] You ask:
(1) Whether the term "public utility" as used in that section refers to all businesses or activities regulated by the Public Service Commission or to some lesser included classifications of business organizations, and

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(2) Whether the term "regulated" as used in the same section means any function or activity coming under the jurisdiction of the Public Service Commission, or whether some lesser and more restricted classification applies.
As will be seen, the two questions are not entirely severable and only by looking at the statutory provision as a whole is an answer possible.
To start with, since the statutory provision in question is short, it should probably be stated in full. It reads as follows:
"Section 8B. A person acting on behalf of a public utility corporation regulated by the Public Service Commission shall not make, directly or indirectly, any contribution to a political campaign." Ga. Code Ann. 40-3808.2; Ga. Laws 1975, pp. 1120, 1127. (Emphasis added.)
Were we to look at the phrase "public utility corporation" alone, we would really be faced with a problem. I am unaware of any precise definition of the term "public utility." In 73 C.J.S. Public Utilities, 1, it is observed that:
"A 'public utility' has been described as a business organization which regularly supplies the public with some commodity or service, such as electricity, gas, water, transportation, or telephone or telegraph service."
and that:
" ... whether the operator of a given business or enterprise is a public utility depends on whether or not the service rendered by it is of a public character and of public consequence and concern, which is a question necessarily dependent on the facts of the particular case."
See also, e.g., Black's Law Dictionary, p. 1395 (Rev. 4th Ed. 1968). It is hard to see how such an amorphous definition could be effectively applied by the State Ethics Commission.
Fortunately, however, this more-than-a-little vague term "public utility corporation" does not stand by itself. It is in turn modified by the qualifying language "regulated by the Public Service Commission." Here (in ascertaining which public utility corporations are "regulated" by the Public Service Commission), we are assisted by Ga. Code Ann. 93-307, which in defining the jurisdiction of the Public Service Commission states in relevant part:
"The Public Service Commission shall have the general supervision of all common carriers, railroads, express corporations or companies, street railroads, railroad corporations or companies,

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dock or wharfage corporations or companies, terminal or terminal station corporations or companies, telephone and telegraph corporations or companies within this State, gas or electric light and power companies within this State; ...." Ga. Laws 1907, pp. 72, 75; 1922, pp. 143, 144; 1967, p. 650.
Words in a statute are ordinarily to be taken in their natural and ordinary signification (see Ga. Code Ann. 102-102 (1)), and Black's Law Dictionary, p. 1451 (4th Ed. 1951), defines "regulate" as meaning, inter alia, "to control," "to subject to governing principles," or, in other words, to supervise. It is consequently my opinion that those public utility corporations which are within the ambit of Public Service Commission's supervision under Ga. Code Ann. 93-307 or other laws of the State of Georgia are also within the scope of Section 8B of the Campaign and Financial Disclosure Act.

OPINION 76-54

To: State Revenue Commissioner

May 24, 1976

Re: Overpayments of income taxes resulting from excess withholdings may not be recovered by a claim for refund or as a credit against other income tax liabilities when a taxpayer fails to file a return within three years after the amounts were withheld.

This is in response to your questions concerning the refund of excess amounts withheld under the provisions of the Current Income Tax Payment Act of 1960 (Ga. Laws 1960, p. 7, as amended; Ga. Code .Ann. Ch. 92-33B). Specifically, you ask if such excess amounts can be refunded when an individual taxpayer files a delinquent return more than three years after the original due date of the return and the return reflects an overpayment. You then ask if a tax credit may be allowed against past liabilities and liabilities for future years. Also, you have asked if overpayments could be credited against underpayments when several delinquent years are filed at the same time, with some returns showing overpayments and others showing underpayments, and the returns reflecting overpayments were filed more than three years after their due date.
The period of limitation for filing a claim for refund is three years after payment of a tax. Ga. Laws 1937-38, Extra. Sess., pp. 77, 94, as amended (unofficially codified as Ga. Code Ann. 92-8436). Under the provisions of Ga. Laws 1960, pp. 7, 32, as amended (unofficially codified, and hereinafter referred to, as Ga. Code Ann. 92-3315b), a final return which reflects an overpayment may be considered "as per sea claim for refund." Ga. Code Ann. 92-3315b, however, does

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not extend the period of limitation for making a claim for refund beyond the three years after the date of payment. The state has a similar limitation in that there is a general three-year limitation period after a return has been filed within which an assessment for additional income taxes may be made. Ga. Code Ann. 92-3303 (Ga. Laws 1931, Extra. Sess., pp. 24, 51).
In the situation which gives rise to your questions, the fact that the claims for refund, i.e., the returns reflecting an overpayment, were filed more than three years after the tax was paid precludes the taxpayer from obtaining a refund. By the same rationale, a credit cannot be given for the overpayment which could be applied against any other income tax liabilities. The granting of credits is a matter of legislative grace and is authorized only where there is a clear statutory provision permitting the credit. Cf. Brosnan v. Undercofler, 111 Ga. App. 95, 96 (1965).
There are individual circumstances where the above-stated general principles may not be entirely applicable. Under federal case law, a taxpayer may, in limited circumstances, obtain recoupment or set-off of an overpayment. See Bull v. United States, 295 U.S. 247, 79 L. Ed. 1421, 55 S. Ct. 695 (1935); Lewis v. Reynolds, 284 U.S. 281, 76 L. Ed. 293, 52 S. Ct. 145 (1932); Lit v. United States, 18 F. Supp. 435 (E.D. Pa. 1937). Generally, however, recoupment or set-off is available only where a particular transaction or set of circumstances affect or touch more than one tax period. For example, in Bull v. United States, supra, the taxpayer was permitted to recoup the overpayment of estate taxes paid on partnership profits included in the estate when income taxes were assessed against the same profits in a subsequent year. The circumstances, however, do not appear to be applicable in the situation which you have questioned.
In summary, it is my official opinion that overpayment of income taxes resulting from excess withholdings may not be recovered under normal circumstances by a taxpayer filing a claim for refund or obtaining a credit against the liability of different years when the taxpayer does not file an income tax return until more than three years after the date of payment.

OPINION 76-55

To: Executive Secretary-Treasurer, Teachers Retirement System

May 25, 1976

Re: Discussion of retirement benefits paid to a retired teacher who has creditable service with the Teachers Retirement System of Georgia and a local retirement fund.

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This replies to your letter asking for my official opinion construing the Teachers Retirement System (TRS) law as it applies to one specific retired teacher. I understand that your letter was written at the request of the Senate Retirement Committee, which request was apparently accompanied by a "Do Not Pass" recommendation on proposed Senate Bill No. 493.
The retired teacher about whom you inquire contends she is not receiving the total amount of retirement benefits due her under TRS law. She had 16 years of teaching service before becoming a member of a local retirement fund. 1 According to information supplied by her, of those 16 years of service, seven years were creditable as prior service and nine were creditable as membership service with TRS. See Ga. Laws 1943, p. 640 et seq., as amended; Ga. Code Ann. 32-2901 (8) and (9).
Upon becoming a member of a local retirement fund, this teacher could no longer belong to TRS. However, she was entitled to retain all previously accrued credits in TRS. Ga. Code Ann. 32-2922 (2).
Subsequently, this teacher was allowed by the local fund to receive credit for 10 years of teaching service rendered prior to joining the membership of the local fund. She claimed credit for these 10 years, and later retired from the local fund using these 10 years as part of her local creditable service. Accordingly, TRS was required to pay to the local fund an amount of money equal to the amount of the pension 2 payments for membership service which would have been payable to this teacher under TRS if she had been classified as a TRS member at the time of retirement. Ga. Code Ann. 32-2922 (1); Op. Att'y Gen. 74-21.
Although this is the first time I have officially opined with regard to this teacher's personal situation, her contentions and those of others similarly situated have, in fact, generated two previous official opinions to you. Ops. Att'y Gen. 75-113, 74-21. These opinions were thoroughly considered and I continue to adhere to the conclusions reached in each.
Based on my advice and conclusions as contained in these two previous opinions, TRS is paying retirement benefits to this teacher which are the aggregate of the following:
(1) A benefit based upon the six years not transferred to the local

1 "Local retirement fund" means any teachers retirement fund or other arrangement
for the payment of retirement benefits to teachers, maintained during the calendar year 1943 wholly or in part by contributions made by an employer as defined in the Act, exclusive of the system created by the Act. Ga. Code Ann. 32-2901 (23).
2 "Pension" must be distinguished from "annuity." "Pension" means the annual pay-
ments derived from contributions of the state or other employer. "Annuity" means the annual payments derived from the accumulated contributions of a member. Ga. Code Ann. 32-2901 (15) and (16).

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fund at the rate prescribed by the $9 minimum benefits statute, Ga. Code Ann. 32-2905 (2) (e) and (f).
(2) A benefit based on the annuity contributions of this teacher for the years credited to her by the local fund during which she had made employee contributions, per my opinion in Op. Att'y Gen. 74-21.
(3) A benefit based on the hypothetical contributions she would have made (for prior service) for the two years credited to her by the local fund during which there were no contributions, per my opinion in Op. Att'y Gen. 75-113.
The contention of the teacher that she is entitled to one-half of the $9 minimum benefit ($4.50) for each year for which TRS is paying the pension amount of her retirement to the local fund is without merit. The minimum benefit of $9 per month for each year of service is not a separate benefit apart from TRS benefits in general. It is an "add-on" factor which assures, in the case of local teachers, that TRS members will receive a minimum of total retirement benefits from TRS and a local retirement system. Op. Att'y Gen. 75-113. It is not a divisible factor which can be allocated by TRS between pension and annuity payments as is contended. There is no authority in the statute which would allow an allocation of the minimum benefit between pension and annuity. See Ga. Code Ann. 32-2905 (2) (e) and (f).
In summary, I have reviewed and thoroughly considered the information submitted by you and the teacher. I have examined the applicable law and my previous opinions on these questions. Based on this review and the foregoing rationale, I am of the opinion that the retired teacher about whom you inquire is receiving from TRS the correct amount of retirement benefits to which she is legally entitled.

OPINION 76-56

To: Secretary of State

May 26, 1976

Re: Vacancy in office which results from a determination in quo warranto proceeding that election for that office failed is filled by a special election for that office.

This is in reply to your request for my opinion as to the proper procedure to be followed in filling a vacancy in the Stewart County Board of Education.
Under a local amendment to the Constitution (Ga. Laws 1956, p.

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463; Ga. Laws 1958, p. 255) the members of the Stewart County Board of Education are elected by the people in precinct elections.
In the November 1974 election, the successful candidate for the office of school board members had failed to comply with the provisions of Art. II, Sec. VII, Par. I of the Constitution (Ga. Code Ann. 2-1201a) which requires a write-in candidate to publish and to provide to the judge of the probate court prior notice of his candidacy.
Thereafter, a quo warranto proceeding was initiated, asserting failure of the successful candidate to comply with Art. II, Sec. VII, Par. I, and thus failure of his election to the board. See White v. Miller, 235 Ga. 192 (1975). That contention was sustained and in January 1976, a judgment was entered ousting the successful candidate from office.
The essence of the judgment in the quo warranto proceeding here is that the election involved failed. In such circumstances, it appears to be firmly established that:
"[T]he effect where a person who is ineligible to hold the office receives a majority of the votes cast in an election is ... to invalidate the election; and in such a case a new election must be held." Dobbs v. Buford, 128 Ga. 483, 484 (1907); see also Thompson v. Stone, 205 Ga. 243, 247 (1949) (and cases cited).
The Georgia Election Code appears to be consistent with this principle. Ga. Code Ann. 34-1514 (Ga. Laws 1970, pp. 347, 382).
This conclusion, in my opinion, is not inconsistent with that provision of the local constitutional amendment applicable to the Stewart County Board of Education, which provides:
"In case of a vacancy on said board for any cause other than expiration of a term of office, the remaining members of the board shall elect a person to serve for the unexpired term, from the district vacated." Ga. Laws 1958, pp. 253, 254.
Since this case involves a failure of an election to fill a vacancy in term in the first instance, and not a vacancy caused by an event during the term of office of a duly-elected member of the board, it is my opinion that the recited provision, dealing with the method of filling vacancies in office rather than vacancies in term, does not apply. See Roan v. Rogers, 201 Ga. 696 (1946).
In sum, it is my official opinion that the vacancy on the Stewart County Board of Education, which resulted from the judicial determination in a quo warranto proceeding that the election for that position failed, is to be filled by a special election.

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OPINION 76-57

To: Chairman, Georgia Crime Information Center, Advisory Council

June 2, 1976

Re: Revised regulations of the Law Enforcement Assistance Administration; and the implementation of Ga. Laws 1976, p. 1401.

The questions in your recent letter revolve around the March 1976 changes in the Law Enforcement Assistance Administration's regulations concerning the collection, storage and dissemination of criminal history-information, and Ga. Laws 1976, p. 1401 (1976 Act No. 1356) (Ga. Code Ann. 92A-3003) hereinafter referred to as the Act, providing for the dissemination of adjudications of guilt after July 1, 1976, to noncriminal justice recipients in certain circumstances. In this regard you have asked the following questions:
(1) Must GCIC amend its present rules, which are now more restrictive than the LEAA regulations, in order to make them conform with the recent LEAA changes, or can GCIC maintain its present rules?
(2) Is it mandatory that GCIC regulations retain the provision that users must first query GCIC prior to making a dissemination, or may GCIC amend its rules so as to provide for an exception to this requirement in certain instances?
(3) When the Act states that records of adjudications of guilt will be available to certain private persons and businesses, does this also include nonprofit organizations?
(4) Under this Act may adjudications of guilt be furnished to agents of businesses who do background screenings or credit checks on prospective employees?
(5) Does the Act permit the dissemination of adjudications of guilt to private security agencies hired by a business to protect its property, when an employee of that security agency has apprehended or suspects an employee or another individual found on the premises of a business of a specific criminal act against a business?
(6) May bondsmen under this Act have access to criminal history information?
(7) Are insurance companies entitled to criminal history data on prospective clients or persons other than employees as defined in this Act?

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As you are already aware the Law Enforcement Assistance Administration pursuant to the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3701 et seq. (August 6, 1973)), first promulgated a series of regulations concerning the collection, storage and dissemination of criminal history information. 28 C.F.R. 20.1-20.34 (May 20, 1975). These regulations were very restrictive. On March 19, 1976, LEAA made significant revisions in its regulations, changes which greatly liberalized its previous position concerning the storage, collection and dissemination of criminal history information. Your first question asks whether in view of these 1976 changes GCIC must amend its rules so that they are in conformity with the present LEAA regulations and policy guidelines.
The recent changes in the LEAA regulations indicate that LEAA's rules are to be viewed as broad guidelines which set the outermost limits on the collection, storage and dissemination of criminal history data. Under this concept the states would be free to maintain a more restrictive policy regarding public access to criminal history records, unless through legislation, ordinance, executive or court order a state elects to adopt a more liberal policy in regard to the public's right to gain access to criminal history information. 28 C.F.R. 20. The area surrounding criminal history information, and who shall have access to it, is one of balancing the public's right to know with the individual's right of privacy. Ga. Laws 1976, p. 1401, is an example of legislation designed to expand the public's right to receive a specified type of criminal history information, but only under certain circumstances.
In answer to your first question, it is my opinion that GCIC does not have to change its present rules on dissemination, and can maintain a more stringent policy regarding the access to criminal history records than presently exists in the revised federal regulations if it so desires, subject only to any liberalization brought about by legislation passed by the General Assembly.
The second question asks whether GCIC as the state's central repository must maintain a provision in its rules so as to require that before any local criminal justice agency disseminates criminal history information that it be required to make an inquiry to GCIC concerning the accuracy of its information prior to dissemination. The query requirement first appeared in 28 C.F.R. 20.21 (a) (1). This provision has remained intact with the March 1976 LEAA revisions. The underscoring principle of the query requirement is to ensure both the completeness and accuracy of information given out by local criminal justice agencies, particularly when disseminating information which is given for noncriminal justice purposes, i.e., employment checks.

"The regulations do require that states establish procedures for State and local criminal justice agencies to query central state

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repositories wherever they exist. Such procedures are intended to insure that the most current criminal justice information is used .... On the other hand, queries of the State central repository for most noncriminal justice purposes probably can and should be made prior to dissemination of criminal history record information." 28 C.F.R. 20.20 (a) (1). (Commentary contained in appendix to the March 1976 changes.)
The commentary appearing in the appendix to the revised LEAA regulations stresses that the querying requirement is to remain, especially as it pertains to noncriminal justice dissemination, so as to keep this material current. This commentary also reinforces the principle that states which have a central repository, such as GCIC, are better able, and more likely to keep track of dispositions which occur outside of the local inquiring jurisdiction, since most local agencies do not have the means to keep up with dispositions outside of their area.
Your question concerning whether GCIC must maintain a provision in its regulations for querying seems to have been raised because of the anticipated increase in queries which GCIC expects to receive as a result of the Act's coming into effect on July 1, 1976. As you pointed out in your letter, 28 C.F.R. 20.21 (a) (1) does indicate that the querying requirement by local criminal justice agencies prior to any local disseminations is not absolute, and may be dispensed within those circumstances in which the state repository is technically incapable of responding within a reasonable period of time and where time ]s of the essence. The Act provides for the disseminations of adjudications of guilt in two instances, one being for preemployment checks (Section 1, (m) (1) (A thru D)), and the other when employees or trespassers are apprehended for having committed a criminal act against the business. (Section 1, paragraph 2.)
It is my opinion that the furnishing of adjudications of guilt to personnel of a business on persons apprehended or suspected of having committed a specific crim1nal act, in which the victim is the business, is more in the nature of a criminal justice dissemination for which time in furnishing such information may be of the essence as not to prolong any detention of the individual apprehended. Accordingly, it would be permissible for GCIC to amend its rules in relaxing the local querying requirement when adjudications of guilt are sought under paragraph 2 in Section 1 of the Act. It is, however, my opinion that the querying requirement cannot be loosened when it comes to local inquiries regarding adjudications of guilt under Section 1 (m) of the Act for preemployment checks, which in my opinion are not criminal justice matters. LEAA's regulations make it quite explicit that they intend for the querying requirement to remain for all noncriminal justice matters.

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It should also be kept in mind that while the Act has the potential of increasing the number of requests GCIC will receive, paragraph 8 in Section 1 provides that GCIC is to give first priority to criminal justice requirements. Furthermore, paragraph 8 also provides that the dissemination of criminal history information to employers for background checks, and personnel of business establishments on which an individual is apprehended or is suspected of committing a specific criminal act, will be disseminated only by GCIC unless the GCIC council adopts rules authorizing local law enforcement agencies. In the event GCIC does not adopt regulations authorizing local criminal justice agencies to act as its agent, then the querying provision would not be applicable. Should GCIC promulgate rules authorizing local law enforcement agencies to act as an agent then the querying requirement must be maintained in instances where the inquiry is pursuant to a noncriminal justice matter as stated above.
The third part of your inquiry concerns the interpretation of the word "business" as used in paragraph (m) to Section 1 of the Act. Your letter asks whether the word "business" also entails nonprofit organizations such as churches, private colleges, universities and foundations. While the word "business" generally is employed in connection with an occupation for livelihood or profit (Butler v. Moore, 125 Ga. App. 435, 436 (1972) ), it is not limited to that, and may in addition connote nonprofit pursuits. Stanford v. Smith, 173 Ga. 165, 167 (1931); Griffin v. Russell, 144 Ga. 275, 278 (1915). It is therefore my interpretation of paragraph (m) to Section 1 of the Act that the word "business" is a general term, and is not restricted solely to profit motivated enterprises. In arriving at this result it is my opinion that the General Assembly when it enacted this bill expressed a desire to implement legislation that would narrowly open access to criminal records to the private sector, for the limited purpose of making preemployment checks and job assignment decisions in certain circumstances, as well as to have such information to assist them in making a determination as to whether to prosecute persons apprehended on the premises who are engaged in a criminal act against the business.
Nonprofit organizations under the Act would, however, only be entitled to criminal history information if they involved the hiring of personnel whose duties were specifically contained in one of the four exceptions to Section 1, (m) (1) (A through D), or concerned the apprehension of an employee or trespasser suspected of committing a criminal act against the business or institution as provided for in paragraph 2 to Section 1 of the Act.
In reference to this Act you have also asked whether agents who screen prospective employees on behalf of a business, such as, employment agencies or those who do preemployment background checks, private security agencies or retail credit corporations, may have access

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to criminal history information in connection with the hiring of an employee. Paragraph 4 in Section 1 of this Act states:

"Information disseminated pursuant to paragraph (1) above shall be available only to persons involved in the hiring or job assignment of the person whose record is disseminated."

I interpret this provision to mean those individuals directly involved in making the ultimate decision as to whether to hire or transfer an individual to a new job assignment. Accordingly, employment agencies, retail credit corporations and firms doing background checks are not involved in the final hiring or transferring decisions, and would not be entitled to criminal history information under this Act. To permit otherwise would be in my opinion to distort the legislative intent, and would allow a class of persons to have access to criminal history information indirectly, when the statute does not entitle them to direct access. Similarly, the Act also provides in paragraph 2 to Section 1 that criminal history information would only be available to an individual in the business or organization against whom the individual was apprehended. Thus a private security agency member hired by the business to protect its property or any other member of the security agency hired by a business would not be entitled to the criminal history information on the individual it has apprehended, or it suspects of committing a crime, since the security agency is not the business against whom the crime or suspected crime has been committed.
You have also asked my opinion as to whether bondsmen under the Act may have access to criminal history information. Likewise, in the same connection you have asked whether insurance companies may obtain criminal history records on their clients and policyholders other than employees as defined in the Act. Unless the individual whose record is sought is applying for a job with the bondsmen or insurance company and whose duties would bring him under one of the four exceptions as set forth in the Act, or the individual is suspected of committing a crime against the bondsmen or insurance company, then the bondsmen or insurance company would not be entitled to criminal history information as defined in the Act.
Even though the prevailing view regarding the interpretation of statutory exceptions appears to favor a determination without referring to the artificial presumption that qualifying language should be strictly construed, the appellate courts in Georgia would not adopt such a view in my opinion, maintaining that statutes are to be strictly construed and given a narrow interpretation unless it can clearly and distinctly be demonstrated that the legislature intended otherwise. See Faust v. Buchanan, 123 Ga. App. 15, 18, 179 S.E.2d 294 (1970);

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Sumter County v. Pritchett et al., 125 Ga. App. 222, 225, 186 S.E.2d 293 (1971).

OPINION 76-58

To: Director, Employees Retirement System

June 9, 1976

Re: The Board of Trustees of the Employees Retirement System has the statutory authority to correct its records; a person who is otherwise eligible may receive no more than 10 years of credit for his active duty military service.

This responds to your request for my opinion as to the proper construction of the Act creating the Employees Retirement System (ERS). Ga. Laws 1949, p. 138 et seq.; Ga. Code Ch. 40-25; both as amended. As I understand it, the particular facts giving rise to your inquiry can be summarized as follows.
There is an individual who was employed by the state for approximately 10 years and was a contributing member of the ERS throughout this period. His employment with the Department of Defense, Civil Defense Division, terminated on March 31, 1971, by virtue of reduction in force procedures undertaken by the Department of Defense. However, because of this person's age and creditable service, he was immediately eligible for a service retirement allowance. Accordingly, this individual filed with the ERS an application for retirement, and was subsequently retired by the Board of Trustees of the ERS based upon approximately 10 years of service. He has been receiving a monthly benefit based upon this application since June 1971, which was when his retirement became effective.
Recently, however, this individual has requested a recomputation by the ERS of his retirement benefits. His justification for such a request is that at the time he filed his application for retirement in 1971, he was actually eligible for several years of prior service credits resulting from his service in the armed forces. He therefore claims that his retirement record or file does not reflect the actual amount of creditable service to which he is entitled, and that such record should be corrected accordingly.
You have asked me to review these facts, as well as other supplementary information provided, in conjunction with the ERS law, and advise you relative to the following two questions:
(1) Does the Board of Trustees of the ERS have the statutory authority to correct its records in the factual setting outlined above?

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(2) If the answer to the first question is in the affirmative, and assuming the Board of Trustees of the ERS chooses to exercise its statutory authority, is there any limitation on the number of years of military service credit to which this individual is entitled, if he is otherwise eligible?
I will discuss and answer these questions in the order set forth above.
1.
"Does the Board of Trustees of the ERS have the statutory authority to correct its records in the factual setting outlined above?"
You recently posed a question very similar to this in your official capacity as the Director of the Public School Employees Retirement System (PSERS). At issue in that case was whether the Board of Trustees of PSERS was authorized to rectify a mistake or error in the retirement records of a cook previously employed by the Washington County Board of Education. I opined that the board indeed had the authority to correct its records with regard to the individual involved, so as to reflect her actual statement of total creditable service. See Op. Att'y Gen. 76-25 (dated March 17, 1976).
For essentially the same reasons I concluded in Op. Att'y Gen. 76-25 that the Board of Trustees of PSERS was authorized to correct its records, I am of the opinion that the Board of Trustees of the ERS also has such statutory authority in the instant case. This conclusion is based upon Section 10 of the ERS law, which I might point out is almost identical to the language in the PSERS law, and which provides as follows:
"Should any change or error in the records result in any member or beneficiary receiving from the retirement system more or less than he would have been entitled to receive had the records been correct, the board of trustees shall have the power to correct such error and to adjust as far as practicable the payments in such manner that the actuarial equivalent of the benefit to which such member or beneficiary was correctly entitled shall be paid." Ga. Laws 1949, pp. 138, 160; Ga. Code Ann. 40-2513.
In reaching my conclusion, I am fully aware of the language found in Section 3 of the ERS Act, which states that:
"The membership of any member shall terminate if he retires under this retirement system. . .. No benefit under the retirement system shall accrue to his account while he is not in service as an employee." (Emphasis supplied.) Ga. Laws 1949, pp. 138, 142, as specifically amended by Ga. Laws 1951, pp. 394, 396; Ga. Code Ann. 40-2503 (3).

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The significance of this statutory provision vis-a-vis the question of whether the board may rectify an error in its records necessarily turns on the meaning of the term "accrue." In this regard, it has been held that the meaning of this word is dependent somewhat on the facts of each case and the objects to be accomplished by the statute. Hartsfield Company v. Shoaf, 184 Ga. 378 (1937). With this in mind, the primary "object" or purpose of the above-quoted language is in my opinion to prevent a former member presently receiving a retirement benefit from claiming increased benefits as a result of an amendment to the law authorizing such additional benefits to existing members. On the other hand, I do not believe this statute was intended to prevent a former member from obtaining service credits or benefits which he was rightfully entitled to prior to his retirement, but which he never received by virtue of an honest mistake or error in his records. I think this is especially true when viewed in conjunction with Section 10, specifically authorizing the correction of errors in records.
As I stated to you in Op. Att'y Gen. 76-25, and as I wish to reemphasize for purposes of this opinion, the ERS has a right to rely on duly certified documents filed by its members with the board of trustees. It is not the responsibility of the ERS to challenge or inquire into properly verified documents. However, when it appears to the board of trustees that a genuine error exists in the records of one of its former members, the board may in its discretion remedy the situation if it so chooses.
2.
''Assuming the Board of Trustees of the ERS chooses to exercise its statutory authority, is there any limitation on the number of years of military service credit to which this individual is entitled, if he is otherwise eligible?"
Since I answered your first question in the affirmative, it becomes necessary to address your second question.
The pertinent portions of the ERS law governing the allowance of prior service credits for a member's military service are subsection 4 (Ga. Laws 1949, pp. 138, 144; Ga. Code Ann. 40-2504 (4), both as amended) and subsection 9 (Ga. Laws 1956, pp. 54, 56; Ga. Code Ann. 40-2504 (9) ) of Section 4 of the Act. Subsection 4 of said Section 4 provides in relevant part as follows:
"(4) Anything in this Act to the contrary notwithstanding, any member, if otherwise eligible for prior service credits, who ... served on active duty in the Armed Forces of the United States, shall be entitled to credit for such active duty service, exclusive
of reserve service, and not to exceed the limitations as elsewhere pro-
vided for in this Act, ...." (Emphasis added.)

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Additionally, the pertinent portion of subsection 9 of Section 4 reads as follows:
"... Credit for any service rendered either for prior service during the First or Second World Wars, the Korean Conflict, the Georgia National Guard, Georgia State Guard, or service that may be creditable in the future for any combination of such service, shall be limited to not more than ten (10) years, notwithstanding the fact that the combination of such service may have been or may be for a longer period."
An elementary rule of statutory construction is that statutory provisions dealing with the same subject matter, that is, statutes in pari materia, should be construed together so as to ascertain and give effect to the intent of the General Assembly in enacting such statutes. Ryan v. Commissioners of Chatham County, 203 Ga. 730 (1948). Subsections 4 and 9, quoted above, must in my opinion be construed consistently with this rule.
Subsection 4 provides in essence that a member of the ERS shall be eligible for credit for active duty service in the armed forces. However, a member's entitlement to such service is expressly subject to several exceptions and qualifications. One such important qualification is the fact that credit for active duty military service shall not "exceed the limitations as elsewhere provided for" in the ERS law. In my opinion, in inserting this phrase, the legislature was clearly referring to the provisions of subsection 9.
Turning to the provisions of subsection 9, it becomes apparent that the language therein is subject to varying interpretations. One such interpretation would be that a member's credit for active duty military service is limited to a maximum of 10 years, but only if the service was rendered during the First or Second World Wars, the Korean Conflict, or in the Georgia National Guard or Georgia State Guard. Therefore, the end result of this construction would be that if the service was rendered during a nonwartime period and was not Georgia National or Georgia State Guard service, there would arguably be no limitation on the number of years of credit which a member could accumulate.
Another construction would be that credit for active duty military service is limited to a maximum of 10 years, whether such service was rendered during the First or Second World Wars, or the Korean Conflict, in a nonwartime period, or in the Georgia National Guard or Georgia State Guard. In my judgment, it is this latter construction which gives full effect to the intent of the General Assembly in enacting subsections 4 and 9. I have come to this conclusion for the following reasons.
First, and foremost, it is extremely difficult for me to believe that

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the General Assembly could ever have intended to limit a member who served in World Wars I or II, the Korean Conflict, or the Georgia National Guard and Georgia State Guard to 10 years of prior service credit, but then allow a person who served on active duty in a nonwartime period to accumulate unlimited credit. Rather, the more reasonable interpretation is that no member is entitled to more than 10 years of such prior service credit, and that service in the World Wars, the Korean Conflict, the Georgia National and State Guards, and the nonwartime periods, should all be treated on an equal footing.
Secondly, the rule is well recognized that the legislative history of a statutory provision may give to its words a meaning they might otherwise appear not to have. Acree v. The State, 122 Ga. 144 (1905); McDonald v. The State, 6 Ga. App. 339 (1909). With this rule in mind, I have reviewed the legislative history of these provisions of the ERS law relating to the awarding of military service credit. As you are well aware, the ERS law was established by the General Assembly in 1949 (Ga. Laws 1949, p. 138 et seq.), and there has been a limitation on the number of years of military service credit which a member could accumulate from its inception. Specifically, from 1949 until 1956, the law was that while a member received credit for time served in the armed forces, he could receive no more than five years credit for such service. The important point is that the ERS law did not, during this period, specify as to whether the service had to have been rendered during a World War, in the Georgia National Guard, in a nonwartime period, or whatever. Rather, a member simply received credit for:

" ... all time he shall have served in the armed forces of the United States subject to a maximum period for such ... creditable service of five years." Ga. Laws 1949, pp. 138, 145.

It was then in 1956 that the General Assembly amended the ERS law by adding subsection 9, as it presently reads, with its 10-year limitation. In my opinion, this legislative history indicates that the intent of the General Assembly was in 1956 to simply raise the ceiling on the number of years of military service credit which a member could collect from five to 10 years. That is, in not specifically addressing the issue of nonwartime service in subsection 9, it was not their intent to place this category of military service on a different footing from all other types of active duty service.
In summary, with regard to your second question, it is my opinion that credit for active duty military service is limited to a maximum of 10 years, whether such service was rendered during the First or Second World Wars or the Korean Conflict, in a nonwartime period, or in the Georgia National Guard or Georgia State Guard.

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OPINION 76-59

To: Commissioner of Insurance

June 11, 1976

Re: Automobile or motor clubs whose members are entitled to benefits such as emergency road service, reimbursement for attorneys' fees, arrest and bail bonds, reimbursement for personal expenses, etc., are offering a contract of indemnity against expenses resulting from a member's ownership, maintenance or use of an automobile and hence are offering insurance within the definition of section 56-102 of the Georgia Insurance Code.

Your request for an official opinion from this office indicates that the Georgia Insurance Department has received information that at least three automobile or motor clubs are soliciting memberships into their associations in Georgia and are, in connection with those memberships, offering various benefits to their members. The question raised is whether the plans being marketed by these automobile clubs constitute insurance and whether, as such, these clubs must obtain certificates of authority to conduct the business of insurance in the State of Georgia.
Although the benefits being offered by each club vary to some extent, the substance of each plan is basically similar. Generally, membership in each automobile club entitles the member to receive emergency road service, reimbursement for legal fees incurred, arrest bond certificates up to a specified amount, as well as a bail bond service to a stated limit. Some plans provide for a specified amount to be paid to both husband and wife for unexpected personal expenses incident to an automobile accident including car rental, lodging, meals, and local transportation. Several plans provide for travel and traffic accident insurance and even offer rewards for information leading to the arrest and conviction of anyone who has stolen or vandalized a member's automobile.
Section 56-102 of the Georgia Insurance Code defines "insurance" as:
"a contract which is an integral part of a plan for distributing individual losses whereby one undertakes to indemnify another or to pay a specified amount or benefits upon determinable contingencies." Ga. Laws 1960, pp. 289, 293.
Each plan that has been brought to the attention of the Insurance Department is in essence a contract of indemnification which, though in some cases expressly disavowing the fact that it is insurance, has been framed in the terminology common to insurance policies and obviously evidences a belief that the subject matter of the contract

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does in fact involve insurance. This of course is not determinative in itself, since Georgia courts have taken the position that whether or not a contract is one of insurance is to be determined by its "purpose, effect, contents and import, and not necessarily by the terminology used, and even though it contains the declarations to the contrary." Benevolent Burial Ass'n v. Harrison, 181 Ga. 230, 238 (1935); see also, Op. Att'y Gen. 74-48.
Considering the plans being offered by the automobile clubs in the light of the Insurance Code's definition of insurance, there is no serious doubt but that the substance of each membership would constitute a contract between the club and each individual member. It is equally clear that the terms of those contracts would provide for payment of specified amounts of benefits to the member upon the occurrence of any of the determinable contingencies enumerated in the plan. The remaining element of the definition ("integral part of a plan for distributing individual losses"), obviously intended to codify the risk distribution feature inherent in every insurance contract, can also be seen here when the disproportionately high ratio of maximum benefits provided for in each plan is set over against the cost of each membership. See, Bentley v. Allstate Insurance Co., 227 Ga. 708, 710 (1971); Piedmont Life Insurance Co. v. Bell, 109 Ga. App. 251 (1964); South Georgia Funeral Homes v. Harrison, 183 Ga. 379 (1936).
In addition to the fact that the plans being offered here fall squarely within the definition of insurance, a consideration of the business which each company is actually carrying on, and not the mere form of its organization, has been an additional test offered by Georgia courts in determining whether a company's activities fall within the Insurance Department's regulatory purview. Benevolent Burial Ass'n v. Harrison, supra, at 238. When form is disregarded for substance, it becomes apparent that the clubs under scrutiny here are, although clothing themselves in the habit of an emergency service association, in fact performing all the functions and displaying all the elements traditionally attributed to insurance companies.
In taking the position that these automobile clubs are engaged in the business of insurance, we follow the sound reasoning of a number of other jurisdictions whose courts have concluded that almost identical contracts are in fact contracts of indemnity and not of service and hence within the regulatory spectrum of that jurisdiction's insurance laws. In Continental Auto Club, Inc. v. Navarre, 60 N.W.2d 180 (Mich. 1953), the automobile club advertised a policy providing, inter alia, that its members would receive attorneys' services to the extent of a certain dollar limitation depending upon the underlying legal claim as well as a maximum $5,000 bail bond. The court held the plan to be a contract of indemnity against expense resulting from the ownership, maintenance or use of an automobile and hence insurance.

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Similarly, a Texas court held that an association of automobile drivers that solicited and sold memberships in the association wherein benefits would include reimbursement for attorneys' fees according to a fixed schedule was subject to that state's insurance laws. Texas Ass'n of Qualified Drivers, Inc. v. State, 361 S.W.2d 580 (Tex. Civ. App. 1962).
Most recently, an Arkansas automobile club proposed to provide its membership with a variety of benefits including an appearance bond up to $200 for any motor vehicle violations, a bail bond up to $5,000 for auto accidents, attorneys' fees, and a certificate of accident insurance with benefits covering a broad scope of possible losses. Based on a definition of "insurance" almost identical to Georgia's, the court held the plans to be contracts of insurance. Arkansas Motor Club, Inc. v. Arkansas Employment Security Division, 373 S.W.2d 404 (Ark. 1963).
Accordingly, it is our opinion that an automobile or motor club whose members are entitled to benefits including, but not limited to, emergency road service, reimbursement for attorneys' fees, arrest and bail bonds, reimbursement for personal expenses such as food, lodging, car rental, etc., is offering a contract of indemnity against expenses resulting from a member's ownership, maintenance or use of an automobile and hence is offering insurance within the definition of section 56-102 of the Georgia Insurance Code.

OPINION 76-60

To: Commissioner of Agriculture

June 11, 1976

Re: The Department of Agriculture may not impose by regulation a $100,000 maximum for surety bonds required of warehouses licensed pursuant to the Georgia State Warehouse Act.

You have requested my opinion as to whether the Department of Agriculture may impose a $100,000 maximum for surety bonds required of warehouses licensed pursuant to the Georgia State Warehouse Act (Ga. Laws 1953, Nov. Sess., p. 412 et seq.; Ga. Code Ann. Ch. 111-5). Section 6 of that Act grants you the authority to fix the bond for any part of the licensed storage capacity being used, " ... but in no event shall the amount of the bond be required to exceed 12 percent of the value of the products sold..." Ga. Laws 1953, Nov. Sess., pp. 412, 417, as amended (Ga. Code Ann. 111-506). That section also states that the bond is to be computed in direct ratio to the licensed storage capacity of the warehouse.
Subsequent to the passage of the Warehouse Act, Department of

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Agriculture regulations were promulgated pursuant to that statute providing:
"Bond requirements will be as stipulated in Section 6 of the Act except that: ... The maximum requirement for bond will not exceed One Hundred Thousand Dollars ($100,000.00)." Rules of the Georgia Department of Agriculture, 40-14-2-.01 (2) (c) 1. (Emphasis added.)
Consequently, an obvious conflict between regulation and enabling legislation ensues when a warehouse's bonding requirement, as computed in direct ratio to its storage capacity, does not exceed the 12 percent statutory maximum but does exceed the $100,000 ceiling implemented by regulation.
In such a conflict, there can be no serious question of the prevalence of the statute over the regulation. See Ops. Att'y Gen. 73-168 and 71-83. Regulations cannot exceed or abrogate the scope of the authorizing statute, as the department regulation hereinbefore cited expressly does, and rules attempting to do so have long been recognized as invalid. Standard Oil Co. of Kentucky v. State Revenue Commission, 179 Ga. 371 (1934). Therefore, it is my opinion that while you may fix the percentage ratio to be applied to the storage capacity of warehouse facilities (not to exceed 12 percent of licensed storage capacity) in order to set individual warehouse bond amounts, you may not impose by regulation a $100,000 maximum for all surety bonds required of warehouses licensed pursuant to the Georgia State Warehouse Act.

OPINION 76-61

To: Commissioner, Department of Human Resources

June 16, 1976

Re: A state agency may execute a contract for the purchase of goods and services even though the term of that contract extends to the next fiscal year, if the state agency has on hand at the time of the execution of the contract available appropriated funds necessary to meet its entire obligation under the contract.

This is in response to your recent request for my official opinion as to whether the Department of Human Resources may enter into a contract for the purchase of services, to be paid for with presently appropriated funds, when the term of the contract extends into the next fiscal year. I understand that what you propose to do is to expend funds which are presently appropriated for the provision of child care services by entering into a contract with providers of long-term

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residential care for children and adolescents. I further understand that your concern is that the services to be provided by these long-term residential treatment facilities will not be accomplished during the current fiscal year, although they are to be paid for entirely by money presently appropriated and held by your department.
Without inquiring into the specifics of your proposed contractual arrangement, I refer you to Op. Att'y Gen. 74-115, issued to the State Auditor in August 1974. That opinion was written specifically for the purpose of providing future guidance in contractual matters, and provides the answer to your question.
In that opinion, while noting that various provisions of the Georgia Constitution prohibit the state from incurring debt except in certain narrowly defined circumstances, I stated that if a state agency has on hand sufficient appropriated funds to meet its entire obligation under a contract, the agency could contract to receive goods and services even though the goods and services were to be provided in a future fiscal year. I further pointed out that the Constitution itself specifically contemplates that such appropriated funds may be contractually obligated prior to the close of one fiscal year, and then may be spent in future fiscal years.
Therefore, it is my official opinion that you may contractually obligate funds currently appropriated and on hand, for the purpose for which they were appropriated, so as to prevent those monies from lapsing at the end of the current fiscal year, even though the services to be provided under such contract may not be completely provided until some date beyond the end of the fiscal year.

OPINION 76-62

To: Acting Commissioner of Personnel Administration

June 21, 1976

Re: If the management of a department had the discretion to grant a merit salary increase to an employee, did not grant the increase, and the decision was not based upon unlawful criteria, then the merit salary increase could not later be granted retroactively.

This is in response to your recent request for my opinion as to whether salary increases could be granted retroactively in the following situations:
(1) A supervisor has the discretion to grant one of his employees a merit salary increase as of a certain date. The supervisor decides not to grant the salary increase. Later the department head decides to reverse the supervisor's decision and to grant the em-

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ployee a merit salary increase. Can the department head grant the increase retroactively to the original possible effective date?
(2) Your second example is identical to your first, except that in the second case the department head reverses the supervisor's decision only after the employee has utilized the internal grievance procedure, and the department head bases his reversal on the grievance panel's nonbinding recommendation. The department head wants to grant the increase retroactively to original possible effective date.
(3) Your third example is the same as your second example except the department head does not grant the merit salary increase and the employee appeals to State Personnel Board. If the board reverses department head's decision, can the board order the increase retroactively as of the original possible effective date?
(4) In your last example, when an employee was hired, a personnel assistant told the employee that he would receive a salary increase within six months. At the end of the six months, the employee's supervisor decides not to grant the increase. The department head later reverses the supervisor's decision and grants the salary increase. Can this increase be granted retroactively to the original possible effective date?
The pertinent provision of the Georgia Constitution on retroactive salary increases is found in Article VII, Section I, Paragraph II (2) of the Georgia Constitution which reads as follows:
"The General Assembly shall not grant or authorize extra compensation to any public officer, agent or contractor after service has been rendered or the contract entered into." Ga. Code Ann. 2-5402 (2).
In considering this constitutional provision in an earlier opinion, I opined that if the management of a department had the discretion to grant a merit increase and did not exercise that discretion, any attempt to later make a retroactive payment would be granting extra compensation to a public officer or agent after the service had been rendered and would violate the Georgia Constitution. Op. Att'y Gen. 72-110. That is still my official opinion on retroactive discretionary salary increases where there has earlier been a lawful exercise of supervisory discretion in not granting the merit salary increase.
It must be noted, however, that in enacting the most recent State Merit System law, the Georgia General Assembly expressed its intent that the merit system be applied and administered so as to insure "[e]qual opportunity for all regardless of race, color, sex, age, national origin, physical handicap, political or religious opinions or affiliations."

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Ga. Laws 1975, p. 79 (Ga. Code Ann. 40-2201 (b) (1) ). To effectuate this purpose, the General Assembly directed the State Personnel Board to promulgate rules and regulations which "provide that there shall be no discrimination for or against any person or employee in any manner, to include but not be limited to, hiring, discharge, compensation, benefits, terms or conditions of employment, promotion, job classification, transfer, privileges or demotion, because of political affiliation, religious affiliation, race, creed, national origin, sex, age or physical handicap." Ga. Code Ann. 40-2205 (b) (3) (Ga. Laws 1975, pp. 79, 87).
The State Personnel Board has promulgated Rule 3.501 of the Rules and Regulations of the State Personnel Board which prohibits these types of discrimination. Consequently, no management personnel would have the discretion to grant or deny a merit salary increase based solely on the employee's political affiliation, religious affiliation, race, creed, national origin, sex, age, or physical handicap. Accordingly, if the department head or the State Personnel Board determines that the employee would have received his merit salary increase, but for the supervisor's unauthorized consideration of the employee's race, sex or other improper criteria, the reviewing authority may take the necessary action to correct the supervisor's action including the awarding of back pay in the nature of granting the salary increase as of the date the employee would have received it but for the unauthorized consideration of improper criteria.
In summary, no agency can award retroactive salary increases. However, where the salary increase was denied solely because of unlawful and improper exercise of discretion (e.g., based on prohibited discriminatory reasons), the awarding of the salary increase back to the original effective date is not a prohibited retroactive salary increase; but rather, it is in the nature of a back pay award. Nevertheless, when a department grants a salary increase with a retroactive effective date, the department must document the reason why the increase is not a prohibited retroactive salary increase, or else the increase may be an audit exception.
Therefore, it is my official opinion that if the management of a department had the discretion to grant a merit salary increase, did not grant the salary increase and the decision was not based on unlawful criteria, then the salary increase could not later be granted retroactively.
In considering your first three specific examples, if the supervisor's initial decision to deny the merit salary increase was not based upon improper criteria, there cannot legally be any retroactive salary increases. In your fourth example, if the personnel assistant had the authority to offer the employee a guaranteed salary increase at the end of his first six months, then the increase would be automatic and

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not discretionary. Correction of this error would not come within the constitutional prohibition against retroactive salary increases. See Op. Att'y Gen. 73-34.

OPINION 76-63 To: Secretary of State

June 21, 1976

Re: There is no general prohibition against a county employee running for county office without first resigning from his employment; the legality of his holding the office and employment simultaneously (if elected) would depend upon whether the office and employment are "compatible."

This is in reply to your letter of June 1, in which you ask whether an individual employed by the county board of tax assessors must resign his job to run for a county office (the precise "office" sought is not indicated).
While Ga. Code Ann. 92-6907 (Ga. Laws 1913, pp. 123, 125; 1961, p. 563) declares ''members of the board of tax assessors" to be ineligible to hold any state, county or municipal office during their term, it would not appear to have any relevance to the situation about which you inquire since (1) the individual to whom you refer is described as an "employee" rather than a "member" of the board, and (2) the statutory prohibition in any event applies to the "holding" of another office and not to "running" for it. I am unaware of any other state statute of general application which would prevent an individual "employed" by a county from "running" for an elective "office" of that county.
As to whether or not a conflict might develop concerning the simultaneous holding of the county "office" and "employment" (if and when the individual is elected), this would depend on whether the two are compatible (such as where it would be a duty of the "official" to supervise his own employment or fix his own compensation). By way of illustration only, a county school board member cannot at the same time be a school teacher or school bus driver employed by that school board. See Ops. Att'y Gen. 68-493, 68-30, 67-17. See also Welsch v. Wilson, 218 Ga. 843, 844 (1963).

OPINION 76-64
To: Acting Commissioner of Personnel Administration

June 24, 1976

Re: Georgia Laws 1976, p. 1414, covers all noncompetitively bid contracts, other than individual employment contracts, that are en-

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tered into between a state agency and a nonprofit contractor where the nonprofit contractor receives public funds of any kind under the contract.

This is in response to your recent request for my official opinion as to whether the awarding of a totally federally funded grant to a nonprofit organization by a state agency would be covered under the provisions of Ga. Laws 1976, p. 1414 (Ga. Code Ann. 89-964 to 89-970). In particular, you are concerned with whether the grants under the Intergovernmental Personnel Act of 1970 (42 U.S.C. 4701 et seq.), which your office administers, would be covered.
As part of the Intergovernmental Personnel Program, your office enters into contracts with nonprofit organizations to provide research, to develop personnel manuals, and to provide instruction to personnel managers of the various local governmental agencies. These grants are totally federally funded.
Act No. 1359 of the 1976 Session of the Georgia General Assembly requires certain reports and assurances from nonprofit organizations which are awarded contracts, other than individual employment contracts, by a state agency on a noncompetitive basis. This law covers all such contracts under which the nonprofit organization receives "public funds," regardless of whether those public funds were originally state funds or federal funds. Ga. Laws 1976, pp. 1414, 1417.
Therefore, it is my official opinion that Ga. Laws 1976, p. 1414, covers all noncompetitively bid contracts, other than individual employment contracts, that are entered into between a state agency and a nonprofit contractor where the nonprofit contractor receives public funds of any kind under the contract.

OPINION 76-65

To: Commissioner, Department of Revenue

June 25, 1976

Re: Regional Supervisors within the Department of Revenue's Alcohol and Tobacco Tax Unit are supervisory law enforcement personnel and, as such, are not entitled to a waiver of the mandatory retirement age under Ga. Laws 1976, pp. 1459-61, after the attainment of age 60; the supervisory duties of the director of that unit are not all or predominantly in the field of law enforcement, rendering the provisions of the mandatory retirement Act inapplicable to the director's position.
Your recent letter requests my opinion on the interpretation of a portion of the Act providing mandatory retirement ages and benefits for alcohol and tobacco officers or agents within the Department of Revenue. Ga. Laws 1974, pp. 1210-13, as amended by Ga. Laws 1976,

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pp. 1459-61; Ga. Code Ann. 40-2518.1. Specifically, you have received an inquiry from a Regional Supervisor within the Alcohol and Tobacco Tax Unit of your department as to the applicability of this Act to him.
The Act providing mandatory retirement ages and benefits will ultimately, by 1979, require the retirement of alcohol and tobacco officers or agents at age 55. During the period of time from 1974 through 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 during each year from 1974 through 1979. In exchange for the early retirement requirements of the Act, affected officers and agents receive the advantage of an accelerated structure of retirement benefits which are more generous than the benefits to which other members of the Employees Retirement System with commensurate service and age would be entitled.
The Act authorizes the waiver of the mandatory retirement age for alcohol and tobacco agents or officers by the commissioner under certain circumstances. A waiver is authorized, but not mandatory, for any nonsupervisory alcohol and tobacco agent or officer who entered service in the Department of Revenue on or before January 31, 1974,1 but this waiver may only be extended for the sole purpose of allowing the officer or agent to achieve 25 years of creditable service. Ga. Code Ann. 40-2518.1 (c). See also, Op. Att'y Gen. 72-155.
A waiver is also authorized for alcohol and tobacco officers or agents in a supervisory classification, any such waiver request to be initiated by the officer or agent or by the commissioner. However, waivers granted to officers or agents in supervisory classifications are broader in purpose but more limited as to age. They may be granted for any reason, in the commissioner's discretion, but may not be granted to a supervisory officer or agent who has reached 60 years of age. Ga. Laws 1976, pp. 1459-61; Ga. Code Ann. 40-2518.1 (c). See, generally, Op. Att'y Gen. 75-114.
The pivotal question in the present request is whether Regional Supervisors within the Alcohol and Tobacco Tax Unit of the Department of Revenue are engaged in law enforcement duties in a supervisory classification. When this determination is made, the applicability or nonapplicability of the Act becomes evident. I have been advised by your staff that Regional Supervisors are classified by the commissioner as law enforcement officers in a supervisory classification.
The correctness of this classification is apparent upon examination of the job description for a Regional Supervisor.2 The job description
1 The date was originally set at December 31, 1964 by the 1974 Act. Georgia Laws 1976, pp. 1459-61, changed the entry date to January 31, 1974 for alcohol and tobacco officers or agents. 2 The very title of the position portends that one who occupies it is a supervisor.

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indicates clearly that Regional Supervisors direct, coordinate and supervise the activities of the field law enforcement personnel. While Regional Supervisors themselves sometimes personally enforce the laws under the authority of the Alcohol and Tobacco Tax Unit, this fact does not make them any less supervisory over the work of others in the unit who are responsible to them.
Accordingly, based on the foregoing rationale and authorities, I am impelled to the opinion that Regional Supervisors are in a supervisory classification within the Alcohol and Tobacco Tax Unit and, as such, are not entitled to receive waivers of the mandatory retirement age from the commissioner after the attainment of 60 years of age.
Additionally, you have requested my interpretation of the meaning of the last sentence in subsection c of Section 15A of the Act. That sentence reads as follows:
"The provisions of this subsection shall not apply to any alcohol and tobacco officer or agent in a supervisory classification whose supervisory duties are not all or predominantly in the field of law enforcement." Ga. Laws 1976, pp. 1459, 1461; Ga. Code Ann. 40-2518.1 (c), as amended.
This sentence appears, in my judgment, to speak for itself and needs no intrusive construction. It should be read to mean what it expresses. See Barnes v. Carter, 120 Ga. 895 (1904). What it says is that the provisions of the mandatory retirement Act do not apply to supervisory officers or agents if their supervisory duties are not all or predominantly in the field of law enforcement. In other words, they are excluded from the Act altogether if this is the case.
In addition to the job description of the Regional Supervisor, you have forwarded me the job descriptions of the Director of the Alcohol and Tobacco Tax Unit and the Tax Unit's Chief of Enforcement. You have asked my opinion on whether these positions should be covered under the mandatory early retirement provisions of the Act. The assigned duties of the Chief of Enforcement appear to place that position in a supervisory classification under the Act. Those duties are predominantly in the field of law enforcement.
However, the job description of the Director of the Alcohol and Tobacco Tax Unit envisions substantially more than law enforcement. His primary duties and responsibilities are better characterized as the supervision and administration of the entire unit, and the planning and execution of the unit's policies and programs at an administrative and supervisory level. These duties are not predominantly law enforcement as perceived by the context of the Act.3 It is therefore my opinion that the director of this unit is not subject to the terms of
8 For an analogous opinion in a slightly different statutory context, see Op. Att'y Gen. 74-45.

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the early mandatory retirement Act. Ga. Laws 1974, pp. 1210-13, as amended by Ga. Laws 1976, pp. 1459-61; Ga. Code Ann. 40-2518.1 (c).

OPINION 76-66

To: Commissioner, Department of Revenue

June 25, 1976

Re: Commissions on the collection of county school taxes, authorized by Ga. Code Ann. 32-1106, may only be expended to provide for the maintenance and support of the county public school systems and in those counties where the tax commissioner is paid on a salary basis, these commissions may not be paid to the county fiscal authorities, without specific legislative direction that the funds be expended by those authorities solely for the support and maintenance of the public schools.

This is in response to your request for my opinion concerning the impact of a recent Supreme Court decision, Coleman v. Kiley, 236 Ga. 751, Case No. 30775, decided April 20, 1976, on the collection and disposition by a county tax commissioner of the school tax commission authorized by Ga. Code Ann. 32-1106 (Ga. Laws 1919, pp. 288, 337; 1946, pp. 206, 211).
Georgia Code Ann. 32-1106 generally provides that a county tax collector or tax commissioner may retain two and one-half percent of the county school taxes which he collects as compensation for his services. Georgia Code Ann. 32-1106 further provides that:
"In those counties where the tax collector or tax commissioner is on a salary basis the fees herein provided for [two and one-half percent of the county school taxes] shall be collected by him and paid over to the proper fiscal authorities." [Matter in brackets added.]
In Coleman v. Kiley, the Supreme Court of Georgia held that the Tax Commissioner of Chatham County, who is compensated on a salary basis, could not collect this two and one-half percent commission and pay it to the Board of Commissioners of Chatham County. Rather the Supreme Court held that the entire amount of the county school taxes had to be paid to the Board of Public Education for the City of Savannah and the County of Chatham.
At issue, initially, was the language of a local statute establishing a salary for the Tax Commissioner of Chatham County. Georgia Laws 1955, pp. 2210, 2212, provided that:
"Be it further enacted by authority aforesaid, that the said Chatham County Tax Commissioner shall receive no fees or compen-

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sation for the collection of any taxes levied for school purposes in said Chatham County and the collection of said taxes shall be considered one of his duties and the Commissioners of Chatham County shall make no charge against the Board of Public Education for the City of Savannah and the County of Chatham for the collection of school taxes in said county."
However, the Supreme Court's analysis in the case has a far wider impact, requiring an analysis of the disposition of county school taxes in every county and providing the tools which must be used to determine the proper disposition of these school tax commissions.
The analysis utilized by the Supreme Court involved the application of Art. VIII, Sec. XII, Par. I of the Constitution of Georgia (Ga. Code Ann. 2-7501) which provides, in pertinent part, that:
"School tax funds shall be expended only for the support and maintenance of public schools, public education and activities necessary or incidental thereto, including school lunch purposes."
The Supreme Court concluded that the cited section of the Constitution requires that all monies collected as school taxes be only expended for the purpose of supporting and maintaining public schools and education, holding that the expenditure of funds for this purpose must be direct and unequivocable, and that an indirect expenditure would not meet the constitutional requirements of Art. VIII, Sec. XII, Par. I of the Constitution (Ga. Code Ann. 2-7501).
To demonstrate, utilizing the reasoning of the Supreme Court, it is permissible for a county tax commissioner to be compensated for collecting school taxes by receiving a commission paid out of those taxes, pursuant to Ga. Code Ann. 32-1106, because the collection of the taxes is a necessary and incidental expense of maintaining the county school system and the payment of the commission as compensation for the tax commissioner would constitute a direct expenditure in support of the public school system.
On the other hand, where the tax commissioner is paid a salary and the disposition of the commission, pursuant to Ga. Code Ann. 32-1106, is controlled by local legislation which is either silent on the issue, or simply requires that the commission be paid into the county treasury, there is neither any assurance nor requirement that the county school tax funds would be spent for the purpose of supporting and maintaining the public school system. These funds, after having been paid into the county treasury without any statutory direction as to their expenditure, could well be spent for any purpose and in such an instance, this disposition of the county school taxes would violate the cited constitutional section and would be invalid.
Hence, in answer to your question, in determining whether any

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particular method of disposition of a commission on county school taxes is valid, it will be necessary to examine the local legislation which places the tax commissioner or tax collector on a salary. The decision of the Supreme Court in Coleman v. Kiley clearly mandates that in those counties where the local legislation is silent as to the disposition of the commission or, stated more directly, does not require its expenditure for the support of the public school system, all of the county school taxes must be paid to the local board of education and no portion may be paid to the county fiscal authorities.

OPINION 76-67

To: Insurance Commissioner

June 28, 1976

Re: To comply with Ga. Code Ann. 56-1522 (1), a domestic insurer must establish and maintain its principal office at a designated situs within the State of Georgia where the governing powers of the insurer are exercised and where a substantial amount of the attendant business activities are regularly conducted; it must keep in that office all records of transactions and correspondence that pertain to each policy of insurance issued.

Your letter of June 11, 1976 requested an official opinion as to what guidelines should be used to insure that domestic insurers in Georgia comply with the provisions of section 56-1522 (1) of the Georgia Insurance Code (Ga. Laws 1960, pp. 289, 551). More specifically, you requested an official opinion with regard to two questions of statutory construction:
(1) What constitutes the maintenance of an insurer's "principal place of business in this state" under Ga. Code Ann. 56-1522 (1)?
(2) What constitutes the keeping of "complete records of the assets, transactions and affairs of the insurer in accordance with such methods and systems as are customary or suitable as to the kind or kinds of insurance transacted" under Ga. Code Ann. 56-1522 (1)?
In determining the meanings of these provisions, it is important to note that "the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter...."Ga. Code Ann. 102-102 (1). No words of art or words used peculiarly within the realm of insurance are found in Ga. Code Ann. 56-1522. Thus, the ordinary meaning of the language used will apply.

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In general, having the "principal place of business in this state" requires more than merely locating executive offices within Georgia's boundaries. United States v. Geraci, 280 F. 256 (5th Cir. 1922). Rather, it entails analysis of the totality of the insurer's activity which, of course, will vary with each fact situation. DeKalb County v. Southern Bell Tel. & Tel. Co., 358 F. Supp. 498, 503 (N.D. Ga. 1972). The statute contemplates that a domestic insurer have a definite situs or principal nerve center as its domicile. Cf. J ossey v. Georgia & Alabama Ry. Co., 102 Ga. 706 (1897).
Hence, in our opinion the principal place of business of any corporate entity is generally considered to be the place where the officers of the corporation exercise the governing powers and where the corporate books and records are kept. This rule has long applied to domestic corporations under the reasoning of J ossey v. Georgia & Alabama Ry. Co., supra. Inasmuch as the purpose of section 56-1522 is to establish the legal residence of domestic insurers, the rationale of J ossey is, in our view, applicable both to incorporated and unincorporated domestic insurers.
Further, there are other more specific considerations that may serve as guidelines in insuring compliance with the statute. It must be clear that the insurer is doing business as an insurer at the designated location. The courts have held that this requirement of doing business is a qualitative criterion, satisfaction of which depends upon a proper combination of the manner, nature, and extent of the activities that transpire at the insurer's location. See Aetna Insurance Co. v. Great American Indemnity Co., 124 So. 2d 626 (La. App. 1960). In this regard, the mere presence of a volume of business may not in itself be determinative of the location of the principal place of business envisioned by the statute. In re Evans, 12 F. Supp. 953 (W.D. N.Y. 1935); aff'd, 85 F.2d 92 (2d Cir. 1936).
If, however, the insurer is actively engaged in soliciting insurance, making adjustments and payments of claims under outstanding policies in the state, and otherwise to some degree servicing existing insurance contracts, then the location from which these activities originate is more likely to be the principal place of business in this state under section 56-1522. 43 Am. Jur. 2d Insurance, 76. However, this will not be true unless the insurer has a large part of its assets in this state, manages its day to day affairs from the designated location and continues to do more business in Georgia than in other states even though it establishes branches in those jurisdictions. Hodges v. Georgia Kaolin Co., 207 F. Supp. 374 (M.D. Ga. 1962).
In summary, the principal place of business is the location within the state where the governing powers of the insurer are exercised and where the attendant business activities as an insurer are actually and regularly conducted.

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With regard to what constitutes the keeping of "complete records of the assets, transactions and affairs of the insurer ...,"the ordinary meaning of the language used should once again apply. There are no specific enumerations in Georgia law as to what records are required to be kept. Without attempting to be exhaustive, we point out that other jurisdictions have suggested that these records should include items in the nature of a copy of the application for each policy issued, all correspondence between the insurer and the insured that pertains to the policy issued, and other records identifying the parties, premiums, commissions, or any other such pertinent data. See Cal. Ins. Code 10508 (West 1971); N.Y. Consol. Laws 26-A (McKinney 1962).
We trust that the foregoing will give you the guidance you requested in your administration of section 56-1522 (1) of the Georgia Insurance Code.

OPINION 76-68

To: Joint Secretary, State Examining Boards

June 29, 1976

Re: A person licensed or registered with the Georgia State Board of Private Detective and Private Security Agencies may carry a concealed weapon, if properly licensed by the probate judge of the county of his residence, notwithstanding the fact that the board has not issued the licensee or registrant a permit to carry a weapon in a concealed manner.

This is in response to your request for an opinion concerning the impact of Ga. Laws 1976, p. 1430, which amended Ga. Code Ch. 26-29, relating to crimes involving dangerous instrumentalities and practices, on activities of the Georgia State Board of Private Detective and Private Security Agencies. The amendment to Ga. Code Ch. 26-29, among other things, makes it illegal for a person to carry a concealed firearm unless that person has a proper permit or license issued by the probate judge of the county of his residence.
Your inquiry essentially involves the impact of tills amendment on the provisions of Ga. Laws 1973, pp. 40, 50 (Ga. Code Ann. 84-6512), which authorizes the Georgia State Board of Private Detective and Private Security Agencies to issue a permit to a licensee or registrant which exempts that person from the provisions of Ga. Code 26-2901, relating to the carrying of concealed weapons.
While nothing in Ga. Laws 1976, p. 1430, specifically affects Ga. Laws 1973, p. 40 (Ga. Code Ann. Ch. 84-65), the new law does have an impact on the board's control of its licensees and registrants.

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To illustrate, Ga. Laws 1973, p. 40 (Ga. Code Ann. Ch. 84-65), does not prohibit a board licensee or registrant from carrying a firearm, either in an exposed or in a concealed manner. Rather, licensees and registrants are prohibited from carrying weapons by the operation of Ga. Code Ann. Ch. 26-29, which makes it a crime for a person to carry a firearm unless he is either exempt from the operation of Code Ann. Ch. 26-29, or unless he has a permit from the probate judge of the county of his residence which authorizes him to do so. Prior to the recent amendment, the only licenses which the probate judge could issue authorized the person receiving the permit to carry a firearm in an exposed and open manner and the only way a board licensee or registrant could lawfully carry a concealed weapon was by obtaining a permit from the board which exempted the licensee or registrant from the operation of Ga. Code Ann. Ch. 26-29.
Under the recent amendments to Ga. Code Ann. Ch. 26-29, however, the probate judge may now issue a permit which authorizes the recipient to carry a concealed weapon. Thus, the value of Ga. Code Ann. 84-6512, which exempted a person properly licensed by the board from the operation of Ga. Code 26-2901, is lost, in that any board licensee or registrant, instead of applying to the board for a firearm permit which would exempt him from the operation of Ga. Code Ann. Ch. 26-29, may now obtain such a permit from the probate judge of the county of his residence. While the board may certainly still issue such permits, since there is nothing in Ga. Laws 1973, p. 40 (Ga. Code Ann. Ch. 84-65), which would prohibit a board registrant or licensee from obtaining a permit to carry a firearm from a source other than the board, a permit issued by the probate judge would clearly authorize the licensee or registrant to carry a concealed firearm notwithstanding the fact that he does not have a permit from the board to do so.

OPINION 76-69

To: Secretary of State

July 2, 1976

Re: An elector loses his right to vote when convicted of a felony involving moral turpitude.

This is in reply to your request for my official opinion as to which criminal convictions affect eligibility for registration for voting. For the following reasons it is my official opinion that an individual loses his right to vote only by conviction of the crimes of treason against the state, embezzlement of public funds, malfeasance in office, bribery or larceny or a felony involving moral turpitude.

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The qualification of persons to vote in the State of Georgia must be determined solely with reference to the Georgia Constitution and laws. See Op. Att'y Gen. 74-128. The Georgia Constitution, Art. II, Sec. II, Par. I (Ga. Code Ann. 2-801), provides in part:

"[T]he 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."

This provision, while otherwise clear in its statement of specific crimes which result in disenfranchisement, requires construction for purposes of answering your inquiry with respect to the disqualification which arises from conviction "of any crime involving moral turpitude, punishable by the laws of this state with imprisonment in the penitentiary."
That language traces identical language contained in the Constitution of 1877, Ga. Const. 1877, Art. II, Sec. II, Par. I, and finds its origins in the Constitution of 1868 which imposed a disability for conviction of any "crime punishable by law with imprisonment in the penitentiary." Ga. Const. 1868, Art. II, Sec. VI. This shift in the statement of the disqualification, in my opinion, warrants the conclusion that the language establishes two elements which a conviction must evidence.
The first, and most troublesome, is that the crime must be "punishable by the laws of this state with imprisonment in the penitentiary." After consideration of the historical setting in which that language was drafted, it is my opinion that it was meant by its framers to connote the equivalent of crimes then and today classed as felonies. See, e.g., Ga. Laws 1895, p. 63, Ga. Code 27-2501; Richardson v. Ramirez, 418 U.S. 24 (1974); Hill v. State, 164 Ga. 298 (1927); Miller v. State, 58 Ga. 200 (1877). Although the law now operates, as it less clearly did at the time the language was adopted, to permit confinement of some misdemeanants in the state penitentiary (see, e.g., Ga. Code 27-2506 (1933 Code, as amended)), it is my opinion that the framers intended to restrict the type of crime which might result in disenfranchisement to those which today are statutorily classified as felonies.
The second element which Art. II, Sec. II, Par. I of the Constitution establishes is that the felony must be one "involving moral turpitude." This element presents a less difficult problem in construction but a

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more difficult problem in administration. "Moral turpitude," the Georgia Supreme Court has held, can be stated as follows:
"[A]n act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." Huff v. Anderson, 212 Ga. 32, 34 (1955).
It is obvious from the above-cited definition that whether a crime is properly considered to be one "involving moral turpitude" by necessity must be decided on a case-by-case basis, and it would be an impossible task to catalogue all felonies under Georgia law or under the laws of other jurisdictions which registrars might encounter. However, I believe that it might be helpful to cite certain examples of crimes which have been found always to involve moral turpitude along with others which have been ordinarily found not to involve moral turpitude in order to assist the case-by-case determination of these questions.
Moral turpitude is always involved in the crimes of murder and voluntary manslaughter. In Holloway v. Holloway, 126 Ga. 459 (1905), the Georgia Supreme Court noted:
"Murder involves vileness and depravity; for it is the result of an abandoned and malignant heart. Voluntary manslaughter involves the intentional destruction of human life.... Whenever one intentionally and wrongfully takes human life, he does an act which is base, vile, depraved, and contrary to good morals." 126 Ga. 460-61.
Other examples of crimes which always involve moral turpitude were pointed out in Huff v. Anderson, 212 Ga. 32 (1955) (presenting fraudulent claims against the government); Thompson v. State, 72 Ga. App. 852, cert. den. 329 U.S. 714 (1946) (cheating and swindling); United States ex rel. Volpe v. Smith, 289 U.S. 422 (1933) (counterfeiting); United States ex rel. Cerami v. Uhl, 78 F. 2d 698 (2d Cir. 1935) (robbery); Bancroft v. Board of Governors of Registered Dentists of Oklahoma, 202 Okla. 108, 210 P. 2d 666 (1949) (issuing checks without sufficient funds with intent to defraud); United States ex rel. Karpay v. Uhl, 70 F. 2d 792 (2d Cir. 1934) (perjury); In re King, 165 Ore. 103, 105 P. 2d 870 (1940) (false swearing); Ng Sui Wing v. United States, 46 F. 2d 755 (7th Cir. 1931) (statutory rape); and State ex rel. Ricco v. Biggs, 198 Ore. 413, 255 P. 2d 1055 (1953) (keeping a bawdyhouse).
However, moral turpitude was found not to be involved in the following crimes: United States ex rel. Andreacchi v. Curran, 38 F. 2d 498 (S.D. N.Y. 1926) (carrying a concealed weapon); Wyatt v. Cerf,

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64 Cal. App. 2d 732, 149 P. 2d 309 (1944) (disturbing the peace); Curry v. State, 17 Ga. App. 312 (1915) (fighting); Duke v. Meyers, 86 Ga. App. 271 (1952) (unlawfully selling intoxicating liquor); and Groves v. State, 175 Ga. 37 (1932) (driving a vehicle on a public road while in an intoxicated state).
In sum, it is my official opinion that Ga. Const., Art. II, Sec. II, Par. I, imposes a disqualification from conviction of the crimes specified therein or of any other felony involving moral turpitude.

OPINION 76-70

To: Secretary of State

July 6, 1976

Re: A domicile established within this state continues until a new domicile is established within another state.

This is in reply to your recent request for my official opinion concerning whether a person, having established domicile within this state, will retain his domicile here until he officially establishes a domicile in another state.
Georgia Code (1933) 79-401 et seq. provides for the place of domicile in general, as well as for change of domicile. Those sections require that, in order to change domicile, a person must actually remove to another place with the intent to remain there as his domicile, or, having removed, avow his intent to remain there as his domicile. Worsham v. Ligon, 144 Ga. 707 (1916). It has been stated that a domicile, once established, continues until a new domicile is acquired, which does not occur until the old residence is abandoned with the intent of remaining permanently or for an indefinite time in the new residence. Williams v. Williams, 191 Ga. 437 (1940).
Therefore, based on the foregoing, it is my official opinion that a person, having established domicile within this state, will retain his domicile here until he officially establishes domicile in another state.

OPINION 76-71

To: Governor of Georgia

July 7, 1976

Re: The Fulton County Daily Report may be selected by the Constitutional Amendments Publications Board for the publishing of general constitutional amendments in the 5th Congressional District.

This is in reply to your letter of July 1, 1976, in which you requested my opinion as to the validity of publishing general constitutional amendments in the Fulton County Daily Report.

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According to your letter, "Mr. Frank Kempton, President of the Daily Report Company, which publishes the Fulton County Daily Report, has asked the Publications Board to consider publishing some of the proposed amendments in the Fulton County Daily Report. Mr. Kempton has advised that the present circulation of the Fulton County Daily Report is approximately 1700. Mr. Kempton is of the opinion that his paper would qualify as a publication of news of a general nature circulated among the general public published in the 5th Congressional District. Mr. Kempton has advised that his paper has published legal notices in the past and that the validity of such publication has been approved from time to time by courts considering the validity of such publication."
The Constitutional Amendments Publications Board was established by Georgia Laws 1970, p. 640, pursuant to Art. XIII, Sec. I, Par. I, of the Georgia Constitution (Ga. Code Ann. 2-8101). The board is composed of yourself, the Lieutenant Governor and the Speaker of the House of Representatives and has the sole function of providing for the publication of proposed constitutional amendments in the manner required by Art. XIII of the Constitution. This Article provides that general amendments, that is, those amendments affecting the entire state, shall be published "in one newspaper of general circulation in each congressional district" and "it shall be published, as provided by law ..."
I am unaware of any specific provision of law enacted by the General Assembly to implement the language contained in Art. XIII as to the phrase "as provided by law," except the 1970 Act creating the Constitutional Amendments Publications Board. However, Ga. Code Ann. 39-1103 (Ga. Laws 1910, p. 87; 1953, Nov. Sess., p. 271) provides for the selection of an official organ of any county for the publications of sheriff's sales, Judge of the Probate Court's citations or any other advertising commonly known and termed "official or legal advertising" and "required by law to be published in such county official newspaper ..." I understand that the Fulton County Daily Report has been properly selected as the official organ under this Code section for Fulton County.
I refer you to my official opinion, September 12, 1974, Ops. Att'y Gen. 74-127. In that opinion I indicated that the general amendments must be published in one newspaper of general circulation, published in each congressional district, and that a newspaper of "general circulation" is one which publishes general news and circulates among the general public.
I also opined in that opinion that the selection of the newspaper is within the discretion of the Constitutional Amendments Publications Board provided the newspaper meets the criteria set forth in that opinion. I further stated in that opinion that "each general amend-

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ment must be published in only one newspaper, published in each congressional district which is a newspaper of general circulation." Further, the phrase "newspaper of general circulation" has unanimously been interpreted to refer to the character of the newspaper and of its circulation rather than to the mere number of its readers. Therefore, it is my opinion that the Fulton County Daily Report may be selected by the Constitutional Amendments Publications Board, so long as this newspaper is designated as the "official organ of Fulton County," for the publishing of general constitutional amendments as provided in Art. XIII of the Georgia Constitution, supra.

OPINION 76-72

To: State Superintendent of Schools

July 9, 1976

Re: Local school boards are authorized to expend common school funds to employ certified public accountants to audit the records and accounts of the school system they administer.

This is in reply to your letter of June 21, in which you ask for our opinion as to whether a local board of education may use the common school fund to employ a certified public accountant to audit the records and accounts of the school system they administer. You indicate that some of your staff members question the propriety of such expenditures, particularly with respect to accounts which you advise are kept separate from "general school fund accounts," such as, for example "lunchroom," "athletic," and "other similar accounts," notwithstanding the apparent authority of Ga. Laws 1919, p. 315, as amended, and in particular as amended by Ga. Laws 1965, pp. 668, 670 (Ga. Code Ann. 40-1812).
I rather imagine the question as to the legality of such expenditures may stem from Op. Att'y Gen. 1962, p. 155, which in responding in the negative to the question of whether a county board of education could expend county education funds for a private audit of funds derived from extracurricular activities, also observed in passing that since the "State Department of Audits and Accounts" was already required to audit the books and accounts of local school systems, it would be needless and a wrongful expenditure of the public school fund to duplicate the process with outside auditors. This 1962 observation "in passing" has, of course, been superseded by the 1965 amendment to the statute providing for the state audit of the books and accounts of local school systems. This amendment, i.e., Ga. Laws 1965, p. 668, added the following paragraph to Ga. Code Ann. 40-1812:
"Notwithstanding any other provisions of this section, the local

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boards of education of the several county, independent and area public school systems of this State ... shall be authorized to have an audit made of the books, records and accounts of the public school system over which any such board has jurisdiction. Said local boards of education shall be authorized to employ certified public accountants of this State to make said audits and to expend funds for such audit which are received by any such board for educational purposes."
In light of this amendment a local school system is now fully authorized to expend common school funds to obtain an outside certified public accountant's audit of its records and accounts as to those activities in which it is lawfully engaged and for which it can legitimately expend school funds. I consider the italicized qualifying language to be important since you refer to "lunchroom," "athletic" and "other similar accounts." Nothing in this opinion is to be taken as signifying that it would be permissible to use common school funds to audit the accounts of school related but extracurricular activities which are not and cannot be funded with school funds. We believe that the cited opinion, i.e., Op. Att'y Gen. 1962, p. 155, continues to be correct in its conclusion that a county school board cannot expend county school funds for a private audit of funds derived from extracurricular activities and that any audit of these funds must be paid for from such funds themselves.

OPINION 76-73

To: Secretary of State

July 9, 1976

Re: An election supervisor of a county board of registrations and elections may not certify election and primary results.

This is in response to your recent request for my official opinion concerning whether the supervisor of a county board of registrations and elections, created pursuant to Ga. Laws 1967, p. 3211 et seq., as amended, has authority to certify election results.
Pursuant to Ga. Laws 1967, p. 3211, as amended, in any county having a population of more than 500,000, according to the 1960 or any subsequent census, the county board of registrations and elections has succeeded to all duties of the ordinary with regard to the preparation and conduct of elections and primaries. Ga. Laws 1967, pp. 3211, 3213. This would include the ordinary's duty to certify election and primary results. See Ga. Code 34-1504 (Ga. Laws 1969, pp. 292, 294; 1970, pp. 347, 374). Since the authority to certify results belongs

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to the board, that authority can, of course, be exercised by a majority of the members. Ga. Code 102-102 (5).
Each such county board of registrations and elections has a chief administrative officer, designated "elections supervisor," who is appointed by the governing authority of the county upon the recommendation of the board. Ga. Laws 1975, pp. 4512, 4513. The elections supervisor has such duties and functions in regard to elections as may be prescribed by the board. Id. Although the board may delegate ministerial functions to the elections supervisor, it may not delegate powers which involve the exercise of judgment and discretion. Horton v. The State, 112 Ga. 27, 28 (1910); Op. Att'y Gen. 71-86, 72-80, 72-99, and U75-84. The power to certify elections most certainly involves the exercise of judgment and discretion.
Based on the foregoing, it is my official opinion that an elections supervisor of a county board of registrations and elections created pursuant to Ga. Laws 1967, p. 3211, as amended, may not certify election and primary results.

OPINION 76-74

To: Acting Commissioner of Personnel Administration

July 12, 1976

Re: Georgia Laws 1937-38, Extra. Sess., p. 189, as amended (Ga. Code Ann. 89-106) cannot be constitutionally applied to exclude aliens from public employment except to bar them from positions that participate directly in the formulation, execution or review of broad public policy or from positions where citizenship otherwise bears some rational relationship to the special demands of the particular position.

Recently the United States Supreme Court held that the United States Civil Service Commission's alien exclusion from employment rule was unconstitutional. Hampton v. Wong, 426 U.S. 88,44 U.S.L.W. 4737 (June 1, 1976). Since that opinion was rendered, you and several other state officials have inquired as to the validity of Georgia alien law, Ga. Laws 1937-38, p. 189, as amended (Ga. Code Ann. 89-106).
In its relevant section, the state alien statute provides as follows:
"Except as hereinafter provided, no department of the State Government or any political subdivision thereof shall employ any alien for any purpose until a thorough investigation has been made and it is ascertained that there is no qualified American citizen available to perform the duty desired." Ga. Code Ann. 89-106 (a).

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In considering the validity of any statute which either excludes aliens or prefers citizens, it must be realized that aliens are protected by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (Ga. Code Ann. 1-815). Sugarman v. Dougall, 413 U.S. 634 (1973); Graham v. Richardson, 403 U.S. 365 (1971). Furthermore, classifications based on alienage are subject to strict scrutiny and, to be constitutional, must advance a special state interest. See Sugarman v. Dougall, supra. Consequently, aliens can constitutionally be excluded from public employment where "citizenship bears some rational relationship to the special demands of the particular position." See Sugarman v. Dougall, supra, at 647. However, aliens cannot be broadly excluded from all public employment. Sugarman v. Dougall, supra.
Therefore, it is my official opinion that the Georgia alien law (Ga. Laws 1937-38, p. 189, as amended (Ga. Code Ann. 89-106)) cannot be constitutionally applied to exclude aliens from public employment except to bar them from positions that participate directly in the formulation, execution or review of broad public policy or from positions where citizenship otherwise bears some rational relationship to the special demands of the particular position. Accordingly, I would recommend that this statute not be applied to those public positions for which its application would be unconstitutional.

OPINION 76-75

To: Secretary of State, Commissioner of Securities

July 15, 1976

Re: The sale of time-sharing units in a condominium when coupled with a rental pool or other profit-sharing arrangement constitutes a security within the definition of the Georgia Securities Act of 1973 and, unless exempt, must be registered pursuant to the Securities Act; any person offering for sale or selling such securities that are subject to registration must register as a dealer, limited dealer, salesman, or limited salesman under the Securities Act unless such a person is a real estate broker or salesman licensed to sell real estate in Georgia.
C & H Investments is a Minnesota general partnership which owns Seacrest Condominiums located near St. Augustine, Florida. The partnership plans to offer 82 units comprising the six-building condominium complex as time-sharing units whereby each of 52 persons will be deeded a fee simple interest in a unit with the right to the use and occupancy of that unit for one week each year. The deed will convey a 40-year estate with the remainder over in fee to the grantee as tenant in common with the other owners of time-sharing units. Owners of

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the individual units will have the exclusive right to occupy their respective units during the week designated to them, and they may authorize others to exercise their occupancy and use rights but only by prior reservation of time with the condominium's management company (infra).
The deed is made subject to a comprehensive Declaration of Condominium which sets out in detail the method by which the project shall function. It provides that the condominium will be governed by an Owners Association consisting of all the owners of condominium units. Among other things, the Owners Association shall enter into a management agreement with Real Estate Advisory Group, Inc., a Florida corporation which shall manage and operate the condominium. The management company shall have authority to promulgate and adopt rules and regulations for the use and occupancy of the condominium's common and limited elements and for its individual units.
The Board of Directors of the Owners Association shall also fix the common expenses due from each unit owner or it may delegate that responsibility to the management company. Common expenses and assessments shall be shared by all the unit owners based on a ratio between the costs and the purchase price of a condominium unit. Similarly, any common surplus of the Owners Association shall be shared by the unit owners in the same fashion. Common surplus is defined as "the excess of all receipts of the Association from this Condominium including, but not limited to, assessments, rents, profits and revenues on account of the common elements, over and above the amount of common expenses of this Condominium." (Declaration of Condominium Article 1.7.) Thus, any income derived by the management company shall inure to the benefit of the Owners Association and shall then be distributed pro rata among the individual condominium unit owners.
The Declaration of Condominium also states that nothing shall restrict the developer (partnership) or any of its successors from selling or conveying any unit on a time-sharing plan or any person, association, corporation, partnership or other entity from selling, reconveying or otherwise transferring any unit on a time-sharing plan.
We have been asked to determine whether the foregoing time-sharing units constitute securities within the meaning of the Georgia Securities Act of 1973 (Ga. Laws 1973, p. 1202 et seq., Ga. Code Ann. Ch. 97-1). We are of the opinion that they do.
The definition of "security" in Section 2 (16) of the Georgia Securities Act of 1973, as amended, includes any certificate of interest or participation in any profit-sharing agreement, investment contract, or beneficial interest in profit or earnings. The statute amplifies the concept of an investment contract to include, but not be limited to:

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"an investment which holds out the possibility of return on risk capital even though the investor's efforts are necessary to receive such return if (i) such return is dependent upon essential managerial or sales efforts of the issuer or its affiliates and (ii) one of the inducements to invest is the promise of promotional or sales efforts of the issuer or its affiliates in the investor's behalf, and (iii) the investor shall thereby acquire the right to earn a commission or other compensation from sales of rights to sell goods, services or other investment contracts of the issuer or its affiliates."
More significantly, the Securities Act excludes from the definition of a security:
"any interest in a residential unit and a rental management arrangement relating to such residential unit so long as the ownerparticipants under the rental management arrangement, whether optional or mandatory, do not participate directly in the income derived from the rental of units owned by others."
Conversely, where there exists a rental management arrangement coupled with an interest in a residential unit wherein the ownerparticipants do benefit from the rental income derived from units owned by others, the arrangement will constitute a security. This is, we believe, precisely the situation existing in the instant case.
The determination of whether time-sharing units are securities turns upon a variety of factors which the Securities and Exchange Commission has established as a guide to prospective offerors of such interval ownership units. See SEC Rel. No. 5347, January 4, 1973 [CCH Fed. Sees. Law Rptr. ~ 1049]. The commission has taken the position that an offering of condominium units in conjunction with any one of the following will cause the offering to be considered an offering of securities in the form of investment contracts:
(1) The condominiums, with any rental arrangement or other similar service, are offered and sold with emphasis on the economic benefits to the purchaser to be derived from the managerial efforts of the promoter, or a third party designated or arranged for by the promoter, from rental of the units;
(2) The offering of participation in a rental pool arrangement; and
(3) The offering of a rental or similar arrangement whereby the purchaser must hold his unit available for rental for any part of the year, must use an exclusive rental agent, or is otherwise materially restricted in his occupancy or rental of his unit.
The resort condominium has many benefits and attractions that can conceivably be of great interest to investors seeking a return on an

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investment of capital. A resort home of this type can be rented to others when not being used by the owner. If the unit is offered for rent, the owner may realize significant tax deductions for interest payments and real estate taxes. If the unit is deemed to be owned for profit, then operating and depreciation costs allocable to the period during which it is offered for rent can be deducted. If considered a nonprofit enterprise, deductions extend to rental income less deductions for real estate taxes and mortgage interest payments during the taxable year. See Internal Revenue Code 183; Treas. Reg. 1.183-2 (b) (1).
It has been suggested that where an offering of this type is geared principally toward a purchaser whose intention is to buy in expectation of rental income to be generated by the developer (or some third party), then the protective umbrella of the securities laws should come into operation. Rosenbaum, "The Resort Condominium and The Federal Securities Laws-A Case Study in Governmental Inflexibility," 60 Va. L. Rev. 785 (1974). The critical issue as formulated by this source is the need to distinguish between what is a bona fide second (resort) home with incidental rental services and what is an offering of a security to investors. Rosenbaum, supra, at 796.
It would seem fairly clear that where an offeror has adopted a policy of spreading rental income among all participants in a rental program by undertaking with the condominium unit owner to rent each unit for an approximately equal amount of time, the attributes of a security in the form of an investment contract or profit-sharing agreement are undeniably present. If a condominium unit owner is required to use an exclusive rental agent or to funnel his rental offer through some third party and his profits are pooled if he does choose to rent, there is also little doubt that a security is involved. See Little Squaw Moun-
tain Township, CCH Fed. Sees. Law Rptr. 'tf 82, 536 (4/25/73).
Thus, the existence of various kinds of collateral arrangements may cause an offering of condominium units to involve an offering of investment contracts or interests in a profit-sharing agreement. The presence of such arrangements indicates that the offeror is offering an opportunity through which the purchaser may earn a return on his investment through the managerial efforts of the promoter or a third party in their operation of the enterprise. See The Innisfree Cor-
poration, CCH Fed. Sees. Law Rptr. 'tf 79, 398 (5/7/73).
As indicated above, the existence of a collateral rental pool is a most conclusive indicator that the offering bears the essential characteristics of a securities transaction. A rental pool exists where the developer or some third party undertakes to rent the unit on behalf of the actual owner during that period of time when the unit is not in use by the owner. The rents received and the expenses attributable to rental of all the units in the project are combined and the individual

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owner receives a ratable share of the rental proceeds regardless of whether his individual unit was actually rented. See Rosenbaum, supra. Precisely such an arrangement exists in the present case.
We are of the opinion that the factual situation presented here comes within the statutory definition of an investment contract and a profitsharing agreement contained in the Georgia Securities Act of 1973, as amended, and as the criteria and tests for determining what constitutes an investment contract have been formulated and applied by various state and federal courts and approved in Georgia in J aciewicki v. Gordarl Associates, 132 Ga. App. 888 (1974). Even more conclusive is the fact that the arrangement here falls squarely within the statutory definition of a security contained in Section 2 (16) of the Securities Act as it relates to residential units coupled with a rental management agreement whereby the participants receive a direct benefit from the rental income of units owned by others.
The condominium units are being offered in conjunction with what in effect amounts to a rental pool arrangement. The Declaration of Condominium allows any person, association, group, partnership, or other entity to sell, reconvey, or in any other way transfer any unit on a time-sharing basis. Thus, an owner, or the management company acting on an owner's behalf, is authorized to rent a particular condominium unit for the week or weeks it is not being occupied by its owner. The profits derived from this rental ultimately inure to the benefit of the unit owners since they are distributed pro rata among them. Quite conceivably, a purchaser of one or more condominium units might enter into an agreement with the management company to rent out his units whenever he is unable to occupy them and then merely collect the pro rata profits as a result of the managerial and promotional efforts of the management company. The Declaration of Condominium moreover carries the stipulation that no owner may authorize anyone else to use or occupy his unit except by prior arrangement with the management company. This materially restricts the owner's right freely to use his unit and comes within the scope of the third criterion established by the SEC and noted above.
The Declaration of Condominium's use of the term "common surplus" does not alter the fact that a rental pool arrangement exists in this situation. Securities laws have long since cut through form and sought out substance in determining the economic realities of a situation. SEC v. W. J. Howey Co., 328 U.S. 293 (1946). Euphemisms should not be permitted to disguise the true nature of a securities transaction or be utilized as subterfuge to circumvent and eviscerate the protective purposes of securities regulation.
Our opinion is strengthened by the positions taken by securities regulatory authorities in Alaska and Michigan in situations almost identical to that presented here. See CCH Blue Sky Law Reports~~ 71,287

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and 71,296 (1976). The position taken by the SEC in the matter of The Innisfree Corporation, supra, is, we believe, distinguishable since in the Innisfree arrangement there was no provision for any rental pool or other income-producing facilities while in this case there is a "common surplus" distributable pro rata to the participants and the management company has the right to rent out the common elements and distribute the profits among the unit owners.
We conclude that since the time-sharing condominium units described here are securities within the definition of the Georgia Securities Act of 1973, as amended, they cannot be offered for sale or sold in Georgia unless they are subject to an effective statement of registration under Section 5 of the Securities Act or unless the securities or the transactions are exempt under Sections 8 or 9 of the Act. Moreover, any person who offers for sale or sells such securities that are subject to registration must be licensed as a dealer, limited dealer, salesman or limited salesman under Section 3 of the Securities Act unless such person is a real estate broker or salesman licensed to sell real estate in this state as provided in Section 3 (a) of the Georgia Securities Act of 1973, as amended.

OPINION 76-76

To: Commissioner, Department of Banking and Finance

July 16, 1976

Re: Several questions concerning the Georgia bank holding company statutes as recently amended.

[This opinion supersedes Op. Att'y Gen. 76-35, dated April 16, 1976, which is withdrawn.]
This is in response to a request by your office for my opinion interpreting several aspects of the recent amendments to the Georgia bank holding company statutes. Code 13-207 et seq.; Ga. Laws 1976, p. 168. You have requested an interpretation of Section 7 of the Act which provides for an effective date of July 1, 1975. Ga. Laws 1976, pp. 168, 176. Further, you have requested that I consider the implications of the frequent references elsewhere in the amendments to July 1, 1975. Ga. Laws 1976, pp. 168, 170, 172-175; Section 2 (Code 13-207 (a) (5) (A), 13-207 (g) ) ; Section 3 (Code 13-207.1 (a), 13-207.1 (a) (6) (A) (ii), 13-207.1 (a) (6) (B)); Section 4 (Code 13-207.2 (a)); Section 5 (Code 13-207.3). In addition, you have asked for my interpretation of two apparently conflicting provisions in Section 4 of the Act and a clarification of your responsibility to promulgate rules for the regulation, control and examination of bank

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holding companies doing business in the state. You also desire my interpretation of the phrase "indirectly or acting through" in the amendment to Code Ann. 13-207 as applied to certain described fact situations.
(1) The effective date of Ga. Laws 1976, p. 168, the amendment to the Georgia bank holding company statutes, is July 1, 1976.
Your question concerning the effective date provision of this legislation is prompted by the apparent conflict between the bill's effective date clause and its legislative history. Although Section 7 of the Act provides that it "shall become effective on July 1, 1975," the legislation was not enacted until after that date. The Act passed the House of Representatives on February 12, 1975, but was not voted on by the Senate until the 1976 term of the session, when the Act was approved on January 15, 1976. Subsequently, the Act was signed into law by the Governor on February 3, 1976.
In consideration of the legislative history of the amendments to the bank holding company statutes, a literal interpretation of the Act's effective date provision would lead to the absurd consequence of the Act taking effect on a date seven months prior to its enactment into law. In situations in which a literal construction of statutory language inevitably leads to a preposterous result, judicial inquiry resorts to an investigation of legislative intent. Floyd County v. Salmon, 151 Ga. 313 (1921); see Erwin v. Moore, 15 Ga. 361 (1854).
It is clear that the House of Representatives did not intend a retroactive application of the bank holding company legislation when it was approved in February 1975. Rather, the legislation was prospective, as evidenced by its explicit provision for an effective date of July 1, 1975. Ga. Laws 1976, pp. 168, 176, Section 7. The subsequent legislative history of the Act does not serve to negate the original prospective intent of the House of Representatives. Rather, knowledge of the mechanics of the legislative process can be imputed to the members of the General Assembly. The subject legislation was favorably considered by the House of Representatives in February 1975, with the implicit understanding that action might not be taken by the Senate during the 1975 term of the session, but that consideration of this legislation could be scheduled for the 1976 term of that body. Ga. Const., Art. III, Sec. IV, Par. III (Code Ann. 2-1603). Accordingly, the amendments to the bank holding company statutes were merely proposals, of no force and effect, until such were considered by the Senate and subsequently approved by the Governor, or otherwise allowed to become law.
As the legislation was yet to be enacted, and was without the force and effect of law on July 1, 1975, the section of the Act providing that it was to become effective on that date is meaningless and void. See

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DeWitt v. Richmond County, 192 Ga. 770, 774 (1941); Robey v. Broersma, 181 Md. 325, 29 A.2d 827 (1943); In re Borough of Sharpsburg, 163 Pa. Super. 84, 60 A.2d 557 (1948); 82 C.J.S. Statutes, 400 (1953). A contrary interpretation would effectively negate the constitutional provisions allowing the passage of legislation over the course of a session of the General Assembly. Ga. Const., Art. III, Sec. IV, Par. III (Code Ann. 2-1603).
In the event that an effective date is not specified in the legislative enactment, or the clause providing for such is without effect, the statutory rules of construction provide for an effective date provision. Code Ann. 102-111. As the amendments to the bank holding company statutes were approved by the Governor on February 3, 1976, the rules of construction would provide that July 1, 1976 be used as the effective date of this legislation. Id.
It is therefore my official opinion that the effective date of the amendments to the Georgia bank holding company statutes is July 1, 1976.
(2) References to July 1, 1975 in the substantive provisions of the amendment to the bank holding company statutes should be construed in a manner consistent with the effective date provision of the Act, and be interpreted as July 1, 1976.
Your concern about the effective date provision of the amendments to the bank holding company statutes has evoked a similar question respecting the numerous references in the body of the Act to the date July 1, 1975. Ga. Laws 1976, pp. 168, 170, 172-175; Section 2 (Code 13-207 (a) (5) (A), 13-207 (g)); Section 3 (Code 13-207.1 (a), 13-207.1 (a) (6) (A) (ii), 13-207.1 (a) (6) (B) ) ; Section 4 (Code 13-207.2 (a) ) ; Section 5 (Code 13-207.3).
As discussed above with respect to the effective date clause of the Act, a literal construction of the references to July 1, 1975 in the substantive provisions of the amendments leads to an absurd and impossible consequence. See Floyd County v. Salmon, supra; Erwin v. Moore, supra. Considering the history of the legislation, in particular the fact that the amendments to the bank holding company statutes were not enacted until one year after their introduction, it is apparent that the intent of the legislature was to make the various reporting requirements of the Act effective on July 1, 1976. See Acree v. State, 122 Ga. 144, 147 (1904); Bacon & Sons v. Jones, 116 Ga. 136, 139 (1902). If the various references to July 1, 1975 in the statutes were accorded a literal interpretation, a conflict would be engendered between the effective date clause and the substantive provisions of the Act. Carroll v. Ragsdale, 192 Ga. 118, 120 (1914). The obvious intent of the legislature was to enact statutes the terms of which were harmonious, and the legislative intent must be carried into effect although the precise

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and literal import of the various date provisions of the Act may be contrary to the legislative objective. Sumter County v. Allen, 193 Ga. 171, 176 (1971); Carroll v. Ragsdale, supra; Evans v. Evans, 190 Ga. 364, 370 (1940).
It is therefore my opinion that the references to July 1, 1975 in the substantive provisions of the amendments to the bank holding company statutes should be construed in a manner consistent with the effective date provision of the Act, and be interpreted as effective beginning July 1, 1976.
(3) Rules should be promulgated to the extent necessary to effectuate the regulation, examination and control of bank holding companies doing business in the state.
You have requested that I interpret two apparently conflicting provisions in Section 4 of the Act, and determine whether you are required or merely authorized to promulgate rules and regulations under the Act.
Section 4 of the Act which deals with the registration and reporting of bank holding companies provides in part as follows:
"The commissioner is authorized to issue such regulations and orders as may be necessary to enable him to administer and carry out the purposes of this Section and prevent evasions thereof." Ga. Laws 1976, pp. 168, 174, Section 4 (Code 13-207.2 (b)).
However, the same section also provides that:
"The Commissioner of Banking is hereby authorized, directed and required to promulgate, with precision, rules and regulations and investment procedures in the regulation, examination and control of bank holding companies doing business in this state." Id. (Code 13-207.2 (d)).
You have observed that Code 13-207.2 (b) merely authorizes the promulgation and issuance of rules, while Code 13-207.2 (d) not only authorizes, but directs and requires such promulgation. Further, you relate that no need exists at the present time for additional state rules to enable the regulation, examination and control of bank holding companies doing business in Georgia because of the adequacy of regulation and reporting of this aspect of banking activity at the federal level.
In construing a statute, the provisions of which are in apparent conflict, it is the duty of the reviewing court to reconcile the inconsistency, if possible, so that the provisions are harmonious with one another. Williams v. Bear's Den, Inc., 214 Ga. 240, 242, 104 S.E.2d 230 (1958); Op. Att'y Gen. 71-3. The court may be aided in the task by consideration of the entire statutory scheme of which the conflict-

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ing provisions are a part. Williams v. Bear's Den, Inc., supra. The specific section under consideration makes two references to the federal regulatory scheme, and requires the commissioner whenever possible to use the reports of examination made by the Comptroller of the Currency, the Federal Deposit Insurance Corporation, or the Board of Governors of the Federal Reserve System. Ga. Laws 1976, pp. 168, 175, Section 4 (Code 13-207.2 (c) and (d)). Further, Code 13-207.2 (d) explicitly recognizes that the commissioner's regulation, examination and control of bank holding companies doing business in the state is in addition to the oversight of this banking activity by the Federal Reserve Board. In view of the statute as a whole, it is my opinion that the promulgation of rules and regulations is required only to the extent found necessary, considering the federal regulatory scheme, to enable the full discharge of the commissioner's responsibility under the Act, the regulation, control and examination of bank holding companies doing business in Georgia.
As evidenced by your questions, the intendment of the two provisions in Section 4 which relate to the promulgation of rules and regulations is subject to interpretation, and the exact extent of the commissioner's responsibility in this area is not free from doubt. Before mandamus will lie to compel the discharge of a statutory duty, the obligation must be plainly and clearly defined. Aspinwall v. Harris, 217 Ga. 485, 486-87, 123 S.E.2d 652 (1962). In those situations in which the statutory command is ambiguous, the official's obligation to act is usually construed as discretionary. Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 219 (1930); Winmngham v. United States Dep't. of Hous. and Urban Dev., 512 F.2d 617, 620 (5th Cir. 1975). When an official's actions are committed to his discretion, the discharge of the discretion may be compelled, but the specifics of the performance may not be controlled by an action in mandamus. C & S Nat. Bank v. Indep. Bankers Ass'n, 231 Ga. 421, 425, 202 S.E.2d 78 (1973); Persons v. Mashburn, 211 Ga. 477, 480,86 S.E.2d 319 (1955); Thomas v. Ragsdale, 188 Ga. 238, 242-43, 3 S.E.2d 567 (1939).
It is therefore my opinion that the Act commits the promulgation of rules for the regulation, examination and control of bank holding companies doing business in Georgia to the discretion of the commissioner, and that the commissioner should exercise his discretion by the issuance of rules and regulations to the extent necessary to effectuate the purposes of the Act.

(4) Georgia Code Ann. 13-207, as amended, does not attribute to a company shares of stock of a bank held by the company's shareholders, unless the company is in control of the arrangement or is exercising control over the bank, using its shareholder as an intermediary.

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In consideration of the Supreme Court's decision involving the former statute, you have requested by interpretation of the phrase "indirectly or acting through" found in the provisions of subsection (a) (2) (A) of amended Code 13-207. Ga. Laws 1976, pp. 168, 169-172, Section 2; Independent Bankers Ass'n v. Dunn, 230 Ga. 345, 197 S.E.2d 129 (1973). Specifically, you have asked whether three corporations which are wholly owned by one individual and each of which in turn owns a five percent stock interest in each of two banks constitute bank holding companies under the amendment to Code Ann. 13-207 when the sole shareholder of each of these corporations also owns 64.7 percent and 61.7 percent of the two banks, respectively.
Under the former law, any bank holding company that acquired or held "direct or indirect ownership or control of more than five per centum of the voting shares of any bank" was in violation of the prohibition of Code 13-207. When the Supreme Court construed this section in Independent Bankers Ass'n v. Dunn, supra, resort was made to the statutory definition of the term "company" which "includes the shareholders and those persons who otherwise owned the 'company'." Former Code Ann. 13-207 (b). In the Independent Bankers Ass'n case, the court determined that the shares of stock in certain banks held by persons who were also shareholders in another company should be attributed to the holdings in those same banks by the other company's subsidiary. Indep. Bankers Ass'n v. Dunn, supra, at 361-62, 364. The court determined that the facts demonstrated that those persons who held stock in the parent company were "persons who otherwise own[ed]" the holding company and, therefore, required the attribution of these shares to the five (5%) percent interest of the holding company. Id. However, the court was careful to note that mere ownership of bank stock by an officer, director or shareholder of a company does not in itself constitute indirect control of the bank by the company. Independent Bankers Ass'n v. Dunn, 230 Ga. at 364. It should be noted that the court has construed the indirect control of a bank to be an expansive concept, and interpreted it to include "all methods of doing the thing prohibited except the direct one." Id. at 362. The court's traditional reluctance to pierce the corporate veil has been excepted in those situations in which public policy requires looking beyond a corporate form to the underlying structure in the public interest. Pickett v. Paine, 230 Ga. 786, 791, 199 S.E.2d 223 (1973).
Two changes in the statute are relevant to your inquiry. First, the definition of a "bank holding company" has been refined and, unlike the former law, explicitly recognizes that a company may control other persons and act through them as intermediaries. Compare former Code 13-201.1 (e) and Code 13-207 (a) (2) (A). This refinement adopts the approach taken by the Supreme Court when it found such

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control in Independent Bankers Ass'n v. Dunn, supra. Second, however, the underlying definition of "company" has been changed, in part by deleting the words "and includes the shareholders and those persons who otherwise own the 'company'." Compare former Code 13-207 (b) and Code 13-207 (b). This change means that shares in a bank held by a company's shareholders are no longer to be automatically attributed to the company, for purposes of determining whether or not the company is a bank holding company. Such attribution will continue to be made if other facts are present, as, for example, if the relationship between the company and its shareholder, or other person, is such that the company is "acting through" him.
You have asked whether the refined and arguably more expansive definition of ownership and control subjects to regulation a situation in which an individual owns shares of a bank and all the shares of a company which in turn owns shares of the bank, and the personal and corporate holdings total more than 25 percent of the bank's shares. Absent other facts, the answer to your question is "no," since there is no reason to believe that the holding company is in control of this arrangement or is exercising control over the bank, using its shareholder as an intermediary. Without such control the ownership is substantially the same as direct ownership by an individual of more than 25 percent of the shares of a bank. This latter form of ownership is not subject to regulation under our bank holding company law.
It is therefore my opinion that the described situation is not subject to regulation pursuant to Code Ann. 13-207, as amended.
I hereby withdraw my official opinion dated April 16, 1976, Op. Att'y Gen. 76-35, which answered various questions relating to our new bank holding company statute, Ga. Laws 1976, p. 168. After further research I have concluded that one part of that opinion is incorrect. To correct that part, I submit this new official opinion, which supersedes the one dated April16, 1976.

OPINION 76-77

To: Commissioner, Department of Banking and Finance

July 16, 1976

Re: The 1976 amendment to Ga. Code Ann. 57-116 (Ga. Laws 1976, p. 1197), which raised the maximum add-on interest rate for certain installment loans from six percent to seven percent, did not amend by implication Ga. Code Ann. 57-202 (d), relating to the maximum interest rate on secondary security deeds.

This is in reply to your July 8, 1976 request for my official opinion as to whether the 1976 amendment to Ga. Code Ann. 57-116 (Ga.

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Laws 1976, p. 1197), which raised the maximum add-on interest rate for certain installment loans from six percent to seven percent, amended by implication Ga. Code Ann. 57-202 (d) (Ga. Laws 1966, pp. 574, 576; 1967, pp. 637, 638; 1975, p. 1114; 1976, p. 726), relating to the maximum interest rate on secondary security deeds.
Georgia Code Ann. 57-116, as amended, provides as follows:
"57-116. Interest on loans repayable in monthly, quarterly, or yearly installments. Any person, natural or artificial, in this State, lending money to be paid back in monthly, quarterly, or yearly installments, may charge interest thereon at seven percent per annum or less for the entire period of the loan, aggregating the principal and interest for the entire period of the loan, and dividing the same into monthly, quarterly or yearly installments, and may take security therefor by mortgage with waiver of exemption or title or both, upon and to real estate or personal property or both, and the same shall be valid for the amount of the principal and interest charged; and such contract shall not be held usurious."
Georgia Code Ann. 57-202 (d) sets forth the maximum interest chargeable with respect to loans secured by secondary security deeds, as follows:
"Notwithstanding the method used for computation of interest, interest may be charged on the principal amount of the loan as hereinbefore defined at any rate not greater than a rate equivalent to six percent (6%) per annum computed in accordance with the provisions of [Code] section 57-116, relating to interest on loans to be repaid in monthly, quarterly or yearly installments, [as amended]." [Matter in brackets included in Ga. Laws 1975, p. 1114, but not included in Ga. Code Ann.]
I start by noting that the legislature is presumed not to have done indirectly or by implication what it could have done directly and explicitly, so repeals by implication are not favored. Bragg v. Bragg, 225 Ga. 494, 495 (1969); Lewis v. City of Smyrna, 214 Ga. 323, 326 (1958). Accordingly, an amendment to one statute amends another statute by implication only if the two deal with the same subject matter, so that different provisions would lead to an inconsistency in the law. Mayor of Athens v. Wansley, 210 Ga. 174, 177 (1952).
An examination of the statutes governing the two types of loan makes it clear that the two are not and were never intended to be the same. For example, installment lenders may not charge a service fee in addition to interest. Ga. Code Ann. 57-116. Secondary security deed lenders, on the other hand, can charge a borrower, in addition to interest, up to 10 percent of the principal amount of the

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loan. Ga. Code Ann. 57-201. Part of this charge can be, and ordinarily is, kept by the lender as an "origination fee" or "loan fee." Thus, the legislature has not attempted to equalize the returns generated by the two types of loan.
The treatment of loan prepayments provides further evidence of the legislature's intention to treat the two types of loan as sui generis: a secondary security deed holder must refund unearned interest according to the Standard Rule of 78 (Ga. Code Ann. 57-201); an installment lender is not required to make a refund for unearned interest (Adamson v. Lilienthal, 77 Ga. App. 392 (1948)).
Therefore, it is my conclusion that, while a lender may arguably have a choice as to which section will govern an installment loan secured by a secondary security deed, he cannot combine the two to collect seven percent add-on interest and additional charges.
The explicit cross-reference between the two sections, since it is limited to the method of computing the interest rate, supports the conclusion that the two sections can logically have different interest ceilings. Had the legislature intended to provide for identical interest ceilings when Ga. Code Ann. 57-202 (d) was enacted, it would have broadened the cross-reference to include the interest percentage. Since it did not, the secondary security deed interest ceiling should not be construed to follow the installment note interest ceiling.
Therefore, it is my official opinion that the 1976 amendment to Ga. Code Ann. 57-116 (Ga. Laws 1976, p. 1197), which raised the maximum add-on interest rate for certain installment loans from six percent to seven percent, did not amend by implication Ga. Code Ann. 57-202 (d), relating to the maximum interest rate on secondary security deeds.

OPINION 76-78

To: Chairman, Georgia Public Service Commission

July 19, 1976

Re: Those pronouncements by which an agency seeks to interpret its rules and regulations by formulating explicit and detailed standards which have substantial impact should be promulgated in accordance with the Administrative Procedure Act.

This is in reply to your request for my official opinion as to whether the Georgia Public Service Commission must follow the requirements of the Administrative Procedure Act when the commission seeks to interpret its rules and regulations.
Pursuant to legislation enacted by the General Assembly in its 1975

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term, the requirements of the Administrative Procedure Act are applicable to the promulgation of rules and regulations by the Georgia Public Service Commission (sometimes referred to herein as "commission") in certain matters. Ga. Laws 1975, pp. 404, 407 (Ga. Code Ann. Title 3A). In accordance with the legislative mandate, the commission formally adopted its rules and regulations concerning utilities, which rules became effective on January 1, 1976. Ga. Laws 1975, pp. 404, 407; Chs. 515-1 through 515-12, Official Compilation, Rules and Regulations of the State of Georgia. One of the duly promulgated utility rules enumerated the reasons for which telephone service could be permissibly discontinued, and provided that service could be refused or discontinued after notice and a reasonable time for nonpayment of an outstanding bill.1 You relate that following the promulgation of Rule 515-12-1-.06 (f), a question arose as to what the commission considered a "reasonable time" prior to a permissible discontinuation of service for nonpayment of a bill. Accordingly, the commission issued a notice to all telephone companies in Georgia which referenced Rule 515-12-1-.06 (f), and stated that the commission considered a "reasonable time" to be 10 days following notice to the customer that termination of service would be the consequence of continued nonpayment of an outstanding bill.
The Administrative Procedure Act sets forth the procedure that must be followed by the commission in the adoption, amendment or repeal of any of its rules and regulations. Ga. Laws 1964, pp. 338, 342, as amended (Code Ann. 3A-104); see Ga. Laws 1975, pp. 404, 407. However, excepted from the requirements of this statutory procedure are the commission's interpretive rules and general statements of policy.2 Id. Consequently, those of your agency's statements and rulings which may be construed as interpretive rules or general statements of policy need not be promulgated pursuant to the procedures set forth in the Administrative Procedure Act. Ga. Laws 1964, pp. 338, 342, as amended (Code Ann. 3A-104).
There is no clear guideline by which the commission may appropriately categorize a particular statement or ruling as either a rule subject to the procedural requirements of the Administrative Procedure Act or as an interpretive rule or general statement of policy. Although there is scant case authority in Georgia which serves to clarify the statutory distinction, it can be inferred that the commis-

1 Rule 515-12-1-.06 (f) provides as follows:

"Service may be refused or discontinued for any of the reasons listed below. Unless
otherwise stated, the customer shall be notified and allowed a reasonable time in which to comply with the rule before service is discontinued:

"(f) For nonpayment of bill."

* * *

2 The Federal Administrative Procedure Act contains a like exception. 5 U.S.C. 553 (b) (A).

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sion should follow the procedural requirements of the Administrative Procedure Act whenever it seeks to make a regulation more detailed and specific. See Cullers v. Home Credit Co., 130 Ga. App. 441, 443, 203 S.E.2d 544 (1973).
Several federal courts have construed the similar distinction in the federal Administrative Procedure Act, and have determined to focus upon the degree of impact of a contemplated change in categorizing a particular agency proposal as an interpretive rule or an amendment to an existing rule or regulation. E.g., American Bancorp., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 509 F.2d 29, 33 (8th Cir. 1974); Pickus v. Bd. of Parole, 507 F.2d 1107, 1112-14 (D.C. Cir. 1974). Recognition of the legislative intent of the Administrative Procedure Act, that interested parties have the right to participate in the formulation of rules and that the agency should be fully informed before rules having a substantial impact are promulgated, may serve as a helpful guide in determining the permissible outer boundary of the dichotomy between interpretations of rules and their amendment. One court has enumerated several factors that should be considered in determining the substantiality of the impact of an amendment: the complexity and pervasiveness of the contemplated change; the degree of retroactivity proposed; and the amount of confusion and controversy likely to be engendered by compliance with the new standard. American Bancorp., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 509 F.2d at 33.
Another consideration relevant to the commission's categorization of a policy statement as a rule or an interpretive statement is the desired weight and effect of the pronouncement. In those situations in which the commission chooses to eschew the procedural requirements of the Administrative Procedure Act, its interpretations and general statements of policy are rendered merely advisory, although entitled to great deference by a reviewing court. See Pesikoff v. Secretary of Labor, 501 F.2d 757, 763, n. 12 (D.C. Cir. 1974); Philbeck v. Timmers Chevrolet, Inc., 499 F.2d 971, 977 (5th Cir. 1974); K. Davis, Administrative Law of the Seventies, 5.05 (1976).
In view of the foregoing, I would strongly, urge the commission to avail itself of the procedures set forth in the Administrative Procedure Act whenever consideration of a problem has progressed to the point at which a specific standard or rule may be crystallized. It is plainly to the advantage of those persons who may be affected by the cornmission's determinations that these be advanced in a formal and explicit manner, which is provided by compliance with the procedural requirements of the Administrative Procedure Act.
In summary, it is my opinion that the March 16, 1976 announcement of the commission would be appropriately categorized as an amendment to Rule 515-12-1-.06 (f), rather than an interpretation of the

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rule or a general statement of policy, inasmuch as the commission's statement made explicit what was formerly merely implicit in the use of the term "reasonable," and set forth this interpretation in a detailed and specific manner. Although it could be argued that the procedural requirements of the Administrative Procedure Act were satisfied in this case, the more prudent course would be for the commission to comply with the statutory procedure with respect to those matters detailed in the earlier notice.

OPINION 76-79

To: Chairman, Georgia Public ,Service Commission

July 19, 1976

Re: The Georgia Public Service Commission has not only general supervisory powers over business organizations which are chartered as telegraph companies under the laws of the State of Georgia, but also express authority to regulate the charges for messages sent by telegraph by these companies.

This is in response to your request for my opinion as to the extent of the jurisdiction of the Georgia Public Service Commission over telegraph companies.
You relate that your question is prompted by the application for approval of issuance of capital stock, assumption of mortgage and tariff of an organization which recently obtained a charter from the Secretary of State to establish, equip and operate as a telegraph company. The company's charter is broadly worded, but inasmuch as the company does not presently contemplate performing all of the traditional functions of a telegraph company, and does not envision a traditional manner of operation, you question whether this business organization is within the definition of a telegraph company under Georgia law, and, thus, within the commission's jurisdiction. You relate that at present the company does not own lines or other plant which is normally associated with a telegraph company, and that all communications will be accomplished by voice over land lines leased from telephone companies. The only service now offered by the company is a system for the transfer of funds similar to that provided by Western Union Telegraph, which service will be initially marketed to the trucking industry,! but which will be eventually offered to the general public.
1 The question of whether the operations of certain money transfer companies are subject to the Sale of Checks Act (Ga. Laws 1974, pp. 705, 911-18, as amended; Ga. Code Ann. Ch. 41A-32) was considered in Ops. Att'y Gen. 75-21 and 75-102, copies of which are attached hereto.

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Special provision is made by the laws of the State of Georgia for the incorporation of telegraph companies. See Ga. Laws 1893, pp. 86-87 (Code Ann. Ch. 104-1). By virtue of a company's incorporation pursuant to these statutory provisions, the company enjoys the power to erect and maintain telegraph lines in and throughout the state "with all necessary stations, offices, apparatus, improvements, and machinery" (Ga. Laws 1893, pp. 86, 87 (Code Ann. 104-201)), and to condemn land necessary for the construction and operation of the telegraph lines. Ga. Laws 1893, pp. 86, 88 (Code Ann. 104-202). It is elsewhere specifically provided that business organizations which are chartered as telegraph companies by the laws of the State of Georgia have the right to construct, maintain and operate telegraph lines over the state. Ga. Laws 1889, p. 141, as amended (Code Ann. 104-205).
The Georgia Public Service Commission has express authority to regulate the prices charged by a company which owns, controls or operates lines of telegraph for messages sent by telegraph from one point to another in the State of Georgia. Ga. Laws 1890-91, p. 151, as amended (Code Ann. 93-305, 93-306); see Rules 515-5-1-.01, Official Compilation, Rules and Regulations of the State of Georgia. In some cases it may be technically incorrect to describe a company's operation as the sending of messages by telegraph. However, the commission is given general supervisory powers over the affairs of telegraph companies inasmuch as they are public service companies, and in this capacity the commission is granted the authority to examine into the affairs of telegraph companies and to keep informed as to their general condition, their capitalization and their franchises. Ga. Laws 1907, pp. 72, 75 (Code Ann. 93-307). The commission also has the authority to examine the manner in which a telegraph company manages, conducts and operates its lines, regardless of whether the lines are owned, leased or controlled by the company, and to inquire with respect to the adequacy, security and accommodation of the service to the public and the company's compliance with all provisions of law, rules of the commission, and charter requirements. Id.
Based on the foregoing, it is my opinion that the Georgia Public Service Commission has express authority to regulate the rates charged for messages sent by telegraph by those companies which are chartered as telegraph companies under the laws of the State of Georgia, and, in addition, the commission has general supervisory power over such companies, as elsewhere set out in detail.

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OPINION 76-80

To: Executive Secretary, State Ethics Commission

July 19, 1976

Re: The term "organization" as used in Section 7A of the Campaign and Financial Disclosure Act includes partnerships, associations or any other form.

This is in reply to your letter of June 28, 1976, in which you request our opinion as to whether or not the term "organization," as used in Section 7A of the Campaign and Financial Disclosure Act, Ga. Laws 1974, pp. 155 to 162, as amended (Ga. Code Ann. Ch. 40-38), includes "partnerships." The provision 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 Chapter the same as a candidate." Section 7A, Ga. Laws 1975, pp. 1120, 1125; Ga. Code Ann. 40-3806.1.
One of the more basic rules of statutory construction is that which states that words are generally to be given their ordinary, commonly accepted meaning and significance. See, e.g., Ga. Code Ann. 102-102; 82 C.J.S. Statutes, 329 (b) [citing numerous cases]. Looking to Webster's Third New International Dictionary (unabridged 1961), p. 1590, we find as a definition for the word "organization": "a group of people that has a more or less constant membership," while Ballentine's Law Dictionary (3d Ed. 1969), p. 898, speaks in broad terms of:
"A corporation, government or governmental subdivision or agency, business trust, estate trust, partnership or association, two or more persons having a joint or common interest, or any other legal or commercial entity."
In the case of In re LeMieux, 362 F. Supp. 1040, 1043 (D. Minn. 1973), the court, in the context of Minnesota's commercial code, concluded:
" ... that by 'organization' the drafters of the Code contemplated an entity or interest that comprised a group or had some existence apart from or independent of the individual involved."
Under this extremely broad common usage of the term "organization," it is my opinion that as used in Section 7A it would extend to any group of persons acting as an entity to advance their common commercial, social, political or other interests, which would, of course, cover business partnerships and associatiom;.

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OPINION 76-81

To: Acting Commissioner of Personnel Administration

July 21, 1976

Re: The phrase "independent adjusters authorized or licensed to transact business in this state" as used in Ga. Laws 1976, p. 1384, means independent adjusters who are licensed under Ga. Code Ann. 56-801b et seq.

This is in response to your recent request for my opinion regarding the effect of the recent amendment to the State Employees Health Insurance Plan Act. Ga. Laws 1976, p. 1384. That amendment added a paragraph to Section 6 of the State Employees Health Insurance Plan Act (Ga. Laws 1961, pp. 147, 149, as amended (Ga. Code Ann. 89-1206)). The added paragraph reads as follows:

"Notwithstanding any other provisions of this Act to the contrary, the Board is hereby authorized to execute a contract or contracts with one or more insurers authorized to transact accident and sickness insurance in this State or with one or more hospital service nonprofit corporations, nonprofit medical service corporations, health care corporations or independent adjusters authorized or licensed to transact business in this State, to provide administrative services in connection with a self-insured health insurance plan for State employees." Ga. Laws 1976, p. 1384.

For purposes of providing the "administrative services in connection with a self-insured health insurance plan for state employees" under this amendment, you wish to know who is an independent adjuster authorized or licensed to transact business in this state. The only state law with which I am familiar that authorizes or licenses independent adjusters is Ga. Laws 1960, pp. 289, 426 (Ga. Code Ann. 56-801b et seq.), which provides for the licensure of independent adjusters in the field of casualty insurance by the Insurance Commissioner of the State of Georgia.

Therefore, it is my official opinion that the phrase "independent adjusters authorized or licensed to transact business in this state" as used in Ga. Laws 1976, p. 1384, means independent adjusters who are licensed under Ga. Code Ann. 56-801b et seq.

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OPINION 76-82

To: Secretary of State

July 26, 1976

Re: The original registrant-subdivider of lands registered pursuant to the Georgia Land Sales Act of 1972, as amended, remains liable for payment of the annual fee for renewal of the certificate of registration except where the subdivision has been conveyed to another party and then only in the event that the original registrant-subdivider or a subsequent conveyee gives prompt notice of the conveyance to the Secretary of State and amends the statement of registration to reflect the change in ownership.

Your letter of June 28, 1976 requests an official opinion from this office regarding an interpretation of the Georgia Land Sales Act of 1972, as amended (hereinafter "Act"). Ga. Laws 1972, p. 638; Ga. Code Ann. Ch. 84-61.
The specific situation presented involves Saratoga Communities, Inc., which filed an application as the subdivider for registration of Skyland Mobile Home Subdivision on November 17, 1972 pursuant to Section 3 of the Act. On March 23, 1973, you issued License No. 4 registering this subdivision.
Subsequently, by copy of a letter dated December 28, 1973 to the United States Department of Housing and Urban Development signed by the attorney for Valley Forge Corporation, you were informed that Saratoga Communities, Inc. had merged with Valley Forge Corporation.
On March 23, 1974 and again on March 23, 1975, Valley Forge Corporation became liable for and remitted to the Secretary of State the $50 annual renewal fee for the certificate of registration of Skyland Mobile Home Subdivision pursuant to the Act. However, on May 6, 1976, the attorney for Valley Forge Corporation informed you that Valley Forge had sold all its property to Zack Hinton who had in turn sold it to Bicel Properties, Inc. and that therefore Valley Forge felt it was not liable to pay the annual $50 renewal fee.
You have requested our opinion as to whether or not Valley Forge Corporation, as the successor to the subdivider in the original application for registration, continues to be liable for payment of the annual renewal fee of the subdivision even though it may have conveyed the property to others.
You have also asked whether, should it be determined that Valley Forge continues to remain so liable, you are entitled to bring an action seeking judgment in an amount equal to treble the unpaid annual renewal fee and whether, if the fee is not paid, you are entitled to

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maintain an action for cancellation and revocation of the underlying certificate of registration of the subdivision.
Section 3 of the Act provides that before subdivided lands are offered for sale, the subdivider or his agent must file an application for registration of the subdivision with the Secretary of State and this application must be accompanied by a registration fee in the amount of $100. See Section 19. On each anniversary date of the issuance of a certificate of registration, Section 19 of the Act provides for an annual renewal fee of $50. Nothing in Section 19 states the source from which this $50 annual renewal fee is to come. However, Section 13 of the Act provides that any owner, agent or subdivider who fails to pay, when due, the registration fees provided for in the Act, and continues to sell or offers to sell subdivided lands, becomes liable, in a civil action brought by the Secretary of State, for a penalty in an amount equal to treble the unpaid fees. Such owner, agent, or subdivider also becomes liable for cancellation and revocation of the underlying certificate of registration of the subdivision.
Taking Sections 13 and 19 of the Act together then, it would appear that the owner, agent, or subdivider of the subdivision is the party who is liable for payment of the annual renewal fee. However, Section 3 provides that an application for registration under the Act shall be made by the subdivider or his agent and makes no reference at all to the owner. Section 3 (i) of the Act provides that the subdivider shall report all material changes with respect to subdivided lands then registered for sale under the Act to the Secretary of State. It would seem manifest that a change in ownership of the subdivision, i.e., a conveyance of the subdivision to another party, would be a material change with respect to subdivided lands that are registered with the Secretary of State and is such a fact that must be reported to the Secretary of State as soon as it occurs.
The documents accompanying your request for an official opinion indicate that Bicel Properties purchased the Skyland Mobile Home Subdivision on or about May 1, 1976. This fact was reported to the Secretary of State on May 6, 1976 by letter from the attorney for Valley Forge Corporation. There is no indication of when Valley Forge sold the property to Zack Hinton; thus, there is no evidence on the critical question of whether Valley Forge owned the property as of March 23, 1976. In the absence of such evidence, we must assume that Valley Forge did own the property on the anniversary date of the issuance of the certificate of registration. The question thus remains whether the original registrant-subdivider remains liable for the annual renewal fee or whether subsequent conveyees of the original registrantsubdivider assume liability for that fee upon conveyance of the sub-
division to them. We are of the opinion that the original registrant-subdivider of a

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subdivision registered with the Secretary of State remains subject to paying the annual renewal fee for as long as the registration is effective. We feel that the Secretary of State should not have to examine the record of title of a subdivision, which may have been conveyed innumerable times, to determine the source from which he is to receive the annual renewal payments.
We are also of the opinion, however, that the language of Section 13, when taken in conjunction with the requirement of Section 3 (i) regarding the prompt reporting of material changes in the subdivision to the Secretary of State, shifts the burden of paying the annual fee to the conveyee of the subdivision but only in the event that (a) prompt notice of the conveyance of the subdivision is made to the Secretary of State and (b) the original registrant-subdivider or a subsequent conveyee amends the statement of registration pursuant to Section 19 to reflect the change in ownership. Unless these two criteria are met, the original registrant-subdivider or a subsequent conveyee remains liable for the annual renewal fee as well as any other applicable fees relating to the subdivision and is subject to a civil action for treble the amount of the unpaid fees as well as cancellation and revocation of the underlying certificate of registration.

OPINION 76-83

To: Director, Fiscal Division, Department of Administrative Services

July 27, 1976

Re: Superior court judges who are transferred to the Superior Court Judges Retirement System from the Trial Judges and Solicitors Retirement Fund are entitled to be credited with all creditable service earned under the Trial Judges System, including creditable service earned in a capacity other than superior court judge.

This responds to your request that I construe several sections of the 1976 Act establishing the Superior Court Judges Retirement System (hereinafter "1976 Retirement System" or "1976 system"). Ga. Laws 1976, pp. 586 to 611 (Ga. Code Ann. Ch. 24-26B). Specifically, your question can be narrowed to whether creditable service under the Trial Judges and Solicitors Retirement Fund which was earned by members in a capacity other than superior court judge should be transferred as creditable service into the 1976 Retirement System. For the reasons that follow, it is my opinion that it should.
Section 18 of the Act mandates that all judges of the superior courts who, on December 31, 1976, are members of the Trial Judges and

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Solicitors Retirement Fund 1 (hereinafter "trial judges") shall become members of the 1976 System. Section 18 further states that all employer and employee contributions, plus the earnings thereon, made to trial judges by these transferred superior court judges, are hereby transferred to the 1976 System. Section 18 then concludes with the ostensibly ambiguous language which generates your opinion request:
". . . Any creditable service credited to any such judge of the superior courts for service as a judge of the superior courts, pursuant to said Act (Trial Judges), on December 31, 1976, shall be deemed to be creditable service for the purposes of this Act, effective December 31, 1976." (Parenthetical matter added.) Ga. Laws 1976, pp. 586, 600.
Creditable service is defined by the 1976 Act to include service obtained pursuant to Section 18. Ga. Laws 1976, pp. 586, 589 (subsection 2 (d) (3)) (Ga. Code Ann. 24-2602b (d) (3)). Clearly, the superior court judges who will be transferred to the new system from trial judges will be credited with only that service which is deemed creditable service under the provisions of Section 18.
An argument might be made that the 1976 Act contemplates only actual service on the superior court bench as creditable for these transferring judges. If one were to isolate on the above-quoted phrase " ... for service as a judge of the superior courts ... ," and strictly construe that language, this would be an arguable position. This position could be bolstered by the language in Section 1 to the effect that only actual service as a superior court judge will count as credit.2 However, a broader reading of the Act as a whole, and other countervailing legal considerations, persuade me to a different construction.
The courts do not favor a statutory construction that depends upon any one isolated provision in a statute. See, e.g., Brotherhood of Locomotive Firemen and Enginemen v. Northern Pacific Rwy. Co., 274 F.2d 641 (8th Cir. 1960). The rationale for this is that the different parts of a statute reflect light on each other; thus any statute should be construed in its entirety. See White v. U.S., 305 U.S. 281 (1938).
Reading the Act broadly to see its full meaning, it appears that subsection 2 (d) (3) defines creditable service to include that extended to superior court judges transferring to the new system from trial judges pursuant to Section 18. Section 18 says that creditable service already acquired by these judges under the Trial Judges Act shall be deemed creditable service under the 1976 System. Also, Section 39 assures this

1 Ga. Laws 1968, p. 259 et seq. (Ga. Code Ann. Ch. 78-13). 'Section 1 (Ga. Code Ann. 24-2601b) is not a section granting substantive rights or delineating benefits or eligibility. It contains the Act's short title and is in the
format of a declaration of purpose.

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transfer of all creditable service by declaring that no provision of the 1976 Act shall deny or abridge any right or credit to which any person was entitled under the Trial Judges System. Ga. Laws 1976, pp. 589, 600, 610.
If Section 18 were to be construed narrowly to authorize only service on the superior court bench as transferable from trial judges, yet not permit the transfer of other creditable service, this construction would conflict with the clear language of Section 39. In the event of a conflict between two sections of an Act, the language of the latter section prevails. See Tyler v. Huiet, 199 Ga. 845 (1945); Vickery v. Foster, 74 Ga. App. 167 (1946).
Section 39 is actually an enunciation of what is now considered a maxim of retirement law in Georgia-if a right to become eligible for benefits is granted by a retirement statute and the employee makes contributions pursuant to that statute, the right becomes part of the employee's employment contract and cannot be repealed by a later statute. Burks v. Board of Trustees, 214 Ga. 251 (1958); Bender v. Anglin, 207 Ga. 108 (1950). To defeat those rights by a subsequent statute would violate the constitutional prohibition against the impairment of the obligation of contracts. Trotzier v. McElroy, 182 Ga. 719 (1936). If the 1976 Act is read to allow only the transfer of actual service on the superior court bench, and not all creditable service earned and paid for in another capacity, in my judgment it would have an unconstitutional effect.
It is always assumed that the legislature intended to enact an effective law. Imperial Production Corp. v. Sweetwater, 210 F.2d 917 (5th Cir. 1954). If a statute is susceptible of two constructions, one of which will give effect to the Act, while the other will defeat it, the courts willemploytheformer. Anniston Mfg. Co. v. Davis,301 U.S. 337 (1937).
Two additional cogent considerations persuade me to my construction of this Act. First, if Section 18 is strictly construed, it would have the effect of transferring superior court judges and all of their contributions for creditable service 3 to the 1976 System, but would only allow them credit for actual service on the superior court bench. This seems palpably inequitable to me.4
Secondly, our Georgia appellate courts have consistently held that statutes providing retirement benefits for public officials are entitled to liberal construction in order to further the legitimate purpose of

s Under the Trial Judges System, members are allowed to purchase service as a district attorney or as a judge or solicitor of an inferior court. Ga. Code Ann. Ch. 78-13. ' For example, under the strict construction, a judge of an inferior court who has been a member of trial judges since 1969, who became a superior court judge in 1975, would be compelled to join the 1976 System and all his contributions for these years of service would be transferred. Yet he would only receive one year of credit under the 1976 Act for his year of actual superior court service.

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securing and retaining more desirable public officials. See, e.g., City of Macon v. Herrington, 198 Ga. 576 (1944).
Therefore, based on the foregoing rationale and authorities, it is my official opinion that superior court judges who are transferred to the Superior Court Judges Retirement System from the Trial Judges and Solicitors Retirement Fund are entitled to be credited with all creditable service earned under the Trial Judges System, including creditable service earned in a capacity other than superior court judge.
My construction of the 1976 Act, as stated in this opinion, appertains and is limited to superior court judges who are transferred from trial judges to the 1976 Retirement System on December 31, 1976, by virtue of Section 18. It is my view that superior court judges becoming same for the first time after December 31, 1976 would receive creditable service under subsection 8 (a) only for actual service on the superior court bench.

OPINION 76-84

To: Executive Secretary-Treasurer, Teachers Retirement System

July 27, 1976

Re: For the purposes of awarding a year of creditable service and determining a member's five-year average salary for computing benefits, the Board of Trustees of the Teachers Retirement System may, by rule or regulation, employ the word "year" to mean a continuous 12-month period of time.

You have requested my opinion on the use of the word "year" in two Sections of the Act establishing the Teachers Retirement System of Georgia (hereinafter "TRS"). Ga. Laws 1943, p. 640 et seq., Ga. Code Ann. Ch. 32-29, both as amended. The board of trustees wishes to know what period of time it may use as a basis for awarding a year's creditable service and determining a member's five-year average salary for the computation of retirement benefits. See Ga. Code Ann. 32-2904, 32-2905.
The word "year" is not a defined term under the TRS Act. See Ga. Code Ann. 32-2901. With reference to the determination of a year of service, the TRS Act specifies that the board of trustees may, through appropriate rules and regulations, fix and determine how much service in any year is equivalent to any one year of creditable service. Ga. Code Ann. 32-2904 (1). The Act, in fact, envisions that a year of creditable service may transcend the bounds of a calendar year by stating that " ... Service rendered for a regular school year (generally September through May) shall be equivalent to one year's service." (Emphasis and parenthetical matter added.) Ga. Code Ann. 32-2904 (1).

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The definition of a year of service by TRS members singularly appears to require flexibility. You inform that some teachers are employed under a 12-month contract, receiving contract salary payments each month. Other teachers are employed under a ten-month contract, paid totally within the ten months. Still others are employed under a 12month contract with the total contract salary paid in ten months, September through June. In my judgment, this need for flexibility was recognized by the General Assembly in Ga. Code Ann. 32-2904 (1) in allowing the board of trustees to decide, through rules and regulations, how much service shall constitute a "year" of creditable service.
You have illustrated to me one of the problems in using a strict calendar basis for the definition of a year. Generally, retiring teachers conclude their final service under TRS in May or June of the year in which they retire. If a year of service must be construed as only a calendar year, these teachers would have only five or six months of service in their final creditable year of service, which would obviously prevent them from using this final few months of service as creditable for benefits computation. See Ga. Code Ann. 32-2905 (2) (b).
This office has, on several prior occasions, opined that the word "year," as used in similar retirement system laws, should be defined to mean a continuous 12-month period of time, rather than strictly a calendar or fiscal year. See Ops. Att'y Gen. U72-91, U72-59, U72-54, 72-14. The nature of a teacher's service also seems peculiarly adaptable to the thinking that a year should be construed to mean a continuous 12-month period.
Based on the foregoing, it is my opinion that, for the purposes of awarding a year of creditable service and determining a member's fiveyear average salary for computing benefits, the Board of Trustees of the Teachers Retirement System may, by rule or regulation, employ the word "year" to mean a continuous 12-month period of time. I will leave to the board of trustees the skillful utilization of this construction so that all members of TRS will be treated equally and toward their best interests and that of the Retirement System.

OPINION 76-85

To: Secretary of State

July 27, 1976

Re: Members of a county board of education are county officers and therefore subject to the two-year residence requirements of Ga. Code Ann. 2-7901.

You have requested an opinion as to whether a candidate who seeks election to a county board of education is subject to the residency requirements imposed by Art. XI, Sec. II, Par. I of the State Con-

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stitution (Ga. Code Ann. 2-7901). The provisions of Ga. Code Ann. 2-7901 apply to all "county officers." Thus, candidates for such offices must comply with the residency requirements set forth in that provision of the Constitution.
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, Ops. Att'y Gen. 75-129 and U71-37. Therefore, candidates who seek election to a county board of education are subject to the requirements of Ga. Code Ann. 2-7901 and must comply with the two-year residency requirement therein.

OPINION 76-86

To: Director, Fiscal Division, Department of Administrative Services

July 29, 1976

Re: Discussion of the retirement rights and eligibility of a district attorney who is currently considering a superior court judgeship.

You have requested my opinion on the retirement rights and eligibility of a certain district attorney who is considering a superior court judgeship which will become vacant at the end of this year. Your request necessarily asks me to interpret pertinent portions of the Acts establishing the District Attorney's Retirement Fund of Georgia1 (hereinafter "DA's Fund" or "DA's Emeritus System"), the Superior Court Judges Retirement Fund of Georgia 2 (hereinafter ''Judge's Fund" or "Judge's Emeritus System"), and the 1976 Superior Court Judges Retirement System 3 (hereinafter "Retirement System" or "system"). After reciting the relevant facts, I shall address and answer your questions in essentially the order posed.
The district attorney making this inquiry became such on January 8, 1955. However, he did not join the DA's Emeritus System until July 17, 1961, at which time, pursuant to law, he purchased creditable service back to the beginning of his service as aDA. Also on July 17, 1961, he purchased four years of military service.
TheDA made contributions to the DA's Fund through the end of 1962. Although continuing to serve as a district attorney, he discontinued his contributions after 1962 and did not again contribute to the DA's Fund until the beginning of 1969. Since January 1, 1969, his contributions have been continuous to present. He has at all times been a district attorney from January 8, 1955 to date.
1 Ga. Laws 1949, p. 780 et seq., Ga. Code Ann. Ch. 24-29A, both as amended, 1 Ga. Laws 1945, p. 362 et seq., Ga. Code Ann. Ch. 24-26A, both as amended. 8 Ga. Laws 1976, pp. 586 to 611, Ga. Code Ann. Ch. 24-26B.

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(1) Your first question is whether this district attorney is presently eligible to be appointed to the office of District Attorney Emeritus.
TheDA's Emeritus Act allows emeritus appointment when aDA has served into his 19th year (some time more than 18 years) of creditable service.4 Ga. Code Ann. 24-2902a (amended by Ga. Laws 1975, p. 1632); see Op. Att'y Gen. U75-60. In addition to actual service as a DA, specific other service, including active duty in the armed forces of the United States, is creditable under the Act. Ga. Code Ann. 24-2909a.
As of the date of this opinion, this district attorney has over 25 ~ years of combined actual service as aDA and military service, ordinarily enough to qualify for emeritus appointment. However, as noted in the earlier recitation of facts, he made no contributions to the DA's Fund from January 1, 1963 through December 31, 1968, a period of six full years.
TheDA's Emeritus Act states that "District attorneys who qualify under this Act must make payments to the said retirement fund, as herein provided, for the entire qualifying period and until retirement. ..." (Emphasis added.) Ga. Code Ann. 24-2909a. The Act envisions that district attorneys shall make the statutorily required contributions to the DA's Fund during their entire period of service as DAs and until their appointment to emeritus office. I am unaware of any authority which would sanction or authorize the cessation of contributions on the part of an active member DA.
The Emeritus Act provides for contributions to be made on a systematic basis, with clear penalty provisions for late or nonpayment. Ga. Code Ann. 24-2910a. Consequently, in my opinion, this district attorney is not eligible for emeritus appointment until contributions for the years 1963 through 1968, plus statutory interest and penalty,6 have been paid. Following the payment of these contributions (plus interest and penalty), computed on his salary and under the law as it existed from 1963 through 1968, he would be eligible for appointment to the office of District Attorney Emeritus upon his request for such appointment, in writing, to the Governor.
I am aware that, even without the six years credit for which contributions were not made, this district attorney would have more than the requisite service for emeritus appointment. However, I read the

'Georgia Laws 1975, pp. 1632~7, changed the previous requirement that aDA serve 19 full years. For constructions of the previous law, see generally, Ops. Att'y Gen.
68-520, 68-349, 68-53. 5 In computing the required penalty and interest, your attention is directed to Ga. Laws 1964, pp. 758-9. The penalty and interest computation is greater for the years
1964 through 1968 than for the year 1963. See Ga. Code Ann. 24-2910a.

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Act to require contributions during an eligible member's entire tenure as DA. To read it otherwise would create preferential treatment for this DA as opposed to others who contributed during this same period, and would read into the Act a nonexistent, implied provision (contrary to the express provision) that contributions may cease after sufficient creditable service for appointment has been acquired.
(2) Your second question asks whether the district attorney would forfeit his eligibility for appointment to the office of District Attorney Emeritus upon his assumption of the office of Judge of the Superior Courts.
For purposes of answering your second question, I shall assume the requisite payment will be made for the years 1963 through 1968, thereby creating his eligibility for emeritus appointment in the first instance. Under the facts you have supplied me, for the reasons that follow, it is my opinion that he would not forfeit such DA Emeritus eligibility upon becoming a superior court judge.
The district attorney's concern in this regard is generated by the provisions of Ga. Laws 1962, pp. 602, 603 (Ga. Code Ann. 78-1206). This 1962 Act provides, in essence, that one who holds or is eligible to hold an emeritus office under the laws of this state must resign from such office or eligibility therefor prior to offering for or qualifying as a candidate for any other public office, or else forfeit his emeritus office or eligibility.
This Act, construed strictly and in the absence of other legal considerations, would appear to require the district attorney's resignation from his DA Emeritus eligibility prior to engaging in any electoral pursuit of the office of Superior Court Judge. However, there are other predominant and countervailing legal considerations.
In an unofficial opinion dated June 11, 1974 (Op. Att'y Gen. U74-51), this office had occasion to review this same question as it relates to superior court judges eligible for emeritus status. That opinion concluded that a superior court judge who became such prior to 1962 could not, constitutionally, be required to forfeit any rights in the Judge's Emeritus System under the provisions of the 1962 forfeiture Act. The reasoning expressed in that opinion is applicable to the DA's Emeritus System and to this situation and is hereby reaffirmed.
Also, there is yet another factor supporting my position that the 1962 Act is inapplicable to this district attorney. The Act attempting to preclude persons with rights under emeritus programs from offering as a candidate for another office without forfeiting emeritus rights was enacted in 1962. TheDA's Emeritus Act was substantially amended in 1975. Part of that 1975 amendment struck, in its entirety, Section 4 of the Act and inserted a new Section 4 which provides, in essence, that any DA, who has been appointed DA Emeritus or who is eli-

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gible for such appointment, may hold some other office of profit or trust under the U.S. or Georgia Constitutions. As provided in the 1975 amendment, the election or appointment to such an office does not affect any existing rights of aDA under the DA's Emeritus System except to suspend the right to hold the emeritus office and receive the salary provided therefor during the period of tenure in another office. Ga. Laws 1975, pp. 1632, 1633 (Ga. Code Ann. 24-2904a); see, generally, Op. Att'y Gen. U74-48.
The provisions of the 1975 Act are in direct conflict with the referenced provisions of the 1962 forfeiture Act. While the repeal of statutes by implication is not favored in Georgia, when a later statute is in direct conflict with an earlier enactment, the earlier law is impliedly repealed. State Board of Education et al. v. County Board of Education of Richmond County, 190 Ga. 588 (1940). Consequently, I am of the opinion that the 1975 amendment to the DA's Emeritus Act repealed the 1962 forfeiture Act as to any applicability it may have had under the DA's Emeritus System.
(3) Your third question asks to which retirement system for superior court judges this district attorney would belong upon becoming a judge.
Superior court judges are eligible for inclusion in one of three different retirement systems, as follows: (1) Superior Court Judges Retirement Fund of Georgia, Ga. Laws 1945, p. 362 et seq., Ga. Code Ann. Ch. 24-26A, both as amended; (2) Trial Judges and Solicitors Retirement Fund, Ga. Laws 1968, p. 259 et seq., Ga. Code Ann. Ch. 78-13; or (3) Superior Court Judges Retirement System, Ga. Laws 1976, pp. 586 to 611, Ga. Code Ann. Ch. 24-26B. To which system a judge can belong depends, in the main, on the date he assumes office.
Of the three available retirement systems, you may immediately discount the Trial Judges and Solicitors Fund. The district attorney is not eligible for membership in this fund because he is not becoming a district attorney or superior court judge for the first time after June 30, 1968. Ga. Code Ann. 78-1308 (a), 78-1309.
Assuming the district attorney takes office as a superior court judge on or before December 31, 1976, he would be eligible for membership in the Judge's Emeritus System established by the 1945 Act, as amended. Ga. Code Ann. 24-2602a, 24-2609a, 78-1309. Membership in the Judge's Emeritus System would be predicated on the district attorney's making an election to join same and commencing the contributions required by the 1945 Act, as amended, no later than 90 days after becoming a judge.6 Notable here is the fact that, as a member
6 Please note that the election and commencement of contributions-m~t'be made within 60 days of becoming a superior court judge if the judge elects the widow's benefits provisions of the 1945 Act, as amended. Ga. Code Ann. 24-2610a.l (b).

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of the Judge's Emeritus System, he would be eligible to receive credit for his service as a district attorney. If he so desired, his creditable service and contributions could be transferred from the DA's Emeritus System to the Judge's Emeritus System. However, to be eligible for such a transfer (and this is in line with my answer to your first question), this district attorney's Emeritus Fund account must become current by his payment for the six years for which he did not contribute. Ga. Code Ann. 24-2610a.
Assuming, conversely, that the district attorney takes office on or after January 1, 1977, he would be eligible to join only the 1976 Judges Retirement System. The 1976 Act provides that superior court judges becoming such for the first time after December 31, 1976, shall be members of the 1976 Retirement System. Ga. Laws 1976, pp. 586, 591 (subsection 8 (a)) (Ga. Code Ann. 24-2806b (a)). Also, Ga. Laws 1976, pp. 586, 591 (subsection 8 (b)) (Ga. Code Ann. 24-2806b (b)) prohibits a superior court judge who is a member of the 1976 System from belonging to the Judge's Emeritus System.
(4) Your last question assumes that the district attorney becomes a member of the Judge's Emeritus System and asks, in that event, how long he must serve as a superior court judge to be eligible for appointment to the office of Judge of the Superior Courts Emeritus.
The 1945 Emeritus Act requires that any judge qualifying for Judge Emeritus status must serve at least four years as a superior court judge. Ga. Code Ann. 24-2602a. Assuming that the district attorney makes his DA's Emeritus Fund account current, and his contributions and creditable service are transferred to the Judge's Emeritus System, he would be eligible for appointment as a Judge Emeritus after four years of service as a superior court judge.

OPINION 76-87

To: Secretary of State

August 6, 1976

Re: A candidate for justice of the peace must have resided in the militia district for which he is a candidate for three months prior to the general election.

This is in response to your recent inquiry as to the residency requirements applicable to a candidate for justice of the peace.
Ga. Code (1933) 24-402 requires, inter alia, that a candidate for justice of the peace shall have resided for " ... three months in the district next preceding the election." Ga. Code Ann. 34-103 defines

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"election" as " ... any general or special election and shall not include a primary," and Ga. Code Ann. 34-102 provides that the Georgia Election Code (Ga. Code Ann. Title 34; Ga. Laws 1964, Extra. Sess., p. 26 et seq.) shall govern an election of justice of the peace.
Based on the foregoing, it is my opinion that a candidate for justice of the peace must have resided in the militia district for which he is running for three months prior to the general election.

OPINION 76-88

To: Commissioner, Department of Natural Resources

August 9, 1976

Re: Georgia Laws 1976, pp. 1414-18, is not applicable to contracts between the Department of Natural Resources and universities and their units or extensions which are part of the University System of Georgia or the university system of another state; however, this Act would, in most instances, be applicable to contracts with private colleges and universities.

Your letter of July 21, 1976 asks my opinion on the applicability of Ga. Laws 1976, pp. 1414-18 (Ga. Code Ann. 89-964 to 89-970) (hereinafter the "Act") to certain contracts into which the Department of Natural Resources wishes to enter. Specifically, you have asked whether the Act applies to contracts between the Department of Natural Resources and any or all of the following:
(1) Universities and their units or extensions which are part of the University System of Georgia;
(2) Universities and their units or extensions which are part of the university system of another state;
(3) Universities which are not part of any state university system.
The Act provides that before a state agency may enter into a contract with a nonprofit contractor, it shall require the contractor to agree to furnish certain certified financial statements and auditing reports showing the contractor's total receipts and expenditures for the previous fiscal year, together with certain other annual statements covering the contractor's employees, sources of income, receipts of public funds and types of services rendered. Additionally, the contractor must agree in writing to refrain from certain political activities.
The Act defines "nonprofit contractor" as:
"... any individual, partnership, corporation, association, organi-

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zation or similar entity which contracts with and receives public funds from a State agency to provide services on a nonprofit basis. The term 'nonprofit contractor' shall include only those entities no part of the income or profit of which is distributable to its members, directors, officers or any other private person. The term 'nonprofit contractor' shall not include the federal government, state or local governments or school systems or their agencies...." Ga. Laws 1976, at p. 1415.

For the Act to apply, there must be two valid contracting parties, a state agency and a nonprofit contractor. With reference to your first question, the government, control and management of the University System of Georgia and each of its branches and institutions are vested in the Board of Regents of the University System of Georgia. Ga. Laws 1931, p. 7 et seq.; Ga. Laws 1933, p. 62 (Ga. Code Ann. 32-101, 32-102, 32-103, 32-113, 32-115, 32-124). The Board of Regents of the University System of Georgia is a department of state government. Ga. Code Ann. 32-101; Busbee v. Georgia Conference, American Association of University Professors, 235 Ga. 752 (1975); Perry v. Regents, University System, 127 Ga. App. 42 (1972).
Since the exemption for "state or local governments or school systems or their agencies" removes the Board of Regents and its governed institutions from the definition of "nonprofit contractor," it is my opinion that the Act would not be applicable to contracts between the department and the University System of Georgia. At most, such a contract would be between two departments of state government, to which the Act also does not apply.
In answer to your second question, contracts with universities and their units or extensions which are part of another state's university system would similarly not be subject to the Act. The definitional exemption of state governments or school systems should be given its ordinary and plain meaning. See Ga. Code 102-102; Burns v. Alcala, 420 U.S. 575 (1975). In my opinion, the Act would not apply to contracts with universities in other states which are part of that state's university system.
The answer to your third question is not as apparent as the first two. There is no express exemption in the Act for private universities. The question actually narrows to whether a private university is a nonprofit contractor under the earlier-quoted definition. In other words, is it an entity no part of the income or profit of which is distributable to its members, directors, officers or any other private person.
As a general rule, nonprofit corporations and organizations are those presumably designed for the attainment or conference upon others of spiritual or cultural benefits, or benefits of a philanthropic nature. City of Cincinnati v. Commonwealth ex rel. Reeves, 292 Ky. 597, 167 S.W.2d

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709 (1943). Private colleges and universities would appear to fall within this general characterization.
The Act's definition of "nonprofit contractor" employs language similar in content to that used for federal and state exemptions of educational institutions from taxation. See 26 U.S.C.A. 501 (c) (3); Ga. Code Ann. 92-201 (amended by Ga. Laws 1946, p. 12; 1947, p. 1183; 1955, p. 262; 1965, p. 182; 1973, p. 934). Under such language, private universities have been held not to be entities or corporations operated or used for the purpose of making either private or corporate income or profit for the university. Alford v. Emory University, 216 Ga. 391 (1960); Elder v. Trustees of Atlanta University, 194 Ga. 716 (1942).
In summary, as to your third question, it is my general belief that private universities would come within the Act's definition of "nonprofit contractor." Accordingly, contracts between them and the department would be subject to the provisions of the Act. However, whether any institution is, in fact, a nonprofit organization, corporation or entity depends, in the final analysis, upon the provisions of its charter or the statutory law creating same and also upon the manner in which its income is actually distributed and used. Morehouse College v. Russell, 109 Ga. App. 301 (1964); Community Hospital, Inc. v. Latimer, 83 Ga. App. 6 (1950). Therefore, should you have any question as to whether a particular contract with a private college or university falls within the parameters of the Act, please let me know and I will be happy to advise you on a case-by-case basis.

OPINION 76-89

To: Insurance Commissioner

August 11, 1976

Re: Various questions regarding the interpretation of section 56-1313 of the Georgia Insurance Code.

The General Assembly's enactment of section 56-1313 of the Georgia Insurance Code this year has raised a variety of questions with regard to the confidential treatment of information obtained by the Insurance Commissioner incident to his administration of the tax provisions of Title 56. Section 56-1313 provides:
"Confidential treatment.-The information secured by the Commissioner incident to the administration of any tax provided for in this Chapter or elsewhere in this Title shall be confidential and privileged. Neither the Commissioner nor any members of his staff or any of his authorized representatives shall without prior written consent of the taxpayer divulge or disclose any such con-

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fidential information obtained from the Insurance Department's records or from an examination of the business of the taxpayer to any person other than an officer or representative of a state or local government entitled to such information in his official capacity, or to the taxpayer or his authorized representative. Provided that the Insurance Commissioner may furnish such confidential information to the appropriate insurance regulatory, tax or legal official of another state, territory, country or of the United States government, if the office or officer of said state, territory, country or of the United States government makes its own such records available to the Commissioner." Ga. Laws 1976, p. 1517.
We shall attempt in this opinion to respond to the questions that you have posed in your recent inquiry with reference to this new statute.

A. WHAT IS THE EFFECT OF SECTION 56-1313 ON REPORTS REQUIRED OF THE COMPTROLLER GENERAL IN TITLES 40 AND 56 OF THE CODE OF GEORGIA?
Ga. Code (1933) 40-1510 provides that the Comptroller General shall make an annual report to the Governor which, inter alia, shall contain a statement of the taxes paid to the state by each of the counties, the counties whose collectors are in default, and the amount of such default. Ga. Code (1933) 40-1511 requires this annual report to suggest whatever improvements in the revenue laws the Comptroller General in his experience and observation may approve. You have asked whether section 56-1313 in any way prevents the Comptroller General from summarizing tax receipts and penalties collected in connection therewith in the annual reports required by these sections. In our opinion, it does not. By its very language, section 56-1313 allows the Insurance Commissioner to disclose information obtained incident to his administration of the tax provisions of the Insurance Code to "an officer or representative of a state or local government entitled to such information in his official capacity." Clearly, the Governor as the chief executive officer of the state comes within this category. Moreover, since section 40-1510 calls merely for a statement of taxes paid by each county and a report of the amounts in default, if any, of each, it would appear to call only for a summary of routinely maintained tax collection records essential to the Governor for budgetary and other purposes none of which entails revealing confidential information. Neither do we believe that section 56-1313 impedes the Comptroller General from commenting on the revenue laws and suggesting changes which, from his experience and observation in dealing with them, he feels would facilitate or improve the process of taxation either substantively or procedurally.

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Section 56-204 (amended by Ga. Laws 1976, p. 538) of the Georgia Insurance Code requires the Insurance Commissioner to submit an annual report to the Governor and General Assembly showing the names of authorized insurers doing business in Georgia with a summary of their financial statements, those insurers that ceased doing business in Georgia that year, those insurers against whom delinquency proceedings were instituted, the Insurance Department's receipts and expenses for the year, and the commissioner's recommendations, if any, for insurance-related legislation. A final proviso calls for "[S]uch other pertinent information and matters as the commissioner deems proper." Code 56-204 (6).
We are of the opinion that section 56-1313 contains no prohibition against disclosure by the Insurance Commissioner of the kinds of data and information required in annual reports under section 56-204. It should be noted, however, that while section 56-204 (6) authorizes the commissioner to include in his report whatever other information he deems proper, the privilege and confidentiality provisions of section 56-1313 would extend to and embrace such additional items of information if they come within the scope of the subject matter of insurance taxes. Of course, as with the Governor, members of the General Assembly entitled to the information incidentally obtained by the Insurance Commissioner pursuant to section 56-1313 in their official capacities would have access thereto in any event since they would come within the exception created by that section.
B. WHAT EFFECT DOES SECTION 56-1313 HAVE ON ROUTINE INVESTIGATIONS AND EXAMINATIONS
AUTHORIZED BY THE COMMISSIONER OR IN COMMUNICATIONS WITH THE TAXPAYER/INSURER?
You have asked what effect section 56-1313 has on investigations and examinations authorized in Chapter 56-2 (Ga. Laws 1960, p. 289, as amended) of the Georgia Insurance Code or in oral or written communications relative to the Insurance Code's tax provisions with the individual taxpayer/insurer. We s,re of the opinion that nothing in section 56-1313 inhibits or prevents the Insurance Commissioner from utilizing routine and accepted investigatory and examination procedures designed to arrive, within the context of Chapter 56-13, at a determination of the tax liability of an insurer. Certainly, it could be no violation of section 56-1313 to discuss the potential tax liability of an insurer by means of oral or written communications by and between the Insurance Department and the taxpayer, nor would it be revealing confidential and privileged information to use any incidentally-obtained data in such communications where the desired goal is truthfully to assess the taxpayer's liability. We do not believe the

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intent of section 56-1313 was to thwart the state's vital interests in the collection of revenues to which it is lawfully entitled.
C. WHAT EFFECT DOES SECTION 56-1313 HAVE ON ANNUAL REPORTS REQUIRED OF INSURERS BY SECTION 56-319?
Section 56-319 (Ga. Laws 1965, p. 378) of the Georgia Insurance Code requires each insurer authorized to do business in Georgia to file an annual report with the Insurance Commissioner detailing its business affairs and operations and disclosing whatever facts that in the commissioner's estimation will protect the general public, the insurer's policyholders, and investors in the insurer's securities. The statute specifically grants the commissioner authority to require these reports to be published.
Information secured by the Insurance Commissioner pursuant to section 56-319 is obtained incident to the commissioner's regulation of insurance companies and in order to promote full disclosure of their acts, practices and transactions for the protection and information of the public. Information gathered by the commissioner under section 56-319 is not secured incident to his administration of any taxation provision of the Insurance Code. Thus, there would be no conflict between the commissioner's disclosure of information contained in annual reports under section 56-319 and the confidentiality provisions of section 56-1313.
If, however, the commissioner did obtain information incident to his administration of a taxation provision of the Insurance Code and sought to have such information published or disclosed in insurer's annual reports required by section 56-319, then, of course, the confidentiality and privilege provisions of section 56-1313 would come into operation and, absent a waiver of the privilege by the insurer, the commissioner could not compel a disclosure of such information.
D. WHO IS, UNDER SECTION 56-1313, ENTITLED TO OTHERWISE CONFIDENTIAL AND PRIVILEGED INFORMATION SECURED BY THE INSURANCE COMMISSIONER?
You have further requested our opinion regarding the construction of the exception to section 56-1313 which states in pertinent part that the general rule of confidentiality will apply to all persons "other than an officer or representative of a state or local government entitled to such information in his official capacity."
Traditionally, courts will adopt that sense of the language used that will most fully promote the object or purpose of a statute. United States v. Hartwell, 73 U.S. (6 Wall.) 385 (1867). The obvious purpose of section 56-1313 is to protect the state's public interest in maintain-

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ing the confidentiality of information acquired incidental to the administration of the Insurance Code's taxation provisions. Because an exception or proviso operates to limit the applicability of the general provisions of an Act, the courts tend to restrict words of a general signification in order to best give effect to the legislature's intent. Church of the Holy Trinity v. United States, 143 U.S. 457 (1892). Hence, a restrained view of who qualifies under the exception should prevail to insure that the basic purpose of maintaining confidentiality is effectuated.
Moreover, whether this language is categorized as an exception or a proviso, courts have ordinarily employed a narrow construction in interpreting both. Dalehite v. United States, 346 U.S. 15, 31 (1952). This is especially true where, as here, the legislature has made a limited grant of some privilege (access to these records) by restricting the applicability of the exception to a very few persons. Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942). It follows from these principles that when a general rule has been established by the statute, the court will not add to or enlarge the exceptions by implication. Addison v. Holly Hill Company, 322 U.S. 607, 617 (1943).
In light of the foregoing, we are of the opinion that the language of the exception contained in section 56-1313 should not be enlarged by implication. Thus, to be considered an "officer or representative of a state or local government" within the context of section 56-1313, a party must come within the meaning of the terms contained in that phrase as the case law has defined them.
An "officer" has been defined as an individual in a local government who has a fixed tenure in office and who exercises administrative or executive powers that are prescribed by statutory enactment. Polk v. James, 68 Ga. 128 (1881). The concept of "office" embraces "the ideas of tenure, duration, emolument, and duties." Wiley v. City of Sparta, 154 Ga. 1, 14 (1922). Hence, individuals who have received special appointments with only limited duties for a limited time are generally not considered to be officers of a governmental entity. Saxe v. Shea, 98 F.2d 83, 84 (2d Cir. 1938).
Rather, an officer is one who occupies "a position expressly created by law for the discharge of public duties prescribed or indicated by law, involving an exercise of some part of the sovereign power." Lentz v. City Council of Augusta, 48 Ga. App. 555, 556 (1934). More precisely, an officer is one who is "appointed or elected, in a manner prescribed by law, has a designation or title given him by law, and exercises functions concerning the public, assigned to him by law." Bradford v. Justices of Inferior Court, 33 Ga. 332, 336, 337 (1862).
Similarly, a "representative" has been defined as one who represents a community or a municipality in its "legislative or governing capacity" and who has duties to perform or powers to exercise in connection

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therewith. Macrum v. Board of Supervisors of Suffolk County, 252 N.Y.S. 546 (1931); Dunn Const. Co. v. Craig, 2 So. 2d 166 (Miss. 1941).
In summary, an officer or representative must, in our opinion, be fulfilling duties that are incumbent upon him pursuant to a formal statutory prescription.
The person seeking to come within the exception carved out in section 56-1313 has the burden of showing that the information to which he desires access should be made available to him in order for him to perform his statutorily-designated duties. We feel that there must be a demonstrable nexus between the information sought and the duties imposed upon the individual by reason of his official position. See Neuces County v. Currington, 151 S.W. 2d 648 (Tex. Civ. App. 1941). The relationship must be clear and the standard strictly applied in order to prevent circumvention of the statute through the ad hoc creation of "officers" and "official representatives" who in fact have no official duties and thus no compelling need to obtain these records. In this regard, the courts have always favored a construction that defeats subterfuges or other evasions that are devised to avoid compliance with the terms of the statute. State v. Lipkin, 84 S.E. 340 (N.C. 1915); Monaghan v. State, 6 So. 241 (Miss. 1889).
For example, attorneys at law may be able to have access to such incidentally-acquired information under certain circumstances. Access to such persons would be proper upon a showing that they have been designated to represent either a state or local government or an official thereof and that they require information in order properly to assist the particular governmental entity or official in fulfilling his official duties.

E. IS SECTION 56-1313 RETROACTIVE?

The provisions of section 56-1313 became effective on July 1, 1976. Ga. Code 102-111. It is an axiom of statutory construction in Georgia that laws prescribe only for the future and that they do not usually have a retrospective operation. Ga. Code 102-104. Thus, unless its language imperatively requires it, a statute will not be construed to have retrospective operation but will instead be interpreted as applying prospectively only. Moore v. Howard, 181 Ga. 605 (1936); Walker County Fertilizer Co. v. Napier, 184 Ga. 861 (1937); Rhyne v. Price, 82 Ga. App. 691 (1950). The language of section 56-1313 does not contain words of retroactivity nor does the statute appear to us imperatively to require a retrospective application. Thus, we are of the opinion that no privilege or confidentiality attaches to information incidentally obtained by the Insurance Commissioner pursuant to his administration of the taxation provisions of Title 56 prior to July 1,
1976.

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OPINION 76-90

To: Secretary of State

August 13, 1976

Re: (1) The state and county executive committees of a political party have the authority to refuse to qualify a candidate upon a determination that such candidate does not meet the qualifications for nomination to a public office; (2) It is not the responsibility of a judge of the probate court, or a county board of elections, to determine the qualifications of a candidate in a general or special election nor does the Georgia Election Code grant authority to either a judge of the probate court or a county board of elections to make a factual determination as to the eligibility of a potential candidate.

This is in response to your recent letter requesting my opinion concerning the authority of state or county executive committees of political parties to question the qualifications of a candidate and to refuse to qualify a candidate upon a determination that such candidate does not meet the qualifications for nomination to a public office.
The Georgia Election Code provides that candidates for party nomination shall qualify as such candidates in accordance with the rules of their party. Ga. Code Ann. 34-1005 (a) (Ga. Laws 1970, p. 347, as amended). Compliance with party rules is essential to entitle a candidate to have his name appear on a primary ballot, and such appearance is, in turn, a condition precedent to qualifying for an election by virtue of nomination in a primary conducted by a political party. Ga. Code Ann. 34-1001. Consequently, the decision as to whether a candidate seeking nomination by a political party is qualified to hold office must be made by the party whose nomination the candidate is seeking. Pursuant to Ga. Code 34-1005, it is the party which shall, in accordance with its own party rules, prohibit an individual from qualifying if he does not satisfy the eligibility requirements for holding office. See Op. Att'y Gen. 74-96. This is a logical result; not only is the party in the best position to determine whether a candidate is in compliance with its own rules, but it also has the strongest interest in requiring full compliance, for no party would want to sponsor an individual who was ineligible to hold office. Moreover, it would be expensive and useless to win an election and then be denied the right to hold the office. Thus, in a sense, the qualifications requirements are self-enforcing, since the penalty for failure to comply with them offers a strong motivation to meet the relevant requirements.
It is therefore my official opinion that state and county executive committees of a political party have the authority to refuse to qualify a candidate upon a determination that such candidate does not meet the qualifications for nomination to a public office.

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You have also requested my opinion as to the responsibility of the judge of the probate court, or the county board of elections, to determine the qualifications of a candidate in a general or special election.
Pursuant to Ga. Code Ann. 34-1702 the eligibility of any person declared eligible to seek nomination for any federal, state, or county office may be contested by any person who was a candidate at such primary election for such nomination or office or by any aggrieved elector who was entitled to vote for such person. Any contest case governed by the provisions of Ga. Code Ann. Ch. 34-17 (Ga. Laws 1964, Extra. Sess., pp. 26, 177) shall be tried and determined by the superior court of the county where the candidate resides. Ga. Code Ann. 34-1704. Moreover, it has been held that the Georgia Election Code is not the sole and exclusive means for challenging eligibility to hold public office. White v. Miller, 235 Ga. 192 (1975). For example, an individual's eligibility to hold office may be challenged in a quo warranto proceeding, instituted by an interested citizen and taxpayer. Hulgan v. Thornton, 205 Ga. 753 (1949). There is, however, no statute which specifically imposes a duty upon the judge of the probate court or the county board of elections to determine the qualifications of a candidate in a general or special election.
Finally, you ask whether a judge of the probate court or the county board of elections has the authority to make a factual determination as to the eligibility of a potential candidate. As discussed above, the Georgia Election Code makes no express provision for the responsibility of election boards or probate judges to determine the qualifications of a candidate. Similarly, there is no explicit authority in the Code for either the election board or the probate judge to make an independent determination of eligibility to hold office. See Op. Att'y Gen. 74-96. Instead, the Georgia Election Code has specifically provided for the contesting of an election pursuant to Ga. Code Ann. 34-1703, with all issues of a contest to be fully tried and determined by the court. Ga. Code Ann. 34-1707; Henderson v. County Board of Registration and Elections, 126 Ga. App. 280, 284 (1972). The absence of specific authority for the making of an independent factual determination of the eligibility of a candidate to hold public office, together with the established rule that the election law is in derogation of the common law and must therefore be strictly construed (Schloth v. Smith, 134 Ga. App. 529, 532 (1975)), supports the conclusion that neither the judge of the probate court nor the county board of elections has the authority to make an independent factual determination of the eligibility of a candidate to hold public office.
Based on the foregoing, it is my official opinion that neither a probate judge nor a county board of electors has either the responsibility or the authority to make a factual determination as to the eligibility of a potential candidate for public office in a general or special election.

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OPINION 76-91

To: Chairman, Georgia Public Service Commission

August 18, 1976

Re: The Georgia Public Service Commission lacks jurisdiction to regulate the rates charged by an electric power company for steam.

This is in response to your request for an opinion as to whether the Georgia Public Service Commission has jurisdiction over the rates charged by an electric power company for the steam which is generated as a by-product of the company's manufacture of electricity. You relate that to your knowledge the commission has never exercised jurisdiction over steam operations, and you note that steam services are nowhere mentioned in the statute which confers jurisdiction upon the commission to regulate various public utilities. Code Ann. 93-307 (Ga. Laws 1907, pp. 72, 75; 1922, pp. 143, 144; 1967, p. 650).
The answer to your question lies in an analysis of the statutes from which the commission derives its authority. The constitutional provision relating to the commission expressly provides that the commission is "vested with the jurisdiction, powers and duties now provided by law or that may hereafter be prescribed by the General Assembly." Ga. Const., Art. IV, Sec. IV, Par. III (Ga. Code Ann. 2-2703). The notion that the commission's jurisdiction is solely derived from legislative enactment is also reflected in the judicial considerations of this issue. In determining whether the commission had jurisdiction and legal authority to require an electric power company to merge with a separate and distinct electric utility company, the Supreme Court began its analysis with the statement, "the Georgia Public Service Commission has only such powers as the legislature has expressly, or by fair implication, conferred upon it." Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 226, 85 S.E.2d 14 (1954); see Georgia Pub. Serv. Comm'n v. Atlanta Gas Light Co., 205 Ga. 863, 887, 55 S.E.2d 618 (1949); Zuber v. Southern Ry. Co., 9 Ga. App. 539, 71 S.E. 937 (1911). Indeed, the commission has interpreted its jurisdiction to encompass only those matters expressly mentioned in the statute which confers jurisdiction upon the commission. Compare Rule 515-1-1-.12, Official Compilation, Rules and Regulations of the State of Georgia with Ga. Code Ann. 93-307.
Regardless of the arguable benefits which would be derived from the regulation of an activity, the commission's jurisdiction is limited to the regulation of those utilities mentioned in the legislative grant of jurisdiction. Georgia Pub. Serv. Comm'n v. City of Albany, 180 Ga. 355, 364, 179 S.E. 369 (1935); see Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm'n, 228 Ga. 347, 352, 185 S.E.2d 403 (1971). The question

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does not turn upon whether the utility is in fact providing services to the public. Georgia Pub. Serv. Comm'n v. City of Albany, supra (municipal corporation empowered to operate an electric light and water plant). The fact that the utility is providing some services subject to regulation does not, without more, sweep all of its activities within the scope of the commission's jurisdiction. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 228, 85 S.E.2d at 18 (1954). Rather, the service which the utHity is providing to the public must be declared by the legislature to be infused with the public interest before the commission is possessed of jurisdiction over its operation. Central Ga. Power Co. v. Ham, 139 Ga. 569, 572, 77 S.E. 396 (1913); see Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm'n, supra.
It is therefore my opinion that absent legislative enactment, the Georgia Public Service Commission is without jurisdiction to regulate the rates charged by an electric power company for the steam which is generated as a by-product of the company's manufacture of electricity.

OPINION 76-92

To: Secretary of State

August 18, 1976

Re: An individual convicted of a crime involving moral turpitude, in a jurisdiction outside the State of Georgia, is not entitled to vote in Georgia, so long as such crime is punishable in Georgia by imprisonment in the penitentiary.

This is in response to your recent request for an opinion concerning the voting rights of a resident of Georgia who has been convicted of a crime in another jurisdiction. For the following reasons, it is my opinion that a person convicted of a crime involving moral turpitude, which would be punishable in Georgia by imprisonment in the penitentiary, is not entitled to register to vote in Georgia, even though the conviction for such crime was rendered by the courts of another jurisdiction.
Article II, Sec. II, Par. I of the Georgia Constitution (Ga. Code Ann. 2-801) provides, in pertinent part, that the following classes of persons shall not be permitted to register or vote:
"Those who shall have been convicted in any court of competent jurisdiction ... of any crime involving moral turpitude, punishable by the laws of the State with imprisonment in the penitentiary ..."
This constitutional provision is not concerned with the right to vote in other states but rather with the right to vote in the State of Georgia, and the qualification of persons to vote in the State of Georgia must

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be determined solely with reference to the Georgia Constitution and laws. Clearly, this constitutional disqualification is not limited to persons who have committed crimes in Georgia, but extends to persons who were convicted in other jurisdictions of crimes involving moral turpitude. See Hulgan v. Thornton, 205 Ga. 753 (1949); Ops. Att'y Gen. 74-128; 75-17.
For these reasons it is my opinion that a person convicted of a crime involving moral turpitude, in a jurisdiction outside the State of Georgia, is not entitled to register to vote in this state, so long as such crime is punishable in Georgia by imprisonment in the penitentiary.

OPINION 76-93

To: Joint Secretary, State Examining Boards

August 18, 1976

Re: (1) Upon the facts as they now exist and in view of the construction of the law by the State Law Department, the Attorney General must respectfully decline to appoint counsel to permit the Georgia Real Estate Commission to sue the Secretary of State and the Joint Secretary of the State Examining Boards in the use of current appropriations made by the state legislature among the various licensing boards. (2) The Georgia Real Estate Commission is not authorized to accept, without cost to the commission, the services of outside counsel. (3) There is no requirement that license fees collected by the Georgia Real Estate Commission be used for the sole benefit of the Real Estate Commission.

This is in response to your recent request for an official opinion and advice concerning several questions, all of which are related to a proposal by the Georgia Association of Realtors that the Georgia Real Estate Commission join with it as a plaintiff in a lawsuit against the Secretary of State and the Joint Secretary, State Examining Boards. For the sake of convenience and clarity, I will address each question separately in the order in which they were posed.
(1) May the Georgia Real Estate Commission become a plaintiff in a suit against another state agency, or officer, the purpose of which is to determine the proper and lawful distribution of fees collected by the commission from licensees?
The Georgia Real Estate Commission may not sue or be sued except as provided by law. See Woodward v. Westmoreland, 124 Ga. 529 (1905); Ramsey v. Hamilton, 181 Ga. 365 (1935). No statute authorizes the Georgia Real Estate Commission to initiate such an action. See Ga. Code Ann. Ch. 84-14 (Ga. Laws 1973, p. 100). Thus such an action

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may be initiated only by the Attorney General in the name of the state. This conclusion is reinforced by the constitutional and statutory provisions set forth hereinafter.
Neither the Attorney General, nor any member of his staff familiar with the present situation, believes that the best interest of the State of Georgia will be served by a lawsuit such as suggested in your first inquiry.
I am very concerned about the potentially devastating effect that such a lawsuit could have on the everyday functioning of the State Government by providing an undesirable precedent for the settling of future disputes between state agencies and officials. I think that we should avoid establishing a precedent which might lead to a situation in which the citizens of Georgia will suffer from a decline in state services because large numbers of state officials and employees will be expending their time and energies on needless internecine litigation.
Another obvious problem involved in such a lawsuit is that, inasmuch as the Attorney General acts as legal advisor to the Executive Department of the State Government (see Ga. Const., Art. VI, Sec. X, Par. II (Ga. Code Ann. 2-4502)), litigation of this sort with the consent of the Attorney General would necessarily imply that the Attorney General act as counsel for both plaintiff and defendant. This would obviously create a serious ethical problem.
As stated above, the Law Department acts as legal advisor for the entire Executive Branch of the State Government. In my opinion that fact indicates that a proper role of the Law Department is to advise units of the Executive Branch whose interests may be in conflict as to proper statutory interpretations as they affect their legal rights, and thus avoid inter-governmental litigation.
Under the provisions of Ga. Laws 1971, p. 98, as amended (Ga. Code Ann. 40-1635), the Attorney General may appoint private counsel to perform legal services for the Georgia Real Estate Commission. The appointee, however, is an appointee of the Attorney General and in providing legal services the appointee would be authorized to perform such services as the Attorney General determined appropriate. For the reasons stated above, I feel strongly that the discretion granted me under this section should not be exercised in such a manner as to encourage or allow lawsuits among state agencies and state officials, especially in view of the interpretation of the law under consideration as hereinafter explained. Therefore, in this instance and under the circumstances in this particular case, I am compelled to take a stand against the proposed lawsuit by refusing to appoint private counsel for the Real Estate Commission in this matter. I do not mean to imply by this letter that a situation could never exist where the Attorney General should sanction a suit of this type. However, because of the unambiguousness of the law involved, as hereinafter

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discussed, we do not believe such a suit would be justified under the present circumstances.
(2) Is the Georgia Real Estate Commission authorized to accept, without cost to the commission, the services of outside counsel?
Under Ga. Laws 1943, pp. 284, 285, as amended (Ga. Code Ann. 40-1614), the Department of Law is vested with complete and exclusive authority and jurisdiction in all matters of law relating to all agencies of the Executive Branch of the State Government. This authority is exclusive, complete and unequivocal. See also, Ga. Const., Art. VI, Sec. X, Par. II (Ga. Code Ann. 2-4502); Ga. Code 40-1602, amended by Ga. Laws 1975, p. 882.
In answer to your first inquiry I made reference to Ga. Laws 1971, p. 98, as amended (Ga. Code Ann. 40-1635). This section, in pertinent part, reads as follows:
"The Attorney General, upon the request of any ... agency of any branch of the government of the State of Georgia ... , is hereby authorized to select and employ private counsel to perform legal services for such ... agency ...."
This section merely authorizes the Attorney General to employ private counsel when so requested by the agency but does not mandate that he do so.
Your question raises an interesting proposition concerning the meaning of the term "employ" as used in the above-quoted section. Your inquiry suggests that this section may not preclude the Georgia Real Estate Commission from utilizing the services of outside counsel of its choice, so long as the services are rendered without cost to the commission. Georgia Laws 1971, p. 98, as amended (Ga. Code Ann. 40-1635), when read in conjunction with the provisions of Ga. Laws 1943, pp. 284, 285, as amended (Ga. Code Ann. 40-1614), which unequivocally provides that the State Law Department shall have complete and exclusive authority as to legal matters pertaining to state agencies, leaves little doubt but that the legislative intent was that private counsel should represent state agencies only on those rare occasions when the Attorney General deems such representation to be necessary. The use of the term "employ" does not indicate a willingness on the part of the General Assembly to authorize a state agency to be represented by private counsel of its choice who offer to do so at no expense to the agency. Rather, it would appear that in choosing terminology, the drafters were cognizant of the fact that private attorneys generally do not volunteer services to state agencies. Furthermore, it would seem appropriate to utilize the term "employ" in this section, since Section 2 of the same Act directs and grants authorization for payment for legal services rendered by private counsel approved by the

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Attorney General. See Ga. Laws 1971, pp. 98, 99, as amended (Ga. Code Ann. 40-1636).
Moreover, even if the commission could accept volunteered legal services, which it clearly may not do, the commission would nonetheless not be authorized to initiate litigation in its name without the concurrence of the Attorney General. Woodward v. Westmoreland, 124 Ga. 529 (1905); Ramsey v. Hamilton, 181 Ga. 365 (1935).
Therefore, it is my official opinion that absent approval by the Attorney General, the Georgia Real Estate Commission may not accept the services of outside counsel, even when such services are offered at no cost to the commission.
(3) What are the legal requirements concerning distribution of fees collected from licensees of the Georgia Real Estate Commission?
Georgia Laws 1931, pp. 7, 35, 37, as amended, particularly by Ga. Laws 1937, pp. 208, 209 (Ga. Code Ann. 84-101), and Ga. Laws 1943, p. 370, as amended (Ga. Code Ann. 84-102), would seem to require that all the fees collected by the various examining boards be remitted to the state treasury and then be paid out of the state treasury on a pro-rata basis according to the total amount of fees collected for the various examining boards. However, a closer scrutiny indicates that these provisions have been superseded and rendered unconstitutional by the provisions of the 1945 Constitution of Georgia. Georgia Code 84-1413, enacted by Ga. Laws 1973, p. 100, appears to adopt a scheme similar to the pre-1945 statutes cited above. It, too, cannot stand comparison with the Constitution.
The Constitution requires the full remittance of all fees generated by the examining boards to the general fund of the state treasury (Ga. Const., Art. VII, Sec. II, Par. III (Ga. Code Ann. 2-5503)) and further requires that "[n]o money shall be drawn from the treasury except by appropriation made by law." Ga. Const., Art. III, Sec. VII, Par. XI (Ga. Code Ann. 2-1911). These provisions, when read in conjunction with Ga. Const., Art. VII, Sec. IX, Par. IV (Ga. Code Ann. 2-6204), preclude both the practice of allocating particular sources of income for the use of a particular agency and the allocation of the fees, or any part of the fees, collected by the various examining boards to meet their expenses, and further preclude any implied commitment on the part of the General Assembly to appropriate to the examining boards an amount equal to the total fees generated. Gregory v. Hamilton, 215 Ga. 735, 737 (1960); State Ports Authority v. Arnall, 201 Ga. 713, 726-27 (1947).
The fact that the statutory scheme found in Ga. Laws 1931, pp. 7, 35, 37, as amended, particularly by Ga. Laws 1937, pp. 208, 209 (Ga. Code Ann. 84-101), and Ga. Laws 1943, p. 370, as amended (Ga. Code Ann. 84-102), which provides for distribution of funds on a

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pro-rata basis among the various licensing boards, is unconstitutional and therefore ineffective does not, in my opinion, leave a void which is not otherwise filled by statutory provisions.
It is provided at Ga. Laws 1931, pp. 7, 35, 37 (Ga. Code Ann. 84-101), that "[t]he office of the [Joint Secretary is] to be maintained under the supervision of said Secretary of State." Georgia Laws 1943, p. 370 (Ga. Code Ann. 84-102) further provides as follows:
"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 ....''
The cited language, which is reinforced by the listing of functions in Ga. Laws 1931, pp. 7, 35, 37, as amended (Ga. Code Ann. 84-101), requires each examining board to contract "for all services" through the Secretary of State and empowers the Secretary of State to employ such personnel as it deemed necessary for the operation of the State Examining Boards. Moreover, Ga. Laws 1931, pp. 7, 35, 37 (Ga. Code Ann. 84-101), places in the Secretary of State, "supervision" of the Joint Secretary's office.
These functions are insufficient to confer "budget unit" status on the Secretary of State with respect to the occupational certification functions which are under his supervision. See Ga. Code 40-402 (8) (Ga. Laws 1962, pp. 17, 19).
The appropriations for occupational certification are not appropriated to the several examining boards. The appropriations are clearly and explicitly to the "Budget Unit: Secretary of State." See, e.g., Ga. Laws 1976, pp. 785, 916, Section 37. This being the case, the budgeting and expenditure of that appropriation is the responsibility of the Secretary of State, not that of the several examining boards.
Accordingly, it is my official opinion that the lawful method of distribution of funds to the Real Estate Commission calls for the Secretary of State to exercise his discretion in dividing the total appropriation for the Joint Secretary's office among the various examining boards including the Georgia Real Estate Commission.

OPINION 76-94

To: Commissioner, Department of Agriculture

August 19, 1976

Re: The Buying Services Act of 1975 does not apply to cocktail lounges selling memberships for a certain fee that will permit patrons buying such memberships to escape the normal cover charge required of customers entering the cocktail lounge.

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You have requested my opinion as to whether a cocktail lounge having a cover charge of $1 per patron and selling memberships for $50 (that will enable the member to escape the $1 per visit cover charge) is a buying service or club to be regulated by the Buying Services Act of 1975. Inasmuch as that Act defines a buying service as a " ... corporation, partnership, unincorporated association or other businl=lSS enterprise which is organized for profit with the primary purpose of providing benefits to members from the cooperative purchase of services or merchandise . .." (Ga. Laws 1975, p. 529 (Ga. Code Ann. 5-3502)), it is my opinion that the situation you have described does not fall within the purview or intent of the legislation designed to regulate "buying services."
Obviously, the cocktail lounges provide no benefits to members from the cooperative purchases of services or merchandise once the patrons enter the lounge; therefore, I can see no basis for subjecting such operations to the provisions of the Buying Services Act. Moreover, I gravely doubt that the arrangement you have described is the type of activity for which the legislation was intended and enacted. I envision the Act as monitoring buying services that charge fees for membership and subsequently provide the members with an opportunity to purchase goods such as consumer articles at a lower price than would be available to the member at retail.

OPINION 76-95

To: Commissioner, Department of Natural Resources

August 30, 1976

Re: Discussion of the seaward boundary of the tidal or salt waters of the State of Georgia.

Subsection (a) of Section 94 of Ga. Laws 1955, p. 483 et seq., as amended, particularly by Ga. Laws 1974, pp. 1170, 1171 (Ga. Code Ann. 45-905 (a)), pertains to the commercial taking of shrimp and crabs, and provides in pertinent part as follows:
"(a) Except as otherwise specifically provided, it shall be unlawful for any person to use a power-drawn net in any of the tidal or salt waters of this State between January 1 and May 31 of any year for the commercial taking of shrimp or crabs...." (Emphasis added.)
You have requested my opinion as to the correct rule of law for determining and measuring the seaward boundary of the "tidal or salt waters of this state." Under the terms of this statute, any person who

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engages in the commercial taking of shrimp or crabs within or inside this seaward limit, during the proscribed months, does so illegally. Therefore, the manner and method of determining such boundary is extremely important to law enforcement personnel and commercial fishermen alike.
The answer to your inquiry is, in my opinion, governed by what is commonly referred to as the Submerged Lands Act (67 Stat. 29, 43 U.S. C. 1301-1315), by a portion of a Georgia boundary statute which was apparently patterned after such Act, and by a decision of the U. S. Supreme Court construing the Submerged Lands Act.
In 1953, the U. S. Congress enacted the Submerged Lands Act in response to several United States Supreme Court decisions which had held that the Federal Government, rather than the states, had paramount rights in the submerged lands of the open sea. Cf. United States v. California, 332 U.S. 19 (1947); United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339 U.S. 707 (1950). One effect of this Act was to expressly grant to the several coastal states any right, title or interest the United States had in:
"(2) all lands permanently or periodically covered by tidal waters ... seaward to a line three geographical miles distant from the coastline of each such State...." [Sec. 2 (a)]. (Emphasis added.)
The coastline was then defined as:
"the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters." [Sec. 2 (c)].
Therefore, this Act effectively recognized and declared the seaward boundary of this state's tidal or salt waters as being three geographical miles 1 seaward of the composite line of ordinary low water along that portion of the coast in direct contact with the open sea and the line marking the seaward limit of inland waters.
While the definition of "coastline" in the Submerged Lands Act appears simple enough on its face, it in fact raises numerous questions as to the proper manner of delineating a state's sea boundary. Specifically, the definition does not provide adequate criteria for specifying with certainty the legal boundaries of the states. As one legal scholar has questioned, how should the definition be applied where islands fringe a coast at varying distances from the mainland? Further, would the seaward limits of inland waters, in the event of indentations,

1 The "geographical mile," also called the Sea Mile or Nautical Mile, is defined as being equal to the length of a minute of arc of a great circle of the earth. Its value, under the laws of the United States, is equal to 1,852.0 meters, or 6,076.10333 feet. See Shalowitz, Shore and Sea Boundaries, pp. 25, 304 (1962).

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be a headland to headland line, or should the limits follow the sinuosities of the indentation? 2

It was these sorts of questions which were at issue before the U. S. Supreme Court in United States v. California, 381 U.S. 139 (1965). Here, the court, after reviewing the pertinent provisions of the Submerged Lands Act, ruled that the definitions and rules set forth in the United Nations Convention on the Territorial Sea and Contiguous Zone (TIAS No. 5639) apply for purposes of construing the Submerged Lands Act. That is, the court held that:
"It is our opinion that we best fill our responsibility of giving content to the words which Congress employed by adopting the best and most workable definitions available. The Convention on the Territorial Sea and Contiguous Zone ... provides such definitions. We adopt them for purposes of the Submerged Lands Act. This establishes a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations...." 381 U.S. 139, at 165.
The Convention, which had earlier been duly approved by the U. S. Senate and ratified by the President, establishes comprehensive rules for delineating a state's coastline. For example, Article 3 of the Convention states the general rule as being that the coastline, called the normal baseline, is the low water line along the coast as marked on large-scale charts officially recognized by the United States. However, subsequent Articles create exceptions to this general rule for such areas along the coast as bays, islands, and low-tide elevations, just to name a few. Suffice it to say that the Convention is sufficiently detailed so as to enable a competent cartographer to determine the seaward boundary of this state, notwithstanding the sinuosities of the coast.

The pertinent statutory provision in Georgia is Ga. Laws 1969, pp. 678, 679 (Ga. Code Ann. 15-101), amending a portion of Georgia's boundary statute dating to 1788. This 1969 amendment appears to have been patterned after the language used in the Submerged Lands Act, in that it declares the seaward boundary of the state to be as follows:

" ... three geographical miles from ordinary low water along those portions of the coast and coastal islands in direct contact with the open sea or three geographical miles from the line marking the seaward limit of inland waters...."

2 See Shalowitz, Shore and Sea Boundaries, p. 155 (1962).

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But for the addition of the phrase "and coastal islands," the language in the Georgia Act is essentially identical to that of the Submerged Lands Act, defining "coastline." In my opinion, the addition of this phrase does not render the Georgia Act inconsistent with the Submerged Lands Act. Rather, its insertion appears to be simply an attempt to clarify one question left unanswered by the federal Act, but answered by the Supreme Court in the California case; that is, how are coastal islands to be treated in determining the seaward boundary? Therefore, I am of the opinion that the language in both Acts is harmonious.

Accordingly, based upon the foregoing authorities, I am of the opinion that the Supreme Court, if faced with the issue of delineating the seaward boundary of Georgia's tidal or salt waters, would hold that such boundary should be determined using the rules set forth in the Convention on the Territorial Sea and Contiguous Zone. True, the California case was concerned only with the question of ascertaining the coastline of the State of California. However, I can see no reason why the same legal principles and conclusions enunciated in that decision would not also be applied by the court if the State of Georgia's coastline were in fact at issue.3 Moreover, it is arguable that the Convention, having been approved by the Senate and ratified by the President, has the legal status of a treaty, and therefore in and of itself constitutes a part of the supreme law of the land under our State and Federal Constitutions. See Article VI, Clause 2, Constitution of the United States (Ga. Code Ann. 1-602); Article XII, Section 1, Par. 1, Constitution of the State of Georgia (Ga. Code Ann. 2-8001); cf. United States v. Belmont, 301 U.S. 324, 331 (1937); Block v. Compagnie Nationale Air France, 229 F.Supp. 801 (N.D. Ga. 1964), aff'd 386 F.2d 323, cert. den. 292 U.S. 905.

I am enclosing herewith a copy of the pertinent provisions of the Convention on the Territorial Sea and Contiguous Zone. If, after reviewing the provisions of the Convention with members of your staff, you feel you need further assistance in properly construing any portion thereof, do not hesitate to call on me.

3 It should be pointed out that the U. S. Supreme Court's decree in the recent case of United States v. Maine, 420 U.S. 515 (1975), in which the State of Georgia was a party, reserved jurisdiction for purposes of resolving any boundary disputes between the respective states and the United States regarding ownership of the seabed and subsoil beyond the state's coastline. Thus, while the question of actually delineating a state's "coastline" was not at issue in the Maine case, it is conceivable that this
question could be judicially resolved in the event a disagreement arises between the State of Georgia and the United States over the line marking the landward extent of
the United States' jurisdiction and control.

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Annex I p]
CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE

The States Parties to this Convention
Have agreed as follows:
PART I
TERRITORIAL SEA
SECTION I. GENERAL
Article 1
1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.
2. This sovereignty is exercised subject to the provisions of these articles and to other rules of international law.
Article 2
The sovereignty of a coastal State extends to the air space over the territorial sea as well as to its bed and subsoil.
SECTION II. LIMITS OF THE
TERRITORIAL SEA
Article 3
Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.
Article 4
1. In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.

2. The drawing of such baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.
3. Baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them.
4. Where the method of straight baselines is applicable under the provisions of paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by a long usage.
5. The system of straight baselines may not be applied by a State in such a manner as to cut off from the high seas the territorial sea of another State.
6. The coastal State must clearly indicate straight baselines on charts, to which due publicity must be given.
Article 5
1. Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.
2. Where the establishment of a straight baseline in accordance with article 4 has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea or of the high seas, a right of innocent passage, as provided in articles 14 to 23, shall exist in those waters.
Article 6
The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the

1 The text of the Convention printed herein constituted Annex I to the Final Act of
the United Nations Conference on the Law of the Sea, which was certified by the
Legal Counsel, for the Secretary-General of the United Nations. [Footnote added by the Department of State.]

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baseline equal to the breadth of the territorial sea.
Article 7
1. This article relates only to bays the coasts of which belong to a single State.
2. For the purposes of these articles, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.
3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water areas of the indentation.
4. If the distance between the lowwater marks of the natural entrance points of a bay does not exceed twentyfour miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters.
5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds twenty-four miles, a straight baseline of twenty-four miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length.
6. The foregoing provisions shall not apply to so-called "historic" bays, or in any case where the straight baseline system provided for in article 4 is applied.
Article 8
For the purpose of delimiting the territorial sea, the outermost permanent

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harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast.
Article 9
Roadsteads which are normally used for the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are in eluded in the territorial sea. The coastal State must clearly demarcate such roadsteads and indicate them on charts together with their boundaries, to which due publicity must be given.
Article 10
1. An island is a naturally-formed area of land, surrounded by water, which is above water at high-tide.
2. The territorial sea of an island is measured in accordance with the provisions of these articles.
Article 11
1. A low-tide elevation is a naturallyformed area of land which is surrounded by and above water at low-tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea.
2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.
Article 12
1. Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The provisions of

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this paragraph shall not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance with this provision.
2. The line of delimitation between the territorial seas of two States lying opposite to each other or adjacent to each other shall be marked on large-scale charts officially recognized by the coastal States.
Article 13
If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-tide line of its banks.
SECTION Ill. RIGHT OF INNOCENT
PASSAGE
SUB-SECTION A. RULES APPLICABLE TO ALL SHIPS
Article 14
1. Subject to the provisions of these articles, ships of all States, whether coast-

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al or not, shall enjoy the right of innocent passage through the territorial sea.
2. Passage means navigation through the territorial sea for the purpose either of traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from internal waters.
3. Passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress.
4. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with these articles and with other rules of international law.
5. Passage of foreign fishing vessels shall not be considered innocent if they do not observe such laws and regulations as the coastal State may make and publish in order to prevent these vessels from fishing in the territorial sea.
6. Submarines are required to navigate on the surface and to show their flag.

OPINION 76-96

To: Chairman, Georgia Public Service Commission

August 30, 1976

Re: A Public Service Commissioner Emeritus is not entitled to compensation greater than that provided by statute.

This is in response to your inquiry as to whether the Georgia Public Service Commission may provide for additional compensation for a Public Service Commissioner Emeritus in exchange for his discharge of various functions which the commission may assign to him.
As you mentioned in your letter, Ga. Code Ann. 78-1201 (Ga. Laws 1957, pp. 206, 207; 1962, pp. 602, 603; 1963, pp. 651, 652; 1964, p. 683) created the position of Public Service Commissioner Emeritus,

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as well as others, and provided for the qualifications for said office. You relate that pursuant to this authority, two former Public Service Commissioners have been appointed by the Governor to serve as Commissioners Emeritus. Code Ann. 78-1201 specifies the salary for these positions. Elsewhere the duties of a Commissioner Emeritus are described as consultation with, advice and assistance to the commission. Ga. Code Ann. 78-1202 (Ga. Laws 1957, pp. 206, 207).
The right of a public officer to compensation grows out of the office itself, rather than from a contractual relationship between the officer and the state. MacNeill v. Steele, 186 Ga. 792, 795, 199 S.E. 99 (1938); see Op. Att'y Gen. 75-31 (copy attached). The acceptance of public office with a fixed salary obliges the officer to perform the duties of that office for the established compensation, regardless of a perceived inadequacy of the remuneration. Twiggs v. Wingfield, 147 Ga. 790, 793, 95 S.E. 711 (1917). A public officer has no legal claim for compensation in addition to that fixed by statute, and a promise to pay an additional sum is not binding. Twiggs v. Wingfield, 147 Ga. at 794; see 63 Am. Jur. 2d Public Officers, 382.
It is therefore my opinion that a Public Service Commissioner Emeritus is not entitled to compensation greater than that provided by statute, and the commission may request a Public Service Commissioner Emeritus to consult with, advise and assist the commission without additional compensation.

OPINION 76-97

To: Acting Commissioner of Personnel Administration

September 3, 1976

Re: County salary supplements for local department of health and county department of family and children services employees who are in the classified service of the State Merit System of Personnel Administration are permissible if the supplements are in compliance with State Personnel Board Regulation A.500.

This is in response to your request for my opinion regarding the permissibility of county salary supplements for local department of health and county department of family and children services employees who are in the classified service of the State Merit System of Personnel Administration. You wish to know if such supplements are presently authorized and, if so, is the payment of county supplements illegal discrimination. You also wish to know whether the State Personnel Board has the authority to control these supplements or the authority to discontinue such supplements.

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As an aside, you have also asked whether the payment of a monthly fiat sum travel allowance to local health department employees is an illegal gratuity. In some situations, this last area of inquiry would pertain to the legality of payments made by a county out of county funds pursuant to county ordinances to county employees. Cf. Georgia Department of Human Resources et al. v. Demory, 138 Ga. App. 888 (1976). In that situation, I cannot give you an adequate legal response that would be applicable in all of the 159 counties in this state. This problem will have to be resolved by local authorities.
However, at least some of the personnel of the various health districts are employees of the Georgia Department of Human Resources. See Op. Att'y Gen. 74-89. To my knowledge the only authority under which these state employees can receive mileage expenses is Ga. Laws 1972, pp. 1125, 1127, as amended. Ga. Code Ann. 40-2002. This law provides as follows:
"The officers, officials and employees of the Executive, Legislative and Judicial Branches of State Government, except members of the General Assembly who shall be paid as otherwise provided by law, shall be paid 12 cents per mile as traveling expense and shall, in addition to mileage, be reimbursed for actual expenses incurred by reason of tolls and parking fees, when traveling in the service of the State or any agency thereof by automobile. Mileage shall not be recoverable by such officers, officials, and employees traveling in State-owned automobiles or rental automobiles."
Therefore, it is my official opinion that the only mileage allowance permitted to employees of the Georgia Department of Human Resources is the one set forth in Ga. Code Ann. 40-2002 (i.e., 12 cents per mile plus toll fees and parking) .1
Your primary questions regarding salary supplements are of general application since the employees of local departments of health and county departments of family and children services are in the classified service of the State Merit System of Personnel Administration. Ga. Laws 1975, pp. 79, 81, as amended (Ga. Code Ann. 40-2202 (a) (1)). Therefore, these employees' salaries are set by the State Personnel Board.
Compare Ga. Code Ann. 40-2205 (b) (3) with Ga. Code Ann. 40-2204 (a) (3) (Ga. Laws 1975, p. 79 et seq.). Consequently, in creating a compensation plan for these employees the State Personnel Board can provide for salary supplements or it can prohibit such supplements.

1 Of course, employees can also be reimbursed for other actual expenses reasonably incurred in conjunction with traveling on behalf of the Georgia Department of Human
Resources (e.g., lodging, meals, etc.). Cf. Op. Att'y Gen. 70-28.

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In promulgating State Personnel Board Regulation A.500 (hereinafter SPB Reg. A.500) the State Personnel Board has elected to permit county salary supplements for employees of the local departments of health and of the county departments of family and children services. SPB Reg. A.500 provides as follows:
"County Health or Welfare Boards, subject to the approval of the state department heads, may supplement salaries from county funds. Any supplementary payments shall be included on the regular payroll of the Department and the State Personnel Board may require any such supplement to be discontinued. All county supplements to salaries must be in accordance with a plan providing for similar treatment of employees in the same class taking into account such factors as length of service, status, and service rating."
Supplements that comply with SPB Reg. A.500 would therefore be authorized. Also, if the plan referred to in SPB Reg. A.500 does base the size of the salary supplements on "length of service, status, and service rating" [assuming status refers to employment status under SPB Rule 9 (e.g., permanent status, working test status, emergency status, etc.) and not political affiliation, religious affiliation, race, creed, national origin, sex, age or physical handicap], then I know of no law or administrative rule regarding illegal discriminatory employment practices that would be violated by these salary supplements.
Therefore, it is my official opinion that county salary supplements for local department of health and county department of family and children services employees who are in the classified service of Personnel Administration are permissible if the supplements are in compliance with State Personnel Board Regulation A.500.

OPINION 76-98

To: Director, Environmental Protection Division, Department of Natural Resources

September 3, 1976

Re: Discussion of certain questions relative to forfeited bond proceeds under the Georgia Surface Mining Act.

You recently posed certain questions regarding the disposition of bond proceeds which may in the future be forfeited pursuant to the Georgia Surface Mining Act. As you are aware, the General Assembly amended this Act in 1976 in several respects. See Ga. Laws 1976, p. 527 et seq. (Ga. Code Ann. Ch. 43-14). One such amendment granted to the Director of the Environmental Protection Division (EPD) additional flexibility in utilizing forfeited bond proceeds.

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Your first question requires a construction of that part of the 1976 amendment pertaining to forfeited bond proceeds. Specifically, you ask my opinion as to whether:
Following authorization by the Director for the expenditure of forfeited bond funds, should a portion of monies involved be unused at a particular reclamation site, can the remainder of the forfeited funds be allowed to accumulate in a forfeited bond escrow account for the purpose of completing reclamation on another site where bond funds are forfeited and are insufficient to properly complete reclamation?
After carefully reviewing the language used by the legislature in the 1976 amendment, it is my opinion that your question must be answered in the negative. The Act provides in relevant part as follows:
"Provided, where a mining operator fails or refuses to complete any of his responsibilities under a Mined Land Use Plan, and the bond, government securities or cash are consequently recovered upon or forfeited, the Director may expend as he deems appropriate that portion of such recovered or forfeited funds as is necessary to complete said mining operator's responsibilities under the Mined Land Use Plan." Ga. Laws 1976, pp. 527, 530 [Ga. Code Ann. 43-1406 (c)]. (Emphasis added.)
This provision appears plain and clear. That is, it allows the director to use bond proceeds recovered from or forfeited by a mining operator in order to complete that particular mining operator's responsibilities under his Mined Land Use Plan. I can find no authority for taking any money that may be unused in that particular reclamation effort and using same for purposes of reclaiming other mining sites. To the contrary, in my judgment, any such unused funds should be deposited into the state treasury.
Your second question relates to procedures which must be utilized by the EPD in expending forfeited bond funds for purposes of reclaiming the particular site involved. Specifically, you wish to know whether you are statutorily required to go through a competitive bidding process prior to contracting for the necessary reclamation work. In this regard, I would direct your attention to Ga. Laws 1964, pp. 693, 696 (Ga. Code Ann. 40-1921.1), which provides that all construction or public works contracts involving the expenditure of in excess of $500 are to be conducted and negotiated by the Department of Administrative Services (DOAS) in accordance with the pertinent provisions of Ga. Laws 1937, p. 503 et seq., as amended (Ga. Code Ch. 40-19, as amended). Georgia Code Ann. 40-1909, 40-1910 and 40-1911 are particularly relevant. Georgia Code Ann. 40-1909 requires the solicitation of sealed bids by advertisement in a newspaper

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of state-wide circulation, at least 10 days prior to the date for opening bids and awarding the contract, for expenditures in excess of $1,000. Moreover, Ga. Code Ann. 40-1910 requires that competitive bidding be employed and that the contract be awarded to the lowest bidder, whenever possible. Finally, Ga. Code Ann. 40-1911 states that competitive bids must be received in accordance with rules and regulations adopted by DOAS.
The only question is whether a contract entered into by EPD for reclamation work could be considered a construction or public works contract and thus fall within the above provisions. I am aware of no judicial decision of this state where the meaning of the words "construction contract" or "public works contract" has been in issue. However, I believe a persuasive argument could be made that a contract for reclamation and rehabilitation of land subjected to surface mining constitutes a public works contract. First, the public at large will be benefited by any such reclamation work, in that unsightly land will be rehabilitated. Moreover, land reclamation is an activity in which the general public and the state are vitally interested. In light of this, I am of the opinion that a court of law, if faced with the issue, would likely hold that such a contract would be equivalent to a public works contract.
Finally, I would feel remiss in my duties to you if I did not remind you of the provisions of Ga. Laws 1910, p. 86, as amended (Ga. Code Ann. 23-1705, as amended), which has a bearing on the type of contracts contemplated by you. That is, this statute provides that any contract with the state for the doing of any public works, where the total contract price exceeds $5,000, shall not be valid for any purposes unless the contractor shall give both a performance and payment bond in an amount of at least the total amount payable by the terms of the said contract.

OPINION 76-99

To: Executive Secretary, State Ethics Commission

September 8, 1976

Re: The Campaign and Financial Disclosure Act does not apply to contributions or expenditures made to solicit support for or opposition to proposed constitutional amendments or legislative enactments.

This is in answer to your letter of September 4, 1976, pertaining to the applicability of the disclosure requirements of Georgia's "Campaign and Financial Disclosure Act" (i.e., Ga. Laws 1974, p. 155 et seq., as amended (Ga. Code Ann. Ch. 40-38)) to monies contributed

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or expended in connection with ratification of a proposed constitutional amendment which would provide for gubernatorial succession. Specifically you ask:

"Whether funds which are obtained for the purpose of soliciting support of the ratification or to oppose ratification of a constitutional amendment which will be voted on in theNovember general election are subject to being reported under the provisions of the Campaign and Financial Disclosure Act."

The Campaign and Financial Disclosure Act makes it abundantly clear throughout its provisions that its concern is with the fiscal aspects of political campaigns for specified state and local "offices." Section 2 of the Act enumerates the offices covered, commencing with the office of Governor, Lieutenant Governor, Attorney General, Secretary of State, Comptroller General, Commissioner of Agriculture, etc. (see Ga. Code Ann. 40-3802) ; and simply by way of illustration, Section 3 defines (a) the term "election" as a primary election, runoff election, special election or general election "for the offices provided for in Section 2," (b) the term "contribution" as a gift or anything of value given for the purpose of influencing the nomination or election of any person "for the offices provided for in Section 2," and (c) the term "expenditure" as a payment, distribution, etc., made for the purpose of influencing the nomination or election of any person "for the offices provided for in Section 2" (see Ga. Code Ann. 40-3803).
The disclosure provisions read the same way. Section 6 (Ga. Code Ann. 40-3806) commences as follows:

"The Chairman or Treasurer of every campaign committee organized to bring about the nomination of a candidate for any office provided for in Section 2 ... shall file ... 'Campaign Financing Disclosure Reports' ..." (Emphasis added.)

While numerous other illustrations could be given, this would be "beating a dead horse." Suffice it to say that the Act does not so much as hint at a coverage which would reach out beyond the financing of campaigns by candidates for specified political offices and reach contributions and expenditures made in connection with lobbying for or against proposed legislation or proposed constitutional amendments. It is consequently my opinion that Georgia's Campaign and Financial Disclosure Act does not apply to contributions or expenditures made to solicit support for or opposition to proposed constitutional amendments or legislative enactments.

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OPINION 76-100

To: Secretary of State

September 15, 1976

Re: Campaign and Financial Disclosure Act imposes lesser filing requirements upon candidates who have no opposition (primary or general) and who have received no contributions; the Act has no applicability to members of the General Assembly seeking the position of Speaker Pro Tern.

This is in reply to your letter of August 24, 1976, wherein you ask the following questions:
(1) Where a candidate has no opposition in either the primary or general election and has received no contributions, is he required by the Campaign and Financial Disclosure Act to file reports other than the "initial" and "final" reports?
(2) Does the Campaign and Financial Disclosure Act apply to contributions and expenditures made in connection with a legislator's attempt to be elected Speaker Pro Tern. of the Georgia House of Representatives?
My answer to each question in turn is as follows: (1) The answer to your intial question is answered quite directly and clearly by Section 6 (d) of the Act, i.e., Ga. Laws 1974, pp. 155, 159, as amended (Ga. Code Ann. 40-3806 (d)). This section provides that:
"In the event any candidate covered by the provisions of this Act has no opposition (primary or general) and receives no contributions, regardless of amount, said candidate shall only be required to make the initial and final report as required under the provisions of this Act."
(2) With respect to your second question, which is the applicability of the Act to a House member's campaign for the position of Speaker Pro Tern. of the Georgia House of Representatives, the situation also seems clear. Section 2 of the Act applies. See Ga. Laws 1974, pp. 155, 156, as amended (Ga. Code Ann. 40-3802). It includes such offices as Governor, Lieutenant Governor, Attorney General, Secretary of State, Comptroller General, Commissioner of Agriculture and "members of the Georgia House of Representatives and Georgia Senate," etc., all of which offices are elected directly by the people, but does not mention, and I therefore think does not include, positions or offices within the General Assembly (to which a member is elected by his fellow legislators and not by the people), such as the Speaker or

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Speaker ProTem. See, e.g., Art. III, Sec. VI, Par. II of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-1802); Ga. Code (1933) 47-106.

OPINION 76-101

To: Joint Secretary, State Examining Boards

September 16, 1976

Re: A broker who manages rental property which he owns must maintain security deposits in an escrow account.

This is in response to your letter of August 24, 1976 in which you requested advice as to whether a licensed broker who manages rental property which he owns may now post a bond in lieu of maintaining security deposits in an escrow account.
Georgia Laws 1976, p. 1372 (Ga. Code Ann. 61-601, 61-602, 61-603) provides that landlords must maintain an account wherein all security deposits are maintained, or in lieu of such an account, post and maintain a bond in the amount of the total of deposits being held or $50,000, whichever is less. The question raised by this requirement is whether it conflicts with the escrow account requirements for brokers contained in Ga. Code Ann. 84-1419 (a).
Georgia Laws 1976, p. 1372 (Ga. Code 61-602, 61-603) provides as follows:
"61-602. Security deposits to be placed in escrow accounts.-Except as provided in section 61-603, whenever a security deposit is held by a landlord or his agent on behalf of a tenant, such security deposit shall be deposited in an escrow account only for that purpose, in any bank or lending institution subject to regulation by the State of Georgia or any agency of the United States government. Such security deposit shall be held in trust for the tenant by the landlord or his agent, except as provided in section 61-605. Tenants shall be informed in writing of the location and account number of the escrow account required by this section.
"61-603. Surety bond in lieu of escrow account.-As an alternative to the requirement that security deposits be placed in escrow, as provided in section 61-602, the landlord may post and maintain an effective surety bond with the clerk of the superior court in the county in which the dwelling unit is located in a total amount of the security deposits he holds on behalf of the tenants, or $50,000, whichever is less, executed by the landlord as principal and a surety company authorized and licensed to do business in

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the State as surety ... The bond shall be conditioned upon the faithful compliance of the landlord with the provisions of section 61-605, including the return of the security deposits in the event of bankruptcy of landlord or foreclosure of the premises, and shall run to the benefit of any tenant injured by the landlord's violation of the provisions of section 61-605...."
Georgia Code Ann. 84-1419 (a) reads as follows:
"Each broker shall maintain a separate bank checking account in this State which shall be designated a trust or escrow account wherein all downpayments, earnest money deposits or other trust funds received by the broker, his associate brokers or his salesmen, on behalf of his principal or any other person, shall be deposited." Ga. Laws 1973, pp. 100, 115.
Your inquiry presents two threshold questions which must be addressed. These are: whether Ga. Code Ann. 84-1419 (a) pertains to security deposits; and whether as a general proposition brokers acting as rental agents for property belonging to others may now post bonds in lieu of maintaining security deposits in an escrow account.
It is my opinion that the requirement in Ga. Code Ann. 84-1419 (a) that "other trust funds received by the broker ... on behalf of ... any other person, shall be deposited [in the escrow account]" applies to all funds, including security deposits, which are held by brokers.
It is also my opinion that Ga. Laws 1976, pp. 1372, 1379 (Ga. Code 61-603) does not relieve a broker who manages rental property for another of his responsibility to maintain security deposits in an escrow account. Georgia Code Ann. 84-1419 existed prior to the enactment of Ga. Laws 1976, p. 1372 (Ga. Code 61-602, 61-603). Thus, the provision that brokers who act as rental agents must deposit security deposits to an escrow account pre-dates the requirement that landlords generally must maintain security deposits in an escrow account or post a bond as security. Georgia Laws 1976, p. 1372, does not specifically repeal Ga. Code Ann. 84-1419 (a) and implied repealers are not favored. Geeslin v. Opie, 220 Ga. 53 (1964); West v. Forehand, 128 Ga. App. 124 (1973).
I do not think that Ga. Laws 1976, pp. 1372, 1379 (Ga. Code 61-603) permits a broker who manages rental property belonging to others to post a bond in lieu of maintaining security deposits in an escrow account for an additional reason. Georgia Laws 1976, pp. 1372, 1379 (Ga. Code 61-603) is a general law applying to all landlords and their agents. These persons may or may not be brokers. Georgia Code Ann. 84-1419 (a), however, is a special, more restrictive law applying to a sub-class of landlords; namely, brokers. The rule is that "[w]here there are two statutes upon the same subject, the earlier being

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special and the latter general, the presumption is, in the absence of an express repeal, or an absolute incompatibility, that the special is intended to remain in force as an exception to the general." In re Freeman, 49 F. Supp. 163, 167 (S.D. Ga. 1943). See also West v. Forehand, supra. Therefore, the requirement that brokers maintain security deposits only in an escrow account, since it deals with the more specific class, is controlling as to that class.
The answer to the question posed by your letter depends upon whether a broker is exempt from the requirements of Ga. Code Ann. Ch. 84-14 (Ga. Laws 1973, p. 100), when dealing with property which he owns. It is my opinion that he is not. It is provided in Ga. Code Ann. 84-1403 as follows:
"Except as otherwise provided in this Chapter, the provisions of this Chapter shall not apply to:
* * *
"(g) any person who, as owner or through another person engaged by such owner on a full-time basis, buys, sells, leases, manages, auctions or otherwise deals with property owned by such person; ..."
It is my opinion that the above-quoted subsection does not except from the provisions of Ga. Code Ann. Ch. 84-14 brokers or salesmen when dealing with their own property.
The foremost rule of statutory construction is to ascertain the true intention of the General Assembly (Board of Tax-Assessors of Decatur County v. Catledge, 173 Ga. 656 (1931)), and this must be done by reading all of the sections of the Georgia Code together. See generally, Barron v. Terrell, 124 Ga. 1077 (1906). When this is done, it becomes apparent that the exemption cited above should apply only to persons who are not licensed as real estate brokers.
Georgia Code Ann. 84-1403 (a), which also provides an exception from the provisions of Ga. Code Ann. Ch. 84-14, specifically excludes licensed real estate brokers and salesmen from the exception. This section provides for the exemption from the provisions of Ga. Code Ann. Ch. 84-14 of:
"(a) any person except a real estate broker or salesmen licensed under this Chapter who, as owner, lessor or prospective purchaser or their regular employees, including resident managers, performs any act with reference to property owned, leased or to be acquired by him where such acts are performed in the regular course of, or as incident to, the management of such property and the investment therein; ..." (Emphasis added.)
This provision would appear to be applicable to brokers who are involved in the management of rental properties which they own. How-

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ever, under this exemption there is specific exclusion of those who are licensed as real estate brokers. This evidences the intention of the General Assembly to require real estate brokers who are performing functions with regard to their own property which would otherwise be covered by Code Ch. 84-14 to conduct themselves in accordance with the provisions of that Chapter.
Furthermore, it is extremely doubtful that there was an intent to provide a loophole whereby a person could represent himself to the public as a broker and still claim immunity from the restrictions placed upon brokers. Status as a broker implies that the person holding such status is regulated by certain laws designed to protect the public; namely, the provisions of Ga. Code Ch. 84-14. Consequently, it was certainly not contemplated that a person could claim that status when it is to his benefit and disavow that same status when it operates to his detriment.
It is thus evident that the General Assembly intended to require brokers, when dealing with their own property, to be subject to the provisions of Chapter 84-14, and therefore the provisions of Ga. Code Ann. 84-1403 (g) must be read to exclude only those persons, other than licensed real estate persons, who are dealing with their own property, from the scope of the Act. [For a similar conclusion, see Buras v. Fidelity and Deposit Company of Maryland, 197 La. 378, 1 So.2d 552 (1941).]
Therefore, it is my official opinion that a broker who manages property which he owns may not post a bond in lieu of maintaining security deposits in an escrow account.

OPINION 76-102

To: Commissioner, Department of Agriculture

September 20, 1976

Re: Funds of the Georgia Agricultural Commodity Commissions may not be expended for contributions to and support of the activities of the Southeastern Legal Foundation.

You have requested my opinion as to whether funds of the Georgia Agricultural Commodity Commissions may be expended for contributions to and support of the activities of the Southeastern Legal Foundation. For the reasons to be discussed subsequently, it is my opinion that such funds may not be used to support the Southeastern Legal Foundation or its activities.
Without attempting to characterize the nature or the purposes of the Southeastern Legal Foundation (neither of which is necessary or

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relevant to the resolution of your query), I feel there is no question that the entity is a private enterprise undertaken by and serving private groups and individuals possessing of similar political and economic philosophies. As such, it is precluded from receiving by grants and contribution the support of the public monies of this state by the language of Article VII, Section I, Paragraph II of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5402). That constitutional expression unequivocally proscribes the grant of any donation or gratuity in favor of any person, corporation or association.
Inasmuch as the fiscal resources accumulated and held by the various Agricultural Commodity Commissions are subject to the same restrictions of disbursement and investment as all other state funds (Ga. Laws 1969, p. 763 (Ga. Code Ann. 5-2906 and 5-2916)), I must conclude that there can be no authority whatsoever for the use of Agricultural Commodity Commission funds in such a manner so as to comprise a gratuity or donation. Accordingly, as the utilization of the funds you have described to support the activities of the Southeastern Legal Foundation would constitute a donation or contribution, it contravenes the aforementioned constitutional prohibition and, hence, may not be effected. See Ops. Att'y Gen. 73-132, 71-128, and 69-203.

OPINION 76-103

To: Chairman, Georgia Public Service Commission

September 22, 1976

Re: A license to use telephone service observing equipment may be revoked upon proof that the licensee is recording conversations on the grounds that said activity is contrary to the purposes and uses for which the license was issued.

This is in response to your request for my opinion as to whether the Georgia Public Service Commission would be authorized to revoke the license held by a subscriber of a telephone company to employ telephone service observing equipment upon proof that the licensee is recording conversations on the grounds that said activity is contrary to the purposes and uses for which the license was issued.
The commission is invested with the responsibility 1 of authorizing the use of "any equipment or device which is furnished by any telephone company ... which may be attached to any telephonic equipment of any subscriber to such equipment which permits the intercep-
1 I have previously considered certain parameters of the commission's responsibility under this legislation. Ops. Att'y Gen. 74-69, 74-36, 73-37.

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tion of telephonic communications solely for the purposes of business service improvement...." Code Ann. 26-3005 (a). Pursuant to this responsibility, the commission has promulgated rules and regulations. Ch. 515-8-1, Official Compilation, Rules and Regulations of the State of Georgia.
Your staff relates that at the present time it is technologically impossible to record conversations through the use of service observing equipment. Rather, the equipment permits only the interception of incoming calls for monitoring purposes, and in this connection the equipment is utilized by the training departments of businesses which conduct much of their operations by telephone.
It is my opinion that a license to use telephone service observing equipment may be revoked upon proof that the licensee is recording conversations on the grounds that said activity is contrary to the purposes and uses for which the license was issued, "the interception of telephonic communications solely for the purpose of business service improvement." Code Ann. 26-3005 (a) and (b). The recording of conversations is not authorized by the commission's grant of authority to intercept, as the use of the term "recording" is not included within the term "interception" by the enabling legislation. See, e.g., Code Ann. 26-3006, 26-3009. [Ga. Code Ann. Ch. 26-30, based on Ga. Laws 1968, p. 1249.]

OPINION 76-104

To: Acting Commissioner of Personnel Administration

September 23, 1976

Re: The State Personnel Board may legally enter into a contract with a corporation to provide administrative services for the selfinsured State Employees Health Insurance Plan only if the corporation is one of the entities enumerated in Ga. Laws 1976, p. 1384, regardless of whether the corporate officer who physically signs the contract on behalf of the corporation is an independent adjuster.
This is in response to your recent request for my opinion as to whether the State Personnel Board may legally contract with a corporation to provide the administrative services for the self-insured State Employees Health Insurance Plan if the corporate officer who signs on behalf of the corporation is an independent adjuster.
The powers of public officers are defined by law. Hunter v. City of Atlanta, 212 Ga. 179 (1956); Op. Att'y Gen. 75-137. 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); Op. Att'y Gen. 75-137.

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Under recent legislation, the State Personnel Board was given authority to enter into a contract with "one or more insurers authorized to transact accident and sickness insurance in this State or with one or more hospital service nonprofit corporations, nonprofit medical service corporations, health care corporations or independent adjusters authorized or licensed to transact business in this State, to provide administrative services in connection with a self-insured health insurance plan for State employees." Ga. Laws 1976, p. 1384; Ga. Code Ann. 89-1206. Consequently, the board may contract with a corporation to provide these services only if the corporation is one of the entities enumerated in Ga. Laws 1976, p. 1384, regardless of whether the corporate officer, employee or other agent who physically signs the contract on behalf of the corporation is also one of the enumerated entities (e.g., an independent adjuster).
Therefore, it is my official opinion that the State Personnel Board may legally enter into a contract with a corporation to provide administrative services for the self-insured State Employees Health Insurance Plan only if the corporation is one of the entities enumerated in Ga. Laws 1976, p. 1384, regardless of whether the corporate officer who physically signs the contract on behalf of the corporation is an independent adjuster.

OPINION 76-105

To: Commissioner, Department of Revenue September 24, 1976
Re: An international banking corporation whose sole contact with Georgia is its operation of an agency office licensed under Ga. Code Ann. Ch. 41A-33 is not a bank for purposes of the Georgia revenue statutes.
This is in reply to your request for my opinion concerning the proper tax classification of an international banking corporation which operates an agency office in Georgia. Specifically, you have asked whether such corporation should be taxed as a bank.
I understand that a United Kingdom banking corporation plans to open an agency office in Atlanta in the immediate future, but neither has nor contemplates having any other contacts with the State of Georgia. The office will operate essentially as a lending institution. As part of its lending requirements, it may require that borrowers maintain a credit balance of unadvanced funds. Other than such balances, the office will accept no demand or time deposits. The office will not have capital stock, paid-in capital, or retained earnings accounts, but will show an amount due the corporation's existing New York City branch.

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The corporation will be licensed to operate the office by the Georgia Department of Banking and Finance, pursuant to Ga. Code Ann. Ch. 41A-33 (Ga. Laws 1974, pp. 705, 918 et seq.). Its powers will be limited by Ga. Code Ann. 41A-3307 (e), which provides as follows:
"An international banking corporation licensed under the terms of this Chapter to carry on business in this State shall be authorized to conduct a general banking business in like manner as banks existing under the laws of this State through its international bank agency, except that no such international banking corporation shall, through such agency, make loans, exercise fiduciary powers or receive deposits but may maintain for the account of others credit balances incidental to, or arising out of, the exercise of its lawful powers."
The fact that a corporation accepts deposits and otherwise carries on a general banking business in New York City and elsewhere outside Georgia does not mean that it must be classified as a bank for purposes of our revenue statutes. Georgia Code Ann. 41A-3302 provides that it is the agency office's activities, and not the corporation's other activities, which are subject to our banking statute. In my opinion our determination of whether the corporation is a bank for tax purposes should similarly be based upon the operation and legal powers of the proposed agency office. Were it not for the local office, the corporation would not be subject at all to taxation in Georgia.
Bearing in mind the proposed operation of the office, the statutory restriction on its powers and the effect these have on how the corporation is to be taxed, I now consider the various revenue sections which prescribe special tax treatment for banks and banking associations: Ga. Code Ann. 92-158, 92-2406, 92-2406.2, 92-3105.
Georgia Code Ann. 92-158 excepts from certain intangible personal property taxes:
" ... [B]anks chartered under the laws of this State and building and loan associations organized under the laws of this State, which accept funds for deposit and submit to examination by the Commissioner of Banking and Finance of this State, and banks and savings and loan associations chartered under the laws of the United States." Ga. Laws 1976, pp. 405, 407.
The corporation is clearly not one of the organizations enumerated in 92-158, and therefore is not a "bank" for purposes of this exception from intangible personal property taxation.
Georgia Code Ann. 92-2406 provides that:
"No tax shall be assessed upon the capital of banks or banking associations organized under the authority of this State or of the

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United States located within this State, but the shares of the stockholders ... shall be taxed at their full market value ... Provided, further, that banks and trust companies doing a general banking business shall not be required to pay any State income tax, State franchise tax or city or county business license taxes." Ga. Laws 1975, pp. 147, 148; 1976, pp. 405, 408.
The corporation is not one of the organizations enumerated in the first sentence quoted above, nor will it qualify for the exception provided by the second sentence quoted above, since its agency office will not (and could not under Ga. Code Ann. 41A-3307 (e)) accept deposits and do a general banking business.
Because the corporation will not be organized under the laws of Georgia or of the United States, it will also not qualify for the tax credit established by Ga. Code Ann. 92-2406.2 (Ga. Laws 1975, pp. 147, 152). The inability of the office to carry on a general banking business means that the corporation will not be exempt from income taxation under Ga. Code Ann. 92-3105 (a) (4) (amended by Ga. Laws 1976, p. 613).
Accordingly, it is my official opinion that an international banking corporation whose sole contact with Georgia is its operation of an agency office licensed under Ga. Code Ann. Ch. 41A-33 is not a bank for purposes of the Georgia revenue statutes.

OPINION 76-106

To: Commissioner, Department of Banking and Finance

September 30, 1976

Re: Georgia law does not prohibit a bank from establishing multiple bank offices or bank facilities, using a single mobile bank unit on a regular part-time basis.

This will respond to your request for my opinion whether Georgia law prohibits a bank from establishing multiple bank offices or bank facilities, using a single mobile bank unit on a regular part-time basis. I understand that a bank has inquired whether you will approve an arrangement whereby it will establish two bank facility sites, using a mobile bank unit at one site from 9:00 until 12:30 each day, and at the other site from 2 :00 until 5 :30.
Naturally, these proposed bank facilities, like all new bank offices and bank facilities, can only be established if you issue a permit approving them, after determining that they meet the criteria set forth in Ga. 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).

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I have reviewed the provisions of Ga. Code Ann. Titles 13 and 41A (Ga. Laws 1974, p. 705 et seq.) and it is my official opinion that Georgia law does not prohibit a bank from establishing multiple bank offices or bank facilities, using a single mobile bank unit on a regular parttime basis.

OPINION 76-107

To: Commissioner, Department of Public Safety October 7, 1976

Re: Abstract of driver's operating record.

This is in response to your letter of August 26, 1976, wherein you requested my official opinion as to the legality of adding certain language to an abstract of a driver's operating record furnished law enforcement agencies. Specifically, you wish to add to the abstract furnished law enforcement agencies a disclaimer as to the current accuracy and completeness of the abstract.
Ga. Code Ann. 68B-215 (d) (Ga. Laws 1975, pp. 1008, 1021) provides in part that:
"[T]he department may furnish without charge a copy of any driver's abstract to a judge, prosecuting official or a law enforcement agency or the driver's licensing agency of another state. It shall be unlawful for any person who receives an abstract hereunder to disclose or make any use thereof except in performance of his judicial or quasi-judicial duties."
For purposes of dissemination, "records of traffic offenses maintained ... for the purpose of regulating the issuance, suspension, revocation or renewal of drivers ... license" are apparently exempt from federal rules and regulations relating to state and local criminal history record information systems. 28 C.F.R. 20.20 (b) (5).
Therefore, there is no apparent prohibition to adding language sufficient to place the receiving party on notice that the abstract is not certified. I would suggest that the following language be added to each abstract furnished pursuant to Ga. Code Ann. 68B-215: "This is not a certified copy and should be used for informational purposes only. [Ga. Code Ann. 68B-215 (Ga. Laws 1975, pp. 1008, 1021).]"

OPINION 76-108

To: Secretary of State

October 7, 1976

Re: While the Campaign and Financial Disclosure Act does not specify the period of time for which a candidate must retain the records

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the Act requires him to keep, prudence would seem to dictate that such records should be kept for at least four years following the last contribution received or expenditure made in connection with his campaign.
This is in reply to your letter of August 27, in which you ask how long a candidate or his committee is obliged to keep the record of contributions and expenditures required of him by Section 5 of the Campaign and Financial Disclosure Act, i.e., Ga. Laws 1974, pp. 155, 159, as amended (Ga. Code Ann. 40-3805). As your inquiry correctly points out, the Campaign and Financial Disclosure Act (Ga. Code Ann. Ch. 40-38; Ga. Laws 1974, p. 155 et seq.) does not itself furnish any answer to this question, nor have I been able to resolve it through examination of other conceivably relevant statutory enactments. The "Georgia Records Act," Ga. Laws 1972, p. 1267 et seq., as amended (Ga. Code Ann. Ch. 40-8C), for example, is designed for the maintenance of records by state departments, boards, or like agencies but would not seem to have any particular relevance to records retained by a candidate for public office (or his campaign committee) under Section 5 of the Campaign and Financial Disclosure Act.
I note, however, that violations of the Act are made misdemeanors for the first offense and felonies for any subsequent notation by the same person. See Ga. Laws 1974, pp. 155, 162, as amended (Ga. Code Ann. 40-9912). For this reason simple prudence would seem to dictate that the candidate who has in good faith attempted to comply with all aspects of the Act (including Section 5) should keep his records as evidence for a period of four years at the very least from the date of the last contribution or expenditure made in connection with his campaign.

OPINION 76-109

To: Secretary of State

October 7, 1976

Re: Georgia has no statute which expressly prohibits state banks from making contributions to state or local political candidates; query, however, as to whether a court would construe such an expenditure to be ultra vires.
This is in reply to your letter of August 27, in which you pose two legal questions concerning political contributions by state banks to candidates for state or local office.1 You ask (1) whether such a bank
1 I do not overlook the third inquiry which asks where the disclosure forms may be obtained. This, of course, is an administrative and factual question rather than a legal question; and hence no "opinion" is attempted although I would assume the disclosure report forms could be obtained from those with whom the reports are to be filed.

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may lawfully make such contributions, and (2) whether, assuming contributions are made, there is "a dollar amount that must be disclosed with the State Ethics Commission." This opinion responds to each question in turn.
With respect to your initial question, while I am aware of the restrictions on political campaign contributions by federal banks under 18 U.S.C. 610, and similarly aware that this same provision prohibits any corporation from contributing to candidates for federal office, I am unaware of any corresponding provision of state law which expressly prohibits a state bank from making political campaign contributions to persons seeking state or local office. The only corporate entities which are prohibited from making political campaign contributions by the "Campaign and Financial Disclosure Act" 2 are public utility corporations regulated by the Public Service Commission (see Ga. Code Ann. 40-3808.2 (Ga. Laws 1975, pp. 1120, 1127)) and examination of the banking laws of our state, chiefly the "Financial Institutions Code of Georgia" 3 similarly fails to disclose any express prohibition of political campaign contributions by state banks.
Unfortunately, however, I am not in a position to say that this absence of any express prohibition absolutely resolves the issue. An open question remains as to whether such a political campaign contribution by a state bank might be ultra vires even in the absence of such an express statutory prohibition. Prior to 1974 there would not seem to have been much doubt on the matter. Ga. Laws 1968, pp. 1044, 1045, expressly provided that the powers granted a state bank:
" ... shall not be greater than the powers and activities permitted to national banking associations under the laws of the United States." Former Ga. Code Ann. 13-1802.
Viewing this provision together with the previously mentioned prohibitions on campaign contributions by federal banks under 18 U.S.C. 610, a 1970 ruling of the Attorney General concluded that state banking corporations could not make political campaign contributions. See Op. Att'y Gen. 70-144. However, Ga. Laws 1968, pp. 1044, 1045, was repealed by the "Financial Institutions Code of Georgia" in 1974 (see Ga. Laws 1974, pp. 705, 964-966), and the situation as to political campaign contributions today is not as clear.
It is true, on one hand, that the "powers" provisions of the new enactment (chiefly Ga. Code Ann. Ch. 41A-12) do not contain the language of the former law restricting the powers of state banks to those "powers and activities" permitted by federal law to national banks. It is consequently arguable that the former restriction regard-

1 Ga. Laws 1974, pp. 155 to 162, as amended (Ga. Code Ann. Ch. 40-38). a Ga. Laws 1974, pp. 705 to 968, as amended (Ga. Code Ann. Title 41A).

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ing campaign contributions no longer applies to state banks. On the other hand, it is also true that none of the enumerated powers given to state banks and trust companies by Ga. Code Ann. Ch. 41A-11 can be said to clearly authorize political campaign contributions to candidates for state or local office. The closest any of the enumerated powers comes to doing so would appear to be Ga. Code Ann. 41A-1201 (g) which gives state banks the power:
"to make, irrespective of corporate benefit, contributions and donations for the public welfare or for religious, charitable, scientific, educational, hospital, civic or similar purposes ...." (Emphasis added.)
The difficult question of whether or not a political campaign contribution can be said to be a contribution or donation for "civic purposes" does not appear to have been answered by our courts and would seem to me to be so close as to make any attempt at prediction of little or no value.
As to your second question, which is whether, assuming campaign contributions are made by state banks, there is a dollar amount that must be disclosed to the State Ethics Commission, the answer is in the negative. The persons with whom the disclosure reports are to be filed (Secretary of State, probate judges, municipal clerks) depend upon the office in question, and all necessary information as to this point is clearly set forth in Section 6 of the Campaign and Financial Disclosure Act, i.e., Ga. Laws 1976, pp. 1423, 1424 (Ga. Code Ann. 40-3806). Suffice it to say that such filings are not required to be made to the State Ethics Commission.

OPINION 76-110

To: Chairman, Georgia Crime Information Center Advisory Council

October 8, 1976

Re: Under Georgia Laws 1976, pp. 617, 620, the GCIC Council may provide criminal history information to state and public agencies for pre-employment checks, if the council is satisfied that the reason for the request will assist in the prevention or detection of crime or the apprehension of criminal offenders.

During the 1976 Session of the General Assembly GCIC was authorized to provide conviction data to employers under a limited number of circumstances. Ga. Laws 1976, pp. 1401, 1402. In a separate bill amending Ga. Laws 1973, p. 1301, the GCIC Council was also authorized to furnish. criminal history information, if it so authorized,

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to agencies or political subdivisions of this state, or to any federal agencies for the prevention or detection of crime or the apprehension of criminal offenders. Ga. Laws 1976, pp. 617, 618. Even prior to the 1976 change to Ga. Laws 1973, p. 1301, the GCIC Council could give criminal history information to state agencies and political subdivisions of this state, or to federal agencies. The 1976 amendment to Ga. Laws 1973, p. 1301, while not changing the authority for the council to give this information, provided that the council could give it "when authorized by the council." The 1973 Act and the 1976 amendment now give the council discretionary authority to release criminal history information to state agencies and political subdivisions. It should also be noted that criminal history information which can be released under the 1973 Act, as amended, gives the council authority to provide the state agencies and political subdivisions with more than just conviction data. The range of criminal history information which the council may authorize GCIC to disseminate under Ga. Laws 1973, p. 1301, as amended, is much broader than the authority provided in Ga. Laws 1976, pp. 1401, 1402. See Ga. Code Ann. 92A-3001, 92A-3003.
In your letter of inquiry you have stated that the GCIC Council has adopted a policy of reviewing public agency requests for criminal history information on a case by case basis, and that the council has required that the requesting agency demonstrate how the information it seeks for pre-employment checks is related to the prevention or detection of crime or the apprehension of criminal offenders. You have also asked whether the GCIC Council has properly interpreted Ga. Laws 1976, pp. 617, 620, by formulating a rule allowing such state agencies to have criminal history information on prospective employees of a state agency or political subdivision.
The answer to your inquiry lies in whether routine employment checks by the state agencies might assist in the prevention and detection of crime or the apprehension of criminal offenders. We are of the opinion that the GCIC Council may direct GCIC to furnish criminal history data to state agencies and political subdivisions or federal agencies for their use in pre-employment checks, but only if the council feels that the reason for the request will carry out the mandate of the statute, which provides that such information may be furnished for the prevention or detection of crime or the apprehension of criminal offenders. Accordingly, this statutory requirement must be met before any information is given to any state or public agency or subdivision. To a large extent this will depend upon the justification from the requesting agency and the interpretation which the council gives on each inquiry. As such, this calls for a case by case analysis by the council as to whether the request fulfills the statutory requirements.

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OPINION 76-111

To: Commissioner, Department of Human Resources

October 11, 1976

Re: Pursuant to Ga. Code Ann. 24A-2601 (b), a mentally retarded child may not properly be committed to the Department of Human Resources unless the department first advises the court that the department has appropriate facilities available to serve that particular child; a mentally ill child may not be similarly committed unless he is in need of hospitalization because he is likely to injure himself or others if not hospitalized or because, due to his mental illness, he is incapable of caring for his physical health and safety.
This is in response to your request for my official opinion regarding the responsibilities of the Department of Human Resources (hereinafter the "department") under portions of the Juvenile Court Code of Georgia (Ga. Laws 1971, p. 709 et seq., as amended; Ga. Code Ann. 24A-101 et seq.).
Specifically, you wish to know what criteria must be met before a child may be committed to the department pursuant to Ga. Code 24A-2601, which provides as follows:
"2.t,.A-2601 Disposition of mentally ill or mentally retarded child
"(a) If, at any time, the evidence indicates that a child may be suffering from mental retardation or mental illness, the court may commit the child to an appropriate institution, agency, or individual for study and report on the child's mental condition.
"(b) If it appears from the study and report that the child is committable under the laws of this State as a mentally retarded or mentally ill child, the court shall order the child detained and proceed within 10 days to commit the child to the Georgia Department of Human Resources, Mental Health Division.
" (c) If the child is found not to be committable, the court shall proceed to the disposition or transfer of the child as otherwise provided by this Code [Title 24A].
"(Acts 1971, pp. 709, 737; 1973, pp. 882, 888.)"
From an examination of the three subsections of Ga. Code Ann. 24A-2601, it is apparent that, whereas evidence of the mere existence of mental illness or retardation will suffice for an evaluation under subsection (a), something more is required for subsection (b), and that if the requirements of subsection (b) are not met, an alternative disposition must be made under subsection (c). Since statutes in pari materia are to be construed together (Ryan v. Commissioners of Chat-

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ham Co., 203 Ga. 730, 732 (1948)), it is clear that a determination under Ga. Code Ann. 24A-2601 (b) of whether a child is "committable under the laws of this state" entails a reference to those portions of Ga. Code Ann. Title 88 authorizing the involuntary commitment of persons found to be mentally ill or mentally retarded.
Various sections of Ga. Code Ann. Ch. 88-5 (Ga. Laws 1969, p. 505 et seq., as amended) indicate that commitment to the department for mental illness is a "hospitalization" and is authorized only when and for so long as treatment in a hospital is appropriate. See, e.g., Ga. Code Ann. 88-503.1, 88-506.7, 88-507.3. Hospitalization in a treatment facility 1 is authorized if a person is "mentally ill and is (a) likely to injure himself or others if not hospitalized or (b) incapable of caring for his physical health or safety." Ga. Code Ann. 88-506.1 and 88-507.1. Thus, a child would not be "committable under the laws of this state" unless it can be shown that he meets these criteria.
Similarly, a reference to Ga. Code Ann. Ch. 88-25 (Ga. Laws 1964 pp. 499, 631 et seq., as amended) establishes the criteria for commit-' ment of mentally retarded children. The department may receive any mentally retarded individual on court order pursuant to 88-2507, or on court order of any juvenile court or superior court of this state, but only if the department has advised the court that appropriate facilities are available for said individual. Ga. Code Ann. 88-2506. Georgia Code Ann. 88-2507, authorizing involuntary commitment, also contemplates both "need of being ordered to the care of the de-' partment" and advice from the department that "such individual can be accepted."
Moreover, it is clear that any commitment properly made under the criteria set forth above must be to the department, per se, and not to a particular hospital or institution, since the courts do not have supervisory power over state facilities. See In re Prisoners Awaiting Transfer, 236 Ga. 516 (1976); Jones v. State, 134 Ga. App. 611 (1975). Appellate courts have generally viewed language in an order attempting to designate a particular place of confinement as mere surplusage. See Op.Att'y Gen. U74-97; Mathis v. Scott, 199 Ga. 743 (1945). Upon receiving a valid commitment order, it would be the department's responsibility to determine the appropriate treatment setting for the child.
Furthermore, if a child, committed to the department under Ga. Code 24A-2601 (b), is found, upon reevaluation by the department, not to meet the criteria for committability specified above, his discharge would be authorized pursuant to Ga. Code Ann. 88-506.7 and 88-2509.
In conclusion, it is my official opinion that, pursuant to Ga. Code
1 A facility designated by the department to receive patients for psychiatric treatment. Ga. Code Ann. 88-501 (m).

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24A-2601 (b), a mentally retarded child may not properly be committed to the department unless the department first advises the court that the department has appropriate facilities available to serve that particular child, and that a mentally ill child may not be similarly committed unless he is in need of hospitalization because he is likely to injure himself or others if not hospitalized, or because, due to his mental illness, he is incapable of caring for his physical health and safety.

OPINION 76-112

To: Secretary of State Re: Georgia Day is not a legal holiday.

October 20, 1976

This is in response to your recent inquiry concerning the observance of Georgia Day, February 12, as a legal holiday.
Georgia Laws 1974, pp. 1045, 1099, as amended, expressly repeals Ga. Code Ch. 32-15, dealing with the observance of special days, such as Georgia Day. Further, I am not aware of any statute which sets aside Georgia Day as a legal holiday. See Ga. Laws 1943, p. 331, as amended (Ga. Code Ann. 14-1809).
Therefore, it is my official opinion that Georgia Day, February 12, is not a legal holiday.

OPINION 76-113

To: Joint Secretary, State Examining Boards

October 28, 1976

Re: Security guards employed by the Atlanta Housing Authority are not subject to the provisions of the Private Detective and Private Security Agencies Act.

This is in response to your recent request for my opinion as to whether the security guards employed by the Atlanta Housing Authority are subject to the provisions of the Private Detective and Security Agencies Act. Ga. Laws 1973, p. 40 et seq. (Ga. Code Ann. 84-6501 et seq.).
While engaged in the performance of their official duties, employees of the political subdivisions of this state are exempt from coverage under the Private Detective and Private Security Agencies Act. Ga. Code Ann. 84-6515 (a) (1). By a Resolution of the Special Housing yommittee of the Board of Aldermen of Atlanta dated May 18, 1938, and pursuant to Ga. Laws 1937, pp. 210, 214,-as amended (Ga. Code

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Ann. 99-1104), the Atlanta Housing Authority was created. The employees of the Atlanta Housing Authority are employees of a political subdivision of this state.
Therefore, it is my official opinion that, while performing their official duties, the security guards employed by the Atlanta Housing Authority are not subject to the provisions of the Private Detective and Private Security Agencies Act. Please realize that this opinion applies only to the employees of the Atlanta Housing Authority. If the Atlanta Housing Authority should contract with a private security agency to provide security services, this opinion would not apply to employees of the private agency.

OPINION 76-114

To: Commissioner, Georgia Bureau of Industry and Trade

October 28, 1976

Re: Monthly payroll deductions for parking spaces of individual employees in private facility would be a gratuity prohibited by Georgia Constitution.

By letter of October 22, 1976, you have requested an expedited, official opinion concerning the use of a payroll deduction. This is in reply.
Your agency has entered into a rental agreement for new offices with Omni International, Ltd. Special Stipulation 40 of the agreement provides as follows:
"Landlord further agrees that it will arrange for monthly parking for up to fifty (50) of Tenants' employees in The Decks or a location reasonably comparable to The Decks in the event The Decks at some time in the future ceases to provide monthly parking. The cost of said parking shall be borne totally by Tenants' employees and shall be at the prevailing monthly rate for parking in the facility used."
"The Decks" is a parking facility owned by yet a third party, Allright Parking of Georgia, Inc. Your letter indicates that Allright has orally required or requested that the Bureau of Industry and Trade "provide the administrative task of collecting and remitting monthly parking fees" to it. You are asking about the payroll deduction for purposes of this request.
Allright is not a party to the rental agreement and is not otherwise in privity with the Bureau of Industry and Trade. The bureau owes

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Allright nothing, and it would receive no consideration from Allright for agreeing to the payroll deduction.
Under the terms of the rental agreement, Omni International has an obligation to see to it that 50 employees are able to rent monthly parking in The Decks or a comparable lot. The bureau does not agree in the rental agreement to provide the administrative expense or services for collecting and remitting the individual, monthly parking fees. The rental agreement specifically provides that: "the cost ... shall be borne totally by Tenants' employees ... ," and even the employees are not charged extra for administrative costs, since they are to pay the prevailing, monthly rate.
The rental agreement between Omni and the Bureau of Industry and Trade specifically provides in Paragraph 35 that the instrument constitutes the entire agreement and that no amendment will be effective unless it is in writing and signed, sealed and delivered by the parties. The verbal request or requirement by Allright is a unilateral action by a nonparty to the agreement, for agreement to which there would be no return consideration flowing to the bureau.
In this situation I do not believe that a payroll deduction would be authorized. The State Constitution prohibits "any donation or gratuity in favor of any person, or corporation or association...." Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402). As I indicated in an earlier opinion:
"[D]educting dues, contributions, donations or other payments from the pay checks of public employees and then transmitting the sums withheld to various third parties would impose a significant bookkeeping and administrative burden upon the state department or agency concerned. . . . [T]he third party recipients of the sums withheld would receive a very valuable service as a concomitance of the state's assumption of this burden. When a third party recipient is not in a contractual relationship with the state, it would seem to follow that what it receives (i.e., the state's bookkeeping and administrative support and services) is a 'donation or gratuity' within the meaning of ... 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." Op. Att'y Gen. U74-62.
It may be helpful to clarify now a portion of the reasoning quoted from the unofficial, 1974 opinion. It indicates in that instance that "[w]hen a third party recipient is not in a contractual relationship with the state, it would seem to follow that what it receives ... is a '... gratuity' ...." This language should be understood in terms of its factual context, and one should be cautious in drawing inferences

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from it. For example, this language does not imply that if a contractual relationship were present, the gratuity problem necessarily would disappear. In this very instance, the same result would follow even if Omni International, rather than Allright, happened to own the parking facility. Cf. Op. Att'y Gen. 74-37 (state may not increase contractual compensation to other party). Indeed, it is quite possible that a gratuities problem would arise even if the questioned aspect of the transaction is included in the original contract. See Id.
In summary, it is my official opinion that the proposed, monthly payroll deduction for the parking fees of individual employees would constitute a prohibited gratuity to those providing the parking.

OPINION 76-115

To: Chairman, Agricultural Commodity Commission for Milk

November 2, 1976

Re: Fiscal resources of the Georgia Agricultural Commodity Commission for Milk may not be expended to fund student scholarships in the dairy science curricula at the University of Georgia or to participate in funding a private scholarship foundation for students matriculating in such curricula.

You have requested my opinion as to whether fiscal resources of the Georgia Agricultural Commodity Commission for Milk may be used to fund student scholarships in the dairy science curricula at the University of Georgia or to participate in funding a private foundation awarding such scholarships. For reasons I shall discuss subsequently, it is my opinion that such expenditures of funds may not be made by the Georgia Agricultural Commodity Commission for Milk.
The fiscal resources of the Georgia Agricultural Commodity Commission are, by statute, held to the same restrictions of disbursement and investment as all other state funds. Ga. Laws 1969, p. 763 (Ga. Code Ann. 5-2906 and 5-2916); Ops. Att'y Gen. 76-102. 1 Therefore, the commission is precluded from expending commission funds in such a manner as to constitute grants of a donation or gratuity in favor of any person, corporation or association. Art. VII, Sec. I, Par. II of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5402 (1)). Regrettably, the application of that constitutional man-
1 The lone disparity between the handling of commission funds and all other state funds is the constitutionally prescribed caveat allowing commission funds to escape the requirement that state funds be deposited in the state treasury and appropriated therefrom. Art. VII, Sec. II, Par. I-A of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5501.1); Ga. Laws 1969, pp. 763, 769 (Ga. Code Ann. 5-2906).

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date in the area of state-provided scholarship funds poses an insurmountable impediment to the expenditure you propose.
In the past, this office has consistently opined that the use of state monies to fund scholarship grants contravenes the constitutional prohibition against gratuities. Ops. Att'y Gen. 73-154, 72-111 and 1958-59, p. 395. This conclusion is underscored, and I feel confirmed, by the great number of constitutional amendments to the gratuity proscription authorizing named state agencies to fund or participate in the funding of scholarship grants. Ga. Canst., Art. VII, Sec. I, Par. II (6), (7), (8), (9), (10), (lOA), (14), (16) and (18) (Ga. Code Ann. 2-5402 (6), (7), (8), (9), (10), (lOA), (14), (16) and (18)). Absent such a constitutionally amending authorization for the generation of stateoriginated scholarship funds, there may be no state monies advanced as scholarship funds. Unfortunately, none of the existing constitutional amendments affords to the Georgia Agricultural Commodity Commission for Milk the authority to provide or participate in the provision of scholarship funds so as to avoid the general constitutional prohibition against gratuities. Accordingly, it must be my opinion that funds of the Georgia Agricultural Commodity Commission for Milk may not be utilized to fund or participate in the funding of a scholarship program or grant for students in the dairy science curricula at the University of Georgia.
The foregoing opinion appears to me to be buttressed by the absence of specific, express authority imbuing the commission with the power to expend money for such a purpose, notwithstanding the constitutional prohibition against gratuities. Generally, the Georgia Agricultural Commodity Commissions are authorized to expend necessary funds incidental to their primary purposes of (1) the promotion of sales and advertising of Georgia commodities, (2) the promotion of research studies in production, marketing, sale, use, and utilization of Georgia commodities, and (3) the provision of an educational program designed to acquaint producers, handlers and other interested persons with quality improvement of Georgia commodities. Ga. Laws 1969, pp. 763, 776, as amended (Ga. Code Ann. 5-2912). In the absence of any other express statutory or constitutional authority permitting the manner of expenditure of funds that you have described, the relationship of such an expenditure to the aforementioned purposes is, at best, tenuous. Inasmuch as state officers and agencies must have the basic authority to pay out public monies for any purpose (Freeney v. Geoghegan, 177 Ga. 142 (1) (1933)), I must advise that my research has disclosed no specific authority arguably enabling the commission to expend the money in the manner you propose. The commission, being a creature of statute, possesses only the authority granted by statute. See generally, Freeney v. Geoghegan, supra.

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OPINION 76-116

To: Secretary of State, Ex-Officio Corporation Commissioner

November 5, 1976

Re: Foreign state banks may not maintain, directly or indirectly, loan production offices within this state. Op. Att'y Gen. 74-12 reaffirmed.

This is in reply to your request for my opinion as to whether a foreign state bank may maintain a loan production office within this state and, if so, how such an office is to be registered to do business in Georgia.
As you have noted, a similar request was made in 1974 by the Commissioner of the Department of Banking and Finance, and was responded to in Op. Att'y Gen. 74-12. You ask whether my opinion remains the same, in light of the enactment of Ga. Laws 1975, p. 475, which, inter alia, added the following subsection to Ga. Code Ann. 13-203.2:
" (e) loan production offices shall not be considered to be a parent bank, branch bank, bank office or bank facility."
The question is whether, in enacting this provision, the General Assembly intended to remove loan production offices from the regula;.. tory jurisdiction which the Department of Banking and Finance exercises over financial institutions such as parent banks, branch banks, bank offices and other bank facilities.
It is significant that the General Assembly codified this provision as a subsection of Ga. Code Ann. 13-203.2. How a provision is codified can offer an insight into how it should be interpreted, since the scope of statutory definitions depends on their context. 2A Sutherland Statutory Construction 81, 47.07, states the rule in this area as follows:
"Regardless of whether [statutory definitions] affirmatively state that they only define terms 'as used herein,' it is a matter of common understanding that such provisions do not purport to describe what meanings shall attach to the defined terms for all purposes and in all contexts, but only establish what they mean where they appear in that same act ...."
Therefore, Ga. Code Ann. 13-203.2 (e) would normally define the meaning of "loan production offices" only in reference to the remainder of Ga. Code Ann. 13-203.2, as opposed to banking law generally. When thus placed in context, the clear purpose of the enactment was to perfect Georgia's then existing legislation relating to expansion or extension of existing parent banks, branch banks, bank offices and bank facilities. The General Assembly, when it enacted Ga. Laws 1966,

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pp. 590, 591 (Ga. Code 13-203.2 subsections (a) and (b)) and Ga. Laws 1973, pp. 526, 527 (Ga. Code 13-203.2 subsection (c)) intended to permit expansion or extension of such facilities. Thus, Ga. Code 13-203.2 (e) means simply that loan production offices, even though they remain "bank facilities" for all other purposes (Ga. Code 13-201.1 (d)), may not be expanded or extended.
Had the General Assembly intended to permit foreign state banks to establish loan production offices in Georgia, or, more generally, intended to remove loan production offices from the regulatory jurisdiction of the Department of Banking and Finance, it would either have redefined "bank facility" (Ga. Code 13-201.1 (d); amended by Ga. Laws 1970, pp. 954, 955; 1976, p. 168), or expressly excepted loan production offices from the list of institutions which are considered "banks" (Ga. Code 13-201.1 (f)) and accomplished its objective unambiguously.
It is therefore my official opinion that foreign state banks may not maintain, directly or indirectly, loan production offices within this state and I reaffirm this aspect of Op. Att'y Gen. 74-12.

OPINION 76-117

To: Chancellor, University System of Georgia

November 9, 1976

Re: A member of the General Assembly cannot hold employment as a faculty member of a member institution of the University System of Georgia.

This is in reply to your letter of October 19, in which you ask whether an individual who has recently been elected to a seat in the General Assembly may continue his employment as a tenured faculty member of a member institution of the University System of Georgia after taking his seat as a legislator. In your letter you point out that it is the intent of the individual concerned to take leave without pay from his University System employment while the General Assembly is in session.
The answer to your question is controlled by Ga. Code Ann. 26-2309 (Ga. Laws 1968, pp. 1249, 1309):
"26-2309 Enforcement of the separation of powers provision of the constitution
"It shall be unlawful for (a) members of the General Assembly to accept or hold office or employment in the executive branch of the State Government, or any agency thereof...."

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Since the University System of Georgia is unquestionably a "state agency" there would seem to be little doubt as to the fact, as previously pointed out in an "unofficial opinion," that a member of the General Assembly cannot lawfully hold employment as a faculty member of a member institution of that system. See Op. Att'y Gen. U73-85.
I do not think that the fact that the General Assembly member takes leave without pay from his Regents' employment during the legislative sessions would have any bearing on the matter. It is the potential for conflicting interests which arises from the holding of the two "positions" (rather than the precise nature of what one is doing under either at any given moment) towards which the statute is directed. Viewing the statute in light of the common law (as the courts presumably would do), the conflict which arises from holding both positions at the same time lies in the fact that in serving as a member of the General Assembly, the University System employee would be in a position to: (1) vote on appropriations and other matters directly affecting his private pecuniary interests, to wit, his salary, (2) exercise undue leverage upon his own personal promotions and pay raises from an agency which depends upon legislative appropriations, and (3) to some extent to be in a position of evaluating the performance of an agency of which he is a part, in derogation of the checks and balances system which the "separation of powers" feature of Ga. Code Ann. 26-2309 is intended to enhance. It is consequently my official opinion that the conflict of interest which exists where a single individual serves as a member of the General Assembly and an employee of a state agency (such as the University System of Georgia) at the same time is not abated by the fact that that individual takes leave without pay from his employment during the legislative session.

OPINION 76-118

To: State Superintendent of Schools

November 10, 1976

Re: The question of whether or not psychological services under Ga. Code Ann. 32-605a shall be made available for private school students is a matter of policy which addresses itself to the discretion of the state and local boards of education involved in the providing of such services; there is no statutory impediment to the providing of such services to children enrolled in private schools.

This is in reply to your letter of October 27, 1976, in which you ask whether the psychological services (including testing) which are currently being provided to both pre-school and school age children by local school systems or "cooperative educational service agencies"

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may be made available to private school children. You refer to certain state and federal legislation as having a possible bearing on the matter. Since the interpretation of relevant federal statutes would seem to be best left to appropriate federal officials or agencies, however, my response limits itself to a consideration of the state law involved, which is Section 5 of the "Adequate Program for Education in Georgia Act," Ga. Laws 1974, pp. 1045, 1047, as amended (Ga. Code Ann. 32-605a).
Pertinent portions of this somewhat lengthy section of APEG provide as follows:
"32-605a Special education
"(a) All children and youth who are eligible for the general education
program preschool education, or [or = "and"?] who have special educational needs and three and four year old children who are either physically, mentally or emotionally handicapped or perceptually or linguistically deficient shall also be eligible for special education services. Children, ages 0-5 years, whose handicap is so severe as to necessitate early education intervention may be eligible for special education services. Children and youth with special needs are those who have emotional, physical, communicative, or intellectual deviations, or a combination thereof, to the degree that there is interference with school achievements or adjustments, or prevention of full academic attainment and who require modifications or alterations in their educational programs. This definition includes children who are intellectually gifted, mentally retarded, physically handicapped, speech handicapped, behaviorally disordered, hospital or homebound, handicapped by a specific learning disability, multihandicapped, autistic, hearing impaired, visually impaired and other areas of special needs which may be identified. The State Board of Education shall adopt classification criteria for each area of special need to be served on a Statewide basis, both for students to be served in a self-contained setting and those who can be served effectively in the regular classroom by itinerant personnel.
"(b) Local units of administration shall, subject to any limitations hereinafter specified, provide a special education program for all students with special needs who are residents of their school systems, either by establishing and maintaining such educational facilities and employing such professional workers as are needed by these students or by entering into a contract with other school systems or Cooperative Educational Service Agencies for such services.
"(c) The State Board of Education shall have the authority to provide educational and training services for children who have

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special educational needs such as emotional, physical, communicative, or intellectual deviations, or any combination thereof, to the degree that there is interference with school achievements or adjustments, or prevention of full academic attainment, and who require modifications or alterations in their educational programs. This definition includes children who are mentally retarded, physically handicapped, speech handicapped, multiple handicapped, autistic, intellectually gifted, hearing impaired, visually impaired, and any other areas of special needs which may be identified. The State Board of Education may provide such educational and training services by:
"(1) contracting with or making grants to suitable private or public institutions, or with both public and private institutions, inside or outside the State of Georgia for the provision of such services;
* * *
"(d) The State Board of Education may promulgate any rules, regulations and standards and establish the terms and conditions governing the provision of State aid hereunder and perform any and all acts necessary or proper to carry out the provisions, intent and purpose of this section." (Emphasized and parenthetical material added.)
In looking at this statute from the viewpoint of which children are eligible, it is noteworthy the very first segment emphasized defines the class as being comprised of "all" children and youth who are "eligible" for the general preschool and school programs of this state. Since it seems obvious that a person can be "eligible" for a program whether or not he actually "participates" in the same, it would seem to follow that this initial underlined portion of the statutory provision covers all children and youth who by virtue of age and residence are "eligible" to participate in the general school and preschool programs of the state, whether or not they are (a) enrolled in a private school, or (b) not enrolled in any school at all.
Indeed from a reading of this initial paragraph alone, which employs the mandatory "shall" in connection with the eligibility of all school or preschool age children, a rather persuasive argument could be made that a private school or nonschool child, who due to his age and residency was "eligible" for the general school or preschool program of a local school system, would be absolutely entitled to such special services (including psychological services) as are offered under Ga. Code Ann. 32-605a. This is somewhat tempered, however, by the language of subsection (b) which speaks in terms of a local school system's obligation, either directly or through a cooperative educational service agency, to provide such services "for all students with special needs

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who are residents of their school systems." The term "students" could be interpreted as meaning students of that school system, hence limiting the local school board's obligation to its own students.
In light of this uncertainty the matter would appear to be one appropriate for the state and local boards of education to resolve by policy, since subsections (c) and (d), which deal with the implementation of such special educational programs as we are here concerned with, vest a great deal of discretionary authority over implementation in the State Board of Education. See Ga. Code Ann. 32-605a, supra.
It is therefore my opinion (1) that there is no statutory impediment to the providing of psychological services covered by Ga. Code Ann. 32-605a to private school or nonschool children, provided that they are "eligible" (i.e., by reason of age and residence) to participate in a school system's general school or pre-school program, but (2) that the degree to which such private school or nonschool children are to be permitted to receive psychological services under Ga. Code Ann. 32-605a is a matter of policy which addresses itself to the discretion of the state and local boards of education.

OPINION 76-119

To: Executive Secretary, Board of Regents

November 17, 1976

Re: No state department, board or agency can lawfully deduct labor union dues from a public employee's salary regardless of whether those dues are paid directly to the union or through a collection agent, like the departmental credit union. Furthermore, a credit union cannot legally function as a dues collection agent for a labor union.

This is in response to your request for my official opinion as to the legality of a proposed plan for deducting labor union dues from an employee's salary. Under the proposed plan the dues, once deducted, would be paid to the employee's credit union, which in turn would transmit the dues to the employee's labor union.
It is well settled that, in the absence of clear legislative authorization, a state department, board or agency cannot lawfully deduct dues, contributions, donations or other payments from a public employee's pay check for transmittal to a third party. Op. Att'y Gen. 76-114 (dated October 28, 1976); Op. Att'y Gen. 1975, pp. 457, 469; Op. Att'y Gen. U74-62. I know of no clear legislative authorization which would permit any state department to deduct labor union dues from a public employee's salaries. Op. Att'y Gen. 1975, pp. 457, 469.
Under Georgia Laws 1964, p. 255 (Ga. Code Ann. 89-924), state departments may, under certain conditions, deduct funds from their

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employees' salaries and transmit the deductions to the departmental credit union. 1 Op. Att'y Gen. 1964, p. 416. However, this statute only authorizes deductions "for the purpose of payment of deposits to a department or agency credit union or the payment of indebtedness to a department or agency credit union." G~. Code Ann. 89-924. It does not authorize the deduction of labor union dues from an employee's salary and its subsequent payment to the departmental credit union for transmittal to a labor union. Under the ageless maxim of expressio unius est exclusio alterius (the inclusion of one is the exclusion of all others), it follows that no state department, board or agency may lawfully deduct funds from its employees' salaries and pay the funds to the departmental credit union for purposes of transmittal to a labor union as dues. Of. Bailey v. Lumpkin, 1 Ga. 392, 403 (1846).
Furthermore, the collection of labor union dues is beyond the scope of a credit union's statutory authority. The powers granted to credit unions are set forth in Georgia Laws 1974, pp. 705, 894 et seq. (Ga. Code Ann. 41A-3101 et seq.). Nowhere in this statute are credit unions given the specific authority to collect dues on behalf of a labor union.
This does leave as unresolved the question of whether credit unions can perform this function under the statute's general power provision which reads as follows:
"[A credit union] may undertake other activities which are not inconsistent with the provisions of this Code or regulations adopted pursuant thereto." Ga. Code Ann. 41A-3101 (f).
The principles of statutory construction must be applied to determine if the statute grants credit unions authority to collect union dues under the general power provision of Ga. Code Ann. 41A-3101 (f). The cardinal rule of statutory construction is that the legislative intent in enacting the statute shall be determined in order to know the proper interpretation to be given to the statute. Barton v. Atkinson, 228 Ga. 733 (1972); Boyles v. Steine, 224 Ga. 392 (1968); Ga. Code 102-102 (9). In determining the legislative intent, the whole statute and its overriding purpose must be considered. See Williams v. Bear's Den, Inc., 214 Ga. 240, 242 (1958); City of Macon v. Georgia Power Co., 171 Ga. 40 (1930).
The long established purpose of a credit union is "to promote thrift among, and provide credit for, its members." See 13 Am. Jur. 2d,

1 The deduction may be made only if the departmental credit union is a corporation existing under the laws of the State of Georgia, if the head of the department has approved of the payroll deductions and if the employee has provided a written request
for the deductions with the exact designation of the amount to be deducted. Op. Att'y
Gen. 1964, p. 416. The employee's written request is revocable upon two weeks written
notice. Ga. Code Ann. 89-924.

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Building and Loan Associations, 4. From reading, as a whole, the Georgia law governing credit unions, it is noticed that the specific powers granted under this law are the powers necessary for or incidental to performing these traditional credit union functions. Ga. Code Ann. 41A-3101. Consequently, it is apparent that the legislature did not intend to grant credit unions any powers, even in Ga. Code Ann. 41A-3101 (f), that were not necessary for or incidental to performing the traditional credit union functions. Clearly, the collection of dues on behalf of a labor union is not necessary for or incidental to performing the traditional credit union functions.
Therefore, it is my official opinion that no state department, board or agency can lawfully deduct labor union dues from a public employee's salary regardless of whether those dues are paid directly to the union or through a collection agent, like the departmental credit union. Furthermore, it is also my opinion that a credit union cannot legally function as a dues collection agent for a labor union.

OPINION 76-120

To: Secretary of State

November 19, 1976

Re: A special election called by the Secretary of State is the proper procedure to fill the office of district attorney for the full four-year term beginning January 1, 1977, in the event the person elected to such office in the November 1976 general election has withdrawn.

This is in response to your recent inquiry concerning the proper procedure for filling the office of district attorney in the event the person elected in the general election to fill the full four-year term beginning January 1, 1977 withdraws prior to taking office.
With respect to the term of office and vacancies in the office of district attorney, the Constitution provides, in pertinent part, as follows:
"There shall be a district attorney for each judicial circuit, whose official term (except to fill a vacancy) shall be four years.... Every vacancy occasioned by death, resignation, or other cause shall be filled by appointment of the Governor, until the first day of January after the general election held next after the expiration of 30 days from the time such vacancy occurs, at which election a successor for the unexpired term shall be elected." Ga. Const., Art. VI, Sec. XI, Par. I (Ga. Code Ann. 2-4601).
In Pittman v. Ingram, 184 Ga. 255, 258 (1937), the Supreme Court held that a provision, now in Ga. Const., Art. VI, Sec. III, Par. III

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(Ga. Code Ann. 2-3803), which is virtually identical to the last sentence of that quoted above does not apply to a vacancy in the office of superior court judge "in which there was a failure to qualify after the officer had been elected." Further, the Supreme Court, in Hooper v. Almand, 196 Ga. 52 (1943), in an exhaustive analysis of the aforementioned language now appearing in Ga. Code Ann. 2-3803, held that the 30-day clause "relates solely to unexpired terms, and becomes operative only when the remainder of the unexpired term is of sufficient length to allow the holding of an election for the unexpired term. Otherwise the appointee holds for the entire balance of the unexpired term." The court also held the 30-day clause to be inapplicable when the vacancy occurs other than 30 or more days before a general election held during the unexpired term. Id. at 61. See also, Ga. Code (1933) 89-502.
Thus, to answer your inquiry, it is necessary to go beyond the language of 2-4601. Specifically, Ga. Code Ann. 34-1514 provides, in pertinent part, as follows:
" ... [W]henever any person elected to public office shall ... withdraw prior to taking office, then the authority, with whom the candidates for such ... office filed their notice of candidacy shall thereupon call a special ... election to fill such position." Ga. Laws 1970, pp. 347, 382.
Candidates for the office of district attorney file their notices of candidacy with the Secretary of State. Ga. Code Ann. 34-1002 (b) (Ga. Laws 1970, pp. 347, 354; 1971, p. 602).
Based on the foregoing, it is my official opinion that a special election called by the Secretary of State is the proper procedure to fill the office of district attorney for the full four-year term beginning January 1, 1977, in the event the person elected to such office in the November 1976 general election has withdrawn.

OPINION 76-121

To: Director, Environmental Protection Division

November 22, 1976

Re: (1) Requiring Environmental Protection Division personnel to sign waivers of liability for injuries to person or property sustained while on premises for the purpose of carrying out their duties of inspection constitutes an unreasonable restriction on the state's police power. (2) Any such waiver is not binding on EPD personnel because of a lack of valid consideration.

Industries are beginning to require Environmental Protection Division personnel to sign waivers of liability for injuries to person or

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property sustained while on the premises for the purpose of carrying out their duties of inspection. A typical waiver includes waiver of liability due to the company's negligence "or otherwise however."
I have been asked to opine on the legalities of such a requirement. I am of the opinion that such a requirement constitutes an unreasonable restriction on the state's police power and has no binding legal effect.
First, the State of Georgia has been granted the power by the Fourteenth Amendment of the Constitution of the United States (Ga. Code Ann. 1-815) and by the Constitution of Georgia of 1945, Art. I,
Sec. I, Par. II of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-102); Art. I, Sec. I, Par. III (Ga. Code Ann. 2-103); Art. I, Sec. V, Par. I (Ga. Code Ann. 2-501) to regulate,
inter alia, trades and occupations for the promotion of the general health, welfare, safety and morals. Cooper v. Rollins, 152 Ga. 588 (1922); Lamons v. Yarbrough, 206 Ga. 50 (1949); Vinson v. Home Builders Association of Atlanta, 233 Ga. 948 (1975). Pursuant to this power to regulate and within constitutional limitations, the legislature has broad discretion to pass regulations in the public interest. Mack v. Westbrook, 148 Ga. 690 (1919); Rowland v. Morris, 152 Ga. 842 (1922).
The constitutional restrictions that are placed on the legislature are that the regulatory measures they prescribe must be reasonable and must afford due process of law to those regulated by such measures. Cooper, supra; Lamons, supra; Akel v. The State, 64 Ga. App. 448 (1941). The legislature has passed several Acts regarding the natural resources of the State of Georgia, which include the right of the Department of Natural Resources or its agents to regulate industries by allowing them to enter private or public property to inspect or investigate certain conditions on the premises. See Georgia Water Quality Control Act, Ga. Laws 1964, p. 416 et seq., as amended, specifically Sections 5 (12) and 16 (Ga. Code Ann. 17-505 (12) and 17-516); the Groundwater Use Act, Ga. Laws 1972, p. 976 et seq., as amended, specifically Section 10 (Ga. Code Ann. 17-1110); the Georgia Surface Mining Act, Ga. Laws 1968, p. 9 et seq., as amended, specifically Section 5 (d) (Ga. Code Ann. 43-1405 (d)); the Solid Waste Management Act, Ga. Laws 1972, p. 1002 et seq., specifically Sections 4 (f) and 17 (Ga. Code Ann. 43-1604 (f) and 43-1616); the Air Quality Control Act, Ga. Laws 1967, p. 581 et seq., as amended, specifically Ga. Code Ann. 88-907; the Water Supply Quality Control Act, Ga. Laws 1964, pp. 499, 637 et seq., as amended, specifically Ga. Code Ann. 88-2603 (6), 88-2608. As long as these regulatory statutes pass constitutional muster, the trades, occupations or industries regulated by them may not place unreasonable restrictions and conditions on this exercise of the police power by the state. Requiring state em-

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ployees whose job it is to carry out these regulatory, statutory inspections to sign waivers of industries' liability for personal and property injuries is such an unreasonable restriction.
Second, there is ample authority for the proposition that a party may enter into a contract to relieve himself of liability for his negligence. Golden v. National Life & Accident Insurance Company, 189 Ga. 79 (1939); Seaboard Coast Line Railroad Company v. Freight Delivery Service, Inc., 133 Ga. App. 92 (1974). However, the contract itself must be a valid, enforceable contract. Essential to an enforceable contract is valid consideration. Ga. Code (1933) 20-107 and 20-301. Valid consideration is defined as follows: "A consideration is valid if any benefit accrues to him who makes the promise, or any injury to him who receives the promise." Ga. Code (1933) 20-302. In the case at hand, the state employee who makes the promise to waive the corporation's liability is receiving nothing. He was already under an obligation to carry out his duties of inspection. The industry which receives the promise is relinquishing nothing. Thus, there is no valid consideration supporting this waiver, and it is not binding.
Consequently, it is my opinion that requiring Environmental Protection Division personnel to sign waivers of liability for injuries to person or property sustained while on premises for the purpose of carrying out their duties of inspection constitutes an unreasonable restriction on the state's police power and that any such waiver is not binding on EPD personnel because of a lack of valid consideration.

OPINION 76-122

To: Director, Environmental Protection Division

November 23, 1976

Re: Consideration of air quality variance requests by the Director of the Environmental Protection Division pursuant to Ga. Code Ann. 88-912.

This responds to your request for my opinion construing that portion of Ga. Code Ann. Ch. 88-9 (based on Ga. Laws 1967, p. 581 et seq.), relating to air quality control, which authorizes the Director of the Environmental Protection Division to grant variances from air quality control rules, regulations or general orders under certain specified conditions. Ga. Laws 1967, pp. 581, 587; Ga. Code 88-912, both as may be amended. Your inquiry is specifically concerned with that part of the variance provision which requires you to determine, prior to considering granting such variance, that strict compliance with the rule or general order involved is inappropriate as the result of the

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existence of one of four conditions. That is, Ga. Code 88-912 provides in pertinent part that the director may grant variances from the particular requirements of any rule, regulation or order only if he finds that:
" ... strict compliance with such rule, regulation or general order is inappropriate (1) because of conditions beyond the control of the person or classes of persons granted such variances, or (2) because of special circumstances which would render strict compliance unreasonable, unduly burdensome, or impractical due to special physical conditions or causes, or (3) because strict compliance would result in substantial curtailment or closing down of one or more businesses, plants or operations, or (4) because no alternative facility or method of handling is yet available." (Numbering in parentheses added.)
According to your letter, the question of how this provision should be construed has recently arisen in the context of certain industries within the State of Georgia. For this reason, you wish to have my opinion regarding this issue.
At the outset, let me say that I am cognizant of the fact that the hearing officer of the Board of Natural Resources has before him a case which involves the construction of a portion of the provision set forth above. However, to guide you in your consideration of variance requests which may arise prior to the time this case is finally resolved through the administrative and judicial process, I will give you my opinion regarding this question.
In construing any statute, as you have asked me to do here, the primary goal is the ascertainment of the intent of the General Assembly in enacting the particular provision involved. Ga. Code Ann. 102-102 (9); J.A.T. v. State of Georgia, 133 Ga. App. 922 (1975); Thacker v. Morris, 196 Ga. 167 (1943). It is with this rule in mind that the above-cited portion of Ga. Code 88-912 should be examined.
In my opinion, the key location in this entire provision is the word "inappropriate." That is, before you may exercise your discretion in granting or denying a variance, you must initially determine that compliance with the particular requirement is inappropriate because at least one of four conditions is present. Thus, even though a company may be able to demonstrate to your satisfaction that one of the four conditions is indeed existent, a determination by you that their complying with the requirement is appropriate would foreclose the granting of a variance. Assuming one of the conditions is met, whether compliance is appropriate or inappropriate obviously becomes a judgment decision on your part.
As far as the four conditions in the statute are concerned, one of which must be met in any variance request, the language therein is

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relatively straightforward. One requesting a variance must demonstrate that:
(1) there are conditions beyond his control, or
(2) there are special circumstances rendering strict compliance unreasonable, unduly burdensome, or impractical due to special physical conditions or causes, or
(3) strict compliance would result in substantial curtailment or closing down of one or more businesses, or
(4) there is no alternative facility or method of handling yet available.
You advise that companies within this state have argued that they have qualified to be considered for a variance under either condition (1) or (2) above when they have shown that it will cost a substantial amount of money to comply with a particular regulation, or when they have shown that ambient air quality standards will still be met in the general location of the company absent compliance with a regulation. You further inform that you, on the other hand, have concluded that such companies are not eligible for such variance consideration. Your rationale is that even assuming that such companies fall within the above conditions, strict compliance with a regulation could not be considered inappropriate on such grounds.
As I have pointed out, the appropriateness or inappropriateness of strict compliance with a particular regulation is the key consideration in the process by which you implement your authority under Ga. Code Ann. 88-912. For those companies who can only show that such compliance will be costly or that ambient air quality standards will still be attained in the area of the company without such compliance, it is my opinion that your conclusion that any such company's compliance is nevertheless appropriate would be a reasonable and legally defensive position to take in the great majority of factual cases. After all, the General Assembly, in enacting Ga. Code Ann. Ch. 88-9, declared the policy of the State of Georgia to be to preserve, protect and improve the air quality of this state. See Ga. Code Ann. 88-901. Your position is clearly in line with this declaration of state policy.

OPINION 76-123

To: Governor, State of Georgia

November 29, 1976

Re: Written instructions to be furnished certain physicians defining legal insanity after the Governor, in his discretion, has determined , that satisfactory evidence has been offered showing reasonable grounds

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to believe that a person convicted of a capital felony offense has become insane subsequent to his conviction.

This is in response to your letter dated November 12, 1976, wherein you requested certain written instructions defining legal insanity. The instructions would be furnished to certain physicians after you, in your discretion, have determined that satisfactory evidence has been offered "showing reasonable grounds to believe that a person convicted of a capital offense has become insane subsequent to his conviction." Ga. Code Ann. 27-2602 (Ga. Laws 1903, p. 77; 1960, pp. 988, 989).
The authority arising from Ga. Code Ann. 27-2602 is simply "a matter of grace arising from a sense of propriety." McLendon v. Balkcom, 207 Ga. 100 (1950). Furthermore, "Every person is presumed to be of sound mind and discretion but the presumption may be rebutted." Ga. Code Ann. 26-606 (Ga. Laws 1968, pp. 1249, 1270); Gibson v. State, 236 Ga. 175 (1976); Coker v. State, 234 Ga. 555 (1975); Grace v. State, 231 Ga. 113 (1973); Grace v. Hopper, 234 Ga. 669 (1975).
Ga. Code Ann. 27-2602 provides in part as follows:
"Upon satisfactory evidence being offered to the Governor, showing reasonable grounds to believe that a person convicted of a capital offense has become insane subsequent to his conviction, the Governor may, in his discretion, have said person examined by such expert physicians as the Governor may choose .... It shall be the responsibility of the Governor to cause said physicians to receive written instructions which plainly set forth the legal definitions of insanity as recognized by the laws of this State ...." Ga. Code Ann. 27-2602 (emphasis added).
As the General Assembly directed, the focus of the inquiry is whether the person convicted of a capital felony offense "has become insane subsequent to his conviction." Ga. Code Ann. 27-2602.
In Georgia, a plea of not guilty by reason of insanity raises only the general issue of defendant's guilt including his insanity at the time of the act charged as a crime. Chenault v. State, 234 Ga. 216, 218 (1975); Ga. Code Ann. 26-702 (Ga. Laws 1968, pp. 1249, 1270). The ability to distinguish between right and wrong at the time of the act charged is the test to be applied on the trial where the defense is insanity. Ga. Code Ann. 26-702; Rozier v. State, 185 Ga. 317 (1938); Chenault, supra; Gibson, supra; M'Naghten's Case, (1843) 10 Clark and F. 200, 8 English Reprint 718.
An exception to the M'Naghten-right and wrong-test is that commonly referred to as the delusional compulsion test. This defense is available on the trial where it is shown: (1) that the defendant was laboring under a delusion; (2) that the act committed is connected to the delusion; and (3) "that the delusion was as to a fact which, if true,

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would justify the act." Brown v. State, 228 Ga. 215, 217-18 (1971) (rev'd on other grounds); Ga. Code Ann. 26-703 (Ga. Laws 1968, pp. 1249, 1270); Brannen v. State, 235 Ga. 505 (1975).
As heretofore noted, both the right and wrong test and the delusional compulsion test are applicable only to test the sanity of the defendant at the time of the act charged as a crime. However, in Georgia, a defendant may file a special plea of insanity wherein the question of his present sanity to stand trial is determined by a special jury. Ga. Code (1933) 27-1502. Brown v. State, 215 Ga. 784 (1960) (rev'd on other grounds); Coker v. State, supra; Gibbs v. State, 235 Ga. 480, 484-85 (1975) (rev'd on other grounds). Thus, "the issue upon the special plea of insanity is whether the defendant was sane or insane at the time of the trial." Cochran v. State, 212 Ga. 245, 246-57 (1956).
In view of the fact that Ga. Code Ann. 27-2602 specifically requires that the inquiry, if any, be directed to the alleged insanity occurring subsequent to the conviction, it is my opinion that the definitions of insanity as stated in Ga. Code Ann. 26-702 (M'Naghten test) and Ga. Code Ann. 26-703 (delusional compulsion test) are inapplicable and should not be given in written instructions to physicians you may appoint pursuant to Ga. Code Ann. 27-2602. Since the basic issue is the individual's sanity at a time subsequent to conviction, or in effect, his present sanity, it is my opinion that the appropriate test should be that as employed upon a special plea of insanity.
Therefore, it is my official opinion that the written instructions furnished to certain physicians appointed pursuant to Ga. Code Ann. 27-2602 should inform the physicians that the issue is the present sanity of the individual and should be determined on the basis of whether the individual is capable "of presently understanding the nature and object of the proceedings going on against him and rightly comprehends his own condition in reference to such proceedings, and is capable of rendering his attorneys such assistance as a proper defense to the [proceedings] preferred against him demands." Brown, supra.

OPINION 76-124

To: Acting Commissioner, Personnel Administration

December 2, 1976

Re: Georgia Laws 1957, p. 219, as amended (Ga. Code Ann. 84-3701 et seq.), prohibits the employment of any person as a sanitarian who has not met the educational requirements set forth in Ga. Code Ann. 84-3706 unless that person was employed as a sanitarian or sanitarian trainee prior to July 1, 1975.

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This is in response to your recent request for my opinion as to whether or not Ga. Laws 1957, p. 219, as amended (Ga. Code Ann. 84-3701 et seq.) prohibits the employment of persons who have not met the educational requirements of Ga. Code Ann. 84-3706 in the present merit system classes of Agriculture Sanitarian I, II and III.
Georgia law prohibits the employing of any person as a sanitarian or as a sanitarian trainee who has not met the educational requirements for registration set forth in Ga. Code Ann. 84-3706 unless that person was employed as a sanitarian or a sanitarian trainee prior to July 1, 1975. Compare Ga. Code Ann. 84-9963.1 with Ga. Code Ann. 84-3706 (amended by Ga. Laws 1975, p. 801).
The statute defines a sanitarian to be "a person trained in the field of sanitary science and technology who is qualified to carry out administrative, regulatory, educational and training duties in the field of sanitation." Ga. Code Ann. 84-3701 (a). If the merit system classes of Agriculture Sanitarian I, II and III come within this definition, then it would be illegal to employ persons in those classes who did not meet the education requirements of Ga. Code Ann. 84-3706 unless those persons were employed as sanitarians or sanitarian trainees prior to July 1, 1975.
Therefore, it is my official opinion that no person may be employed as a sanitarian or sanitarian trainee unless he has met the educational requirements of Ga. Code Ann. 84-3706 or was employed as a sanitarian or a sanitarian trainee prior to July 1, 1975.

OPINION 76-125
To: Joint Secretary, State Examining Boards December 6, 1976
Re: A labor union may be licensed by the Georgia Board of Private Detective and Security Agencies to conduct a detective business, to conduct a private security business, or to perform security work on its own premises, provided that the union meets the statutory requirements for licensure.
This is in response to your recent request asking "whether or not labor unions may apply for licensure with the [Georgia Board of Private Detective and Security Agencies]."
As you know there are three different types of licenses issued by the above mentioned board. The board issues licenses to conduct a detective business (Ga. Laws 1973, p. 40 (Ga. Code Ann. 84-6505)), to conduct a private security business (Ga. Code Ann. 84-6505), and to perform security work on license holder's own premises (Ga. Code Ann. 84-6510). Each of these provisions sets forth the general require-

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ments necessary for a corporation, association, partnership or individual to receive such a license. There is nothing in those general qualifications which, to my knowledge, would specifically exclude labor unions from licensure.
Therefore, it is my official opinion that the Georgia Board of Private Detective and Security Agencies may issue a license to a labor union to conduct a detective business, to conduct a private security business, or to perform security work on its own premises, provided that the particular union meets the requirements for the particular license sought. Please realize that this opinion only addresses itself to the narrow question of whether under state law the board may legally issue a license to a labor union and does not consider other matters like whether the particular labor union's charter would allow it to conduct a private detective business or a security business or whether any federal agency may have regulations prohibiting a labor union from performing these functions. These latter matters would be outside the board's jurisdiction.

OPINION 76-126
To: Joint-Secretary, State Examining Boards December 10, 1976
Re: All necessary parts of a licensure application submitted to the State Board of Registration of Used Car Dealers are public records to be kept by the Joint-Secretary of the State Examining Boards and are, therefore, subject to public scrutiny.
This is written in response to your letter requesting my opinion on three specific questions:
(1) At what point do applications for licensure and related material become state records open to inspection by any citizen of Georgia?
(2) Can the financial statements which are submitted with used car dealer applications be handled as confidential records not open to inspection?
(3) Would it be possible for the board to return these financial statements to the applicant after review by the board without making them a part of state records?
Your questions evidently are premised upon the knowledge that public records are open to inspection by citizens of Georgia under Ga. Code (1933) 89-601, which provides:
"Inspection of public books; time.-All books kept by any public

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officer under the laws of this State shall be subject to the inspection of all the citizens of this State, within office hours, every day except Sunday and holidays."
and under Ga. Laws 1959, p. 88 (Ga. Code Ann. 40-2701):
"Right of public to inspect records.-All State, county and munici-
pal records, except those, which by order of a court of this State or by law, are prohibited from being open to inspection by the general public, shall be open for a personal inspection of any citizen of Georgia at a reasonable time and place, and those in charge of such records shall not refuse this privilege to any citizen."
Thus, a determination must be made as to whether the used car dealer applications are public records. If this question is answered in the affirmative, every aspect of the application is subject to public scrutiny, but with a negative answer, no part of the application need be revealed.
A public record is defined in 76 C. J. S. Records, 1, as:
"[O]ne required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law ... or a written memorial
m made by a public officer authorized to perform that function, or
a writing filed a public office.
* * *
"All records which the law requires public officers to keep, as such officers, are public records...."
The mere fact that a document is deposited or filed in a public office, or with a public officer,1 or is in the custody of a public officer, does not make it a public record. 2 The crucial aspect from the definition which makes applications and related materials subject to public scrutiny is the necessity for the board to keep these documents in the discharge of their proper duty.
The State Board of Registration of Used Car Dealers has the responsibility of accepting applications under Ga. Laws 1958, pp. 55, 58, as amended (Ga. Code Ann. 84-3907 (a)):
"The board shall have the following powers and duties:
"(a) To receive applications for registration of used car dealers, and to license such dealers in the manner provided by law...."
Resting with this responsibility is the knowledge that the public has

1 Miller v. Murphy, 248 P. 934 (1926). Barrickman v. Lyman, 160 S.W. 267 (1913).

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vested in the board the discretion to issue licenses based upon the information received from the applicant. However, this discretion is not unbridled, for an allegation may be made and the board brought to task for the issuance of a license to an unqualified individual. The board could be required to defend its actions, and production of the document upon which the board formed the basis of its decision might be imperative.
To further amplify, Ga. Laws 1958, pp. 55, 59, as amended (Ga. Code Ann. 84-3911 (a)), delegates to the board the power to suspend or revoke a license for any material misstatement in an application for a license. With such an allegation, and with the return of financial records submitted in lieu of a bond requirement, a substantial part of the application is precluded from future scrutiny resulting in the possibility of the foreclosure of such a charge. For any action brought by the board against a licentiate, it becomes necessary to maintain that original document along with information required to complete the application. Maintenance of these records rests with the JointSecretary under Ga. Laws 1967, pp. 294, 295 (Ga. Code Ann. 84-101 (18)):
"It shall be the duty of the joint-secretary provided for herein to bring together and keep all records relating to the said several examining boards...."
The recent Georgia Supreme Court case of Houston v. Rutledge, 237 Ga. 764 (1976), decided a similar issue wherein two Columbus, Georgia newspapers sought to inspect files maintained by a sheriff relating to deaths of inmates. The court defined the term "public records" and stated:
"We therefore conclude that documents, papers, and records prepared and maintained in the course of the operation of a public office are 'public records' within the meaning of this statute, and it is immaterial that such documents, papers, and records are not required to be prepared and maintained pursuant to a statute or ordinance." Id., at p. 765.
From the foregoing, it is my official opinion that applications and their necessary parts are public records and, therefore:
(1) Applications and related material become state records open to public scrutiny when they are received by the board;
(2) Financial statements submitted are a necessary part of this application and are, therefore, open for public inspection; and
(3) It would not be permissible for the board to return the financial statements to the applicant without subjecting them to public scrutiny.

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OPINION 76-127

To: Chancellor, University System of Georgia December 17, 1976

Re: Constitutional amendment changing conditions, limits and interest rates of medical scholarship loans awarded by State Medical Education Board does not alter vested contractual obligations under scholarship agreements entered into prior to the effective date of the amendment.

This is in response to your request through Dr. Henry G. Neal, executive Secretary of the Board of Regents of the University System of Georgia, for an official opinion concerning the recent amendments to the constitutional provisions providing for scholarship loans to medical students under the auspices of the State Medical Education Board. 1 As your letter correctly points out, the principal changes brought about by the amendment (which is set forth as Ga. Laws 1976, pp. 1878-1880) are: (1) an increase from $10,000 to $15,000 in the maximum amount of the scholarship loan which may be made available to a given medical student, (2) an increase from 10,000 to 15,000 in the population of a community in which the recipient of such a loan may practice (for five years) to fully repay the loan through the rendition of his physician's services, and (3) an increase from four percent to nine percent in the annual interest rate to be charged if the recipient chooses to repay monetarily rather than by rendering physician's services in a community of 15,000 or less in population.
Your specific questions are:
(1) May the awards to students already under contract with the board be increased to a limit of $15,000 within the discretion of the board?
(2) May students already under the contract with the board be allowed to fulfill their practice obligation in communities of 15,000 population or less?
(3) After proclamation of passage of the constitutional amendment by the Governor, should students already under contract with the board who repay in cash be charged interest:
a. On amounts they have already received under the contract at the rate of four percent per annum or at the rate of nine percent per annum compounded annually?
1 Because of the length, these constitutional provisions are set forth as Chapter 32-30 in the Annotated Code of Georgia rather than in the compilation of constitutional provisions contained in Title 2 of the Annotated Code. Ga. Const., Art. VII, Sec. I, Par. II (Ga. Code Ann. 2-5402); Ga. Laws 1951, p. 861 et seq., as amended.

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b. On amounts they receive under the contract after the proclamation of passage at the rate of four percent per annum or at the rate of nine percent per annum compounded annually?
As a starting point of this response to these questions it should be noted that under Article XIII, Section I, Paragraph IV of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-8104), an amendment to the Constitution, if it does not otherwise provide, becomes effective on the first day of January following its ratification. It is axiomatic that:
". . . constitutional provisions, like statutes, always operate prospectively and not retroactively, unless the words used or the objects to be accomplished clearly indicate that a retrospective operation was intended." 16 C. J. S. Constitutional Law, 40; Whittle v. Jones, 198 Ga. 538, 542-543 (1944).
Moreover, the position that the state constitutional amendment could somehow change or impair the vested rights and obligations of parties under existing medical scholarship agreements would seem to run headlong into the federal constitutional prohibition of a "Law impairing the Obligation of Contracts," see Article I, Section 10, Cl. 1 of the Constitution of the United States (Ga. Code Ann. 1-134), since it is settled that state constitutional amendments are "laws" within the meaning of this prohibition. See 16 C. J. S. Constitutional Law, 276, and cases cited. None of the foregoing, on the other hand, would preclude the parties from amending an existing medical scholarship agreement, if they so desire, to obtain the expanded benefits available under the new constitutional standards. Hence, my reply to each of the above stated questions is as follows:
(1) If both parties agree to do so, an existing medical scholarship agreement may be amended so as to increase the maximum grant available to $15,000.
(2) If both parties agree to do so, an existing medical scholarship agreement may be amended so as to permit the recipient's repayment obligation to be satisfied by practicing in a community having a population of 15,000 or less rather than 10,000 or less.
(3) Unless both parties to an existing medical scholarship agreement agree to amend the same so as to increase the interest obligation of the recipient from four percent per annum, the obligations and rights which became vested under the existing agreement with respect to interest would continue notwithstanding the constitutional amendment. This would apply to both those

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scholarship funds which have already been disbursed and to those funds which while not yet disbursed are contractually obligated by the existing medical scholarship agreements.

OPINION 76-128

To: Secretary of State

December 17, 1976

Re: Candidates for election to the Cherokee County Board of Education must comply with the requirements of the Georgia Election Code concerning the qualification of candidates except that they must qualify not less than 10 nor more than 30 days prior to the election rather than at least 75 days prior to the election as is required by Ga. Code Ann. 34-1002.

This is in response to your recent inquiry concerning the manner of electing members of the Cherokee County Board of Education. Specifically, your question, as I understand it, is whether the Georgia Election Code provisions concerning the qualification of candidates apply to the election of members of the Cherokee County Board of Education.
In the past, I have opined that the Georgia Election Code applies to the election of members to a county board of education. Op. Att'y Gen. 68-134 (Unofficial). There, as neither the local constitutional amendment nor the local statute providing for the election of board members conflicted in any way with the provisions of the Election Code, the Code provisions relating to qualification of candidates were determined to apply.
The situation with respect to the Cherokee County Board of Education is, however, somewhat different from that examined in Op. Att'y Gen. 68-134, supra. The local constitutional amendment providing for the election of members to the Cherokee County Board of Education states, in pertinent part, as follows:
". . . [T]he election of a successor to the [Board] member whose term expires that year shall be held on the Tuesday after the first Monday in November and he shall take office on January 1 following election.... Any person wishing to offer as a candidate for the Cherokee County Board of Education shall specify the District for which he wishes to run and shall qualify not less than ten (1 0) nor more than thirty (30) days before the election for members of the board." Ga. Const., Art. VIII, Sec. V, Par. I (Ga. Laws 1956, p. 133; 1966, pp. 1075, 1076) (see Local Amendments to Ga. Code Ann. 2-6801). [Bracketed matter and emphasis added.]

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In that the board is composed of seven members, serving staggered terms, it appears that the above quoted provision contemplates the election of one board member each year. See Ga. Laws 1956, pp. 133, 136. Such elections are general elections. Ga. Code Ann. 34-103 (h) (Ga. Laws 1964, Extra. Sess., pp. 26, 28).
My examination of the local amendment and the provisions of the Election Code dealing with qualification of candidates reveals that the only conflict between the two concerns the time by which a candidate must qualify. The board members are county officers, Op. Att'y Gen. 68-134; therefore, candidates for board membership would, but for the emphasized portions of the above quotation, be required by Ga. Code Ann. 34-1002 (Ga. Laws 1970, pp. 347, 354; 1971, p. 602) to file a notice of candidacy at least 75 days prior to the election. Thus, as to the date of qualifying, the local amendment and the Election Code are inconsistent. The local amendment is clearly self-executing. As such, it prevails over the inconsistent provisions of the conflicting statute. DeKalb County v. Allstate Beer, Inc., 229 Ga. 483, 486-7 (1972).
Thus, it is roy official opinion that candidates for election to the Cherokee County Board of Education must comply with the requirements of the Georgia Election Code concerning the qualification of candidates except that they must qualify not less than 10 nor more than 30 days prior to the election rather than at least 75.days prior to the election as is required by Ga. Code Ann. 34-1002.

OPINION 76-129
To: Director, Employees Retirement System December 21, 1976
Re: County tax commissioners, collectors, receivers, and employees of those officers, who avail themselves of the provisions of Ga. Laws 1976, pp. 456-7, must purchase all of the creditable service to which they are entitled between January 1, 1954 and April1, 1959.
The Employees Retirement System Act (Ga. Laws 1949, p. 138 et seq.; Ga. Code Ann. Ch. 40-25; both as amended) was amended in 1958 to allow participation in the Employees Retirement System (hereinafter "ERS") by county tax commissioners, collectors, receivers, and employees of those county officers. Ga. Laws 1958, p. 637 (Ga. Code Ann. 40-2531). These county tax commissioners, collectors, receivers, and their employees were deemed to be adjuncts of the State Revenue Department, and were authorized to purchase membership service in ERS from the date their employment began, by paying the required employee contributions for membership service. The State Department of Revenue was authorized and directed to pay the

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employer contributions on behalf of the officials or employees availing themselves of this opportunity.
The 1958 amendment specifically provided that membership service in ERS could be elected and purchased by county tax officials and employees who were in service on or after December 1, 1956. However, the Act was effective on August 1, 1958, and because the commencement date for contributions under the Act was set by the Board of Trustees as April 1, 1959, eligible employees were only able to accrue creditable membership service beginning as of April 1, 1959. See Ga. Code Ann. 40-2501 (23).
The 1976 Session of the General Assembly amended the ERS Act with the enactment of Ga. Laws 1976, p. 456, which provides, in essence, that eligible tax officials and employees may now purchase creditable membership service for time served as such an official or employee between January 1, 1954 and April 1, 1959. You have inquired whether an eligible county tax official or employee must purchase all of the membership service for which he is eligible or, alternatively, only a selected portion of this service.
The 1976 amendment reads, in relevant part, as follows:
" ... any service as a tax commissioner, tax receiver, or tax collector, or any employee of such tax officials after January 1, 1954, to the date any such official or employee became a member of the System shall be credited as membership service credit upon payment into the retirement system before January 1, 1977, the employer and employee contributions, plus regular interest thereon, for such service." Ga. Laws 1976, p. 456 (Ga. Code Ann. 40-2505.1).
The cardinal rule in the interpretation of any statute is the ascertainment of the General Assembly's intent. Ga. Code 102-102 (9); Thacker v. Morris, 196 Ga. 167 (1943); J.A.T. v. State of Georgia, 133 Ga. App. 922 (1975). To determine this intent, the 1976 amendment must be read in conjunction with other portions of the ERS Act and examined in light of the background and development of the statute authorizing the membership of county tax officials and employees.
The original ERS Act in 1949 had no provision allowing the membership of county tax officials and employees. Ga. Laws 1949, p. 138 et seq.; Ga. Code Ann Ch. 40-25; both as amended. As discussed previously, this authorization was provided by the amendatory Act of 1958. Ga. Laws 1958, p. 637 (Ga. Code Ann. 40-2531). The 1958 amendment allowed participation in ERS by county tax officials and their employees, from the date of the commencement of their service as such, but in no event could any membership credit be purchased for service prior to April1, 1959. Ga. Code Ann. 40-2531.
However, the 1958 amendment did allow these eligible tax officials

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and employees to receive prior service credit for service before January 1, 1954. Ga. Code Ann. 40-2531. Prior service is defined as service which is creditable under the ERS Act and which was rendered prior to January 1, 1954. Ga. Code Ann. 40-2504 (11).
The net result, then, was that an eligible county tax official or employee who became a member of ERS pursuant to the 1958 amendment could receive credit for service after April 1, 1959 and before January 1, 1954. The 1976 amendment remedied the inequity caused by this gap in the available membership service time which an eligible member could purchase.
In enacting the 1976 amendment, what the General Assembly actually intended, in my judgment, was to move the commencement date for the purchase of creditable membership service by tax officials and employees from April 1, 1959 back to January 1, 1954. The purpose of this change was to allow ERS members who were county tax commissioners, collectors, receivers, or employees of such officers prior to April 1, 1959, to purchase retirement credit for all time actually served as such between January 1, 1954 and April 1, 1959. Because of this amendment, the law now reads the same as if the original 1958 amendment provided for membership service credit from January 1, 1954 forward (instead of from April 1, 1959 forward) with, of course, mandatory contributions required for all creditable service rendered during this period.
Therefore, based on the foregoing rationale and authorities, it is my opinion that county tax commissioners, collectors, receivers, and employees of those officers, who avail themselves of the provisions of Ga. Laws 1976, p. 456, must purchase all of the creditable service to which they are entitled between January 1, 1954 and April1, 1959.

OPINION 76-130
To: Executive Director, Georgia Fire Fighter December 22, 1976 Standards and Training Council
Re: The service of a period of probation under the Georgia First Offender Act cannot be considered a conviction for purposes of the Georgia Fire Fighter Standards and Training Act.
This is in response to your recent request for my official opinion as to whether the serving of a term of probation under the Georgia First Offender Act (Ga. Laws 1968, p. 324 (Ga. Code Ann. 27-2727 et seq.)) would disqualify a person from being employed as a fire fighter based upon the Georgia Fire Fighter Standards and Training Act which prohibits the employment of fire fighters who have "been con-

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victed of a felony within 10 years prior to employment." Ga. Laws 1971, pp. 693, 696 (Ga. Code Ann. 92A-2607 (b)). Specifically, according to your request, the applicant in question served three months of probation under the Georgia First Offender Act and was released by the court from the remainder of his probation.
The Georgia First Offender Act provides, in part, as follows:
"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." [Remainder of section omitted.] Ga. Code Ann. 27-2728.
Based upon the foregoing it is my official opinion that the fulfillment of the terms of probation under the Georgia First Offender Act or the release by the court prior to the termination of a period of probation is not a criminal conviction for purposes of the Georgia Fire Fighter Standards and Training Act.

OPINION 76-131

To: Commissioner, Department of Human Resources

December 22, 1976

Re: Several questions related to deprived, abused and neglected children in connection with Ga. Code Ann. Title 24A and Ga. Code Ann. 74-111.

This is in reply to your recent request for an official opinion on various statutory provisions related to deprived, abused and neglected children. Your questions and my responses thereto are set forth below:
I. Does Ga. Code Ann. 24A-3301 apply to deprived children as defined in Ga. Code Ann. 24A-401 (h)? 1
Ga. Code Ann. 24A-3301 gives the juvenile court authority to appoint a guardian ad litem for a child at any stage of a proceeding under the Juvenile Court Code of Georgia (Ga. Code Ann. Title 24A; Ga. Laws 1971, p. 709, as amended). Inasmuch as the juvenile court's

1 "Deprived child" means, inter alia, a child who (1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals; or (2) has been placed for care or adoption in violation of law; or (3) has been abandoned by his parents or other legal custodian; or (4) is without a parent, guardian or custodian.

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jurisdiction clearly encompasses proceedings in which a child is alleged to be deprived (Ga. Code Ann. 24A-301 (a) (1) (C)), it is my official opinion that Ga. Code Ann. 24A-3301 does apply to a deprived child as defined in Ga. Code Ann. 24A-401 (h).
II. Does a deprivation proceeding arising from child abuse and neglect by a parent or caretaker present a conflict of interest whereby a guardian ad litem shall be appointed as provided in Ga. Code Ann. 24A-3301?
The juvenile court judge shall appoint a guardian ad litem for a child "if he has no parent, guardian, or custodian appearing on his behalf or if their interests conflict with his. . . ." (Ga. Code Ann. 24A-3301). The Georgia General Assembly specifically provided that the Juvenile Court Code is to be liberally construed toward the protection of the child whose well-being is threatened. Ga. Code Ann. 24A-101. Recognizing not only this principle, but also the inherent conflict of interests in parental termination proceedings between the child and the parent charged with the child's continued abuse, neglect, or deprivation, the courts have consistently held that the rights of the child are paramount. Elrod v. Department of Family and Children Services, 136 Ga. App. 251 (1975); George v. Anderson, 135 Ga. App. 273 (1975); Spence v. Levi, 133 Ga. App. 581 (1974); In re Levi, 131 Ga. App. 348 (1974). Since guardians ad litem are appointed in parental termination proceedings where child abuse or neglect is alleged (see e.g., Spence v. Levi, supra), I cannot see that the inherent conflict of interests between the child and his alleged abuser would differ in a deprivation proceeding. Therefore, it is my official opinion that deprivation proceedings arising from child abuse and neglect by a parent or caretaker do present a conflict of interest wherein the provisions of Ga. Code Ann. 24A-3301 concerning the appointment of a guardian ad litem would apply.
III. Do the definitional elements of "deprived child" in the Juvenile Court Code apply to the "abused, neglected or exploited" child covered by the provisions of Ga. Code Ann. 74-111?
Ga. Code Ann. 74-111 (amended by Ga. Laws 1974, p. 438) requires the reporting to appropriate state agencies of instances where a child is injured, neglected, or exploited by a parent or caretaker. Although the reporting law does not explicitly mention "deprived" children as defined in the Juvenile Court Code (see footnote 1, supra), said definition is certainly inclusive of a child who is abused, neglected or exploited. As the Court of Appeals has said in reference to cases involving deprived children:
"The thread running through these cases not only manifests moral unfitness, physical abuse and abandonment by the parentor

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parents but also reflects a condition of frequent moves from home to home thereby lessening the probability of development of a meaningful parent-child relationship, as well as probable deprivation of a sound environment founded in love and nurture. These cases found a substantial danger of a child suffering emotional harm as well as physical, mental, or moral harm." (Emphasis in original.) Elrod v. Department of Family and Children Services, supra, at 255-56.
Thus, it is my official opinion that the definitional elements of "deprived child" in the Juvenile Court Code do apply to the "abused, neglected or exploited child" covered by Ga. Code Ann. 74-111.
IV. Do the definitional elements of "deprived child" include "threatened harm to the child's welfare"?
Inasmuch as the Elrod court spoke of "probable deprivation," "substantial danger," and the "likelihood of substantial threat to a child's physical, mental, moral or emotional well-being," Id. (emphasis added), it is my official opinion that the definitional elements of "deprived child" do include "threatened harm to the child's welfare."
V. For the purposes of Georgia's child abuse reporting statute (Ga. Code Ann. 74-111), is "cause to believe" equivalent to "cause to suspect"?
Georgia's child abuse reporting law is "triggered" when persons have "cause to believe that a child ... has had physical injury or injuries inflicted upon him other than by accidental means by a parent or caretaker, or has been ... exploited by a parent or caretaker, or has been sexually assaulted...."Ga. Code Ann. 74-111 (a). In construing statutes, the effect to be given a word therein depends on the intention with which it is used as manifested by the context and considered with reference to the subject-matter to which it relates. Stanley v. Sims, 185 Ga. 518, 523 (1938). Obviously, "believe" and "suspect" are not always synonymous; however, when considered in the context of the child abuse reporting law, I think it would be nothing less than semantic sophistry to differentiate between the two terms. The legislature expressly provided that the reporting law is to be liberally construed to carry out its stated purpose of providing for the protection of children whose health and welfare are adversely affected and threatened, Ga. Code Ann. 74-111 (d), and has granted immunity from criminal and civil liability to those who, in good faith, make reports regarding child abuse, Ga. Code Ann. 74-111 (c). The purpose of the law might well be impeded, or, indeed, thwarted, if a person had to worry over the possibility of subtle differences in the words "suspect" and "believe." Therefore, it is my official opinion that for

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the purposes of Georgia's child abuse reporting statute (Code 74-111), "cause to believe" is equivalent to "cause to suspect."

OPINION 76-132

To: Lieutenant Governor, State of Georgia

December 29, 1976

Re: An employee of the State Department of Education is not entitled to overtime pay for 12 hours of work performed during a week which the employee otherwise spent on annual leave.

This letter is in response to your recent request for an official opinion on the question of whether an employee of the State Department of Education may receive overtime pay for 12 hours of work performed during a week, the balance of which the employee spent on annual leave. It will be helpful if I first outline my understanding of the factual background of your question. The employee is salaried and is subject to the State Merit System. He does not hold an executive, administrative, or professional position. He performed the 12 hours of work on a Sunday, and his work week begins on Saturday. He received his regular salary for the period in which he performed the work, and he was not charged annual leave for the hours worked (i.e., he was charged 28 hours of annual leave for this work week).
In this factual context, the sole issue presented by your question is the propriety of the employee's receiving additional pay for overtime. This issue is resolved by the Administrative Procedures of the Department of Education. Sections 2.18.06 and 2.18.07 of the Procedures provide for overtime pay to all employees except those holding executive, administrative, or professional positions. Section 2.18.06 defines overtime as "hours worked in excess of forty hours per work week," and it further provides that "[h]ours charged to leave (of any type), time-off duty for holidays, or compensatory time will not be used to compute number of hours for overtime purposes." The Procedures thus mandate the conclusion that the employee in question is not entitled to overtime pay, since he worked only 12 hours during that work week.
The validity of administrative procedures, like the validity of other rules and regulations promulgated by an administrative body, depends on the existence of authority for establishing the procedures and on the reasonableness of the procedures. See Eason v. Morrison, 181 Ga. 322 (1935); Georgia Real Estate Commission v. Accelerated Courses in Real Estate, Inc., 234 Ga. 30 (1975). The authority for the Department of Education Administrative Procedures lies in Ga. Code Ann. 32-408 (Ga. Laws 1937, pp. 864, 866; 1961, pp. 39, 40), which grants the State

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Board of Education the power of general supervision over the Department of Education. The Procedures appear to be nothing more than an exercise of that power. They do not appear to conflict with any constitutional provision or statute, or with the regulations promulgated for State Merit System employees by the State Personnel Board. The overtime provisions of the Procedures might well be justified as promoting economy in State Government, and therefore they cannot be viewed as clearly arbitrary, capricious, or unreasonable. See Georgia Real Estate Commission v. Accelerated Courses in Real Estate, Inc., 234 Ga. 30 (1975). I can find no substantial grounds for impugning the validity of the overtime provisions of the Administrative Procedures.
There is some indication in your letter that the employee may have been advised by another employee of the department that he would be compensated for the 12 hours of work at an overtime rate. If such advice was given, it clearly contravened the published policy contained in the Administrative Procedures; the advising employee was acting ultra vires, and the advised employee's reliance was misplaced.
In summary, it is my official opinion that the employee is not entitled to receive overtime pay in this situation.

241
UNOFFICIAL OPINIONS of
THE ATTORNEY GENERAL
1976

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UNOFFICIAL OPINION U76-1

To: County Attorney

January 13, 1976

Re: There is no general authority for the chairman of a county commission to submit the county to the jurisdiction of any federal court.

This is in response to your request for our opinion as to whether the Chairman of the Board of Commissioners of Chattachoochee County has the authority on behalf of the county to accept the jurisdiction of the federal courts for the enforcement of certain responsibilities incurred by the county by virtue of its receipt of a federal grant.
The authority of every board of county commissioners is either derived from the general provisions of Ga. Code Ch. 23-9 (Ga. Laws 1922, p. 82 et seq.), or from the local legislation which creates each particular county board of commissioners. Therefore, the authority of any particular board of county commissioners to do any particular act must be based on two considerations. The first is whether the proposed action is authorized by any general state law, and second, whether the proposed action is authorized by any provision of the local Act setting up the particular board of commissioners.
I, like you, know of no general law which would authorize any chairman of any board of commissioners to accept, on behalf of the county, the jurisdiction of the federal courts for the enforcement of any responsibility incumbent upon the county as a result of receiving a federal grant.
This then brings us to the authority of the chairman of any particular county, and the question of whether the chairman would be authorized to take such an action can only be ascertained by reviewing the local Act which created the particular board of commissioners.
In your letter, you indicated that you knew of no authority for the chairman to take the action proposed, and I presume that you included a review of the local legislation which created your board of county commissioners. I concur with your conclusion in that I have been unable to ascertain any such authority.

UNOFFICIAL OPINION U76-2

To: State Senator, District 25

January 22, 1976

Re: Authority of county boards of education to lease unused school facilities to other educational institutions.

This is in reply to your recent letter in which you ask whether state Iaw prohibits the Baldwin County Board of Education from leasing

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an unused school building to Georgia Military College for more than a year at a time. In attempting to answer this question, I might point out first generally that the scope of a county school board's authority to lease out unused school facilities depends, inter alia, upon the status of the lessee, and second specifically that the legal status of Georgia Military College is more than a little unclear and probably would require a judicial determination for a complete and final resolution. Cf. Op. Atty Gen. 69-419 (a copy of which is attached for your ready reference).
Fortunately, the question which you pose would seem to permit of an answer without requiring us to jump into this morass. If Georgia Military College is a private educational institution, a lease of up to five years would appear to be authorized by Ga. Code Ann. 32-809 (Ga. Laws 1956, p. 10). See Op. Att'y Gen. 1963, p. 111 (a copy of which is attached for your ready reference). If, on the other hand, Georgia Military College were to be construed to be a public educational agency, a county school board would seemingly be empowered to lease unused school facilities to it for up to 50 years under Art. VII, Sec. VI, Par. I (a) of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5901), the relevant portion of which provides that:
" ... any city, town, municipality or county of this State may contract for any period not exceeding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created for the use by such subdivisions or the residents thereof of any facilities or services of the State, state institutions, any city, town, municipality, county, public agency, public corporation or authority, provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake."
It would consequently appear that insofar as general state law is concerned the Baldwin County Board of Education would, in any event, be legally safe in leasing out the facility in question to Georgia Military College for a period of up to five years.
In furnishing this answer, it is important to emphasize that I am speaking only of the power of the local board of education under general state law, which is to say based upon the assumption that there are no local or special laws, or constitutional amendments of local application, which would alter the situation with respect to Baldwin County. The best source of information as to the existence of any such local or special enactments would, of course, be the county school board's attorney. It should also be understood that in discussing the limits of the local school board's legal authority and discretion, nothing which has been stated is to be taken as implying that it would

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in any way be improper for the county board of education, as a matter

of its own policy, to decline to lease out school property for more than

a year at a time (or for that matter to decline to lease out any school

property at all).

.

UNOFFICIAL OPINION U76-3

To: School Board Attorney

January 28, 1976

Re: Audit exception to "interest" payment of the Bryan County Board of Education; payments to a creditor in excess of the sum legally obligated would be violative of the constitutional proscription of gifts or gratuities.

This is in reply to your letter of recent date in connection with an exception which the State Auditor has taken to a $13,923.29 payment by the Bryan County Board of Education to the Bryan Motor Company. The audit report in question is dated June 18, 1975, and covers the six-month period ending December 31, 1974.
From the somewhat complex factual situation presented by your letter and its numerous documentary attachments (and I should mention at the outset that I possess no qualifications whatsoever as an accountant), I would surmise the following to be the salient facts of the matter:
(1) Sometime prior to September 1966, the Bryan County Board of Education received certain materials and services from the Bryan Motor Company. (Your letter, p. 1.)
(2) On September 27, 1966, the Chairman and Secretary of the Bryan County Board of Education executed a promissory note to the Bryan Motor Company in the principal amount of $25,923.71 and bearing interest at the rate of six percent, the note being due and payable on December 27, 1966. (Your letter, p. 1; Report of Dabbs & Deal [CPA]; audit report, p. 1.) Based upon your letter and the grand jury presentment of September 30, 1975, I assume that the note was given in connection with the materials furnished and services rendered. (Item 1, supra.)
(3) The note does not appear to have been properly authorized by a resolution of the school board as required by Ga. Code (1933) 32-922, and as you indicate in your letter (pp. 1-2), can therefore be assumed to be invalid. See Jasper School District v. Gormley, 57 Ga. App. 537, 544 (1938). The note's invalidity was noted by the State Auditor at page 3 of his June 18, 1975 report.

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(4) Notwithstanding the invalidity of the note, the Bryan County Board of Education paid the full principal to the Bryan Motor Company between February 1967 and December 29, 1972. (See letter dated October 17, 1975, from Ernest B. Davis, State Auditor, to James B. Franklin, Esq.; see also Report of Dabbs & Deal [CPA], p. 3.)
(5) Had the note been valid the statute of limitations would have run in six years, or on December 27, 1972. See Ga. Code (1933) 3-705.
(6) On December 31, 1974, the Bryan County Board of Education paid the sum of $13,923.29 to the Bryan Motor Company pursuant to an agreement between the two parties (dated January 1, 1975) that the board was "justly indebted to the Bryan Motor Company [in that amount] for labor and materials." (See Agreement of January 1, 1975.)
(7) Since the principal had already been paid (see item 4, supra), the $13,923.29 appears to have been essentially an "accrued interest" payment. (See letter from Ernest B. Davis, State Auditor, dated October 17, 1975, to James B. Franklin, Esq.; see also Report of Dabbs & Deal [CPA], pp. 3-4.)
Looking to the applicable law in light of the foregoing factual assumptions, I find that I am in general agreement with your initial conclusion (assuming that the initial transaction between the school board and the motor company, i.e., the purchase of services and property, was lawful) that while the note inself was invalid, the county board of education was nonetheless legally obligated to pay the company the reasonable value of the services and property it had received. See, e.g., Jasper School District v. Gormley, 57 Ga. App. 537, 544 (1938); Board of Education of Candler County v. Southern Michigan National Bank, 184 Ga. 641, 643 (1937); City Council of Dawson v. Dawson Waterworks, 106 Ga. 696 (1) (1899). The principle involved, sometimes called the "common honesty rule," is set forth in Ga. Code (1933) 3-107, as follows:
"Ordinarily, when one renders services or transfers property valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof. .." (Emphasis added.)

Since it is this principle (i.e., enunciated by Code 3-107) and not the invalid note by which the county board of education's legal obligations are to be measured, however, it would seem to follow that the auditor's exception to the $13,923.29 payment of "accrued interest" is well taken.

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To start with, it may be noted that the four-year statute of limitations which is applicable to implied promises to pay for goods or services received (see Ga. Code (1933) 3-706) expired on December 27, 1970. Since the county board of education was not "legally obligated" to make any payment to Bryan Motor Company after that date, it is certainly arguable that the $13,923.29 payment which was in fact made was a gift or gratuity and hence violative of Article VII, Section I, Paragraph II, of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5402). Although this provision by its terms prohibits only the General Assembly from granting "any donation or gratuity in favor of any person, corporation or association," it is well settled that the proscription is equally applicable to political subdivisions of the state. See, e.g., Grand Lodge of Georgia, Independent Order of Odd Fellows v. City of Thomasville, 226 Ga. 4, 8 (1970); Atlanta Chamber of Commerce v. McRae, 174 Ga. 590 (1930); Op. Att'y Gen. U74-62. While I am quite aware that a private individual may waive a limitations defense at the risk of his own personal funds, 54 C.J.S. Limitation of Actions, 307 to 309, I have considerable doubt, particularly in light of the above constitutional provision, as to whether a public official can make the same waiver on behalf of his board or agency-where the funds which would be diminished are not his own but those belonging to the public and as to which he is a trustee with the fiduciary duty to conserve.
However, whatever the situation may be in Georgia as to the authority or lack of authority of a public official to waive a limitations defense as to funds which he holds as a trustee (limitations on the amount of time available for "unofficial opinions" coupled with the following discussion of a differing ground for the same conclusion preclude as full and complete research of the matter as we would like), the circumstances of the present case indicate that even without reference to the questionable efficacy of the statute of limitations "waiver," the $13,923.29 payment which the board of education made in December 1974 was not a payment which it was "legally obligated" to make and hence was a constitutionally prohibited donation or gratuity. This conclusion hinges upon a consideration of what the "legal obligation" of the school board was. As has already been pointed out, the obligation does not stem from and is not to be measured by the "invalid note," but is predicated upon the board's obligation under Code 3-107 to pay the "reasonable value" of the services and materials received. See, e.g., Tanner v. Tanner, 106 Ga. App. 270, 272 (1962). While I have no information as to what the reasonable value was for the goods and services at the time they were furnished, it would not seem unreasonable to assume, at least in the absence of any information to the contrary, that their reasonable value would not have been greater than the face amount of the invalid note given for such goods and services (i.e.,

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$25,923.71). Since this sum (which common business practice would indicate as having been at least equal to "the reasonable value" to the services and materials received) was fully paid as of December 29, 1972, the payment of the additional sum (whether called "accrued interest" or anything else) would appear to be in excess of the legal obligation imposed upon the county board of education by Code 3-107 (which does not provide for "interest" or anything else beyond "reasonable value"), and hence a prohibited donation or gratuity under Article VII, Section I, Paragraph II, of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5402).

UNOFFICIAL OPINION U76-4

To: City Attorney

February 3, 1976

Re: (1) Ga. Laws 1937, pp. 1771, 1816, as amended by Ga. Laws 1960, pp. 2158, 2161, prohibits the Dublin board of aldermen from appointing the uncle of a member of the board of aldermen to the position of judge of city court. (2) It would not be improper to appoint a nonattorney to the position of judge of city court of Dublin.

This is in response to your letter of January 19, 1976, in which you requested my opinion concerning two questions involving the appointment of judges to the Dublin city court. Specifically, you wanted to know: (1) Whether Ga. Laws 1937, pp. 1771, 1816, as amended by Ga. Laws 1960, pp. 2158, 2161, prohibits the board of aldermen from appointing as judge of city court the uncle of a member of the board of aldermen; and, (2) If it would be improper to appoint a nonattorney to the position of judge of city court.
Ga. Laws 1960, pp. 2158, 2161, which amends Ga. Laws 1937, pp. 1771, 1816, in pertinent part reads as follows:
"The mayor and the board of aldermen for the City of Dublin are hereby prohibited from employing as officer, servant or employee of said city, except any person employed to serve in the capacity of a school teacher for said city, any person or persons related to said mayor or any member of the board of aldermen within the following degrees, to wit: ... uncle, ..."
Under the "traditional equal protection test" a state may use classifications in the adoption of police laws so long as such classifications are reasonable and not arbitrary. See Morey v. Doud, 354 U.S. 457 (1957); Cooper v. Rollins, 152 Ga. 588 (1922). The purpose of antinepotism provisions is to prevent the bestowal of patronage by public officers through appointments based upon relationship rather than

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upon merit or ability. Although there are no Georgia cases concerning the constitutionality of anti-nepotism statutes, this type of legislation has been enforced in other jurisdictions without serious controversy as to validity. See 67 C.J.S. Officers, 22 (1950); see also, Opinion of the Judges, 291 Ala. 581, 285 So. 2d 87 (1973); State ex rel. Robinson v. Keefe, 111 Fla. 701, 149 So. 638 (1933). Therefore, it is my unofficial opinion that Ga. Laws 1937, pp. 1771, 1816, as amended by Ga. Laws 1960, pp. 2158, 2161, does not violate the equal protection clause of the Fourteenth Amendment (Ga. Code Ann. 1-815), and thus does prohibit the board of aldermen of Dublin from appointing the uncle of a member of the board of aldermen to the position of city court judge.
Ga. Laws 1937, pp. 1771, 1796, sets out the qualifications for judges of recorder's (city) court in Dublin. This statute does not require that such judges be attorneys. It has long been the rule in Georgia that judges of certain courts of limited jurisdiction are not required to be learned in the law. See, e.g., Ga. Code (1933) 24-402. This practice has never been declared unconstitutional by the United States Supreme Court nor by either the Supreme Court of Georgia or Georgia Court of Appeals. Thus, while it is possible that the case to which you refer in your letter is a signal of things to come in this area, this decision, of course, does not affect courts of limited jurisdiction in Georgia. Therefore, it is my unofficial opinion that it would not be improper to appoint a nonattorney to the position of judge of city court.

UNOFFICIAL OPINION U76-5

To: Representative, District 120

February 20, 1976

Re: Requirements of domicile under Georgia Const., Art. XI, Sec. II, Par. I (Ga. Code Ann. 2-7901).

This is in reply to your request for my unofficial opinion as to whether certain transactions preclude a citizen of this state from offering for election in 1976 to the office of sheriff of Toombs County.
As I understand the factual situation, the individual involved formally maintained his home in Toombs County and exhibited all other attributes of domicile in that county. However, the individual subsequently moved to Tattnall County to accept employment in that county. While he and his family utilize on-premises living quarters furnished to him in connection with his employment in Tattnall County, he retains his home in Toombs County. In addition, he has continued to pay ad valorem taxes, purchase tags for his automobile, and consequently pay ad valorem tax thereon, maintain his voter registration, and in fact, vote in Toombs County. The individual

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further professes that he has continuously maintained an intent not to change his domicile from Toombs County and he has repeatedly publicly avowed this intent. The individual and his family continue now to reside in Tattnall County in the on-premises living quarters furnished in connection with his employment.
The issue is whether these facts disqualify him from offering for election in 1976 to the office of sheriff of Toombs County by virtue of Art. XI, Sec. II, Par. I of the Constitution which, in pertinent part, provides:
"rN]o person shall be eligible for any [county office] unless he shall have been a resident of the county for two years and is a qualified voter." Ga. Code Ann. 2-7901.

See also, Ga. Code Ann. 89-101 (7) (amended by Ga. Laws 1972, p. 868; 1976, p. 474); Ga. Code (1933) 89-501 (5).
In Avery v. Bower, 170 Ga. 202 (1929), the Supreme Court established that:
"Wherever the word 'reside' occurs either in the statutes or in the Constitution of Georgia with respect to voting, it should be construed to mean 'domicile.' "Id. at 206.
The same rule appears to apply where the word "residence" is used to define eligibility for office. See Clark v. Hammock, 228 Ga. 157 (1971).
In Avery v. Bower, supra, the Supreme Court further explained that
"'Residence' and 'domicile' are not synonymous and convertible terms. A man may have several residences, but only one place of domicile. There must be a concurrence of actual residence and the intention to remain, to acquire a domicile." Id. at 204.
Although certain statutory rules for determining domicile have been established (e.g., Ga. Code (1933) Ch. 79-4; Ga. Code Ann. 34-632 (Ga. Laws 1964, Extra. Sess., pp. 26, 71)), the question presented in applying those rules to any particular set of circumstances such as that involved here generally presents a question of fact, not one of law, although once all the operative facts have been established, the issue may be determined as a matter of law. See Clark v. Hammock, 228 Ga. 157 (1971); Pugh v. Jones, 131 Ga. App. 600 (1974). For this reason, we are unable to state a definitive opinion as to whether, as a matter of law, the individual preserved his eligibility now to offer for election in Toombs County. However, we do conclude that if the above facts are established, the trier of fact would unquestionably be authorized, and in the absence of any contrary evidence would probably

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be compelled, as a matter of law, to determine that the individual has been successful in preserving Toombs County as his domicile. Knight v. Bond, 112 Ga. 828 (1900).

UNOFFICIAL OPINION U76-6

To: Representative, 36th District

March 1, 1976

Re: Lawful authority for adoption by the Board of Human Resources and enforcement by the Department of Human Resources of the 1973 Life Safety Code (National Fire Protection Association Standard 101) as part of the rules and regulations for day care centers.

This will reply to your recent letter inquiring whether the Board of Human Resources and the Department of Human Resources have acted pursuant to lawful authority in adopting and enforcing, respectively, the 1973 Life Safety Code (N.F.P.A. Standard 101) as part of the Rules and Regulations for Day Care Centers.
I understand that the 1973 Life Safety Code is a comprehensive set of standards that deals with preventing and controlling losses from fire. It establishes, among other things, construction standards involving exits, fire walls and sprinklers, equipment standards for extinquishers and smoke detectors, and training standards, including mandatory fire drills. This opinion is limited to answering whether or not the board and department have authority to act in this area. I express no opinion about whether any particular rule is proper or whether the Code was adopted in accordance with proper procedure.
Georgia Laws 1963, pp. 81, 91, as amended (Ga. Code Ann. 99-206), provides that the Board of Human Resources:
"(a) ... shall ... be responsible for adoption of all policies and promulgation of all rules and regulations not in conflict with provisions of this Chapter that may be necessary and appropriate to the administration of the division, to the accomplishment of the purposes of this Chapter, and to the performance of the duties and functions of the division as set forth in this Chapter.
"(b) . . . The board shall establish rules and regulations for the government, operation and maintenance of all training schools, facilities and institutions now or hereafter under the jurisdiction and control of the board...."
With respect to the purpose of the Chapter, Ga. Code Ann. 99-202 (Ga. Laws 1963, pp. 81, 82) provides that:
"The purpose of this Chapter is to promote, safeguard and protect the well-being and general welfare of children and youth of this

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State through a comprehensive and coordinated program of public child welfare and youth services, providing for: ... setting of standards for social services and facilities for children and youth. . . ."
It is clear that the Board of Human Resources has jurisdiction over day care centers. Ga. Code Ann. 99-214 (Ga. Laws 1963, pp. 81, 110; 1967, pp. 772, 773; 1973, pp. 560, 561) provides that the supervision of child welfare facilities, including day care centers, by the Department of Human Resources shall be in accordance with the rules and regulations of the board. It follows that the Board of Human Resources is the proper agency to prescribe rules and regulations concerning the operation of day care facilities. It is clear that this general grant of authority includes the authority to adopt safety standards for day care facilities.
It is therefore my unofficial opinion that the Board of Human Resources had lawful authority to adopt the 1973 Life Safety Code (N.F.P.A. Standard 101) as part of the Rules and Regulations for Day Care Centers, and that the Department of Human Resources has lawful authority to enforce compliance with Code standards.

UNOFFICIAL OPINION U76-7

To: Judge, Fulton County Juvenile Court

March 5, 1976

Re: Release by a juvenile court of a transcript of a witness' testimony in a custody proceeding to an agency or person to use in an unrelated proceeding, ordering of such a transcript and notification of the witness are matters left by law to the sound discretion of the juvenile court judge.

This will respond to your letter inquiring whether or not a juvenile court may release a transcript of a witness' testimony in a custody proceeding to the State Bar of Georgia Disciplinary Committee to use in a disciplinary action which is pending against the witness.
I understand that the custody proceeding was transferred to your court from superior court, and involves an attempt by a father to gain custody over his minor children by showing the unfitness of the mother, his ex-wife, who is the present custodian.
Several provisions of the Juvenile Court Code of Georgia (Ga. Code Ann. Title 24A, based on Ga. Laws 1971, p. 709) have a bearing on the confidentiality of juvenile court records. Georgia Code 24A-3501 is central to your case and provides as follows:
"Except in cases arising under section 24A-3101, and subject to the requirements of section 24A-2201 (d), all files and records of

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the court in a proceeding under this Code [Title 24A] are open to inspection only upon order of the court. The judge may permit authorized representatives of recognized organizations compiling statistics for proper purposes to inspect and make abstracts from official records, under whatever conditions upon their use and distribution the judge may deem proper, and may punish by contempt any violation of those conditions."
This provision does not state explicitly that a judge may not permit inspection, nor does it say that the judge must permit inspection, except in the case of a juvenile traffic offense (section 24A-3101) and except to permit confrontation and cross-examination in a contested proceeding [section 24A-2201 (d)].
The provision respecting compilation of statistics is similarly permissive, and this matter is similarly left to the sound discretion of the judge. It is my unofficial opinion, taking the section as a whole, that the legislature intended that requests to inspect court files and records, in situations other than those that are specifically provided for in the section, should ordinarily be denied.
That inspection of files and records was left to the discretion of the judge is made clear not only by the permissive wording of section 24A-3501, but also by other sections which allow the judge no discretion. Examples of such mandatory provisions, in addition to those found in sections 24A-3101 and 24A-2201 (d), are found in sections 24A-1801 and 24A-3504.
Section 24A-1801 (c) provides that:
"The general public shall be excluded from hearings involving delinquency, deprivation or unruliness."
Section 24A-3504 (a) is also mandatory, and provides:
"On application of a person who has been adjudicated delinquent or unruly or on the court's own motion, and after a hearing, the court shall order the sealing of the files and records in the proceeding. . . ."
It is thus apparent that, when the legislature intended to remove a matter from the discretion of the judge, it did so explicitly.
Other provisions in the Juvenile Court Code provide for confidentiality, but relate only to cases involving delinquency or unruliness, and so are not relevant to your proceeding. These provisions include sections 24A-2401 (b), 24A-3502, and 24A-3503.
You have called my attention to the fact that your court, as a recipient of funds made available by the Law Enforcement Assistance Administration, is required by 28 C.F.R. 20.20 (a) to comply with federal regulations relating to confidentiality, including 28 C.F.R. 20.21, which provides as follows:

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"A plan shall be submitted to LEAA by each state within 180 days of the promulgation of these regulations. The plan shall set forth operational procedures to . . . .
* * *
"(d) Juvenile Records. Insure that dissemination of records concerning proceedings relating to the adjudication of a juvenile as delinquent or in need of supervision (or the equivalent) to noncriminal justice agencies is prohibited, unless a statute or federal executive order specifically authorizes dissemination of juvenile records, except to the same extent as criminal history records may be disseminated as provided in 20.21 (b) (3), (4) and (6)."

It would appear that this regulation does not apply to a matter of parental custody, since it is limited to quasi-criminal proceedings.
The Juvenile Court Code on its face deals with inspection of files and records, and makes no specific reference to whether or not copies of files and records may be released. It is my unofficial opinion that a judge may as a matter of discretion release copies in any case in which he may permit inspection. However, a judge could in his discretion permit inspection and still refuse to release copies, or he could impose conditions upon the use and distribution of copies. Cf. Section 24A-3501.
You have also inquired whether, in the absence of an appeal, a judge can order the record of a hearing transcribed for use in matters not pertaining to the business of the court or the child involved. I understand that, as a matter of practice, you do not order that the record be transcribed except when there is an appeal of the judgment.
Nothing in the Juvenile Court Code prohibits a judge from ordering a transcript in any case and for any reason. If you decide to permit inspection or copying of the record or any part of it, it is within your general power as a judge to order that a transcript be prepared. With respect to your inquiry as to who should be required to pay the reporter for such a transcript, it should be the person who requests the copy or the right to inspect the record. Georgia Code Ann. 24A-3401 (a) (5), which provides that such expenses represent a charge upon county funds, should in my opinion be limited to expenses made necessary by the juvenile court proceeding.
You have also inquired whether you must, prior to release of any testimony, inform the witness and obtain his consent. While it may be good practice to inform the witness of the court's intent, the general confidentiality of juvenile court proceedings does not exist for the benefit of a witness, but for the benefit of the juvenile involved. It is my unofficial opinion that the witness has no right to be informed,

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and there is no requirement that he must consent to the release of his testimony.
In summary, it is my unofficial opinion that the release of a transcript of a witness' testimony in a juvenile court custody proceeding to an agency or person to use in an unrelated proceeding is left by the Juvenile Court Code and by the above-cited federal regulations to the sound discretion of the juvenile court judge. The ordering of a transcript and the notification of the witness prior to release of his testimony are likewise matters within the discretion of the judge.

UNOFFICIAL OPINION U76-8

To: Clerk of Superior Court, Camden County

March 17, 1976

Re: Neither superior court clerks nor their employees are entitled to membership in the Employees Retirement System of Georgia.

Your recent letter requests an opinion on whether the clerk and/or deputy clerk of Camden County Superior Court may participate in the Employees Retirement System of Georgia (ERS).
Your request is generated by your understanding that employees of the Camden County Tax Commissioner's office are eligible for membership in ERS. You explain that your office collects real estate transfer taxes for the state, and ask whether that fact entitles you to ERS membership.
The ERS was created by Ga. Laws 1949, p. 138 et seq., as amended (Ga. Code Ann. Ch. 40-25, as amended). Basically, with a few exceptions, it includes within its membership only full-time employees of state departments and agencies.
In 1958 the ERS Act was amended to declare that the offices of county tax commissioners, collectors and receivers were adjuncts of the State Revenue Department, and to include within ERS membership all officers and employees in those offices which chose to fulfill certain conditions precedent to membership. Ga. Laws 1958, p. 637, as amended; Ga. Code Ann. 40-2531. However, there has never been such a statutory inclusion of superior court clerks or their employees.
Since there is no statutory authority for such membership, it is my opinion that neither superior court clerks nor their employees are entitled to membership in the Employees Retirement System of Georgia.

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UNOFFICIAL OPINION U76-9

To: Vice President, Council of Superior Court Judges of Georgia, Southern Judicial Circuit

March 17, 1976

Re: Discussion of the retirement rights and benefits of a superior court judge eligible for emeritus appointment who is appointed to one of the Georgia appellate courts.

I have your recent letter written on behalf of the Council of Superior Court Judges of Georgia. The council requests my opinion on several questions involving the in pari materia construction of the Act creating the Superior Court Judges Retirement Fund with the 1971 Act establishing optional retirement benefits for appellate court judges. For reference, the Superior Court Judges Retirement Act (also called the Emeritus Act) is found at Ga. Laws 1945, p. 362 et seq., as amended; Ga. Code Ann. Ch. 24-26A, as amended. The Act creating optional benefits for appellate court judges is contained in Ga. Laws 1971, p. 99 et seq.; Ga. Code Ann. 40-2535. This 1971 Act is an amendment to the Act creating the Employees Retirement System of Georgia (ERS), found at Ga. Laws 1949, p. 138 et seq.; Ga. Code Ann. Ch. 40-25, both as amended. 1 Your various questions will be stated and answered in the order posed.
(1) Would a judge of the superior court who is qualified for appointment as judge emeritus be able to resign his commission and accept an appointment as an appellate court judge without losing the right to be appointed a superior court judge emeritus at a later date upon the termination of his service on the appellate bench?
Georgia Code Ann. 24-2605a.1 specifically provides that any superior court judge who is eligible for appointment to the office of superior court judge emeritus may be appointed to another office of profit or trust under the Constitution of Georgia, with his right to appointment as an emeritus judge suspended, not forfeited, during the period of time he holds another public office. Following the conclusion of the judge's tenure in some other office of profit or trust, he would be eligible for appointment as superior court judge emeritus. Op. Att'y Gen. U74-51.
However, the precise answer to your first question depends on which retirement program for appellate court judges is elected by the judge

1 For brevity, further citations to these Acts will generally be to the unofficial annotated Code sections. Also, references to the "1971 Act" will be used interchangeably with
references to "Ga. Code Ann. 40-2535," but both refer to the same Act.

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assuming appellate office. Any person becoming an appellate court judge is offered one of two alternative retirement programs. He may become a member of ERS pursuant to Ga. Code Ann. 40-2503 (9) or (10). Alternatively, within 60 days of assuming office, an appellate court judge may elect the attractive optional retirement benefits provided by Ga. Code Ann. 40-2535.
If the appellate court judge were to become a member of ERS under Ga. Code Ann. 40-2503 (9) or (10), it is my opinion that he could assume the office of Judge of the Georgia Court of Appeals or Justice of the Georgia Supreme Court and still retain his right to be appointed as judge of the superior courts emeritus at the conclusion of his service on either appellate court (assuming, of course, he is otherwise qualified to be appointed emeritus judge).
On the other hand, the election by an appellate judge of the benefits provided by Ga. Code Ann. 40-2535 produces, in my judgment, a drastically different result. Georgia Code Ann. 40-2535 sets up attractive retirement benefits for appellate court judges and is deliberately designed to significantly increase the amount of benefits paid to appellate judges or their widows. Op. Att'y Gen. 71-203. At the same time, and in consideration for these special retirement benefits, the law requires that any appellate court judge electing same does so in lieu of any retirement allowances otherwise available under ERS and in lieu of the appointment to or the holding of any emeritus office. Ga. Code Ann. 40-2535 (1). This condition precedent is repeated in Ga. Code Ann. 40-2535 (3) as follows:
"As a condition of eligibility for the benefits provided by this Act any appellate court judge shall tender to the board of trustees before January 1, 1972, or within 60 days after the commencement of his term of office, whichever shall occur later, a written notice stating that he has elected to accept the benefits provided by this Act in lieu of any retirement allowances otherwise available under this retirement system (ERS) and in lieu of the appointment to and the holding of any emeritus office. ..." (Parenthetical matter and emphasis supplied.) Ga. Laws 1971, pp. 99, 100; Ga. Code Ann. 40-2535 (3).
It is undoubtedly the rule of law in Georgia, and I have opined in accordance therewith on many occasions, that a contractual relationship arises between a public employee and the employing authority at the time the employment begins. Retirement or pension statutes conferring rights and benefits and becoming part of an employment contract may not thereafter be diluted, restricted or impaired. City Council of Augusta v. Young, 218 Ga. 346 (1962); Burks v. Board of Trustees, 214 Ga. 251 (1958); Ops. Att'y Gen. U74-51, 72-122, 71-5.
However, when an appellate court judge elects coverage under the

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1971 Act (Ga. Code Ann. 40-2535), he does so by written notice stating that he has elected to accept the benefits provided by that Act in lieu of any emeritus office. Consequently, in my judgment, any appellate court judge who elected or elects the optional benefits provided by the 1971 Act volitionally waives in writing any entitlement to any emeritus office, and elects to retire solely and only under the provisions and benefits of the 1971 Act. See Ops. Att'y Gen. U74-101, U71-82.
(2) If a judge qualified for an emeritus position accepts an appointment to the appellate bench under such circumstances would he be required by law to make contributions to a retirement fund as a judge of the appellate court or under the State Employees Retirement System?
Unquestionably, if a superior court judge who is eligible for emeritus appointment is appointed or elected to another office of profit or trust under the Georgia Constitution, such as an appellate court judge, he is not required to make further contributions to the Superior Court Judges Retirement Fund while holding such other office. Ga. Code Ann. 24-2605a.l. However, this statutory authorization for the cessation of contributions goes only to the Superior Court Judges Retirement Fund.
An appellate court judge becoming a member of ERS would be required by law to contribute to that retirement system. Ga. Code Ann. 40-2503 (9) and (10). Similarly, an appellate court judge electing the optional benefits provided by the 1971 Act would, by statute, be required to contribute a specified percentage of his earnable compensation to the Board of Trustees of ERS. Ga. Code Ann. 40-2535 (4).
(3) If a judge under such circumstances is required to make contributions, can he or his estate recover such contributions if his service as an appellate court judge is terminated prior to the time that he is entitled to receive benefits under such retirement systems?
Yes. The return of contributions to an appellate court judge who becomes a member of ERS is governed by Ga. Code Ann. 40-2505(7). Under the general ERS statutes, should an appellate court judge cease to be a member of ERS other than by death or retirement, his accumulated contributions would be payable to him upon request. If the appellate court judge should die before becoming eligible to retire, and before completing 15 years of creditable service, his accumulated contributions would be paid to his duly nominated beneficiary or, if no beneficiary is nominated in writing, to his estate.
At this point it must be remembered that, in my answer to question 1, I concluded that an appellate court judge becoming a member of ERS and not electing the optional benefits of the 1971 Act would retain

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certain rights attendant to the office of superior court judge emeritus. Accordingly, assuming he had elected widows' benefits under the Superior Court Judges Retirement Fund, upon his death his widow would be eligible to receive a monthly benefit in accordance with Ga. Code Ann. 24-2610a.1 (c). Additionally, it appears that if an appellate court judge electing ERS membership completes 15 years of creditable service prior to his death, not only would his widow receive the widows' benefits provided under the Superior Court Judges Retirement Fund, but, also, the judge's beneficiary would be entitled to certain death benefits under the general ERS statutes. Ga. Code Ann. 40-2505 (3) and (4). [Although Ga. Code Ann. 40-2505 (7) speaks in terms of 15 years of creditable service, the actual required creditable service for death benefits is 13 years and 4 months under the provisions of Ga. Code Ann. 40-2505 (4) (f).]
With regard to an appellate court judge who elects the optional benefits under the 1971 Act, Ga. Code Ann. 40-2535 (7) states that should the judge die without receiving benefits under the Act and without being survived by a widow eligible to receive such benefits, his accumulated contributions would be paid without interest to his estate. Although the 1971 Act is silent on other circumstances of contribution refunds, it appears, in my judgment, inimical to the philosophy of retirement system law that a refund of contributions would not be allowed in cases other than death. It is my opinion that should an appellate court judge electing the benefits of the 1971 Act leave the appellate bench by any reason other than death, and is not eligible for retirement benefits, his accumulated contributions should be refunded to him. My opinion on this issue is buttressed by Ga. Code Ann. 40-2535 (9) which provides the only statutory circumstance under which contributions are forfeited. That circumstance arises if the appellate court judge fails to resign his office as such on or before the day he attains age 70. In that event, all contributions made by him are, under the statute, forfeited.
(4) Does the term of office as used in [Ga. Code Ann. 40-2535 (3)] apply to a full six-year term or would the selection have to be made within 60 days after appointment or election of the unexpired term of his predecessor?
Your fourth question, as posed, presents the interesting question of whether the General Assembly, in using the words "term of office," meant the qualification and commencement of official duties of the appellate court judge or, alternatively, the first full term to which the appellate court judge is, in his own name, elected. As you have pointed out, Ga. Code Ann. 40-2535 (3) requires that, as a condition of eligibility for the benefits provided in the 1971 Act, an appellate court judge shall tender to the Board of Trustees of ERS, within 60 days

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after the commencement of his "term of office," a written notice stating he has elected to accept the 1971 Act benefits.
I am aware of the case of Hooper v. Almand, 196 Ga. 52 (1943), and its technical construction of the word "term" as used in conjunction with the holding of office by a superior court judge. There are other cases which tend to indicate a similar, technical construction.
The clear thrust of Ga. Code Ann. 40-2535 (3) seeks to mandate that an appellate court judge elect either general ERS retirement coverage or the special benefits provided by the 1971 Act within a reasonable time after the assumption of a seat on either appellate court bench. This is manifestly necessary in order for the ERS' Board of Trustees to know under which retirement program the appellate court judge wishes to make contributions and to plan, actuarily, for the impact of the judge's membership in either program. This interpretation is supported by Ga. Code Ann. 40-2535 (4) which requires the deduction of 7.5 percent of the appellate court judge's earnable compensation for each pay period or part thereof after the date of his written notice electing benefits under the 1971 Act.
The appellate court judge will be accumulating service credit toward retirement under the 1971 Act from the moment he assumes a position on the appellate court bench. Op. Att'y Gen. U74-101. Because of that, it is essential that the election be made within 60 days after the appellate court judge qualifies and assumes the position and duties of his office. To hold otherwise would allow an appellate court judge to accumulate service credit under the 1971 Act without making the required, equivalent contributions. In my view, the General Assembly did not intend such a result.
The goal of statutory interpretation is always the ascertainment of the General Assembly's intent in enacting any specific statute. Ga. Code 102-102 (9); Thacker v. Morris, 196 Ga. 167 (1943). Based on my reading of the language of Ga. Code Ann. 40-2535 (3) and (4), I am persuaded to the opinion that the written notice must be tendered by the appellate court judge to the board of trustees within 60 days after the judge qualifies and assumes the duties attendant to his office on either appellate court.
(5) Would the fact that a judge had actually been appointed a judge of the superior court emeritus prevent a transfer of creditable time accrued under the Emeritus System to the Appellate Judge's Retirement System created by section 40-2535?
Georgia Code Ann. 40-2535 (8) provides that an appellate court judge who has accrued creditable service under ERS may convert such service to service credit under the 1971 Act on the basis of two years of creditable service under ERS being equivalent to one year of service credit under the 1971 Act. Also, creditable service as an appellate

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court judge prior to the 1971 Act is convertible on an equal-time basis (one year for one year). There is no statutory authorization for the transfer of creditable service accrued under the Emeritus Act to the retirement program established by Ga. Code Ann. 40-2535.
(6) Is service as a superior court judge under the Emeritus System transferable under this section?
No. There is no authorization for the transfer of creditable service as a superior court judge to the retirement program established by Ga. Code Ann. 40-2535.
(7) Is service as solicitor general or district attorney under this system transferable under this section?
For the same reasons given in my answers to questions 5 and 6, there is no provision under Ga. Code Ann. 40-2535 which would allow the transfer of creditable service accrued as a solicitor general or district attorney.
(8) Would a judge who has served as both solicitor and judge of the superior court and made contributions under the Emeritus System be entitled to credit on a year for year basis under the Appellate Retirement System provided under section 40-2535 to a maximum of five years each as judge and solicitor?
Again, for the same reasons as given in my answers to the previous three questions, service as a solicitor general, district attorney or as a superior court judge is not transferable to the retirement program created by Ga. Code Ann. 40-2535. However, if a superior court judge becoming an appellate court judge elects coverage under the general ERS retirement program, rather than the special 1971 Act program, Ga. Code Ann. 40-2504 (1) (b) would allow service performed as a judge or solicitor of a court of record to be creditable as prior service year for year not to exceed five years for each type of service.
This would mean that accrued creditable service as a solicitor general, district attorney or superior court judge would constitute service for which an appellate court judge could obtain credit under the general ERS statutes. Whether an appellate court judge could obtain credit for years of service as a solicitor or judge of a court other than the superior court would depend on whether that court was a court of record. See, e.g., Crosby v. Dixie Metal Company, 227 Ga. 541 (1971); DeKalb County v. Deason, 221 Ga. 237 (1965). However, allow me to reiterate that this service would only be creditable, within the statutory parameters, to an appellate court judge who became a regular member of ERS rather than electing the optional benefits provided by the 1971 Act.

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UNOFFICIAL OPINION U76-10

To: First Assistant City Attorney, City of Atlanta

March 19, 1976

Re: I can find no compelling reason to disagree with the opinion of the Atlanta City Attorney that Ga. Laws 1974, p. 2665, which established and funded the office of ombudsman for the City of Atlanta by local Act, is not valid for the reason that it conflicts with the Municipal Home Rule Act of 1965, as amended.

By letter of February 10, 1976, you have inquired as to whether Ga. Laws 1974, p. 2665, an Act amending the charter of the City of Atlanta to create the office of ombudsman, conflicts with general law and is therefore invalid under Article I, Section IV, Paragraph I of the Constitution of the State of Georgia.
Article I, Section IV, Paragraph I of the Constitution (Ga. Code Ann. 2-401) provides that:
" ... no special law shall be enacted in any case for which provision has been made by an existing general law."
Georgia Laws 1974, p. 2665, is a special law, in that it does not apply uniformly to the state as a whole. Notice of the law as local legislation was published by its sponsor, Representative Alexander of the 38th District, and on behalf of the City of Atlanta by Henry L. Bowden, Atlanta City Attorney.
The Municipal Home Rule Act of 1965, Ga. Laws 1965, p. 298, as amended, particularly by Ga. Laws 1966, p. 296, Ga. Laws 1970, p. 346, Ga. Laws 1972, p. 820, Ga. Laws 1973, p. 778, Ga. Laws 1974, p. 195, and Ga. Laws 1975, p. 28 (Ga. Code Ann. 69-1015 to 69-1021) provides that incorporated municipalities of this state have the legislative power to adopt clearly reasonable ordinances, resolutions and regulations relating to their property, affairs and local government. Georgia Code Ann. 69-1017, 69-1018. This power, which includes the power to amend the city charter (Ga. Code Ann. 69-1017 (b)), is subject to the Constitution and the charter, and is limited to areas not preempted by general law. Georgia Code Ann. 69-1017. Certain enumerated matters, including eminent domain and criminal law, are in general also outside the legislative power of municipalities. Georgia Code Ann. 69-1018.
Creation of the office of ombudsman appears to fall within the power of the City of Atlanta. First, Ga. Code Ann. 69-1017 is a general grant of power to a municipality to adopt ordinances relating to its affairs and to local government. Second, Ga. Laws 1962, p. 140, as

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amended (Ga. Code Ann. 69-310), provides in pertinent part as follows:
"In addition to the powers it may now have, the governing body of any incorporated municipality shall have the following powers, under this law [sections 69-309 through 69-316], relating to the administration of municipal government:
"(a) The power to establish municipal offices, agencies and employments ..."
Finally, Ga. Laws 1972, p. 820, states that the grant of power cited above is cumulative of the grant of power made by Ga. Laws 1965, p. 298, as amended.
From an examination of the powers and duties given to the ombudsman agency by Ga. Laws 1974, p. 2665, it appears that the agency is a part of the administration of the municipal government of the City of Atlanta. The duty of the ombudsman is to investigate, on complaint or on his own motion, any administrative act of any administrative agency. He can obtain information, records and documents, and can undertake, participate in or cooperate in general studies or inquiries, all for the purpose of enhancing knowledge about or improving the functioning of local government. He is particularly required to address himself to municipal governmental acts which are contrary to law, are unreasonable, or unfair, inefficiently performed or otherwise objectionable, and may also concern himself with strengthening procedures and practices which lessen the risk that objectionable administrative acts will occur. The function of the agency is to make recommendations, publish conclusions and suggestions and to make reports, all dealing with the functions of municipal government.
The conflict between Ga. Laws 1974, p. 2665, and the prior general laws respecting municipalities (Ga. Laws 1962, p. 140 and Ga. Laws 1965, p. 298, as amended) arises from the statement of intent contained in Ga. Laws 1972, p. 820 (Code 69-1021):
"It is hereby declared to be the intention of the General Assembly that the provisions of this law [ 69-1015 through 69-1021] and the provisions of 69-309 through 69-316 granting to incorporated municipalities of this State certain basic powers, are general laws within the meaning of Article I, Section IV, Paragraph I of the Constitution, and no local or special laws shall be enacted on subject matters over which municipalities are authorized to act pursuant to said sections. Any provision of any municipal charter heretofore enacted covering subject matters over which municipalities are authorized to act pursuant to said section, shall be amended, modified, superseded or repealed only in accordance with subsection (b) of 69-1017."

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That the General Assembly can validly make an exclusive general delegation of legislative authority to municipalities, and thereby prohibit itself from further exercise of such legislative authority on a local basis, is suggested by Lee v. City of Jesup, 222 Ga. 530 (1966), and Jackson v. Inman, 232 Ga. 566 (1974). In Lee the court held that the General Assembly had power to annex territories to a municipality by local law, but apparently based its decision on an express reservation of power in the Municipal Home Rule Act of 1965. There is no such reservation of power covering creation of the office of ombudsman. In Jackson the court upheld local legislation creating a new charter for the City of Atlanta, but based its decision on the fact that the local legislation in part involved matters outside the grant of municipal authority. Creation of the office of ombudsman, in contrast, is entirely within existing grants of authority to the City of Atlanta.
Therefore, the establishment of the office of ombudsman by local or special law is arguably prohibited by Article I, Section IV, Paragraph I of the Constitution. Accordingly, I can find no compelling reason to disagree with your opinion that Ga. Laws 1974, p. 2665, is not valid and therefore does not mandate the creation and funding of the office of ombudsman.

UNOFFICIAL OPINION U76-11

To: Chairman, Judicial Council of Georgia

March 22, 1976

Re: Local law and general laws of local application providing compensation to court reporters.

This is written in response to your recent request for an opinion from this office on several questions arising from the new court reporters Act, Ga. Laws 1975, p. 852 (Ga. Code Ann. 81-1602.1). Your first question appears to be whether or not local laws and general laws of local application which provide extraordinary compensation for court reporters in certain localities were repealed by Ga. Laws 1975, p. 852. Also, if some portion of these prior enactments of local application were repealed while other portions remained in effect, what criteria determines which of the local Acts are still valid. Also, you ask whether or not Ga. Laws 1975, p. 852, gives the Judicial Council of Georgia the authority to promulgate rules and regulations which would allow local governing authorities to pay a supplement in addition to the minimum per diem otherwise provided by the rules and regulations promulgated by the Judicial Council under authority of the said Act. These questions will be examined in the order in which they are set out here.

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Before addressing your specific questions several general principles concerning statutory construction and the relationship of general and local legislation should be noted. First, statutes must be viewed in such a manner as to effectuate the legislative intent. Sharpe v. Lowe, 214 Ga. 513 (1959); Ga. Code 102-102 (9). Also, the old law, the evil, and the remedy must be looked to in construing a new statute. Gazan v. Heery, 183 Ga. 30 (1936). General principles have been furnished by the courts in aiding us at arriving at the legislative intent. In Davis v. Dougherty County, 116 Ga. 491 (1902), it was held that a general law will not be construed as to repeal an existing particular or special law, unless it is plainly manifest from the terms of the general law that such was the intention of the law making body. Additionally, in Hammond v. State, 10 Ga. App. 143 (1911), it was held that if the general law was intended to be exhaustive on a particular subject, a subject also covered by a prior local Act, then the local or special law is repealed by implication. Also, in Pausch v. Guerrard, 67 Ga. 319 (1881), it was held that while ordinarily a general law does not repeal a prior local law, unless the latter be specially named or necessarily embraced in the terms used, however, when it is apparent from the Act itself that it was intended to embrace the local law, the latter will be held to be modified or repealed as necessary.
In examining your specific questions, keeping in mind the above principles of construction, it is necessary to determine the "evil" which the legislature sought to remedy by the enactment of Ga. Laws 1975, p. 852. It is suggested that the "evil" was the lack of uniformity as to charges made by court reporters in various parts of the state to parties and their attorneys in legal actions. Another "evil" would be the lack of uniformity in the work product of the court reporters which was furnished to parties and their attorneys. Therefore, it would seem apparent that the remedy provided Ga. Laws 1975, p. 852, was to require that the Judicial Council provide a uniform rate to be charged parties and their attorneys throughout the state by court reporters. However, it does not appear that the legislature intended to cut off supplements being paid to court reporters by various governmental units. Ga. Laws 1975, pp. 852, 853, in Section 2A (a) (iii), provides that the Judicial Council shall provide by rule and regulation for a minimum per diem fee, "which fees may be supplemented by the various counties within the circuits to which such court reporters are assigned." Thus, clearly the General Assembly contemplated that some counties would supplement the minimum per diem fees provided by the Judicial Council. With the above rules of construction in mind, it is my unofficial opinion that prior local laws and general laws of local application which provided that a court reporter could charge a party or attorney for that party a fee different from those fees authorized by rules and regulations of the Judicial Council under authority of Ga. Laws 1975, p.

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852, are repealed by implication to the extent that such conflicts exist. See Hammond v. State, supra, and Pausch v. Guerrard, supra. However, to the extent that such local laws and general laws of local application provide for extraordinary compensation to court reporters to be paid by governmental units, the same are valid.
Your second question asks whether or not the Judicial Council has the authority to promulgate rules and regulations which would allow local governing authorities to pay a supplement in addition to the minimum per diem otherwise provided. It is my unofficial opinion that the Judicial Council has such authority. See Ga. Laws 1975, pp. 852, 853, Section 2A (a) (iii).

UNOFFICIAL OPINION U76-12

To: Clerk of Superior Court, Camden County

March 26, 1976

Re: The special $1 fee received by the Clerk of the Superior Court of Camden County in cases involving violations of game and fish laws is to be accounted to and paid over to the county treasury.

This is in response to your request for an opinion concerning disposition of the special $1 fee received by you as Clerk of the Superior Court of Camden County in cases involving violations of game and fish laws.
Two statutes have a bearing on this matter. Georgia Laws 1955, pp. 483, 491 (Ga. Code Ann. 45-117), in pertinent part provides the following:
"The proceeds from all fines and forfeitures arising from the violation of the wildlife laws, rules and regulations shall be used, except as otherwise provided herein, first, to pay the proper officers of the trial court as prescribed by law. The money remaining after said officers have been compensated shall be remitted promptly by the clerk of the court in which the case is disposed of to the county treasurer of the county in which said fine is assessed, who shall deposit said fund in the general fund of the county, but to be allocated to the said county school board for school purposes. The clerk of the court in which each case is disposed, shall promptly make a written report to the Director of Game and Fish, showing the disposition of each case; and for making each report he shall be entitled to an additional fee of one dollar in each case, to be added to the cost allowed by law against the defendant, to be retained by said clerk as his special compensation for making such report."

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Georgia Laws 1957, pp. 2307, 2308, in pertinent part provides the following:
"Section 1. The sheriff and the clerk of the superior court and the ordinary of Camden County shall be paid a salary in lieu of all fees, fines, forfeitures, percentages, penalties, allowances and all other perquisites of whatever kind which are now or may hereafter be allowed by law to be received or collected as compensation for services by any of said officials or their deputies, including compensation received or collected by such officials or their deputies for serving as bailiff or as ex officio officer by virtue of their respective office. The compensation herein provided shall be paid monthly from the general funds of Camden County."
* * *
"Section 5. All fees, fines, forfeitures, percentages, penalties, allowances and all other perquisites of whatever kind which are now or may hereafter be allowed by law to be received or collected as compensation for services, in any capacity, by any of the said officials or their deputies, including compensation received or collected by such officials or their deputies for serving as bailiff, shall be received and diligently collected by all of said officials and each of them for the sole use of all such counties and shall be paid as public moneys belonging to such counties and accounted for and paid over to the county treasury not later than the tenth day of each month."
Your request points out that the fee is referred to as "special compensation" in the fish and game law. The purpose of this characterization is unclear, but it seems likely that it was intended to distinguish the fee, which was to be retained by the clerk, from the fines and forfeitures which were to be remitted by the clerk to the county treasurer.
In any event, there is no basis for concluding that the reference to the fee as "special compensation" was intended to modify the application of later legislation, including the above-cited 1957 local Act.
The $1 fee is, like other fees received by court clerks, paid for the performance of duties imposed by law. It is, therefore, on its face one of the items of compensation which, according to the 1957 local Act, are to be paid over to the county treasury. Indeed, the whole purpose of the 1957local Act was to substitute a salary for the fees which would have otherwise been retained by the clerk. If the General Assembly had intended that the $1 fee not be remitted to the county treasurer, it would have included a specific exception, or a class exception covering this and similar fees. No such exception was made, and the local Act in fact states that all clerks' fees are to be remitted to the county treasurer.

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Accordingly, it is my unofficial opinion that the special $1 fee received by you as Clerk of the Superior Court of Camden County, in cases involving violations of game and fish laws, is to be accounted for and paid over to the county treasury.

UNOFFICIAL OPINION U76-13

To: Chairman, Burke County Election Board

March 26, 1976

Re: No provision of the Georgia Election Code (Ga. Code Ann. Title 34) prohibits an elected official of a municipality from serving as a poll officer in a state or national election.

This is in response to your request for an opinion on whether any provision of the Georgia Election Code (Ga. Code Ann. Title 34; Ga. Laws 1964, Extra. Sess., p. 26 et seq.) prohibits an elected official of a municipality from serving as a poll officer in a state or national election. This response necessarily deals with poll managers, since poll managers are, according to Ga. Code Ann. 34-103 (v), included within the definition of "poll officers."
I have examined the provisions of the Georgia Election Code and I found no provision which prohibits an elected official of a municipality from serving as a poll officer in a state or national election.
Georgia Code Ann. 34-503, which states the qualifications for poll officers, provides that:
"No poll officer shall be eligible to any nomination or public office to be voted for at a primary or election at which he shall serve."
The section does not disqualify any person on the grounds that he holds municipal office at the time of the election.
Accordingly, it is my unofficial opinion that no provision of the Georgia Election Code prohibits an elected official of a municipality from serving as a poll officer in a state or national election.

UNOFFICIAL OPINION U76-14

To: Judge of the Probate Court

March 26, 1976

Re: Failure of United States Justice Department to approve change in election procedures leaves prior law in effect.

This is in reply to your request for advice on the proper course which you should follow with respect to the election of the Harris County School Superintendent and the Harris County School Board.

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According to your letter, Ga. Laws 1975, p. 2960, was approved by the voters of Harris County in a referendum required by that statute. That statute, as permitted by Ga. Const., Art. VIII, Sec. V, Par. II (Ga. Code Ann. 2-6802), and Art. VIII, Sec. VI, Par. II (Ga. Code Ann. 2-6902), provided that upon approval by the voters, the method of selecting the school board would be changed from appointment by the grand jury to election by the people of Harris County and the method of selection of the school superintendent would be changed from election by the people to appointment by the elected school board. According to your letter, the United States Department of Justice thereafter interposed an objection to the 1975 statute under the Voting Rights Act of 1965. 42 U.S.C. 1973 (c). You ask whether you should nevertheless proceed in accordance with the 1975 statute.
The objection by the Justice Department had the substantive effect of negating the 1975 statute in its entirety and leaving in effect the prior law, Ga. Const., Art. VIII, Sec. V, Par. I (Ga. Code Ann. 2-6801) and Art. VIII, Sec. VI, Par. I (Ga. Code Ann. 2-6901), which provides for appointment of the county school board by the grand jury and election of the school superintendent by the people. Pitts v. Busbee, 511 F.2d 126 (1975). It is thus my opinion that you should not proceed with the election procedure that would have been required under the 1975 statute but that the grand jury should continue to appoint the members of the county school board in accordance with prior law and the county school superintendent should be elected by the people in accordance with prior law.

UNOFFICIAL OPINION U76-15

To: Judge, Clayton County Superior Court

March 31, 1976

Re: The exclusive authority of superior courts over matters of adoption, including incidental termination of parental rights, has not been diminished by enactment of the Juvenile Court Code or the Interstate Compact on Juveniles.

This will respond to your recent request for my opinion whether, since the adoption of the Interstate Compact on Juveniles and the adoption of the new Juvenile Court Code, the superior courts of the various counties still have authority to grant approval or denial in matters of adoption which involve the termination of the parental rights of one or both parents of a minor child when the petition for adoption is filed in superior court. In addition, you have asked to what extent, if any, does the Interstate Compact on Juveniles and the new Juvenile

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Court Code affect the jurisdiction and authority of the superior courts in matters of adoption originating in superior court.
With respect to the impact of the Juvenile Court Code (Ga. Code Ann. Title 24A; Ga. Laws 1971, p. 709) on the authority of superior courts in matters of adoption, including the authority of superior courts to terminate parental rights incident to an adoption proceeding, the relevant Code sections are Ga. Code Ann. 24A-301 and 74-414.
Georgia Code Ann. 24A-301 (a) in pertinent part provides the following:
"The [juvenile] court shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action:
***
"(2) Involving any proceedings;
***
"(B) under the Interstate Compact on Juveniles [Chapter 99-34], or any comparable law, if enacted or adopted in Georgia;
" (C) for the termination of [the] legal parent-child relationship."
Georgia Code Ann. 74-414 governs what a superior court order in an adoption proceeding shall contain and in pertinent part provides the following:
"When the final adoption shall have been granted, the parents of the child shall be divested of all legal rights or obligations from them to the child or from the child to them; and the child shall be free from all obligations of any sort whatsoever to the said natural parents...." Ga. Laws 1941, pp. 300, 305; 1949, p. 1157; 1957, pp. 339, 340; 1961,p.219; 1962, pp. 524,525; 1966,pp.212, 213; 1969, p. 927; 1971, p. 403; 1975, p. 797.
Possible difficulties arise in two areas: does superior court jurisdiction over the adoption of juveniles conflict with the "exclusive original jurisdiction over juvenile matters" of the juvenile courts; and does the authority of a superior court to terminate parental rights incident to an adoption proceeding conflict with the provision that a juvenile court "shall be the sole court for initiating action ... involving any proceedings ... for the termination of the legal parent-child relationship"?
First, the jurisdiction of superior courts over adoptions does not conflict with the general grant, contained in 24A-301 (a), of 11exclusive original jurisdiction over juvenile matters" to the juvenile courts. That the scope of "juvenile matters," as that term is used in subsection (a), was intended to be limited is apparent from a consideration of sub-

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sections (b) and (c) of 24A-301, which grant to the superior courts concurrent jurisdiction over certain juvenile matters involving delinquency and custody. Additionally, 24A-302 implicitly recognizes that courts other than juvenile courts have jurisdiction to appoint guardians for children.
Second, with respect to the authority of superior courts to terminate parental rights incident to an adoption proceeding, 24A-301 and 74-414 are not inconsistent if 24A-301 is read in the light of 74-414. Naturally, the rule that statutes are to be harmonized and read consistently together whenever possible (Hines v. Wingo, 120 Ga. App. 614 (1969)) requires that 24A-301 be read in the light of 74-414.
Under 24A-301, in my opinion it is the character of the proceeding, rather than the specific items of relief granted, which determines jurisdiction. By granting an adoption a superior court does not conduct a termination of parental rights proceeding, whether or not the adoption order provides for the termination of parental rights.
Thus, the fact that juvenile courts are by law the sole courts for initiating proceedings for the termination of the legal parent-child relationship does not withdraw from other courts their existing jurisdiction over nontermination proceedings simply because they may, incidentally, involve termination of parental rights.
Accordingly, it is my unofficial opinion that the Juvenile Court Code does not affect the authority of superior courts to act in matters of adoption which incidentally result in the termination of parental rights.
You have also asked for my opinion as to the effect that the Interstate Compact on Juveniles (Ga. Code Ann. Ch. 99-34; Ga. Laws 1972, p. 784) has on the jurisdiction and authority of superior courts over matters of adoption. It is my unofficial opinion that no provision of the compact has any effect on adoption proceedings. Moreover, Article II of the compact, contained in Ga. Code Ann. 99-3402, states explicitly:
"That all remedies and procedures provided by this compact shall be in addition to and not in substitution for other rights, remedies and procedures, and shall not be in derogation of parental rights and responsibilities."
This provision makes it clear that the compact cannot affect the jurisdiction of superior courts over adoptions.
Finally, your letter asks the extent to which the grant of exclusive jurisdiction over matters of adoption to the superior courts, by 74-401 (Ga. Laws 1941, p. 300; 1956, pp. 695, 696),is qualified by "such jurisdiction as may be granted to the juvenile courts." Preliminarily, I would note that this language simply permits the granting of jurisdiction over adoption proceedings to the juvenile courts, and does not in and of itself make any such grant. Furthermore, since this qualification was added by Ga. Laws 1956, pp. 695, 696, its presence does not imply

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that the Juvenile Court Code, which was enacted in 1971, or the Interstate Compact on Juveniles, which was enacted in 1972, grants jurisdiction over adoption proceedings to the juvenile courts. I have reviewed the Juvenile Court Code and the Interstate Compact on Juveniles and it is my unofficial opinion that neither the code nor the compact grants jurisdiction over adoptions to the juvenile courts.

UNOFFICIAL OPINION U76-16

To: City Attorney

April 19, 1976

Re: More than one question may be submitted in a special election under Ga. Code Title 34A absent specific limitations otherwise imposed.

This is in reply to your request for an unofficial opinion as to whether in a special election governed by the City Municipal Election Code, Ga. Code Ann. Title 34A (Ga. Laws 1968, p. 885 et seq.), more than one question may be presented to the voters.
It is my unofficial opinion that, absent specific limitations derived from the authority under which a question is to be submitted, more than one question may be presented to municipal voters in a special election properly called for that purpose.

UNOFFICIAL OPINION U76-17

To: Judge of the Probate Court

April28, 1976

Re: (1) Under Ga. Laws 1974, pp.455, 456 (Ga. Code Ann. 24-1703b), a probate judge, who by virtue of prior annual increases earns in excess of $12,000, is nevertheless entitled to an annual increase of two and one-half percent. (2) Annual salary increases for probate judges become effective on the first day of each calendar year following the calendar year served.

This is in response to your letter of March 18, 1976, in which you requested advice concerning Ga. Laws 1974, pp. 455, 456 (Ga. Code Ann. 24-1703b). Your questions concern the effective date of the annual two and one-half percent salary increase for probate judges and whether the increases apply to probate judges who by virtue of prior annual increases now earn in excess of $12,000.
The applicability of the increase provision for judges who, by virtue of prior such annual increases, now earn in excess of $12,000 has been treated in an unofficial opinion from this office. See Op. Att'y Gen. U75-99. A copy of this opinion is attached and I believe that it is

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responsive to your inquiry on that matter. I trust that the foregoing will answer your question concerning the effective date of the salary increases.
Georgia Laws 1974, pp. 455, 456 (Ga. Code Ann. 24-1703b), in pertinent part reads as follows:
"The total amounts applicable for each [probate judge] provided in sections 1 and 2 of this Act shall be increased by two and onehalf (2 ~) percent for each year in office served by any [probate judge], figured at the end of each such period of service ...."
The quoted language is clear in providing that the salary increase shall be computed on the basis of each calendar year of service within the four-year term and become effective on the first day of each calendar year following the calendar year served. This Act also provides that:
" ... The increase per year provided in this section shall not apply to any year completed prior to the effective date of this Act...." Ga. Laws 1974, pp. 455, 456 (Ga. Code Ann. 24-1703b).
Thus, it is my advice that a probate judge was entitled to an increase on January 1, following a calendar year of service completed after March 21, 1974, the effective date of the Act, and that subsequent increases would be effective on that same date each year thereafter that he continues in office.

UNOFFICIAL OPINION U76-18
To: Chairman, Judicial Qualifications Commission April 30, 1976
Re: "Of his own knowledge," as used in Ga. Code Ann. 53-206, means a judge's observation of or prior personal acquaintance with the parties enables the judge to conclude as a matter of practical certainty that the parties are of age.
This is in response to your request, dated March 27, 1976, for my opinion as to the meaning of the words "of his own knowledge," as they are used in the second sentence of Ga. Code Ann. 53-206.
Section 53-206 (amended by Ga. Laws 1976, pp. 1719, 1723) in pertinent part provides as follows:
"When the applicant claims that the parties have reached the age of majority, the judge of the probate court to whom the application is made shall satisfy himself that the applicant's contention as to their ages is true. If the judge of the probate court

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does not know of his own knowledge that both parties for whom a marriage license is sought have reached the age of majority, he shall require the applicants to furnish birth certificates, driver's licenses or baptismal certificates.... Applicants who have satisfactorily proved that they have reached the age of majority may be issued a marriage license immediately." (Emphasis added.)
I understand your request stems from a complaint that was filed with the commission some months ago. It was alleged that a judge of the probate court had married a 15-year-old boy in violation of Georgia law. In response to the commission's inquiry, the probate judge acknowledged that the boy did not prove his age by furnishing a birth certificate, a driver's license, or a baptismal certificate. He said that he based the decision to issue a license upon:
(a) the physical appearance of both of the applicants;
(b) personal conversation with both applicants;
(c) a written, sworn statement from both applicants that they were 18 years of age;
(d) copies of official blood test reports showing each applicant to be 18 years of age; and
(e) two telephone conversations with the grandmother of the female applicant stating that she (the grandmother) personally knew each of the applicants and that each had reached the age of 18.
The probate judge was not personally acquainted with the male applicant or his family and thus admittedly did not have any such personal knowledge as to the boy's age. He contends, however, that the factors enumerated in the preceding paragraph collectively comprised an adequate basis for him to conclude that he knew "of his own knowledge" that the male applicant had reached the age of majority.
In my opinion, "of his own knowledge" requires both first hand evidence and a high degree of certainty. First hand evidence in this situation would consist of either personal observation of the applicant's behavior and appearance, or prior personal acquaintance with the applicant. That knowledge requires first hand perception was recognized by the Georgia Court of Appeals in Brooks v. Sessoms, 47 Ga. App. 554 (1933), when it stated:
"In defining belief, Black's Law Dictionary says: 'The distinction between the two mental conditions [knowledge and belief] seems to be that knowledge is an assurance of a fact or proposition founded on perception by the senses, or intuition; while belief is an assurance gained by evidence, and from other persons'." 47 Ga. App. at 556-7.

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The judge in this case in fact received two pieces of first hand evidence: "the physical appearance of both of the applicants" and "personal conversation with both applicants."
With respect to the degree of certainty required, the statute specifies no standard of proof, such as "preponderance of the evidence" or "beyond a reasonable doubt." Therefore, the judge is supposed to be certain that the parties are of age. The statute does not, of course, demand absolutely infallible evidence. Even the most careful judge could be hoodwinked by an impersonation. However, it seems clear that the first hand evidence in this case was too doubtful to support the judge's conclusion. The judge's reliance on other evidence suggests that he regarded the boy's behavior and appearance as inconclusive. He would not have thought it necessary to obtain a sworn statement from a middle-aged man.
A judge may dispense with documentary proof only if he is certain, within the limits imposed by human observation and experience, that the applicants standing before him are of age. Accordingly, it is my unofficial opinion that "of his own knowledge," as used in Ga. Code Ann. 53-206, means that a judge's observation of or prior personal acquaintance with the parties enables the judge to conclude as a matter of practical certainty that the parties are of age.

UNOFFICIAL OPINION U76-19

To: Representative, District 72, Post 1

May 3, 1976

Re: Members of the Clayton County Water Authority must resign from the authority prior to assuming an elective public office.

This is in response to your request for an interpretation of that portion of Section 4A of the Act providing for the Clayton County Water Authority, which section provides in pertinent part:
"No member of the present Clayton County Water Authority shall be eligible to hold an elective public office of the State, county or a municipality unless first resigning as a member of the Authority. No person shall be eligible for future appointment to the Clayton County Water Authority who is serving in an elective public office of the State, county or a municipality." Ga. Laws 1963, pp. 2967, 2968.
Specifically, you have asked whether a present member of the authority may seek public office, and, if so, at what time a member of the authority who wishes to pursue an elective public office must resign from this body.

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The intent of the framers of Section 4A of the Act providing for the Clayton County Water Authority was to inhibit the authority's membership from simultaneously holding elective public office. The preamble to the Act which created Section 4A stated that its purpose, among others, was "to provide that no member of the Authority shall hold public office." Ga. Laws 1963, p. 2967. The above-quoted portions of Section 4A, read together with the preamble to the Act, provide a specific disqualification for continued service on the authority for those members elected to public office.
The question of the timing of a member's resignation from the authority is also settled by reference to Section 4A. The controlling requirement of the Act is that a member may not "hold" an elective public office. Accordingly, one would not be in violation of the Act until attempt was made to occupy both positions. Casey v. McElreath, 177 Ga. 35, 36 (1933); Op. Att'y Gen. 1963-65, at p. 565. As analyzed by the Supreme Court, should an individual be inhibited by constitutional or statutory provisions from election to public office, any attempted election is void. Casey v. McElreath, supra. However, in those cases where "it is the holding of two offices at the same time which is forbidden by the Constitution or the statutes, a statutory incompatibility is created, similar in its effect to that of the common law, and, as in the case of the latter, it is well-settled that the acceptance of a second office of the kind prohibited operates ipso facto to absolutely vacate the first." Casey v. McElreath, supra (emphasis in original).
On the basis of the foregoing, it is my unofficial opinion that a member of the Clayton County Water Authority must resign from the authority prior to the assumption of an elective public office.

UNOFFICIAL OPINION U76-20

To: Judge, Probate Court

May 25, 1976

Re: Section 5 of Ga. Laws 1949, p. 427, as amended, is subject to a construction that the designation on the ballot of any name other than the name of the candidate for the office of sheriff is not required; it is subject also to another construction that an election is required for the office of chief deputy at the same time but separate from the election for the office of sheriff.

This is in reply to your request for my unofficial opinion on a proper interpretation of Section 5 of Ga. Laws 1949, p. 427, as amended, which designates the office of Chief Deputy Sheriff for Cobb County.

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As originally adopted, Section 5 provided:
"[T]he Sheriff of Cobb County shall have one Chief Deputy whose salary shall be $4,800.00 per annum to be paid monthly from the funds in the county treasury. Said Chief Deputy shall offer for said office and be elected to same at the same time as the said Sheriff offers for office and is elected." Ga. Laws 1949, pp. 427, 428, Section 5.
Similar provision was made for a chief deputy to the clerk of the superior court. Id. Section 4.
Prior to that Act becoming effective for the terms of office beginning January 1, 1953 (see Ga. Laws 1949, pp. 427, 429, Section 7) the General Assembly, apparently recognizing the obvious practical and perhaps legal error (Ga. Const., Art. I, Sec. IV, Par. I (Ga. Code Ann. 2-401)) of those provisions, amended the 1949 Act. Section 2 of Ga. Laws 1951, pp. 2279, 2281, provided in pertinent part:
"[T]he said Act of 1949 is further amended by striking from Section 5 the words 'Said chief deputy shall offer for said office and be elected to same ...' and inserting in lieu thereof the words 'Any candidate for the office of Sheriff of Cobb County shall on the date of his qualifications for such office in either a primary or general election certify to the Ordinary of Cobb County the name of the person he shall appoint as his chief deputy in the event he is elected to the office of sheriff and the person so named and certified by the successful candidate for such office shall serve as the chief deputy for the term for which he was so named....' "
There follows a repetition of Section 5 of the 1949 Act as amended. That change more nearly conforms to general law. Ga. Code (1933) 24-2811, but see Beaty v. Burch, 43 Ga. App. 832 (1931). A similar change was made in the manner of selection of the chief deputy to the clerk of the superior court.
Unfortunately, during the very next session, the General Assembly again amended the 1949 Act for the stated (but not accurately so) purpose of altering the salary of the chief deputy. After stating in the title the purpose and in the body the change in Section 5 which was made, the General Assembly repeated Section 5 "when so amended" and in doing so apparently overlooked the 1951 amendment to the manner of selection and employed the language originally utilized in the 1949 statute. The General Assembly made no specific or general mention in the title that it intended otherwise to alter the 1949 Act as amended in 1951 with respect to the manner of selection.
Also unfortunately, every amendment since 1952 has utilized the language of Section 5 set forth in the 1952 amendment (Ga. Laws 1952, p. 2529), but each has also retained the 1951 amendment to Section

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4 of the 1949 Act relating to the chief deputy and the clerk of the superior court.
To further confuse the issue it is my understanding that except for occasional designation on the ballot the name of the chief deputy under the name of the candidate for office of chief deputy, the provision for the election of a chief deputy has not been implemented in any of the five elections which have taken place in the 24 years the language erroneously incorporated by the 1952 amendment has existed, even though it has been repeated by the General Assembly as law at least six times.
If this opinion had been asked in 1952 or within a reasonable time thereafter, the then Attorney General probably would have concluded that the courts would determine that the 1952 amendment was effective, as a matter of interpretation, to resurrect the language which had been stricken from the 1949 Act by the 1951 amendment. See Atlanta Metallic Casket Co. v. Mosby Truck Service, Inc., 107 Ga. App. 677 (1963). Whether that amendment would have been entirely effective would have presented different questions and probably a negative response to those questions in view of Ga. Const., Art. III, Sec. VII, Par. VIII (Ga. Code Ann. 2-1908) and Art. I, Sec. IV, Par. I (Ga. Code Ann. 2-401).
As time has passed, however, the certainty of a negative response to the question raised by one constitutional provision, Art. III, Sec. VII, Par. VIII, has diminished, but the long history of practice under that statute, and the other constitutional question posed by Art. I, Sec. IV, Par. I, concurrently tend to reduce the certainty with which the Act might have been earlier interpreted. The rule announced in Atlanta Metallic Casket Co. v. Mosby Truck Service, Inc., supra, is a rule of statutory construction, and as the court there recognized, the result has not always been certain. See, e.g., Abernathy v. Mitchell, 113 Ga. 127 (1901). In view of the patent clerical error made by Ga. Laws 1952, p. 2529, the serious constitutional issues raised if the 1952 amendment were, as a matter of interpretation, effective to revive the 1949 language, and the long-standing history of disregard of the 1952 language apparently reviving separate election of the chief deputy, it is my opinion that the courts would construe Section 5 of Ga. Laws 1949, p. 427, in a manner which recognizes the 1951 amendment, Ga. Laws 1951, p. 2279, but disregard the clerical errors initiated by Ga. Laws 1952, p. 2529, and repeated thereafter. However, see Beaty v. Burch, 43 Ga. App. 832 (1931). If this result is reached by the courts, then the 1949 Act so construed does not require, and the controlling Georgia Election Code, Ga. Code 34-1103, 34-1104, does not permit, designation on the ballot of any name other than the name of the candidate for the office of sheriff.
If, on the other hand, the courts were to disagree with my interpre-

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tation of the 1949 statute, and the original language of that statute was otherwise effective as against Ga. Const., Art. I, Sec. IV, Par. I, then it is my unofficial opinion that that language requires an election for the office of chief deputy at the same time but separate from the election for the office of sheriff.

UNOFFICIAL OPINION U76-21

To: Chairman, Board of Commissioners of Colquitt County

June 1, 1976

Re: Counties must maintain the county road system notwithstanding the fact that the area within which the road lies has been annexed by a municipality.

This is in response to your recent request for an unofficial opinion regarding the appropriate governmental entity for maintaining roads in areas of the county annexed into a municipality. It is my unofficial opinion that those roads which are on the county road system should continue to be maintained by the county.
A county road system consists of those public roads within the county, including county roads extending into any municipality within the county, which were shown on the Department of Transportation's records as part of the system on July 1, 1973, and any subsequent additions made by the county. Ga. Code Ann. 95A-201 (b). It is the county's responsibility to maintain this system. Ga. Code Ann. 95A-401 (a). [Title 95A sections are based on Ga. Laws 1973, p. 947.]
Portions of this system may extend into the corporate limits of a municipality. Ga. Code Ann. 95A-201 (b), 95A-204 (a), 95A-401 (a), and 95A-505 (b). Therefore, the mere fact that the area within which the road lies is annexed by a municipality does not remove the road from the county system. Such removal can be accomplished only by some affirmative action on the part of the governing authority of the county. Ga. Code Ann. 95A-619 (b).
A municipality is required to maintain only those roads on the municipal street system. Ga. Code Ann. 95A-502. This system consists of those public roads within the municipal limits which are not on either the State Highway System or the county road system. Ga. Code Ann. 95A-201 (c). Thus, by definition, a road cannot be on the municipal street system until it has been removed from the county road system.
Because the county is required to maintain those roads on the county road system and because public roads are not removed from the system

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by mere annexation into a municipality of the area within which the road lies, it is my unofficial opinion that the county must continue to maintain roads on the county road system which are in areas annexed into a municipality until such time as the roads are removed from the county road system by appropriate action of the governing authority of the county.

UNOFFICIAL OPINION U76-22

To: Representative, District 45

June 4, 1976

Re: The form prescribed by the Secretary of State for a candidate's nominating petition may not be altered by the candidate, and if altered is invalid; but invalid sheets of such a petition could be eliminated without affecting the validity of an otherwise valid petition.

This is in response to your recent inquiry concerning the nomination of candidates for public office by petition. Specifically, your questions are as follows:
(1) Is it necessary to use the form prepared by the Secretary of State as it is printed, or could it be amended by the candidate to include a space to indicate if the person signing would be interested in working in the candidate's campaign?
(2) If a candidate submitted petitions prepared by the Secretary of State and additional petitions of the type described above, and if the amended petitions were deemed unacceptable, would all of the petitions be invalid, or just the amended ones?
As to your first question, the petition of a candidate seeking to have his name placed on the general election ballot must comply with requirements set forth in Ga. Code 34-1010 (Ga. Laws 1970, pp. 347, 360, as amended), which provides that such a petition must be in the form prescribed by the officers with whom they are filed. Therefore, a nominating petition to be submitted to the Secretary of State must be in the form prescribed by the Secretary of State or else is erroneous as the Secretary of State is mandated not to permit the filing of a petition if it contains, inter alia, material errors or defects apparent on the face thereof. Ga. Code Ann. 34-1011 (a) (Ga. Laws 1970, pp. 347, 362). It is my unofficial opinion that the form prescribed by the Secretary of State for a candidate's nominating petition may not be altered to include space to indicate if the person signing would be interested in working in the candidate's campaign.
The answer to your second question is provided by Ga. Code 34-1011 (a), wherein is set forth the following:

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" ... The invalidity of any sheet of a nomination petition shall not affect the validity of such petition if a sufficient petition remains after eliminating such invalid sheet."
Thus, if a candidate were to submit a petition to the Secretary of State, which included sheets altered as set forth in your first question above, the invalid sheets would be eliminated without affecting the validity of the petition, provided the petition were otherwise valid.
In summary, it is my unofficial opinion that the form prescribed by the Secretary of State for the nominating petition of a candidate seeking to have his name placed on the general election ballot cannot be altered by the candidate, and that if altered sheets are included in the petition, the altered sheets would be eliminated as invalid without affecting the validity of the petition, provided the petition were otherwise valid.

UNOFFICIAL OPINION U76-23

To: Acting Probate Judge, Decatur County

June 4, 1976

Re: A candidate for a party nomination in a primary, absent a procedural rule of his party to the contrary, is not required to qualify in person.

This is in response to your recent inquiry concerning whether a candidate for a party nomination in a primary must qualify for such primary in person. For the reasons set forth herein, it is my unofficial opinion that such a candidate is not required by law to qualify in person.
The requirements for qualification for any party nomination in a primary are set forth in Ga. Code Ann. 34-1005 (Ga. Laws 1970, p. 347, as amended). Each candidate, whether qualifying by payment of a qualifying fee pursuant to the Election Code or by presentation to the party of the requisite qualifying petition, must qualify in accordance with the procedural rules of his party. I d. No mention is made in Code 34-1005 that such qualification must be in person. Further, as candidates for federal or state office desiring to have their names placed on the general election ballot may file notice of their candidacy by an agent (Ga. Code 34-1002 (b) (amended by Ga. Laws 1971, p. 602)) it does not appear that the intent of the General Assembly in enacting 34-1005 was to require in-person qualification for candidates for party nominations in primaries.
Therefore, based on the foregoing, it is my unofficial opinion that, absent a requirement to the contrary in the procedural rules of the candidate's party, a candidate for a party nomination in a primary is not required to qualify in person.

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UNOFFICIAL OPINION U76-24

To: McDuffie County Attorney

June 11, 1976

Re: A county may not repair a privately-owned driveway.

This is in reply to your inquiry, as a county attorney, regarding the propriety of a county scraping driveways for private landowners.
A private road is one "which is only open for the benefit of one or more individuals and not for the general public, or a road which lies on privately-owned land." Ga. Code of Public Transportation (Ga. Code Ann. 95A-104; Ga. Laws 1973, pp. 947, 959).
Georgia Code of Public Transportation, section 95A-1102 (Ga. Laws 1973, pp. 947, 1123) states in plain terms that it is unlawful for a county "to authorize the construction or maintenance of any private road."
In view of the foregoing, it is my opinion that a county may not lawfully scrape privately-owned driveways. The county's collection of a fee for providing this service would not, given the plain language of the statute, make the transaction lawful.

UNOFFICIAL OPINION U76-25

To: Senator, Eleventh District

June 16, 1976

Re: A former member of the Teachers Retirement System, who is now a member of the Employees Retirement System, is not entitled to any creditable service for study leave under the provisions of Ga. Laws 1976, p. 1458 (Ga. Code Ann. 32-2903 (4)), amending the Teachers Retirement System law.

This responds to your request for my opinion on the proper construction of Ga. Laws 1976, p. 1458 (hereinafter "1976 Act"), as it appertains to a member of your constituency. Such 1976 Act of the General Assembly amended the Teachers Retirement System law (Ga. Laws 1943, p. 640 et seq.; Ga. Code Ann. 32-2901 et seq.; both as amended), by changing the provisions relative to the awarding of creditable service for periods of approved study leave.
As I understand the facts, your constituent has raised the question of whether, under the provisions of the 1976 Act, he is entitled to any creditable service for time spent on study leave during 1952. You advise that this individual was a member of the Teachers Retirement System (sometimes hereinafter referred to as "TRS"), both prior to 1952 and for six continuous years subsequent to that date. However, at some point in time, this person left his service as a teacher, thereby relinquishing his membership in TRS, and became employed by the

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state, consequently becoming a member of the Employees Retirement System (sometimes hereinafter referred to as "ERS") (Ga. Code Ann. Ch. 40-25; Ga. Laws 1949, p. 138, as amended).
After carefully reviewing the provisions of the 1976 Act, I have concluded that the individual in question is not entitled to a year of creditable service for his study leave. This is based upon the fact that the 1976 Act grants credit for study leave only to one who is a member. The law governing TRS defines "member" as constituting a"... teacher included in the membership ..."of TRS. See Ga. Laws 1943, pp. 640, 641; Ga. Code Ann. 32-2901 (6); both as amended. Obviously, since your constituent is not now a member of the Teachers Retirement System, but rather is a member of the Employees Retirement System, the provisions of the 1976 Act have no applicability to him.
To summarize, it is my unofficial opinion that a former member of the Teachers Retirement System, who is now a member of the Employees Retirement System, is not entitled to any creditable service for study leave under the provisions of Ga. Laws 1976, p. 1458, amending the Teachers Retirement System law.

UNOFFICIAL OPINION U76-26

To: Judge, Small Claims Court, Taylor County

June 17, 1976

Re: A garnishee has a right of set-off against the claim of the plaintiff in a garnishment respecting earnings of the defendant-employee, where the defendant-employee was indebted to the garnishee prior to institution of garnishment proceedings.

Your letter of April 14, 1976 requested an opinion on the question of whether or not a garnishee has a right to set off any indebtedness on the part of his employee, as against the lien of the plaintiff in garnishment, which lien arises upon service of a garnishment summons from your court.
As I understand the fact situation giving rise to the question which you are asking, a summons of garnishment was issued from your court to an employer and against a certain employee. The employer answered the summons within the statutory time period but stated that the employee was indebted to the employer and that, until the employer was paid in full, no obligation existed to withhold the garnishable amount from the employee's earnings.
Georgia Laws 1976, p. 1608; Ga. Code Ann. 46-301 (a) (House Bill No. 1371), provides as to "what is subject to garnishment." The statute reads:

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"All debts owed by the garnishee to the defendant at the time of service of summons of garnishment and all debts accruing from the garnishee to the defendant from the date of service to the date of the garnishee's answer shall be subject to process of garnishment, and no payment made by the garnishee to the defendant or to his order, or by any arrangement between the defendant and the garnishee after the date of the service of the summons of garnishment shall defeat the lien of such garnishment."
Since the above-quoted law was not signed until April 7, 1976, no direct court interpretations of the law have been rendered. However, Ga. Code Ann. 102-102 (9) provides that:
"In all interpretations, the court shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy." See generally Gazan v. Heery, 183 Ga. 30 (1) (1936); Queen v. State, 131 Ga. App. 370, 373 (4) (1974).
Since the new garnishment statute repealed a prior law, a look at the repealed law and case interpretations thereof is appropriate.
Georgia Laws 1880-1, p. 109; 1901, p. 55; 1952, p. 153 (Ga. Code Ann. 46-201, 46-203), provides in part:
"All debts owing to the defendant, and all property, money, or effects of the defendant coming into the hands of the garnishee at the date of the service of the summons of garnishment or at any time from the date of said service to the date of the garnishee's answer shall be subject to the process of garnishment....
"Whenever a summons of garnishment shall be served on any person, and such person, after the date of such service, shall become indebted to the defendant, such subsequent indebtedness immediately upon its accruing shall become subject to the lien of such garnishment, and no payments made by the garnishee to the defendant or to his order after the date of the service of the garnishment shall defeat the lien of such garnishment...."
Thus, the provisions as to what is subject to garnishment contained in the old statute and the new statute are substantially the same. In addition, both the old law and the new law provide for garnishment of employee's salaries. Ga. Code Ann. 46-203, 46-208 (old law), 46-301 (a), (c), supra (new law). Of course, garnishment of salaries or other earnings is subject to the exemptions as set forth in the Code sections cited, supra. 1

1 For a more comprehensive view of the parity of provisions between the old law and new law, see also Ga. Laws 1976, p. 1608 (Ga. Code Ann. 46-301 (b)).

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The Georgia Supreme Court has held in interpreting the applicable provisions of the old statute that:
"Generally a judgment creditor may acquire by garnishment a control over the choses in action of the defendant, and thereby in effect bring suit against his debtor's debtor. [Emphasis added.] But the situation which the garnishing plaintiff occupies in respect to the garnishee can be no better than that which the defendant occupies himself in respect to the garnishee. If the defendant, suing the garnishee, could not get a judgment against him, the garnishing plaintiff cannot get a judgment against the garnishee. The creditor may stand in his debtor's shoes by means of garnishment, but he gains no additional privileges." Singer Sewing Machine Co. v. Southern Grocery Co., 2 Ga. App. 545, 548 (1907). (Emphasis added.)
In interpreting the old law (Ga. Laws 1901, p. 55), it was further held in Mutual Reserve Life Insurance Co. v. Fowler, 2 Ga. App. 537, 540-541 (1, 2) (1907), "It is unnecessary to hold that it was not the intention of the legislature, in the passage of the act in question, to impair the obligation of existing contracts. [Emphasis added.] In the absence of an explicit expression upon the subject, the contrary would be presumed.''
The Georgia Supreme Court further held in Mutual Reserve Life Insurance Co., supra:
"As to assets in the hands of a garnishee, such garnishee is entitled to set off any and all indebtedness owed by the defendant in garnishment. The question as to whether such garnishee is or is not indebted to the defendant, or whether such garnishee has assets of such defendant in his hands, should be ascertained by a comparison of their respective claims or accounts, and the judgment should be in accordance therewith." [Citations omitted.]
* * *
"The true rule is that a garnishee, if the debtor be indebted to him, has a lien on funds coming into his hands, or future indebtedness to the debtor on his part, superior to that of the plaintiff in garnishment. He is entitled to pay himself before he is required to collect for the benefit of others; and this applies to any past indebtedness due him by the defendant." [At pp. 540-541.]
The above analysis holds whether the defendant-debtor is an employee of the garnishee or bears some other relation to him. The right of set-off exists. Singer Sewing Machine Co. v. Southern Grocery Co., supra. Aiken v. Smith, 68 Ga. App. 538 (1942); Caye and Co. v. Milledgeville Banking Co., 91 Ga. App. 664, 666 (1955); Butler v. Billups,

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101 Ga. 102 (1897); Vulcan Materials, Inc. v. Hallet al., 132 Ga. App. 145, 146 (1974).
Therefore, it is my unofficial opinion that a right of set-off exists in a garnishee-employer respecting indebtedness of the defendantemployee to the garnishee-employer as against the claim of the plaintiff in garnishment. Thus, the garnishee is entitled to pay himself from earnings accruing to his employee before paying the plaintiff in garnishment.

UNOFFICIAL OPINION U76-27

To: Representative, House District 131

June 18, 1976

Re: Wills probated in Canada may be encompassed within the provisions of Ga. Code Ann. 113-709.

This is in response to your recent request for my unofficial opinion as to whether wills which were probated in Canada are included within Ga. Code Ann. 113-709, which provides as follows:
" 113-709 Muniments of title All wills executed in another State and witnessed according to the laws of said State, which shall be hereafter probated in another State, shall constitute muniments of title for the transfer and conveyance of real property in this State to the distributees or devisees mentioned in such wills, and the same shall be admitted in evidence in this State as such muniments of title without being probated in this State, when accompanied by an exemplification of the record admitting the will to probate in another State, certified according to the provisions of section 38-627, and when said will so exemplified is recorded in the office of the clerk of the superior court of the county in which the land is situated, in the record where deeds are recorded in this State." (Ga. Laws 1908, p. 85; 1946, p. 83.)
The above-quoted Code section was originally Section 1 of Ga. Laws 1908, p. 85, which was entitled:
"An Act to quiet the title to real estate in Georgia held under foreign wills, and to make such wills muniments of title in certain cases...." (Emphasis added.)
Section 2 of the 1908 Act went on to specify that:
" ... this Act shall apply to all cases where real estate is now or shall be hereafter held or claimed under foreign wills, and to all suits which shall be brought to recover or protect real property

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in this State. . . ." Ga. Laws 1908, pp. 85, 86; Ga. Code Ann. 113-710. (Emphasis supplied.)
The 1908 Act was passed by the legislature in reaction to a ruling by the Georgia Supreme Court which dealt specifically with a will from another state in the United States. (See Chattanooga Iron and Coal Corp. v. Shaw, 157 Ga. 869, 878 (1924) for further history.) However, at the time of the passage of the 1908 Act, as now, all wills conveying property in Georgia, executed by persons residing out-of-state, whether in a foreign country or just a neighboring state, were treated as "foreign wills." (Ga. Laws 1894, p. 102; Ga. Code Ann. 113-701.) Therefore, keeping in mind the rule that statutes in pari materia are to be construed together, and harmonized whenever possible (Ryan v. Commissioners of Chatham County, 203 Ga. 730 (1948)), I see no reason to limit the effect of the 1908 Act only to wills from other states in the United States.
This interpretation is consonant with the general principles of comity espoused by the United States Supreme Court in the leading cases of Hilton v. Guyot, 159 U.S. 113 (1895) (giving prima facie effect to French judgment) and Ritchie v. McMullen, 159 U.S. 235 (1895) (giving conclusive effect to Canadian judgment). Similarly, the Georgia Supreme Court has said that if issues have been submitted and adjudicated in an apparently regular manner to a court of competent jurisdiction of a foreign country whose laws and judicial system are in harmony with those fundamental concepts of justice under the law to which we in this country are accustomed, the judgments there rendered will be by the courts of this state held to be conclusive, and rights accruing will be enforced by the courts of this state. Coulbourn v. Joseph, 195 Ga. 723, 733 (1943).
Therefore, in light of the above discussion, it is my unofficial opinion that wills probated in Canada may be encompassed within the provisions of Ga. Code Ann. 113-709.

UNOFFICIAL OPINION U76-28

To: Representative, District 70

June 23, 1976

Re: After the payment by a bondsman to the county of a final judgment on an appearance bond forfeiture, the bondsman is not entitled to a refund of the forfeiture even though he later surrenders the principal to the county authorities.

You have requested an opinion as to whether a bondsman who has made a payment to the county of a final judgment on an appearance

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bond forfeiture is entitled to a refund of the forfeiture when he later surrenders the principal to county authorities.
Art. III, Sec. VII, Par. XVIII (Ga. Code Ann. 2-1918) of the Georgia Constitution provides that the "General Assembly shall have no power to relieve principals or securities upon forfeited recognizances from the payment thereof, either before or after judgment thereon, unless the principal in the recognizance shall have been apprehended and placed in the custody of the proper officers." The Georgia Supreme Court has interpreted this section to mean the General Assembly may relieve the surety of an obligation to pay the bond forfeiture if the principal has been apprehended and placed in the custody of the proper officers. Washburn v. MacNeill, 205 Ga. 772 (1949). However, a resolution of the General Assembly that seeks to refund to the bondsman the payment of a bond forfeiture is null and void as a violation of Art. VII, Sec. I, Par. II (1) (Ga. Code Ann. 2-5402) of the Georgia Constitution ("The General Assembly shall not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association"). Washburn v. MacNeill, supra; McCook v. Long, 193 Ga. 299 (1942). Stewart v. Davis, 175 Ga. 545 (1932), reaches a different result; but both Washburn, supra, and McCook, supra, expressed disapproval of the majority opinion in Stewart, supra.
Since the General Assembly cannot via a resolution provide for a refund of an appearance bond forfeiture, the unresolved issue is whether the legislature may provide by general statute for the refund. Ga. Code Ann. 27-904 (Ga. Laws 1943, p. 282) reads in part that"... the court shall, after final judgment, relieve the sureties of the penalty of the bond upon surrender of the principal and payment of the costs." The law is clear that the bondsman is entitled to be relieved of liability after the forfeiture and prior to payment, if the bondsman surrenders the principal and pays the costs. State of Georgia v. Resolute Ins. Co., 221 Ga. 815 (1966); Troup Bonding Co. v. State, 121 Ga. App. 25 (1970); Arnold v. State of Georgia, 92 Ga. App. 647 (1955).
I am unable to locate any Georgia decision holding that Ga. Code Ann. 27-904 entitles the bondsman to a refund of his payment of a bond forfeiture if the bondsman surrenders the principal and pays the costs. When faced with this issue, the Court of Appeals held that "[a]ssuming, but not deciding [emphasis added] that appellant could recover monies already paid the sheriff under the provisions of Code 27-904, the trial judge was authorized to find that appellant [the surety] had not surrendered the principal as required by the above Code section, and accordingly, was not entitled to relief thereunder." Foster v. State, 136 Ga. App. 201 (1975).
If Ga. Code Ann. 27-904 is construed to allow bondsmen to recover payments of bond forfeitures, then the General Assembly apparently has enacted a statute conflicting with Art. III, Sec. VII, Par. XVIII

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(Ga. Code Ann. 2-1918) of the Georgia Constitution. Since laws should be construed in harmony with the Constitution, other laws, and court decisions (Thornton v. Anderson, 207 Ga. 714,718 (1951)), I conclude that Ga. Code Ann. 27-904 provides for the relieving of a bondsman's liability prior to the time that he pays the forfeiture to the county. It is my opinion that after the payment by a bondsman to the county of a final judgment on an appearance bond forfeiture, the bondsman is not entitled to a refund of the forfeiture even though he later surrenders the principal to county authorities.

UNOFFICIAL OPINION U76-29

To: District Attorney, Macon Judicial Circuit

June 24, 1976

Re: A conviction obtained prior to July 1, 1976 for the carrying of a concealed weapon in violation of Georgia Laws 1968, pp. 1249, 1323, may be used for a subsequent violation occurring after July 1, 1976, so as to treat that violation as a felony under Section 1(b) of Georgia Laws 1976, p. 1430 (SB 673).

This is in reply to your recent letter requesting an opinion as to whether Section 1 (b) of Georgia Laws 1976, p. 1430 (Ga. Code Ann. 26-2901 (b)), which punishes subsequent offenses for carrying a concealed weapon as a felony, can be invoked for a violation occurring after July 1, 1976, when the violator has a previous offense under Georgia Laws 1968, pp. 1249, 1323.
Under Georgia Laws 1968, pp. 1249, 1323, all violations for the offense of carrying a concealed weapon were treated as misdemeanors. After July 1, 1976, this will be changed since Georgia Laws 1976, p. 1430, makes subsequent violations for the carrying of a concealed weapon punishable as a felony. The thrust of your inquiry is concerned with whether the use of previous convictions for carrying a concealed weapon under the 1968 Act would be considered an ex post facto violation if violators after July 1, 1976 were disposed of in accordance with the provisions of Section 1 (b) of Georgia Laws 1976, p. 1430, which treats subsequent offenses as felonies.
The 1976 Act concerning the carrying of a concealed weapon does not make any substantive changes to the 1968 law regarding this crime. The major change for those convicted of carrying a concealed weapon after July 1, 1976 is in the area of punishment, as the 1976 Act makes subsequent violations felonies, whereas the initial violation is treated as a misdemeanor. The 1976 Act merely imposes a heavier penalty on subsequent violations but does not penalize past offenders more severely than those who commit the crime of carrying

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a concealed weapon after July 1, 1976. See Fowler v. State, 235 Ga. 535, 536, 221 S.E.2d 9 (1975). Section 1 (b) of Georgia Laws 1976, p. 1430, is aimed at repeat violators and to these individuals it imposes a stiffer penalty. The infliction of a more severe punishment upon repeaters does not amount to punishing the violator for his earlier offense, but because he has repeated his criminal activity it aggravates his position to the extent that it justifies an increased sentence upon being convicted again for the same offense. See Todd v. State, 228 Ga. 746, 187 S.E.2d 831 (1972); Tribble v. State, 168 Ga. 699 (1929). Of. Williams v. State, 138 Ga. App. 662 (Case No. 52039, decided May 17, 1976).
Based upon the foregoing, it is my unofficial opinion that the use of convictions obtained under Georgia Laws 1968, pp. 1249, 1323, so as to invoke Section 1 (b) of Georgia Laws 1976, p. 1430, is permissible, and does not create an ex post facto problem.

UNOFFICIAL OPINION U76-30

To: Chairman, Georgia Agricultural Commodities Commission for Peanuts

July 15, 1976

Re: A member of a State Agricultural Commodities Commission may simultaneously hold the office of county commissioner.

This is in reply to your letter of June 1, 1976, in which you ask for our opinion as to whether you may simultaneously serve as a member of a State Agricultural Commodities Commission and as a county commissioner.
There is, of course, no general common law prohibition of the holding of plural offices or positions in government. Under the common law rule it is only the holding of "incompatible" offices which is prohibited. See, e.g., 63 Am. Jur.2d, Public Officers and Employees, 62, 67 C.J.S. Officers, 23. Such "incompatibility" ordinarily exists where the performance of the duties of one office are inconsistent with the performance of the duties of the other, such as where one office exercises supervisory authority over the other. See, e.g., Welsch v. Wilson, 218 Ga. 843, 844 (1963); 63 Am. Jur.2d, Public Officers and Employees, 73. In the absence of any such "incompatibility" (and I am unaware of any in connection with the two positions you mention), our response to your question must proceed in light of the Supreme Court of Georgia's pronouncement in McLendon v. Everett, 205 Ga. 713 (1), that:
"The right of a citizen to hold office is the general rule, the ineligibility, the exception. A citizen may not be deprived of the right to hold office without proof of some disqualification specifically declared by the Constitution or statutory laws."

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With respect to the particular positions with which you are concerned, membership on a State Agricultural Commodities Commission is a state office or position (see "Georgia Agricultural Commodities Promotion Act"; Ga. Laws 1969, pp. 763, 770; Ga. Code Ann. 5-2908), while the office of county commissioner is quite obviously a county office. Review of relevant constitutional provisions and statutes of general state-wide application 1 reveal no impediment to the simultaneous holding of these state and county offices. Ga. Code- (1933) 89-103 and Ga. Code Ann. 69-201 (amended by Ga. Laws 1957, p. 97), which erect barriers to the holding of a plurality of county offices or municipal offices, are manifestly inapplicable to the situation of simultaneously held state and local offices; and the Attorney General has consequently opined, in the seemingly indistinguishable situation of a simultaneous holding of the state office of membership on the Board of Commissioners of the Department of Industry and Trade and the county office of county commissioner, that there was no legal barrier to the simultaneous holding of these positions or offices. See Ops. Att'y Gen. 68-14, 66-181. It would seem to follow, and is consequently my "unofficial opinion," that for this reason there is no prohibition of an individual serving on a State Agricultural Commodities Commission and as a county commissioner at the same time.

UNOFFICIAL OPINION U76-31

To: Fulton County Attorney

July 15, 1976

Re: The Fulton County Schoolteacher's Retirement System is not a retirement system to which the General Assembly appropriates funds so as to place the provisions of Ga. Laws 1976, Act 1037, within the restricted language of Ga. Const., Art. VII, Sec. I, Par. II (15); however, attention is directed to two other amendments of Ga. Const., Art. VII, Sec. I, Par. II.

Your recent letter requests an opinion on whether the Fulton County Schoolteacher's Retirement System is a system to which the General Assembly appropriates funds so as to place Act 1037 of the 1976 General Assembly within the constitutionally permissible ambit of statutes granting increases in retirement benefits to formerly retired persons. The constitutional provision about which you inquire authorizes the

1 This opinion concerns itself, of course, with applicable law of general state-wide applicability. To inquire into the possibility of a local or special law applicable to any particular county producing a contrary conclusion as to that particular county is manifestly beyond the scope of this opinion. Such purely local issues can be better resolved by local counsel (e.g., the county attorney).

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General Assembly to provide by law for the increase of retirement benefits to persons already retired:
" ... pursuant to any retirement system, annuity and benefit fund, pension system or any similar system . . . to which the General Assembly appropriates funds . ..." (Emphasis added.) Ga. Laws 1970, p. 1153 et seq., ratified November 3, 1970 (Ga. Const., Art. VII, Sec. I, Par. II (15); Ga. Code Ann. 2-5402 (15)).
Act 1037 of the 1976 General Assembly (Ga. Laws 1976, p. 3058) mandates certain cost of living increases in the retirement benefits being paid by the Fulton County System to already retired teachers and employees of the Board of Education of Fulton County. You express concern that this Act may violate the provisions of Ga. Const., Art. VII, Sec. I, Par. II (1) and (2) (Ga. Code Ann. 2-5402 (1) and (2)) by authorizing the grant of a gratuity or extra compensation to employees after their service has been rendered. Accordingly, unless Act 1037 is constitutionally authorized under the language of the above-quoted 1970 amendment, you reason that it may be invalid as it pertains to persons who retired prior to its enactment.
The Attorney General has previously addressed the question of whether the Fulton County System is a retirement system to which the General Assembly appropriates funds and has answered that question in the negative based on the authority of Carter v. Haynes, 228 Ga. 462 (1971). Op. Att'y Gen. 74-14, copy enclosed. The signal determinant is whether the Fulton County System receives a specifically allocated appropriation from the state treasury. It does not receive such an appropriation. Op. Att'y Gen. 74-14. Accordingly, to answer the specific question you pose, it is my unofficial opinion that the Fulton County System is not a retirement system to which the General Assembly appropriates funds so as to place the provisions of Ga. Laws 1976, Act 1037, within the restricted language of Ga. Const., Art. VII, Sec. I, Par. II (15) (Ga. Code Ann. 2-5402 (15)).
However, my research has revealed two other constitutional amendments, either of which merits your consideration as to whether it might form a sufficient constitutional authorization for Ga. Laws 1976, Act 1037. Your attention is directed to Ga. Const., Art. VII, Sec. I, Par. II (18) (Ga. Code Ann. 2-5402 (18)), 1 and Ga. Laws 1974, pp. 1809-11 (a constitutional amendment of local application to Fulton County). 2
These constitutional amendments should be analyzed carefully. The first allows increased retirement benefits to formerly retired "public schoolteachers." Although designed, in my judgment, to allow the extension of state "minimum" or "floor" retirement benefits from the

1 Ga. Laws 1974, pp. 1652-3, ratified November 5, 1974. 2 Ratified November 5, 1974.

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Teachers Retirement System to members of local retirement funds (see Ga. Code Ann. 32-2905 (2) (f)), its application may in fact be more pervasive. The Attorney General has previously opined, with regard to this amendment, that the term "public schoolteacher" should be interpreted to mean and include the equivalent classes of individuals (employees, perhaps, other than "classroom" teachers) retiring under local retirement funds as are included within the definition of "teacher" in Section 1 of the Teachers Retirement System Act (Ga. Code Ann. 32-2901 (5)). Op. Att'y Gen. 75-9. [Ga. Code Ann. Ch. 32-29 is based on Ga. Laws 1943, p. 640, as amended.]
Concerning the second-referenced constitutional amendment (applicable to Fulton County), please note that it authorizes the governing authority of Fulton County, rather than the General Assembly, to provide increases in retirement benefits to formerly retired employees of Fulton County.

UNOFFICIAL OPINION U76-32

To: Judge, Superior Courts, Pataula Judicial Circuit

July 20, 1976

Re: Discussion of certain membership eligibility provisions of the Superior Court Judges Retirement System Act, Ga. Laws 1976, pp. 586 to 611 (enacting Ga. Code Ann. Ch. 24-26B, and amending Chs. 24-26A, 78-13).

You have requested my opinion on the proper interpretation of several sections of the 1976 Act establishing the Superior Court Judges Retirement System (hereinafter "system" or "Retirement System"). Ga. Laws 1976, pp. 586 to 611. The questions you have raised, pertinent to your specific retirement status, will be addressed and answered essentially in the order posed.
(1) Your first question deals with what you must do in order to be included within the membership of the system.
Your eligibility for membership is specifically provided for in subsection 8 (e) of the Act, Ga. Laws 1976, at pp. 592-3. That subsection authorizes any superior court judge holding office on July 1, 1976, who was eligible for membership in the Superior Court Judges Retirement Fund of Georgia (Emeritus System) t, but who did not elect such membership, to become a member of the new Retirement System. Subsection 8 (e) requires that you make an election to become

1 Ga. Laws 1945, p. 362 et seq., Ga. Code Ann. Ch. 24-26A, both as amended.

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a member of the new system and pay to the board of trustees the employee contributions required by the Act, plus interest. The amount of contributions and interest you must pay will be discussed later.
The two conditions precedent to membership, election and payment, must be accomplished by no later than December 31, 1976. However, the Act does not require that the conditions be fulfilled simultaneously. If you prefer, it would appear you could make an election to become a member now, while deferring payment of the contributions and interest until a later date (but not later than December 31, 1976).
Additionally, the Act does not prescribe any magic language for the membership election, nor to whom the election must be made. Obviously, though, your election should be made to the board of trustees. My advice is that you send a registered letter, at any time you choose by or before December 31, 1976,2 stating that you elect to become a member of the Superior Court Judges Retirement System. Your letter should be addressed to the trustee who is the custodian of the system's records, Honorable G. W. Hogan, Director, Fiscal Division, Department of Administrative Services, Room 439, 116 Mitchell Street, S. W., Atlanta, Georgia 30334.
(2) Your second question asks, basically, what amount of employee contributions and interest you must pay to become a member of the new system.
Read literally, the provisions of the subsection which authorizes your membership, Ga. Laws 1976, at pp. 592-3 (subsection 8 (e)), require that you pay to the board of trustees the employee contributions required by the Act, plus interest at the rate of six percent per year, for each full year you have served as a superior court judge. You were appointed to the office of Superior Court Judge of the Pataula Judicial Circuit in November 1949, and have served continuously in that office to present. Consequently, beginning with your first full year of service,8 you would be required to pay the contributions required by the Act from January 1, 1950 through December 31, 1976, a total of 27 years.
However, subsection 8 (e) must be construed harmoniously with subsection 11 (b). Ostensibly conflicting sections of any Act should be construed together consistently, if possible, to give effect to each. See Williams v. General Finance Corp. of Atlanta, 98 Ga. App. 31 (1958).
2 Since the Act requires the election and contribution payment no later than December 31, 1976, it would seem prudent, to remove any doubt, to make your election and payment early enough so that they will be received by the board of trustees on or before December 31, 1976. s Subsection 8 (e) makes it quite clear that"... No service for a portion of a calendar year shall be eligible for creditable service under this subsection...."Ga. Laws 1976,
at p. 593.

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Section 11 (b) of the Act, Ga. Laws 1976, at p. 595, states that maximum retirement benefits are based on 16 years of creditable service and the attainment of age 65. When the service and age requirements are met, superior court judges are entitled to retire on a monthly benefit equal to two-thirds of their monthly state salary. Section 11 (b) reads further as follows:
"... The monthly state salary on which retirement benefits shall be based shall be the monthly State salary paid to superior court judges at the time of retirement for a judge with less than sixteen years of creditable service or the monthly State salary paid to superior court judges at the time of completion of sixteen years of creditable service for a judge with sixteen or more years of creditable service. After obtaining sixteen years of creditable service, a member shall cease making employee contributions to the Retirement Fund created by this Act." Ga. Laws 1976, at p. 595.
Section 11 (b), then, mandates that employee contributions cease after a member has obtained 16 years of creditable service. Creditable service is defined in subsection 2 (d) (2) of the Act, Ga. Laws 1976, at p. 589, to include service obtained pursuant to subsection 8 (e), which is the membership subsection applied to you. Construing subsections 8 (e), 11 (b) and 2 (d) (2) in pari materia, to give effect to each,4 it is my opinion that you are required to pay to the board, prior to December 31, 1976, the employee contributions for 16 years of service as a superior court judge, plus interest at the rate of six percent per year for each of the 16 years.
The obvious question then becomes for which 16 years of your superior court service must you pay. The Act does not require that it be the first 16 years of service, nor does it direct that it shall be the last 16 years immediately preceding payment. The Act simply does not address this question.
However, subsection 11 (b) does state clearly, as quoted earlier, that the monthly state salary on which retirement benefits shall be based shall be the monthly state salary paid to superior court judges at the time of completion of 16 years of creditable service for judges who have 16 or more years of creditable service. Accordingly, if you should pay contributions for the first 16 years of your service as a superior court judge, your monthly retirement benefit would be twothirds of the monthly state salary you were receiving in December 1965. On the other hand, were you to pay for the years 1961 through 1976, the 16 years immediately preceding membership and payment, your monthly retirement benefit would be two-thirds of the monthly state salary paid to superior court judges in December 1976.
4 See Williams v. Bear's Den, Inc., 214 Ga. 240 (1958).

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The Act requires employee contributions in the amount of seven and one-half percent of a judge's monthly state salary. Ga. Laws 1976, at p. 594 (subsection 10 (a)). Further, the Act specifies that the employee contributions you must pay to become a member shall be based on the state salary you were paid at the time the creditable service purchased was rendered. Ga. Laws 1976, at p. 593 (subsection 8 (e)).
Obviously, because of the increase in the state salary of superior court judges over the past 27 years, were you to purchase your first 16 years, your contributions would be less, but, under subsection 11 (b), your retirement benefits would be computed on your December 1965 state salary. Conversely, were you to purchase the last 16 years immediately preceding payment, your contributions would be more, but your state salary basis for retirement benefits would be that received in December 1976. It is my advice that you contact the official named in my response to your last question, infra, to determine which payment computation would be most favorable.
(3) Your third question requests me to construe Section 12 of the Act and explain its application to your situation.
Section 12 of the Act, Ga. Laws 1976, at pp. 595-6, provides for early retirement upon the attainment of age 60 and the acquisition of at least 10 years of creditable service. Early retirement benefits are a percentage of the maximum benefits provided by subsection 11 (b), derived through a fractional comparison of the number of actual creditable years of superior court service with the number 16 (the maximum number of years allowable under subsection 11 (b)). However, early retirement benefits under Section 12 may not, in any case, exceed 75 percent of the maximum retirement benefits provided in subsection 11 (b).
Based on my in pari materia construction of subsections 8 (e), 11 (b) and 2 (d) (2) of the Act (your second question), I am of the opinion you must purchase 16 years of creditable service in order to become a member of the Retirement System. Consequently, while you would be eligible for early retirement benefits by virtue of service and age,6 it would appear ill-advised to elect same since you would then be limited to 75 percent of the maximum retirement benefits.6
(4) Your last question is who is the proper official to call upon for a computation of the amount of contributions, plus interest, you must pay to the board of trustees.

& You are currently 62 years of age and, upon the requisite election and payment, you would have 16 years of creditable service. Your fractional comparison for early retirement benefits would be 16/16ths oc 100 percent. However, as noted in the text, Section 12 prohibits early retirement benefits from exceeding 75 percent of the maximum benefits.

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That official is Honorable G. W. Hogan, Director, Fiscal Division, Department of Administrative Services, Room 439, 116 Mitchell Street, S. W., Atlanta, Georgia 30334.
In closing, let me say that my consideration and examination of the Superior Court Judges Retirement System Act, together with my understanding of its legislative history, confirms that it is an Act born of deliberate and purposeful compromise and negotiation. It appears that as sections of the Act were deleted or restructured, and ameliorating sections added or substituted, ostensible specific conflicts within the overall concept of the Act became inevitable. The broad picture of this Act, therefore, contains sections which are potentially conflictim.g and do not meld together except by using the basic tenets of statutory construction. In this opinion my paramount concern has been the use of the cardinal rule of construction-the ascertainment of the General Assembly's intent in enacting the Act, after examining the Act in its entirety. See Gazan v. Heery, 183 Ga. 30 (1936).
Your letter states that, at this time, you do not wish any construction of the applicability of the Act's sections providing for surviving spouse benefits. If and when you do wish such construction, or have other questions concerning this Act, please feel free to call upon me.

UNOFFICIAL OPINION U76~33

To: Judge, Fulton County Probate Court

July 21, 1976

Re: Georgia Laws 1976, p. 1430 (SB 673).

This is in reply to your recent letter concerning the 1976 Handgun Act, Ga. Laws 1976, p. 1430 (Ga. Code Ann. 26-2901 to 26-2904), which became effective on July 1, 1976. In that letter you have asked for a definition of a publicly owned or operated building as contained in this Act, and what portions, if any, of the application to carry a handgun must be recorded.
In anwer to your first question I have only been able to find one Georgia case in which \he phrase "public building" has been defined:
"We have no doubt at all that the words 'public building,' as used in this Code section relate exclusively to buildings owned by the public as such; as, for instance, the State Capitol, courthouse, city halls and the like. These words cannot possibly refer to a church building." Collum v. State, 109 Ga. 531 (1899).
In the definition of a public building as used in Collum v. State, supra, the court was interpreting a statute which made it a crime for one to deface, destroy or injure a public building.

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Based upon this definition, department stores and convenience food establishments would not qualify as a publicly owned or operated building.
It is therefore my unofficial opinion that a publicly owned or operated building is one which houses governmental functions, and which is either owned by the government or its agency, or is leased with taxpayer money for the use by the government or one of its agencies.
Your second question concerns whether the 1976 Handgun Act requires that the application, or any part thereof, be recorded. As you have correctly pointed out, the prior law, Georgia Laws 1968, pp. 1249, 1324, provided that an individual who wished to obtain a license to carry a pistol or revolver had to give a bond with a surety approved by the ordinary of the respective county, with said bond payable to the Governor in the amount of $300. Georgia Laws 1976, pp. 1430, 1433, does not require that the applicant post a bond. Accordingly, it is my unofficial opinion that the 1976 Act does not require that any portion of the application to carry a handgun be recorded.

UNOFFICIAL OPINION U76-34

To: Judge of Superior Courts, Eastern Judicial Circuit

July 26, 1976

Re: Discussion of the retirement rights and eligibility of a superior court judge who is a member of the Employees Retirement System of Georgia and is considering membership in the 1976 Superior Court Judges Retirement System.

You have requested an opinion on your retirement rights and eligibility. You have specifically asked for my interpretation of several sections of the Acts establishing the 1976 Superior Court Judges Retirement System 1 (hereinafter "1976 Retirement System" or "1976 System") and the Employees Retirement System of Georgia 2 (hereinafter "ERS").
Simply as a matter of form, I have consolidated some of your questions, and will address and answer them in a progressional order. Since one of your questions requests my advise as to your most advantageous retirement election, I will, of necessity and thoroughness, address some issues you did not specifically raise, but which are, in my judgment, pivotal to your making an informed decision.
You advise that you are a member of ERS, acquiring membership

1 Ga. Laws 1976, pp. 586 to 611; enacting Ga. Code Ann. Ch. 24-26B, and amending
Chs. 24-26A, 78-13. s Ga. Laws 1949, p. 138 et seq., Ga. Code Ann. Ch. 40-25, both as amended.

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therein upon becoming Judge of the City Court of Savannah on April 24, 1963. Ga. Laws 1953, Nov. Sess., p. 305; Ga. Code Ann. 40-2524. According to ERS records, following the enactment of the 1968 Trial Judges and Solicitors Retirement Fund, you did not elect a membership transfer to the Trial Judges Fund, preferring to remain in ERS. Ga. Laws 1968, p. 259 et seq.; Ga. Code Ann. 78-1308 (d), 78-1317.
Subsequently, upon becoming a superior court judge on June 27, 1970, you chose again not to become a member of the Trial Judges Fund, opting instead, by letter of July 23, 1970, to remain a member of ERS as authorized by Ga. Laws 1969, pp. 829-31; Ga. Code Ann. 40-2503 (13). As of the present date, counting your service in the armed forces, you have acquired approximately 16 years and 10 months of creditable service in ERS.
(1) You ask first whether you may elect membership in the 1976 Retirement System and, if so, how this election should be made.
Your eligibility for membership is specifically provided for in subsection 8 (d) of the Act. Ga. Laws 1976, p. 592. That subsection authorizes, but does not require, any superior court judge holding office on July 1, 1976, who is a member of ERS, to become a member of the new system. To become a member under subsection 8 (d), you must, on or before December 31, 1976, make an election to become a member of the system and pay to the board of trustees the employee contributions required by the Act, plus interest of six percent per year, for each full year of service as a superior court judge.
Subsection 8(d) states plainly that " ... No service for a portion of a calendar year shall be eligible for creditable service under this subsection...." Ga. Laws 1976, pp. 586, 592; Ga. Code Ann. 24-2608b (d). Consequently, your creditable service time would begin on January 1, 1971, and you would be required to pay to the board of trustees seven and one-half percent of your state salary from that date through December 31, 1976, plus six percent interest per year. Ga. Laws 1976, at p. 594 (subsection 10 (a)). You would receive six years of creditable service for this payment.
The two conditions precedent to membership in the new system, election and payment, must be accomplished by no later than December 31, 1976. The Act does not require that the conditions be fulfilled simultaneously. If you desire, you could make the election to become a member now, while deferring payment of the contributions and interest until a later date. However, since the Act requires the election and payment no later than December 31, 1976, it would seem prudent, to remove any doubt, to make your election and payment early enough so that they will be received by the board of trustees on or before that date.
With regard to the mechanics of the election .and payment, my ad-

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vice is that you make same by registered letter. It should be addressed to the trustee who is the custodian of the system's records, Honorable G. W. Hogan, Director, Fiscal Division, Department of Administrative Services, Room 439, 116 Mitchell Street, S. W., Atlanta, Georgia 30334.
(2) Your second question asks whether you can receive credit with the new system for your years of service under ERS, including your creditable military service. Further, you ask how to effect the transfer of service and contributions from ERS to the new Retirement System.
The eligibility provision of the 1976 Act applicable to you does not provide for any transfer of ERS service to the new system. It authorizes solely that you may become a first-instance member of the 1976 Retirement System upon your election and payment for your previous service on the superior court bench. Ga. Laws 1976, pp. 586, 592 (subsection 8 (d)).
I have studied and examined the 1976 Act in its entirety and am unable to find any authority for the transfer of creditation of ERS service within the new system. Accordingly, it is my opinion that you may not receive credit under the new system for your service with ERS and that no authority exists for any such transfer of funds.3
(3) Thirdly, you ask how to effect coverage for your wife under the 1976 Retirement System.
Assuming, of course, that you elect membership in the Retirement Sy~tem, spouse's benefits coverage would be automatic. Ga. Laws 1976, pp. 597-9 (section 15). However, you have the right to reject spouse's benefits coverage in writing, on or before December 31, 1976, on a form which will be furnished by the Board of Trustees. Ga. Laws 1976, pp. 586, 597 (subsection 15 (e)).
Since your eligibility for membership is provided by subsection 8 (d), you would be required (unless you reject spouse's benefits coverage) to pay to the board an additional two and one-half percent of your state salary during the six years of superior court service for which you are eligible (1971-1976), plus interest thereon at the rate of six percent per year. Ga. Laws 1976 at p. 597 (subsection 15 (c)). This additional payment would be based on the state salary paid you at the time the service was rendered, and must be paid by or before December 31, 1976.
In summary, then, absent any written rejection, your wife would,

a The 1976 Act does not admit of any different interpretation. Its plain and clear pro-
viiions (or lack thereof) on when funds may be transferred must be accorded due meaning and effect. See Burna v. Alcala, 420 U.S. 575 (1975).

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by operation of law, receive spouse's benefits coverage. This would require a total payment by you of 10 percent of your state salary as superior court judge during the years 1971 through 1976. Ga. Laws 1976 at pp. 594-5, 597-9 (Sections 10 and 15). My answer to your first question with respect to the total amount of your contributions is hereby modified accordingly.
(4) Your next question concerns the effect of your membership in the 1976 Retirement System on your ERS group term life insurance. Also, you ask whether you could continue to participate in the State Employees Health Insurance Plan.
Should you elect membership in the 1976 Retirement System, you would be precluded from making additional contributions to ERS, and ineligible to acquire any furtherERS service. Ga. Laws 1976, at pp. 591-2 (subsection 8 (b)). Since ERS group term life insurance coverage is predicated on contributions and membership in service, you would no longer be entitled to the life insurance coverage. Ga.. Laws 1953, p. 323 et seq., Ga. Code Ann. 40-2523, both as ameuded.
However, you would retain your eligibility to participate in the State Employees Health Insurance Plan since you would continue to be an employee of the State of Georgia. Ga. Laws 1961; p. 147 et seq., Ga. Code Ann. Ch. 89-12, both as amended.
(5) Your last series of questions asks, essentially, for advice as to what would be your most advantageous decision.
The answers to the foregoing questions should provide assistance in this regard. However, your attention is also directed to several additional considerations, listed hereafter in synoptic form.
A.
By virtue of your age and creditable eervice in ERS, you currently have a right to service retirement benefits. Ga. Code Ann. 40-2505. However, should you purchase the six years of service for which you would be eligible under the new system (1971-1976), I seriously question whether you could retain those six years as creditable service for ERS benefits. It appears this would have the impermissible effect of allowing dual state retirement credit and benefits from different sources for the same specific period of time. cf. Op. Att'y Gen. 74-21. Although you would still have a right to ERS benefits, it may well be based on fewer years of service (although, certainly you should be allowed a refund from ERS for the six years in question).
B.
By reason of your age and creditable service in ERS, you are eligible for disability retirement benefits and death benefits to your des-

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ignated beneficiary. Ga. Code Ann. 40-2505 (3) and (4). The disability and death benefits would not be available to you in the event you elect membership in the 1976 System. Ga. Code Ann. 40-2505 (3).
c.
The 1976 Act mandates that a member thereunder must retire on the first day of the calendar month next succeeding that in which he attains the age of 70 years, or else forfeit his right to retirement benefits. Ga. Laws 1976, at p. 595 [subsection 11 (a)]. Since you would be eligible to purchase only six years of creditable service in the 1976 System, and would be 62 years of age at the time of membership, you could not obtain the 16 years of creditable service necessary for maximum benefits. Ga. Laws 1976, at p. 595 (subsection 11 (b)).
D.
However, you would be eligible for early retirement benefits under Section 12 of the 1976 Act upon the acquisition of at least 10 years of creditable service. Ga. Laws 1976, at pp. 595-6. You would attain eligibility for early retirement benefits on January 1, 1981 at the age of 66, assuming service on the superior court bench for four full years after 1976.
Early retirement benefits are a percentage of the maximum benefits provided by subsection 11 (b), derived through a fractional comparison of the number of actual creditable years of superior court service with the number 16 (the maximum number of years allowable). However, Section 12 early retirement benefits may not, in any case, exceed 75 percent of the maximum benefits provided in subsection 11 (b).4
E.
Also, since you would have at least four years of creditable service under the 1976 Act, you would be eligible for disability benefits under Section 13. Ga. Laws 1976, at p. 596. If you were to become permanently disabled to the extent you were unable to perform the duties of your office, you would be entitled to receive disability retirement benefits in the amount of the greater of either: (1) one-half of the maximum benefits provided in subsection 11 (b), or (2) the early retirement benefits of Section 12 (in the event you qualify for early retirement by acquiring 10 years of creditable service).
In the final analysis, as you can see, making the most advantageous decision involves a multiplicity of computations based on differing sets
4 To illustrate, should you retire on January 1, 1981, with 10 years of service, you could receive 10/16ths (5/8ths) of maximum benefits. Maximum benefits are 2/3rds of the monthly state salary paid at the time of retirement or at the time of acquisition of 16 years of service, whichever occurs :first. Ga. Laws 1976, at p. 595. Accordingly, multiplying the two fractions together, you could receive 5/12ths or 41.7% of your December 1980 state salary.

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of circumstances. In order for you to make a fully enlightened choice, it is my advice that you contact Mr. Abe Domain, Director, Employees Retirement System, 2 Northside 75, 4th Floor-Beta Building, Atlanta, Georgia 30318. Mr. Domain and his staff are well equipped to make these computations and discuss the differing sets of circumstances with you.

UNOFFICIAL OPINION U76-35

To: Representative, District 80

August 13, 1976

Re: The Small Claims Court of Monroe County is not a "county office" within the meaning of Ga. Laws 1976, p. 1522.

This is in response to your recent request concerning the meaning of the term "county offices" as used in Ga. Laws 1976, p. 1522 (Ga. Code Ann. 23-103) (hereinafter "the Act").
In determining whether the Small Claims Court of Monroe County shall be classified as a county office within the meaning of the Act, it is imperative to determine the legislative intent underlying its enactment. Barton v. Atkinson, 228 Ga. 733 (1972); Ga. Code 102-102. The Act specifically provides that it shall be the duty of the governing authority of each county to keep open the county courthouse and the county offices maintained therein during normal working hours. Clearly, the Act intended to regulate the hours of only those offices over which the governing authority of the county exercises control.
I am aware of no legislative provision which would grant to the governing authority of the county any right of control over the county courts. In fact, the Act which created the Small Claims Court of Monroe County provides that the judge of said court is to be appointed by the grand jury of Monroe County. Ga. Laws 1974, p. 3392.
Therefore, based on the foregoing, it is my unofficial opinion that the Small Claims Court of Monroe County is not a "county office" within the meaning of Ga. Laws 1976, p. 1522.

UNOFFICIAL OPINION U76-36

To: Chief Judge, Recorder's Court of DeKalb County

August 13, 1976

Re: The Recorder's Court of DeKalb County does not have jurisdiction over cases involving violation of county ordinances, including traffic regulations, when such cases arise from violations occurring on the premises of the Stone Mountain Park, nor does the Recorder's Court of DeKalb County have jurisdiction over cases involving possession of one ounce or less of marijuana.

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304

This is in reply to your recent letter asking whether the Recorder's Court of DeKalb County has jurisdiction over cases involving violation of county ordinances, including traffic regulations, as well as cases involving possession of one ounce or less of marijuana, when such cases arise out of arrests made by security officers of the Stone Mountain Memorial Association on the premises of Stone Mountain Park.
The laws of Georgia specifically provide that the Recorder's Court of DeKalb County shall have jurisdiction over offenses involving violation of county ordinances. Ga. Laws 1959, p. 3093. However, the Recorder's Court, being a county court, has jurisdiction only with respect to violation of county ordinances in those areas where the county has jurisdiction. See Hannah v. State, 97 Ga. App. 188 (1958) j Op. Att'y Gen. 67-15.
The Stone Mountain Memorial Association was created as a body corporate and politic by the General Assembly and declared to be an instrumentality of the state and a public corporation. Ga. Laws 1958, p. 61. Under such decisions as Hannah v. State, supra, and Glynn County v. Davis, 228 Ga. 588 (1972), it is clear that DeKalb County ordinances are not enforceable on state property. Thus, the Stone Mountain Memorial Association is governed by state laws, and the Recorder's Court of DeKalb County, lacking jurisdiction over cases involving violation of state laws, has no power to hear cases arising from arrests made in the park.
With respect to jurisdiction over cases involving possession of less than one ounce of marijuana, Ga. Laws 1976, pp. 1083, 1084 (Ga. Code Ann. 79A-9917), provides only that such cases may be heard by recorder's courts of any municipality. Clearly, the Recorder's Court of DeKalb County would not fall within that classification and hence would lack jurisdiction over such cases.
Therefore, based on the foregoing, it is my unofficial opinion that the Recorder's Court of DeKalb County does not have jurisdiction over cases involving violation of county ordinances, including traffic regulations, occurring within the boundaries of Stone Mountain Park, nor does the DeKalb County Recorder's Court have the power to hear cases involving possession of less than one ounce of marijuana.

UNOFFICIAL OPINION U76-37

To: Clerk, Bartow County Superior Court

August 18, 1976

Re: The sheriff's fees required at the time of the filing of a civil case are to be assessed in addition to the deposit for the clerk's fees, which can be required prior to the filing of any civil case or proceeding.

305

U76-:37

This is in response to your request for an unofficial opinion as to whether the sheriff's fees required at the time of the filing of a civil case are to be assessed in addition to the deposit for the clerk's fees, which can be required prior to the filing of any civil case or proceeding. Georgia Code Ann. 24-2727, 24-3406 (both amended by Ga. Laws 1972, p. 664); Ga. Laws 1976, p. 702 (amending Ga. Code Ann. 24-2823).
As you have noted, Code 24-2727 provides that the clerk of the superior court "shall be entitled to charge and collect" the fees enumerated in the statute, including a deposit of $20 prior to the filing of any civil case or proceeding. It is further provided by Code 24-3406 that the clerks of the superior courts "shall not be required to file any civil case or proceeding until the deposit required by section 24-2727 ... has been deposited with said clerk." The $20 deposit which can be required by the clerk is to be used in satisfaction of the various fees which accrue in the clerk's handling of a civil case, as set forth in the statute. Code 24-2727.
However, the sheriff's fees set forth in Ga. Laws 1976, p. 702, amending Ga. Code Ann. 24-282g, are in satisfaction of the sheriff's performance of tasks which are distinct and different from those required of the clerk, and, thus, the clerk's deposit should not be applied towards these costs. Therefore, in order to satisfy the requirements of Ga. Laws 1976, pp. 702, 706, that "all costs provided for under the provisions of Code section 24-2823 shall be paid at the clerk's office at the time of filing" (emphasis added), the relevant sheriff's fees should also be assessed at the time of the filing. This interpretation is buttressed by Code Ann. 24-3406 which provides that the payment of the clerk's deposit "shall not affect any Code section or Act of the General Assembly which requires a deposit in excess or in addition to the deposit of costs" for the clerk's fees. Id.
As you recognize, the assessment of the clerk's deposit of $20 and the sheriff's fees of $10 for the service of process may not be appropriate in each case. Your letter makes note of the specific exemption in Code Ann. 24-2727 for those persons who have filed an affidavit of poverty, and for those cases which are filed in behalf of the state, its agencies, or its political subdivisions. Further, inasmuch as all statutes relating to the same subject matter are to be construed together and harmonized whenever possible, the sheriff's fees which are enumerated in Ga. Laws 1976, p. 702, amending Code Ann. 24-2823, and which are required to be paid at the time of filing by the Act, should not be so assessed against persons who have filed a pauper's affidavit, nor should they be assessed in advance in those cases filed on behalf of the state, its agencies, or political subdivisions. Code Ann. 102-102 ~ 9. In addition, in those cases in which acknowledgment

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of service is filed with the complaint, assessment of the sheriff's fees for service of process would be inappropriate.
In summary, it is my unofficial opinion that the sheriff's fees set forth in Ga. Laws 1976, p. 702, amending Code Ann. 24-2823, should be paid at the clerk's office at the time of filing, if required in a particular case, and that payment of the sheriff's fees is required in addition to the deposit for the clerk's fees which is payable at the time of filing in appropriate cases.

UNOFFICIAL OPINION U76-38

To: Judge, Small Claims Court of Washington County

September 17, 1976

Re: The Clerk of the Small Claims Court of Washington County does not have the authority to issue a criminal warrant in the absence of the judge of said court.

This is in response to your recent letter asking whether the Clerk of the Small Claims Court of Washington County has the authority to sign a criminal warrant in the absence of the judge of said court.
The signing of such a warrant, in the absence of the judge, would be tantamount to the actual issuance of a warrant, which is clearly a duty to be performed by the judge. The Act which created the Small Claims Court of Washington County plainly stipulates that, whenever the judge of said court shall be unable, from absence, sickness, or other cause, to discharge any duty whatever appertaining to his office, then such duties shall be performed by the Judge of the Superior Court of Washington County or any judge of the State Court located in said county. Ga. Laws 1973, pp. 2061, 2062. I am aware of no legislative provision which would grant to the Clerk of the Small Claims Court of Washington County the authority to perform any duty appertaining to the judge of said court, including the issuance of a criminal warrant.
For the foregoing reasons, it is my unofficial opinion that the Clerk of the Small Claims Court of Washington County does not have the authority to issue or sign a criminal warrant in the absence of the judge of said court.

UNOFFICIAL OPINION U76-39

To: Judge, Atlanta Judicial Circuit

September 24, 1976

Re: Under Georgia law, the authority to approve or reject the surety on a criminal bail bond in a misdemeanor case is given by statute to the sheriff; in felony cases, that responsibility remains in the court

307

U76-39

having jurisdiction over the offense but, being a ministerial function, may be delegated by the court to a nonjudicial officer such as a sheriff.

Your letter of August 20, 1976 requested an unofficial opinion from this office on the question of who, under Georgia law, has the legal responsibility and authority to approve or reject the surety on a criminal bail bond.
An initial determination must be made of whether the admitting to bail or the granting of bail is a separate function from the taking or accepting of bail, or whether accepting bail is simply one aspect of admitting to bail. There appear to be no Georgia cases in which this particular issue has been considered, nor do any of Georgia's several statutes concerning bail address the question. In other jurisdictions, the weight of authority is that admitting to or allowing bail is a different act from taking, accepting or approving bail after its allowance. See generally, 8 C.J.S. Bail, 38 (1962). Admitting to bail is considered to be a judicial or quasi-judicial function. Allen v. United States, 386 F.2d 634 (D.C. Cir. 1967); Berkowitz v. United States, 90 F.2d 881 (8th Cir. 1937); State v. Langford, 223 S.C. 20, 73 S.E.2d 854 (1973); Lambert v. State, 151 So. 2d 675 (Fla. App. 1963). Accepting bail has generally been held to be a ministerial act capable of performance by any authorized officer. Hicks v. Commonwealth, 256 Ky. 244, 75 S.W. 2d 1086 (1937); Bottom v. People, 63 Colo. 114, 164 P. 697 (1917); Gregory v. State, 94 Ind. 384 (1883). In Gregory v. State, supra, it was said that "[a]pproving and accepting bail after it has been fixed by competent authority is a ministerial act, and may be performed by the sheriff or other ministerial officer." Id. at 388. Thus, accepting bail is generally held to be a ministerial act separate from the judicial function of admitting to bail.
It has been held that courts in Georgia possess the same powers incident to bail as did the English common law courts. Corbett v. State, 24 Ga. 391 (1858). See generally, 4 W. Blackstone, Commentaries *296-*300. Other jurisdictions have held that statutes concerning the power of the courts to admit to and accept bail are merely declaratory of the power that existed at common law, thus such statutes should not be treated as exclusive of the inherent powers of the courts. United States v. Jenkins, 176 F. 672, 677 (4th Cir. 1909). This being true, it follows that courts of this state retain their inherent common law power in matters of bail absent express statutory abrogation.
The judicial nature of the function of admitting to bail is recognized in Ga. Code Ann. 27-901 (1933), as amended by Ga. Laws 1973, p. 454, which states that only the judge of the superior court can grant bail in cases involving certain offenses named in the statute, including murder, rape and armed robbery. The statute further provides that all other offenses are bailable by the commitment court. A

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companion statute, Ga. Code 27-902 (1933), as amended by Ga. Laws 1966, p. 428, specifically authorizes sheriffs to accept bail and approve sureties in misdemeanor cases. See Op. Att'y Gen. 1957, p. 197. However, 27-901 does not address the issue of whether a sheriff can approve the surety on a criminal bail bond; it is concerned with admitting to bail, not accepting bail. Therefore, since the court retains its inherent common law power to regulate bail and the statute is silent on the question of who can accept bail, that responsibility remains with the court. In Paulk v. Sexton, 203 Ga. 82, 83, 45 S.E.2d 768, 773 (1948), the court said that "[a]n arresting officer has no authority to accept bond from one arrested under a warrant for a felony ...." However, the court in Paulk v. Sexton seems to have used the phrase "accept bond" in the sense of admitting to bail, not taking bail or approving sureties, for it added the language that the officer "should return the party arrested to the county in which the crime was alleged to have been committed, for examination before a judicial officer of that county and the fixing of bail by such officer in case of commitment." Id. (Emphasis added.) Thus, the court recognized the common law principle that sheriffs have no inherent authority in matters of bail and that admitting to bail is a judicial function. Neither do sheriffs have inherent authority to accept bail or to approve or reject sureties. Absent statutory authorization, this responsibility remains in the court having jurisdiction over the offense. However, since the approving or rejecting of sureties is part of the ministerial function of accepting bail, the court may in its discretion delegate that function to a nonjudicial officer since the inherent common law power to regulate bail is retained. Corbett v. State, 24 Ga. 391 (1858); Bottom v. People, 63 Colo. 114, 164 P. 697 (1917).
Therefore, it is my unofficial opinion that, under Georgia law, the responsibility for approving or rejecting the surety on a criminal bail bond in a felony offense remains in the court having jurisdiction over the offense but, since it is a ministerial function, it may be delegated to a nonjudicial officer such as a sheriff. The authority to approve or reject the surety in misdemeanor cases is given by statute to the
sheriff.

UNOFFICIAL OPINION U76-40

To: Senator, District 46

September 29, 1976

Re: The State Forestry Commission and component institutions of the University System of Georgia may market agricultural products produced upon the lands and premises utilized by those governmental entities.

309

U76-40

You have requested my opinion as to the legality of the sale by the State Forestry Commission and by component institutions of the University System of Georgia of agricultural products produced upon land or premises utilized by those state governmental entities. While the underlying rationales for allowing the sales by each body differ somewhat, I construe the authority possessed by each of the two entities to extend to the marketing of such agricultural products.
As the governing body of the University System of Georgia, the Board of Regents possesses extensive powers of management and control over the activities undertaken by component institutions of the University System. Art. VIII, Sec. IV, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-6701); Ga. Laws 1931, p. 7, as amended (Ga. Code Ann. 32-101 et seq.). That general authority includes the power to make such reasonable rules and regulations as are necessary for the performance of its duties and to exercise any power usually granted to such corporations, necessary to its usefulness, which is not in conflict with the Constitution and laws of this state. Ga. Laws 1931, pp. 7, 24 (Ga. Code Ann. 32-121). Previous judicial decisions have rendered clear the precept that such authority is broad and pervasive and that the exercise of authority will not be tempered unless the attendant result is patently unreasonable or there is a clear legislative proscription of the activity involved. The duties and powers " ... are broad and comprehensive, and, subject to the exercise of a wise and proper discretion, the Regents are untrammelled except by such restraints of law as are directly expressed, or necessarily implied. The legislature does not pretend to govern the system, but has entrusted this responsibility to the Board of Regents." State of Georgia v. Regents of the University System of Georgia, 179 Ga. 210, 227 (1934).
Citing just that policy, the Supreme Court of Georgia in Villyard v. Regents of the University System of Georgia, 204 Ga. 517 (1948), expressly held that institutions of the University System of Georgia may undertake incidental commercial operations reasonably related to the education, welfare, and health of the student body, the presumption being that the undertaking of such an activity is proper in the absence of any statutorily expressed preclusion of the activity. In so holding, the court decreed the operation of a commercial laundry by a University System institution to be within the authority granted to the Board of Regents and the University System of Georgia. The Villyard opinion concluded that the authority of the Board of Regents is quite broad in establishing such businesses and may be inhibited only by a forbidding statute or the unreasonableness of the business undertaken. I would consider the Villyard precedent to enable the University System to sell agricultural products produced upon its lands incidental to its operation of a program of higher education in the state. As I

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am aware of no specific statutory prohibition in this regard nor consider such an undertaking an unreasonable exercise of Regent authority, it would be my opinion that the University System may so market its products.
Your question as to the authority of the State Forestry Commission to sell agricultural products produced upon lands and premises utilized by the commission lends itself to a more direct resolution. The Georgia State Forestry Commission is impressed with the power and authority to foster, improve and encourage reforestation, to engage in research and other projects for the ascertainment and promulgation of better forestry practices, and, to that end, to manage, conserve and protect forest lands or properties belonging to or under the jurisdiction and control of any state governmental entity. Ga. Laws 1955, pp. 309, 314, as amended (Ga. Code Ann. 43-206, 43-206.1). For the purpose of fulfilling those responsibilities, the commission also has the prerogative to acquire forest land and properties as may be necessary. Ga. Laws 1955, pp. 309, 314, as amended (Ga. Code Ann. 43-207). As to the lands acquired or managed by the State Forestry Commission, the director, with the approval of the commission, is authorized to make expenditures of funds not otherwise obligated to the management, development, and full utilization of such areas, and to sell and otherwise dispose of the products from such lands. Ga. Laws 1955, pp. 309, 318 (Ga. Code Ann. 43-217). Such statutory language persuades me that the State Forestry Commission may, in discharging its duties in the management of state forest areas and in the full development and utilization of its forest properties, engage in the production of agricultural products and market same pursuant to the statutory authority hereinabove cited.
This construction of the commission's authority is consonant with the commission's broad authority to establish rules and regulations governing the use, occupancy and protection of the land and property under its control. Ga. Laws 1955, pp. 309, 319 (Ga. Code Ann. 43-218). Accordingly, the production of agricultural products on forest lands appears to me to be a reasonable exercise of that statutory authority, and the sale of such products clearly within the aegis of the director to sell and dispose of products from the lands.

UNOFFICIAL OPINION U76-41

To: President, Council of Superior Court Judges of Georgia, Southern Judicial Circuit

October 1, 1976

Re: Discussion of the manner in which certain members of the Judges Emeritus Fund may elect the spouses' benefits coverage afforded by

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Section 15 of the 1976 Act establishing the Superior Court Judges Retirement System.
[The conclusions and observations expressed in this opinion should be considered in conjunction with a later opinion issued under date of November 23, 1976 (U76-60).]
This responds to your request that I interpret a particular section of the 1976 Act establishing the Superior Court Judges Retirement System (hereinafter "1976 Judges Retirement System" or "1976 Judges System"). 1 Specifically, your question can be narrowed to what superior court judges who are members of the Superior Court Judges Retirement Fund of Georgia (Judges Emeritus Fund), 2 but who did not elect widows' benefits under the Judges Emeritus Fund, must do in order to qualify for spouses' benefits coverage under the 1976 Judges System.
Section 16 (Ga. Code Ann. 24-2616b) of the 1976 Act articulates three requirements for such coverage. A member of the Judges Emeritus Fund who has not elected widows' benefits may elect the spouses' benefits coverage afforded by Section 15 (Code 24-2615b) of the 1976 Act by:
(1) making a written election to the Board of Trustees of the 1976 Judges System by no later than December 31, 1976;
(2) paying to the board, again not later than December 31, 1976, the employee contributions at the rate specified in Section 15 of the 1976 Act (two and one-half percent of state salary), plus interest thereon of six percent per year, for all years of service as a superior court judge on the basis of the state salary paid to the superior court judge at the time the service was rendered;
(3) continuing to pay to the board the employee contributions specified in Section 15 of the 1976 Act for service as a superior court judge rendered after December 31, 1976, until such time as the judge has contributed for 16 years of creditable service for the purpose of spouses' benefits coverage pursuant to the terms of Section 15 (i) of the 1976 Act.
I recognize that there is some concern as to whether judges under the Judges Emeritus Fund who have creditable service in that fund other than actual superior court bench service (e.g., service as a district attorney, military service, etc.) may include tills "other" service toward the acquisition of spouses' benefits coverage under the 1976 Act. However, the language of Section 16 (a) (2) of the 1976 Act is
1 Ga. Laws 1976, pp. 586 to 611 (enacting Ga. Code Ann. Ch. 24-26B, and amending Chs. 24-26A, 78-13). 1 Ga. Laws 1945, p. 362 et seq., Ga. Code Ann. Ch. 24-26A, both as amended.

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clear and plain that employee contributions, plus interest, may be made by Emeritus Judges only for" ... years of service as a superior court judge...." Ga. Laws 1976, pp. 586, 599-600. In that regard, this opinion does not conflict with Op. Att'y Gen. 76-83 (July 27, 1976) since that opinion dealt with the mandatory transfer of all creditable service from the Trial Judges and Solicitors Retirement Fund 3 to the 1976 Judges System, and not with the situation presented here which is voluntary and totally at the judge's election. 4 The fact that a member of the Judges Emeritus Fund may have creditable service other than actual superior court bench service does not, in my judgment, impart any vested right to include the "other" service as creditable toward the acquisition of electoral spouses' benefits coverage under Sections 15 and 16 of the 1976 Act.

UNOFFICIAL OPINION U76-42

To: Attorney for Coffee County

October 4, 1976

Re: The Judge of the Small Claims Court of Coffee County is appointed by the Governor for a four-year term and serves in that capacity until the expiration of his term and until such time as his successor is appointed by the Governor and duly qualified.
I write in response to your request for an opinion as to the method and propriety of appointment of the Judge of the Small Claims Court of Coffee County. In your letter, you pointed out that the initial Judge of the Small Claims Court was appointed by the Governor in May of 1972, and that in July 1976 the present Governor appointed another person to be judge. You further pointed out that the initial judge has refused to vacate his office, claiming that the appointment of his successor is invalid.
The Small Claims Court of Coffee County was created by Georgia Laws 1972, p. 2590. The pertinent provisions of that Act state: "On or before the effective date of this Act, the Governor shall appoint a duly qualified person to serve as judge of said court for a term of office of four years and until his successor is duly appointed and qualified." Ga. Laws 1972, pp. 2590 to 2601. Examination of the remainder of the Act provides no other information as to the means or method of filling the judgeship of the Small Claims Court of Coffee County.
In examining the above provisions of the Act, I find that it is clear that the General Assembly intended to provide that the Judge of the

a Ga. Laws 1968, p. 259 et seq., Ga. Code Ann. Ch. 78-13. 4 At this juncture it should be noted that the opportunity for members of the Judges
Emeritus Fund to elect widows' benefits has been provided by the General Assembly
on two separate occasions. Ga. Laws 1968, pp. 275, 276 and Ga. Laws 1970, pp. 249, 250 (Ga. Code Ann. 24-2610a.1).

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Small Claims Court of Coffee County was (1) to be appointed to office and (2) that the term for the office was to be four years. It is likewise quite clear that the Governor was to be the appointing authority for the initial judge. The Act is less than clear as to who is to appoint successor judges.
I am unaware of any general statutory or constitutional powers which invests some particular official with a general power of appointment of successor small claims court judges, should a judgeship become vacant due to the expiration of the term or due to a vacancy in office. Inasmuch as the Act creating the Small Claims Court of Coffee County provides that the Governor is to make the initial appointment, the fact that no other provision of law invests necessary powers of appointment in any other officer, the fact that the office is to be held for a four-year term and the fact that a successor is to be appointed, it would only be logical that the sole official given any power of appointment in the Act (i.e., the Governor) be the one invested with the power to appoint a successor. Accordingly, I am of the opinion that upon the expiration of the term of the initial judgeship, the Governor is permitted to either reappoint the present judge or to appoint another penmn for a four-year term.
In your letter, you further questioned the validity of a statute which would allow Governors exclusively to appoint members of the judiciary. I am unaware of any statutory or constitutional infirmity with such a statutorily created power. First of all, a Governor can only appoint the judge for a four-year term. The judge serves that fouryear term and is not appointed subject to the pleasure of the Governor. Accordingly, the Governor only has the power to select a judge and no power of removal. Secondly, and more dispositive of the issue, is the fact that the Supreme Court of Georgia appears to have upheld the concept of officers of one branch of government being statutorily empowered to exclusively appoint officers of another branch. In a very old decision, the Supreme Court, in Beall v. Beall, 8 Ga. 210 (1850), provided "the separation of the three powers of government is not as total as the terms of this article [the first article of the Constitution of the State, at that time declared 'the legislative, executive, and judiciary departments of the government shall be distinct and each department shall be confided to magistracy; aud no person or collection of persons, being of one of the departments shall exercise any power properly attached to either of the others, except in the instances therein expressly permitted.'] would seem to imply ... the judiciary is dependent on the legislature for the creation of Courts; for the apportionment of jurisdiction; for appointment to office; ...." Id. at 227. [Bracketed matter added.] Accordingly, at a very early date, it was well recognized by the Georgia Supreme Court that one branch of government could appoint members to the other.

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Later, in the Mayor and Council of Americus v. Perry, 114 Ga. 871 (1902), in a case concerning a statutorily created method of appointment of municipal officers, the court held, "Whether the affairs of a municipal government shall be lodged in officers elected by the people of the municipality, or by officers appointed by the Governor, or appointed or otherwise chosen by the General Assembly, either by election or by naming them in the Act creating a municipal corporation, is a matter left to be determined by the General Assembly in each instance...." Id. at 877.
It would seem from review of the above cases that the General Assembly may provide that the Governor, as Chief Executive, has sole appointive power to the judgeship of the Small Claims Court of Coffee County. Accordingly, I find no problem with that concept.

UNOFFICIAL OPINION U76-43

To: Representative, District 101

October 7, 1976

Re: Open Records Law provides for inspection and copying of public records by citizens, but does not require State Department of Education to itself prepare and furnish copies of public records to interested persons.

This is in reply to your letter of September 8, 1976, in which you state that a group of citizens desires to obtain copies of local school district program proposals under Title I of the federal "Elementary and Secondary Education Act of 1965," but that the State Department of Education has refused to furnish copies to these individuals notwithstanding their offer to pay the department its copying costs. You ask whether the department's refusal to furnish copies constitutes a violation of the "Georgia Sunshine Law and Freedom of Information Act." Since the former law appears to deal with public meetings rather than written records or files, and since I am unaware of any "freedom of information" law by that name, I assume the enactment you are in fact speaking of is that commonly referred to as the "Open Records Law," i.e., Ga. Laws 1959, p. 88 et seq., as amended (Ga. Code Ann. 40-2701 to 40-2703); and I make this response in accordance with that assumption.
In brief, and subject to certain exceptions, 1 Georgia's "Open Records Law" requires all public records:

1 The provisions of the enactment granting a general right of inspection have no application to records specifically required by the Federal Government to be kept confidential, or to medical records and similar files, the disclosure of which would be an invasion of personal privacy. See Ga. Code Ann. 40-2703 (Ga. Laws 1967, p. 455; 1970, p. 163).

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"be open for a personal inspection of any citizen of Georgia at a reasonable time and place" (Ga. Code Ann. 40-2701),
and further declares that:
"In all cases where a member of the public interested has a right to inspect or take extracts or make copies from any public records, instruments or documents, any such person shall hereafter have the right of access to said records, documents or instruments for the purpose of making photographs of the same .... Such work shall be done under the supervision of the lawful custodian of the said records . . .. Said work shall be done in the room where the said records, documents or instruments are by law kept. While the said work ... is in progress, the lawful custodian of said records may charge the person desiring to make the said photographs for the services of a deputy ... to supervise the same ...." (Ga. Code Ann. 40-2702).
Even assuming that the local school district Title I program proposals to which you refer are (a) "public records" 2 and that they are (b) not required to be kept confidential by federal law, regulations or policy, 3 it follows from the foregoing provisions that the State Department of Education is not required by the Open Records Law to make copies of any of its records with its own equipment upon the request (and proffer of payment) by an interested citizen. It is simply required to make such records available to an interested citizen for inspection and copying by the citizen with such equipment as the citizen may bring with him for the purpose.
I might further advise that in considering your letter State Department of Education officials were contacted to determine precisely what the policy is and the reasons therefor, concerning the inspection and copying of departmental documents. These officials advised that the policy is to permit an interested citizen to bring his own photographic or copying equipment and make such copies of public records as he may desire, but to decline requests for the State Department to make the copies itself on its own equipment and furnish the same to the requesting citizen. The stated reason for the policy is that the copying equipment which the State Department possesses is limited to the point where there is frequently a waiting line at the same in connection with the copying necessary to its own internal operations, and

2 Not every writing possessed or written by a public official is a "public record." The prevalent view is that the term applies only to those records or documents which a public official is required by law to maintain, or which is intended when made to serve as a memorial or evidence of action taken by the official. See, e.g., Ops. Att'y Gen.
73-55, U71-9. s The necessity of inquiring into this aspect of the matter is obviated by the conclusion reached in this opinion.

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that to undertake to make copies of the numerous and voluminous federal program proposals and other materials in its possession for private individuals would materially interfere with its internal operations even assuming that the department were to receive payment for its administrative costs.

UNOFFICIAL OPINION U76-44

To: Majority Whip, State Senate

October 12, 1976

Re: Senate Bill No. 696, Act 1405 (Ga. Laws 1976, p. 1563; Ga. Code Ann. 92A-2108 (d))-Georgia Peace Officer Standards and Training Act amended-peace officer qualifications changed.

This is in response to your letter of September 20, 1976, wherein you inquired concerning the above-referenced legislation.
A review of the original engrossed Act in the Secretary of Senate's office shows the Act as introduced and passed by the Senate. (Senate Bill No. 696, copy attached.) However, a House floor substitute, agreed to by the Senate, resulted in the Act as it is presently written. (Copy of the House floor substitute attached.) A copy of the Act as enrolled and located in the Secretary of State's office confirms the accuracy of Ga. Laws 1976, p. 1563. (Copy of enrollment attached.) While the original Senate Bill and the present enactment appear to vary in scope, the attached material indicates that there was no elision in the Act as finally approved by the Governor on April 7, 1976.

UNOFFICIAL OPINION U76-45

To: Judge, Probate Court of Taylor County

October 20, 1976

Re: Georgia Code Ann. 34-1324 does not remove the prohibition contained elsewhere in the Georgia Election Code on the use of stickers, pasters, stamps, etc., to indicate the write-in ballot of an elector.

This is in response to your recent request for my unofficial opinion concerning the validity of stickers, pasters, stamps or other written matter used in lieu of manually written names for write-in candidates. Specifically, your question, as I understand it, is whether Ga. Code Ann. 34-1324 (Ga. Laws 1968, pp. 871, 879; 1969, pp. 308, 319) obviates the results indicated in Op. Att'y Gen. 66-230, the conclusion of which with respect to your question was that the use of stickers, pasters, stamps, etc., is not permitted.

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In order to answer your question, it is important to review the legislative history with respect to various, pertinent sections of the Georgia Election Code (Ga. Code Ann. Title 34; Ga. Laws 1964, Extra. Sess., p. 26 et seq., as amended). First, Ga. Code Ann. 34-1103 (b) and 34-1330 (d), which contain prohibitions on the use of stickers, pasters, stamps or other written matter in lieu of manually written names for write-in candidates, were originally enacted by the General Assembly in 1964 ( 34-1330 (d) as 34-1315 (d)). See Ga. Laws 1964, Extra. Sess., p. 26, at pp. 98 and 140. Second, Ga. Code Ann. 34-1324 was originally enacted in 1968 as Ga. Code Ann. 34-1222A. Ga. Laws 1968, pp. 871, 879. Finally, Ga. Code Ann. 34-1330 (d) was amended by the General Assembly in 1968, subsequent to the original enactment of 34-1324. Ga. Laws 1969, pp. 308, 315. Specifically, the second sentence of current 34-1330 (d) was deleted, and the current second sentence was substituted therefor. Id.
In all statutory interpretations, the cardinal rule is to ascertain the true intention of the General Assembly in the passage of the statute being interpreted. Gazan v. Heery, 183 Ga. 30 (1936). Further, in interpreting apparently conflicting Code sections all parts or sections of the Code must be interpreted as if parts of a single statute, and the various provisions, if apparently conflicting, must, if possible, be brought into harmony and agreement. Central of Georgia Railway Co. v. State of Georgia, 104 Ga. 831, 842 (1898). In applying these rules to the situation at hand, it appears that the General Assembly did not intend by its enactment of Code 34-1324 to eliminate the requirements set forth in current Code 34-1103 (b) and 34-1330 (d). This is particularly the case in view of the amendment in 1969 of 34-1330 (d) subsequent to the enactment of 34-1324 without the elimination from 34-1330 (d) of the words "(but not by the use of a sticker or paster)." The 1969 amendment to 34-1330 (d) changed the sentence following the sentence in which is contained the aforementioned prohibition on the use of stickers or pasters for write-in ballots.
Thus, to give meaning to 34-1103 (b) and 34-1330 (d), 34-1324 should be construed as requiring poll officers to count as valid ballots any ballot on which an elector has indicated clearly and without question the candidate for whom the elector desires to cast his vote, notwithstanding the fact the elector has not marked his ballot in accordance with the Election Code, except write-in ballots containing the name of the candidate inserted by means of a sticker, paster, stamp, or other printed or written matter.
In view of the above, it is my unofficial opinion that Ga. Code Ann. 34-1324 does not remove the restrictions on the use of stickers, pasters, stamps, etc., as contained in Ga. Code 34-1103 (b) and 34-1330 (d).

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318

UNOFFICIAL OPINION U76-46

To: Chief Registrar, Board of Registrars, Liberty County

October 20, 1976

Re: A part-time or substitute rural mail carrier is not prohibited by Georgia law from serving as a deputy registrar.

This is in response to your recent inquiry concerning whether a parttime or substitute rural mail carrier may serve as a deputy registrar.
First, it appears that the portion of the oath of a deputy registrar which you quoted in your letter does not conform with that required by the Georgia Election Code, which sets forth the oath which each registrar and deputy registrar shall take upon entering their duties. This oath is as follows:
"I do solemnly swear that I will faithfully and impartially discharge, to the best of my ability, the duties imposed upon me by law as (deputy) registrar." Ga. Code Ann. 34-606 (Ga. Laws 1964, Extra. Sess., pp. 26, 50).
Further, even if that part of the oath quoted in your letter, which appears to be taken from Ga. Code Ann. 89-101 (4), were required, it would not preclude a part-time or substitute rural mail carrier from serving as a deputy registrar. Georgia Code Ann. 89-101 (4) (amended by Ga. Laws 1972, p. 868) provides that certain persons are held and deemed ineligible to hold any civil office and that the existence of certain states of fact shall be sufficient reason for vacating any office held by such person. Specifically, persons holding any office of profit or trust under the Government of the United States other than that of postmaster and officers of the reserve corps of the United States Army, Navy or Marine Corps, or any of the several states or any foreign state are ineligible to hold any civil office. Id. This Code section, however, is not applicable to deputy registrars in that deputy registrars are not public officers. Op. Att'y Gen. U73-83.
Based on the foregoing, it is my unofficial opinion that a substitute or part-time rural mail carrier is not prohibited from serving as a deputy registrar.

UNOFFICIAL OPINION U76-47

To: President, Council of Superior Court Judges of Georgia, Southern Judicial Circuit

October 21, 1976

Re: Discussion of the spouses' benefits coverage afforded by the 1976 Superior Court Judges Retirement System.

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U76-48

This responds to your request of October 13, 1976 that we supplement our opinion to you of October 1, 1976 by interpreting a particular section of the 1976 Act establishing the Superior Court Judges Retirement System. Ga. Laws 1976, pp. 586 to 611 (enacting Ga. Code Ann. Ch. 24-26B, and amending Chs. 24-26A, 78-13). Specifically, you ask about the relationship between subsections 15 (b) and 15 (i) of the Act (Ga. Code Ann. 24-2615b (b) and (i)).
Subsection 15 (i) provides that a member electing spouses' benefits shall make the employee contributions required for same until such time as the member obtains 16 years of creditable service for the purpose of spouses' benefits. Subsection 15 (b), on the other hand, provides that if a member electing spouses' benefits dies, after having obtained at least 10 years of creditable service, the surviving spouse is eligible for the provided spouses' benefits.
Reading these two subsections of Section 15 together, it is my opinion that as long as a superior court judge who elects the spouses' benefits coverage of the 1976 Act continues to serve as such and make therequired contributions for spouses' benefits, he must do so in accordance with subsection 15 (i) and other applicable subsections of Section 15, subject to a maximum of 16 years of contributions for the purpose of spouses' benefits. However, should a superior court judge die, after having achieved 10 years of creditable service but prior to achieving 16 years of creditable service for the purpose of spouses' benefits, his widow would be entitled to the spouses' benefits coverage afforded by subsection 15 (b) of the Act. See Ga. Laws 1976, pp. 586, 597-99.

UNOFFICIAL OPINION U76-48

To: Judge of Superior Courts, Southern Judicial Circuit

October 27, 1976

Re: Federal Internal Revenue Agents are "authorized personnel or appropriate tax administrators" and may inspect real estate transfer tax disclosure forms filed pursuant to Ga. Laws 1967, pp. 788, 790, as amended (Ga. Code Ann. 92-805).

This is in reply to your request for my unofficial opinion on whether Federal Internal Revenue Agents are "authorized personnel or appropriate tax administrators" who may inspect real estate transfer tax disclosure forms filed pursuant to Ga. Laws 1967, pp. 788, 790, as amended (Ga. Code Ann. 92-805).
The cardinal rule of construction is that effect will be given to the true intention of the legislature in passing the law. Ga. Code 102-102 ~9; Lamons v. Yarbrough, 206 Ga. 50 (1949). As I see it, it was cer-

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tainly not the intention of the General Assembly to deny to Federal Internal Revenue Agents, or to all tax administrators other than those employed by either the Department of Revenue or Georgia's political subdivisions, access to these forms. Had that been the object, it could have been accomplished unambiguously. Our state policy that the Department of Revenue cooperate with the Internal Revenue Service (Ga. Laws 1937-38, Extra. Sess., pp. 77, 85, as amended (Ga. Code Ann. 92-8414)) supports the conclusion that Federal Internal Revenue Agents should not, as a class, be considered unauthorized personnel for purposes of Ga. Laws 1967, pp. 788, 790, as amended (Ga. Code Ann. 92-805).
Accordingly, it is my unofficial opinion that Federal Internal Revenue Agents are "authorized personnel or appropriate tax administrators" and may, in connection with their official duties, inspect real estate transfer tax disclosure forms filed pursuant to Ga. Laws 1967, pp. 788, 790, as amended (Ga. Code Ann. 92-805). I understand that this conclusion is in accord with prior interpretations of the Revenue Department. In construing a statute, such administrative constructions are to be given great weight. Elder v. Home Building & Loan Ass'n, 188 Ga. 113, 115-116 (1939).
I would point out parenthetically that some of the information on the disclosure forms is available to the public anyway. The deed is a public document and shows on its face the amount of tax paid. The tax rate of $1 per $1,000 is also known to the public, so the consideration can be determined simply by moving the decimal point.

UNOFFICIAL OPINION U76-49

To: Director, Fiscal Division, Department of Administrative Services

October 27, 1976

Re: A superior court judge who took office as such after June 30, 1968, and who did not become a member of the Trial Judges and Solicitors Retirement Fund, is authorized and required to become a member of the Superior Court Judges Retirement System under subsection 8 (c) of the 1976 Act establishing that system.

Your recent letter asks my opinion on the eligibility of a particular superior court judge for membership in the Superior Court Judges Retirement System. Ga. Laws 1976, pp. 586 to 611; Ga. Code Ann. Ch. 24-26B. My understanding of the relevant facts is recited in the following paragraph.

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The judge on whose behalf you inquire took office as such on January 14, 1969. Because he was a solicitor general (now district attorney) on June 30, 1968, he was not eligible for membership in the Trial Judges and Solicitors Retirement Fund. Ga. Laws 1968, p. 259 et seq.; Ga. Code Ann. 78-1309. Also, upon the assumption of office as a superior court judge, he did not choose to elect membership in the Superior Court Judges Retirement Fund of Georgia. Ga. Laws 1945, p. 362 et seq.; Ga. Code Ann. Ch. 24-26A, both as amended. Consequently, the judge is not currently a member of any state retirement system for superior court judges.
Subsection 8 (c) of the Act establishing the Superior Court Judges Retirement System provides that any superior court judge who took office for the first time after June 30, 1968, and who did not become a member of the Trial Judges Fund, shall be a member of the retirement system created by the 1976 Act. Ga. Laws 1976, pp. 586, 592; Ga. Code Ann. 24-2608b (c). Subsection 8 (c) concludes by declaring that, upon payment to the fund of the employee contributions the judge would have paid to the Trial Judges Fund had he been a member, plus interest at the rate of six percent per year, the judge shall be entitled to receive creditable service under the 1976 system for all service as a superior court judge. Although no scheduled deadline is given for this payment, judgment would seem' to dictate that the payment be made by December 31, 1976 to be consistent with that deadline applicable to all other judges subject to the 1976 Act.

I am aware that this judge also fits within the definitional eligibility provisions of subsection 8 (e) of the Act. Ga. Laws 1976, pp. 586, 592-3; Ga. Code Ann. 24-2608b (e). However, my reading of all of the subsections of Section 8 together, and my understanding of the legislative history of the Act, impels me to conclude that subsection 8 (c) was tailored for the membership eligibility of this particular judge. Subsection 8 (c) is simply more applicable to his situation.

Accordingly, based on the foregoing, it is my opinion that a superior court judge who took office as such after June 30, 1968, and who did not become a member of the Trial Judges and Solicitors Retirement Fund, is authorized and required to become a member of the Superior Court Judges Retirement System under subsection 8 (c) of the 1976 Act establishing that system. However, please be advised that this opinion does not apply to superior court judges becoming such after June 30, 1968, who were eligible for and in fact became members of the Judges Emeritus Retirement System created by Ga. Laws 1945, p. 362 et seq. (Ga. Code Ann. Ch. 24-26A).

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322

UNOFFICIAL OPINION U76-50

To: County Attorney

October 28, 1976

Re: The board of commissioners of a county has the authority to set the amounts that will be received by the probate judge for election costs.

This is in response to your request dated September 8, 1976, in which you sought an opinion as to whether the board of county commissioners or the probate judge makes the final decision as to how much the probate judge is to receive for election costs. As you pointed out, Ga. Code Ann. 34-402 states:
"The governing authority of each county shall appropriate annually, and from time to time, to the ordinary of such county, the funds it shall deem necessary for the conduct of primaries and elections in such county and for the performance of his other duties under this Code...." (Emphasis added.) Ga. Laws 1964, Extra. Sess., p. 26; 1970, p. 347.
When a statute is clear and unambiguous, it will be held to mean what has been clearly expressed. Barnes v. Carter, 120 Ga. 895 (1904). Ga. Code Ann. 34-402 clearly states that the governing authority (in this case, the board of county commissioners) shall appropriate "the funds it shall deem necessary for the conduct of primaries and elections." See also, Ga. Code Ann. 34-401 which sets out the powers and duties of the probate judge (formerly, ordinaries) and which in subsection (k) requires that the probate judge submit annually a budget estimate of his expenses to the county authorities. This gives further weight to the argument, if such were needed, that the governing authority of the county makes the final decision in approving the submitted estimate.
Based on the foregoing, it is my unofficial opinion that the board of commissioners of a county has the authority to set the amounts that will be received by the probate judge for election costs.

UNOFFICIAL OPINION U76-51

To: Clerk, Wilkes County Superior Court

October 29, 1976

Re: The clerks of the superior courts are entitled to charge and collect $.50 for the entering of each fieri facias on the general execution docket.

This is in response to your recent inquiry concerning whether the clerks of superior courts are entitled to charge and collect a fee of

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$.50 for the entering of each fieri facias on the general execution docket. Specifically, as I understand your question, it is whether in the event a fieri facias is against more than one defendant there is a separate $.50 fee which may be charged as to each defendant.
As expressed in the Editorial Note to Ga. Code (1933) 39-101 :
"In Georgia statutes and decisions the terms 'execution,' 'writ of fieri facias,' and 'fi. fa.,' are treated as synonymous."
Therefore, the entering of an "execution" on the general execution docket is the same as entering a fieri facias on the general execution docket. Op. Att'y Gen. 71-16. (Copy enclosed.)
Fieri facias is defined, in practice, as "a writ of execution commanding the sheriff to levy and take the amount of a judgment from the goods and chattels of the judgment debtor." Black's Law Dictionary, 754 (4th Ed. 1951). Further, Ga. Code 39-101 provides that an execution "may be levied on all the estate, real and personal, of the defendant, subject to levy and sale." (Emphasis added.)
From the foregoing, it appears that the intent of the General Assembly in enacting Ga. Code Ann. 24-2727 (amended by Ga. Laws 1972, p. 664), to the extent that said Code section entitles clerks of superior courts to charge $.50 for "Entering fieri facias on general execution docket," is that for each fieri facias entered against a given defendant the clerk is entitled to charge the authorized fee of $.50. Therefore, it is my unofficial opinion that the clerks of the superior courts are entitled by Ga. Code Ann. 24-2727 to charge a fee of $.50 for each fieri facias entered against each defendant on the general execution docket.

UNOFFICIAL OPINION U76-52

To: Representative, District 138, Post 1

November 2, 1976

Re: A local amendment to the Constitution of the State of Georgia which allows resale of county real estate upon such terms and conditions as the governing authority of Appling County shall deem proper supersedes a general statute which specifies procedures for public sale of county property.

This is written in response to your recent request for my opinion on the legal ramifications of the anticipated private sale of Appling County real estate declared to be for a public purpose pursuant to Ga. Laws 1974, p. 1708 (House Resolution No. 563-1686).
Georgia Code Ann. 91-804.1 is a general statute detailing procedures to be followed in the sale of real property belonging to any

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county in this state. This statute, adopted under Ga. Laws 1959, pp. 325, 326, and twice amended by Ga. Laws 1961, p. 195, and Ga. Laws 1962, pp. 65, 66, provides in part:
"After such publication said property shall be sold at public outcry to the highest bidder for cash in front of the courthouse on the first Tuesday of the month following such publication in the same manner in which sheriff's sales are held...."
The local amendment to the Constitution, No. 146 (House Resolution No. 563-1686), proclaimed effective on January 1, 1975, was adopted subsequent to Ga. Code Ann. 91-804.1 and is directly in derogation with that Code section. Its pertinent part provides:
"The governing authority of Appling County is hereby authorized to use such funds for the purchase of land and site preparation and may resell such land for development upon such terms and conditions as the governing authority shall impose...."
Where an adopted amendment is in direct conflict with a previous general statute it normally operates as a substitute for that statute, 1 the exception being situations where the amendment is not selfexecuting (meaning the amendment takes additional legislative action to put it into effect). 2 Even though it would take some administrative regulations by the governing authority of Appling County to make this amendment have meaning, House Resolution No. 146 was effective immediately after it was apptoved by the voters and proclaimed effective by the Governor. There was no. need for extra legislation and therefore the amendment is self-executing and does not fall within the exception.
When an amendment has been proposed by the General Assembly of Georgia and ratified by the voters, it will not be declared void because it did not accord with some other provision. The amendment, being the last expression of the sovereign will of the people, will prevail as an implied modification of the conflicting areas of the former provision.8
Even though this is a local amendment voted upon only by one county, it has the same power as a state-wide amendment, but only in Appling County. In fact, the Georgia Constitution has spoken on this point in Article XIII, Section I, Paragraph I (Ga. Code Ann. 2-8101):
". . . A proposed amendment which is not general shall be submitted at the next general election ... but shall only be submitted
1 Atlanta Log & Export Co. v. Central of Georgia Railway Co., 171 Ga. 175 (1930). 2 DeKalb County v. Allstate Beer, Inc., 229 Ga. 483 (1972). See also 16 C. J. S. Constitutional Law, 60. a Birdaey v. Wesleyan College, 211 Ga. 583 (1955).

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to the people of the political subdivision or subdivisions directly affected.... [l]t must be ratified by a majority of the electors ... before it shall become part of this Constitution."
Since the local amendment is part of the Constitution of Georgia, it is my unofficial opinion that Appling County may now sell county real estate in accordance with the terms and conditions which the governing authority of Appling County shall deem proper.

UNOFFICIAL OPINION U76-53

To: Seminole County Probate Judge

November 5, 1976

Re: Salaried probate judges may not retain fees for maintaining and certifying vital records absent express legislative authorization.

I write in response to your request for an opinion as to whether a salaried probate judge is permitted to retain fees for maintaining and certifying vital records, where the judge has been designated to do so by the Commissioner of the Department of Human Resources.
In your request, you did not set forth what county you were speaking of. Accordingly, as probate judges are placed on a salary on a county-by-county basis under local legislation enacted by the General Assembly, your question can only be answered in a general manner.
A good example of local legislation placing an ordinary on an annual salary basis can be found in Ga. Laws 1968, p. 2469. That Act placed the probate judge of Peach County on an annual salary. The pertinent provision of the statute states:
"The annual salary provided for hereinafter shall be in lieu of all fees, costs, fines, forfeitures, commissions, emoluments, and perquisites of whatever kind heretofore allowed as compensation to the ordinary, regardless of in what capacity said services for such fees, costs, fines, forfeitures, commissions, emoluments, or perquisites are rendered." Id. at 2469.
The language above quoted is susceptible of but one interpretation-that the probate judge of Peach County is entitled to no fees whatsoever. Certainly, the statutory fees permitted for maintenance and certification of vital records would be a proscribed fee.
The General Assembly in 1974 enacted a statute dealing generally with minimum salaries for probate judges. Ga. Laws 1974, p. 455 (Ga. Code Ann. 24-170lb to 24-1705b). That legislation set minimum salaries for probate judges that are on an annual salary system, but had no effect on those who are on a fee system. However, pertinent

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provisiOns of that law reinforce my opinion that a salaried probate judge is not entitled to fees for maintaining and certifying vital records. The aforesaid Act provides that the minimum salary schedule set forth in the Act shall be increased by $50 per month for any probate judge who also holds and conducts elections or is responsible for conducting elections for members of the General Assembly and further provides for an increase of $100 per month for a probate judge who is responsible for traffic cases. Ga. Code Ann. 24-1702b. Accordingly, as the General Assembly by general legislation has provided two specific instances where a salaried probate judge may receive additional compensation for performing specific services that might be above and beyond those ordinarily performed by probate judges, the necessary implication is that those are the only two instances where a salaried probate judge is to be compensated for providing specific extraordinary services. Had the General Assembly intended to provide additional compensation to a salaried probate judge who performs maintenance and certification of vital records, it could have so provided.
Please understand that the above consideration is general only. It is always possible that the General Assembly could by local or general legislation allow a salaried probate judge to receive fees for maintenance and certification of vital records. However, absent such express legislative authorization, it is my opinion that salaried probate judges may not retain fees for maintaining and certifying vital records.

UNOFFICIAL OPINION U76-54

To: Representative, District 44

November 5, 1976

Re: The Georgia Board of Dentistry does not have the authority to restrict the scope of the practice of a dentist through its rule-making power unless and until the General Assembly grants to the board this power through new legislation.

This is written in response to your request for my opinion on the anticipated promulgation of rules by the Georgia Board of Dentistry which would restrict the scope of the practice of a dentist.
Georgia Code Ann. 84-704.1 (a) (Ga. Laws 1976, pp. 484, 489) provides:
"The board shall perform such duties, and possess and exercise such powers, relative to the protection of the public health, and the control and regulation of the practice of dentistry as this Chapter prescribes ..." (Emphasis added.)
Only in situations detailed in Ga. Code Ann. 84-724, such as gross negligence, gross uncleanliness, and where there is clearly excessive

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prescribing and administration of drugs, has Ga. Code Ann. Ch. 84-7 (Ga. Laws 1976, p. 484 et seq.) allowed the Georgia Board of Dentistry to regulate the physical practice of dentistry. Yet this regulation applies after the dentist has been found guilty by the majority of the board of violating a provision of Ga. Code Ann. 84-724. Upon such finding, a limitation or restriction may be imposed upon the license of a dentist. The remainder of Ga. Code Ann. Ch. 84-7, coupled with the rules of the Georgia Board of Dentistry, deals with requirements for licensure, administration of records, dental hygienists, and personal liability for the actions of hired personnel. Nothing in the general statute or rules delineates the methods to be used or the substances which a dentist may employ prior to or during his performance of a dental activity.
Further, if the Georgia Board of Dentistry attempts to restrict the use of anesthesia to oral surgeons, it should be remembered that under the definition of "practice of dentistry," as found in Ga. Code Ann. 84-701, every dentist is an oral surgeon. Without a distinguishing definition, which would necessitate affirmative action by the General Assembly, such an attempt to regulate oral surgeons would be of no effect.
Indeed, if the board attempts to implement rules which limit either the methods employed or substances to be used by dentists, this would be unconstitutional. The Georgia Supreme Court has spoken on this very issue in Georgia Real Estate Commission v. Accelerated Courses In Real Estate, Inc., 234 Ga. 30 (1975), by stating:
" ... the promulgation of rules [by the Boards] not authorized by statute constitutes an unconstitutional usurpation of legislative power.''
Therefore, from the foregoing, it is my unofficial opinion that rules promulgated by the Georgia Board of Dentistry which restrict the scope of the practice of a dentist would be an unconstitutional usurpation of a legislative function and would not be permissible.

UNOFFICIAL OPINION U76-55

To: Judge, Superior Court, Southern Judicial Circuit, President, Council of Superior Court Judges

November 8, 1976

Re: It would be a "conflict of interest" for a public official, acting in his official capacity, to lease office space in a building which he privately owns.

This is in reply to your letter of October 18, 1976, in which you, as President of the Council of Superior Court Judges, ask whether a

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"conflict of interest" might exist were a judge, while in the discharge of his official duties and responsibilities as an administrative judge, to lease office space in a building he privately owns. In your letter you state that the office space under consideration was the most convenient space available in the city in which the judge maintained his office, and that the rental (the monies for which are available under a federal grant) would be at a competitive rate.
One of the threshold problems apt to be encountered when attempting to discuss the law relating to "conflicts of interest" is that while the law in general is quite commonly thought of in terms of its concern with the conversion of behavioral norms into legal standards (and the penalizing of departures from the standards so fixed), "conflicts of interest" is really "situational law." Its concern is not so much which "acts" or ''actions," as it is with circumstances or situations, i.e., where a confluence of temptation and opportunity might lead, or give the appearance of having led, to breach of a public trust or similar wrongdoing. As the Supreme Court of Georgia put it in Montgomery v. City of Atlanta, 162 Ga. 534, 546 (1926), in connection with the basic common law prohibition of a public official making a private profit out of the public business entrusted to his care:
"No public agent shall have the opportunity or be led into temptation to make profit out of the public business entrusted to his care ... directly or indirectly." (Emphasis added.)
Not surprisingly, a number of corollaries have developed from this core "no personal profit" (or opportunity for personal profit) rule. One of the most important, of course, is the impermissibility of a public officer or employee having any private pecuniary interest in a contract with which he has any official concern. By way of illustration, the Supreme Court of Georgia, in the frequently cited case of Montgomery v. City of Atlanta, supra, held that the award of a municipal construction contract to a corporation in which a councilman was a large stockholder was unlawful and the contract null and void even though (1) the member did not vote for or in any way attempt to influence others to vote for the award of the contract, (2) the contract itself was fair and free from fraud, (3) the councilman resigned when the controversy arose, and (4) the council ratified its earlier decision after his resignation. In the words of the court:
"By the common law and independently of statute, this contract is contrary to public policy and illegal. One who is entrusted with the business of others will not be allowed to make out of the same a pecuniary profit to himself. This doctrine is based upon principles of reason, morality, and public policy."
Such contracts are invalid even where awarded to the lowest and

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most advantageous bidder (see Trainer v. City of Covington, 183 Ga. 759 (1937)), or where the city would have received substantial benefits from the improvements a mayor was contractually obligated to make in his lease of a city park. Mayor and Council of the City of Macon v. Huff, 60 Ga. 221 (1878). Based upon all of the above authorities it would be my unofficial opinion that the sort of lease you describe in your letter would present a common law conflict of interest even in the absence of any statutory provision on the point.
It should be further pointed out, however, that the lease situation you describe also raises an even more serious question under Article VII, Section III, Paragraph VI of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5606). This "conflict of interest" provision of our Constitution declares that:
"The receiving, directly or indirectly, by any officer of State or county, or member or officer of the General Assembly of any interest, profits or perquisites, arising from the use or loan of public funds in his hands or moneys to be raised through his agency for State or county purposes, shall be deemed a felony, and punishable as may be prescribed by law, a part of which punishment shall be a disqualification from holding office."
As I see it the contemplated lease would also be violative of this constitutional provision.
For all of the reasons stated above, it is my unofficial opinion that both as a matter of common law and under the above cited constitutional provision, a "conflict of interest" would exist were the judge, in the discharge of his official duties as administrative judge, to lease office space in a building which he privately owns. It is my further unofficial opinion that this is not altered by whether or not the lease is made at competitive rental rates, or whether or not it is the most convenient space available.

UNOFFICIAL OPINION U76-56

To: Judge, State Court of Jackson County

November 12, 1976

Re: There is no legal impediment to a Judge of the State Court of Jackson County simultaneously serving as Juvenile Court Judge for the Piedmont Judicial Circuit, which embraces Banks, Barrow and Jackson Counties.
This is in reply to your letter of October 22, 1976, in which you ask whether you can simultaneously serve as Judge of the State Court of Jackson County and as Juvenile Court Judge for the Piedmont Judicial Circuit (which embraces Banks, Barrow and Jackson Counties).

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Suffice it to say that I am unaware of any legal restrictions upon your holding both offices. The prohibition against the holding of plural county offices at the same time (see Ga. Code (1933) 89-103) would seem to be clearly inapplicable for the reasons stated by the Supreme Court of Georgia in Long v. State, 127 Ga. 285, 286 (1907) [holding that a justice of the peace was a state judicial officer].

UNOFFICIAL OPINION U76-57

To: County Attorney

November 15, 1976

Re: Notice of a called meeting of the board of commissioners must be provided, where practical, to all board members, and failure to provide such notice invalidates actions taken at a called meeting unless all members attend.

This is in response to your request for an opinion as to the legality of a meeting called by a majority of the board of commissioners without notice to the remaining commissioners. Your letter clearly indicates that this meeting was not the board's regular monthly meeting. You also stated, however, that the meeting was conducted as a public meeting in accordance with Ga. Laws 1965, p. 118 (Ga. Code Ann. 23-802) and Ga. Laws 1972, p. 575 (Ga. Code Ann. 40-3301).
The only general statute that appears to apply to this issue is Ga. Code 102-102 (5): "A joint authority given to any number of persons, or officers, may be executed by a majority of them, unless it is otherwise declared." The extent of this statute's applicability remains uncertain since it has seldom been cited in appellate cases. However, the rule codified in 102-102 (5) was established in an early case that arose from circumstances similar to those here, and an examination of that case sheds some light at least on the traditional view of the issue at hand. In Beall v. State, 9 Ga. 367 (1851), a commission of five members was created by statute for the sole purpose of assessing and certifying property depreciation in a town from which the county seat was to be removed. Three commissioners met without the knowledge and consent of the others, and they performed all the duties of the commission. The court held that the assessments made by the three were valid because:
" ... however desirable it may have been for all the commissioners to have had notice and been present when the assessment was made . . . such notice and presence was not indispensably necessary to the validity of the certificate of assessment executed by the majority of the commissioners." 9 Ga. at 370.

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Neither the Beall case nor the later statute has ever been cited for the proposition that notice to all members of a body and presence of those members at the meeting are unnecessary. A major reason for this judicial abstinence doubtless is the United States Supreme Court's adoption of a contrary rule in Knoxville Water Co. v. Knoxville, 189 U.S. 434, 23 S.Ct. 531, 47 L.Ed. 887 (1903). In that case, the Tennessee Supreme Court had earlier held, after exhaustively reviewing English and American precedents, that notice of special or called meetings of a municipal corporation must be given if practical. The state court ruled that notice was not practical where the city council member " ... removes from the state, or is continually absent from the state, and when he is shown to have been absent from the state and beyond reach on the occasion and at the time of the call ...." 64 S.W. 1075, 1080 (1901). The high court, affirming the Tennessee decision in an opinion by Justice Holmes, found "no sufficient ground for undertaking to revise the judgment of the state court" on the issue of notice. 189 U.S. at 438, 23 S.Ct. at 535, 47 L.Ed. at 891.
The rule approved in Knoxville has been followed in cases from a number of states (see, e.g., Scales v. Butler, 323 S.W.2d 25 (Mo. 1959); Crook v. Clark, 180 A. 2d 715 (N.J. 1962)), and it has never been repudiated by the Supreme Court. Its continued vitality is also demonstrated by its inclusion in current treatises such as C. Antieau, Local Government Law, Vol. 4 (County Law) at 41 (1966), and E. McQuillin, Municipal Corporations, Vol. 3 at 535 (3d Ed. 1968). See also, 56 Am. Jur. Municipal Corporations, Counties, and Other Political Subdivisions, 158 (1971); 62 C. J. S. Municipal Corporations, 397 (1949). The corollary of this general rule, also supported in the cases and treatises just cited, is that actions taken at meetings not attended by a member who was not notified, despite such notification being practical, are invalid unless subsequently ratified by all members.
It is my unofficial opinion that since Georgia appellate courts have not addressed the precise issue raised by these facts in well over a century, it would be wiser to adhere to the general rule requiring notice of special meetings, where practical, to all members of a county governmental body.

UNOFFICIAL OPINION U76-58

To: County Attorney, Treutlen County

November 18, 1976

Re: A judgment against a sheriff-elect for failure to account for and pay over county monies must be paid before such individual is eligible to hold office, and a county must pay the bond premium on a sheriff regardless of the premium charged.

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This is in response to your recent request for an opinion concerning the office of sheriff of Treutlen County. Specifically, with respect to an individual elected to the office of sheriff for the term beginning January 1, 1977, and against whom there is an outstanding judgment for county monies improperly accounted for by said individual in an earlier term of office as sheriff of Treutlen County, you posed the following questions:
(1) Must the judgment against the sheriff-elect be paid before he is eligible to hold office?
(2) Must Treutlen County pay the bond premium on said individual in the event an excess rate is charged for said premium?
(3) In the event the aforementioned judgment is not paid or a proper bond is not obtained, what procedure should the Board of Commissioners of Treutlen County take?
Taking your questions in the order in which they are set forth above, for the following reasons, it is my unofficial opinion that the judgment against the sheriff-elect must be paid before he is eligible to hold office. Ga. Code Ann. 89-101 provides, in pertinent part, as follows:
"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 . . :
* * *
2. Holders or receivers of public money; failing to account. All holders or receivers of public money of this State, or any county thereof, who have refused when called upon, or failed after reasonable opportunity, to account for and pay over the same to the proper officer." Code of 1933, as amended by Ga. Laws 1972, p. 868; 1976, p. 464.
Given the state of facts recited in your request, the above quoted Code section appears dispositive of your first question.
As to your second question, sheriffs are required to give a bond. Ga. Code Ann. 24-2805 (Code of 1933, as amended by Ga. Laws 1965, p. 448; 1975, p. 922). Further, Ga. Laws 1947, p. 1543, as amended (Ga. Code Ann. 89-405.1), provides that it is mandatory upon the county fiscal authorities to pay out of county funds the premiums due on all bonds. See also, Wayne County Board of Commissioners v. Warren, 236 Ga. 150, 151 (1976). No exception is made with respect to any premium rate which must be paid; therefore, it is my unofficial opinion that Treutlen County must pay the bond premium on the sheriff regardless of the premium charged.
With regard to your third question, I cannot properly advise the

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board of commissioners as to what procedure it should take if either a proper bond is not secured or the aforementioned judgment is not satisfied. Nevertheless, it appears that a proper place for beginning such a determination is Ga. Code (1933) 24-2803 which provides for the manner in which vacancies in the office of sheriff are to be filled. Also, I refer you to Ga. Code (1933) 89-501 (6) which provides that in the event a proper bond for an officeholder is not obtained the office shall be vacated. See also, Ga. Code (1933) 89-406, 89-408, 89-409. Further, I believe that the opinions of the Supreme Court in Coleman v. Glenn, 103 Ga. 458 (1897), and Weems v. Glenn, 199 Ga. 388 (1945), might also be of assistance to you.
In summary, it is my unofficial opinion that a judgment against a sheriff-elect for failing to account for and pay over to the proper official county monies renders such individual ineligible to hold office. Further, it is my unofficial opinion that a county must pay the bond premium on the sheriff regardless of the premium charged.

UNOFFICIAL OPINION U76-59

To: City Attorney

November 19, 1976

Re: Zoning ordinances adopted by the City of Newnan pursuant to general zoning and planning enabling statutes cannot prohibit the operation of a juvenile detention home by the State of Georgia.

Your letter of November 2, 1976 requests an unofficial opinion from the Attorney General as to whether or not the zoning ordinances promulgated by the City of Newnan apply to a proposed state facility.
You state in your letter that the State of Georgia is planning to open a juvenile detention home within a district which is presently zoned "commercial" by the City of Newnan. You state that the zoning ordinances have been enacted pursuant to Ga. Laws 1957, pp. 420, 425, as amended by Ga. Laws 1969, pp. 735, 736 (Ga. Code Ann. 69-1207) and Ga. Laws 1946, p. 191 (Ga. Code Ann. 69-801). Your letter further notes that the use of property for a juvenile detention center is prohibited by the zoning ordinances in a district zoned "commercial." Thus a clear question is presented as to whether the municipal zoning ordinances apply to the State of Georgia and its agencies.
The general rule is, of course, that the state is not bound by the passage of a law unless the statute clearly indicates otherwise. Ga. Code 102-109. A review of the statutes authorizing the City of Newnan to adopt zoning ordinances reveals no expression of a legislative intention that the state should be bound by zoning ordinances adopted pursuant thereto.

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A recent opinion of the Attorney General holds that a municipality is without authority to enforce zoning restrictions against the governmental activities of a county board of health. Op. Att'y Gen. 73-164; see also Mayor &c. of Savannah v. Collins, 211 Ga. 191 (1954); Pearson v. County of Tift, 219 Ga. 254 (1963). That opinion, and the authorities upon which it is based, apply with added impact to the state and state agencies.
Thus it appears clear that zoning ordinances adopted by a municipality pursuant to the general planning and zoning enabling statutes cannot operate to prohibit the State of Georgia from operating a juvenile detention home.

UNOFFICIAL OPINION U76-60

To: President, Council of Superior Court Judges of Georgia, Southern Judicial Circuit

November 23, 1976

Re: Discussion of the spouses' benefits coverage afforded by Sections 15 and 16 of the 1976 Superior Court Judges Retirement System.

This responds to your request for our further interpretation of the 1976 Act establishing the Superior Court Judges Retirement System. Ga. Laws 1976, pp. 586 to 611; Ga. Code Ann. Ch. 24-26B. Specifically, you ask us to clarify our opinions interpreting the relationship between Section 16 and subsections 15 (b) and 15 (i) of the 1976 Act. Ga. Laws 1976, pp. 586, 597 to 600; Ga. Code Ann. 24-2615b (b), 24-2615b (i), 24-2616b.
Section 16 of the Act provides a mechanism whereby superior court judges who are members of the Superior Court Judges Retirement Fund of Georgia (Judges Emeritus Fund) I, but who did not elect widows' benefits under that fund, may participate in the spouses' benefits coverage afforded by Section 15 of the 1976 Act. Section 16 articulates three requirements for such participation and coverage. The requirements consist of: (1) electing such coverage in writing by December 31, 1976; (2) paying to the board of trustees, also by December 31, 1976, employee contributions at the rate specified in Section 15, plus interest at the rate of six percent per year, for all years of service as a superior court judge on the basis of the state salary paid to superior court judges at the time the service was rendered; and (3) paying to the board of trustees the employee contributions specified in Section 15 for service as a superior court judge rendered after December 31, 1976. The spouse of a superior court judge meeting these

1 Ga. Laws 1945, p. 362 et seq., Ga. Code Ann. Ch. 24-26A, both as amended.

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requisites is entitled to the spouses' benefits coverage of Section 15 as if the judge were a member of the 1976 system.
Subsection 15 (i) of the Act provides that a member electing spouses' benefits shall make the employee contributions required for same until such time as the member obtains 16 years of creditable service for the purpose of spouses' benefits. Subsection 15 (b), on the other hand, provides that if a member electing spouses' benefits dies, after having obtained at least 10 years of creditable service, the surviving spouse is eligible for the provided spouses' benefits.
Reading Section 16 and subsections 15 (b) and 15 (i) in pari materia, it is my opinion that a judge covered under the Judges Emeritus Fund who complies with Section 16 and elects the spouses' benefits coverage of Section 15 must continue to make the required contributions for spouses' benefits during the time he continues to serve as a superior court judge, subject to a maximum of 16 years of contributions for the purpose of spouses' benefits. Further, however, I am of the opinion that upon the death of a judge covered under the Judges Emeritus Fund, his widow would be entitled to the spouses' benefits provided by Section 15 so long as the judge had obtained at least 10 years of creditable service for the purpose of spouses' benefits under the 1976 Act.
I next turn my attention to a specific situation about which you inquire. As I understand the facts, a judge who is a member of the Judges Emeritus Fund desires to elect the spouses' benefits coverage afforded by the 1976 Act by meeting the requisites of Section 16. This judge has completed the required service necessary for appointment and desires to be appointed as a senior judge of the superior courts effective January 1, 1977 pursuant to Ga. Laws 1945, p. 362 et seq., as amended. Ga. Code Ann. Ch. 24-26A, as amended. He has 12 years of actual superior court bench service. If this judge makes the spouses' benefits election and pays the board of trustees the required amount of contributions under Section 15 for his 12 years of actual bench service by not later than the effective date of the 1976 Act (December 31, 1976), and is then appointed to the office of senior judge effective on January 1, 1977, it is my opinion that the judge has fulfilled the requirements of the 1976 Act and his wife is entitled to spouses' benefits upon his death.
Lastly, you have posed the following situation and question to which I will respond. The facts are as follows. A judge covered under the Judges Emeritus Fund complies with Section 16 of the 1976 Act and elects the spouses' benefits coverage afforded by Section 15. This judge makes the appropriate spouses' benefits contribution payment for his actual creditable service on the superior court bench prior to December 31, 1976. He continues to serve as a superior court judge and makes the required employee contributions for the purpose of

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spouses' benefits beyond the statutory threshold of 10 years of creditable service. He then leaves the superior court bench and is appointed as a Senior Judge of the Superior Courts. Your question is whether the judge must continue to make employee contributions until he has achieved 16 years of creditable service for the purpose of spouses' benefits.
"Creditable service" is defined by the Act, for relevant purposes here, as service rendered as a superior court judge. Ga. Laws 1976, pp. ,586, ,589; Ga. Code Ann. 24-2602b (d) (1). The basis for "employee contributions71 is described in the Act as the state salary provided by law for judges of the superior courts. Ga. Laws 1976, p. 586, at pp. 594 and 597; Ga. Code Ann. 24-2610b (a), 24-2615b (a). Accordingly, it is my opinion that the 1976 Act does not require or permit the continuation of employee contributions or the acquisition of creditable service by a judge who has retired from the superior court bench and been appointed as a senior judge. However, under such circumstances, this judge's spouse would be entitled to spouses' benefits under Section 15 of the Act upon the judge's death since he had obtained more than 10 years of creditable service for the purpose of spouses' benefits.
This opinion should be considered as supplementary of Op. Att'y Gen. U76-41 (October 1, 1976) and Op. Att'y Gen. U76-47 (October 21, 1976). This opinion elaborates on and more broadly states what I opined in Op. Att'y Gen. U76-47. Also, to the extent there may be any conflict between this opinion and Op. Att'y Gen. U76-41, the earlier opinion is modified to be consistent herewith.

UNOFFICIAL OPINION U76-61

To: County Attorney, Board of Commissioners of Roads and Revenues

November 23, 1976

Re: A clerk of a superior court must refund that portion of an advance costs deposit that exceeds actual costs.

This letter is in response to your request for an unofficial opinion on the question whether a superior court clerk must refund to the filing party or his representative the money that remains when actual costs in that party's case amount to less than the $20 that the party has paid as a deposit.
The answer to this question is clearly stated in the pertinent statutes. The requirement for the deposit, as well as the right of the clerk to require its payment prior to filing any civil case (except one filed by a person claiming indigency), is contained in Ga. Code Ann. 24-2727,

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as amended by Ga. Laws 1972, p. 664. The purpose of the deposit, to allay costs, is specified in Ga. Code Ann. 24-3406. This section also provides that "[i]f the case or proceeding be dismissed or if the total cost incurred in said case or proceeding is less than the deposit required by section 24-2727, as amended, any of the sum remaining in the hands of the clerk shall be repaid." Ga. Laws 1972, pp. 664, 672.
It is therefore my unofficial opinion that the balance of the deposit must be refunded.

UNOFFICIAL OPINION U76-62

To: Senator, District 25

November 24, 1976

[WITHDRAWN JANUARY 4, 1977]
NOTE: Withdrawal of Unofficial Opinion No. U76-62, dated November 24, 1976, addressed to Honorable Culver Kidd, Senator, District 25, P. 0. Box 370, Milledgeville, Georgia 31061, subject: The Georgia Supreme Court case of City Finance Company v. Winston, Civil Action No. 31483, declared two sections of the 1976 postjudgment garnishment law constitutionally inadequate which left standing the 1975 procedural aspects of post-judgment garnishment. This decision had no effect on the garnishment of state employees.
To keep you current of the changing garnishment situation, this is to inform you that my unofficial opinion dated November 24, 1976 must now be withdrawn.
The Georgia Supreme Court finalized the decision of City Finance Company v. Winston, 238 Ga. 10 (1976), which found the post-judgment garnishment statute to be constitutionally inadequate. With this, the procedural aspects of establishing and filing a post-judgment garnishment have been declared invalid. Thus, since the 1976 Act (Ga. Laws 1976, p. 1608 et seq.; Ga. Code Ann. 46-101 et seq.) repeals the 1975 Act, post-judgment garnishment in Georgia cannot be accomplished in any manner due to a lack of sufficient guidelines.
Therefore, until the legislature adopts a new statute, post-judgment garnishment in Georgia should cease.

UNOFFICIAL OPINION U76-63

To: Representative, District 60

November 30, 1976

Re: The Board of Commissioners of Gwinnett County may, pursuant to authority conferred by Ga. Laws 1974, p. 1807, ratified November 5, 1974, license and regulate businesses and levy license taxes both throughout the county and throughout the unincorporated areas of the county.

This will respond to your request, dated November 17, 1976, for my unofficial opinion concerning the authority conferred upon the Board of Commissioners of Gwinnett County by Ga. Laws 1974, p. 1807, ratified November 5, 1974. Specifically, you ask whether the board of commissioners may license businesses in the incorporated areas of

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Gwinnett County, or whether its authority is limited to the unincorporated areas of the county.
The local constitutional amendment contains three separate grants of authority, the first of which provides that the governing authority of Gwinnett County is hereby authorized:
"(1) To license and regulate businesses and levy license taxes on all persons, firms, and corporations doing business in Gwinnett County, except businesses which are subject to regulation by the State Public Service Commission."
This grant of authority by its terms confers authority without regard to whether a business is located within a municipality or within the unincorporated areas of the county. Accordingly, the board of commissioners, as the governing authority of Gwinnett County, is expressly authorized to license businesses throughout the county, including both the incorporated areas and the uruncorporated areas.
The remainder of the local constitutional amendment does not require that a different conclusion be reached. The second grant of authority is identical to the first, except that the board's authority is limited to those who do business in the unincorporated areas of the county. Naturally, this grant of authority must be construed so as to make the two grants of authority consistent and harmonious with one another. Williams v. Bear's Den, Inc., 214 Ga. 240, 242, 104 S.E.2d 230 (1958). Bearing in mind that the two grants of authority are to be construed so that they will be consistent with one another, the apparent purpose of the second grant of authority was to permit the board of commissioners to leave the licensing of certain businesses located in incorporated areas to municipal authorities. Therefore, the authority conferred by the second grant is cumulative of the authority conferred by the first grant, and the second grant in no way limits the ability of the commissioners to license and regulate businesses and levy license taxes within the incorporated areas of Gwinnett County. The third grant of authority pertains only to certain franchises, and does not bear on your question.
Accordingly, it is my unofficial opinion that the Board of Commissioners of Gwinnett County may, pursuant to authority conferred by Ga. Laws 1974, p. 1807, ratified November 5, 1974, license and regulate businesses and levy license taxes both throughout the county and throughout the unincorporated areas of the county.

UNOFFICIAL OPINION U76-64

To: Speaker, House of Representatives

December 3, 1976

Re: The proviso that no tax collector's or tax commissioner's salary

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shall be increased during their present term contained in Ga. Laws 1976, p. 988, (1) applies only to those tax collectors and tax commissioners who are compensated by salary, (2) that "present term" means only the term which was being served by salaried tax collectors or tax commissioners on July 1, 1976, and (3) the base salary set in Ga. Laws 1975, p. 4554, is now replaced by that set in Ga. Laws 1976, p. 988.
This is in response to your recent letter requesting my opinion on several questions that have arisen subsequent to the passage by the 1976 General Assembly of an Act establishing a schedule of minimum salaries for those tax collectors and tax commissioners of the various counties within this state who receive salaries in lieu of compensation by fee (Ga. Laws 1976, p. 988, hereinafter "the Act") (Ga. Code Ann. 92-5306 to 92-5309).
Your first question concerns the application of the last sentence contained in Section 4 of the Act. You wish to know if that sentence applies only to those tax collectors and tax commissioners who were on the fee system of compensation on the effective date of the Act. The sentence to which you refer reads:
"However no tax collector's or tax commissioner's salary shall be increased during their present term." (Emphasis added.)
While it is true that a proviso in a statute is generally presumed to apply only to the preceding section, that general rule is subject to the rule that all parts of a statute, including provisos, are to be construed together and that construction adopted which is consistent with, and not repugnant to, the purposes of the Act. Cherokee Brick and Tile Co. v. Redwine, 209 Ga. 691 (1953). Upon consideration of the entire Act, the use of the word "salary" becomes the determinative factor in assessing the legislative intent. The Act as written clearly delineates two categories of tax collectors and tax commissioners, those who are compensated under a fee system and those who receive a fixed salary. The use of the word "salary" instead of "compensation" or other wording indicates that the last sentence of Section 4 is to apply only to those tax collectors and tax commissioners who are compensated by a salary.
Your second question asks for an explanation of the phrase "present term" as used in the last sentence of Section 4 of the Act. For an answer to this question, it is necessary to look to the intention of the General Assembly, keeping in view the old law, the evil and the remedy. Ga. Code 102-102 (9). For what reason then would the General Assembly provide that the salary of a county tax official should not be increased during his present term? The only reason, or evil, apparent is the burden this would place upon the county financial resources in instances when the county would not have had an oppor-

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tunity to budget for such an expenditure. Clearly this is the evil the legislature was prohibiting for the time period between the effective date, July 1, 1976, and the beginning of the first new terms, January 1, 1977. For the foregoing reason, I am of the opinion that the phrase "present term" means only that term which was being served by salaried tax collectors or tax commissioners on July 1, 1976.
Your third question deals with a local Act which you state authorizes the county commissioners to set the salary of the tax commissioners at not less than a certain amount. You also state that the said local Act contains no ceiling and you wish to know if the county commissioners can now set the tax commissioners salary at a larger amount than that contained in the 1976 Act, and, if so, when. A conversation with your office on this date has revealed that the county in question is Chatham. According to the United States Decennial Census of 1970, the population of Chatham County is 187,816, which would make it subject to Ga. Laws 1975, p. 4554. Upon reading of that 1975 Act, it is my opinion that the base salary figure set therein is now replaced by that set in the general Act now under consideration, because of the provisions of Section 3 of the general Act. The remaining provisions of the 1975 Act, including those dealing with increases and the timing thereof, remain in full effect.
Based on the foregoing, it is my unofficial opinion that the proviso that no tax collector's or tax commissioner's salary shall be increased during their present term contained in Ga. Laws 1976, p. 988, (1) applies only to those tax collectors and tax commissioners who are compensated by salary, (2) that "present term" means only the term which was being served by a salaried tax collector or tax commissioner on July 1, 1976, and (3) the base salary set in Ga. Laws 1975, p. 4554, is now replaced by that set in Ga. Laws 1976, p. 988.

UNOFFICIAL OPINION U76-65

To: Secretary-Treasurer, Firemen's Pension Fund

December 9, 1976

Re: Members of the Firemen's Pension Fund who have attained the requisite age and creditable service for retirement are entitled to be paid the monthly benefits provided by law at the time their retirement applications are approved by the board of trustees.

You have requested my opinion concerning certain firemen who left their employer department, together with other firemen, as a result of a strike on July 12, 1972. The employer department, after investigation, elected to terminate the employment of the striking firemen

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and hire replacements. The firemen about whom you inquire filed suit seeking reinstatement to their full-time employment as firemen.
During the pendency of the litigation, the Board of Trustees of the Firemen's Pension Fund notified the striking firemen that their rights as members of the fund would be terminated for nonpayment of monthly contributions in accordance with Ga. Laws 1955, p. 339 et seq., Ga. Code Ann. 78-1005, both as amended. Subsequently, pursuant to a request of the striking firemen, the board of trustees granted them leaves of absence during the pendency of the litigation. The United States District Court, Middle District of Georgia, upheld the employer department's right to fire the striking firemen. On appeal, the United States Court of Appeals for the Fifth Circuit affirmed the District Court's decision. See Burnley v. Thompson, 524 F.2d 1233 (1975).
Following the decision of the Fifth Circuit, the firemen about whom you inquire submitted their applications for service retirement to the board of trustees. Both of these firemen had obtained the requisite creditable service for retirement prior to the strike and their employment termination on July 12, 1972. Both have attained the required statutory age for service retirement, one prior to the strike and one during the pendency of the litigation.
At the time of the employment termination of these firemen, the specified statutory retirement benefit was $110 per month. Ga. Laws 1971, p. 332 et seq.; Ga. Code Ann. 78-1007, now amended. However, during the pendency of their employment reinstatement litigation, and while these firemen were on bona fide leaves of absence granted by the board of trustees, the statutory retirement benefit was increased to $215 per month. Ga. Laws 1976, p. 235 et seq.; Ga. Code Ann. 78-1007, effective February 25, 1976. The service retirement applications of these two firemen were both approved by the board of trustees subsequent to the effective date of the 1976 Act which increased the monthly retirement benefit. Specifically, your question is to which monthly retirement benefit are these firemen entitled.
Under numerous decisions of the appellate courts of Georgia, retirement statutes which are effective and operative while a member of a retirement system is employed in a covered position, and making required contributions to that particular system, form a part of the member's contract with the retirement system. Burks v. Board of Trustees, 214 Ga. 251 (1958); Trotzier v. McElroy, 182 Ga. 719 (1936); Webb v. Whitley, 114 Ga. App. 153 (1966). One such statute in effect as part of the statutory scheme forming the Georgia Firemen's Pension Fund Act at the time of the employment of these firemen reads as follows:

''Any fireman who retires or has been retired from the Fund under

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the terms of section 7 (Ga. Code Ann. 78-1007) of this act or under the terms of section 7-A (Ga. Code Ann. 78-1018) of this act, shall be entitled to receive a monthly pension in the amount which is or was provided by this act on the date his application for retirement benefits was approved by the board of trustees of the fund." (Parenthetical matter supplied.) Ga. Laws 1960, pp. 991, 993; Ga. Code Ann. 78-1019.
As stated previously, both of these firemen had achieved the required 25 years of creditable service toward retirement prior to the strike. During the pendency of their litigation, both were granted bona fide leaves of absence from participation in the fund by the board of trustees pursuant to Ga. Laws 1956, p. 368 et seq., Ga. Code Ann. 78-1015, both as amended. Both of these firemen have attained the age required for retirement at the time their employment was terminated (58), and both have had their service retirement applications approved by the board of trustees subsequent to the effective date of Ga. Laws 1976, pp. 235 to 241, which increased the monthly benefits.
The Firemen's Pension Fund Act does not require that a member retire immediately upon attainment of the required creditable service (25 years) and age (now 55 years). A fireman may desire to continue his employment beyond these statutory thresholds, thereby merely postponing his right to retire. As a corollary proposition, as with the firemen under consideration here, there is no requirement that a fireman who has the required service and age and leaves the fire service must submit a retirement application. For whatever reason he chooses, there is nothing to prevent a volitional postponement of his application for and receipt of retirement benefits, although this would be an unlikely occurrence in all but a minuscule number of cases.
Accordingly, based on the foregoing rationale and authorities, I am of the opinion that members of the Firemen's Pension Fund who have attained the requisite age and creditable service for retirement are entitled to be paid the monthly benefits provided by law at the time their retirement applications are approved by the board of trustees. Additionally, it would follow that these firemen would be paid monthly benefits beginning at the time of the approval of their applications.

UNOFFICIAL OPINION U76-66

To: Judge of Superior Courts, Coweta Judicial Circuit

December 10, 1976

Re: A member of the Judges Emeritus Fund, who did not elect widows' benefits under that fund, but who elects and qualifies for the spouses' benefits coverage afforded by Sections 15 and 16 of Ga. Laws

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1976, pp. 586 to 611, is not required to attain the age of 60 before appointment as a senior judge of the superior courts.

This responds to your request that I interpret a particular portion of the 1976 Act establishing the Superior Court Judges Retirement System. Ga. Laws 1976, pp. 586 to 611; Ga. Code Ann. Ch. 24-26B. Specifically, your question can be narrowed to whether a superior court judge who is a member of the Superior Court Judges Emeritus Fund (Ga. Laws 1945, p. 362 et seq., Ga. Code Ann. Ch. 24-26A, both as amended) must attain age 60 before appointment as a senior judge of the superior courts if he elects the spouses' benefits coverage of the 1976 Act.
Section 16 of the 1976 Act provides a vehicle for judges who are members of the Judges Emeritus Fund, but who did not elect widows' benefits under that fund, to participate in the spouses' benefits coverage afforded by Section 15 of the Act. Section 16 enumerates three requisites for such coverage. The spouse of a superior court judge meeting these requirements is entitled to the spouses' benefits coverage of Section 15 as if the judge were a member of the 1976 System. Ga. Laws 1976, pp. 586, 597 to 600; Ga. Code Ann. 24-2615b, 24-2616b.
A superior court judge electing the spouses' benefits coverage of the 1976 Act does so pursuant to Sections 15 and 16 of that Act. Those sections do not require the attainment of age 60 prior to appointment as senior judge (formerly designated by title as judge of the superior courts emeritus). The attainment of age 60 is a specific statutory requirement applicable only to judges under the Judges Emeritus Fund who have elected the widows' benefits coverage afforded by the 1945 Emeritus Act, as amended. Ga. Laws 1945, p. 362 et seq., as amended, particularly by Ga. Laws 1968, p. 275 et seq. and Ga. Laws 1970, p. 249 et seq.; Ga. Code Ann. 24-2610a.l.
Therefore, it is my opinion that a member of the Judges Emeritus Fund, who did not elect widows' benefits under that fund, but who elects and qualifies for the spouses' benefits coverage afforded by Sections 15 and 16 of Ga. Laws 1976, pp. 586 to 611, is not required to attain the age of 60 before appointment as a senior judge of the superior courts.

UNOFFICIAL OPINION U76-67

To: Judge of the Superior Courts Emeritus

December 20, 1976

Re: Superior court judges appointed to the office of judge of the superior courts emeritus prior to the effective date of Ga. Laws 1976, pp. 586 to 611, are not eligible to participate in the spouses' benefits coverage provided in Sections 15 and 16 of that Act.

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You have written requesting my opinion on whether a judge of the superior courts emeritus is entitled to participate in the spouses' benefits coverage afforded by Sections 15 and 16 of the 1976 Act establishing the Superior Court Judges Retirement System. Ga. Laws 1976, pp. 586 to 611; Ga. Code Ann. Ch. 24-26B. Your question focuses on a situation where a superior court judge was appointed to the office of judge of the superior courts emeritus in 1974 and is presently serving actively in the office of emeritus judge.
Section 16 of the 1976 Act provides a vehicle for superior court judges who are members of the Superior Court Judges Emeritus Fund (Ga. Laws 1945, p. 362 et seq., Ga. Code Ann. Ch. 24-26A, both as amended), but who did not elect widows' benefits under that fund, to participate in the spouses' benefits coverage provided in Section 15 of the Act. However, in definite terms, this opportunity is provided to persons who hold the office of superior court judge, with no reference therein to judges who occupy the office of judge of the superior courts emeritus. Ga. Laws 1976, pp. 586, 597 to 600; Ga. Code Ann. 24-2615b, 24-2616b. It is clear that persons serving in the office of judge of the superior courts emeritus occupy a separate and distinct public office from that of judge of the superior courts. Compare Ga. Code Ann. Ch. 24-26A with Ga. Code Ann. Ch. 24-26; see also, Ops. Att'y Gen. U75-74, 73-75.
I am aware that under numerous decisions of the appellate courts of Georgia, retirement statutes which are effective and operative while a member of a retirement system is employed in a covered position form a part of the member's employment contract. See e.g., Burks v. Board of Trustees, 214 Ga. 251 (1958); Webb v. Whitley, 114 Ga. App. 153 (1966). However, for this principle of law to be operative to impart a vested right, it is essential that services be rendered by the employee while the retirement statute is effective and in force, so that the statute becomes a part of the contract of employment and is a part of the compensation for services rendered. Bender v. Anglin, 207 Ga. 108 (1950); Trotzier v. McElroy, 182 Ga. 719 (1936).
I have considered the question of whether the 1976 Act could be construed retroactively. The Georgia appellate courts have consistently held that a statute is not to be construed retroactively in operation and effect unless its language imperatively requires such a construction. See e.g., Walker County Fertilizer Co. v. Napier, 184 Ga. 861 (1937); Jaro, Inc. v. Shields, 123 Ga. App. 391 (1971); Leathers v. Turner, 75 Ga. App. 62 (1947). Pretermitting any possible constitutional proscriptions, as I read the 1976 Act, there is no imperatively required retroactive construction. To the contrary, the Act clearly indicates it is intended to have prospective application and effect.
I have also examined the language of Section 39 of the 1976 Act which provides that no rights or benefits granted by the 1945 Emeri-

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tus Act shall be denied or abridged. Ga. Laws 1976, pp. 586, 610. Since the spouses' benefits coverage in Sections 15 and 16 of the 1976 Act are newly created rights and benefits, and are separate and different from the rights and benefits contained in the 1945 Emeritus Act, it is my opinion that Section 39 has no applicability to your question.
The 1976 Act became effective for administrative purposes on July 1, 1976. For all other purposes, including the creation of vested contractual rights, the Act becomes fully effective and operational on December 31, 1976. Ga. Laws 1976, pp. 586, 611. Accordingly, based on the foregoing facts, rationale and authorities, it is my opinion that superior court judges appointed to the office of judge of the superior courts emeritus prior to the effective date of Ga. Laws 1976, pp. 586 to 611, are not eligible to participate in the spouses' benefits coverage provided in Sections 15 and 16 of that Act.

UNOFFICIAL OPINION U76-68

To: Chief Administrative Judge,

December 21, 1976

Superior Court of the Atlanta Judicial Circuit

Re: Georgia Laws 1976, p. 586, creating the Superior Court Judges Retirement System, repealed by implication Georgia Laws 1972, p. 2487.

This is in response to your recent request for my unofficial opinion as to whether Ga. Laws 1976, p. 586 (Ga. Code Ann. Ch. 24-26B), repealed by implication Ga. Laws 1972, p. 2487. The 1972law provides as follows:
"In all counties of this State having a population of not less than 200,000 according to the United States decennial census of 1970, or any such future census, whenever the judges of the superior courts of such counties request a judge of the superior courts emeritus to serve as provided by law on the superior courts of said counties, the governing authoritie13 of such counties shall pay the sum of $50.00 per diem to such judge of the superior courts emeritus for each day of such service upon the filing of a certificate with them showing the number of days of such service and the amount due. Said sums shall be considered as a contingent expense of said courts." Ga. Laws 1972, p. 2487.
The 1976law is the "Act Creating the Superior Court Judges Retirement System." Ga. Laws 1976, pp. 586, 588. Section 30 of the 1976 law provides as follows:

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"The words 'judge of the superior courts, emeritus' or 'judges of the superior courts, emeritus' or 'judge, emeritus' or 'judges, emeritus,' when referring to any judge or judges of the superior courts, emeritus, are hereby stricken wherever the same appear in an Act creating the office of Judge of the Superior Courts, Emeritus, approved March 9, 1945 (Ga. L. 1945, p. 362), as amended, or in any other law of this State, and the words, 'Senior Judge of the Superior Courts' or 'Senior Judges of the Superior Courts' or 'Senior Judge' or 'Senior Judges,' respectively, are hereby inserted in lieu of such stricken words." Ga. Laws 1976, pp. 586, 606.
Furthermore, Sections 33 and 37 of the 1976 law amend Ga. Laws 1945, p. 362, as amended (particularly by Ga. Laws 1973, pp. 911, 912) (Ga. Code Ann. 24-2605a.2), and Ga. Laws 1962, p. 547, as amended (particularly by Ga. Laws 1973, pp. 911, 913) (Ga. Code Ann. 24-2624a), respectively, so that each will now read as follows:
"Senior Judges, while serving as judges of the superior courts as herein provided, shall receive compensation in the amount of $100 per day. In addition to such compensation, such Senior Judges shall receive their actual expenses and shall receive mileage at the same rate as other State employees for such services. Said compensation, expenses and mileage shall be paid from State funds appropriated or otherwise available for the operation of the superior courts, upon a certificate by the Senior Judge as to the number of days served and the expenses and mileage. Such compensation shall be in lieu of all other compensation for such services, but shall not affect, diminish or otherwise impair the payment or receipt of any retirement or pension benefits of such Senior Judge." (Emphasis added). Ga. Laws 1976, pp. 586, 607-8, and Ga. Laws 1976, pp. 586, 609-10.
The general rule is that repeals by implication are not favored; however, such repeals are effected when the later Act is clearly repugnant to the former and so inconsistent with it that the two cannot stand together, or where it is manifestly intended to cover the same subject matter as the former Act and operate as a substitute for the former Act. See Geeslin v. Opie, 220 Ga. 53, 56 (1964); Hines v. Wingo, 120 Ga. App. 614, 616 (1969). Since the 1976law covers the subject matter of the 1972 law (compensation for senior judges) and the 1976 law provides that "[s]uch compensation shall be in lieu of all other compensation for such services," the 1976 law would repeal the 1972 law.
Therefore, it is my unofficial opinion that Ga. Laws 1976, p. 586, repealed by implication Ga. Laws 1972, p. 2487.
You have also inquired as to what type of form the senior judges should use to certify the number of days served, their expenses and

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their mileage. Personnel with the Georgia Department of Administrative Services have advised my staff that the senior judges should use a form entitled "Travel Expense Form for Superior Court Judges" and that the forms can be obtained from the State Auditor's Office, Room 115, State Capitol, Atlanta, Georgia.

UNOFFICIAL OPINION U76-69

To: The Consul General of the Federal Republic of Germany

December 22, 1976

Re: Georgia Laws 1976, p. 1430 (Senate Bill 673).

Your recent letter to the Attorney General concerning Ga. Laws 1976, p. 1430 (amending Ga. Code Ann. Ch. 26-29), has been forwarded to me for reply. First, let me apologize to you for the delay in answering your inquiry. In your letter you have asked us to respond to two matters concerning the 1976 Georgia pistol toter's licensing statute. One, you desire to know whether an applicant has to be a United States citizen before he or she can apply for such a pistol permit, and secondly, whether the State of Georgia would waive the license fee for those individuals clothed with diplomatic or consular privileges if reciprocity were later accorded by your government.
As you are probably aware, the right to bear arms in this country is based upon the Second Amendment to the United States Constitution (Ga. Code Ann. 1-802). There is also a similar provision in the Constitution of the State of Georgia. See Art. I, Sec. I, Par. XXII to the Constitution of the State of Georgia (Ga. Code Ann. 2-122). As you will note, there is nothing in either the United States Constitution or the Constitution of the State of Georgia which limits the right to bear arms only to those individuals who are United States citizens. Recent decisions by the United States Supreme Court regarding the exclusion of aliens in legislative enactments have been held to be violative of the equal protection clause of the Fourteenth Amendment of the United States Constitution (Ga. Code Ann. 1-815). See Sugarman v. Dougall, 413 U.S. 634 (1973); In reApplication of Fre Le Poole Griffiths for Admission to the Bar, 413 U.S. 717 (1973). See also Opinions of the Attorney General Nos. 74-4, 74-10, and 70-113. (Reference to the Opinions of the Attorney General throughout this opinion means those of the Attorney General of the State of Georgia.) Accordingly, it would be my feeling that an applicant seeking a Georgia pistol toter's permit need not be a United States citizen.
The second portion of your inquiry concerns itself with whether the State of Georgia would waive the $15 licensing fee which accompanies the pistol permit application to those members of your staff

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who enjoy diplomatic and consular privileges if your government reciprocated. A waiver would exist where specifically provided for by treaty agreements between the American Government and the foreign sovereign in question. See Opinions of the Attorney General 1962, p. 312. If the license fee under the 1976 Georgia Act were a tax, which it is not, then such an exemption would be available as the Federal Republic of Germany enjoys "most favored nation" status. See Opinions of the Attorney General No. U70-233.
In an earlier opinion issued by this office regarding automobile licenses and tags, we opined that an exemption to such fees for diplomatic and consular members of your government was available even though not provided for by Article XIV of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany since American consular members were presently being accorded such an exemption. See Opinions of the Attorney General 1954-56, p. 471. I have been informed by a member of your staff that Article XIV of the treaty has not been revised.
There is no provision in the 1976 Georgia handgun statute waiving the license fee to diplomatic or consular members; neither does such a provision exist in the treaty between your government and that of the United States. In addition, since your government does not currently provide an exemption for American diplomatic and consular personnel, the 1954 opinion which I have previously referred to would not appear to be applicable in this instance. In the absence of any exemptions appearing in either the treaty between our governments, the Georgia statute, or the existence of a present arrangement entitling American diplomats and consuls to such an exemption, the payment of the license fee under Ga. Laws 1976, p. 1430, in my own judgment would not be waived by the State of Georgia.

UNOFFICIAL OPINION U76-70

To: Representative, District 50

December 22, 1976

Re: Jurisdiction of Professional Practices Commission extends to the making of any recommendations to the State Board of Education which the commission believes will "promote an improvement of the teaching profession."

This is in reply to your letter of December 15, concerning the filing of a complaint with the Professional Practices Commission wherein a teacher makes certain allegations concerning a county school superintendent. You wish to know whether or not the jurisdiction of the commission extends to complaints of this nature.

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It is my opinion that the commission's jurisdiction would extend to complaints concerning county school superintendents provided that the complaint deals with "teaching" or such administrative or supervisory activities as may relate to or have an effect upon the teaching function. This would seem to follow both from the statement of legislative intent concerning the legislation, to-wit:
"It is the intent and purpose of the General Assembly that the practice of teaching, including administrative and supervisory services, shall be designated as professional services." (Ga. Code Ann. 32-838; Ga. Laws 1967, pp. 840, 841.)
and more importantly from Ga. Code Ann. 32-839(6) (a) (Ga. Laws 1968, p. 330), which authorizes the commission to:
" ... make any recommendations to the State Board of Education or to local or county boards of education which will promote an improvement of the teaching profession."

UNOFFICIAL OPINION U76-71

To: Staff Judge Advocate, Headquarters, United States Army Signal Center

December 30, 1976

Re: Residency requirements of Ga. Laws 1976, p. 1430, and its application to military members.

Under the Constitution and the laws of the State of Georgia the Attorney General is not permitted to render official opinions to individuals, but can only render such opinions to the Governor and heads of Departments of State. However, I will be glad to reply to your letter as a matter of information.
In your letter you have asked two questions concerning the 1976 Handgun Act (amending Ga. Code Ann. Ch. 26-29) as it pertains to military members. First, you desire to know whether the word "resident" when used in Ga. Laws 1976, pp. 1430, 1433 (Ga. Code Ann. 26-2904), encompasses military members residing on a federal military enclave. Second, you ask whether the word "resident" as used in this statute includes military members assigned to a base in the State of Georgia, but who live off the military reservation.
Ft. Gordon is a federal military reservation which means that it operates under exclusive federal jurisdiction except in those areas in which concurrent jurisdiction exists. For the purposes of this reply it will be presumed that the living areas on Ft. Gordon are under exclusive federal jurisdiction. This means that it would be impossible for any service member residing on the installation to be either a

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resident of or to have a domicile in Georgia. In order for military members living on a federal reservation to qualify as residents under the terms of a particular Georgia statute, the Act must contain a provision regarding those people who reside on a military reservation in this state. The only example where this has been done to my knowledge is in the area of domestic relations. See Ga. Laws 1958, p. 385 (Ga. Code Ann. 30-107). For the reason to be set out in the latter part of this opinion, it is my judgment that the word resident as used in Ga. Laws 1976, p. 1430, means domicile. Since there is no provision in the 1976 Handgun Act making military members who reside on a military reservation in Georgia residents for the purposes of this statute, said individuals would not in my opinion qualify as residents within the meaning of the 1976 Georgia handgun legislation. Secondly, since I believe that residency means domicile or legal residence, it would be impossible for service personnel on Ft. Gordon to be domiciled in Georgia unless, of course, they had previously declared Georgia as their legal residence at sometime prior to their moving onto the reservation. This of course could be shown by such evidence of domiciliary intent as proof that the individual living on the base had paid and is paying Georgia income and property taxes, as well as being registered to vote in Georgia.
Your second question asks whether military members who live off the reservation are residents of the county where they live within the meaning of the above-referenced statute. The words "domicile" and "residence" have generally been used fairly loosely, and oftentimes have been used to express the same idea, when in fact they are not equivalent. Avery v. Bower, 170 Ga. 202 (1929). Generally, the meaning of the word "resident" is resolved by the contents and purpose for which it is used in the statute. See Opinions of the Attorney General U75-74. Domicile, or legal residence, generally means actual physical residence with the intention to remain. Mayo v. I van Allen-Marshall Co., 51 Ga. App. 250 (1935). It is my unofficial opinion that the General Assembly intended the word resident for the purposes of Ga. Laws 1976, pp. 1430, 1433, to mean domicile. A similar meaning to the word residency appears in the Georgia election laws, Ga. Laws 1964, Extra. Sess., p. 26, Ga. Laws 1968, p. 885, codified respectively as Ga. Code Ann. Titles 34 and 34A.
You will note from a reading of the wording in Ga. Laws 1976, p. 1430, that the granting of a pistol toter's permit is a discretionary act vested in the probate judge of the respective county. As pointed out in a 1975 opinion of the Attorney General it appears that the General Assembly 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

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her county who might appear before him for the issuance of such a handgun license." Opinions of the Attorney General U75-10.
The 1976 Handgun Act also gives the probate judge discretion in determining whether the applicant is of good moral character in addition to ensuring that the other requirements of the statute have been met. Since military members by virtue of their employment are frequently moved from installation to installation, they generally do not have a sufficient opportunity to establish enough contacts which would make them known in the county in order for the probate court judge to make a determination as to whether the applicant is of good moral character. To apply to the phrase "resident of the county" the literal definition, that it is one who simply resides, would not provide a meaningful basis to the background check provided for by the Act, nor would it lend any support to the General Assembly's expression that the judge also determine the applicant's moral character in addition to the other statutory requirements. The General Assembly did not in my view intend to issue handgun licenses to every individual who passes through this state for a short period of time, but rather has extended this privilege to those individuals in this state who have demonstrated domiciliary intent and are known to be responsible citizens in their respective county.
In summary, one who resides on the military reservation does not qualify as a resident of the county in which the military installation is situated, unless he or she has previously declared Georgia as his or her legal residence prior to moving onto the reservation. Military members residing off the base would not be residents within the meaning of the statute unless they intend to make Georgia their legal residence, and the county in which they were residing their place of domicile. Please keep in mind that the ultimate construction of the word resident as used in Ga. Laws 1976, pp. 1430, 1433, rests with the Georgia judiciary.

UNOFFICIAL OPINION U76-72

To: Judge, Superior Courts of the Macon Judicial Circuit

December 30, 1976

Re: An administrative judge may assign a superior court judge from one circuit in a judicial administration district to another circuit in said district under certain conditions.

This is in response to your recent inquiry concerning the Judicial Administration Act of 1976. Specifically, your question, as I understand it, is under what conditions an administrative judge is au-

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thorized to assign a superior court judge from one circuit within a judicial administration district to another circuit within said district for the purpose of handling judicial or administrative matters in the second circuit.
The Judicial Administration Act of 1976 (Ga. Laws 1976, p. 782 (Ga. Code Ann. Ch. 24-33A)) was enacted by the General Assembly pursuant to the powers conferred on the General Assembly by Ga. Const., Art. VI, Sec. III, Par. I (Ga. Code Ann. 2-3801). Subsection 6 of the Act sets forth the following conditions under which an assignment of the type about which you inquired may be made by an administrative judge:
(1) The assignment must be made with the consent of the assigned judge;
(2) The assignment must be made with the consent of the majority of the judges of the circuit to which the assignment is made; and
(3) The assignment must be made subject to rules promulgated by the district council by a majority vote of the superior court judges within the district.
Based on the foregoing, it is my unofficial opinion that an administrative judge may assign a superior court judge from one circuit within a judicial administration district to another circuit within said district for the purpose of handling judicial or administrative matters within the second circuit provided the conditions set forth in subsection 6 of the Act (Ga. Code Ann. 24-3306a (b)) are met.

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POSITION PAPERS
The document which follows has been called a Law Department "position paper" in view of the fact that it dealt comprehensively with a subject rather than responded narrowly to a request for an opinion. Thi;J paper was the result of a study initiated to examine the full impact of the decisions in Greer v. State, 233 Ga. 667 (1975), and Murphy v. State, 233 Ga. 681 (1975), both of which dealt with separation of powers questions. While the paper was widely circulated to officers in State Government on April 22, 1976, and a modified version appeared in the Georgia State Bar Journal, continued requests for copies and a desire to assure access to the information therein have led the Attorney General to direct that the paper be set out in full in this volume.

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CONFLICTS OF INTEREST OF PUBLIC OFFICERS, EMPLOYEES
AND AGENTS
INDEX Page
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
PUBLIC OFFICERS AND EMPLOYEES DEFINED. . . . . . . . 357
"CONFLICT OF INTEREST" DEFINED. . . . . . . . . . . . . . . . . . 359
COMMON LAW BACKGROUND .......................... 361
STATE CONSTITUTIONAL AND STATUTORY PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
A. Constitutional Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366 (1) Art. I, Sec. I, Par. XXIII (Ga. Code Ann. 2-123). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366 (2) Art. III, Sec. IV, Par. VI (Ga. Code Ann. 2-1606). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 (3) Art. VII, Sec. III, Par. VI (Ga. Code Ann. 2-5606) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
B. Statutory Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 (1) Miscellaneous Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 (2) Code of Ethics (Ga. Code Ann. 89-925) ............ 369 (3) Trading With the State Law (Ga. Code Ann. 89-913 to 89-918) .......................... 370 (4) Criminal Code of Georgia: "Abuse of Governmental Office" (Ga. Code Ann. Ch. 26-23) .................. 373
FEDERAL LEGISLATION................................ 377
SUMMARY .............................................. 379

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INTRODUCTION
Probably one of the most pervasive and persistent problems in these United States, especially among government employees and officials, concerns conflict of interests. Because of the immediate nation-wide coverage of which the news media are now capable, the appearance of misconduct can ofttimes be as bad as the act.
In the past few years, this country has undergone enormous social, political, economic and moral convolutions because of our involvement in a conflict in Southeast Asia, now known as the Vietnam Conflict. Subsequent to the greatly protracted winding up of this conflict and our disengagement as a nation, the two highest offices in this land have been vacated by the occupants, both of whom had been elected by an overwhelming vote in the 1972 general election, because of crimes and misconduct in office. This has inevitably resulted in a loss in the prestige and dignity bestowed on the offices of Vice President and President of the United States for the past 200 years. Although the causes of the resignations were totally separate and distinct, nonetheless, the resulting pardoning of a former President by his successor and criminal charges against some of the highest elected and appointed officials in the United States have resulted in a tremendous erosion of public faith in government in general, and, more particularly, in elected and appointed public officials. The serious student of government could hardly doubt that "Watergate" delivered a grievous wound to government in this nation, and by extension to the entire free world. The rapidity of our recovery will depend, in large part, on the image projected by the people involved in the operation of government.
Never in the history of this nation has it been more important that public officials attempt to conduct the affairs of government in such an exemplary manner as to help restore public confidence in our demo-
cratic form of government. I believe if we do not restore confidence
in a democratic form of government in these United States within the next few years, and thereby insure its survival in this country and hemisphere as well as in Western Europe, in the not too distant future, democracy, as we know it today, may well have become a matter of history.
Because of this and because we are constantly receiving questions in this office concerning conflicts of interest, the following memorandum has been prepared by members of the staff of the State Law Department. The initial text was completed by Mr. H. Andrew Owen, Jr., formerly a Senior Assistant Attorney General of the State of Georgia, now a member of the firm of Hurt, Richardson, Garner and Todd, Atlanta, Georgia. He was assisted in editing and final preparation of the memorandum by Assistant Attorney General Alfred L.

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Evans, Jr. These two gentlemen have worked extensively on the subject, and they deserve full and complete credit for their effort to collect and analyze into one memorandum the information, statutes and cases concerning conflicts of interests in the State of Georgia.
The temptation of public officials to enrich themselves through the office which they occupy has been a bane of government since its existence and, indeed, has destroyed many governments. There are governments in the world today where the bribe, payoff and rakeoff, call it what you will, by public officials are considered normal perquisites of the office. Certainly, in this country, we are in no posture to point an accusing finger at anyone else, but we can take comfort in the fact that the blight of corruption by public officials has never been accepted in the United States, either under the law or by the citizenry at large. If Watergate proved nothing else, it demonstrated that an informed and aroused public could force the man holding the highest office in probably the most powerful nation on earth to vacate that office, all without violent revolution or destruction of the processes of government.
Whether or not a conflict of interest exists often depends on the intent or motivation of the parties involved, and it is difficult, if not impossible, to set down hard and fast rules for every situation. Because of the interest expressed by so many concerning this subject, especially during recent months, we thought it might be well to attempt to set out in the memorandum which follows the law that is available in our state, including court decisions and opinions issued by this office. While we do not claim to exhaust all available information in this memorandum, it is hoped that we will make it easier for many persons to ascertain what the law does and does not prohibit, as constituting a conflict of interest, and then by their conduct avoid such situations, thereby helping restore faith in our government and its many institutions.

PUBLIC OFFICERS AND EMPLOYEES DEFINED
Although the law regarding "conflicts of interest" in connection with persons acting on behalf of government has probably been developed much more in connection with "public officials" than "public employees" (since the former are apt to have more discretionary powers and hence a greater potential for abuse), the distinctions between the two, although still important in certain situations, have been lessened by the statutory tendency to speak in terms of "officers and employees" in connection with prohibited transactions. See, e.g., Ga. Code Ann. 26-2306 (based on Ga. Laws 1968, pp. 1249, 1307, as amended) and 89-913 (based on Ga. Laws 1956, p. 60, as amended).

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Looking first to public officials (or public officers), we find the Supreme Court of Georgia, in Morris v. Peters, 203 Ga. 350, 357 (1948), giving the following definition:
"A public office, then, is the right, authority, and duty conferred by law by which for a given period, either fixed by law or through the pleasure of the creating power of government, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The warrant to exercise powers is conferred, not by a contract, but by the law. It finds its source and limitation in some act of expression of governmental powers. Oath, salary, operation, scope of duties, are signs of official status; but no one is essential. The essential thing is that in some way or other the officer is identified with the government."
The term "public employee" (or the term "employee" in general), on the other hand, is usually thought of as involving a contractual relationship with the employer rather than "right, authority and duty conferred by law," cf. Undercofler v. Scott, 220 Ga. 406, 410 (1964). An "employee" ordinarily performs services for his employer (public or private) for hire, salary or wages, cf. Atlanta, Birmingham & Coast Railroad Company v. Cook, 73 Ga. App. 435, 436 (1946); 30 C. J. S. Employee, pp. 673-74, and is customarily subject to the direct supervision and control of his employer not only as to his work product but also as to the time, place and manner in which the work is to be accomplished, such as, for example, his work hours. See 56 C. J. S. Master and Servant, 2 (d). Perhaps one of the most frequent questions to arise in this regard is whether a given relationship is that of employeremployee or employer-independent contractor. It is rather well settled in Georgia that:
" ... the test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of employer and servant, or that of employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract." Blair v. Smith, 201 Ga. 747, 748 (1947); Yearwood v. Peabody, 45 Ga. App. 451 (2) (1932).
There also appears to have been some question in the past as to whether or not legislators were public "officers or employees." While there do not appear to be any reported decisions on the point in Georgia, the overwhelming weight of authority elsewhere has concluded that legislators are in fact state officers. See, e.g., Pitts v. Chilton County,

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27 Ala. App. 364, 173 So. 94 (1937), cert. den., 173 So. 95 (1937); Brown v. Superior Court, 81 Ariz. 236, 303 P.2d 990, 991 (1956); State ex rel. Jones v. Lockhart, 76 Ariz. 390, 265 P.2d 447, 450 (1953); Rich v. Industrial Accident Commission, 36 Cal. App.2d 628, 98 P.2d 249, 252 (1940); Grant v. Payne, 60 Nev. 250, 107 P.2d 307,310 (1940); Moril v. Haines, 2 N.H. 246, 247 (1820); Dorenjield v. State ex rel. Allred, 123 Tex. 467, 73 S.W.2d 83, 86 (1934); 42 Am. Jur. Public Officers, 20. Based upon these decisions, the office of the Attorney General has opined that the same rule (i.e., that members of the General Assembly are state officers) would almost certainly be followed by the Georgia courts. See Op. Att'y Gen. 69-444. That result seems clearly to have been reached in Dean v. Bolton, 235 Ga. 544 (1975).
"CONFLICT OF INTEREST" DEFINED
Usually the law is thought of, particularly in connection with its frequent conversion of behavioral norms into legal standards, as being concerned mostly with what are deemed to be wrongful (and hence "illegal") acts. One of the more unusual aspects of the law relating to "conflicts of interest" is that its concern reaches out not only to the proscribed act or action, but also to certain circumstances or situations which by bringing temptation and opportunity together might lead to the wrongful act.
One rather concise definition of the term "conflict of interest" appears in Fighting Conflicts of Interest in Officialdom: Constitutional and Practical Guidelines for State Financial Disclosure Laws, 73 Mich. L. Rev. 758 (1975):
"A 'conflict of interest' may be defined as any circumstance in which the personal interest of a public official in a matter before him may prevent or appear to prevent him from making an unbiased decision with respect to the matter." (Emphasis added.) 1
Or, as more expansively explained in a publication of the Association of the Bar of the City of New York, Conjlict of Interest and Federal Service, p. 3:
" ... Any interest of an individual may conflict at times with any other of his interests. This book, however, is concerned with only two interests: one is the interest of the government official (and of the public) in the proper administration of his office; the other is the official's interest in his private economic affairs. A conflict
1 It should be noted that the "personal interests" with which the law regarding c nflicts of interest is concerned are those which are individualized and private, not to be confused with a public official's interest in sharing as a citizen in the benefits whh:h government bestows on citizens generally.

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of interest exists whenever these two interests clash, or appear to clash.
"A conflict of interest is not necessarily pre-supposed that action by the official favoring one of these interests will be prejudicial to the other, nor that the official will in fact resolve the conflict to his own personal advantage rather than the government's. If a man is in a position of conflicting interest, he is subject to temptation however he resolves the issue. Regulation of conflict of interest seeks to prevent situations of temptation from arising. . . ." (Emphasis added.)
The principal evil which "conflict of interest" laws are intended to prevent, in other words, is the danger of the people and their public institutions being "shortchanged" through the receipt of less than a public official's most objective, fair-minded and best efforts on the public behalf as the result of his being even slightly influenced by his possibly competing private interests. E.g., City of Coral Gables v. Weksler, 164 So.2d 260, 263 (Fla. 1964). Thus, in holding a construction contract between a city and a private corporation in which a city councilman was a large stockholder to be void even though the councilman neither voted for nor attempted to influence other councilmen to vote for it, the Supreme Court of Georgia explained in Montgomery v. City of Atlanta, 162 Ga. 534, 547 (1926):
"It does not alter the case that Inman did not vote for the ordinances. . . The fact that he did not take any part in securing this contract for his corporation does not change the situation. The City of Atlanta and its citizens were entitled to have this councilman exercise his administrative and executive ability in securing the best contract that could be had for the laying of this pavement, and to see that the pavement came up to the plans and specifications under which it was laid, and that the terms of the contract were faithfully performed. This he could not do if he were a party at interest under the contract. Inaction on the part of the councilman in this respect amounted to a violation of his duty to the public." (Emphasis added.)
In summary, there are two elements, the confluence of which produces a "conflict of interest," to wit: temptation and opportunity. In the words of an opinion from this office:
"The first element is the opportunity for profit by the public officer arising out of the transaction. The other entails the control by that officer over the transaction. It is the presence of these two elements that precipitate the undue influence over the officer's performance of his public duty which in turn creates a common law conflict of interest." Op. Att'y Gen. 73-155.

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This paper goes beyond a simple statutory or common law conflict of interest and touches upon the broader fiduciary considerations included in dual employment and the acceptance of gratuities by public officers. These are embraced within the layman's concept of public trust.

COMMON LAW BACKGROUND
The settled doctrine that a public office is a public trust is restated in Article I, Section I, Paragraph I of the Georgia Constitution of 1945:
"Public officers are the trustees and servants of the people, and at all times amenable to them." (Ga. Code Ann. 2-101).
The common law view of "conflicts of interest" emanates from the fiduciary obligations which attach to the trustee or agent who handles another's money or property for that other's rather than for his own benefit, 2 and the concept of a public office being "a public trust." 3 In holding as early as 1850 that a sheriff could not purchase, either for his own account or for the account of another, at his own sale, the Supreme Court observed:
"It is well settled, that an agent .employed to sell, cannot himself become the purchaser.... This reasoning applies with more than ordinary force to the Sheriff, who is the appointee of the law and a public agent." Harrison v. McHenry, 9 Ga. 164, 167 (1850).
Similarly, in Mayor and Council of the City of Macon v. Huff, 60 Ga. 221, 224 (1878), the court, in holding the mayor's lease of a city park to be contrary to public policy and illegal regardless of how "fair" the contract might be, said:
" ... no officer or agent, public or private, whose duty it is to supervise a contract in behalf of his employers or principal, can himself undertake to do that thing which his office or agency makes it his duty to supervise for others.... The reason is too plain and palpable for serious dispute. The man becomes a judge in his own case. He agrees to perform work himself, and yet is to judge whether or not it is well done." (Emphasis added.)
The court went on to point out in Huff that:
" ... the current of Georgia's policy, both in legislative and judicial channels, runs steadily in one direction and to one point, that no man who is agent or trustee for another, whether a private or a public agent or trustee, shall have the opportunity or be led into
2 As to the nature of fiduciary relationships generally, see 36A C. J. S. Fiduciary, pp. 383-385. a See, e.g., Mcintosh v. WiUiams, 160 Ga. 461, 464 (1925).

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temptation to make profit out of the business of others entrusted to his care, by bargaining with himself, directly or indirectly, in respect to that business." Id. at p. 228 (emphasis added).
In Malcom v. Webb, 211 Ga. 449, 456 (1955), the Supreme Court of Georgia gave a practical illustration of the nature of a public trust and the fiduciary obligations attaching thereto in connection with the control of public propery when it observed:
"Under the law, the title to and control of the property of Fulton County are in the hands of the Board of Commissioners of Roads and Revenues, and in so holding the title to the public property, and in controlling its use and in disposing of it, the Commissioners are acting as fiduciaries or trustees for the taxpayers and citizens bf the county." Id. at p. 456.
Referring to the high standard of fidelity which the law imposes upon the public as well as private trustee, the court continued by quoting with approval the words of Justice Cardozo when he spoke for the New York Court of Appeals in Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546, 62 A.L.R. 1 (1928):
"Many forms of conduct permissible in a work-a-day world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honestly alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. . . . Only thus has a level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this Court." Malcom v. Webb, supra, at pp. 456-457.
It is from this concept of the fiduciary duty of a public official that the core common law "conflict of interest" rule has evolved, both here and in other states, that a public official cannot be permitted, either directly or indirectly, to make a profit out of the public business entrusted to his care. E.g., United States v. Carter, 217 U.S. 286 (1910); Hulgan v. Gledhill, 207 Ga. 349 (5) (1950); Montgomery v. City of Atlanta, 162 Ga. 534, 546 (1926); Mcintosh v. Williams, 160 Ga. 461 (1925); Dorsett v. Garrard, 85 Ga. 734, 737 (1890); Mayor and Council of the City of Macon v. Huff, 60 Ga. 221, 228 (1878); 67 C. J. S. Officers, 116 [citing many cases]. 4 As the Supreme Court of Georgia put it in
4 See also Op. Att'y Gen. 73-155, where in discussing some of the many cases enunciating this core rule, it is again pointed out the proscription is due to the fact that to do otherwise "would tend to interfere with the officer's public duty and lead to unduly influenced decisions by that officer."

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Twiggs v. Wingfield, 147 Ga. 790 (1) (1918):
"A public officer takes his office cum onere, and so long as he retains it he undertakes to perform its duties for the compensation fixed, whether such duties be increased or diminished. He cannot claim extra compensation for the performance of additional work within the line of his official duties, unless additional compensation is provided by competent authority."
In line with the already noted concern of "conflicts of interest" law for avoidance of the precarious circumstance or situation as well as the wrongful act which "might" (or might not) result, the paramount "no personal profit" rule g9es beyond actual profit to the public official or employee and proscribes the conditions which present an opportunity for such personal gain. See Ops. Att'y Gen. 73-155, 68-440. As the Supreme Court of Geor'gia put it in Montgomery v. City of Atlanta, 162 Ga. 534, 546 (1926):
"No public agent shall have the opportunity or be led into tempation to make profit out of the public business entrusted to his care ... directly or indirectly." (Emphasis added.)
Not surprisingly, a number of corollaries have developed from this core "no personal profit" (or opportunity for personal profit) rule. One of the most important, of course, is the impermissibility of a public officer or employee having any private pecuniary interest in a contract with which he has any official concern. By way of illustration, the Supreme Court of Georgia, in the frequently cited case of Montgomery v. City of Atlanta, 162 Ga. 534, 546 (1926), held that the award of a municipal construction contract to a corporation in which a councilman was a large stockholder was unlawful and the contract null and void even though (1) the member did not vote for or in any way attempt to influence others to vote for the award of the contract, (2) the contract itself was fair and free from fraud, (3) the councilman resigned when the controversy arose, and (4) the council ratified its earlier decision after his resignation. In the words of the court:
"By the common law and independently of statute, this contract is contrary to public policy and illegal. One who is entrusted with the business of others will not be allowed to make out of the same a pecuniary profit to himself. This doctrine is based upon principles of reason, morality, and public policy."
Such contracts are invalid even where awarded to the lowest and most advantageous bidder, see Trainer v. City of Covington, 183 Ga. 759 (1937), or where the city would have received substantial benefits from the improvements a mayor was contractually obligated to make in his lease of a city park, Mayor and Council of the City of Macon v.

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Huff, 60 Ga. 221 (1878).
The critical time with respect to conflicts of interest and contracts would seem to be the point in time at which the contract is entered into. In Hardy v. Mayor and Council of Gainesville, 121 Ga. 327 (1904), the Supreme Court of Georgia voided Gainesville's award of a printing contract to a publishing company in which a councilman owned stock even though following execution of the contract he sold the stock in question. It was the coures view that being illegal and void at the time of the execution, it could not become legalized by the subsequent stock transfer. In Byrd v. Cook, 146 Ga. 657 (1917), on the other hand, a similar public printing contract was upheld where the involved public official sold his stock subsequent to the opening of bids but prior to the award and execution of the contract. One interesting question asked of the Attorney General in connection with this critical "time" aspect of the problem involved the situation where an individual who had sold insurance to a county board of education was subsequently elected or appointed to that board. 6 The conclusion was that the existing policy could be continued for the term provided but that it could not be renewed if the board member's interest in the insurance company were to continue. Op. Att'y Gen. 65-80.
Stock ownership can and does pose difficult questions respecting application of the "no personal profit" rule. It may be well to say that a public board cannot do business with a corporation in which one of its members owns stock but does this mean, for example, that such a public board (whose members may receive little or no compensation) is faced with the alternative of either not having gas, electricity or a telephone, or depriving itself (and the public) of the services of a responsible citizen because he owns stock in such a company. As to "public utilities" of this sort, the Attorney General has "unofficially" opined, based upon such cases in other jurisdictions as Dials v. Blair, 144 W.Va. 764, 111 S.E.2d 17 (1969), that the usual common law conflict of interest rule does not apply in the case of ownership of public utilities, where the service is essential, where it cannot be obtained from another source, and where the rates are regulated by an agency such as the Public Service Commission. Ops. Att'y Gen. U70-138; 1954-56, p. 188.
One wonders whether the courts might not reach the same result, under the doctrine of de minimus non curat lex (the law does not concern itself about trifles) where a public board or agency, upon opening bids for the purchase of 10 motor vehicles, finds that the low bidder is
& Obviously a member of a county school board could not, consistent with the common law on conflicts of interest, sell insurance to the school board. See Op. Att'y Gen. 1954-56, p. 192.

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General Motors but that one of its members owns a hundred (or even a thousand) shares of that corporation. Notwithstanding the general prohibition of a public body doing business with a corporation in which one of its members is a stockholder, e.g., Montgomery v. City of Atlanta, 162 Ga. 534, 546 (1926); Hardy v. Mayor and Council of Gainesille, 121 Ga. 327 (1904); Op. Att'y Gen. 69-343, it would not be unreasonable to anticipate that the courts, in looking at stock ownership in a large and broadly held corporation (as opposed to a closely held or family enterprise) might well conclude that there must be some possibility of at least some measurable level of personal profit which could reasonably be expected to accrue to the individual in question as a result of the transaction. This conclusion would seem consistent with the accepted view that public boards can use a bank as a depository notwithstanding the fact that members of the board are officers and stockholders of the bank in question (the theory being that since the sums were in demand deposits and subject to immediate check, there was no measurable benefit, direct or indirect, which could be said to accrue to the public officials thus affiliated with the bank). Smith v. City of Winder, 22 Ga. App. 278 (1918); Ops. Att'y Gen. 67-103; 1960-61, p. 466.
A second corollary of the common law "no personal profit" rule involves the grant of governmental licenses or permits to which profits might accrue. In Turner v. City of Atlanta, 160 Ga. 216 (1925), it was held that a board of county commissioners empowered by law to grant or refuse permits to locate cemeteries could not issue such a license or permit to one of its members or even to a company or association in which one of its members if financially interested.
A third important corollary involves the holding of plural offices or positions in government. Although there is no general prohibition at common law against the holding of more than one public office, it has long been the common law rule that the simultaneous holding of "incompatible" offices is impermissible. See 63 Am. Jur.2d Public Officers and Employees, 62; 67 C. J. S. Officers, 23. The determination of whether or not two offices or positions are incompatible at common law invariably involves a determination of the facts of each individual case, with particular attention to the relationship between the two, the nature of the duties involved, whether one possesses appointive power over the other, or whether for any other reason the performance of the duties of one will interfere with the performance of the duties of the other. See 63 Am. Jur.2d Public Officers and Employees, 73. In Welsch v. Wilson, 218 Ga. 843, 844 (1963), the Supreme Court of Georgia explained:
"IW]hen a statute confers appointing power and does not expressly

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authorize self appointment, the appointment of some one other than self is always contemplated. . . . Public policy forbids acceptance [by the official in question] of employment which it is his official business as Mayor ... to supervise and see that it is faithfully performed." [Bracketed material added.]
It has consequently been the opinion of this office on numerous occasions, for example, that a county school board member cannot at the same time be an employee of that board (i.e., one of its school teachers or school bus drivers). Ops. Att'y Gen. 68-493, 68-30, 67-17.

STATE CONSTITUTIONAL AND STATUTORY PROVISIONS
As might be expected in a code state, as Georgia, the common law development of the "conflict of interest" doctrine has been expansively supplemented by constitutional provisions and statutes. A vast number of these "codified" provisions, however, are (1) purely of local application, relating to officers of particular counties or cities, or (2) applicable only to specified boards or offices, and (3) this situation is further confused by the fact that in many cases a statute, although based upon an underlying "conflict of interest" principle, will be "classified" as a statutory treatment of another subject matter, such as "eligibility" requirements for a given office. To attempt to review all of the foregoing would unquestionably take us out of the practical confines of a memorandum and involve the writing of a treatise. Hence, our review of applicable constitutional provisions and statutes will be confined to that relatively small number which seem to us to be the greatest general importance.
A. Constitutional Provisions.
(1) Art. I, Sec. I, Par. XXIII (Ga. Code Ann. 2-123).
Article I, Section I, Paragraph XXIII, of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-123), requires that:
"The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one shall, at the same time, exercise the functions of either of the others, except as herein provided."
While argument to the contrary could be made, the "separation of powers" principle enunciated by this provision, so fundamental to our "checks and balances" theory of government organization, would seem to contain at least some elements of the already discussed common law prohibition of the holding of "incompatible" offices-such as where the responsibilities of one include the overseeing, evaluation or checking of the other. Of. Welsch v. Wilson, 218 Ga. 843, 844 (1963);

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63 Am. Jur.2d Public Officers and Employees, 73. In Greer v. State of Georgia, 233 Ga. 667 (1975), the Supreme Court of Georgia, while recognizing that the line between executive functions and legislative functions is not always easy to discern, experienced little difficulty in the case then before it in giving a negative answer to the question of:
" ... whether the legislature can constitutionally create a special instrumentality of government to implement specific legislation and then retain some control over the process of implementation by appointing legislators to the governing body of the instrumentality." Id. at 669.
It must be noted, of course, that this "separation of powers" provision of our Constitution (which as we shall shortly see has been amplified by legislation-Ga. Code Ann. 26-2309, based on Ga. Laws 1968, pp. 1249, 1309), comes into play only where the basic functions of government (i.e., legislative, executive or judicial) conflict, one of the more usual violations being where a statute places legislators on a board of the executive branch of government and the board's function is that of implementing legislative enactment through its executive powers under the Constitution or laws of the state. It does not, for example, apply to members of differing branches of government serving on governmental boards which are not charged with the responsibility of executing laws but which merely perform advisory or informational functions. See Op. Att'y Gen. 75-142 (dated December 15, 1975).
(2) Art. III, Sec. IV, Par. VI (Ga. Code Ann. 2-1606).
Article III, Section IV, Paragraph VI, of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-1606), declares in part:
"No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State, or the United States, or either of them except Justices of the Peace and officers of the militia ... shall have a seat in either house; nor shall any Senator, or Representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor . . . to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected, unless he shall first resign his seat...."
A substantial number of opinions have been issued by the Attorney General in connection with this provision. It has been pointed out that it doesn't preclude a legislator from holding any "other appointment or office" (whether state or local) if no state compensation or emolu-

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ment is attached thereto. E.g., Ops. Att'y Gen. 1950-51, pp. 16, 237. A county school superintendent, whose salary is paid substantially if not entirely through state appropriations, cannot serve as a member of the General Assembly, Op. Att'y Gen. 1950-51, p. 16, but members of a county board of education, county commissioners, or a county attorney (who ordinarily receive no state compensation or emolument) may do so, at least insofar as this particular constitutional provision is concerned. E.g., Ops. Att'y Gen. 1954-56, pp. 296, 383, 384; 1962, p. 52; 66-271. The Attorney General has also concluded that the term "appointment" as used in this constitutional provision refers to an "office" and not to mere "employment." Ops. Att'y Gen. 1950-51, p. 319; 68-169. 6 The prohibition would not prevent the "election" of a person holding such a state office to the General Assembly but would prevent such a person from being seated unless he first resigned from the state office. Op. Att'y Gen. 1948-49, p. 235.
(3) Art. VII, Sec. III, Par. VI (Ga. Code Ann. 2-5606).
A less frequently analyzed (perhaps because the clearer language elicits fewer inquiries) but equally important "conflict of interest" provision of our Constitution is Art. VII, Sec. III, Par. VI (Ga. Code Ann. 2-5606), which states that:
"The receiving, directly or indirectly, by any officer of State or county, or member or officer of the General Assembly of any interest, profits or perquisites, arising from the use or loan of public funds in his hands or moneys to be raised through his agency for State or county purposes, shall be deemed a felony, and punishable as may be prescribed by law, a part of which punishment shall be a disqualification from holding office."
In line with authority elsewhere, the Attorney General expressed the view some years ago that the "direct" or "indirect" interest referred to must be personal and not merely by virtue of a "relationship" to the contracting party (e.g., where a governmental body does business with the brother, wife, parent, etc., of one of its members). See Op. Att'y Gen. 1960-61, p. 158. Other than this, the provision would seem to be plain enough on its face to eliminate need for further discussion.
6 Our discussion at this point is restricted to the application of Art. III, Sec. IV, Par. VI alone. It should be noted that the statutory curtailment of a legislator's extralegislative governmental activities or employment go considerably beyond the limitations of this particular constitutional provision. Under Ga. Code Ann. 26-2309, for example, a member of the General Assembly is prohibited from holding either "office" or "employment" in any agency of the executive or judicial branches of government.

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B. Statutory Provisions.
(1) Miscellaneous Statutes.
As already pointed out, Georgia has a vast number of statutes dealing with conflicts of interest which are of more or less circumscribed application. Examples would be Ga. Code Ann. 5-3310 (based on Ga. Laws 1972, pp. 1161, 1167) (dealing with conflicts of interest of members and employees of the Georgia Agrirama Development Authority); Ga. Code Ann. 69-201 (amended by Ga. Laws 1957, pp. 97, 98) (in general prohibiting councilmen or aldermen of municipalities from holding other municipal offices); Ga. Code Ann. 32-949 (based on Ga. Laws 1943, p. 273) (prohibiting members of county boards of education from selling supplies or equipment to any county school board); Ga. Code (1933) 23-1713 (dealing with county officers using county funds to purchase goods or property from stores in which they are employed or in which they have a direct or indirect interest); Ga. Code (1933) 89-103 (in general prohibiting an individual from holding more than one county office); and Ga. Code (1933) 89-904 (dealing with members of the Board of Regents or the trustees or officers of any state institution doing business with that institution or making a profit through their handling of the institution's property).
(2) Code of Ethics (Ga. Code Ann. 89-925).
Unquestionably the most comprehensive statutory statement as to the desired ethics and avoidance of conflicts of interest of public officials and employees is that set forth in Ga. Laws 1968, p. 1369 (Ga. Code Ann. 89-925). The substantive portion of this legislatively expressed ethical standard reads as follows:
"Code of ethics for governmental service
"Any person in government service should:
"I. Put loyalty to the highest moral principles and to Country above loyalty to persons, party, or government department.
"II. Uphold the Constitution, laws, and legal regulations of the United States and the State of Georgia and of all governments therein and never be a party to their evasion.
"III. Give full day's labor for a full day's pay; giving to the performance of his duties his earnest effort and best thought.
"IV. Seek to find and employ more efficient and economical ways of getting tasks accomplished.
"V. Never discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not;

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and never accept, for himself or his family, favors or benefits under circumstances which might be construed by reasonable persons as influencing the performance of his governmental duties.
"VI. Make no private promises of any kind binding upon the duties of office, since a government employee has no private word which can be binding on public duty.
"VII. Engage in no business with the government, either directly or indirectly, which is inconsistent with the conscientious performance of his governmental duties.
"VIII. Never use any information coming to him confidentially in the performance of governmental duties as a means for making private profit.
"IX. Expose corruption wherever discovered.
"X. Uphold these principles, ever conscious that public office is a public trust."
Although an admirable guide for the conduct of any official or employee of the state, the statute does not in itself contain any enforcement mechanism and except to the extent that a court might well declare any contract which conflicts with its provisions to be null and void as a matter of public policy, see Ga. Code (1933) 20-504, or to the extent that its overlap with common law principles of conflicts of interest might bring common law remedies into the picture, it is more of an appeal to the conscience of the state official or employee than a legal restraint.
(3) Trading With the State Law (Ga. Code Ann. 89-913 to 89-918).
An enactment which does have a least a few teeth in it (although the teeth are not particularly sharp) is Ga. Laws 1956, pp. 60 to 63 (Ga. Code Ann. 89-913 to 89-918, 89-9916), commonly known as the "Trading With the State" law. The substantive provisions are set forth in Sections 1 through 4 of the Act 7 as follows:
"Section 1. It shall be unlawful for any full-time appointive State official or employee to contract to buy from or sell to the State of Georgia any real or personal property, goods or services, or a combination thereof, when such purchase or sale would benefit or be likely to benefit, such official or employee. Nor shall any full-
7 Section 5 of the Act requires all bids and contracts pertaining to the furnishing of goods or services to the state to bear a certification as to compliance with the Act. Section 6 makes violation by "any full-time appointive official or employee" of the state grounds for immediate discharge and Section 7 makes violations of the Act misdemeanors.

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time appointive State official or employee influence, or attempt to influence, the execution of any contract, agreement or transaction entered into by the State of Georgia, or any department, agency, commission or authority thereof, for the purchase or sale of any real or personal property, goods or services, or a combination thereof, where such action would result in actual ascertainable pecuniary or other gain to such official or employee." (Ga. Code Ann. 89-913.)
"Section 2. No member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall make any contract in any capacity whatsoever to furnish any goods or supplies, or both, to the State, except after competitive bid thereon. No such person shall act as a dealer, agent or broker, or in any other manner, in connection with the sale of goods or services, or both, to the State, except after competitive bid thereon." (Ga. Code Ann. 89-914.)
"Section 3. No member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall act as dealer, agent or broker, or in any other manner, in connection with the sale of goods or services, or both, to the State, unless such person operates a regularly established business enterprise which, when selling such goods or services, or both, to the State, meets all the legal requirements connected therewith relative to submission of bids, posting of bonds, quality of goods or services, or both, and all other requirements in connection with such transactions." (Ga. Code Ann. 89-915.)
"Section 4. No person who is a member of any State board, bureau, commission or other State agency by whatever name called, or any authority created by law, shall engage in any transaction with any such board, bureau, commission, committee or other State agency, or any such authority, on which such person is a member." (Ga. Code Ann. 89-916.)
Looking first at Section 1, it must be noted that its prohibitions apply only to "full-time appointive State official[s] or employee[s]." Op. Att'y Gen. 1963-65, p. 169. As a consequence, Section 1 has no application at all to "elected" officials (whether or not they serve "fulltime"). Op. Att'y Gen. 68-440. It obviously does not cover legislators who are neither "appointive" state officials nor "full-time" state officials, Ops. Att'y Gen. 74-156; 68-499; 1963-65, p. 501. Transactions with the state by "part-time employees" are likewise exempt from the purview of Section 1. See Op. Att'y Gen. 71-11. What Section 1 does do (subject to the "competitive bid" provisions which as we shall see are provided in Section 2 with respect to members of state boards,

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bureaus, commissions, etc.) is to prevent a full-time state appointive official or employee from either selling property or services to any state department or agency, or from buying property or services from any state department or agency (and also from attempting to influence the execution of any contract for such a purchase or sale), if the appointive official or employee is likely to receive any tangible benefit or profit as the result of the purcha,se or sale.
The Attorney General has consequently opined, for example, that a full-time professional employee (or appointive official) of one state department cannot sell consulting services to another state agency. See, e.g., Ops. Att'y Gen. 71-49; 69-335; 67-414. A full-time employee of a state hospital cannot provide boarding house care for out-patients of the hospital under an agreement whereby he would be paid for such services by the hospital, Op. Att'y Gen. 66-77, and cannot buy dairy cattle from a state agency even at a public auction, Op. Att'y Gen. 68-187. On the other hand, it must be stressed that the prohibition of Section 1 (quite aside from the next discussed qualification of Section 2) is not absolute but applies only where some "benefit" accrues or is likely to accrue from the purchase or sale to the employee or appointive official. Hence, a sale "at the employee's cost, plus the value of capital improvements, less depreciation, or at the market value of the property at the time that such an employee inherited real property, less depreciation" would be permissible under Section 1. Op. Att'y Gen. 65-68. Moreover, in connection with the sale of "services," the term has been viewed by the Attorney General as pertaining to the sort of services provided by an "independent contractor" and not to mere employment-there consequently being no violation of Section 1 by virtue of the fact that the Georgia Building Authority employs persons to clean government buildings at night who are employed by various other state agencies during the day. Op. Att'y Gen. 69-467. 1976 Act No. 941 (Ga. Laws 1976, p. 448, amending Ga. Code Ann. 89-913), approved March 18, 1976, gave authorization for interdepartmental utilization of selected professional services.
Sections 2, 3 and 4 of the Act differ from Section 1 in that the state officials to which these provisions apply (i.e., members of state boards, bureaus, commissions or other agencies) are covered whether appointed or elected and whether full or part-time. If one falls within this class of officials (board member, etc.), he is exempted from those provisions of Section 1 relating to the sale of personal property, goods or services to the state (but not as to those relating to purchases from the state or as to those involving the sale of real property to the state) so long as the sale is pursuant to competitive bid. However, while Sections 2, 3 and 4 on their face would appear to authorize the sale of personal property as well as services to the state by a board member or other

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like official (so long as the sale is pursuant to "competitive bidding"), this provision of the "Trading With the State Law" appears to have been partially superseded by the flat prohibition of the sale of "personal property" to the state by state officers or employees contained in the Criminal Code of Georgia which went into effect on July 1, 1969 (and specifically Ga. Code Ann. 26-2306). The total prohibition of the sale of "personal property" by this next discussed legislation would seem to narrow the competitively bid sales to the state exemption of board members to "services" only. See Ops. Att'y Gen. 74-56, 69-475. Needless to say, Sections 2, 3 and 4 never have had any application to legislators (who would not ordinarily be members of such boards, bureaus, commissions or other agencies). Op. Att'y Gen. 1963-65, p. 501. This authorization of such sales where competitive bidding is used has never extended to the member's sale to his own board, bureau, commission or agency (as opposed to his sale to other boards, etc. of the state). See Ga. Code Ann. 89-916.
(4) Criminal Code of Georgia: "Abuse of Governmental Office" (Ga. Code Ann. Ch. 26-23).
Somewhat sharper teeth than those in the "Trading With the State Law" are contained in Chapter 26-23, "Abuse of Governmental Office," of the Criminal Code of Georgia which became effective July 1, 1969. See Ga. Laws 1968, pp. 1249, 1305 to 1310 (Ga. Code Ann. 26-2301 to 26-2312).
With respect to out and out bribery, the very first section of this Chapter would seem to require little in the way of amplification or explanation. In straightforward language, it reads as follows:
"26-2301. Bribery
"A person commits bribery when:
"(1) He gives or offers to give to any person acting for or on behalf of the State or any political subdivision thereof or of any agency of either, any benefit, reward, or consideration to which he is not entitled with the purpose of influencing him in the performance of any act related to the functions of his office or employment; or
"(2) Acting for or on behalf of the State or any political subdivision thereof or of any agency of either, he solicits or receives any such benefit, reward, or consideration.
"A person convicted of bribery shall be punished by a fine of not more than $5,000, or by imprisonment for not less than one nor more than 20 years, or both."
The principal difficulty which is apt to be encountered in the en-

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forcement of this provision, of course, is the showing of the improper "purpose" in the transaction. The acceptance of a "gift" is not bribery unless it can be shown that it was given for the purpose of injluendng the recipient's official conduct, or, that a "gift" of this nature was solicited by the official concerned. See Op. Att'y Gen. U71-5.
Another provision of interest in Code Chapter 26-23 8 is Ga. Code Ann. 26-2304 which states:
"26-2304. Improperly influencing legislative action
"(a) State officer or employee
"Any officer or employee of the State or any agency thereof who asks for or receives anything of value to which he is not entitled in return for an agreement to procure or attempt to procure the passage or defeat the passage of any legislation by the General Assembly, or procure or attempt to procure the approval or disapproval of the same by the Governor, shall, upon conviction, be punished by imprisonment for not less than one nor more than five years.
"(b) Local government officer or employee
"Any officer or employee of a political subdivision who asks for or receives anything of value to which he is not entitled in return for an agreement to procure or attempt to procure the passage or defeat the passage of any legislation by the legislative body of the political subdivision of which he is an officer or employee shall, upon conviction, be punished by imprisonment for not less than one nor more than five years."
This provision, which is apparently intended as a specific application of the previously discussed "bribery" section to the legislative process, would presumably pose the same sort of problem in application (i.e., a showing that a benefit was given, offered or solicited in return for an agreement to attempt to defeat or secure the approval of proposed legislation) as has been mentioned in connection with the general bribery provisions of Ga. Code Ann. 26-2301.
The provision of the Chapter which has been the subject of the largest number of comments by the Attorney General is Ga. Code Ann. 26-2306. This section is as follows:

s We do not attempt in this memorandum to discuss all of the provisions of this Code
Chapter which in some way or other can be said to relate to conflicts of interest. By
way of summary, Ga. Code Ann. 26-2303 relates to the receiving of benefits for the enforcement of penal laws or regulations, Ga. Code Ann. 26-2305 relates to one state or local officer or employee attempting to improperly influence another, Ga.
Code Ann. 26-2307 relates to conspiracies to defraud the state or a political subdivision, Ga. Code Ann. 26-2310 deals with false oaths and acknowledgments of
oaths, and Ga. Code Ann. 26-2311 relates to false official certificates or writings.

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"26-2306. Officer or employee selling to government or political subdivision
"(a) State officer or employee selling to government
"Any officer or employee of the State or any agency thereof, who for himself or in behalf of any business entity sells any personal property to the State or any agency thereof, shall, upon conviction, be punished by imprisonment for not less than one nor more than five years.
"(b) Local government officer or employee selling to political subdivision
"Any officer or employee of a political subdivision or agency thereof, who for himself or in behalf of any business entity sells any personal property to the political subdivision of which he is an officer or employee or to any agency thereof, shall, upon conviction, be punished by imprisonment for not less than one nor more than five years: Provided, however, that the provisions of this subsection shall not apply to sales of less than $200 per calendar quarter or sales made pursuant to sealed competitive bids made by an officer or employee of a political subdivision or agency thereof, either for himself or in behalf of any business entity."
The similarities between this provision and those of the previously discussed "Trading With the State Law" (i.e., Ga. Code Ann. 89-913 to 89-918) are apparent, but the differences are also important. The newer Criminal Code section is broader than the "Trading With the State Law" insofar as persons affected are concerned. Instead of being restricted to "full-time appointive officials or employees" and "members" of state boards, commissions, agencies, etc., it applies to all officers and employees of the state, political subdivisions of the state, or the agencies of either. Consequently, legislators and other elected officials, as well as part-time officials and employees, are all covered by Ga. Code Ann. 26-2306. Cf. Op. Att'y Gen. 69-444. The newer Criminal Code section is narrower than the "Trading With the State Law," on the other hand, when it comes to the sort of transactions proscribed. While the earlier Act covers real property and services as well as personal property, Ga. Code Ann. 26-2306 deals only with "personal property." Additionally, the new Criminal Code section relates not to purchases from governmental bodies but only to the sale of property by public officials and employees thereto. In opining that the general rule of strict construction of penal statutes would probably lead to the term "personal property" being deemed by the courts to include only goods and chattels, the Attorney General indicated that in his opinion, the following would be violations of Ga. Code Ann. 26-2306 (a) (relating to state officers and employees):

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"(1) A State officer or employee who acts for himself and sells his personal property to the State.
"(2) A State officer or employee who acts as an agent for another and sells any personal property to the State.
"(3) A State officer or employee who intends to violate this law but acts through an agent who sells the officer's or employee's personal property to the State." Op. Att'y Gen. 69-444.
This Criminal Code section, while prohibiting the sale of personal property by state-level officials to the state or state agencies and similarly prohibiting analogous transactions at the local level, does not prohibit sales of personal property by state officials to local governmental agencies or by local officials to state agencies. Op. Att'y Gen. 71-124. In an unofficial opinion, the Attorney General has expressed the view that Ga. Code Ann. 26-2306 is too vague on the point to permit a specific answer to the question of whether or not this provision, in and of itself, would make it a criminal offense for a member of a state agency to be an officer and stockholder in a corporation making sales to his agency if he does not directly participate in the sale of such goods. Op. Att'y Gen. U70-175.
A final provision of Code Chapter 26-23 which might be mentioned is that which enforces the previously mentioned "separation of powers" provision of the Constitution. It states:
"26-2309. Enforcement of the separation of powers provision of the Constitution
"It shall be unlawful for (a) members of the General Assembly to accept or hold office or employment in the executive branch of the State Government, or any agency thereof, or in the judicial branch of the State Government; (b) judges of courts of record or their clerks and assistants to accept or hold office or employment in the executive branch of the State Government, or any agency thereof, or in the legislative branch of the State Government; (c) officers or employees of the executive branch of the State Government, to accept or hold office or employment in the legislative or judicial branches of the State Government. A person who knowingly disburses or receives any compensation or money in violation of this section is guilty of a misdemeanor: Provided, however, that nothing in this section shall be construed to apply to any officer or employee of the executive branch who has taken a leave of absence without pay from his post for temporary service as an employee of the legislative branch while it is in session and during the authorized stay-over period."
This provision would not appear to prohibit the sale of "services"

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by a member of one branch to an agency of another provided that such role is made as an independent contractor and the vendor is not an "officer" or "employee" of the purchasing agency. Op. Att'y Gen. 74-156. A member of the General Assembly could not, of course, be employed by a state agency, such as a branch of the University System of Georgia. Op. Att'y Gen. U73-85.

FEDERAL LEGISLATION
The Hobbs Act, 18 U.S.C. 1951, provides in subsection (a) that:
"Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both."
On its face this would seem to have little to do with a public official's "conflict of interest" either with respect to situations or circumstances involving a potential misuse of official power, or, where the official has succumbed to temptation and has in fact misused his official power for personal profit. Thus, whatever trepidations a Chicago alderman may have had concerning state "conflict of interest" statutes when in return for monetary "gifts" or "donations," he refrained from opposing zoning changes in his ward, they probably did not include the possibility of imprisonment of up to 20 years under the Hobbs Act.
Whether his miscalculation resulted from bad luck (it was Chicago's "13th" ward that he represented) or inadequate legal advice, the alderman was given 18 months to ponder. The word "extortion" in subsection (a) of the Hobbs Act is defined by subsection (b) (2) as follows:
"The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." (Emphasis added.)
Finding that a Chicago alderman's influence over the grant or rejection of zoning applications in his ward was considerable notwithstanding the fact that the city council's decision did not invariably follow an alderman's opposition or lack of opposition ("ward courtesy" exists in varying forms and degree), the United States Court of Appeals for the Seventh Circuit affirmed his conviction. See United States v. Staszcuk, 502 F.2d 875 (7th Cir. 1974). In the words of the court:
"The government presented sufficient evidence of an alderma 's

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influence over zoning applications in his own ward that the jury could conclude defendant's official functions encompassed the unbiased consideration and treatment of all zoning applications. The payments were made to defendant to influence his exercise of the political power he held as alderman over zoning applications. To accept money in return for an agreement not to oppose such applications-in effect to suspend independent judgment on the merits of such zoning changes-constitutes obtaining property from another, with his consent, induced under color of official right." 502 F.2d at p. 878.
Although it is true that prosecution under the Hobbs Act requires at least some de minimus involvement of interstate commerce, the Staszcuk case also illustrates exactly how "de minimus" the involvement can be. The zoning change in question in Chicago's 13th ward resulted in apartments being built in an area where under the previous zoning, they could not have been constructed. The Court of Appeals rejected the notion that it made any difference that the interstate commerce upon which its jurisdiction depended (i.e., the interstate flow of building supplies for construction of the apartments) was beneficially affected and not obstructed. As the court put it:
" ... surely the word 'affects' in the phrase 'obstructs, delays or affects' is superfluous if it is interpreted to mean 'affects adversely.' " 502 F.2d at p. 878 n. 7.
Members of the vice squad of a municipal police department found to be taking a payment of $100 a month from night club owners in return for not "harassing" night club owners have also been held to be within the ambit of the Act's provision prohibiting extortions under the color of official right. See United States v. Braasch, 505 F.2d 139 (7th Cir. 1974). The Court of Appeals observed that:
"It matters not whether the public official induces payments to perform his duties or not to perform his duties, or even, as here, to perform or not to perform acts unrelated to his duties which can only be undertaken because of his official position. So long as the motivation for the payment focuses on the recipient's office, the conduct falls within the ambit of 18 U.S.C. 1951. That such conduct may also constitute 'classic bribery' is not a relevant consideration." 505 F.2d at p. 151.
In United States v. Mazzei, 390 F. Supp. 1098 (W.D. Pa. 1975), a state senator was similarly convicted when it was shown that his alleged "political contributions" from a corporation were in reality "kickbacks" for the state's lease of building space from the corporation (entertainment of the senator and his wife in Florida at the cor-

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poration's expense was also noted by the court). In upholding his conviction, the district court said:
". . . we reject the defendant's contention 'that guilt may be predicated only upon a further finding that he perverted the legal or statutory power (de jure) of his public office. It is enough that he appeared to act under ... 'color of official right' * * *Senator Mazzei, a public official, wrongfully took money not due him or his office." 390 F. Supp. at p. 1105.
The public's insistence upon higher standards of official deportment in such matters than we have sometimes had of late is pointed up by these recent federal convictions under the Hobbs Act. It follows that fidelity to the core principle of no personal profit or benefit (or even the appearance of personal profit or benefit) from the conduct of the public's business is increasingly the prudent course of action legally as well as morally.

SUMMARY
The constitutional provisions and statutes of the State of Georgia pertaining to "conflicts of interest" of public officials and employees present a rather complicated labyrinth as to which persons and transactions are covered and which are not. Some of the provisions apply to all officials while some apply only to "appointive" (i.e., nonelective) officials. Some cover "employees" as well as "officers"; others do not. As to transactions, the variance is at least as great. Some provisions cover a public official's purchases from as well as his sales to the state or a state agency, while a substantially greater number are concerned only with "sales." Even with respect to those provisions concerned with sales, there are important differences. Some provisions cover real property, personal property and also services; some relate to the sale of "personal property" only. Moreover, the differences are important since they may well determine whether the consequence is limited to a public official (a) having his improper contract declared to be null and void, (b) being stripped of his public office, or (c) being sent to prison. All of this can occur under the general constitutional and statutory provisions which we have attempted to summarize as being of the greatest general importance even without consideration of the myriad special and local constitutional provisions which we have made no attempt to consider.
Moreover, these constitutional and statutory provisions "do not constitute the sole source of inhibitions against conflicts of interest" since a rather substantial body of common law has also been developed on the subject in Georgia. See Op. Att'y Gen. 73-155. Happily, this appears to be one instance where the continued applicability of the

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common law clarifies rather than further obfuscates the statutory maze. As pointed out earlier, there is the one core common law principle which stands out as a lodestar and is the source of virtually all constitutional, statutory and common law amplification. It is the principle that a public official or employee must not place himself in a position where his private and personal interest (as distinguished from a general citizenship interest) might prevent or appear to prevent him from exercising his official judgment, discretion, powers or duties in an unbiased manner. The obligation is founded on the right of the People (whom he serves) to have his best judgment and actions from the viewpoint of what is best for the general public, and to have it without fear that the decision, judgment or action has been influenced by considerations of his personal profit.

381
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 Table 5 Obsolete or Modified Opinions Table 6 Table of Cases

383
TABLE 1
UNITED STATES CONSTITUTIONAL PROVISIONS CITED
OP.NO.
Art. I, Sec. 10, Cl. 1...................................... 76-127 Art. VI, Cl. 2 ............................................ 76-95 Amend. 2................................................ U76-69 Amend. 14........................... 76-74, 76-121, U76-4, U76-69
TABLE2
GEORGIA CONSTITUTIONAL PROVISIONS CITED
OP. No.
Art. I, Sec. I, Par. I. ............ 76-46; Op. Att'y Gen. 1976, p. 355 Art. I, Sec. I, Par. II ..................................... 76-121 Art. I, Sec. I, Par. III .................................... 76-121 Art. I, Sec. I, Par. XXII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-69 Art. I, Sec. I, Par. XXIII .............. Op. Att'y Gen. 1976, p. 355 Art. I, Sec. IV, Par. I. ................ 76-17, 76-51, U76-10, U76-20 Art. I, Sec. V, Par. I. ....................................76-121 Art. II, Sec. I, Par. I ....................................... 76-2 Art. II, Sec. II, Par. I ............................... 76-69, 76-92 Art. II, Sec. VII, Par. I. ............................. 76-22, 76-56 Art. III, Sec. IV, Par. III .................................. 76-76 Art. III, Sec. IV, Par. VI .............. Op. Att'y Gen. 1976, p. 355 Art. III, Sec. VI, Par. II. ................................. 76-100 Art. III, Sec. VII, Par. VIII. ...................... 76-43.1, U76-20 Art. III, Sec. VII, Par. XI ........................... 76-38, 76-93 Art. III, Sec. VII, Par. XVI .............................. 76-43.1 Art. III, Sec. VII, Par. XVIII ............................ U76-28 Art. IV, Sec. IV, Par. III .................................. 76-91 Art. VI, Sec. III, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-72 Art. VI, Sec. III, Par. III. ................................ 76-120 Art. VI, Sec. X, Par. II .................................... 76-93 Art. VI, Sec. XI, Par. I. .................................. 76-120 Art. VI, Sec. XIII, Par. I .................................. 76-28 Art. VII, Sec. I, Par. II ............... 76-18, 76-102, 76-114, 76-115,
76-127, U76-3, U76-31 Art. VII, Sec. I, Par. II (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-28 Art. VII, Sec. I, Par. II (1) and (2) ........................ U76-31 Art. VII, Sec. I, Par. II (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-62 Art. VII, Sec. I, Par. II (6), (7), (8), (9), (10),
(lOA), (14), (16) and (18) ............................... 76-115

384
GEORGIA CONSTITUTIONAL PROVISIONS-Continued
OP.No.
Art. VII, Sec. I, Par. II (15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-31 Art. VII, Sec. I, Par. II (18) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-31 Art. VII, Sec. II, Par. I. ...................................76-44 Art. VII, Sec. II, Par. I-A ................................. 76-115 Art. VII, Sec. II, Par. III .................................. 76-93 Art. VII, Sec. III, Par. VI ...... U76-55; Op. Att'y Gen. 1976, p. 355 Art. VII, Sec. IV, Par. II .................................. 76-44 Art. VII, Sec. VI, Par. I ................................... 76-15 Art. VII, Sec. VI, Par. I (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-2 Art. VII, Sec. IX, Par. IV ................................. 76-93 Art. VIII, Sec. IV, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-40 Art. VIII, Sec. V, Par. I. .......................... 76-128, U76-14 Art. VIII, Sec. V, Par. II ................................. U76-14 Art. VIII, Sec. VI, Par. I. ................................ U76-14 Art. VIII, Sec. VI, Par. II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-14 Art. VIII, Sec. XII, Par. I ................................. 76-66 Art. XI, Sec. II, Par. I. .............................76-85, U76-5 Art. XII, Sec. I, Par. I .................................... 76-95 Art. XIII, Sec. I, Par. I. ........................... 76-71, U76-52 Art. XIII, Sec. I, Par. IV ................................. 76-127

385

AcT PAGE

TABLE3 GEORGIA LAWS CITED

OP.No.

isso:si .... 33.............. GG~:at.;.L;.a:w..s 1878-79

. . . . . . 76-49 U76-26

t09 ....... G~.t;.;.:.. i889... ............ .76-79 t41. ....... G~:t;.;.:.; i890:9i. .... . .... . . ............. 6-79

t51. ..... G~: :t,;~~.i89:i ............

.

....

7 76-79

t;.;.:.; 86...................... G~:

.t89:i ............ ..... U76-27

102 ..................... ~. t;.;.:.. i895. ............ 76-69

63........... G~: L;.".;.; ~oot

................
u76-26

55 ...... G~:t;.;.:.. i003. .. ................... 76-123

11. ...... G~: t;,;.:,; .t906 . . . ............ . .... 76-4o

83....... G.;: t;,:,;~ iOOi... ........... .....76-79

72................ ...................................................... . 7.6-53, 76-91

72, 75 Ga. Laws 1908

.... U76-27

ss. .. ..... G~:t;.;.~ i9iti. .. ........... 76-98

86 87

............... ........

.

..

...

. .G.~.:i...;...;.:.::t:9.t.a.

.

. ...................... .. .. .. .. ..

.. 76-71 76-49

122 123;

. . . . . . . . . . . .
iii...::.

. G.~.:.

t.;..;..:..;.

. . . .t!i

ti

i..

. .. .

..

.

..

..

.

..

..

..

.. 76-63 . 6-49

82.................. .......... .. .. .. .. .. .. .. .. .. .. .... ................ : : : : : : : .77766--6464

288 333 . . . . . . . . . . . . . . . . . . . . . .......................... 76-72

288''337 . . . . . . . . . . . . .. .. ..................... . . .............. . . .... .

315.... Ga. Laws 1922

U76-1

82................... . . . . . . .......................................................... 7766--5931
11443,31.4.4............................................. . . ......................... .

386

GEORGIA LAWS-Continued

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OP. No.

Ga. Laws 1931 7 et seq..................................... 76-88, 76-93, U76-40 7, 35, 37 ................................................. 76-93
Ga. Laws 1931, Extra. Sess. 24, 51 ................................................... 76-54
Ga. Laws 1933 62 ....................................................... 76-88
Ga. Laws 1937 208 ...................................................... 76-93 210 ..................................................... 76-113 377 ...................................................... 76-10 503 et seq........................................... 76-42, 76-98 806 ...................................................... 76-27 864..................................................... 76-132 864, 866 ................................................ 76-132 1771, 1796 ............................................... U76-4 1771, 1816 ............................................... U76-4
Ga. Laws 1937-38, Extra. Sess. 77, 85 .................................................. U76-48 77, 94 ................................................... 76-54 189 ...................................................... 76-74
Ga. Laws 1941 300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-15 300, 305 ................................................ U76-15
Ga. Laws 1943 273 .................................. Op. Att'y Gen. 1976, p. 355 282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-28 284 .. .................................................... 76-93 331 ..................................................... 76-112 348 ...................................................... 76-49 354 ...................................................... 76-18 370...................................................... 76-93 640 .............................................. 76-34, U76-31 640, 641 ............................... 76-19, 76-34, 76-55, 76-84,
U76-25, U76-31
Ga. Laws 1945 362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-68 362 et seq.............. 76-1, 76-86, U76-9, U76-32, U76-41, U76-49,
U76-60, U76-66, U76-67, U76-68 398 ...................................................... 76-18 438 ...................................................... 76-18

387

GEORGIA LAWS-Continued

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OP.No.

Ga. Laws 1946
12 ............. '' ...... ' .......... ... ' .. '. ' ....... '76-49, 76-88 83 ..................................................... U76-27 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-59 206, 211 .................................................. 76-66
Ga. Laws 1947 1183 ............................................... 76-49, 76-88 1543 ................ , ............................ 76-31, U76-58
Ga. Laws 1949 138 .................................................... U76-25 138 et seq.............. 76-:-58, 76-129, U76-8, U76-9, U76-25, U76-34 138, 160.................................................. 76-58 427 .................................................... U76-20 780 et seq................................................ 76-86 1157 ................................................... U76-15
Ga. Laws 1950 38, 42 ................................................... 76-27
Ga. Laws 1951 360...................................................... 76-39 394, 396.................................................. 76-58 565 ...................................................... 76-13 861 et seq............................................... 76-127 2279, 2281 .............................................. U76-20
Ga. Laws 1952 153 .................................................... U76-26 2529 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-20
Ga. Laws 1953, 1an.-Feb. Sess. 323 et seq............................................... U76-34 418 ...................................................... 76-40
Ga. Laws 1953, Nov.-Dec. Sess. 271 ...................................................... 76-71 305 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-34 412 et seq........................................... 76-41, 76-60 556 ...................................................... 76-29
Ga. Laws 1955 10, 19 ................................................... 76-32 262 ...................................................... 76-88 262, 263 .................................................. 76-49 309 .................................................... U76-40 339 et seq............................................... U76-65 483 et seq................................................ 76-95 483, 491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-12

ass

GEORGIA LAWS-Continued

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OP.NO.

Ga. Laws 1955-Continued 2210, 2212 ................................................ 76-66
Ga. Laws 1956 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-2 27, 32 ................................................... 76-16 54, 56 ................................................... 76-58 60, 62 ........................ ' ................. ; ... ; .... 76-46 60 to 63 .............................. Op. Att'y Gen. 1976, p. 355 133 ..................................................... 76-128 368 et seq............................................... U76-65 463 ...................................................... 76-56 695, 696 ................................................ U76-15
Ga. Laws 1957 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-30; Op. Att'y Gen. 1976, p. 355 206 ...................................................... 76-96 219 ..................................................... 76-124 339, 340................................................ U76-15 2307, 2308 .............................................. U76-12
Ga. Laws 1958 55, 58 ................................................... 76-126 55, 59 .................................................. 76-126 61 ..................................................... U76-36 253, 254 ................................................. 76-56 255 ...................................................... 76-56 269, 274 .................................................. 76-2 385 ..................................................... U76-71 637 .............................................. 76-129, U76-8 641 ................... ', .................................. 76-18
Ga. Laws 1959 88 et seq......................................... 76-126, U76-43 325, 326 ................................................ U76-52 3093 ................................................... U76-36
Ga. Laws 1960 7 ........................................................ 76-54 67 ...................................................... 76-106 289 ...................................................... 76-89 289, 293 .................................................. 76-59 289, 426 ................................................. 76-81 289, 551 .................................................. 76-67 289, 672 ................................................. 76-31 857 ...................................................... 76-16 970 ...................................................... 76-40

389

GEORGIA LAWS-Continued

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OP. No.

Ga.Laws196G--Continued 988 ..................................................... 76-123 991, 993 ................................................ U76-65 1172..................................................... 76-21 2158, 2161 ............................................... U76-4
Ga. Laws 1961 39 ...................................................... 76-132 39, 40 .................................................. 76-132 147 et seq......................................... 76-81, U76-34 195 .................................................... U76-52 219 .................................................... U76-15 563 ...................................................... 76-63
Ga. Laws 1962 17, 19.................................................... 76-93 65, 66 .................................................. U76-52 140 .................................................... U76-10 140, 141 .................................................. 76-42 524, 525 ................................................ U76-15 547 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-58 602 ................................................ 76-86, 76-96
Ga. Laws 1963 81, 82 ................................................... U76-6 81, 91 ................................................... U76-6 81, 110 .................................................. U76-6 434 ...................................................... 76-18 602 ..................................................... 76-106 651 ...................................................... 76-96 2967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-19
Ga. Laws 1964 255 ..................................................... 76-119 338 ...................................................... 76-78 362 ...................................................... 76-28 414 ...................................................... 76-20 416 et seq................................................ 76-121 499, 514.................................................. 76-17 499, 631 et seq........................................... 76-111 499, 637 et seq........................................... 76-121 683 ...................................................... 76-96 693, 696 ................................................. 76-98 758 ...................................................... 76-86

390

GEORGIA LAWS-Continued

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OP.No.

Ga. Laws 1964, Extra. Sess. 26 et seq.......................... 76-2, 76-6, 76-51, 76-87, U76-13,
U76-45, U76-50, U76-71 26, 28 ................................................. 76-128 26, 39 .................................................... 76-24 26, 40 et seq.............................................. 76-51 26, 45 ..................................................... 76-2 26, 49 ......................................... 76-8, 76-37, 76-48 26, 50................................................. ,U76-46 26, 56 .................................................... 76-2 26, 63 ................................................... 76-24 26, 71 ................................................... U76-5 26, 97..................................................... 76-5 26, 177 .................................................. 76-90
Ga. Laws 1965 118 .................................................... U76-57 182...................................................... 76-88 182, 183 ................................................. 76-49 298 .............................................. 76-23, U76-10 378................................ ~ ..................... 76-89 448 ............ .................................. 76-31, U76-58 668 ...................................................... 76-72 2243 ..................................................... 76-45
Ga. Laws 1966 212, 213 ................................................ U76-15 296 .................................................... U76-10 428 .................................................... U76-39 440 ...................................................... 76-16 574 ...................................................... 76-77 590................. ~ ............... ; ................... 76-116 1075, 1076 .............................................. 76-128
Ga. Laws 1967 252 ...................................................... 76-15 294, 295 ................................................. 76-126 455 .................................................... U76-43 542...................................................... 76-29 555 ..................................................... 76-106 563 ...................................................... 76-40 581 et seq........................................ 76-121, 76-122 637 ...................................................... 76-77 650 ................................................ 76-53, 76-91 772, 773 ................................................. U76-6

391

GEORGIA LAWS-Continued

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OP. No.

Ga.Lawsl967--continued
788, 790........."......................... '" ... '" ....... U76-48
840 oo o" oo' ooo oo0 0 o0 ooooo ooo o oooo 0 0 0 ,, o" oo , oU76-70
3211 et seq............................................... 76-73 Ga. Laws 1968
9 et seq................................................. 76-121 259 et seq.................... 76-83, 76-86, U76-34, U76-41, U76-49 275 et seq.................................. 76-1, U76-41, U76-66
288...................................................... 76-40 324 .......... " .................................... 76-16, 76-130 330 .........................."........................... U76-70 871. ........................................ 76-5, 76-37, U76-45 871, 877 .................................................. 76-5 871, 879................................................ U76-45
885 et seq............................. 76-2, 76-23, U76-16, U76-71
885, 902 ................................................. 76-2 885, 978 ..............'................................... 76-23 885, 979 ................................................. 76-23 1044, 1045 ................................ ' ............. 76-109
1217."''' ................................................. 76-43
1249 et seq............ 76-33, 76-103, 76-117, 76-123, U76-29, U76-33
1249, 1270............................................... 76-123 1249, 1271 ............................................... 76-33
1249, 1305 to 1310..................... Op. Att'y Gen. 1976, p. 355 1249, 1307 ............................ Op. Att'y Gen. 1976, p. 355 1249, 1309..................... 76-117; Op. Att'y Gen. 1976, p. 355
1249, 1323.............................................. U76-29 1249, 1324.............................................. U76-33
1369 ................................. Op. Att'y Gen. 1976, p. 355
1436..................................................... 76-44
2469 , oooo ooo , 0 , o o o o,,, o ' o"U76-53
Ga. Laws 1969
292...................................................... 76-73 308 . . . . . . . . . . . . . . . . . . . . . . . . . "' . . . . . . . . . . . . . . . . . . . . . . . . . U76-45
505 et seq............................................... 76:111
678 ..................................................... 76-95 721 ...................................................... 76-44 735, 736 ......................................... '"' ....... U76-59 763 .................................. 76-4, 76-102, 76-115, U76-30 763, 770................................................ U76-30
829 ........ " ........................................... U76-34 927 .................................................... U76-15

392

GEORGIA LAWS-Continued

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OP. No.

Ga. Laws 1969-Continued
998, 1012 ........ - ........ - ................... - ........... 76-25
998 to 1013 ............................................... 76-25 Ga. Laws 1970
163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-43 208 ...... - ..... - .......................................... 76-9 249 et seq................................... 76-1, U76-41, U76-66 249, 250 ................................................ U76-41 321 ................. - .................................... 76-15 336 ...................................................... 76-28 341, 345 .................................................. 76-23 346 .................................................... U76-10 347 ......................... 76-5, 76-22, 76-51, 76-56, 76-73, 76-90,
76-120, 76-128, U76-22, U76-23, U76-50 347, 350 ................................................. 76-51 347, 354 .... -. - ... - ........... - ......................... 76-128 347, 360..........._...._................................. U76-22 347, 362 ............._................................... U76-22 347, 364 ............... - - ................................. 76-22 347, 369 ..................... - ............................ 76-5 347, 374 ................................................. 76-73 347, 382 ........................................... 76-56, 76-120 383, 385 .................................................. 76-5 640 ...................................................... 76-71 954 .............................. - ............ -. 76-106, 76-116
1127 to 1133 .............................................. 76-51 1153 et seq.............................................. U76-31
Ga. Laws 1971
98 ....................................................... 76-93 99 et seq................................................. U76-9 270 ............................................ - ........ 76-37 332 et seq............................................... U76-65 403 ..... - ............................................. U76-15 602 ................................. 76-22, 76-120, 76-128, U76-23 693, 696 ................................................ 76-130 709 et seq........................... 76-111, 76-131, U76-7, U76-15
Ga. Laws 1972
10....................................................... 76-40 214 ...................................................... 76-44 575 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-57 638 ........................................... '........... 76-82 664 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-37, U76-51, U76-61

393

GEORGIA LAWS-Continued

AC'l' PAGE

OP.No.

Ga.Laws1972--Continued
784 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-15 820 ..................................................... U76-10 868 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-5, U76-46, U76-58 976 et seq............................................. .. 76-121 1002 et seq................................... 76-14, 76-17, 76-121 1002, 1006 ............................................... 76-17 1015, 1058 ............................................... 76-17 1069 ............................................. 76-43.1, 76-46 1125 ..................................................... 76-97 1161 ................................. Op. Att'y Gen. 1976, p. 355 1267 et seq.................................... , .... , ..... 76-108 2487 ................................................... U76-68 2590 ........................ ............. ............... U76-42
Ga. Laws 1973
40 et seq........................ 76-36, 76-43, 76-68, 76-113, 76-125 100...................................................... 76-93 100, 115 ....................................... ' ........ 76-101 127..................................................... 76-106 454 .................................................... U76-39 526 ..................................................... 76-116 560, 561 ................................................. U76-6 778 .............................................. 76-42, U76-10 785 ....................... .. ,' ............................. 76-1 882 ..................................................... 76-111 911 .................................................... U76-68 929, 931 ............................... ................... 76-10 934 ................................................ 76-49, 76-88 947 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-21 947, 959 ................................................ U76-24 947, 1123 ............................................... U76-24 1202 et seq........................... , ................... 76-75 1269, 1270 ............................................... 76-14 1301 ........................................ 76-11, 76-33, 76-110 2061, 2062 .............................................. U76-38 3074...................... , .............................. 76-23
Ga. Laws 1974
71 ........................................................ 76-2 82 ................................................... 76-2, 76-8 155 ............................. 76-22, 76-52, 76-53, 76-8Q, 76-99,
76-100, 76-108, 76-109 155 to 162............................. 76-52, 76-53, 76-80, 76:-109

394

GEORGIA LAWS-Continued

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OP.No.

Ga.Lawsl974--Continued 162 .... ......................... ,, ....................... 76-21 195 . . . . . . . . . . . . , , ... , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-10 438 ..................................................... 76-131 455 .................................................... U76-53 455, 456 ................................................ U76-17 633 .......................................... 76-11, 76-13, 76-29 705 et seq...................... 76-12, 76-20, 76-79, 76-105, 76-106,
76-109, 76-119 705, 791 ...... ' ; . ' ......................... ; ............. 76-20 705, 894 et seq..................................... 76-12, 76-119 705, 911-18............................................... 76-79 705, 918 et seq........................................... 76-105 705, 964 ................................................ 76-109
705 to 968 ............................................... 76-109
1045 ........................... ......................... 76-118 1045, 1099 .... ; ......................... ' .............. ;76-112 1137..................................................... 76-29 1170, 1171 .................. ' ............................. 76-95 1210..................................................... 76-65 1451 ...................................................... 76-7 1652..................................................... U76-31 1708 ................................................... U76-52 1807 ........................ ........................... U76-63 1809 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-31 2665 ....... , ........................................... U76-10 3392 ................................................... U76-35
Ga. Laws 1975 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-10 37 .............. ,, ....................................... 76-34 79 et seq..................................... 76-47, 76-62, 76-97 79, 81 .................................... ' ............... 76-47 94, 95 ................................................... 76-44 147..................................................... 76-105 404 ...................................................... 76-78 473 ................................ ; .................... 76-106 475 ..................................................... 76-116 529 ...................................................... 76-94 735 ......... ~ ........................................... 76-30 797 ................................................... U76-15 801 ..................................................... 76-124 852 .................................................... U76-11

395

GEORGIA LAWS-Continued

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OP. No.

Ga.Lawsl975--Continued 882 ...................................................... 76-93 888....................................................... 76-2 922 ............................................. 76-31, U76-58 1008........................................ 76-11, 76-13, 76-107 1114..................................................... 76-77 1120 et seq............................. 76-52, 76-53, 76-80, 76-109 1120, 1125................................................ 76-80 1120, 1127.......................................... 76-52, 76-53 1191 ..................................................... 76-18 1333 ..................................................... 76-38 1579 ..................................................... 76-19 1632 ..................................................... 76-86 2960 ................................................... U76-14 4512 ..................................................... 76-73 4554 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-64
Ga. Laws 1976 168......................................... 76-26, 76-76, 76-116 217 ...................................................... 76-45 235 et seq............................................... U76-65 344 .................................................... 76-43.1 393,394 .................................................. 76-7 405 ..................................................... 76-105 448 .................................. Op. Att'y Gen. 1976, p. 355 456 ..................................................... 76-129 464 .................................................... U76-58 468 ....................................................... 76-8 474 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-5 484 et seq............................................... U76-54 484, 489 ................................................ U76-54 527 et seq................................................ 76-98 538 ...................................................... 76-89 586 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-68 586, 588 ................................................ U76-68 586, 591 .................................................. 76-86 586, 606 ................................................ U76-68 586 to 611 ........... 76-83, 76-86, U76-32, U76-34, U76-41, U76-47,
U76-49, U76-60, U76-66, U76-67, U76-68 613 ..................................................... 76-105 616 ....... : .............................................. 76-44 617 ..................................................... 76-110 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-37

396

GEORGIA LAWS-Continued

AcT PAGE

OP.No.

Ga.Laws1976--Continued 726 ......................... ............................. 76-77 782 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-72 785, 916 ........................................ .......... 76-93 988 .................................................... ,U76-64 1083, 1084 ............................................... U76-36 1181 ....................................... . ............ 76-50 1197 .................. ................ ' .................. 76-77 1372 .................................................... 76-101 1384 .............................................. 76-81, 76-104 1401 ....................................... , ....... 76-57, 76-110 1414....................... ........................ 76-64, 76-88 1423 ............................... ............... 76:-51, 76-109 1430 ....................... 76-68, U76-29, U76-33, U76-69, U76-71 1458 ................................................... U76-25 1459 ..................................................... 76-65 1517 ..................................................... 76-89 1522 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-35 1563 .................................................... U76-44 1608 et seq...................................... U76-26, U76-62 1681, 1683 ............................................... 76-12 1719, 1723 .............................................. U76-18 1878 to 1880 ............................................. 76-127 3058 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-31

397

TABLE 4

GEORGIA CODE ANNOTATED SECTIONS CITED

CoDE SECTIONS

OP.No.

1-134 ................................... ................. 76-127 1-602 ..................................................... 76-95 1-802 .................................................. U76-69 1-815 ............................... 76-74, 76-121, U76-4, U76-69
2-101 .......................... 76-46; Op. Att'y Gen. 1976, p. 355
2-102 .................................................... 76-121 2-103 ................................................... 76-121 2-122 .................................................. U76-69
2-123 ................................ Op. Att'y Gen. 1976, p. 355
2-401. .............................. 76-17, 76-51, U76-10, U76-20 2-501 ................................................... 76-121 2-701 ..................................................... 76-2 2-801 .............................................. 76-69, 76-92 2-1201a ............................................. 76-22, 76-56 2-1603 ................................................... 76-76
2-1606 ............................... Op. Att'y Gen. 1976, p. 355
2-1802 .................................................. 76-100 2-1908 .......................................... 76-43.1, U76-20 2-1911 ............................................. 76-38, 76-93 2-1916 ................................................. 76-43.1 2-1918 ................................................. U76-28 2-2703 ................................................... 76-91 2-2916 .................................................. 76-102 2-3801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-72 2-3803 .................................................. 76-120 2-4502 ................................................... 76-93 2-4601 .................................................. 76-120 2-4801 ................................................... 76-28 2-5402 ....................... 76-18, 76-102, 76-114, 76-115, 76-127,
U76-3, U76-28 2-5402 (1) and (2) ....................................... U76-31 2-5402 (2) ................................................ 76-62 2-5402 (6), (7), (8), (9), (10), (lOA), (14), (16) and (18)'. ....... 76-115 2-5402 (15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-31 2-5402 (18) ............................................. U76-31 2-5501 ................................................... 76-44 2-5501.1 ................................................ 76-115 2-5503 ................................................... 76-93
2-5606 ........................ U76-55; Op. Att'y Gen. 1976, p. 355
2-5702 .................................................... 76-44

398

GEORGIA CODE ANNOTATED SECTIONS-Continued

ConE SECTIONS

OP. No.

2-5901 .................................................. U76-2 2-5901 (a)"................................................ 76-15 2-6204 ................................................... 76-93 2-6701 ................................................. U76-40 2-6801 ................................................. U76-14 2-6802 ................................................. U76-14 2-6901 ................................................. U76-14 2-6902 ................................................. U76-14 2-7501 ................................................... 76-66 2-7901 ............................................. 76-85, U76-5 2-8001 ................................................... 76-95 2-8101 ............................................ 76-71, U76-52 2-8104 .................................................. 76-127 3-107 .................................................... U76-3 3-705 .................................................... U76-3 3-706 .................................................... U76-3 Title 3A ................................................. 76-78 3A-104................................................... 76-78 4-214 .................................................... 76-18 5-649 to 5-664 ............................................ 76-41 5-2001 et seq.............................................. 76-10 5-2004 ................................................... 76-10 5-2011.1 ................................................. 76-10 Ch. 5-29 .................................................. 76-4 5-2903 (b) ................................................. 76-4 5-2906 ............................................76-102, 76-115 5-2907 .................................................... 76-4 5-2908 ................................................. U76-30 5-2912 .................................................. 76-115 5-2914 .................................................... 76-4 5-2916 ............................................. 76-4, 76-115 5-2922 .................................................... 76-4 5-3310 ............................... Op. Att'y Gen. 1976, p. 355 5-3502 ................................................... 76-94 9-401.2 ................................................... 76-28 Title 13.................................................. 76-106 13-201.1 ........................................... 76-76, 76-116 13-203.1 ................................................ 76-106 13-203.2 ................................................ 76-116 13-207 et seq........................................ 76-26, 76-76 13-207 (a) (5) (B) ......................................... 76-26 13-207.1 ................................................. 76-76

399

GEORGIA CODE ANNOTATED SECTIONS-Continued

ConE SECTIONS

OP. No.

13-207.2 ................................................. 76-76 13-207.3 ................................................. 76-76 13-1802 ................................................. 76-109 14-1809 ................................................. 76-112 15-101 ................................................... 76-95 17-505 .................................................. 76-121 17-516 .................................................. 76-121 17-1110 ................................................. 76-121 20-107 .................................................. 76-121 20-301 .................................................. 76-121 20-302 .................................................. 76-121 20-504 ............................... Op. Att'y Gen. 1976, p. 355 20-704 (5) ................................................ 76-20 20-1007 .................................................. 76-40 23-103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-35 23-802 .................................................. U76-57 Ch. 23-9 ................................................. U76-1 23-1705 .................................................. 76-98 23-1713 .............................. Op. Att'y Gen. 1976, p. 355 24-402 ............................................ 76-87, U76-4 24-1701b to 24-1705b .................................... U76-53 24-1702b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-53 24-1703b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-17 24-1705b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-53 Ch. 24-26 ............................................... U76-67 Ch. 24-26A ............. 76-1, 76-86, U76-9, U76-32, U76~34, U76-41,
U76-47, U76-49, U76-60, U76-66, U76-67 24-2602a ................................................. 76-86 24-2603a .................................................. 76-1 24-2605a.l ................................................ U76-9 24-2605a.2 .............................................. U76-68 24-2609a ................................................. 76-86 24-2610a ................................................. 76-86 24-2610a.l. ........................... 76-1, 76-86, U76-41, U76-66 24-2610a.1 (c) ....................................... 76-1, U76-9 24-2610a.1 (d) ............................................. 76-1 24-2624a................................................ U76-68 Ch. 24-26B ........... 76-83, 76-86, U76-32, U76-34, U76-41, U76-47,
U76-49, U76-60, U76-66, U76-67, U76-68 24-2601b ................................................. 76-83 24-2602b ................................................. 76-83 24-2602b (d) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-60

400

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SECTIONS

OP. No.

24-2608b ............................................... U76-49 24-2608b (d) ............................................ U76-34 24-2610b (a) ............................................ U76-60 24-2615b ......................... U76-41, U76-47, U76-66, U76-67 24-2615b (a) ............................................. U76-60 24-2(315b (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-60 24-2615b (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-60 24-2616b ......................... U76-41, U76-60, U76-66, U76-67 24-2727 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-37, U76-51, U76-61 24-2803 .................................................. U76-58 24-2805 ........................................... 76-31, U76-58 24-2811 ................................................ U76-20 24-2823 ................................................ U76-37 24-2806b (b) ......... :.' . . . . . . . . . . . . . . . . . . ' . . . . . . . . . . . . . . . 76-86 24-2901 . . . . . . . . . . . . ' . . . . . . . . . ' .... ' ' . . . . . . . . . ' .. ' ' ....... 76-28 Ch. 24-29A ............................................... 76-86 24-2902a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-86 24-2904a ................................................. 76-86 24-2909a ................................................. 76-86 24-2910a ................................................. 76-86 Ch. 24-33A ............................................. U76-72 24-3306a (b) ............................................ U76-72 24-3406 .......................................... U76-37, U76-61 Title 24A ................................. 76-131, U76-7, U76-15 24A-101 et seq................................... 76-111, 76-131 24A-301 ................................................ U76-15 24A-301 (a) (1) (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-131 24A-302 ................................................ U76-15 24A-401 (h) ...... ' ............. ' ........................ 76-131 24A-1801 ................................................ U76-7 24A-2201 (d) ............................................. U76-7 24A-2401 ................................................ U76-7 24A-2601 ................................................ 76-111 24A-3101 ................................................ U76-7 24A-3301 ................................................ 76-131 24A-3401 (a) (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-7 24A-3501 ................................................ U76-7 24A-3502 ................................................ U76-7 24A-3503 ................................................ U76-7 24A-3504 ................................................ U76-7 26-606 .................................................. 76-123 26-702 .................................................. 76-123

401

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

OP. No.

26-703 .................................................. 76-123 26-801 (b) ................................................ 76-33 26-1301, 76-33 o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o" o o o o o 26-1304 76-33 o o o o o o o o o o o o , o o o , , , o o o , , o o , , , , o o , , , 0 , o", , , , , " ' , , o , o 26-1312 .................................................. 76-33 26-1503 .................................................. 76-33 26-2009 ................................................. 76-103 Ch. 26-23 ............................ Op. Att'y Gen. 1976, p. 355 26-2301 to 26-2312 ..................... Op. Att'y Gen.1976, p. 355 26-2303 .................................................. 76-33 26-2309 ................................................. 76-117 26-2310 .................................................. 76-33 26-2502 .................................................. 76-33 26-2504 76-33 o o o o o o o o o o o o , o o o o o o" o o o o o o , o o 26-2505 .................................................. 76-33 26-2506 .................................................. 76-33 26-2509 .................................................. 76-33 Ch. 26-29 ................................. 76-68, U76-69, U76-71 26-2901 ......................................... " ........ 76-68 26-2901 (b) ............................................. U76-29 " 26-2901 to 26-2904 ....................................... U76-33 26-2904 .............................. ," .................. U76-71 26-2913 .................................................. 76-33 Ch. 26-30 ............................................... 76-103 26-3005 ................................................. 76-103 26-3006 ................................................. 76-103 27-901 .................................................. U76-39 27-902 .................................................. U76-39 27-904 ................................................. U76-28 27-1502 ................................................. 76-123 27-2501 .................................................. 76-69 27-2506 .................................................. 76-69 27-2602 ................................................. 76-123 27-2713 .................................................. 76-16 27-2727 et seq...................................... 76-16, 76-130 27-2728 ................................................. 76-130 30-107 ................................................. U76-71 32-101 et seq...................................... 76-88, U76-40 32-102 ................................................... 76-88 32-103 ................................................... 76-88 32-113 ................................................... 76-88 32-115. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-88

402

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SECTIONS

OP. No.

32-121 ................................................. U76-40 32-124 ................................................... 76-88 32-408 .................................................. 76-132 32-445 ................................................... 76-44 32-605a ................................................. 76-118 32-809 .................................................. U76-2 32-838 ................................................. U76-70 32-839 (6) (a) ........................................... U76-70 32-911 ................................................... 76-44 32-922 .................................................. U76-3 32-942 ................................................... 76-44 32-949 ............................... Op. Att'y Gen. 1976, p. 355 32-1106 .................................................. 76-66 Ch. 32-15 ............................................... 76-112 Ch. 32-29 ......................................... 76-84, U76-31 32-2901 et seq............................... 76-55, 76-84, U74-25 32-2901 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76~34, U76-31 32-2901 (6) ....................................... 76-19, U76-25 32-2903 (4) ....................................... 76-19, U76-25 32-2904 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~ ..... 76-84 32-2905 ............................................ 76-55, 76-84 32-2905 (2) (f) ..........................................U76-31 32-2922 .................................................. 76-55 Ch. 32-30 ............................................... 76-127 Ch. 32-38 ................................................ 76-25 32-3804 (c) ............................................... 76-25 32-3805 (b) ............................................... 76-25 32-3806 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-25 32-3807 .................................................. 76-25 32-3807 (a) ............................................... 76-25 32-3807.1 ................................................. 76-25 32-3821 .................................................. 76-25 Ch. 32-43 ................................................ 76-34 Title 34 ....................... 76-6, 76-87, U76-13, U76-45, U76-71 34-102 ................................................... 76-87 34-103 ................................................... 76-87 34-103 (h) ............................................... 76-128 34-103 (v) .............................................. U76-13 34-107 .................................................... 76-6 34-302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-24 Ch. 34-4 ................................................. 76-51 34-401 ............................................ 76-51, U76-50

403

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SECTIONS

OP. No.

34-402 ..................................................... U76-50 34-503 .................................................. U76-13 Ch. 34-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-2 34-602 .................................................... 76-2 34-604 (by, ......................................... ,...... 76-48 34-604 (c) .. ................................................ 76-37 34-605 .............................................. 76-8, 76-48 34-606 . . . . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-46 34-609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - .. 76-2, 76-6 34-614 ................... - ............ ,, ................... 76-2 34-621 .............. - ..................................... 76-6 34-623 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-24 34-627 .................................................... 76-2 34-632 .......... - ....................................... U76-5 34-1001 .................................. , ............... 76-90 34-1002 .......................................... 76-120, 76-128 34-1002 (b) ........................................ 76-22, U76-23 34-1002 (c) (iv) ........................................... 76-5 34-1005 ........................................... 76-90, U76-23 34-1010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-22 34-1011 (a) .............................................U76-22 34-1012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . . . . 76-22 34-1102 (c) ................................................ 76-5 34-1103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-20, U76-45 34-1103 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-45 34-1104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-20 34-1315 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-45 34-1324 ........................ - ....................... U76-45 34-1330 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-45 34-1402 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . . . . . 76-2 34-1504 .................................................. 76-73 34-1514 ........................................... 76-56, 76-120 Ch. 34-17 . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . 76-90 34-1702 ...................................... - .......... 76-90 34-1703 .................................................. 76-90 34-1704 .................................................. 76-90 34-1707 ............ - ....................... "'' ........... 76-90 Title 34A ....................................... U76-16, U76-71 Ch. 34A-5 ................................................. 76-2 34A-501 ................................................... 76-2 34A-503 ................................................... 76-8 34A-505 ................................................... 76-2

404

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

OP. No.

34A-509 ................................. ''" ................ 76-2 34A-519'......................................................... 76-2 34A-1304 (b) .............................................. 76-2 34A-1409 ................................................. 76-23 34A-1501 ................................................. 76-23 39-101 ................................................... U76-51 39-1103 .................................................. 76-71 Title 40 ...................................................... 76-89 40-402 ................................................... 76-93 Ch. 40-8C ............................................... 76-108 40-1510 .................................................. 76-89 40-1511 .................................................. 76-89 40-1602 .................................................. 76-93 40-1614 ................................................... 76-93 40-1635 .................................................. 76-93 40-1636 ................................................. 76-93 40-1812 ................................................... 76-72 Ch. 40-19 ................................................ 76-98 40-1902 (C) ................................................. 76-42 40-1909 to 40-1911 ........................................ 76-98 40-1921.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-98 40-2002 .................................................. 76-97 40-2201 et seq............................................. 76-47 40-2201 (b) (1) ........................................... 76-62 40-2202 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-97 40-2202 (a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-47 40-2204 (a) (3) ............................................ 76-97 40-2205 (b) (3) ....................................... 76-62, 76-97 40-2205 (b) (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-47 Ch. 40-25 .............. 76-58, 76-129, U76-8, U76-9, U76-25, U76-34 40-2501 (23) ............................................. 76-129 40-2503 (3) ............................................... 76-58 40-2503 (9) and (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-9 40-2503 (13) ................................................ U76-34 40-2504 .................................................. 76-58 40-2504 (1) ................................................ 76-7 40-2504 (1) (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-9 40-2504 (11) ............................................. 76-129 40-2505 .......................................... U76-9, U76-34 40-2505.1 ............................................... 76-129 40-2513 ................................................... 76-58 40-2518.1 .................................................. 76-65

405

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SECTIONS

OP. No.

40-2523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-34 40-2524 ................................................... U76-34 40-2531 ............................................. 76-129, U76-8 40-2535 ....................................... .... ... . ... U76-9 40-2701 ........................... ...................... 76-126
40-2701 to 40-2703 ....................................... U76-43
40-2901 et.seq................................... , ............ 76-15 40-2902 (g) ...................... ..... ... ..... ' ... ...... 76-15 40-2925 .... ' ................. ................. .......... 76-30 40-2929 ..... ............................................ 76-30 40-3301 .......................................... ......... U76-57 40-35162. ............................ .... .. .. ............ 76-17 Ch. 40-38 ........................ 76-22, 76-Q2,. 76-53, 76-80, 76-99,
76~108, 76-109 40-3802 ........... ......................... ..... . 76-99, 76-100 40-3803 ............................ ...................... 76-99 40-3803 (g) ............................... ................. 76-51 40-3805 ....... . ......................... ..... .. ............ 76-108 40-3805 (4) ................................... ............. 76-51 40-3806 ..................................... 76-51, 76-99, 76-109 40-3806 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-22 40-3806 (d) ......................................... 76-22) 76-100 40-3806.1 ..................................................... 76-80 40-3808 ............................. ..... .. . ... ......... 76-51 40-3808.2... ' ................... ' ................... 76-53, 76-109 40-3809 ............... ..... ........... .... ....... .. 76-51, 76-52 40-9912 ...... ......................... ...... .... . . ...... 76-108 Title 41A................................ , ........ 76-106, 76-109 Ch. 41A-11 ....................................................... 76-109 Ch. 41A-12.............................................. 76-109 41A-1201 ..................................................... 76-109 41A-1304................................................. 76-20 41A-3101 et seq.....................................76-12, 76-119 41A-3109 .................................. .................... 76-12 Ch. 41A-32 ............................................... 76-79 Ch. 41A-33 ............................................ 76-105 41A-3302................................................ 76-105 41A-3307 (e) ............................................ 76-105 Ch. 42-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-40 43-206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-40 43-206.1 ................................................ U76-40 43-207 ...................... , ... ,., ..... ,., .......... ,. U76-40

406

GEORGIA CODE ANNOTATED SECTIONS-Continued

ConE SECTIONS

OP. No.

43-217 ................................................. U76-40 43-218 ..........., ... , ..., ............................... U76-40
Ch. 43-14 .... ' ..... '' ........................ ' ........ 76-98 43-1405 ................. ' . ' ................. ' ...... ' .... 76-121 43-1406 (c)................... , ...................... 76-98 Ch. 43-16 .......................................... 76-14, 76-17 43-1602 ................................................. 76-14 43-1604 . . . . ' . ' 76-121 j 43-1605 (a)....................................... , ..... 76-17 43-1605 (a) and (b)...................................... 76-14 43-1607.1 ................................................ 76-14 43-1616 ................................................. 76-121 45-117 ................................................. U76-12 45-905 (a).'............................................... 76-95 Title 46 ....... , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-18 46-101 et seq............................................ U76-62 46-201 . . . . . . . . . . . . . . . . . . . . . . . . ' . . . . . . . . . . . . . . . . . . . . . . . . U76-26 46-203 ........ ...................... ' ............. ..... U76-26 46-208 ................................................. U76-26 46-301 ................................................. U76-26 46-805 .............. ' .................................... 76-18 47-106 ................................................ 76-100 53-206 ................................................ U76-18 54-601 et seq.............................................. 76-27 54-609 ........ ' ......................................... 76-27 54-610 ................................................ 76-27 Title 56................................................... 76-89 56-102 ....... ' .......................................... 76-59 Ch. 56-2 ................... , ............................. 76-89 56-204 ................................................... 76-89 56-319 ................................................... 76-89 56-80lb et seq............................................. 76-81 Ch. 56-13 ................................................ 76-89 56-1313 .................................................. 76-89 56-1522 .. ,' ............................................... 76-67 56-2435 ................................................... 76-31 57-116 ................................................... 76-77 57-201 ................................................... 76-77 57-202 ................................................... 76-77 61-101 ................................................... 76-49 61-109 .................. ~ .... ~ ........................... 76-49 61-601 ................ ................................ 76-101

407

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

OP.No.

61-602 ............. ' ....................... ' . . . . . . . . . . . . . . 76-101 61-603 ........ , . , ....................................... 76-101 61-605 .................................................. 76-101
66-103 ........ , .... ' ' ......... ' .......................... 76-18 67-1301 ......................... ' ........................ 76-20 68-1674 ............ , .. . .. . .... . ...................... 76-29 Title 68A .......................................... 76-13, 76-29 68A-103 ................................. ........... ........... 76-13 68A-902 ..................................................... 76-13 68A-902.1 (a) ............................................. 76-11 68B-215 .............................. , .... ,, . , ..... , ... 76-107 68B-303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . 76-13 68B-305 .................... , ................ , ... , ..... 76-13 68B-306 (a) ..................... , .......... , ............ 76-11
69-201 ........................ U76-30; Op. Att'y Gen. 1976, p. 355
69-309 to 69-316 ......................................... U76-10 69-310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-42, U76-10 69-801 ................................................. U76-59 69-1015 to 69-1Q21. ................. ~ .................... U76-10 69-1017 ................................... ' ............ 76-23 69-1018 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-23
69-1207 ...................... .. .. ............. .... ...... U76-59 74-111 ......................................... , ......... 76-131 74-401 ................................................... U76-15 74-414 .................................................... U76-15 78-1005 ................................................. U76-65 78-1007 .................................................. U76-65 78-1015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-65 78-1018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-65 78-1019 ................................................ U76-65 78-1201 .................................................. 76-96 78-1202 .................................................. 76-96 78-1206 .................................................. 76-86 Ch. 78-13 ............. 76-83, 76-86, U76-32, U7()-34, U76-41, U76-47 78-1308 ................................................ 76-86 78-1308 (d) ......................... ....................... U76-34 78-1309 ............................................ 76-86, U76-49 78-1317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-34 Ch. 79-4 ......................................... ............. U76-5 79-401 et seq.......... ........................... , ....... 76-70 79A9917 ............................................... U76-36 81-1602.1 ................................................ U76-ll

408

GEORGIA CODE ANNOTATED SECTIONS-Continued

ConE SECTIONS

OP. No.

84-101. 76-93 o o o o o o o o o o o o o o 'o o o o o o o o o o o o 'o o o o o o o 0 ' o o o 0 o o o 0 o 84-101 (18}.................................... ' ....... 76-126 84-102, 76-93 o o o o o o o o 0 o o o o o o o o o o o o o o o o 'o o o o o o o o o 84-108a to 84-112a ........................................ 76-21 84-303 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-21 Ch. 84-7 ..................................................... U76-54
84-701, U76-54 o o o o o o o' o o o o o' o o o o' o o o o o o o o' o o o o o o 84-704.1 (a) ............................................... U76-54 84-724................................................... U76-54 Ch, 84-14. 76-93, 76-101 o'o o 'o 'o , o 'o o o o , , o o o o o o 84-1403 ........................................ ..... 76-101 84-1413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-93 84-1419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-101 843701 et seq..... , ............................ 76-124 84-3701 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-124
84-3706 ....... ........... .. ..... .............. 76-124 84-3907 (a) ......... ................................. .............. 76-126 84-3911 (a) ..... ..................... . ........................ 76-126 Ch. 84-50 ..... .. .. .. .... ........... ........................ 76-43 84-5007 ............................. ....... 76-43 84-5009 (a) ..... , . , . , ... , . . . . . . . . . . . . . . , ... , . . . . . . . . 76-43
Ch. 84-61 ... . .. ...... .............................. 76-82 Ch. 84-65, , ................... ................ 76-361 76-43, 76-68 84-6501 et seq..... .......... . ............ ................. 76-113 84-6502 .......... ,, .......... .......................... ' ... 76-43 84-6502 (b) ....... .. .............. ... .. ............ ., ... , .. 76-30
84-6504. .... . ..... . .......... ... ... ... ..... ......... 76-36 84-6505 ........................................... 76-36, 76-125 84-6510 ............... . ....... , . ........... , ............... 76-125 84-6512 ........., ........ . ,,, ........................... 76-68 84-6515 .. ~ .... ~ .. ' ...... ; . . . . . . . . . . . . . . . . . . . . . 76-113 84-9963.1 ... ' ... ; .. ; ; ................................. 76-124 84-9988 ...... ; ..... ; ... ; ....................... ; ....... 76-36 85-1406 to 85-1410 ........................................ 76-50 86-114 (b) .. ; ; ........................... 76-32 Title 88. .... ........... ....... ............. ..... ........ 76-111 88-204 (c) ............................................ .... 76-17 Ch. 88-5 ........................................ ........ 76-111 88-501. ............. , .. ............. ,, ............. . .... 76-111 88-503.1 ........ ; .. ; ....... ; ; .......................... 76-111 88-506.1 ................................................. 76-111 88-506.7 ................................................ 76-111

409

GEORGIA CODE ANNOTATED SECTIONS-Continued

CODE SECTIONS

OP.No.

88-507.1 .. ,, ... ,, ,, .. ,0 0 ,o 0 0.. 076-111

88-507.30 000. 00000. 0 ,0 . 0,o 00. ,0 0. 00. 0. 0.. 76-111

Ch. 88-9 .. 0. 0. 0. 00.. 0076-122 o . o . o o.

o . o

o o

o ..

88-9010 00. 0 0000 0 0 00 0 0 76-122

88-907 000.. 0 00 00 0 0 0 00 0 ,0 .. 076-121

88-9120. 0. 00000<0 0. 0. 0 00000... 0. 00 0. 0,0. 0. 0. 76-122

Ch. 88-25 0.. 0. o 00.. 0 0.. 000.... 76-111

88-2506 ... 0 0. 0... 76-111

88-2507 ... 0 0 0.76-111

88-25090 ..... 076-111

88-2603 ...... 76-121

88-2608 .... 00 076-121

89-101 0. 076-9, U76-58 O o .

o.. o o o o . o o. o

89-101 (4) ....... o . 0 o . o o . 0 0. o U76-46

89-101 (7) . 0 o o o 0 o, o 0 0. o 0 0. 0000U76-5

89-103. o o 00o o o o .o o .o U76-30, U76-56; Op. Att'y Gen. 1976, p. 355

89-1050 000000o,O o.o o . 00. 0. ,,o 00.0 00o.o 0,0 0,0 000000000000000 76-10

89-106 0. 0. 000. 0 00. 0. 00 0 076-74

89-2020 .. 0. 0 0 00... 0. 0. 0. 0. 0. 0. 0. 76-10

89-301. 0.. 00... 00. 00. 00. 00 0. 000 0000. 076-10

Ch. 89-4 .......... 0.. o O .o 0.............. 0.o 0 0. 0 0.. 00.. 76-31

89-401 .... 0 0. 0000.... 0. 0 00 0. 00. 0.. 0.76-31

89-405.1 .... 0- ................................... 0......76-31, U76.-58

89-406 ... 0.. 0.. 0.......................... U76-58

89-408 ..... 0........ U76-58

89-409 . . . . . . . o -o o.o o . 0.......... o 0. 00.......... o ... U76-58

89-414. 00. 0 00.. 0..... 000 0000. 00. 0. 00 0. 00076-31

89-415 0000 00 00.. 00 0 0 0 0,o 0 0.. 00 000. 0 000. 076-31

89-5010 0. 0oO 0 00 . 0 oO 00 0..... 000 0000.o 00 0.. 000000. 0. 0,0 00076-10

89-501 (5) O o o o 0 000 00. 00 0 0... 0 0. o 0. 00.U76-5

89-501 (6) .... 0....... 0........ U76-58

89-502 ...... ,, ............ ,, .. ,, . ,o .o 0,0 0.o ,o 0.0 00 0 000076-120

89-601 .. 0,, . ,, ,, 0 00 . 0 0000,, .. 00... 0.76-126

89-903 00O 0 . 0.. 0 0O ,, 000. ,, 0.. 0 0.. 00 00 0. 00 000. 000. 000076-52

89-904 0000.. 0o 00 o 0 00o 0o 00. 0o Op. Att'y Gen. 1976, p. 355

89-913 to 89-918 0 0 00000 00. 0. 00 00.Op. Att'y Gen. 1976, p. 355

89-916 .. 0....... 0. 00000 0. 0. 000000 0 0 000000 00o. 00076-46

89-924 0. 0000.... 0.. ,, 0,o 0.o 00... 0,o 000 0000..... 00,o 0000 00000.76-119

89-925 o o 00. 0000o 000. 00 00. 00Op. Att'y Gen. 1976, p. 355

89-953 to 89-955 . 00. 0.. 000. 00. 0. 0 0... 00000076-43.1

89-964 to 89-,970 ... o ........ 0o 0.................. 0.. 76.,64, 76-88

Ch. 89-12 ... 0..... 0........... 0. 0.......... U76-34

410

GEORGIA CODE ANNOTATED SECTIONS-Continued

ConE SECTIONS

OP.No.

89-1206 ........................................... 76-81, 76-104 89-9916 .............................. Op. Att'y Gen. 1976, p. 355 91-804.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-52 92-158 .................................................. 76-105 92-201 ............................................. 76-49, 76-88 92-805 .................................................... U76-48 Ch. 92-22 ................................................ 76-40 92-2406 ................................................. 76-105 92-2406.2 ............................................... 76-105 92-3105 ................................................. 76-105 92-3303 .................................................. 76-54 Ch. 92-33B ............................................... 76-54 92-3315b .......... '" .................................... .. 76-54 Ch. 92-34A ................................................. 76-39 92-5306 to 92-5309 ...................................... U76-64 92-6907 .................................................. 76-63 92-8414 .................................................... U76-48 92-8436 .................................................. 76-54 92A-608 .. ................................................ 76-13 Ch. 92A-2l. ............................................... 76-9 92A-2108 (d)'.............................................. U76-44 92A-2607 (b) ............................................ 76-130 Ch. 92A-30................................................ 76-33 92A-3001 ... .............................................. 76-110 92A-3003 ................................ 76-11, 76-33, 76-57, 76-110 93-305 .................................................... 76-79 93-306 ................................................... 76-79 93-307 ....................................... 76-53, 76-79, 76-91 95A-104 ..................................................... U76-24 95A-201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-21 95A-204 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-21 95A-401 (a)'.'............................................ U76-21 95A-502 ................................................. -- .......... U76-21 95A-505 (b)............................................... U76-21 95A-619 (b)'.'.'........................................... U76-21 95A-1102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-24 Ch. 97-1 ................................................ 76-75 99-202 ................................................... U76-6 99-206 ........................................... -- ........... U76-6 99-214 ........................................................ U76-6 99-1104 ................................................. 76-113 Ch. 99-34. . ............................................. U76-15

411

GEORGIA CODE ANNOTATED SECTIONS-Continued

CoDE SEcTIONS

OP. No.

99-3402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-15 Ch. 99-35......................................... 76-43.1, 76-46 99-3502 .................................................. 76-46 102-102 ....................... 76-33, 76-80, 76-88, U76-35, U76-48 102-102 (1) ................................... 76-41, 76-53, 76-67 102-102 (5)................................ 76-43.1, 76-73, U76-57 102-102 (9)............... 76-7, 76-33, 76-50, 76-119, 76-122, 76-129,
U76-9, U76-ll, U76-26, U76-37, U76-64 102-102.6 .................................................. 76-2 102-103 .................................................. 76-21 102-104 .................................................. 76-89 102-109 ................................................ U76-59 102-111 ............................................ 76-76, 76-89 Ch. 104-1 ................................................ 76-79 104-201 .................................................. 76-79 104-202 .................................................. 76-79 104-205 .................................................. 76-79 Ch. 111-5 .......................................... 76-41, 76-60 111-502 .................................................. 76-41 111-505 .................................................. 76-41 111-506 ............................................ 76-41, 76-60 111-511 .................................................. 76-41 113-701 ................................................ U76-27 113-709 ................................................ U76-27 113-710 ................................................ U76-27

413

TABLE 5

OBSOLETE OR MODIFIED OPINIONS

Note: The great majority of the opinions here listed were correct when issued, but must be construed in the light of subsequent legislation or holdings by the courts-particularly
the federal courts. Unless an opinion is indicated as formally withdrawn or has obviously been invalidated by court ruling or Act of the GeJ:~.eral Assembly, it should not be:disregarded entirely, but should be considered along with the indicated modification.

SUBJECT OPINION
1948-49, p.241

NATURE OF CHANGE See Table 5, 1965-70 Index.

AUTHORITY FOR CHANGE

1948-49, p. 662

See Table 5, 1971-75 Index.

1950-51, p. 275

See Table 5, 1971-75 Index.

1952-53, p.117

See Table 5, 1965-70 Index.

1954-56, p. 81

See Table 5, 1965-70 Index.

1954-56, p. 276

See Table 5, 1965-70 Index.

1954-56, p. 587

See Table 5, 1965-70 Index.

1954-56, P 603
1954-56, p.781

See Table 5, 1965-70 Index. See Table 5, 1965-70 Index.

1954-56, p. 833

See Table 5, 1965-70 Index.

1957, p.94

See Table 5, 1965-70 Index.

1957, p. 250

See Table 5, 1965-70 Index.

1958-59, p. 112

See Table 5, 1965-70 Index.

1958-59, p. 125

See Table 5, 1965-70 Index.

414

OBSOLETE OR MODIFIED OPINIONs-Continued

SUBJECT OPINION
1958-59, p. 130

NATURE OF CHANGE See Table 5, 1965-70 Index.

AUTHORITYIFOR CHANGE

1958-59, p. 245

See Table 5, 1971-75 Index.

1958-59, p. 329

See Table 5, 1965-70 Index.

1958-59, p. 381

See Table 5, 1965-70 Index.

1958-59, p. 406

See Table 5, 1965-70 Index.

1958-59, p. 408

See Table 5, 1965-70 Index.

1960-61, p.168

See Table 5, 1965-70 Index.

1962, p. 472

See Table 5, 1971-75 Index.

1963-65, p. 318

See Table 5, 1971-75 Index.

1963-65, p. 555

See Table 5, 1965-70 Index.

1963-65, p. 697
1963-65, p. 760
65-13

See Table 5, 1971-75 Index. See Table 5, 1965-70 Index. See Table 5, 1965-70 Index.

65-90

See Table 5, 1965-70 Index.

65-117

See Table 5, 1971-75 Index.

66-49

See Table 5, 1965-70 Index.

66-67

See Table 5, 1965-70 Index.

66-126

See Table 5, 1965-70 Index.

66-166

See Table 5, 1965-70 Index.

415

OBSOLETE OR MODIFIED~OPINION8-Continued

SUBJECT OPINION
66-177

NATURE OF CHANGE See Table 5, 1965-70 Index.

AUTHORITY FOR CHANGE

66-224

See Table 5, 1965-70 Index.

66-255

See Table 5, 1965-70 Index.

66-264

See Table 5, 1965-70 Index.

67-27

See Table 5, 1965-70 Index.

67-41

See Table 5, 1965-70 Index.

67-43

See Table 5, 1965-70 Index.

67-74

See Table 5, 1965-70 Index.

67-95

See Table 5, 1965-70 Index.

67-121

See Table 5, 1971-75 Index.

67-138

See Table 5, 1965-70 Index.

67-163

See Table 5, 1965-70 Index.

67-210

See Table 5, 1965-70 Index.

67-217

See Table 5, 1971-75 Index.

67-245

See Table 5, 1965-70 Index.

67-247

See Table 5, 1965-70 Index.

67-252

See Table 5, 1965-70 Index.

67-297

See Table 5, 1965-70 Index.

67-342

See Table 5, 1965-70 Index.

67-345

See Table 5, 1971-75 Index.

67-366

See Table 5, 1965-70 Index.

67-375

See Table 5, 1965-70 Index.

67-376

See Table 5, 1965-70 Index.

67-389

See Table 5, 1971-75 Index.

416

OBSOLETE OR MODIFIED OPINIONS-Continued

SUBJECT OPINION
67-405

NATURE OF CHANGE See Table 5, 1965-70 Index.

AUTHORITY FOR CHANGE

67-414

See Table 5, 1971-75 Index.

67-422

See Table 5, 1965-70 Index.

67-432

See Table 5, 1965-70 Index.

68-52

See Table 5, 1965-70 Index.

68-174

See Table 5, 1965-70 Index.

68-225

See Table 5, 1971-75 Index.

68-271

See Table 5, 1965-70 Index.

68-296

See Table 5, 1965-70 Index.

68-324

See Table 5, 1965-70 Index.

68-333

See Table 5, 1965-70 Index.

69-28

See Table 5, 1971-75 Index.

69-42

See Table 5, 1965-70 Index.

69-53

See Table 5, 1965-70 Index.

69-68

See Table 5, 1971-75 Index.

69-82

See Table 5, 1965-70 Index.

69-99

See Table 5, 1965-70 Index.

69-111

See Table 5, 1965-70 Index.

69-172

See Table 5, 1965-70 Index.

69-177

See Table 5, 1965-70 Index.

69-258

See Table 5, 1971-75 Index.

69-322

See Table 5, 1971-75 Index.

69-349

See Table 5, 1965-70 Index.

69-467

See Table 5, 1971-75 Index.

417

OBSOLETE OR MODIFIED OPINIONS-Continued

SUBJECT OPINION
69-474

NATURE OF CHANGE See Table 5, 1971-75 Index.

AUTHORITY FOR CHANGE

70-8

See Table 5, 1971-75 Index.

70-99

See Table 5, 1971-75 Index.

70-118

See Table 5, 1965-70 Index.

U70-139

See Table 5, 1965-70 Index.

U70-155

See Table 5, 1971-75 Index.

U70-215

See Table 5, 1971-75 Index.

71-16

See Table 5, 1971-75 Index.

71-139

See Table 5, 1971-75 Index.

71-141

See Table 5, 1971-75 Index.

71-149 71-177 U71-49 U71-103 U71-115 72-124 72-169
U72-93 73-31 73-36

See Table 5, 1971-75 Index.
See Table 5, 1971-75 Index.
See Table 5, 1971-75 Index.
See Table 5, 1971-75 Index.
See Table 5, 1971-75 Index.
See Table 5, 1971-75 Index.
Opinion states that nonbanking corporation cannot be merged with banking company.
See Table 5, 1971-75 Index.
See Table 5, 1971-75 Index.
Opinion states that any limiting features of a youthful offender sentence-"not to exceed _ _ years" or "not to be discharged prior to the service of _ _ years"--should be regarded only as a recommendation.

Ga. Laws 1974, pp. 705, 873 (Ga. Code Ann. 41A-2401 (b)), permits corporations other than banks or trust companies to be merged with those corporations provided the resulting corporation is a bank or trust company.
England v. Bussiere, 237 Ga. 814 (1976), holds that the court's sentence is enforceable.

418

OBSOLETE OR MODIFIED OPINIONS-Continued

SUBJECT OPINION
U73-1

NATURE OF CHANGE
Opinion states that private investigators are prohibited from carrying concealed weapons even if licensed to carry weapons.

AUTHORITY FOR CHANGE
Op. Att'y Gen. 76-68 points out that licensed private investigators are authorized to carry concealed weapons under amendment by Ga. Laws 1976, p. 1430, to Code Ch. 26-29.

74-19 74-33

See Table 5, 1971-75 Index.
Opinion states that legal name of married woman is her name followed by name of her husband.

Subsequent opm10n, Op. Att'y Gen. 75-49, holds that all persons, including married women, may change names by usage, and without court decree, for all purposes, including issuance of drivers license.

74-86

See Table 5, 1971-75 Index.

74-100

Opinion states that any limiting features of a youthful offender sentence-"not to exceed _ _ _ years" or "not to be discharged prior to the service of ___ years"-should be regarded only as a recommendation.

England v. Bussiere, 237 Ga. 814 (1976), holds that the court's sentence is enforceable.

U74-8

See Table 5, 1971-75 Index.

75-68

See Table 5, 1971-75 Index.

U76-41

Opinion discusses manner in which judges emeritus may elect spouses' benefits under Superior Court Judges Retirement System.

Op. Att'y Gen. U76-60 is on same subject-matter, and states that it supersedes U76-41 in case of any conflict.

U76-47

Opinion discusses manner in which judges emeritus may elect spouses' benefits under Superior Court Judges Retirement System.

Op. Att'y Gen. U76-60 is on same subject-matter, and elaborates on and more broadly states the conclusions of Op. Att'y Gen. U76-47.

419 TABLES
TABLE OF CASES

CASES

OP. No.

Abel v. State, 64 Ga. App. 448 (1941) ....................... 76-17 Abernathy v. Mitchell, 113 Ga. 127 (1901) .................. U76-20 Acree v. State, 122 Ga. 144 (1905) ..................... 76-58, 76-76 Adair v. Smith, 23 Ga. App. 290 (1918) ...................... 76-18 Adamson v. Lilienthal, 77 Ga. App. 392 (1948) ............... 76-77 Addison v. Holly Hill Co., 322 U.S. 607 (1943) ................ 76-89 Aiken v. Smith, 68 Ga. App. 538 (1942) .................... U76-26 Akel v. State, 64 Ga. App. 448 (1941) ...................... 76-121 Alford v. Emory University, 216 Ga. 391 (1960) .............. 76-88 Allen v. United States, 386 F.2d 634 (1967) ................. U76-39 Aliotta v. Gilreath, 226 Ga. 263 (1970) ..................... 76-43.1 Alwood v. Commercial Union Assurance Co.,
107 Ga. App. 797 (1963) ................................. 76-49 American Bancorp., Inc. v. Board of Governors of Fed.
Reserve Sys., 509 F.2d 29 (8th Cir. 1974) .................. 76-78 Americus v. Perry, 114 Ga. 871 (1902) ..................... U76-42 Angel v. Bullington, 330 U.S. 183 (1947) ..................... 76-13 Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937) ............. 76-83 Arnold v. State of Georgia, 92 Ga. App. 647 (1955) .......... U76-28 Aspinwall v. Harris, 217 Ga. 485 (1962) ...................... 76-76 Athens v. Wansley, 210 Ga. 174 (1952) ...................... 76-77 Atlanta, Birmingham & Coast Railroad Co. v. Cook,
73 Ga. App. 435 (1946) ............... Op. Att'y Gen. 1976, p. 355 Atlanta Chamber of Commerce v. McRae,
174 Ga. 590 (1930) ...................................... U76-3 Atlanta Finance Co. v. Brown, 187 Ga. 729 (1939) ........... 76-51 Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm'n,
228 Ga. 347 (1971) ...................................... 76-91 Atlanta Log & Export Co. v. Central of Georgia Railway
Co., 171 Ga. 175 (1930) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-52 Atlanta Metallic Casket Co. v. Mosby Truck Service,
Inc., 107 Ga. App. 677 (1963) ........................... U76-20 Atlantic & Birmingham Railway Co. v. Johnson,
127 Ga. 392 (1907) ...................................... 76-52 Atlantic Coast Line R. Co. v. State, 135 Ga. 545 (1910) ........ 76-21 Avery v. Bower, 170 Ga. 202 (1929) ....................... U76-71 Bacon & Sons v. Jones, 116 Ga. 136 (1902) ................... 76-76 Bailey v. Lumpkin, 1 Ga. 392 (1846) ....................... 76-119 Barnes v. Carter, 120 Ga. 895 (1904) ............ 76-7, 76-55, U76-50 Barron v. Terrell, 124 Ga. 1077 (1906) ...................... 76-101 Barton v. Atkinson, 228 Ga. 733 (1972) ............. 76-119, U76-35

420

TABLE OF CASES-Continued

CAsEs

OP. No.

Beall v. Beall, 8 Ga. 210 (1850) ........................... U76-42 Beall v. State, 9 Ga. 367 (1851) ........................... U76-57 Beaty v. Burch, 43 Ga. App. 832 (1931) . . . . . . . . . . . . . . . . . . . . U76-20 Bender v. Anglin, 207 Ga. 108 (1950) ................ 76-83, U76-67 Benevolent Burial Ass'n v. Harrison, 181 Ga. 230 (1935) ........ 76-59 Bentley v. Allstate Insurance Co., 227 Ga. 708 (1971) .......... 76-59 Bentley v. State Board of Medical Examiners,
152 Ga. 836 (1921) ................................ 76-15, 76-47 Berkowitz v. United States, 90 F.2d 881 (1937) .............. U76-39 Birdsey v. Wesleyan College, 211 Ga. 583 (1955) ............ U76-52 Blackmon v. Nichols, 494 F.2d 1179 (5th Cir. 1974) ........... 76-39 Blair v. Smith, 201 Ga. 747 (1947) ....... Op. Att'y Gen. 1976, p. 355 Blair v. State, 90 Ga. 326 (1892) .......................... 76-43.1 Block v. Compagnie Nationale Air France, 229 F. Supp.
801 (N.D. Ga. 1964), aff'd 386 F.2d 323, cert. den.
292 u.s. 905 ........................................... 76-95
Board of Commissioners of Peace Officers Annuity and Benefit Fund v. Clay, 214 Ga. 70 (1958) .................. 76-104
Board of Education of Candler County v. Southern Michigan National Bank, 184 Ga. 641 (1937) . . . . . . . . . . . . . . . U76-3
Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656 (1931) ......................... 76-29, 76-33, 76-101
Board of Trustees of the Gate City Guard v. Atlanta, 113 Ga. 883 (1901) ...................................... 76-49
Boyles v. Steine, 224 Ga. 392 (1968) ........................ 76-119 Bradford v. Justices of Inferior Court, 33 Ga. 332 (1862) ........ 76-89 Bragg v. Bragg, 225 Ga. 494 (1969) ......................... 76-77 Brandywine Townhouses, Inc. v. Joint City-County
Board of Tax Assessors, 231 Ga. 585 (1974) ................ 76-49 Brannen v. State, 235 Ga. 505 (1975) ....................... 76-123 Brooks v. Sessoms, 47 Ga. App. 554 (1933) . . . . . . . . . . . . . . . . . U76-18 Brosnan v. Undercofler, 111 Ga. App. 95 (1965) ............... 76-54 Brotherhood of Locomotive Firemen and Enginemen v.
Northern Pacific Ry. Co., 274 F.2d 641 (8th Cir.1960) ........ 76-83 Brown v. State, 215 Ga. 784 (1960) ......................... 76-123 Brown v. State, 228 Ga. 215 (1971) ......................... 76-123 Bull v. United States, 295 U.S. 247 (1935) ................... 76-54 Burks v. Board of Trustees, 214 Ga. 251
(1958) ....................... 76-7, 76-83, U76-9, U76-65, U76-67 Burnley v. Thompson, 524 F.2d 1233 (1975) . . . . . . . . . . . . . . . . U76-65 Burns v. Alcala, 420 U.S. 575 (1975) ................. 76-88, U76-34

421

TABLE OF CASES-Continued

CASES

OP.No.

Busbee v. Georgia Conference, American Association of University Professors, 235 Ga. 752 (1975) .................. 76-88
Butler v. Billups, 101 Ga. 102 (1897) ....................... U76-26 Butler v. Moore, 125 Ga. App. 435 (1972) .................... 76-57 Byrd v. Cook, 146 Ga. 657 (1917) ....... Op. Att'y Gen. 1976, p. 355 Cady v. Jardine, 185 Ga. 9 (1937) ......................... 76-43.1 Camp v. MARTA, 229 Ga. 35 (1972) ...................... 76-43.1 Carroll v. Ragsdale, 192 Ga. 118 (1914) ...................... 76-76 Carter v. Haynes, 228 Ga. 462 (1971) ...................... U76-31 Casey v. McElreath, 177 Ga. 35 (1933) ..................... U76-19 Caye and Co. v. Milledgeville Banking Co.,
91 Ga. App. 664 (1955) ................................. U76-26 Central Georgia Power Co. v. Ham, 139 Ga. 569 (1913) . . . . . . . . 76-91 Central of Georgia Railway Co. v. State of Georgia,
104 Ga. 831 (1898) ..................................... U76-45 Chattanooga Iron and Coal Corp. v. Shaw,
157 Ga. 869 (1924) ..................................... U76-27 Chenault v. State, 234 Ga. 316 (1975) ...................... 76-123 Cherokee Brick and Tile Co. v. Redwine,
209 Ga. 691 (1953) .................................... U76-64 Chidsey v. Brookes, 130 Ga. 218 (1907) ...................... 76-49
u.s. Church of the Holy Trinity v. United States, 143 457 (1892) ..................................... 76-89 Citizens & Southern National Bank v. Futon County,
123 Ga. App. 323 (1971) ........................... 76-33, 76-41 Citizens & Southern Nat. Bank v. Indep. Bankers Ass'n,
231 Ga. 421 (1973) ...................................... 76-76 City Council of Augusta v. Young, 218 Ga. 346 (1962) ......... U76-9 City Council of Dawson v. Dawson Waterworks,
106 Ga. 696 (1899) ..................................... U76-3 City Finance Company v. Winston, 238 Ga. 10 (1976) ....... U76-62 City of Macon v. Georgia Power Co., 171 Ga. 40 (1930) ....... 76-119 City of Macon v. Herrington, 198 Ga. 576 (1944) .............. 76-7 Clark v. Hammock, 228 Ga. 157 (1971) . . . . . . . . . . . . . . . . . . . . . U76-5 Clarke v. Long, 152 Ga. 619 (1921) ......................... 76-85 Cochran v. State, 212 Ga. 245 (1956) ....................... 76-123 Cofer v. Dunn, 234 Ga. 756 (1975) .......................... 76-13 Coker v. State, 234 Ga. 555 (1975) ......................... 76-123 Coleman v. Glenn, 103 Ga. 458 (1897) . . . . . . . . . . . . . . . . . . . . . U76-58 Coleman v. Kiley, 236 Ga. 751 (1976) . . . . . . . . . . . . . . . . . . . . . . . 76-66 Collier v. Mitchell, 207 Ga. 538 (1951) ....................... 76-16 Collum v. State, 109 Ga. 531 (1899) ....................... U76-33

422

TABLE OF CASES-Continued

CASES

OP.No.

Committee to Stop Route 7 v. Volpe, 346 F. Supp. 731 (D.C. Conn. 1972) ...................................... 76-49
Community Hospital, Inc. v. Latimer, 83 Ga. App. 6 {1950) ..... 76-88 Coney v. Sanders, 28 Ga. 511 (1859) ........................ 76-18 Connor v. O'Brien, 198 Ga. 221 (1944) ..................... 76-43.1 Cooper v. Rollins, 152 Ga. 588 (1922) .......... 76-17, 76-121, U76-4 Corbett v. State, 24 Ga. 391 (1858) ........................ U76-39 Coulbourn v. Joseph, 195 Ga. 723 (1943) ................... U76-27 County of Butts v. Strahan, 151 Ga. 417 (1921) ......... 76-29, 76-51 Crook v. Clark, 180 A.2d 715 (N.J. 1962) . . . . . . . . . . . . . . . . . . . U76-57 Crosby v. Dixie Metal Co., 227 Ga. 541 (1971) . . . . . . . . . . . . . . . U76-9 Cullers v. Home Credit Co., 130 Ga. App. 441 (1973).......... 76-78 Curry v. State, 17 Ga. App. 312 (1915) ...................... 76-69 Cutcliffe v. Chesnut, 126 Ga. App. 378 (1972) ................ 76-18 Dalehite v. United States, 346 U.S. 15 (1952) ................. 76-89 Davis v. Dougherty County, 116 Ga. 491 (1902) ............ U76-11 Dean v. Bolton, 235 Ga. 544 (1975) ...... Op. Att'y Gen. 1976, p. 355 DeKalb County v. Allstate Beer, Inc.,
229 Ga. 483 (1972) .............................. 76-128, U76-52 DeKalb County v. Deason, 221 Ga. 237 (1965) ............... U76-9 DeKalb County v. Southern Bell Tel. & Tel. Co.,
358 F. Supp. 498 (N.D. Ga. 1972.) ......................... 76-67 DeWitt v. Richmond County, 192 Ga. 770 (1941) ............. 76-76 Dobbs v. Buford, 128 Ga. 483 (1907) ........................ 76-56 Dorsett v. Garrard, 85 Ga. 734 (1890) .... Op. Att'y Gen. 1976, p. 355 Duke v. Meyers, 86 Ga. App. 271 (1952) ..................... 76-69 Dunn v. Cofer, 134 Ga. App. 173 (1975), cert. den.
234 Ga. 756 (1975) ...................................... 76-13 Eason v. Morrison, 181 Ga. 322 (1935) ...................... 76-132 Elder v. Home Building & Loan Ass'n, 188 Ga. 113 (1939) ...... U76-48 Elder v. Trustees of Atlanta University, 194 Ga. 716 (1942) . . . . . 76-88 Elrod v. Department of Family and Children Services,
136 Ga..App. 251 (1975) ................................ 76-131 Erwin v. Moore, 15 Ga. 361 (1854) ................... 76-43.1, 76-76 Evans v. Evans, 190 Ga. 364 (1940) ......................... 76-76 Evans, In re, 12 F. Supp. 953 (W.D. N.Y. 1935), aff'd
85 F.2d 92 (2d Cir. 1936) ................................ 76-67 Faust v. Buchanan, 123 Ga. App. 15 (1970) .................. 76-57 Fidelity & Deposit Co. v. Butler, 130 Ga. 225 (1908) .......... 76-31 Finn v. Dobbs, 188 Ga. 602 (1939) .......................... 76-18 Floyd County v. Salmon, 151 Ga. 313 (1921) ................. 76-76 Ford Motor. Co. v. Abercrombie, 207 Ga. 464 (1950) ........... 76-33

423

TABLE OF CASES-Continued

CASES

OP.No.

Forrester v. Culpepper, 194 Ga. 744 (1942) ................. 76-43.1 Foster v. State, 136 Ga. App. 201 (1975) ................... U76-28 Fourth Nat'l Bank v. Grant, 231 Ga. 692 (1974) .............. 76-20 Fowler v. State, 235 Ga. 535 (1975) ........................ U76-29 Fre Le Poole Griffiths for Admission to the Bar, In re
Application of, 413 U.S. 717 (1973) ...................... U76-69 Freeman v. W.O.W. Life Insurance Society,
200 Ga. 1 (1947) ........................................ 76-33
v. Freeman, In re, 49 F. Supp. 163 (S.D. Ga. 1943) ............. 76-101
Freeney Geoghegan, 177 Ga. 142 (1933) .................. 76-115 Fuller v. State, 232 Ga. 581 (1974) ........................ 76-43.1 Gazan v. Heery, 183 Ga. 30 (1936) .......... 76-28, U76-11, U76-26,
U76-32, U76-45 Geeslin v. Opie, 220 Ga. 53 (1964) .................. 76-101, U76-68 George v. Anderson, 135 Ga. App. 273 (1975) ................ 76-131 Georgia Department of Human Resources v. Demory,
138 Ga. App. 888 (1976) ................................. 76-96 Georgia Power Co. v. Georgia Pub. Serv. Comm'n,
211 Ga. 223 (1954) ...................................... 76-91 Georgia Public Service Comm'n v. Atlanta Gas Light Co.,
205 Ga. 863 (1949) ...................................... 76-91 Georgia Public Service Comm'n v. City of Albany,
180 Ga. 355 (1935) ...................................... 76-91 Georgia Real Estate Commission v. Accelerated Courses
In Real Estate, Inc., 234 Ga. 30 (1975) ............. 76-132, U76-54 Gibbs v. State, 235 Ga. 480 (1975) ......................... 76-123 Gibson v. State, 236 Ga. 175 (1976) ........................ 76-123 Glustrom v. State, 206 Ga. 734 (1950) ..................... 76-43.1 Glynn County v. Davis, 228 Ga. 588 (1972) ................ U76-36 Golden v. National Life & Accident Insurance Co.,
189 Ga. 79 (1939) ...................................... 76-121 Grace v. Hopper, 234 Ga. 669 (1975) ....................... 76-123 Grace v. State, 231 Ga. 113 (1973) ......................... 76-123 Graham v. Richardson, 403 U.S. 365 (1971) .................. 76-74 Grand Lodge of Georgia, Independent Order of Odd
Fellows v. City of Thomasville, 226 Ga. 4 (1970) ............ U76-3 Great Northern Ry. Co. v. United States, 315 U.S. 262
(1942) ................................................. 76-89 Greer v. State, 233 Ga. 667 (1975) ....... Op. Att'y Gen. 1976, p. 355 Gregory v. Hamilton, 215 Ga. 735 (1960) .................... 76-93 Griffin v. Russell, 144 Ga. 275 (1915) ....................... 76-57 Groves v. State, 175 Ga. 37 (1932) .......................... 76-69

424

TABLE OF CASES-Continued

CAsEs

OP. No.

Gunn v. Balkcom, 228 Ga. 802 (1972) ....................... 76-51 Gurr v. Gurr, 198 Ga. 493 (1944) ........................... 76-18 Hammond v. State, 10 Ga. App. 143 (1911) ................. U76-ll Hampton v. Wong, 426 U.S. 88 (1976) ....................... 76-74 Hancock v. Hancock, 205 Ga. 684 (1949) .................... 76-18 Hannah v. State, 97 Ga. App. 188 (1958) . . . . . . . . . . . . . . . . . . . U76-36 Hardy v. Mayor and Council of Gainesville,
121 Ga. 327 (1904) .................. Op. Att'y Gen. 1976, p. 355 Harrison v. McHenry, 9 Ga. 164
(1850) ............................. Op. Att'y Gen. 1976, p. 355 Hartsfield Company v. Shoaf, 184 Ga. 378 (1937) ............. 76-58 Hawes v. Phillips, 122 Ga. App. 714 (1970) ................... 76-39 Henderson v. County Board of Registration and Elections,
126 Ga. App. 280 (1972) ................................. 76-90 Hill v. State, 164 Ga. 298 (1927) ............................ 76-69 Hilton v. Guyot, 159 U.S. 113 (1895) . . . . . . . . . . . . . . . . . . . . . . U76-27 Hines v. Wingo, 120 Ga. App. 614 (1969) ..... 76-17, U76-15, U76-68 Hodges v. Georgia Kaolin Co., 207 F. Supp. 374
(M.D. Ga. 1962) ........................................ 76-67 Holloway v. Holloway, 126 Ga. 459 (1905) ................... 76-69 Hooper v. Almand, 196 Ga. 52 (1943) ................ 76-120, U76-9 Hopkins v. West Publishing Co., 106 Ga. App. 596 (1962) ...... 76-39 Horton v. State, 112 Ga. 27 (1900) .................... 76-45, 76-73 Hospital Authority of Albany v. Stewart,
226 Ga. 530 (1970) ...................................... 76-49 Houston v. Rutledge, 237 Ga. 764 (1976) ................... 76-126 Huff v. Anderson, 212 Ga. 32 (1955) ......................... 76-69 Hulgan v. Gledhill, 207 Ga. 349
(1950) ............................. Op. Att'y Gen. 1976, p. 355 Hulgan v. Thornton, 205 Ga. 753 (1949) ............... 76-90, 76-92 Hunt v. Rousmanier's Adm'rs, 21 U.S. (8 Wheat.)
174 (1823) ............................................. 76-18 Hunter v. City of Atlanta, 212 Ga. 179 (1956) ............... 76-104 Imperial Production Corp. v. Sweetwater, 210 F.2d 917
(5th Cir. 1954) .......................................... 76-83 In re, see name of party, i.e., "Evans, In re." Independent Bankers Ass'n v. Dunn, 230 Ga. 345 (1973) ........ 76-76 J.A.T. v. State of Georgia, 133 Ga. App. 922
(1975) ................................... 76-50, 76-122, 76-129 Jaciewicki v. Gordarl Associates, 132 Ga. App. 888 (1974) ...... 76-75 Jackson v. Inman, 232 Ga. 566 (1974) ...................... U76-10 Jaro, Inc. v. Shields, 123 Ga. App. 391 (1971) ......... 76-19, U76-67

425

TABLE OF CASES-Continued

CASES

OP.No.

Jasper School District v. Gormley, 57 Ga. App. 537 (1938) ................................................. U76-3
Jones v. State, 134 Ga. App. 611 (1975) ..................... 76-111 Jossey v. Georgia & Alabama Ry. Co., 102 Ga. 706 (1897) . . . . . . 76-67 Keener v. MacDougall, 232 Ga. 273 (1974) ................... 76-29 Knight v. Bond, 112 Ga. 828 (1900) . . . . . . . . . . . . . . . . . . . . . . . . U76-5 Knoxville Water Co. v. Knoxville, 189 U.S. 434 (1903) ........ U76-57 Lamons v. Yarbrough, 206 Ga. 50 (1949) ............ 76-121, U76-48 Landmark Finance Corp. v. City of Warner Robins,
134 Ga. App. 356 (1975) ................................. 76-18 LeMieux, In re, 362 F. Supp. 1040 (D. Minn. 1973) .......... 76-80 Leathers v. Turner, 75 Ga. App. 62 (1947) ............ 76-19, U76-67 Lee v. City of Jesup, 222 Ga. 530 (1966) . . . . . . . . . . . . . . . . . . . U76-10 Lentz v. City Council of Augusta, 48 Ga. App. 555 (1934) ....... 76-89 Levi, In re, 131 Ga. App. 348 (1974) ........................ 76-131 Lewis v. City of Smyrna, 214 Ga. 323 (1958) ................. 76-77 Lewis v. Reynolds, 284 U.S. 281 (1932) ...................... 76-54 Lit v. United States, 18 F. Supp. 435 (E.D. Pa. 1937) ......... 76-54 McCook v. Long, 193 Ga. 299 (1942) . . . . . . . . . . . . . . . . . . . . . . U76-28 McDonald v. State, 6 Ga. App. 339 (1909) ................... 76-58 Mcintosh v. Williams, 160 Ga. 461
(1925) ............................. Op. Att'y Gen. 1976, p. 355 McLendon v. Balkcom, 207 Ga. 100 (1950) .................. 76-123 McLendon v. Everett, 205 Ga. 713 (1949) . . . . . . . . . . . . . . . . . . U76-30 Mack v. Westbrook, 148 Ga. 690 (1919) ..................... 76-121 MacNeill v. Steele, 186 Ga. 792 (1938) ....................... 76-96 Macon v. Herrington, 198 Ga. 576 (1944) ..................... 76-83 Macon v. Huff, 60 Ga. 221
(1878) ...................... U76-55; Op. Att'y Gen. 1976, p. 355 Macon and Birmingham Railroad v. Gibson,
85 Ga. 1 (1890) ......................................... 76-29 Malcom v. Webb, 211 Ga. 449 (1955) ..... Op. Att'y Gen. 1976, p. 355 Mathis v. Scott, 199 Ga. 743 (1945) ........................ 76-111 Mayo v. Ivan Allen-Marshall Co., 51 Ga. App. 250
(1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-71 Mayor of, etc., cases, see individual city, i.e., Americus,
Atlanta, etc. Miller v. State, 58 Ga. 200 (1877) ........................... 76-69 Mobley v. Marlin, 166 Ga. 820 (1928) ....................... 76-45 Montgomery v. City of Atlanta, 162 Ga. 534
(1926) ...................... U76-55; Op. Att'y Gen. 1976, p. 355 Moore v. Howard, 181 Ga. 605 (1936) ................ 76-51, 76-89

426

TABLE OF CASES-Continued

CASES

OP.No.

Morehouse College v. Russell, 109 Ga. App. 301 (1964) ........ 76-88 Morey v. Doud, 354 U.S. 457 (1957) ........................ U76-4 Morris v. Peters, 203 Ga. 350 (1948) ..... Op. Att'y Gen. 1976, p. 355 Murphy v. State, 233 Ga. 681 (1975) ...... Op. Att'y Gen. 1976, p. 355 Mutual Reserve Life Ins. Co. v. Fowler,
2 Ga. App. 537 (1907) .. , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-26 Ng Sui Wing v. United States, 46 F.2d 755
(7th Cir. 1931) .......................................... 76-69 Oxford v. Shuman, 106 Ga. App. 73 (1962) ................... 76-40 Paulk v. Sexton, 203 Ga. 82 (1948) ........................ U76-39 Pausch v. Guerrard, 67 Ga. 319 (1881) . . . . . . . . . . . . . . . . . . . . . U76-11 Pearson v. County of Tift, 219 Ga. 254 (1963) . . . . . . . . . . . . . . U76-59 Peerless Woolen Mills v. Huiet, 69 Ga. App. 166 (1943) . . . . . . . . . 76-27 Perry v. Regents, University System, 127 Ga. App.
42 (1972) ............................................... 76-88 Persons v. Mashburn, 211 Ga. 477 (1955) .................... 76-76 Pesikoff v. Secretary of Labor, 501 F.2d 757
(D.C. Cir. 1974) ........................................ 76-78 Philbeck v. Timmers Chevrolet, Inc., 499 F.2d 971
(5th Cir. 1974) .......................................... 76-78 Pickett v. Paine, 230 Ga. 786 (1973) ......................... 76-76 Pickus v. United States Bd. of Parole, 507 F.2d 1107
(D.C. Cir. 1974) ........................................ 76-78 Piedmont Life Insurance Co. v. Bell, 109 Ga. App.
251 (1964) ................ ', ............................ 76-59 Pittman v. Ingram, 184 Ga. 255 (1937) ............... 76-10, 76-120 Pitts v. Busbee, 511 F.2d 126 (1975) . . . . . . . . . . . . . . . . . . . . . . . U76-14 Polk v. James, 68 Ga. 128 (1881) ............................ 76-89 Pope v. United States Fidelity & Guar. Co.,
198 Ga. 304 (1944) ...................................... 76-21 Prisoners Awaiting Transfer, In re, 236 Ga. 516 (1976) ........ 76-111 Pugh v. Jones, 131 Ga. App. 600 (1974) . . . . . . . . . . . . . . . . . . . . . U76-5 Queen v. State, 131 Ga. App. 370 (1974) ................... U76-26 Ramsey v. Hamilton, 181 Ga. 365 (1935) .................... 76-93 Ray v. Hemphill, 97 Ga. 563 (1895) ......................... 76-18 Redwine v. Morgan, 88 Ga. App. 625 (1953) .................. 76-18 Rhyne v. Price, 82 Ga. App. 691 (1950) ...................... 76-89 Richardson v. Ramirez, 418 U.S. 24 (1974) ................... 76-69 Ritchie v. McMullen, 159 U.S. 235 (1895) . . . . . . . . . . . . . . . . . . U76-27 Roan v. Rogers, 201 Ga. 696 (1946) ......................... 76-56 Rosser v. Meriwether County, 125 Ga. App. 239 (1971),
aff'd 230 Ga. 236 (1973) ................................. 76-17

427

TABLE OF CASES-Continued

CASES

OP.No.

Rowland v. Morris, 152 Ga. 842 (1922) ..................... 76-121 Rozier v. State, 185 Ga. 317 (1938) ......................... 76-123 Ryan v. Commissioners of Chatham County,
203 Ga. 730 (1948) ........................ 76-58, 76-111, U76-27 S.E.C. v. W. J. Howey Co., 328 U.S. 293 (1946) .............. 76-75 Savannah v. Collins, 211 Ga. 191 (1954) .................... U76-59 Saxe v. Shea, 98 F.2d 83 (2d Cir. 1938) ...................... 76-89 Schloth v. Smith, 134 Ga. App. 529 (1975) ................... 76-90 Seaboard Coast Line Railroad Co. v. Freight Delivery
Service, Inc., 133 Ga. App. 92 (1974) ..................... 76-121 Seaboard Finance Co. v. City of Decatur, 119 Ga.
App. 223 (1969) ......................................... 76-18 Sears v. Minchew, 212 Ga. 417 (1956) ....................... 76-49 Sharpe v. Lowe, 214 Ga. 513 (1959) .................. 76-16, U76-ll Sheffield v. State School Building Authority, 208 Ga.
575 (1952) .............................................. 76-49 Singer Sewing Machine Co. v. Southern Grocery Co.,
2 Ga. App. 545 (1907) .................................. U76-26 Smith v. Bohler, 72 Ga. 546 (1884) .......................... 76-85 Smith v. City of Winder, 22 Ga. App. 278
(1918) .............................. Op. Att'y Gen. 1976, p. 355 South Georgia Funeral Homes v. Harrison, 183 Ga.
379 (1936) .............................................. 76-59 Southeastern Fidelity Ins. Co. v. Heard, 123 Ga. App.
635 (1971) ............................................. 76-33 Spence v. Levi, 133 Ga. App. 581 (1974) .................... 76-131 Standard Oil Co. of Kentucky v. State Revenue
Commission, 179 Ga. 371 (1934) .......................... 76-60 Stanford v. Lynch, 147 Ga. 518 (1918) ....................... 76-85 Stanford v. Smith, 173 Ga. 165 (1931) ....................... 76-57 Stanley v. Sims, 185 Ga. 518 (1938) ........................ 76-131 State v. Wiley, 233 Ga. 316 (1974) .......................... 76-16 State of Georgia v. Regents of the University System
of Georgia, 179 Ga. 210 (1934) .......................... U76-40 State of Georgia v. Resolute Ins. Co., 221 Ga. 815 (1966) ...... U76-28 State Board of Education v. County Board of Education
of Richmond County, 190 Ga. 588 (1940) .................. 76-86 State Ports Authority v. Arnall, 201 Ga. 713 (1947) ........... 76-93 State Revenue Commission v. Alexander, 54 Ga. App.
295 (1936) .............................................. 76-40 Stewart v. Davis, 175 Ga. 545 (1932) ...................... U76-28 Strachan Shipping Co. v. Savannah, 168 Ga. 309 (1929) ........ 76-40

428

TABLE OF CASES-Continued

CASES

OP. No.

Sugarman v. Dougall, 413 U.S. 634 (1973) ............ 76-74, U76-69 Sumter County v. Allen, 193 Ga. 171 (1971) .................. 76-76 Sumter County v. Pritchett, 125 Ga. App. 222 (1971) ......... 76-57 Tanner v. Tanner, 106 Ga. App. 270 (1962) .................. U76-3 Thacker v. Morris, 196 Ga. 167
(1943) ........................ 76-7, 76-50, 76-122, 76-129, U76-9 Thomas v. Ragsdale, 188 Ga. 238 (1939) ..................... 76-76 Thombley v. Hightower, 52 Ga. App. 716 (1935) .............. 76-17 Thompson v. State, 72 Ga. App. 852, cert. den.
329 u.s. 714 (1946) ..................................... 76-69
Thompson v. Stone, 205 Ga. 243 (1949) ...................... 76-56 Thornton v. Anderson, 207 Ga. 714 (1951) . . . . . . . . . . . . . . . . . . U76-28 Todd v. State, 228 Ga. 746 (1972) ......................... U76-29 Trainer v. City of Covington, 183 Ga. 759
(1937) . . . . . . . . . . . . . . . . . . . . . . U76-55; Op. Att'y Gen. 1976, p. 355 Tribble v. State, 168 Ga. 699 (1929) ....................... U76-29 Trotzier v. McElroy, 182 Ga. 719 (1936) ...... 76-83, U76-65, U76-67 Troup Bonding Co. v. State, 121 Ga. App. 25 (1970) ......... U76-28 Troup County Board of Comm'rs v. Public Finance
Corp., 109 Ga. App. 547 (1964) ........................... 76-18 Turner v. City of Atlanta, 160 Ga. 216
(1925) ............................. Op. Att'y Gen. 1976, p. 355 Twiggs v. Wingfield, 147 Ga. 790
(1918) ....................... 76-96; Op. Att'y Gen. 1976, p. 355 Tyler v. Huiet, 199 Ga. 845 (1945) .................... 76-51, 76-83 Undercofler v. Brosnan, 113 Ga. App. 475 (1966) .............. 76-18 Undercofler v. Scott, 220 Ga. 406
(1964) ............................. Op. Att'y Gen. 1976, p. 355 United States v. Belmont, 301 U.S. 324 (1937) ................ 76-95
United States. v. Braasch, 505 F.2d 139 (7th Cir. 1974) ...................... Op. Att'y Gen. 1976, p. 355
United States v. California, 332 U.S. 19 (1947) ................ 76-95
United States v. California, 381 U.S. 139 (1965) .............. 76-95
United States v. Carter, 217 U.S. 286 (1909) ............................. Op. Att'y Gen. 1976, p. 355
United States v. Crosby, 11 U.S. (7 Cranch) 115 (1812) ........ 76-49
United States v. Geraci, 280 F. 256 (1922) ................... 76-67
United States v. Hartwell, 73 U.S. (6 Wall.) 385 (1867)......... 76-SQ
United States v. Jenkins, 176 F. 672 (1909) ................. U76-39
United States v. Louisiana, 339 U.S. 699 (1950)............... 76-95
United States v. Maine, 420 U.S. 515 (1975) .................. 76-95

429

TABLE OF CASES-Continued

CASES

OP.No.

United States v. Mazzei, 390 F. Supp. 1098 (W.D. Pa. 1975) .................... Op. Att'y Gen. 1976, p. 355
United States v. Staszcuk, 502 F.2d 875 (7th Cir. 1974) ...................... Op. Att'y Gen. 1976, p. 355
United States v. Texas, 339 U.S. 707 (1950) .................. 76-95 United States ex rel. Andreacchi v. Curran, 38 F.2d 498
(S.D. N.Y. 1926) ........................................ 76-69 United States ex rel. Cerami v. Uhl, 78 F.2d 698
(2d Cir. 1935) .......................................... 76-69 United States ex rei. Karpay v. Uhl, 70 F.2d 792
(2d Cir. 1934) .......................................... 76-69 United States ex rel. Volpe v. Smith, 289 U.S. 422 (1933) ...... 76-69 Vickery v. Foster, 74 Ga. App. 167 (1946) .................... 76-83 Villyard v. Regents of the University System of Georgia,
204 Ga. 517 (1948) .................................... U76-40 Vinson v. Home Builders Association of Atlanta,
233 Ga. 948 (1975) ............................... 76-17, 76-121 Vulcan Materials~ Inc. v. Hall, 132 Ga. App. 145 (1974) ...... U76-26 Walker County Fertilizer Co. v. Napier, 184 Ga. 861
(1937) .................................... 76-19, 76-89, U76-67 Warehouses, Inc. v. Wetherbee, 203 Ga. 483 (1948)'............ 76-49 Wash v. Kennedy, 23 Ga. App. 618 (1919) ................... 76-52 Washburn v. MacNeill, 205 Ga. 772 (1949) ................. U76-28 Wayne County Board of Commissioners v. Warren,
236 Ga. 150 (1976) .................................... U76-58 Webb v. Whitley, 114 Ga. App. 153 (1966) .......... U76-65, U76-67 Weems v. Glenn, 199 Ga. 388 (1945) ....................... U76-58 Wellborn v. Estes, 70 Ga. 390 (1883) ........................ 76-33 Welsch v. Wilson, 218 Ga. 843 (1963) ................ 76-63, U76-30;
Op. Att'y Gen. 1976, p. 355 West v. Forehand, 128 Ga. App. 124 (1973) ................. 76-101 Wheeler v. Pan-Am. Petroleum Corp., 48 Ga. App.
378 (1934) ............................................. 76-18 White v. Miller, 235 Ga. 192 (1975) ................... 76-56, 76-90 White v. United States, 305 U.S. 281 (1938) .................. 76-83 Whittle v. Jones, 198 Ga. 538 (1944) ....................... 76-127 Wilbur v. United States ex rei. Kadrie, 281 U.S. 206
(1930) ................................................. 76-76 Wiley v. City of Sparta, 154 Ga. 1 (1922) .................... 76-89 Wilkins v. McGehee, 86 Ga. 764 (1891) ...................... 76-18 Williams v. Bear's Den, Inc., 214 Ga. 240
(1958) ........................... 76-76, 76-119, U76-32, U76-63

430

TABLE OF CASES-Continued

CASES

OP.No.

Williams v. General Finance Corp. of Atlanta, 98 Ga. App. 31 (1958) .................................. U76-32
Williams v. State, 138 Ga. App. 662 (1976) ................. U76-29 Williams v. Williams, 191 Ga. 437 (1940) .................... 76-70 Williamson v. Housing Authority of Augusta, 186 Ga.
673 (1938) ............................................ 76-43.1 Wilson Mfg. Co. v. Chamberlin-Johnson-DuBose Co.,
140 Ga. 593 (1913) ...................................... 76-49 Winningham v. United States Dept. of Hous. and Urban
Dev., 512 F.2d 617 (5th Cir. 1975) ........................ 76-76 Woodward v. Westmoreland, 124 Ga. 529 (1905) .............. 76-93 Worsham v. Ligon, 144 Ga. 707 (1916) ....................... 76-70 Wright v. Absalom, 224 Ga. 6 (1968) ........................ 76-44 Wright v. Richmond County Department of Health,
182 Ga. 651 (1936) ...................................... 76-17 Yearwood v. Peabody, 45 Ga. App. 451
(1932) ............................. Op. Att'y Gen. 1976, p. 355 Zuber v. Southern Ry. Co., 9 Ga. App. 539 (1911) ............ 76-91

431
INDEX
OP. No.
ADMINISTRATIVE PROCEDURE. Rules and regulations-
Exceeding legislative authority, as void . . . . . . . . . . . . . . . . . . . U76-54 Interpretations by state agency should be promulgated
according to Administrative Procedure Act ............. 76-78 Interpretive distinguished from substantive ................. 76-78
ADMINISTRATIVE SERVICES, STATE DEPARTMENT OF.
Area planning and development commissions authorized to make purchases through ............................. 76-30
Utility fees to be paid, even though partially allocated for taxes ............................................. 76-42
Workmen's compensationState required unnecessarily to pay claims because of latereporting of claims by other state departments to State Department of Administrative Services, latter department has no authority to require reimbursement from dilatory departments . . . . . . . . . . . . . . 76-38
ADOPTION. Jurisdiction of superior court not diminished by enactment
of Juvenile Court Code or Interstate Compact on Juveniles ........................................... U76-15
AGRICULTURAL COMMODITIES COMMISSIONS. County commissioners, members not to serve, as ............ U76-30 Funds, use of ............................................ 76-115 Milk, for, scholarships from funds prohibited ................ 76-115 Pecans, lessors of land, voting rights and assessments . . . . . . . . . . . 76-4 Southeastern Legal Foundation, contributions to, illegal. ...... 76-102
AGRICULTURAL PRODUCTS. Feedstuffs, see Inspection tax stamps, infra. Grain dealers to be licensed, as such, in addition to
being licensed as warehousemen ......................... 76-41 Inspection tax stamps issued for feedstuffs pursuant to
former law are not subject to reimbursement ............. 76-40 Marketing by State Forestry Commission and University
of Georgia .......................................... U76-40
AGRICULTURE, STATE DEPARTMENT OF. Warehouse bonds not limited by, to maximum of $100,000 ...... 76-60

432

INDEX

OP. No.

AIR QUALITY CONTROL. See Environmental Protection Division.

ALCOHOL AND TOBACCO TAX UNIT. Director, mandatory retirement ............................. 76-65 Regional supervisors, mandatory retirement .................. 76-65

ALIENS. See Citizenship.

APPELLATE COURT JUDGES. Retirement-
Election of method ..................................... U76-9 Superior court judge emeritus appointed to appellate
court, status of ..................................... U76-9

APPLING COUNTY. Property, sales of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-52

ARCHITECTS. Veterans' preference points to be credited to examinations ....... 76-21

AREA PLANNING AND DEVELOPMENT COMMISSIONS.
Purchase of services and equipment through Department of Administrative Services .............................. 76-30
ARMED FORCES. See Military Service.

ARMED SERVICES. See Military Service.
ATLANTA, CITY OF. Ombudsman, statute creating, void as in conflict with
Home Rule Act ..................................... U76-10
ATLANTA HOUSING AUTHORITY. Security guards not subject to Private Detective and
Private Security Agencies Act ......................... 76-113
ATLANTIC OCEAN. See Ocean, Atlantic.
ATTORNEY AND CLIENT. Law School Public Prosecutor Act, third year law school
student assisting district attorney under Act cannot count time so spent as "practice of law" for eligibility in qualification for district attorney ............. 76-28 State agencies not to employ counsel other than as supplied by Law Department ........................... 76-93

INDEX

433

OP. No.

AUDITS. School funds, of, by local boards ...................... , .... 76-72

BAIL. Refund of payment upon forfeiture not permitted ........... U76-28
SuretiesFelony cases, approval or rejection, jurisdiction ............ U76-39 Misdemeanor cases, approval or rejection by sheriffs ....... U76-39

BANKING AND FINANCE, COMMISSIONER OF. See Banks and Banking. Holding company law, duties under. : ....................... 76-76

BANKS AND BANKING. Foreign bank which operates in this state only as agency
office under Code Ch. 41A-33 is not a bank for purpose of Georgia revenue laws ....................... 76-105 Foreign, loan production offices maintained by foreign state banks .......................................... 76-116 Holding companiesEffective date of law .................................... 76-76 General discussion of law ................................. 76-76 Rules and regulations .................................... 76-76 Security transaction whereby one bank acquires control
of another does not violate holding company law if shares disposed of within two years .................... 76-26 Loan production offices, maintenance by banks .............. 76-116 Mobile bank units ........................................ 76-106 OfficesMultiple bank offices or facilities established from single mobile bank unit ............................. 76-106 Participation agreementsPurchasing banks are entitled to pro rata share in appreciation of underlying collateral security when increase in value occurs after purchase by originating bank for amount of indebtedness upon grantor's default ............................... 76-20 Political contributions by state banks ....................... 76-109

BLOOD ALCOHOL REPORTS. Crime lab to furnish on subpoena ........................... 76-11

BONDS. Criminal, see Bail. Sheriffs,. see Sheriffs.

434

INDEX

OP. No.

BOUNDARIES OF STATE. Seaward ................................................. 76-95

BUREAU OF COMMUNITY AFFAIRS. See Community Affairs, Bureau of.

BUYING SERVICES ACT. Cocktail lounges selling memberships in lieu of cover
charges not subject .................................... 76-94

CAMDEN COUNTY. Superior court clerk to pay game and fish violation fees
into country treasury ................................ U76-12

CAMPAIGN AND FINANCIAL DISCLOSURE ACT. See Elections. Campaign financing disclosure reports, who must file .......... 76-22

CERTIFIED PUBLIC ACCOUNTANTS. Education, local boards of, employment by ................... 76-72

CHEROKEE COUNTY. Education, county board of, time of qualification of
candidates .......................................... 76-128

CHILDREN. Abused, legal status of .................................... 76-131 Deprived, defined ........................................ 76-131 Neglected, legal status of. ................................. 76-131

CITIZENSHIP. Employees, public, validity of requirements as to ............. 76-74 Pistol licenses not dependent upon ......................... U76-69

CITY COURTS. See specific cities.
CIVIL RIGHTS. State employees, retroactive pay increases authorized by ....... 76-62
CLAYTON COUNTY WATER AUTHORITY. Officer, public, member holding ............................ U76-19

COCKTAIL LOUNGES. See Restaurants and Similar Places.

COFFEE COUNTY. Small claims court, authority of Governor to appoint
judge .............................................. U76-42

INDEX

435

OP. No.

COLUMBUS, CITY OF. Marina-
Property leased by city from Georgia Power Company and used as marina in Lake Oliver is not public property, and its use is not subject to approval of Secretary of Transportation under Federal Department of Transportation Act .................... 76-49

COMMUNITY AFFAIRS, BUREAU OF. Federal grants, restrictions on authority to apply for .......... 76-15

CONDOMINIUMS. Securities, registration under law where rental pool
arrangement in contract ................................ 76-75

CONFLICTS OF INTEREST. General consideration, see position paper relating to
conflicts of interest ................ Op. Att'y Gen. 1976, p. 355 Leasing of personally owned property by officer to state ...... U76-55

CONSTITUTIONAL AMENDMENTS PUBLICATION BOARD.
Advertisement of general amendments in Fulton County Daily Report ......................................... 76-71
CONSTITUTIONAL LAW. Amendments, see Constitutional Amendments
Publication Board. Advertisement .......................................... 76-71 Campaign and Financial Disclosure Act not applicable
to voting upon ...................................... 76-99 Statutes, inconsistent with, effect ........................ U76-52 Contracts, state agencies, for, see Contracts. GratuitiesAgricultural Commodities Commissions not to contribute
to Southeastern Legal Foundation .................... 76-102 County board of education paying unauthorized debt
prohibited, as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-3 Deductions from pay checks of employees for parking
would constitute illegal gratuities ..................... 76-114

CONSULS, FOREIGN. Weapon carrying licenses, employees not exempt from fee ..... U76-69

CONTRACTS. Public works, see Public Works Contracts.

436

INDEX

OP. No.

CONTRACTs-Continued. State-
Beyond fiscal year where money appropriated ............... 76-61 Nonprofit organizations, with, how noncompetitively
bid contracts governed ............................... 76-64

CORPORATIONS. Holding companies, see Banks and Banking. Nonprofit-
State agencies, noncompetitively bid contracts, with, how governed ....................................... 76-64

COSTS. Advanced, see Refund, infra. Refund of advanced costs where in excess of actual costs . . . . . U76-61

COUNSEL. See Attorney and Client.

COUNTIES. Business licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-63 Commissioners, see County Commissioners. Driveways, private, not repaired by ........................ U76-24 Federal courts, authority of chairman of board of com-
missioners to subject county to jurisdiction,' ............. U76-1 Officers-
Education, board members, as ............................ 76-86 Employee of county running for county office ............... 76-63 PropertySalesby Appling County ............... : : .............. U76-52 RetirementEmployees Retirement System, State, coverage,
obtaining by certain employees and officers ............ 76-129 Roads-
Maintenance by counties regardless of municipal annexation ........................................ U76-21

COUNTY COMMISSIONERS. Agricultural Commodities Commission member, as ........... U76-30 Called meetings, see Notice, infra. Election costs, fixing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-50 Federal courts, accepting jurisdiction for counties ............. U76-1 Notice of called meetings, necessity of providing to all
members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-57

COURT OF APPEALS. Judges, see Appellate Court Judges.

INDEX

437

OP.NO.

COURT REPORTERS. Compensation, effect of 1975 statute upon previous fee
and supplement statutes.............................. U76-11 Fees regulated ........................................... U76-11 Supplements to compensation paid by local authorities . . . . . . . U76-11

COURTS. See City Courts; Court of Appeals; Justices of the Peace;
Juvenile Courts; Small Claims Courts; State Courts; Superior Courts; Supreme Court. See also specific
lower courts.

CRABS. See Game and Fish.

CREDIT UNIONS. Investments in United States Government guaranteed
participations in Small Business Administration loans are permissible ................................... 76-12 Labor union dues not collectible by ......................... 76-119 State employees could confer on credit union irrevocable power to collect salaries as security for debts, but state agency would not honor arrangement in absence of contractual relationship or authorizing legislation............................................ 76-18

CRIME INFORMATION CENTER. Bondsmen, information to'.................................. 76-57 Disorderly conduct, identities of persons convicted of,
restricted to conduct of persons connected with certain other crimes ................................... 76-33 Insurance companies, general information to .................. 76-57 Law Enforcement Assistance Administration, effect of 1976 regulations revision ............................... 76-57 Nonprofit organizations, information to ...................... 76-57 Private security agencies, information to ..................... 76-57 Public agencies, see State and public agencies, infra. RecordsBlood alcohol reports .................................... 76-11 State and public agencies, pre-employment checks, furnishing information ................................ 76-110

CRIME LABORATORY, STATE. Blood alcohol reports, procedure where subpoenaed ............ 76-11

CRIMINAL LAW. First Offenders Law, see First Offenders Law.

438

INDEX

OP. No.

CRIMINAL LAW-Continued. Moral turpitude, what constitutes ........................... 76-69 Voting rights on conviction, see Elections.
Foreign jurisdiction, in ...................... 0 0 0 0 0 0 76-92

DAY CARE CENTERS. Safety regulations, for . . . . . . . . . . . . . . . . . . . 0 0 0 0 0 0 0 0 0 0 0 0 U76-6

DEKALB COUNTY. Recorders court, jurisdiction . . . . . . . . . . . . . . 0 0 0 0 0 U76-36

DENTISTS.

Regulation of practice by State Board of Dentistry. 0 0 0 U76-54

Restricting scope of practice beyond legislative authority

not permitted ......... U76-54 0

0

0

0



DEPUTY SHERIFFS. Elections, names on ballots ......................... 0. 0 0 U76-20

DETECTIVES, PRIVATE.

Atlanta Housing Authority security guards are not

subject to Private Detective and Private Security

Agencies Act ............................ 0 0 0. 0 76-113

Labor unions, licensed, as ..... 76-125 0

0



0

0



0

0



0

0



0

Polygraph examiners not required to be licensed as,

when engaged in ordinary duties ....................... 0 76-43

Psychological stress evaluators must be licensed .... 0 0 0 0 76-36

Weapons, concealed, carrying . . . . . . . . . . . . 0 0 76-68

DISTRICT ATTORNEYS. Qualifications of three years practice, service under Law
School Public Prosecutor Act not to be counted as ........ 76-28 Retirement where D. A. considering superior court
judgeship ........................................... 0 76-86 Vacancies, special elections to fill ........................... 76-120

DISTRICT ATTORNEYS RETIREMENT FUND. Superior court judge, rights of D. A. intending to become. 0 0 76-86

DOMICILE. Retention until reestablished elsewhere ................ 0 0 0 76-70

DRINKING PLACES. See Restaurants and Similar Places.

DRIVERS LICENSES. Records, driver's operating, contents of abstract ............ 0 76-107 Suspension or revocation-
United States military base, drunken driving on ............ 76-13

INDEX

439

OP. No.

DRIVEWAYS. Counties not to repair privately-owned driveways ........... U76-24

DRUNKEN DRIVING. United States military installation, on, revocation of
drivers license ........................................ 76-13

DUBLIN, CITY OF. City court-
Attorney, judge need not be . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-4 Judge, uncle of alderman not to be appointed . . . . . . . . . . . . . . U76-4

EASEMENTS. Conservation-
Purpose of conservation easement being to preserve land or water area in natural scenic condition, not essential that land be located within historic district .................................... 76-50

EDUCATION. Professional Practices Commission-
Teacher's complaint about county school superintendent, filing with ........................................ U76-70

EDUCATION, COUNTY AND LOCAL BOARDS OF. Audit of school funds, expenditures for ....................... 76-72 Certified public accountants, employment .................... 76-72 County officers, members of county boards, as ................ 76-85 Debts, unauthorized ...................................... U76-3 Election-
Change in method not approved by U.S. Department of Justice leaves old law in effect .................... U76-14
Cherokee County, special provisions as to time for candidates to qualify ............................... 76-128
FundsAudits of, expenditures for ............................... 76-72 Medical programs, general, not spent for ................... 76-44
Georgia Military College, leases of property, to ............... U76-2 Health care for students, public funds not to be used for ....... 76-44 Leases to other educational institutions ...................... U76-2 Notes, unauthorized, payment of interest, on ................. U76-3 Psychological services for private school and nonschool
children ............................................. 76-118 Residence requirement of members .......................... 76-85 Vacancy, filling ........................................... 76-56

440

INDEX

OP.No.

EDUCATION, STATE BOARD OF. Psychological services for private school and nonschool
children............................................. 76-118

EDUCATION, STATE DEPARTMENT OF. Records, Open Records Law does not require furnishing
of copies ............................................ U76-43

ELECTIONS.

Absentee ballots-

Registration not compiete, not furnished until corrected .. ..... 76-2

Ballots__:.



Incumbency indicated on, whether officer elected or

appointed ........................................... 76-5

Write-in, see Write-in candidates, infra.

Campaign and Financial Disclosure Act-

Banks, state, contributions by ........................... 76-109 Co:q&titl.lt.i9:P..!1l .!1,In~n<;lrrl~:q.ts, not applicabJe to support
or opposition to ..................................... 76-99

Ethics Commission to investigate violations whether or

not acts occurred prior to commission's existence ........ 76-52

General Assembly, not applicable to persons seeking

special offices within ................................ 76-100

Opposition, candidate not having, required to make

only initial and final reports ......................... 76-100

Organization, definition of, as used in law .................. 76-80

Probate judges, 1976 amendment requiring filing reports

with, apparently do not repeal previous laws

setting up election boards; in any event, such

amendments should be complied with . .'................ 76-51

Public utilities prohibited from making campaign

contributions ....................................... 76-53

Speaker Pro Tern. of House of Representatives, has no

applicability to funds spent in attempt to obtain

election ........................................... 76-100

Time for which records to be maintained.................. 76-108

Who must file reports.................................... 76-22

Candidates-

Incumbents, listing whether elected or appointed ............. 76-5 Qualification in person not required...................... U76-23

Qualifications for office, how determined ................... 76-90 Certifying election results, duty not delegated to elections

supervisor............................................ 76-73

Cherokee County board of education, time for candidates

to qualify ........................................... 76-128

INDEX

441

OP. No.

ELECTIONS-Continued.
Contributions, see Campaign and Financial Disclosure Act, supra.

Conviction of crime as involving elective franchiseForeign jurisdiction, conviction in ......................... 76-92 Moral turpitude ......................................... 76-69

County boards ofCertify results, authority not delegated to elections supervisor ............................................... 76-73 Qualifications of candidates for office not considered by ...... 76-90
Courts, qualifications of candidates for office not decided by ..... 76-90
Deputy registrars, substitute rural mail carrier serving ....... U76-46

Education, county boards of, Cherokee County, time for candidates to qualify ................................. 76-128

Ethics Commission, StateInvestigations of violations of Campaign and Financial Disclosure Act proper by commission, even if acts occurred prior to commission's existence ............... 76-52

Lists of electors to be :filed with superior court clerk and with Secretary of State must be independently legible; microfiche will not comply ....................... 76-24
Municipal, see Municipal Corporations.

Nominating petitionsAltered from prescribed form, pages to be eliminated....... U76-22 Form provided by Secretary of State to be followed ........ U76-22

Parties, politicalCandidates, qualifications for office decided by executive committees ......................................... 76-90

Poll officers, municipal officials serving as ................... U76-13

Privacy law not violated by requiring revealing of social security number ....................................... 76-6

Probate judgesCosts, election set by county commissioner . . . . . . . . . . . . . . . U76-50 Qualifications of candidates for office not decided by ......... 76-90

QualificationsOffice, for .............................................. 76-90 Person, in, not required by general law ................... U76-23

Registrars, see Tax collector, infra. Election to city or county office prohibited .................. 76-8

442

INDEX

OP.No.

ELECTIONS-Continued. Registration of electors-
Absentee ballots not furnished unless complete ............... 76-2 Public high schools-
Authority of principals and assistant principals to register as voters the students of school and persons employed at school does not extend to registration of students at different school nor to educational employees employed at different school ........................................... 76-37
Residence requirementsAdding room to house across county line .................... 76-3
Results not to be certified by supervisor of county board of registrations and elections ............................ 76-73
Social security numbers, revealing of, required ................. 76-6 Special elections-
More than one question submitted ....................... U76-16 Vacancy caused by quo warranto, filling ................... 76-56 Supervisor of county board of registrations and elections
not to certify election results ........................... 76-73 Tax collector acting as voter registrar does not thereby
forfeit right to seek or hold public office .................. 76-48 United States Department of Justice, failure to approve
change in law leaves prior law in effect . . . . . . . . . . . . . . . . . U76-14 Write-in candidates-
Stickers, pasters and stamps prohibited ................... U76-45

ELECTRICITY. Steam generated by electric power company as by-product
not subject to regulation by Public Service Commission ..... 76-91

EMPLOYEES RETIREMENT SYSTEM. Appellate court judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-9 Military service, credit for .................................. 76-58 Refunds of contributions .................................. U76-9 Sick leave, forfeited, credit for ............................... 76-7 Study leave credit not given to former member of Teacher
Retirement System transferred to Employees Retirement System .................................. U76-25 Superior court clerks and their employees not eligible ......... U76-8 Superior Court Judges Retirement Fund, effect of transfer to .......................................... U76-34 Tax collectors, county, and employees obtaining coverage . . . . . 76-129 Tax commissioners, county, and employees obtaining coverage ............................................ 76-129

INDEX

443

OP.No.

EMPLOYEES RETIREMENT SYSTEM-Continued. Tax receivers, county, and employees obtaining coverage ...... 76-129

EMPLOYMENT SECURITY LAW. Qualification for benefits-
One who left last employment under disqualifying circumstances must serve disqualification period before further eligibility under state law, regardless of benefits under any other system .................... 76-27

ENVIRONMENTAL PROTECTION DIVISION. Air quality control-
Variances from regulations, when granted ................. 76-122 Conservation easements-
Purpose of conservation easement being to preserve land or water area in natural scenic condition, not essential that land be located within historic district ............. 76-50
Liability for injuries to personnel not waivable ............... 76-121 Solid waste-
Permit applications, requiring zoning information to accompany......................................... 76-14
Regulation of, does not preclude regulations by county boards of health ..................................... 76-17

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. Commissioner of Personnel Administration, agreements with,
as to investigation of illegal employment practices against state agencies .................................. 76-47

ETHICS CODE FOR OFFICERS. Generally, see position paper relating to
conflicts of interest ................ Op. Att'y Gen. 1976, p. 355

EXAMINING BOARDS, STATE. Litigation among boards over distribution of fees prohibited ..... 76-93 Used car dealers, licensure applications, public examination
of records ........................................... 76-126

EXECUTIVE ORDERS. See Governor.

EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS. Principle applied ......................................... 76-119

FAMILY AND CHILDREN SERVICES, COUNTY DEPARTMENTS OF.
Mileage allowances for employees ........................... 76-97 Supplements, salary for employees under State Merit
System .............................................. 76-97

444

INDEX

OP. No.

FEDERAL COURTS. Counties, authority of chairman of board of commissioners
to subject county to jurisdiction........................ U76-1
FEDERAL DEPARTMENT OF TRANSPORTATION ACT. Public lands governed; does not govern such private land
as that leased by City of Columbus from Georgia Power Company, and used as marina.................... 76-49
FEDERAL GOVERNMENT. Small Business Administration loans, guaranteed, as
approved investments for credit unions .................. 76-12

FEEDSTUFFS. See Agricultural Products.
FIRE FIGHTER STANDARDS AND TRAINING ACT. First Offender Act, probation under, no conviction to
disqualify applicant .................................. 76-130

FIREMEN. See Fire Fighter Standards and Training Act.

FIREMEN'S PENSION FUND, GEORGIA. Benefits, amounts determined by law at time of approval
of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-65

FIRST OFFENDERS LAW. Fire Fighter Standards and Training Act, disqualification
of applicant not brought about by first offender probation ........................................... 76-130 Revocation of probationSentence imposed subsequent to revocation of first offender
probation should run from date sentence is imposed . . . . . . 76-16

FORESTRY COMMISSION, STATE. Agricultural products, marketing . . . . . . . . . . . . . . . . . . . . . . . . . . U76-40

FULTON COUNTY DAILY REPORT. Constitutional amendments, advertisement in ................. 76-71

GAME AND FISH. Crabs, taking in salt waters of state with power-drawn nets ..... 76-95 Shrimp, taking in salt waters of state with power-drawn nets .... 76-95

GARNISHMENT. Post-judgment, constitutionality ........................... U76-62 Set-off by garnishee of debts owed by defendant ............. U76-26

INDEX

445

OP.No.

GENERAL ASSEMBLY. Campaign and Financial Disclosure Act not apply to
persons seeking office within ........................... 76-100 University faculty member serving in ....................... 76-117

GEORGIA DAY. February 12, known as Georgia Day, is not legal holiday ....... 76-112

GEORGIA MILITARY COLLEGE. Leases of property from county board of education ........... U76-2

GEORGIA, STATE OF. See State of Georgia.

GOVERNOR. National Guard, authority over members ..................... 76-32 Small claims court judges, power to appoint ................ U76-42

GRAIN DEALERS. Licenses .................................................. 76-41

GUARDIANS AD LITEM. Abused, deprived and neglected children, appointed for ....... 76-131

GWINNETT COUNTY. Business licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-63

HANDGUNS. See Weapons. Licenses to carry, see Weapons.

HARRIS COUNTY. Election of school board and school superintendent .......... U76-14

HEALTH, COUNTY BOARDS OF. Solid waste, authority to promulgate regulations concerning .... 76-17

HEALTH, COUNTY DEPARTMENTS OF. Mileage allowances for employees ........................... 76-97 Supplements, salary, for employees under State Merit System.... 76-97

HEALTH INSURANCE. See Insurance.

HOLDING COMPANIES. See Banks and Banking.

HOLIDAYS. Georgia Day, February 12, as not .......................... 76-112

446

INDEX

OP. No.

HOME RULE ACT. Special law in conflict with invalid ......................... U76-10

HONESTY IN GOVERNMENT. See Officers and Employees, Public. General consideration, see position paper relating to
conflicts of interest ................ Op. Att'y Gen. 1976, p. 355

HOUSING, PUBLIC. Bureau of Community Affairs, restrictions on authority as
to federal grants ...................................... 76-15

HUMAN RESOURCES, STATE BOARD OF. Health services-
Members engaged in, limited to seven ..................... 76-46 Life Safety Code of 1973, adoption ......................... U76-6 Rules and regulations, 1976 statute did not eliminate
power to make, ..................................... 76-43.1

HUMAN RESOURCES, STATE DEPARTMENT OF. Contracts beyond fiscal year, execution of .................... 76-61 Day care facilities, enforcement of safety standards ........... U76-6 Mentally ill or retarded children, when committed to ......... 76-111 Regulations of board, enforcement .......................... U76-6

INCOME TAXES. Overpayments cannot be recovered, either as refund or as
credits against further liability, where taxpayer fails to file return within three years after payment or withholding .......................................... 76-54 Refunds prohibited where taxpayer fails to file return for over three years ....................................... 76-54

INSANITY. See Mental Dlness.

INSTALLMENT LOANS. Interest rate on, does not affect that on secondary security
deeds ................................................ 76-77

INSURANCE. Automobile clubs offering emergency benefits as conducting
insurance business ..................................... 76-59 Health insurance-
Eligibility for Teachers Retirement System qualifies recipient ........................................... 76-34
Motor clubs offering emergency benefits as conducting insurance business ..................................... 76-59

INDEX

447

OP. No.

INSURANCE-Continued. School teachers, for, eligibility for coverage; assessments by
State Personnel Board ................................. 76-34 State employees-
Superior court judge transferring from Employees Retirement System to Superior Court Judges Retirement Fund .................................. U76-34

INSURANCE COMMISSIONER, STATE. Taxation of insurance companies, information obtained to
be confidential. ....................................... 76-89

INSURANCE COMPANIES. Principal place of business, what constitutes .................. 76-67 Reports, tax information kept confidential .................... 76-89 Taxation, confidentiality of information obtained .............. 76-89

INTEREST. Installment loan law, amendments not affect rate on
secondary security deeds ............................... 76-77 Secondary security deeds, rate upon, not altered by
amendment to installment loan law...................... 76-77

INTOXICATED PERSONS. See Drunken Driving.

JOINT SECRETARY, STATE EXAMINING BOARDS. See Examining Boards, State.

JUDICIAL COUNCIL, STATE. Court reporters, prescribing fees . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-ll

JUSTICES OF THE PEACE. Residence requirements based upon time of holding general
election .............................................. 76-87

JUVENILE COURTS. Confidential nature of proceedings .......................... U76-7 Custody proceedings, transcript, permitting use in other
proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-7 Guardians ad litem, appointment for abused, deprived or
neglected children .................................... 76-131 Interstate Compact on Juveniles, see Jurisdiction, infra. Judges-
Discretion as to release of records ......................... U76-7 State court judge serving as ............................. U76-56 Jurisdiction of superior court over adoption and termination
of parental rights not affected by enactment of Juvenile Court Code or Interstate Compact on Juveniles ......... U76-15

448

INDEX

OP. No.

JUVENILE COURTS-Continued. Juvenile Court Code, see Jurisdiction, supra. Records, when released .................................... U76-7

JUVENILE DETENTION HOMES. Zoning ordinances of city do not bind state . . . . . . . . . . . . . . . . . U76-59

LABOR. Unions, see Labor Unions.

LABOR UNIONS. Detectives, private, licensed, as ............................ 76-125 Dues of public employees, not deductible from compensation ... 76-119

LAND. See Real Estate.

LAND SALES. Land Sales Act-
Certificate of registration, renewal where subdivision sold .... 76-82 Fees for renewal of certificate, liability for, where land
conveyed to another................................. 76-82

LAND SALES ACT. See Land Sales.

LANDLORD AND TENANT. Escrow accounts to be maintained by persons who manage
rental property which they own ........................ 76-101

LAW ENFORCEMENT ASSISTANCE ADMINISTRATION. Criminal information, effect of 1976 revision of rules and
regulations ........................................... 76-57

LAW SCHOOL PROSECUTOR ACT. Service under not "practice of law" as to qualification for
office of district attorney ............................... 76-28

LICENSES. Boards, licensing, litigation among, over distribution of
fees prohibited........................................ 76-93 Business, issued by Gwinnett County . . . . . . . . . . . . . . . . . . . . . . U76-63 Drivers, see Drivers Licenses. Grain dealers, of .......................................... 76-41 Pistols, carrying, see Weapons. Polygraph examiners engaged in ordinary activities not
required to be licensed as private detectives or for security agencies ...................................... 76-43 Psychological stress evaluators, of ........................... 76-36 Weapons, to carry, see Weapons.

INDEX

449

OP.NO.

LIMITATION OF ACTIONS.
Waiver of defense, county board of education, by ............. U76-3

LOAN PRODUCTION OFFICES.
Banks, maintenance by ................................... 76-116

MAIL. See United States Mail.

MARRIAGE.
Age of parties........................................... U76-18

MARTA.
Directors, board of, Commissioner of Transportation cannot delegate another to sit for him.......................... 76-45

MEDICAL EDUCATION BOARD. Scholarships, see Medical Scholarships.

MEDICAL SCHOLARSHIPS.
Constitutional amendment revising, effect upon existing contracts............................................ 76-127

MEDICINE, PRACTICE OF. See Physicians.

MENTAL ILLNESS.
Prisoners convicted of capital felonies becoming insane after conviction, instructions by Governor to physicians ....... 76-123

MENTALLY ILL PERSONS.
Children, commitment to Department of Human Resources .... 76-111

MENTALLY RETARDED PERSONS.
Children, commitment to Department of Human Resources .... 76-111

MERIT SYSTEM, STATE.
Clerical errors, correction of ................................ 76-58 County salary supplements for health and family and
children services employees............................. 76-97 Illegal employment practices, agreements as to investigation
between Commissioner of Personnel Administration and EEOC ........................................... 76-47 Military service, credit for ................................. 76-58 Personnel Administration, Commissioner ofAgreements with EEOC as to investigation of illegal
employment practices by state agencies ................ 76-47 Sanitarians, educational requirements for employment ........ 76-124

450

INDEX

Or. No.

METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
See MARTA.

MILITARY BASES. See United States.

MILITARY RESERVATIONS. See United States.

MILITARY SERVICE. Merit system credit for .................................... 76-58 Pistol carrying licenses, effect of law . . . . . . . . . . . . . . . . . . . . . . . U76-71 Residential status of personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-71 Weapons, license to carry, effect of law ..................... U76-71

MILITIA. See National Guard.

MINES AND MINING. Surface, see Surface Mining.

MONROE COUNTY. Small claims court as not county office . . . . . . . . . . . . . . . . . . . . . U76-35

MOTOR VEHICLES. Drivers licenses, see Drivers Licenses. Driver's operating record, contents of abstract ............... 76-107 Insurance, motor and automobile clubs offering emergency
benefits as conducting insurance business ................. 76-59 Motor clubs offering emergency benefits as conducting
insurance business ..................................... 76-59

MUNICIPAL CORPORATIONS. City courts-
Attorney, judge need not be . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-4 Uncle of alderman not to be appointed judge . . . . . . . . . . . . . . U76-4 ElectionsSecond election ordered after contest treated as
continuation of first ................................. 76-23 Special elections where more than one question submitted ... U76-16 Home Rule Act, local or special law conflicting with as
invalid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-10 Ombudsman, see Ombudsman. Poll officer, official serving as ............................. U76-13 Recorders, see City courts, supra. Roads to be maintained by counties regardless of
municipal annexation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-21

INDEX

451

OP. No.

MUNICIPAL CORPORATIONS-Continued. State not bound by zoning ordinances ...................... U76-59 Zoning ordinances do not bind state . . . . . . . . . . . . . . . . . . . . . . . U76-59

NATIONAL GUARD. Retirement in one grade higher than that actually held
restricted to current members ........................... 76-32

NATURAL RESOOOCES, STATE DEPARTMENT OF. Environmental Protection Division, see Environmental
Protection Division. Financial statements, when required from nonprofit
contractors ........................................... 76-88 Nonprofit organizations, restrictions on contracts not
applicable to those with University System of Georgia .............................................. 76-88 University System, contracts with ........................... 76-88

NEGLIGENCE. Liabilities for, not waivable by state employees on
official duty ......................................... 76-121

NEWSPAPERS. Constitutional amendments, advertisement in Fulton
County Daily Report .................................. 76-71

NONPROFIT CORPORATIONS. See Corporations.

OCEAN, ATLANTIC. Fishing in, with power-drawn nets ........................... 76-95 State boundaries, seaward.................................. 76-95 Territorial sea, what constitutes ............................. 76-95

OFFICERS AND EMPLOYEES, PUBLIC. Citizenship, requirements as to, validity ...................... 76-74 Compensation-
Additional, for Public Service Commissioner, emeritus ....... 76-96 Assignment to credit union with right to collect ............. 76-18 Civil rights reasons, retroactive increases authorized by ...... 76-62 Labor union dues not deducted .......................... 76-119 Overtime, see Overtime, infra. Retroactive increases generally prohibited .................. 76-62 Spouse or minor children, collection by, where employee
dead ............................................... 76-18

452

INDEX

OP. No.
OFFICERS AND EMPLOYEES, PUBLIC-Continued. Conflicts of interest, see Simultaneous employment, infra.
Leasing of personally owned property for use as public office ............................................. U76-55
Position paper relating to conflicts of interest ........................ Op. Att'y Gen. 1976, p. 355
Deductions from pay checks for parking prohibited ........... 76-114 Employee, county, becoming officer .......................... 76-63 Ethics, Code of, see position paper relating
to conflicts of interest .............. Op. Att'y Gen. 1976, p. 355 Health insurance-
Adjusters, independent, who may be contracted with ........ 76-81 Authorized insurers, contracts to be made with ............ 76-104 Illegal employment practices, see Merit System, State. Labor unions, dues not deductible from compensation ......... 76-119 Leasing personally owned property to state . . . . . . . . . . . . . . . . . U76-55 Overtime pay, not entitled to, where 12 hours duty
performed in week otherwise on leave ................... 76-132 Registrars, county or city, prohibited from seeking office ........ 76-8 Relatives, uncle of alderman not to be appointed city court
judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-4 Sales to state, generally, see position paper relating to
conflicts of interest ................ Op. Att'y Gen. 1976, p. 355 Sanitarians, educational requirements for employment ........ 76-124 Simultaneous employment-
Agricultural Commodities Commission member as county commissioner .. .................................... U76-30
Clayton County Water Authority member, as ............. U76-19 County employee as county officer ........................ 76-63 Deputy registrar, substitute rural mail carrier serving as .... U76-46 General consideration, see position paper relating to
conflicts of interest .............. Op. Att'y Gen. 1976, p. 355 Municipal official serving as poll officer................... U76-13 State court judge serving as juvenile court of circuit ....... U76-56 University of Georgia faculty member serving in General
Assembly ......................................... 76-117 Small claims court as not county office ..................... U76-35 Vacancies-
Quo warranto, resulting from, filling ....................... 76-56
OMBUDSMAN. Atlanta, of, statute creating void as in conflict with
Home Rule Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-10
OPEN RECORDS LAW. See Records.

INDEX

453

OP. No.

PARDONS. See Pardons and Paroles.

PARDONS AND PAROLES. Peace Officer Standards and Training Act, disabilities on
conviction not restored by pardon ........................ 76-9

PARENT AND CHILD. Termination of relationship, superior court jurisdiction ....... U76-15

PAROLES. See Pardons and Paroles.

PEACE OFFICER STANDARDS AND TRAINING ACT. Amendment of 1976, legislative history ..................... U76-44 Criminal conviction, disability not relieved by pardon .......... 76-9 Pardon, see Criminal conviction, supra.

PEACE OFFICERS. See Peace Officer Standards and Training Act.

PERSONNEL ADMINISTRATION, COMMISSIONER OF.
See Merit System, State.

PHYSICIANS. Mental illness of capital felony convicts, instructions to
physicians .......................................... 76-123

PISTOLS. See Weapons.

PLANNING AND DEVELOPMENT COMMISSIONS. See Area Planning and Development Commissions.

POLLUTION. See Environmental Protection Division.
POLYGRAPHS. See Psychological Stress Evaluators. License as private detectives not necessary for examiners
while engaged in ordinary duties ........................ 76-43
PRACTICE OF LAW. See Attorney and Client.

PRISONS AND PRISONERS. See Pardons and Paroles; Probation; Sentence and
Punishment. Insane, capital felons becoming, after conviction, instructions
by Governor to physicians ............................ 76-123

454

INDEX

OP.No.

PRIVACY, RIGHT OF. Social security number may be required to be revealed
under Election Code .................................... 76-6

PRIVATE DETECTIVES. See Detectives, Private.

PROBATE JUDGES. Compensation-
Longevity increases .................................... U76-17 Election costs set by county commissioners ................. U76-50 Fees, retention by salaried judges restricted ................. U76-53 Marriage, determining age of parties . . . . . . . . . . . . . . . . . . . . . . . U76-18 Salaries, retention of fees prohibiting ....................... U76-53

PROBATION. First Offender Law-
Sentence imposed subsequent to revocation of first offender probation should run from date sentence is imposed ...... 76-16
Revocation, see First Offender Law, supra.

PROFESSIONAL PRACTICES COMMISSION. See Education.

PROPERTY. Public-
Leased land; property leased by City of Columbus from Georgia Power Company is not public land, and its use is not subject to approval of Secretary of Transportation under Federal Department of Transportation Act .................................. 76-49
PSYCHOLOGICAL SERVICES. Providing for all children by boards of education ............. 76-118

PSYCHOLOGICAL STRESS EVALUATORS. Licensing of evaluators .................................... 76-36

PUBLIC RECORDS. See Records.

PUBLIC SCHOOL EMPLOYEES RETIREMENT SYSTEM. Clerical errors in records, authority to correct ................. 76-25 Records, correction........................................ 76-25

PUBLIC SCHOOLS. See Schools, Public.

INDEX

455

OP.No.

PUBLIC SERVICE COMMISSION. Campaign contributions prohibited from regulated utilities ...... 76-53 Compensation, additional, for emeritus commissioner .......... 76-96 Eavesdropping statute, see Telephone service observing
equipment, infra. Emeritus commissioners, see Compensation, supra. Part of services of company regulated, does not result in
regulation of all ....................................... 76-91 Rules and regulations, interpretations should be made
according to Administrative Procedure Act ............... 76-78 Statute, matters regulated confined to those designated by ..... 76-91 Steam made as by-product by electric power company
not regulated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-91 Telegraph companies, regulation of .......................... 76-79 Telephone service observing equipment, revocation of license
to use where conversations illegally recorded ............. 76-103

PUBLIC UTILITIES. See Utilities, Public.

PUBLIC WORKS CONTRACTS. Bids, necessity for ......................................... 76-98 Surface mining reclamation projects to be let on .............. 76-98

REAL ESTATE. Conservation easements-
Purpose of conservation easement being to preserve land or water area in natural scenic condition, not essential that land be located within historic district ............................................ 76-50
Muniments of title, Canadian wills, as ...................... U76-27

REAL ESTATE BROKERS. Condominiums, sale by, without security law registration ...... 76-75 Escrow accounts-
Bonds in lieu of ........................................ 76-101 Maintenance by one who manages rental property which
he owns ........................................... 76-101

REAL ESTATE COMMISSION, GEORGIA. Counsel, other than as supplied by Law Department,
not to be employed.................................... 76-93 Litigation with other state agencies prohibited................ 76-93

REAL ESTATE TRANSFER TAX. Records, federal revenue agents authorized to inspect
disclosure forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-48

456

INDEX

OP.No.

RECORDERS. See Municipal Corporations.

RECORDERS COURTS. DeKalb County-
Marijuana, jurisdiction over possession of less than one ounce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-36
Stone Mountain Memorial Park, traffic offenses, in ........ U76-36

RECORDS. Inspection of public-
Copies, individuals may make; no obligation of state agency to furnish .................................. U76-43
Used car dealers, license applications ..................... 76-126 Open Records Law, see Inspection of public, supra.

REPORTERS. See Court Reporters.

REPORTERS, COURT. See Court Reporters.

RESIDENCE. See Domicile. Military personnel in state, status ......................... U76-71 Sheriffs, requirements for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-5

RESTAURANTS AND SIMILAR PLACES. Cocktail lounges selling memberships in lieu of cover
charges not subject to Buying Services Act ............... 76-94

RETIREMENT. See Counties; District Attorneys Retirement Fund;
Employees Retirement System; Firemen's Pension Fund, Georgia; Public School Employees Retirement System; Superior Court Judges Retirement Fund; Teachers Retirement Local Systems; Teachers Retirement System; Trial Judges and Solicitors Retirement Fund. Alcohol and Tobacco Tax Unit officers, mandatory retirement for ......................................... 76-65 Appellate court judges .................................... U76-9 Vested rights not divested by subsequent statute .............. 76-83

REVENUE DEPARTMENT, STATE. Alcohol and Tobacco Tax Unit, see Alcohol and Tobacco
Tax Unit.

INDEX

457

OP. No.

ROADS, PUBLIC. Counties to maintain system regardless of municipal
annexation ......................................... U76-21 Private driveways not repaired by county .................. U76-24

SAFETY, PUBLIC. Day care centers, adoption of regulations for ................. U76-6 Life Safety Code, adoption by State Department of Human
Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-6

SAFETY, STATE DEPARTMENT OF PUBLIC. Driving records of individuals, contents of abstract ........... 76-107

SALES. Buying Services Act, see Buying Services Act.

SALES AND USE TAXES. Auctioneers obligated to pay ............................... 76-39 Foreclosure taxes on personalty as subject .................... 76-39 Small Business Administration not exempt as federal agency .... 76-39

SANITARIANS. Educational requirements as prerequisite to employment...... 76-124

SCHOLARSHIPS. Agricultural commodity funds not used for .................. 76-115 Medical, effect of constitutional amendment upon pre-
existing contracts .................................... 76-127
SCHOOL SUPERINTENDENTS, COUNTY. Complaints, about, filed with Professional Practices
Commission ......................................... U76-70 Election, change in method not approved by U.S. Dept.
of Justice leaves old law in effect ...................... U76-14

SCHOOLS, PRIVATE. Psychological services for private school and nonschool
children ............................................. 76-118

SCHOOLS, PUBLIC. Funds-
Medical programs, general, not spent for .................. 76-44 Health care for students, public funds not to be used for ....... 76-44 Registration of electors-
Authority of principal~ and assistant principals to register as voters the students and persons employed at school does not extend to registration of students at different school nor to educational employees employed at different school. ......................... 76-37

458

INDEX

OP.No.

SECRETARY OF STATE. Special election to fill vacancy for district attorney ........... 76-120

SECURITIES. Condominium projects With rental pool ...................... 76-75

SECURITY AGENCIES, PRIVATE. Psychological stress evaluators to be licensed ................. 76-36

SECURITY DEEDS. Bank participation agreements, as part of, effect of
appreciation of property where purchased after debtor's default ....................................... 76-20 Secondary Security Deed Act, not affected by interest rate on installment loans ................................... 76-77

SECURITY TRANSACTIONS. Bank holding companies-
Security transaction whereby one bank acquires control of another does not violate holding company law if shares disposed of within two years .................. 76-26

SENTENCE AND PUNISHMENT. First offenders, see First Offenders Law. First Offenders Law, see First Offenders Law.

SHERIFFS. Bail, sureties, approval or rejection . . . . . . . . . . . . . . . . . . . . . . . . U76-39 Bonds, see Bail, supra.
County must pay premium, regardless of rate charged ...... U76-58 Surety on sheriff's bond shall be corporate surety liable
for full amount of bond penalty. Separate bonds, each With partial coverage, are not acceptable .......... 76-31 Elections, names on ballot ................................ U76-20 Fees to be advanced upon filing civil case ................... U76-37 Funds owed county to be paid before taking office ........... U76-58 Residence requirements met although candidate had been sojourning in another county........................... U76-5 Vacancies, actions by county commissioners where bond not obtained ........................................ U76-58

SHRIMP. See Game and Fish.

SMALL CLAIMS COURTS. See individual counties for particular courts. County offices, as not . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-35 Criminal warrants, clerk cannot issue . . . . . . . . . . . . . . . . . . . . . . U76-38

INDEX

459

OP.No.

SOCIAL SECURITY. Number, Election Code may require revealing ................. 76-6

SOIL AND WATER CONSERVATION DISTRICTS. District superviser remains in office until successor elected,
sworn in and commissioned............................. 76-10

SOLID WASTE. County boards of health not precluded from regulating ........ 76-17 Permit applications may have to be accompanied by zoning
information ........................................... 76-14

SOUTHEASTERN LEGAL FOUNDATION. Agricultural Commodities Commissions cannot contribute
to .................................................. 76-102

STATE COURTS. Judges-
Juvenile court judge serving as .......................... U76-56

STATE OF GEORGIA. Agencies, litigation between, prohibited ...................... 76-93 Atlantic Ocean, what constitutes territorial sea ................ 76-95 Boundaries-
Seaward ............................................... 76-95 Funds-
Disposal of where collected ............................... 76-93 Gratuities, see Constitutional Law.
Deductions from pay checks of employees for parking would constitute illegal gratuities .................... 76-114
Litigation among agencies prohibited ........................ 76-93 Ocean, Atlantic, see Atlantic Ocean, supra. Sales to, by officers and employees, see position paper
relating to conflicts of interest ....... Op. Att'y Gen. 1976, p. 355 Statutes, not generally bound by .......................... U76-59 Trading with, by officers and employees, see position paper
relating to conflicts of interest ....... Op. Att'y Gen. 1976, p. 355 Utility fees to be paid, even though partially allocated
for taxes ............................................. 76-42

STATUTE OF LIMITATIONS. See Limitation of Actions.

STATUTES. Ex post facto-
Weapons, concealed, carrying, increased sentence for repeaters is not .................................... U76-29

460

INDEX

OP.No.

STATUTES-Continued. Local, see Special, infra. Repeals-
Amendment of repealed statute as latest expression of legislative will ...................................... 76-29
Constitutional amendment, conflicting, by ................ U76-52 Repeals by implication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-11
Favored, not .......................................... 76-43.1 Inconsistent with former law ............................ U76-68 Retroactive, construction not generally given ............... U76-67 SpecialHome Rule Act, conflicting with . . . . . . . . . . . . . . . . . . . . . . . . U76-10 Where general existing ................................. U76-10 State not generally governed by ........................... U76-59 Title different from subject matter, not construed to
result in ............................................ 76-43.1

STEAM. Regulation by Public Service Commission not required
where produced by electric power company............... 76-91

STONE MOUNTAIN MEMORIAL ASSOCIATION. Traffic offenses in park, jurisdiction over ................... U76-36

SUPERIOR COURT CLERKS. Camden County, fees to be paid into county treasury ........ U76-12 Costs, refund of advanced, where in excess of actual costs ..... U76-61 Fees-
Fieri facias, for entry on general execution docket . . . . . . . . . U76-51 Game and fish violations, for, to be paid into county
treasury .......................................... U76-12 Sheriffs, of, deposit to be accepted ....................... U76-37 Fieri facias, fee for entry on general execution docket . . . . . . . . U76-51 Game and fish laws, violation fees to be paid into county
treasury............................................ U76-12

SUPERIOR COURT JUDGES RETIREMENT FUND. Creditable service on transfer from Trial Judges and
Solicitors Retirement Fund............................. 76-83 District attorney considering superior court judgeship,
rights ................................................ 76-86 Early retirement ......................................... U76-32 Election to join system ........................... U76-32, U76-34 Employees Retirement System, benefits compared ........... U76-34

INDEX

461

OP.No.

SUPERIOR COURT JUDGES RETffiEMENT FUND-Continued. Judges emeritus-
Early retirement, judges becoming, where widows' benefits taken ........................................ 76-1
Transferring to fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-41 Mandatory membership for judges not otherwise covered ..... U76-49 Purchase of credits by newly-joined judge........... U76-32, U76-34 Spouses' benefits-
Discussion of .......................................... U76-60 Elected, retirement before age 60 . . . . . . . . . . . . . . . . . . . . . . . . U76-66 Election by judge emeritus who had not made such
election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-41 Emeritus, judges already appointed not eligible ............ U76-67 General discussion ..................................... U76-47 Widows' benefits, see Spouses' benefits, supra.

SUPERIOR COURTS. Administrative districts, assignment of judges to different
circuits, within ...................................... U76-72 Administrative judges-
Reassignment of judges ................................. U76-72 Employees Retirement System, superior court clerks and
employees not eligible ................................. U76-8 Judges-
Administrative judges leasing personally owned property to state ........................................... U76-55
Assignment to other circuits within administrative district ........................................... U76-72
Retirement, see Superior Court Judges Retirement Fund. Judges emeritus-
Appellate court, appointment to, effect upon status ......... U76-9 Senior judges, title changed to for certain purposes ........ U76-68 Spouses' benefits-
Elected, retirement before age 60 ...................... U76-66 Qualification for, not permitted after appointed as
judge emeritus .................................. U76-67 Superior Court Judges Retirement Fund-
Becoming judge emeritus on early retirement from ......... 76-1 Transferring to ...................................... U76-41 Jurisdiction of superior court over adoption and termination of parental rights not affected by enactment of Juvenile Court Code or Interstate Compact on Juveniles . . . . . . . . . U76-15 RetirementJudges, of, see Superior Court Judges Retirement Fund.

462

INDEX

OP.No.

SUPERIOR COURTS-Continued. Senior judges-
Compensation for service in court ....................... U76-68 Judges emeritus, title changed for certain purposes ......... U76-68

SUPREME COURT. Justices, see Appellate Court Judges.

SURFACE MINING. Bond forfeitures, how funds expended ....................... 76-98 Reclamation projects as public works contracts ............... 76-98

TAX COLLECTORS. Compensation-
Restriction on increased, applied only to salaried .......... U76-64 Salary set in 1976 not to be increased .................... U76-64 Employees Retirement System coverage, obtaining by
collector and employees............................... 76-129 Public office, not prevented from seeking or holding by
acting as election registrar .............................. 76-48

TAX COMMISSIONERS. Commissions-
School taxes, disposition where on salary basis .............. 76-66 Compensation-
Restriction on increased, applied only to salaried .......... U76-64 Salary set in 1976 not to be increased . . . . . . . . . . . . . . . . . . . . U76-64 Employees Retirement System coverage, obtaining by
commissioner and employees ........................... 76-129

TAX RECEIVERS. Employees Retirement System coverage, obtaining by
receiver and employees................................ 76-129

TAXATION. Banks-
Foreign bank which operates in this state only as agency office under Code Ch. 41A-33 is not a bank for purpose of Georgia revenue laws ............. 76-105
Insurance companiesConfidentiality of information obtained .................... 76-89
Real estate transfers, see Real Estate Transfer Tax. Refunds-
Voluntary payments not refundable in absence of statute; applied to purchase of feedstuffs inspection tax stamps issued under former law ....................... 76-40

INDEX

463

OP. No.

TAXATION-Continued. State agency to pay utility fees even though partially
allocated for taxes ..................................... 76-42 Transfers, see Real Estate Transfer Tax.

TEACHERS. Complaints about county school superintendent, filing with
Professional Practices Commission..................... U76-70

TEACHERS RETIREMENT LOCAL SYSTEMS. Benefits, constitutional basis for increase . . . . . . . . . . . . . . . . . . . U76-31 Teachers Retirement System-
Benefits to teacher under both Teachers Retirement System and local system ............................. 76-55

TEACHERS RETIREMENT SYSTEM. Benefits, increases limited to systems to which General
Assembly appropriates funds ..... ..................... U76-31 Health insurance for eligible members; assessments by
State Personnel Board ................................. 76-34 Local systems-
Benefits to teacher under both Teachers Retirement System and local system ............................. 76-55
Retention of membership even though working with system with local retirement fund .............................. 76-19
Study leave credit not given former member transferred to Employees Retirement System...................... U76-25
Withdrawal of contributions as terminating membership ....... 76-19 Year, authority of board to set at 12 continuous months
for creditable service .................................. 76-84

TELEGRAPH COMPANIES. Public Service Commission, regulation by .................... 76-79

TELEPHONE. Observing equipment, revocation of license to use where
conversations illegally recorded ........................ 76-103

TRAFFIC CONTROL. Controlling statute-
"Uniform Rules of the Road Act," Ga. Laws 1974, p. 633 (Code Title 68A), is controlling statute, but Ga. Laws 1974, p. 1137, being later in date, repeals by implication any inconsistent provision .............. 76-29
Devices, forbidden, wearing by drivers . . . . . . . . . . . . . . . . . . . . . . . 76-29

464

INDEX

OP. No.

TRANSPORTATION. See Motor Vehicles.

TRANSPORTATION, COMMISSIONER OF. MARTA board of directors, may not delegate another to
sit for him, upon ...................................... 76-45

TRIAL JUDGES AND SOLICITORS RETIREMENT FUND. District attorney considering superior court judgeship,
rights of ............................................. 76-86 Superior Court Judges Retirement Fund, retention of
creditable service on transfer to ......................... 76-83

UNEMPLOYMENT COMPENSATION. See Employment Security Law.

UNIONS. See Labor Unions.

UNITED STATES. See Federal Government. Military bases, drivers license revocation for drunken
driving on ............................................ 76-13

UNITED STATES MAIL. Carriers, substitute rural mail carrier serving as deputy
registrar ............................................ U76-46

UNIVERSITY SYSTEM OF GEORGIA. Agricultural products, marketing . . . . . . . . . . . . . . . . . . . . . . . . . . U76-40 Faculty member serving in General Assembly . . . . . . . . . . . . . . . . 76-117 Natural Resources Department, contracts with ............... 76-88

USED CAR DEALERS. License applications, inspection by public ................... 76-126
USURY. See Interest.

UTILITIES, PUBLIC. Campaign contributions prohibited.......................... 76-53 State agency to pay utility fees even though partially
allocated for taxes ..................................... 76-42 Steam made as by-product by electric power company not
subject to Public Service Commission regulation ........... 76-91 Telegraph companies, as ................................... 76-79
VETERANS. Architects, veterans preference points to be credited to
examinations ... ...................................... 76-21

INDEX

465

OP.NO.
WAREHOUSES. Bonds cannot be limited to $100,000 maximum by
Department of Agriculture ............................. 76-60 Grain dealers' license required in addition to warehouse-
men's license ......................................... 76-41

WARRANTS. Criminal, clerk of small claims court cannot issue . . . . . . . . . . . . U76-38

WASHINGTON COUNTY. Small claims court clerk cannot issue criminal warrant . . . . . . . U76-38

WEAPONS. Carrying concealed, increased sentence for repeaters not
based on ex post facto law............................ U76-29 Detectives, private, carrying concealed....................... 76-68 License to carry-
Citizens of United States, licensees need not be ............ U76-69 Foreign consular and diplomatic employees not exempt
from fee .......................................... U76-69 Military personnel, effect, upon, of law ................... U76-71 Public building defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U76-33 Recorded, application need not be ....................... U76-33

WILLS. Muniments of title, wills probated in Canada, as ............ U76-27

WORDS AND PHRASES. Believe ................................................. 76-131 Deprived child ........................................... 76-131 Moral turpitude ........................................... 76-69 Of his own knowledge .................................... U76-18 Organization (under Campaign and Financial Disclosure
Act) ................................................. 76-80 Suspect ................................................. 76-131 Territorial sea ............................................ 76-95

WORKMEN'S COMPENSATION. Administrative Services, State Department of, see Late
reports, infra. Late reports-
State required unnecessarily to pay claims because of late reporting of claims by other state departments to State Department of Administrative Services, latter department has no authority to require reimbursement from dilatory departments .............. 76-38

466

INDEX

OP.No.

ZONING. Information, when required to accompany solid waste permit
applications to environmental protection division .......... 76-14 State not restricted from operating juvenile detention home
by municipal ordinance............................... U76-59